ML14337A666
| ML14337A666 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 12/01/2014 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-271-LA, ASLBP 15-934-01-LA- BD01, RAS 26981 | |
| Download: ML14337A666 (89) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Entergy Nuclear Vermont Yankee Vermont Yankee Nuclear Power Station Docket Number: 50-271-LA ASLBP Number: 15-934-01-LA-BD01 Location: teleconference Date: Monday, December 1, 2014 Work Order No.: NRC-1248 Pages 11-98 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
11 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 + + + + +
6 HEARING 7 ------------------------x 8 In the Matter of: : Docket No.
9 ENTERGY NUCLEAR VERMONT : 50-271-LA 10 YANKEE, LLC, AND : ASLBP No.
11 ENTERGY NUCLEAR : 15-934-01-LA-BD01 12 OPERATIONS, INC. :
13 (Vermont Yankee Nuclear :
14 Power Station) :
15 ------------------------x 16 Monday, December 1, 2014 17 18 Teleconference 19 20 BEFORE:
21 E. ROY HAWKENS, 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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12 1 APPEARANCES:
2 Counsel for the Applicant 3 Susan Raimo, Esq.
4 Of: Entergy Services, Inc.
5 101 Constitution Ave., NW 6 Washington, DC 20001-2133 7 (202) 530-7300 8 On Behalf of the Nuclear Regulatory Commission 9 Beth Mizuno, Esq.
10 Jeremy Wachutka, Esq.
11 of: U.S. Nuclear Regulatory Commission 12 Office of the General Counsel 13 Mail Stop O-15D21 14 Washington, DC 20555-0001 15 (301) 415-4126 16 On Behalf of Vermont Department of Public 17 Service 18 Aaron Kisicki, Esq.
19 Vermont Department of Public Service 20 112 State Street - Drawer 20 21 Montpelier, VT 05620-2601 22 (802) 828-2332 23 24 Nuclear Regulatory Commission Staff 25 Nicole Pepperl NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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13 1 P R O C E E D I N G S 2 3:07 p.m.
3 CHAIR HAWKENS: My name is Roy Hawkens. I'm 4 the Licensing Board Chairman in this case which is 5 entitled Entergy Nuclear Vermont Yankee LLC, and 6 Entergy Nuclear Operations, Incorporated, Docket 7 Number 50-271-LA.
8 I'm at the headquarters, Rockville 9 Headquarters, and joined by my fellow Board Members, 10 Dr. Mike Kennedy and Dr. Rich Wardwell. Also joined by 11 the Board's law clerk, Nicole Pepperl.
12 Would counsel for the parties please 13 introduce themselves for the record? Let's start with 14 Vermont.
15 MR. KISICKI: Aaron Kisicki on behalf of 16 the Department of Public Service representing the 17 State of Vermont.
18 CHAIR HAWKENS: Thank you. Entergy?
19 MS. RAIMO: Susan Raimo on behalf of 20 Entergy.
21 CHAIR HAWKENS: Thank you. NRC Staff.
22 MS. MIZUNO: Beth Mizuno and Jeremy 23 Wachutka for the NRC Staff.
24 CHAIR HAWKENS: Thank you very much.
25 As stated in this Board's order of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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14 1 November 12th, we're conducting a telephonic oral 2 argument on whether Vermont's hearing request should 3 be granted. In that order we provided a list of six 4 topics that we asked the parties to be prepared to 5 include in their presentations. Those topics were not 6 exclusive, but they were topics which are of a 7 particular interest to the Board Members.
8 They consisted of, one, the timeliness of 9 Vermont's petition. Two, the regulatory meaning of 10 shutdown permanently. Three, the purpose and plain 11 language of 10 CFR Part 50, Appendix E. Four, the 12 status of the ERDS at facilities shut down after 1991.
13 Five, the interaction between 10 CFR Section 14 50.54(q)(3) and Appendix E. And six, the regulatory 15 responsibility for evaluating the interface between 16 licensees and state and local governments, and for 17 reviewing whether state and local emergency plans are 18 adequate and capable of being implemented.
19 During the oral argument we'll be hearing 20 from Vermont first. It's been allotted 60 minutes of 21 argument time and may reserve up to 15 minutes for 22 rebuttal. Entergy and the NRC Staff will follow. Each 23 has been allotted 30 minutes of argument time.
24 Mr. Kisicki, you may step up to the podium 25 now and do you wish to reserve any time for rebuttal?
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15 1 MR. KISICKI: I would, Mr. Chairman. I'd 2 like to reserve 15 minutes for rebuttal, if I may.
3 CHAIR HAWKENS: All right. Why don't you 4 proceed with your argument then, Mr. Kisicki?
5 MR. KISICKI: Thank you. Good afternoon, 6 Mr. Chairman and Doctors. My name is Aaron Kisicki on 7 behalf of the State of Vermont. I think the State's 8 argument is fairly straightforward.
9 Entergy has petitioned the Board to 10 approve discontinuance of the Vermont Yankee Power 11 Station Emergency Response Data System or ERDS 12 connection as part of the pending license amendment 13 request or LAR reducing staff level at the plant upon 14 reactor shutdown.
15 10 CFR Section 50.54(q)(3) requires that 16 Entergy conduct an analysis demonstrating that any 17 changes to the VY emergency plan will not reduce the 18 effectiveness of the plant. ERDS is specifically 19 mentioned as part of the VY emergency plan and the 20 Vermont Radiological Emergency Response Plan or RERP.
21 Entergy has failed to conduct any analysis 22 demonstrating that no reduction in the effectiveness 23 of the VY emergency plan will result from the 24 discontinuance of ERDS in violation of Section 25 50.54(q)(3).
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16 1 Vermont is concerned with the impact of 2 discontinuance on the effectiveness of the VY 3 emergency plan, the State RERP, and ultimately the 4 public health and safety of its citizens. Therefore, 5 the State requests that the Board accept this 6 contention that the Board conduct an in-depth inquiry 7 to consider two questions related to the pending LAR.
8 First, whether Entergy should be required 9 to conduct an analysis pursuant to Section 50.54(q)(3) 10 showing no decrease in the Vermont emergency plan's 11 effectiveness without ERDS before the LAR is ruled 12 upon. And second, if the Board determines such an 13 analysis is not required, should the LAR be rejected 14 because the loss of ERDS will decrease the 15 effectiveness of the Vermont Yankee and State 16 emergency plans, and the State's ability to protect 17 public health and safety in the event of an accident 18 at the facility.
19 I think before we move into the substance 20 of our discussion, I think it's appropriate and I 21 believe it's a threshold issue of the timeliness of 22 the Vermont Yankee petition that was filed on 23 September 22nd of this year.
24 As I think everybody is aware, there's 25 some discussion about whether or not the State of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 1 Vermont's petition was filed in a timely fashion. In 2 short, the petition was filed in a timely fashion with 3 the NRC by December 22nd in a manner that enabled the 4 NRC to receive, read, authenticate, distribute, and 5 archive the submission.
6 Entergy was on notice that the petition 7 was to be filed and made no objection upon the receipt 8 of the filing shortly thereafter.
9 CHAIR HAWKENS: Mr. Kisicki, this is Judge 10 Hawkens. We read in your reply brief that you had been 11 in discussions with Entergy before this filing 12 deadline came, and that your discussions led you, 13 perhaps, to believe that you might be able to avoid 14 filing a petition. Is that correct?
15 MR. KISICKI: That is correct, Mr.
16 Chairman. At the time leading up to our filing of the 17 petition, the State of Vermont had actively been 18 engaged with discussions and negotiations with Entergy 19 on a variety of subjects, including the issue of 20 emergency response preparedness. And it has been 21 negotiating in good faith with Entergy for a good 22 number of weeks, if not months, and there was a strong 23 belief on the part of the State that all these issues 24 would be resolved via negotiations prior to having to 25 have a petition filed. That ultimately ended up not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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18 1 being the case, unfortunately.
2 CHAIR HAWKENS: When did you come to the 3 conclusion that you were not going to be able to reach 4 an agreeable settlement?
5 MR. KISICKI: As far as I understand, there 6 are many parties engaged in the discussions with 7 Entergy at that point. I think it was late in the week 8 prior to December 22nd. I think it was somewhere 9 around December 18th or 19th was about the approximate 10 date when the State realized at that time that a 11 filing would need to take place.
12 It's also my understanding that there was 13 some effort to continue negotiations over the weekend 14 prior to the Monday filing deadline involved.
15 CHAIR HAWKENS: All right, thank you.
16 JUDGE WARDWELL: Yes, this is Judge 17 Wardwell. Just one follow-up question on that. To your 18 knowledge, are those negotiations still taking place, 19 or have they completely been cut off?
20 MR. KISICKI: The negotiations are ongoing 21 with Entergy involving a variety of issues, including 22 this issue that we're speaking about today. I can't 23 speak to the status of those negotiations. I 24 personally am not the one that's involved in those, 25 but I do know, and I can represent on behalf of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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19 1 State that those negotiations are ongoing.
2 JUDGE WARDWELL: Thank you.
3 CHAIR HAWKENS: The Board has heard enough 4 about the timeliness issue, Mr. Kisicki, if you want 5 to move on to the next issue.
6 MR. KISICKI: Thank you. I think the next 7 issue that we'd like to address is the regulatory 8 meaning of the term "shut down permanently" for 9 purposes of Appendix E and Part 50. I'm sorry, it's 10 Part E -- Part 50, Appendix E. I apologize.
11 With respect to Subsection 4 that speaks 12 about shut down permanently for the exceptions of the 13 ERDS requirement, the State would advance the argument 14 that in the context of Appendix E, a shut down 15 facility for the purposes of ERDS would mean that a 16 shut down facility is one where the monitoring of all 17 the ERDS parameters are no longer necessary. In other 18 words, at the point where the plant is at a state 19 where none of the information that could be gleaned 20 from ERDS being operated in the event of an accident, 21 then for the purposes of Section 4, the facility would 22 be shut down permanently.
23 Until that time, as is the case here with 24 Vermont Yankee there's still many ERDS parameters that 25 could be useful not only on the State's emergency NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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20 1 plans, but is also clearly enumerated in the Vermont 2 Yankee emergency plan that indicates that ERDS 3 provides a critical information point not only in the 4 event of a reactor accident, but also a number of 5 accident scenarios that include problems with the 6 cooling pool, and a number of other scenarios that 7 were analyzed under the emergency plan LAR submission.
8 I think more to the point on a more 9 broader level, you know, if a facility were to be put 10 in a state where it can longer produce electricity, 11 commercially produce electricity that might be a 12 broader definition, but for here, our purpose for 13 discussion here I think that we can have a much more 14 narrow definition, and that is that if the ERDS 15 parameters don't make any sense, then they don't need 16 it any more, and the plant would be shut down 17 permanently. Here that's not the case.
18 CHAIR HAWKENS: Mr. Kisicki, Judge Hawkens 19 here. I just -- I want to make sure I understand your 20 view of the term "permanently shut down." Am I correct 21 that you view it as it would be a permanent cessation 22 of reactor operations, a representation that there 23 would no longer be any fuel put in the reactor again, 24 and a removal of all spent fuel from the site? All 25 those conditions would give rise then to satisfying a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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21 1 permanent shut down definition?
2 MR. KISICKI: I think I would disagree with 3 you on all three points, but for different reasons. I 4 think first and foremost, I think the permanently shut 5 down language that's in the ERDS exemption speaks to 6 permanently shut down facilities, not necessarily 7 reactors. In this case we have -- we'll soon have a 8 facility where there's no longer fuel or operation of 9 the reactor; however, we have a number of critical 10 components including the spent fuel pool, cooling 11 associated with it, and a number of electrical 12 passings are going on for security purposes. The plant 13 is still operational even though it's not producing 14 electricity.
15 I don't think we need to also -- we don't 16 need to draw the line with removal of all the spent 17 fuel off site. I guess I'd have to ask a clarifying 18 question, when you say removal of spent fuel off site, 19 do you mean removal from the fuel pool to the ISFSI 20 pad off site or removal of the spent fuel from the 21 ISFSI pad off site to a permanent storage facility?
22 CHAIR HAWKENS: Let me turn that question 23 right back to you. I'm looking for your view of the 24 term "permanent shut down."
25 MR. KISICKI: Sure. I think the facility NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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22 1 would be permanently shut down in the event that all 2 of the cooling operations for the fuel pool can be 3 shut down and this will mean the removal of all the 4 spent fuel from the fuel pool into the ISFSI pad off 5 site. At that point, the facility would no longer be 6 operating in any capacity. There would be no need for 7 ERDS data because there would be no risk of an 8 accident involving spent fuel inside the facility 9 itself.
10 There is, I think, a slight risk of there 11 being a dry cask accident on the ISFSI after the fuel 12 has been removed from the spent fuel on the ISFSI pad, 13 but in that instance I don't see necessarily a lot of 14 the ERDS parameters being applicable just off the top 15 of my head. However, I think if we were to brief the 16 issue we may be able to answer that with a little more 17 specificity.
18 CHAIR HAWKENS: And can you provide any 19 support in Appendix E for your view of that term, 20 "permanently shut down" term?
21 MR. KISICKI: Sure. Appendix E, Section 4, 22 Subsection 2 it reads: "Except for Big Rock Point and 23 all nuclear power facilities, not reactors that are 24 shut down, on site hardware will be provided at each 25 unit until the license are interfaced with -- each NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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23 1 unit by the licensee to interface with the NRC siting.
2 The exemption language speaks about shut 3 down facilities, not necessarily reactors. I think the 4 exemption applies through a broader range of 5 activities at a plant above and beyond just reactors 6 operation.
7 CHAIR HAWKENS: All right.
8 MR. KISICKI: Moving on, you can take a 9 closer look at the purpose and the plain meaning of 10 Appendix E in that plain language, is that really it's 11 designed -- it speaks to the development of an ERDS 12 systems at the operating plants at the time of the 13 promulgation of that language in 1991.
14 Section 4 is both descriptive and 15 perspective. It speaks to what operating facilities 16 must do in 1991, that is the provision of ERDS 17 hardware and software, not necessarily the operation 18 of it. Appendix E's assignment is to continue to 19 operate ERDS once the plant is -- it's silent to 20 continued ERDS use once a plant operating in 1991 21 shuts down. It's not necessarily prescriptive.
22 I think both Entergy and the NRC Staff 23 argue, and I think argue erroneously, that somehow 24 because -- that somehow there's a prescriptive tone to 25 the plain language of Appendix E that somehow because NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24 1 -- if you interpret it in a way that says that ERDS 2 use is not required once a facility is shut down, even 3 if you interpret it to encompass very broadly that it 4 would apply to this situation, even then it's not 5 prescriptive. It doesn't say you must shut down ERDS.
6 You must not operate ERDS. It just releases the 7 obligation of a plant to continue ERDS use.
8 Again, Subsection 4, Sub 2, the exception 9 applies to the provision of hardware, not necessarily 10 the operation or the use of ERDS. And that exception 11 makes sense when you look at it contextually at the 12 time that the exception was written. It makes no sense 13 for a plant to implement a system that wouldn't likely 14 be used or derive any benefit to incur the kinds of 15 costs that you would have to spend to implement the 16 system there. But here that doesn't necessarily 17 translate into a blanket just use of once the plant is 18 implemented -- that it implements it, it shuts down, 19 particularly in a case such as the one here where the 20 emergency plan specifically references ERDS use as 21 part of its emergency plan, the VY plan does that, and 22 the State emergency plan.
23 CHAIR HAWKENS: Mr. Kisicki, this is Judge 24 Hawkens.
25 MR. KISICKI: Sure.
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25 1 CHAIR HAWKENS: How do you reconcile your 2 argument with the stated goal in the final rule, and 3 the stated purpose of Appendix E, Part 6 in the final 4 rule? For example, it says, "The objective of the 5 final rule is to insure timely and effective 6 implementation of ERDS to provide NRC increased 7 assurance that a reliable and effective communication 8 system is in place at operating power reactors."
9 MR. KISICKI: Again, I would reconcile it 10 by saying even if you were to read that language to 11 mean that ERDS systems are only applicable at plants 12 that are actually operating and the reactors are 13 actually operating, I don't think that's the lens 14 under which this Board should evaluate whether or not 15 we should have a hearing.
16 The State's contention revolves around 17 whether or not Entergy has provided sufficient 18 analysis under 50.54 that analyzes whether or not ERDS 19 discontinuance doesn't reduce the emergency plan's 20 effectiveness.
21 Here the emergency plan effectiveness 22 clearly is impacted by the loss of ERDS. There is no 23 less than five unique emergency situations that are 24 analyzed and are modified to go out to ERDS in the 25 emergency -- in the LAR that's been presented to you.
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26 1 Those include scenarios that talk about ground assault 2 security threats, fuel handling accidents, aircraft 3 potential threat, control room evacuation, and spent 4 fuel pool -- I'm sorry, spent fuel pool cooling, and 5 general emergency with a radioactive release and 6 protective action recommendations.
7 The bottom line is that the NRC understood 8 that there was a high value and safety value in 9 implementing ERDS back in 1991 relative to the costs 10 involved. Even though the reactor still isn't running 11 now, there are viable action scenarios that have been 12 analyzed under the emergency plan here, and in all of 13 those scenarios Entergy simply says that ERDS will no 14 longer be applicable to respond to those types of 15 accidents. That's at odds with what the overall plan 16 says, the Entergy emergency plan says, and what the 17 Vermont State Emergency Response Plan says.
18 JUDGE WARDWELL: This is Judge Wardwell.
19 You prefaced all of that with a statement, even if you 20 did read it this way, my question to you is how do you 21 read that statement that was quoted to you by Judge 22 Hawkens from the history of the regulation. I believe 23 it was the third paragraph of that.
24 MR. KISICKI: Sure. I think that you can -
25 - I mean, I don't -- I think that you could read it to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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27 1 say that yes, you want to have effective communication 2 capabilities for the NRC at plants that have operating 3 reactors, but I don't think that that precludes the 4 Board to read it more broadly and say or at reactor 5 sites that don't have critical components that are 6 operating.
7 Again, the actual exemption language that 8 speaks to ERDS being exempt from being implemented 9 talks about facilities, not reactors. The language 10 that you quoted to me I think is a broad policy 11 position relative to a very narrow sort of exemption 12 that speaks to a broader class of facilities, or a 13 more narrow class of facilities that would apply under 14 the exemption.
15 JUDGE WARDWELL: Thank you.
16 MR. KISICKI: Thank you. I mean, I think to 17 move on, you know, if you look at the requirements of 18 50.54(q)(3) --
19 CHAIR HAWKENS: Mr. Kisicki, Judge Hawkens 20 here again. When the rule was promulgated and 21 implemented in the early '90s, are you aware how many 22 plants at that time were -- reactors were shut down 23 but they still had spent fuel in spent fuel pools on 24 site?
25 MR. KISICKI: I am not aware of that, Mr.
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28 1 Chairman.
2 CHAIR HAWKENS: All right.
3 MR. KISICKI: I will say this, is that I 4 think if you look at what's going on in the current 5 environment with recent plant shut downs and ERDS use, 6 from our understanding from the ERDS system itself 7 there's indications that three recent plant closures 8 still either are transmitting ERDS data, and that 9 would be at San Onofre where ERDS is still 10 transmitting on a continuous basis. Likewise, at 11 Kewaunee and Crystal River, both of those plants are 12 not transmitting continuously, however, they continue 13 to have ERDS capabilities which I think is telling in 14 the current environment.
15 But, again, if you look at Section 16 50.54(q)(3), those requirements and Appendix E, both 17 of them are bound by Section 50.47(b) emergency plan 18 requirements. You know, .54(q)(3) requires that any 19 change of the E Plan meet the Appendix E and 50.47(b) 20 requirement. And the .47(b) addresses the sufficiency 21 of communication and response coordination between the 22 licensee and state and local responders. ERDS is 23 critical to the 50.47(b) planning and communications 24 requirements, and it's referenced explicitly in the VY 25 emergency plan and Vermont RERP.
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29 1 I mean, in the State's view situational 2 awareness is key to the RERP, things such as wind 3 direction and speed equals realtime data that's 4 critical for protective response on behalf of the 5 State, and for the plant response under the VY 6 emergency plan. And second, coupled with radiation 7 levels of the plants, that information is vital to any 8 sort of coordinated response, particularly in this 9 case where you have three states that are going to be 10 active in any sort of accident response. And, again -
11 CHAIR HAWKENS: Mr. Kisicki, I'm wondering 12 if you know the answer to this question. New Hampshire 13 and hearing like you, and do you know what their 14 position is on this matter?
15 MR. KISICKI: We have reached out to both 16 New Hampshire and Massachusetts. We have had no 17 indication that they do not support Vermont's 18 position, but we haven't heard an affirmative answer 19 back from either of them.
20 CHAIR HAWKENS: So, you're not speaking for 21 either of those states.
22 MR. KISICKI: I am certainly not.
23 CHAIR HAWKENS: And neither of them has 24 taken a position on the matter before us.
25 MR. KISICKI: Correct.
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30 1 CHAIR HAWKENS: Now, what alternatives does 2 the State of Vermont have if the ERDS link with it is 3 discontinued?
4 MR. KISICKI: Well, at this point the 5 Vermont State's Emergency Response Agencies, and there 6 are a number of them who work in coordination, are 7 trying to examine what those alternatives would be.
8 That's a major driver of why we're submitting the 9 petition to the NRC at this point because the nuclear 10 engineering decommissioning specialist has identified 11 no less than 37 ERDS parameters that are critical for 12 continued operation of the RERP plan.
13 At this point, all of those agencies are 14 trying to assess what alternatives, if any, there 15 might possibly be in the absence of ERDS data coming 16 to them. But with that being said, it would be 17 extremely difficult to find an alternative to getting 18 those 37 ERDS parameters that our experts have 19 determined are crucial to proper response 20 preparedness.
21 CHAIR HAWKENS: What parameters, if any, 22 does the Inform Notification System provide?
23 MR. KISICKI: I'm sorry, could you repeat 24 that?
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31 1 does the Inform Notification System provide to 2 Vermont?
3 MR. KISICKI: Unfortunately, I can't speak 4 to that. I'm not aware of what parameters the Inform 5 System provides Vermont at this point.
6 CHAIR HAWKENS: All right.
7 MR. KISICKI: But I think if you look at 8 the requirements of 50.47(b), it speaks to a number of 9 issues, particularly with respect to Subsections 1, 4, 10 5, 6, 8, and 9, to speak -- there's a lot of overlap 11 between those that speak to the critical interplay 12 between the licensee, the NRC, and local and state 13 responses to any sort of accident that may occur at 14 the plant. And here, I mean, the State entered into an 15 MOU back in 1996 with the NRC specifically to gain 16 access to ERDS, and the Vermont Emergency Response 17 Plan has been largely predicated on using data from 18 ERDS in preparing its response.
19 If you remove ERDS, particularly under 20 this -- in this situation where Entergy has done so 21 without even the slightest bit of analysis as to the 22 impact on plan's effectiveness, both its own plan and 23 for the State plan, it undermines a lot of the 24 50.47(b) requirements. And, again, that analysis just 25 simply hasn't been done here, and it should be.
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32 1 You know, I think beyond that the NRC has 2 identified that it has a mandated role to protect 3 public health and safety, and it has to be capable of 4 providing state and local authorities with independent 5 assessments, protective actions recommended by the 6 licensee. You know, in this instance the NRC has the 7 responsibility to determine whether or not the Section 8 50.54(q)(3) licensee emergency plan changes allow for 9 adequate communication and coordination with state and 10 local authorities as contemplated in 50.47(b) and 11 Appendix E. That simply has not been done.
12 Second, you know, the 50.54(q)(3) analysis 13 should be conducted here because, again, the Vermont 14 Yankee Emergency Plan and the RERP references ERDS as 15 a means to communicate with the three states. And the 16 NRC has been presented with a representation by the 17 licensee that ERDS has a critical benefit. That's 18 codified in their own emergency plan that they seek to 19 amend right now.
20 You know, here the NRC's ability to -- you 21 know, this Board's ability to review the sufficiency 22 of the State plans should be very easy because, again, 23 there's a Memorandum of Understanding between the 24 State of Vermont and the NRC that allows for access to 25 ERDS data. And that alone is telling, it shows that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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33 1 the NRC has recognized that there is significant value 2 of having the State have access to ERDS data.
3 Again, all -- you know, at the core of our 4 contention, all that we're seeking for is that either 5 (a) that there's a sufficient showing by Entergy that 6 there is no reduction in plan effectiveness with the 7 loss of ERDS, or to provide an equal alternative, if 8 not better alternative to ERDS in the event that ERDS 9 no longer is accessible by the State. I mean, that's 10 critical.
11 Again, you know, ERDS has such a critical 12 value, this -- you know, the Commission agreed to 13 backfit ERDS into the system because it recognizes 14 there is such a high value to ERDS relative to the 15 cost. Those costs have already been incurred. The cost 16 to continue ERDS use is minimal compared to the 17 benefit that it would serve both VY and the State in 18 the event of an emergency.
19 And more to the point, ERDS right now is 20 continuously transmitting at the VY plant, because as 21 the case with most, if not all Entergy plants, there 22 needs to be little change in terms of -- with respect 23 to the staffing level reduction. There is no -- almost 24 no change in the responsibility with respect to ERDS 25 in the event of an accident considering that it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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34 1 already transmits now.
2 In summation, we request that there would 3 be an in-depth inquiry, either a Subpart G proceeding 4 because there's still questions as to whether or not 5 the omission, the analysis required by 50.54(q)(3) was 6 intentional or not, or alternatively a Subpart L 7 proceeding where we would just ask for the Board to in 8 its discretion, you know, add limited use of discovery 9 and cross-examination to fill out the record and make 10 a proper determination with respect to the State's 11 contention.
12 In sum, we think our contention, we've 13 made a pretty strong showing that's been backed by 14 expert opinion. It was attached to our initial 15 petition, and we have a nuclear expert, Tony 16 Leshinskie, who has over 30 years of experience in the 17 industry, and his determination was that the loss of 18 ERDS is significant and detrimental to the State's 19 well being. I mean the finding of this is certainly 20 material to the kinds of findings that the Board is 21 going to have to make with respect to this LAR, and we 22 would ask that the contention be accepted, and that we 23 have a proper proceeding going forward.
24 CHAIR HAWKENS: More questions? Thank you, 25 Mr. Kisicki.
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35 1 MR. KISICKI: Thank you.
2 CHAIR HAWKENS: Ms. Raimo, we'll hear from 3 you now.
4 MS. RAIMO: Thank you, Your Honor.
5 Entergy appreciates the opportunity to 6 address the Board this afternoon. We know that the 7 Board has read our answer of October 20th, so I don't 8 plan to repeat many of the arguments that we already 9 made there, but I do want to respond to some of the 10 statements that the State made in its reply dated 11 October 31st, and also to some of the statements that 12 counsel just made this afternoon.
13 But before I address any of the specific 14 topics that the Board had requested that we address, 15 I want to make the record very clear on a critical 16 fact that the State got wrong many times in its reply, 17 and that is, Vermont Yankee does not require any staff 18 to activate, or operate ERDS during an alert or other 19 emergency situation.
20 Now, as we stated in our answer, and this 21 is also stated in Section 7.10 of our Emergency Plan, 22 VY maintains a continuous ERDS connection with the 23 NRC. That means that plant data is being transmitted 24 continuously 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day, seven days a week to the 25 NRC even during normal plant operations. VY is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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36 1 transmitting data to the NRC via ERDS as I speak.
2 If there were to be an emergency event, VY 3 would continue to transmit plant data via ERDS without 4 any additional action needed. Again, that's because 5 the system is continuously on and transmitting plant 6 data.
7 CHAIR HAWKENS: That's while the -- that's 8 before the reactor is in permanently shut down 9 condition, though. Is that correct?
10 MS. RAIMO: That's correct. That's today 11 and as long as the reactor is operating.
12 CHAIR HAWKENS: Okay.
13 MS. RAIMO: That's correct.
14 JUDGE WARDWELL: So, what would happen --
15 this is Judge Wardwell. What would happen once the 16 reactor is shut down and the fuel is removed to the 17 spent fuel pool, what level of effort is required for 18 you to maintain those parameters that they deem is 19 necessary associated with the spent fuel pool and any 20 meteorological data, et cetera, that they discuss?
21 MS. RAIMO: Well, Your Honor, the plant 22 will continue to monitor those conditions. It's two 23 separate aspects, and I'll explain one of them at a 24 time.
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37 1 via ERDS to the NRC, the plant that I just mentioned.
2 JUDGE WARDWELL: And why are you doing 3 that?
4 MS. RAIMO: Because, Your Honor, the way 5 that we interpret the regulations, and that's Appendix 6 E, Section 6. The regulations do not require 7 permanently shut down plants to maintain their 8 connection to the NRC via ERDS. And we believe the 9 regulation is very clear on that.
10 JUDGE WARDWELL: But if someone was to read 11 it differently than -- but if it -- let me rephrase 12 that.
13 Does the regulation require you to shut 14 down ERDS?
15 MS. RAIMO: No, it does not require us to 16 shut down ERDS.
17 JUDGE WARDWELL: Okay. So, if it takes no 18 effort to keep it going, why are you shutting it down?
19 MS. RAIMO: Well, Your Honor, I will 20 respectfully disagree that there is no effort for us 21 to continue to maintain ERDS.
22 JUDGE WARDWELL: How much effort is needed 23 to continue that?
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38 1 monitor that data. However, there -- now, ERDS is 2 essentially an information technology infrastructure.
3 And as we discussed in our answer, there is a very 4 complex configuration of systems that is involved in 5 transmitting the data from the plant through the 6 various servers within the Entergy IT structure to the 7 NRC. And there is a significant cost associated with 8 that.
9 JUDGE WARDWELL: And how much in the 10 ballpark is that cost?
11 MS. RAIMO: Based on some rough estimates, 12 Your Honor, we estimated that it would cost 13 approximately $680,000 to maintain all of the IT 14 equipment and support personnel that are required to 15 maintain the system between now and 2020, which is the 16 time that we plan to move all of the fuel to the 17 ISFSI.
18 JUDGE WARDWELL: Did you see the -- review 19 the cost figures that was in the regulatory history.
20 I believe on page 40183 in the Federal Register it 21 said it would cost about $153,000 to install the 22 equipment and run the system for 30 years. There seems 23 to be a disparity between this $153,000 to buy 24 equipment, install it, and then run it for 30 years, 25 and what you're estimating is going to be required to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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39 1 continue the operation of it after the plant shuts 2 down until the fuel is removed from the pool.
3 MS. RAIMO: Your Honor, you know, to be 4 honest, I don't know what went into that $150,000.
5 That was quite some time ago, and that may have just 6 been for the initial setup cost.
7 JUDGE WARDWELL: Do you have any 8 information that leads you to believe that Entergy 9 protested that number in the past during the 10 rulemaking in '91?
11 MS. RAIMO: Your Honor, I don't have that 12 information. What I can tell you is that there are 13 significant costs that are needed to maintain the 14 equipment that we use to transmit the data to the NRC.
15 JUDGE WARDWELL: What's your current plan 16 for removing the fuel from the spent fuel pool to the 17 ISFSIs?
18 MS. RAIMO: Our current plan is to complete 19 that by 2020, and that's dependent on certain 20 regulatory approvals in the interim.
21 JUDGE WARDWELL: So, about six years after 22 shut down is a fair number we can use here for our 23 general assessment?
24 MS. RAIMO: That's our current planning 25 estimate, Your Honor.
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40 1 JUDGE WARDWELL: And you say it's going to 2 cost -- so that ends up to be more than $100,000 a 3 year you're estimating for each year that the fuel is 4 in the pool. Is that correct?
5 MS. RAIMO: Yes, Your Honor, that's 6 correct.
7 CHAIR HAWKENS: Let's go back to your 8 interpretation of the rule, Ms. Raimo. You, I take it, 9 disagree with Mr. Kisicki's interpretation of the term 10 "permanently shut down" nuclear power facility. Is 11 that correct?
12 MS. RAIMO: That's correct, Judge Hawkens.
13 CHAIR HAWKENS: How would you interpret it, 14 and why?
15 MS. RAIMO: We interpret permanently shut 16 down to mean plants that have docketed the 17 certifications of permanent cessation of operations 18 and permanent removal of fuel from the reactor vessel.
19 As Your Honor has pointed out, the 20 Statement of Considerations that accompanied the 21 Appendix E final rule make it pretty clear that the 22 ERDS rule was intended to apply to operating reactors, 23 and not to nuclear facilities more broadly. We believe 24 that's an unreasonably broad interpretation of that 25 rule.
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41 1 CHAIR HAWKENS: That rule -- what does that 2 rule do? What's the purpose of that rule?
3 MS. RAIMO: Of Appendix E, Your Honor?
4 CHAIR HAWKENS: Yes.
5 MS. RAIMO: That rule was intended -- just 6 a second, bear with me.
7 CHAIR HAWKENS: Well, let me just quote to 8 see if you disagree. The third paragraph of the 9 Statement of Consideration says that "The objective of 10 the final rule is to insure timely and effective 11 implementation of the ERDS to provide NRC increased 12 assurance that a reliable and effective communication 13 system that will allow NRC to monitor critical 14 parameters during an emergency is in place at 15 operating power reactors." You remember that?
16 MS. RAIMO: Yes, Your Honor. Thank you.
17 CHAIR HAWKENS: So, it's an implementations 18 rule. Is that a fair assessment?
19 MS. RAIMO: Yes, I would agree with that, 20 Your Honor.
21 CHAIR HAWKENS: It also talks about 22 activation which as you pointed out we don't have to 23 worry about here because you're -- the way it's set up 24 there it's always activated. Correct?
25 MS. RAIMO: Yes.
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42 1 CHAIR HAWKENS: I think it also talks about 2 maintenance, doesn't it?
3 MS. RAIMO: Yes, it does.
4 CHAIR HAWKENS: Would you point to any 5 place where either the Statement of Considerations or 6 the rule itself talks about termination or 7 decommissioning of that system?
8 MS. RAIMO: I don't believe the rule, the 9 text of the rule itself does, Your Honor.
10 CHAIR HAWKENS: Nor does the flavor of it.
11 Correct? I mean, it is an implementation rule.
12 MS. RAIMO: It is an implementation rule; 13 however, I would point to some very recent guidance 14 that the NRC Staff issued that suggests that 15 interpreting that the exclusion -- excuse me. The 16 exclusion applies to shut down, permanently shut down 17 reactors.
18 CHAIR HAWKENS: And does it define 19 permanently shut down reactors in that guidance?
20 MS. RAIMO: Yes, it does. And the specific 21 guidance I'm referring to is a June 2nd, 2014 22 memorandum from Robert Lewis, the NRC Director of 23 Division Preparedness and Response. The subject is 24 "Emergency Response Data Systems at plants that have 25 permanently ceased operations." And the memorandum NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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43 1 states very clearly that, and I'm quoting, "The 2 requirements in Section vi of Appendix E do not apply 3 to nuclear power reactor licensees who have submitted 4 a Certificate of Permanent Cessation of Operations."
5 And the memorandum continues, and I'm quoting again, 6 "ERDS requirements are not applicable to facilities 7 which have permanently ceased operations."
8 Now, we recognize that this memorandum is 9 guidance and does not have the force of law; however, 10 it's very persuasive guidance that's entitled to due 11 consideration for several reasons. Number one, it was 12 issued very recently, in June 2014. And, number two, 13 it was issued by the Director of the NRC division that 14 has responsibility for overseeing emergency 15 preparedness. In other words, these are the Agency's 16 subject matter experts on emergency planning.
17 CHAIR HAWKENS: What does that memo say 18 about the criteria for retiring a system that's 19 already operating?
20 MS. RAIMO: I believe the memorandum is 21 intended to speak to licensees who have recently shut 22 down, that they do not need to maintain their systems 23 any longer.
24 CHAIR HAWKENS: Is that true with all?
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44 1 has the authority to retire the ERDS without NRC 2 approval only if it is not described in its emergency 3 plan?
4 MS. RAIMO: No, I don't believe that's 5 entirely correct, Your Honor. You're correct that if 6 ERDS is described in the emergency plan, that there 7 are other steps that the licensee has to take.
8 CHAIR HAWKENS: Okay. And has ERDS been 9 described in your emergency plan?
10 MS. RAIMO: It is described as a method of 11 communication with the NRC. It's not --
12 CHAIR HAWKENS: Okay. What are those other 13 steps then that need to be taken according to the 14 memo?
15 MS. RAIMO: The licensee needs to prepare 16 an evaluation in accordance with 50.54(q).
17 CHAIR HAWKENS: And have you done that?
18 MS. RAIMO: We are in the process of 19 finalizing an evaluation.
20 CHAIR HAWKENS: Well, as far as when you 21 submitted your license application that hadn't been 22 completed. Is that correct?
23 MS. RAIMO: That's correct, Your Honor. And 24 the reason for that is because our license amendment 25 request is not a request to retire the ERDS system. It NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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45 1 really has nothing to do with ERDS at all. Our license 2 amendment request is focused on staffing reductions.
3 It's not a request to retire --
4 CHAIR HAWKENS: Doesn't staffing reductions 5 hinge on the premise that the ERDS is not functional?
6 MS. RAIMO: No, Your Honor, and that's the 7 point I was trying to make earlier, and that the State 8 has gotten this wrong. The State believes that we need 9 staff at VY to activate or operate ERDS during an 10 emergency, and that's their hook, so to speak, of 11 bringing their contention within the scope of the 12 proceeding. But as I said, it's factually flawed.
13 Their premise is factually flawed because we don't 14 require any staff to activate or operate the ERDS 15 during an emergency.
16 So once you accept that fact, and if you 17 look at the State's arguments in that light, you will 18 see that the issue of ERDS really has no place in this 19 proceeding at all.
20 CHAIR HAWKENS: Well, ERDS has to be 21 maintained, and you've got a budget of over $600,000 22 for six years, that's $100,000 a year. I assume that 23 includes some labor cost associated with keeping that 24 system running. Is that not correct?
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46 1 costs, yes, but those --
2 CHAIR HAWKENS: And if that system is not 3 running, that information won't be available to people 4 to assess that data. Correct?
5 MS. RAIMO: Your Honor, I -- that's another 6 point I wanted to address. Okay? The idea that if the 7 State does not have access to ERDS, that it would have 8 no information with which to facilitate its decision 9 making during an emergency is not correct. I mean, you 10 could read the State's reply and you could listen to 11 the State's presentation today and walk away with the 12 idea that without ERDS, the State has absolutely no 13 access to VY plant information, and that's just not 14 true.
15 CHAIR HAWKENS: Tell -- I asked Mr. Kisicki 16 about what parameters Entergy would provide over the 17 Inform Notification System. Can you tell me what 18 parameters would be provided?
19 MS. RAIMO: Your Honor, I don't believe we 20 provide any plant parameters via Inform. I believe 21 that's merely a notification, initial notification 22 tool --
23 CHAIR HAWKENS: All right.
24 MS. RAIMO: -- once an emergency is 25 occurring.
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47 1 CHAIR HAWKENS: So, in the event of an 2 emergency if Vermont wanted certain parameters, how 3 would Entergy provide them once the -- there's been a 4 permanent cessation of operation -- of reactor 5 operations and permanent removal of fuel from the 6 reactor?
7 MS. RAIMO: Yes. Some of these methods are 8 described in our -- in the current emergency plan. And 9 this is at Section 6.1.3. "In the event of an alert or 10 a high emergency classification, Entergy would 11 activate what's called the Emergency Operations 12 Facility/Recovery Center," or I'll call it EOF for 13 short.
14 The EOF is located in Brattleboro, Vermont 15 about nine miles from the site, and it serves as a 16 facility to coordinate the activities of VY emergency 17 response personnel, to evaluate accident conditions, 18 and to maintain coordination and communications with 19 offsite response authorities.
20 Entergy provides space and communications 21 capabilities to representatives from the three states, 22 Massachusetts, New Hampshire, and Vermont at the EOF 23 during an emergency. And for Vermont in particular, we 24 provide minimum space for three state representatives 25 there.
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48 1 Now, the same plant data that we transmit 2 to the NRC via ERDS is displayed on monitors located 3 in the EOF. And this data includes the containment 4 parameter data, area radiation monitor data, and 5 meteorological data. These are all the parameters that 6 the State has expressed continued interest in.
7 CHAIR HAWKENS: But there will be three 8 Vermont representatives there --
9 MS. RAIMO: Yes, Your Honor.
10 CHAIR HAWKENS: -- having access to this 11 information on a continuous basis?
12 MS. RAIMO: That's correct. This 13 information can be viewed in real time by the State 14 officials who are stationed at the EOF.
15 CHAIR HAWKENS: And what ability do they 16 have to communicate that information to other Vermont 17 representatives that are not at that facility?
18 MS. RAIMO: We provide communications 19 capabilities for them by phone, fax, and computer, and 20 email.
21 CHAIR HAWKENS: Are these dedicated phones?
22 In other words, can one or more of those Vermont 23 representatives have continuous access to a dedicated 24 phone to talk continuously to his counterpart that's 25 off site?
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49 1 MS. RAIMO: Yes, Your Honor, we do have 2 dedicated phones for them.
3 JUDGE KENNEDY: This is Judge Kennedy. Is 4 this different than the way the data is communicated 5 during power operations? I mean --
6 MS. RAIMO: This is -- Your Honor, this is 7 -- what I'm describing now, what I just described now, 8 that's how we would communicate information to the 9 State representatives at the EOF during an emergency.
10 If an emergency were to occur today while the plant 11 was operating, this is the process that would occur.
12 JUDGE KENNEDY: Are you suggesting that 13 there's no difference in functionality whether the 14 ERDS is functioning or not as far as the State of 15 Vermont is concerned? This is Judge Kennedy, again.
16 MS. RAIMO: Your Honor, we believe that the 17 State has equal access to the plant data at the EOF as 18 it does at ERDS. And, in actuality, at the EOF we 19 provide additional information. We provide information 20 related to the spent fuel pool that we do not provide 21 to the NRC via ERDS.
22 JUDGE WARDWELL: Can I ask you one more 23 clarifying question to make sure I've got this 24 correct?
25 MS. RAIMO: Yes.
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50 1 JUDGE WARDWELL: You were stating earlier 2 that I believe that none of the labor reductions in 3 your license application are associated with the ERDS 4 termination, at least that's what I gleaned from your 5 statements. Is that what you would state now?
6 MS. RAIMO: I would, Your Honor. That's 7 correct, Judge Wardwell.
8 JUDGE WARDWELL: Thank you.
9 CHAIR HAWKENS: Tell me about the -- this 10 is Judge Hawkens, the Section 50.54(q)(3) analysis 11 that appears to be ongoing. If Vermont wanted to 12 challenge the outcome of that, would they have the 13 opportunity?
14 MS. RAIMO: Your Honor, I don't believe 15 there is a regulatory basis for them to challenge that 16 outcome. What would happen is, once our evaluation is 17 finalized, and we expect it to show that the modified 18 emergency plan would continue to meet the requirements 19 of Appendix E and 50.47(b), and we would also expect 20 it to show that there would be no reduction in the 21 effectiveness of the emergency plan, so that we would 22 be able to make the revisions to the emergency plan to 23 eliminate ERDS as a communication tool with the NRC 24 once we finalize that evaluation. And we would provide 25 that evaluation to the NRC, and we would retain it for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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51 1 our files.
2 JUDGE KENNEDY: This is Judge Kennedy. When 3 you talk about the effectiveness of the emergency 4 plan, are you including the effectiveness of the State 5 of Vermont's emergency response plan, as well as 6 Entergy's emergency response plan?
7 MS. RAIMO: Your Honor, the regulations, 8 and I'm reading from 50.54(q)(1), "Define reduction in 9 effectiveness as a change in an emergency plan that 10 results in reducing the licensee's capability to 11 perform an emergency planning function in the event of 12 a radiological emergency." So, in answer to your 13 question it's just the licensee's emergency plan that 14 we're talking about.
15 JUDGE KENNEDY: So, when you look at the 16 50.47(b) requirements that are the emergency planning 17 standards and you say after you make this change using 18 the 50.54(q) analysis, are you only focusing on the 19 Entergy emergency response plan? Isn't that what I 20 just heard?
21 MS. RAIMO: Yes, Your Honor, we are. But to 22 your point on 50.47(b), you know, we -- our analysis 23 does need to show that we will continue to have prompt 24 communication with the principal emergency response 25 organizations and emergency response personnel, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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52 1 also with the public. And the VY emergency plan 2 identifies, as I said, ERDS as a communication tool 3 with the NRC and not with the State or other outside 4 emergency response organizations.
5 What I mentioned, the communication 6 methods that I mentioned at the EOF and also -- I'm 7 not sure if I got to mention this or not, but VY 8 personnel at the EOF would also be able to communicate 9 plant information data to the State representatives at 10 the Vermont Emergency Operations Center, and that's in 11 Waterbury, Vermont. Those communications can happen by 12 phone, email, and facsimile, as well.
13 JUDGE KENNEDY: Yes, and I think I'm 14 starting -- this is Judge Kennedy, again. I'm starting 15 to pick up a thread of this effectiveness argument, 16 and I'm not hearing the analysis. It may be offering 17 alternative methods of communication, but I haven't 18 heard any measurement of equal effectiveness between 19 the different approaches post-ERDS, and pre-ERDS. And 20 I'm just interested in understanding if that's part of 21 the evaluation in the analysis.
22 MS. RAIMO: Your Honor, I think I see what 23 you're having an issue with, because I have not 24 explained that yet.
25 JUDGE KENNEDY: Okay.
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53 1 MS. RAIMO: The NRC guidance that I had 2 mentioned before, that's the June 2nd, 2014 3 memorandum, that -- and I'm going to read from that 4 guidance again. It indicates that, "Providing ERDS 5 data to the NRC is not an emergency planning function.
6 Because a reduction in effectiveness requires a 7 reduction of the licensee's capability to perform an 8 emergency planning function and providing data to the 9 NRC through ERDS is not an emergency planning 10 function, removing ERDS would not reduce the 11 effectiveness of the licensee's capability to perform 12 an emergency planning function. Accordingly, removing 13 ERDS would not reduce the effectiveness of the 14 licensee's plan."
15 So, that is the -- that guidance states 16 that it's the Staff's view that providing ERDS is not 17 an emergency planning function and, therefore, there 18 can be no reduction in effectiveness if you remove 19 that function.
20 JUDGE KENNEDY: Again this is Judge Kennedy 21 beating the horse. 50.47 to me seems to go broader 22 than just the licensee's emergency plan. And, in fact, 23 it gets into discussions of making sure that there's 24 adequate facilities, and equipment, and on and on to 25 provide an effective emergency response. I've always NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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54 1 viewed that as being inclusive of both the licensee 2 and the state and local response organizations. And 3 I'm struggling a little bit here to understand why the 4 effectiveness of the response of the state and local 5 agencies isn't more paramount here. I mean, I hear 6 what you're saying, but I --
7 MS. RAIMO: Yes.
8 JUDGE KENNEDY: I keep going back to 50.47, 9 and it seems to me that that's a broader view of 10 emergency response.
11 MS. RAIMO: Well, Your Honor, 50.47(a)(2) 12 references that FEMA does have some responsibility, 13 and actually that FEMA is the lead federal agency with 14 responsibility for assessing state and local off site 15 radiological emergency response plans. And it's FEMA's 16 responsibility to make findings and determinations 17 about whether the off site plans are adequate and 18 capable of being implemented.
19 CHAIR HAWKENS: Ms. Raimo, Judge Hawkens 20 here. FEMA came in and said Entergy, in our view it's 21 critical for Vermont to have access to ERDS as they 22 currently do for their emergency planning purposes.
23 What would Entergy's response be?
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55 1 advisement.
2 CHAIR HAWKENS: I assume that there's an 3 ongoing relationship between Vermont and FEMA, so FEMA 4 will have that opportunity, Vermont will have the 5 opportunity to make that type of argument to FEMA, but 6 we don't have to deal with that today.
7 MS. RAIMO: Your Honor, I can't speak to 8 what interactions may have with the State of Vermont, 9 but I certainly agree with your point, that we don't 10 have to deal with that today because, again, the issue 11 of ERDS is completely outside the scope of this 12 proceeding.
13 JUDGE WARDWELL: Well, you use the Lewis 14 memo which again is just guidance to quote, and you 15 quoted saying, "Accordingly, the removal of the ERDS 16 would not reduce the effectiveness of the licensee's 17 plan." I think that's where you ended to the quote. Is 18 that correct, if I remember?
19 MS. RAIMO: Yes, that's right, Your Honor.
20 JUDGE WARDWELL: But you failed to go on to 21 the next paragraph that started with a "However, if 22 the licensee's emergency plan relies on ERDS for the 23 provision of assessment data to the emergency response 24 organization, which is an emergency planning function, 25 the licensee will need to evaluate whether removing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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56 1 ERDS results in reduction in the effectiveness for 2 special circumstances." Isn't that correct?
3 MS. RAIMO: That's correct, Your Honor.
4 But, again, our emergency plan does not rely on ERDS 5 to provide information to the emergency response 6 organization, or to off site emergency response 7 organizations. And, also, we are --
8 JUDGE WARDWELL: Isn't that, though, a 9 merits issue that we'd get to if, in fact -- I mean, 10 we can't explore it here with just legal argument. And 11 we'd really have to get into the merits of that 12 discussion if we admitted this contention. Isn't that 13 the time to do this?
14 MS. RAIMO: I believe that's correct, Your 15 Honor. But, again, you only get to that merit question 16 if you agree that ERDS is within the scope of this 17 license amendment request. And our position, again, is 18 that ERDS is well beyond the scope because, again, our 19 license amendment request only has to do with reducing 20 the number of staff, the number of on-shift staff who 21 are here on duty to deal with emergencies, and the 22 number of emergency response organization staff. And 23 those staff, the staff that are being reduced, have 24 nothing to do with the operation of ERDS. So, again, 25 we're at a loss to see how ERDS is coming into NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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57 1 question here.
2 CHAIR HAWKENS: This is Judge Hawkens, Ms.
3 Raimo, again. Can you go back to Part 50, Appendix E, 4 Section 6. In your argument, if I understand it 5 correctly, although you view it as an implementation 6 rule, you view it, as well, as excepting those 7 facilities where the reactor is permanently shut down 8 from participating any more, or for maintaining their 9 ERDS system. Is that correct?
10 MS. RAIMO: I'm sorry, Your Honor. Could 11 you repeat the question?
12 CHAIR HAWKENS: I can't, that was too 13 lengthy a question.
14 MS. RAIMO: I lost you there.
15 CHAIR HAWKENS: You agreed with George 16 Wardwell that -- Judge Wardwell that Appendix E is an 17 implementation regulation.
18 MS. RAIMO: Yes.
19 CHAIR HAWKENS: But it's also, would you 20 agree, it identifies and requires certain 21 participation by certain categories of entities. And 22 those that are required to participate are those that 23 are not permanently shut down, and those that need not 24 participate in your view are those that are 25 permanently shut down.
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58 1 MS. RAIMO: That's correct, Your Honor.
2 CHAIR HAWKENS: And tell me why your view 3 is that after you have permanently ceased reactor 4 operations and removed the fuel permanently you should 5 be viewed as being in the category of permanently shut 6 down, or within the category of those under the 7 regulation that need not maintain ERDS.
8 MS. RAIMO: Your Honor, because we view 9 those -- the permanently shut down as those reactors 10 who have submitted their Certifications of Permanent 11 Cessation of Operations and Permanent Defueling. And 12 I have not seen any basis, any regulatory basis for 13 the State's interpretation to include within that 14 category of plants that have moved all of their fuel 15 to the ISFSI pad. I don't see that anywhere in the 16 regulations.
17 JUDGE WARDWELL: Where in the regulation do 18 you see anything in regards to terminating the ERDS 19 system for an operating plant that did implement it as 20 part of this regulation and now is being --
21 transitioning into a shut down? Where is there 22 anything in this regulation that talks about 23 decommissioning or termination of a system?
24 MS. RAIMO: Your Honor, I don't see that in 25 the regulation. However, you know, I can only look to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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59 1 regulatory construction. And if you look at the text 2 of the language itself --
3 JUDGE WARDWELL: That's where we should 4 start. Take us through it, please.
5 MS. RAIMO: Sure. And I'll read you the 6 relevant language that I'm reading from, and this is 7 Appendix E, Section (b)(i), Paragraph 2, and I'm 8 quoting: "Except for Big Rock Point and all nuclear 9 power facilities that are shut down permanently or 10 indefinitely, on site hardware shall be provided at 11 each unit by the licensee to interface with the NRC 12 receiving system."
13 Now, when I read that sentence I look at 14 the word "are." If the NRC's intent had been to apply 15 this exclusion only to those reactors that were 16 permanently shut down as of 1991 when the rule was 17 promulgated, I think the NRC could have made that 18 intent very clear by substituting the word "were" 19 instead of "are." So, instead the regulation would 20 read, "Except for Big Rock Point and all nuclear power 21 facilities that were shut down permanently or 22 indefinitely." And then again to make it clear they 23 could have inserted a date, as of a certain date.
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60 1 licensees need to implement ERDS.
2 JUDGE WARDWELL: So, how are new licensees 3 going to meet that requirement if, in fact, this rule 4 applies to all licensees?
5 MS. RAIMO: I'm sorry, I did not understand 6 your question.
7 JUDGE WARDWELL: Well, you brought up these 8 dates that are in Appendix E. Correct?
9 MS. RAIMO: Yes, I did.
10 JUDGE WARDWELL: And the corollary to the 11 fact that the -- your argument that they are shut 12 downs means all future ones in addition to those that 13 existed in 1991. Let me ask you a side question right 14 now. Could that not just as well mean just those that 15 are shut down at that time? Is there any words in 16 there that say that interpretation is any worse than 17 your interpretation of this?
18 MS. RAIMO: Your Honor, I read the plain 19 language of the rule to -- not to mean that it only -
20 the exclusion only applies to reactors that were shut 21 down as of 1991. But in the absence of a clear 22 language in the rule, then I think you need to look at 23 the -- to the guidance, and the most recent, and 24 relevant, and on point guidance we have is the June 25 2014 memorandum from the NRC.
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61 1 JUDGE WARDWELL: How about take -- let's 2 look at the purpose of the rule as stated in the 3 proposed rule and the rule when it was issued in final 4 form. Doesn't that guide our analysis, Ms. Raimo?
5 MS. RAIMO: I believe so, Your Honor. The 6 language that the Board recited earlier makes it clear 7 that it applies to operating power reactors, and that 8 the --
9 JUDGE WARDWELL: But there's no indication 10 of whether that means those that were existing at the 11 time the rule was promulgated, or whether those 12 include all those in the future, does it?
13 MS. RAIMO: I suppose it doesn't, Judge 14 Wardwell, and the best I can say is you have to look 15 at the June 2014 guidance as the NRC's current 16 interpretation and intent of its regulation.
17 JUDGE WARDWELL: If your interpretation was 18 correct that the rule itself would mean all future 19 plants that are shut down, we wouldn't we have needed 20 this -- that clarification, would we have, as provided 21 by the Lewis memo of June 2nd, this year?
22 MS. RAIMO: Your Honor, I think it's 23 because the language is not clear as we've been 24 discussing for the past several minutes. On the face 25 of it --
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62 1 JUDGE WARDWELL: If, in fact, they were 2 talking about all future shut down ones, wouldn't you 3 anticipate that there'd be some type of indication of 4 how those and when those systems are going to be shut 5 down? There would be something in there about it, 6 wouldn't there?
7 MS. RAIMO: Your Honor, I can't speak to 8 how NRC writes its rules, but all I can say is we 9 believe the language of the rule is clear on its face 10 by itself, but if there is any question, that is 11 answered by the June 2014 memorandum.
12 JUDGE WARDWELL: Thank you.
13 CHAIR HAWKENS: Do you have anything to say 14 on the timeliness of Vermont's petition, Ms. Raimo, 15 beyond that which would -- that's in your answer?
16 MS. RAIMO: I certainly do, Your Honor.
17 I'll just make a couple of quick points because I know 18 the Board does not want to spend a lot of time on 19 that.
20 CHAIR HAWKENS: Also, your 30 minutes is 21 up, so we'd like you to wrap it up pretty quickly.
22 MS. RAIMO: Okay, thank you. We believe 23 it's the State's burden to justify whether or not they 24 filed their petition timely. And we were engaged in 25 negotiations with the State, we have been throughout NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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63 1 this process, and we were engaging in good faith.
2 As the State mentioned, at least from the 3 State's perspective I think I heard counsel say that 4 they knew as early as September 18th or 19th that 5 those negotiations were not going to be successful 6 enough to preclude the need for filing their petition.
7 And they did not comply with the rule.
8 CHAIR HAWKENS: Anything else on 9 timeliness? Do you agree that you did not get hurt by 10 the delay in electronic filing that was given to you 11 at the time it was?
12 MS. RAIMO: Your Honor, as I said, it's the 13 State's burden to justify why the Board should accept 14 its late filing. It's not Entergy's burden to show 15 that it was somehow prejudiced by the late filing. And 16 the regulation that -- Section 2.309(c) are pretty 17 clear that the determinative factor is that the State 18 needs to show good cause. Those regulations don't say 19 anything about the applicant needing to show 20 prejudice, or the other parties needing to show 21 prejudice before that filing is accepted.
22 CHAIR HAWKENS: Thank you. Do you have 23 anything else, Ms. Raimo?
24 MS. RAIMO: Your Honor, in closing I would 25 just urge the Board to reassess the State's contention NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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64 1 in light of the fact that ERDS is not within the scope 2 of this proceeding. This LAR is focused on staffing 3 reductions. We are not -- it does not request NRC 4 approval to discontinue ERDS. We don't need the NRC's 5 approval for that. We just urge the Board to review 6 the State's contention in that light. Thank you.
7 CHAIR HAWKENS: There's a question. Is it 8 your -- which is your stronger argument in your view, 9 Ms. Raimo, the fact that it's outside the scope 10 because this license amendment request deals with 11 staffing, or is it the argument that Vermont is making 12 a collateral attack on a regulation?
13 MS. RAIMO: The first one, Your Honor. ERDS 14 is not within the scope of this proceeding.
15 CHAIR HAWKENS: All right, thank you.
16 MS. RAIMO: Thank you.
17 CHAIR HAWKENS: Ms. Mizuno, we'll hear from 18 you now, please.
19 MS. MIZUNO: Yes, Your Honor. I am 20 accompanied today by Jeremy Wachutka, and the two of 21 us have taken various pieces of the six topics. I will 22 take three, and Mr. Wachutka will take the other 23 three.
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65 1 opening but if you do, Mr. Wachutka can provide you 2 with one.
3 CHAIR HAWKENS: Why don't we go directly to 4 the meat of the argument?
5 MS. MIZUNO: Yes, sir. What would you like 6 to hear?
7 CHAIR HAWKENS: Are you going to start?
8 Let's hear your three points, and then we'll hear from 9 Mr. Wachutka.
10 MS. MIZUNO: Yes, Your Honor. My three 11 points are timeliness, the interaction between 54(q) 12 and Appendix E, and the question regarding interfaces 13 with state and local government.
14 CHAIR HAWKENS: All right.
15 MS. MIZUNO: With respect to timeliness, a 16 fair amount has already been said with respect to 17 that, so I only have a couple of points to make. I'd 18 like to support Entergy's argument that the standard 19 is good cause, not whether any party has suffered 20 harm. And good cause under 2.309(c). And good cause 21 can be demonstrated under that provision where 22 information was not available previously, or is 23 materially different than that available previously, 24 and the filing was timely based on the availability of 25 that information. That's not been proved here.
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66 1 CHAIR HAWKENS: Why not 2.309(c)(2)?
2 MS. MIZUNO: (b)(2), I'm sorry. What -- I'm 3 sorry, I have to look it up. Can you tell me, sir?
4 CHAIR HAWKENS: It says it deals with the 5 request to change a filing deadline requested before 6 or after the deadline is past based on reasons not 7 related to the substance of the filing.
8 MS. MIZUNO: Oh, yes, Your Honor. But no 9 request has been filed. And the fact of Vermont filing 10 late does not itself substitute for a motion under 11 2.309(c)(2). That's our view.
12 There was another argument that was raised 13 and that had to do with the negotiations involving the 14 parties, Entergy and the State of Vermont. The NRC 15 Staff thinks it's really, really important for the 16 Judges to realize that the regulatory requirements 17 here for filing are in 2.209(b). They were also 18 restated in the Federal Register Notice, and those are 19 regulatory requirements. Those regulatory requirements 20 can't be tolled by parties negotiating, especially 21 they can't be tolled where the NRC -- it's the NRC's 22 own regulatory requirements, and we were not party to 23 any of those negotiations. Those requirements stand.
24 We'd also like to point out that this is 25 not a case of a pro se litigant where a certain NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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67 1 latitude is -- may be appropriate.
2 CHAIR HAWKENS: Should any latitude be 3 accorded to a State acting in its sovereign capacity 4 in our federal system?
5 MS. MIZUNO: Your Honor, a pro se litigant 6 that is not represented by counsel is one thing, but 7 here you have the State of Vermont represented by its 8 own attorney from the Attorney General's office, and 9 they're not equivalent situations, Your Honor. And 10 while latitude can be granted to a pro se litigant, we 11 do not believe that it's appropriate under these 12 circumstances. No good cause justification has been 13 shown.
14 And, in addition, there is a concern on 15 our part as these are our regulations. There's a 16 concern on our part that allowing a filing under these 17 circumstances could be read by future litigants as a 18 waiver of the regulatory requirements that petitioners 19 file by electronic -- by the electronic information 20 exchange, and it could be viewed as allowing a waiver 21 of those requirements.
22 CHAIR HAWKENS: All right, thank you. Let's 23 move on then.
24 MS. MIZUNO: Well, I wanted to make one 25 last point. Even if the petition had been filed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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68 1 properly, the contention is inadmissible. And we gave 2 you a number of reasons. Regardless of the fact that 3 it was procedurally defective, it was substantively 4 defective. It raises issues beyond the scope of the 5 license amendment, beyond the scope of the four 6 corners of the reducing staffing requirements. It 7 challenges a regulation. It is also for that reason 8 outside the scope of this proceeding, and it 9 challenges the Staff's no significant hazards 10 consideration determination which is itself an issue 11 that is beyond that which the Board has jurisdiction 12 over.
13 Can I go on to 50.54(q)(3) and Appendix E?
14 CHAIR HAWKENS: Please, do.
15 MS. MIZUNO: All right. Let's talk about 16 Appendix E. Appendix E establishes the minimum 17 requirements for licensee emergency plans. 50.54(q) 18 tells licensees how you go about making changes to 19 those emergency plans. The regulations contemplate two 20 kinds of changes, changes that result in a reduction 21 in effectiveness, and changes that do not.
22 Changes that result in a reduction in 23 effectiveness are addressed in the regulation at 24 (q)(4). If a licensee wants to make that kind of 25 change, the licensee has to apply for a license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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69 1 amendment and must obtain NRC's prior approval. If the 2 change is a change that does not result in a reduction 3 in effectiveness and the removal of ERDS from the 4 licensee's emergency plan is just that kind of change, 5 the licensee may make that change without NRC's prior 6 approval so long as the licensee performs and retains 7 the analysis that has been discussed earlier today.
8 CHAIR HAWKENS: Do you receive the results 9 of that analysis?
10 MS. MIZUNO: Pardon me?
11 CHAIR HAWKENS: Do you receive the results 12 of any analysis?
13 MS. MIZUNO: The results of that analysis 14 are kept at the site. We do get a written summary 15 within 30 days of the change, but the analysis itself 16 is available at the site for a Resident Inspector or 17 material inspections after-the-fact.
18 CHAIR HAWKENS: Is that something that 19 State or a member of the public would have access to 20 if they requested to see it?
21 MS. MIZUNO: I'm not sure, Your Honor. I 22 don't know that anyone ever has. Your Honor asked a 23 lot of questions that go to my third point, and this 24 is the regulatory responsibility for evaluating 25 interfaces with state and local governments. And also NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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70 1 for reviewing whether state and local emergency plans 2 are adequate and capable of being implemented.
3 The answer is pretty straightforward. FEMA 4 has responsibility to make findings as to whether 5 state and local government's off site emergency plans 6 are adequate and can be implemented. FEMA is 7 responsible for providing coordination and guidance 8 for emergency planning for off site impact of 9 radiological emergencies. The NRC has regulatory 10 responsibility for emergency planning for licensees.
11 Now, FEMA and the NRC entered into a 12 Memorandum of Understanding. It seems we have several 13 of those floating around in this proceeding. The FEMA-14 NRC Memorandum of Understanding was published at 44 15 CFR Part 350, Appendix A, and that Memorandum of 16 Understanding sets out the relationship between the 17 two parties.
18 Pursuant to that Memorandum of 19 Understanding, FEMA communicates its findings to the 20 NRC, and the NRC reviews the FEMA findings as part of 21 its safety evaluation for licensing matters, for 22 licensing matters that determine whether emergency 23 preparedness provides reasonable assurance that 24 adequate protective measures can and will be taken in 25 the event of a radiological emergency.
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71 1 And in this instance with respect to the 2 license amendment that is on the table and at issue 3 today, with respect to that license amendment 4 regarding a reduction in staffing, the NRC requested 5 FEMA's review and concurrence. And FEMA wrote back, 6 and FEMA said, "A review of the license amendment 7 noted that the changes were coordinated with and 8 approved by the States of Massachusetts, New 9 Hampshire, and Vermont."
10 FEMA Region I reviewed these changes for 11 impact to the state and local organizations, and 12 determined that the amendment would not significantly 13 affect the states' plans based on information from the 14 affected states.
15 We also would like to point out here that 16 the State of Vermont's Division of Emergency 17 Management and Homeland Security under -- sorry, 18 Homeland Security similarly determined, "That the 19 impact of the license amendment is minimal to the 20 State's ability to coordinate with plant personnel 21 during an emergency." And that takes of the areas that 22 I had, Your Honor.
23 MR. WACHUTKA: Your Honor, this is Jeremy 24 Wachutka. I'm going to continue the argument now.
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72 1 hearing request is outside the scope of the license 2 amendment request in this proceeding.
3 CHAIR HAWKENS: Mr. Wachutka, could we 4 interrupt you? Judge Kennedy has a question for Ms.
5 Mizuno.
6 MR. WACHUTKA: Sure, Your Honor.
7 JUDGE KENNEDY: This is Judge Kennedy. You 8 started talking about Memorandums of Understanding, 9 and you stopped at FEMA and NRC. I'm curious about why 10 the NRC entered a Memorandum of Understanding with the 11 State of Vermont over ERDS?
12 MS. MIZUNO: Yes. Your Honor, that's not 13 unusual. The NRC entered into a number of Memorandums 14 of Understanding with a number of states. And the 15 Memorandum of Understanding was published in the 16 Federal Register.
17 The Memorandum of Understanding also 18 provides -- first off, I want to make clear that it's 19 the -- the ERDS system is a system that runs from the 20 plant to the NRC Operations Center. It does not run 21 straight to the State of Vermont, or any state. In 22 order for states to obtain that kind of data feed, 23 they need to have entered into a Memorandum of 24 Understanding with the NRC. And in this case, Vermont 25 did that, and we've had that MOU in effect for several NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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73 1 decades.
2 We also wanted to point out that MOU 3 provides that either party can cancel their engagement 4 under this MOU with 30 days notice. So, I think it's 5 important to -- it bolsters our position that this 6 ERDS data feed is a function of the MOU. It is not a 7 function of the license amendment request. If the 8 license amendment request had never been submitted, 9 the NRC could still theoretically have cut the ERDS 10 feed to the State of Vermont because it is our 11 prerogative with 30 days notice under the MOU. It has 12 nothing to do with the reduction in staffing.
13 MR. WACHUTKA: And, Your Honor, this is 14 Jeremy Wachutka. I'd like to add to that. There seems 15 to be some confusion here where they're thinking that 16 Entergy provides ERDS data to Vermont; however, that 17 is incorrect.
18 By regulation, Entergy is required to 19 provide an ERDS connection between Vermont Yankee and 20 the NRC only, and Entergy describes this connection in 21 Section 7.10 of the Vermont Yankee Emergency Plan.
22 However, nothing in the Commission's regulations 23 requires, and nothing in the Vermont Yankee emergency 24 plan voluntarily commits Entergy to provide ERDS data 25 to Vermont.
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74 1 Instead, in the case of an emergency the 2 Vermont Yankee emergency plan states that Vermont 3 Yankee will provide information to Vermont via other 4 means. These means are, one, an email message called 5 the "Inform Notification System". Two, a dedicated 6 phone circuit called the, "Nuclear Alert System," or 7 through commercial phone systems as a backup. And, 8 three, through the Vermont representatives that will 9 be dispatched to the Vermont Yankee Emergency 10 Operations facility.
11 This is all described, Your Honors, in 12 Section 11 of the Vermont emergency plan, and Section 13 7. And through these channels, Vermont will be given 14 data such as a description of the emergency and any 15 release, the weather conditions, the projected dose 16 rates at various distances from the plant, the 17 emergency response actions underway, and the 18 recommended protective actions. So, therefore, Your 19 Honors this isn't about ERDS going to Vermont from 20 Vermont Yankee. There's no requirement for that. There 21 are other provisions in place in the Vermont Yankee 22 emergency plan, and these provisions insure that 23 Vermont will receive the information that they need.
24 And this information is comparable to any information 25 that would come from ERDS. So, therefore, Your Honors, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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75 1 this is outside the scope of really the license 2 proceeding -- license amendment request that we should 3 be discussing here.
4 CHAIR HAWKENS: Mr. Wachutka, Mr. Kisicki 5 said that ERDS provide 37 parameters on a realtime 6 constant basis.
7 MR. WACHUTKA: Your Honor --
8 CHAIR HAWKENS: Will any of those 9 parameters be provided on a realtime constant basis 10 after ERDS is terminated?
11 MR. WACHUTKA: Your Honor, the Staff 12 doesn't know where the number of 37 parameters came 13 from. From what we see, there's -- I mean, most of the 14 parameters sent by ERDS are not going to be applicable 15 any more once the reactor is shut down. And those 16 remaining parameters, those will be -- those can 17 easily be transmitted by the Vermont representatives 18 that will be at the emergency operations facility 19 verbally through the dedicated phone lines.
20 And this is really -- this really goes 21 back to the whole origination of ERDS. I mean, ERDS is 22 an improvement to the emergency notification system 23 that's in place which is the voice circuits between 24 the NRC and the plant. And ERDS is a supplement to the 25 system, and that's how it's described in the Statement NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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76 1 of Considerations. So, really what they're going to 2 get is comparable to what they'd get via ERDS, and 3 there's less parameters than there would be for an 4 operating reactor. And, furthermore, any sort of 5 emergency that would happen in a shut down facility 6 with the fuel only in the spent fuel pool would be 7 much slower moving evolution with less parts to 8 analyze. So, therefore, all this could be transmitted 9 through the Nuclear Alert Phone System and the Vermont 10 representatives on site.
11 So, in addition to that, Your Honor, we 12 discuss that this is outside the scope of the license 13 amendment request which is a reduction in staffing, 14 not a request to remove ERDS. But even if this were a 15 request to eliminate ERDS, the elimination of ERDS 16 after a facility's permanent shut down is already 17 expressly provided for by the Commission's 18 regulations. Therefore, through its hearing request, 19 Vermont is actually --
20 JUDGE WARDWELL: Excuse me. This is Judge 21 Wardwell. I assume you mean the Appendix E, the same 22 discussion we had earlier?
23 MR. WACHUTKA: Yes, Your Honor. We read 24 Appendix E --
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77 1 time. I just wanted to verify that's what you're 2 thinking.
3 MR. WACHUTKA: Yes, Your Honor. So, 4 discussing the interpretation of Appendix E, when you 5 interpret statutes, first of all, you look at the 6 plain ordinary language, the ordinary meaning of the 7 language. In this case, the plain ordinary meaning of 8 the provision is that ERDS does not have to be 9 provided for facilities that are shut down permanently 10 or indefinitely.
11 And based on a review of the Statement of 12 Considerations for the ERDS rulemaking, the term "shut 13 down permanently or indefinitely" does not appear to 14 be a defined term of art. However, shut down 15 permanently or indefinitely must at least include a 16 nuclear power facility that has submitted to the NRC 17 a certification under oath or affirmation that fuel 18 has been permanently removed from the reactor vessel.
19 This is because at this point in time the facility 20 physically cannot be operated and, thus, must be shut 21 down permanently or indefinitely.
22 As we discussed in the Statement of 23 Considerations, it does premise the whole thing as at 24 operating facilities. And, furthermore, such a shut 25 down is permanent when you are permanently -- when you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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78 1 have -- when you're permanently defueled. Such a shut 2 down is "permanent" by Commission rule because 3 according to 10 CFR Section 50.82(a)(2), "Upon 4 docketing of the certification for permanent cessation 5 of operations and permanent removal of fuel from the 6 reactor vessel, the 10 CFR Part 50 license no longer 7 authorizes operation of the reactor or emplacement or 8 retention of fuel into the reactor vessel."
9 Therefore, Your Honors, physically the 10 reactor can't be operated because the fuel is in the 11 spent fuel pool. And by regulation the reactor can't 12 be operated because the license no longer allows for 13 that any more. And, therefore, the plain language 14 reading supports the reading that the Staff and 15 Entergy have advocated for, and the history of the 16 implementation of this regulation supports that, as 17 well, Your Honor.
18 If Vermont's interpretation were correct, 19 then there would be no end point at which ERDS has to 20 be removed, so that would just -- that would be 21 nonsensical. In that case --
22 CHAIR HAWKENS: Mr. Wachutka, may I 23 interrupt for a second? Judge Hawkens. How many 24 reactors have been shut down after installing ERDS 25 hardware, and how many of those that have been shut NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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79 1 down has ERDS been discontinued?
2 MR. WACHUTKA: Yes, Your Honor. I can say 3 since 1991 we have Zion, Maine Yankee, Connecticut 4 Yankee, Humboldt Bay, LaCrosse and Trojan. All of 5 these facilities have been shut down and there is no 6 longer any ERDS connection between the NRC Operations 7 Center and those facilities.
8 CHAIR HAWKENS: How many times has ERDS 9 been -- the shut down of the ERDS been contested by an 10 intervenor?
11 MR. WACHUTKA: To the Staff's knowledge, it 12 never has before, Your Honor.
13 CHAIR HAWKENS: Thank you.
14 MR. WACHUTKA: So, in all these instances 15 it's happened, if Vermont's interpretation were 16 correct, you'd be able to go down to the NRC 17 Operations Center right now and pull up Zion on the 18 ERDS, but you can't do that. That doesn't make any 19 sense, Your Honor.
20 And, furthermore, even more recently, the 21 facilities that have been defueled, such as SONGS, 22 Crystal River, and Kewaunee, they're doing the exact 23 same process. For example, the certifications of 24 permanent fuel removal were submitted for San Onofre 25 Units 2 and 3 in July and June 2013, and on August NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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80 1 26th, 2014 after that Southern California Edison 2 revised its emergency plan implementing procedures 3 without prior NRC approval to remove all references to 4 ERDS. They followed the 50.54(q)(3) process after they 5 submitted the certification of permanent defueling.
6 The same thing was done by Crystal River, 7 and the same thing is being done by Kewaunee, Your 8 Honors, so not only is this the NRC's interpretation 9 and Entergy's interpretation of the case, all previous 10 plants have interpreted this regulation in the same 11 way. So, not only can Vermont not point to any support 12 for their argument, but also all precedent is 13 supporting the NRC Staff position here.
14 In conclusion, Your Honor --
15 CHAIR HAWKENS: Mr. Wachutka, we've got 16 another question.
17 MR. WACHUTKA: Yes?
18 CHAIR HAWKENS: After Entergy completes its 19 50.54(q)(3) analysis, would Vermont have an 20 opportunity to challenge it?
21 MR. WACHUTKA: Your Honor, the Staff sees 22 the 50.54(q)(3) analysis as an analogous to the 50.59 23 process for changing facilities without a license 24 amendment. So, therefore, there is no opportunity for 25 a hearing to change your license without a license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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81 1 amendment. An opportunity for a hearing is only 2 triggered by a license amendment, so in this case 3 there have been no 50.54(q)(3) analysis, so it's 4 premature to challenge that now. And in the future 5 when that analysis does happen, Vermont would be 6 welcome to file a 10 CFR Section 2.206 petition for 7 NRC action if they think that we are erroneously not 8 enforcing the regulations against Vermont Yankee, but 9 that's the only way to challenge it under our 10 regulatory framework, Your Honor.
11 CHAIR HAWKENS: They would not be able to 12 bring a de facto license amendment proceeding, would 13 they?
14 MR. WACHUTKA: No, Your Honor. A de facto 15 license amendment proceeding requires NRC Staff 16 action, and this is not NRC Staff action.
17 Furthermore, Your Honor, Vermont makes 18 this 1991 argument trying to interpret the shut down 19 permanently language to only apply as of 1991. It 20 points to no support for this. And more importantly, 21 the traditional of rule and statutory interpretation 22 as stated by the Supreme Court is that statutes are 23 presumed to be prospective, so there's nothing to 24 think that this statute with no language to indicate 25 that just applied in 1991 and didn't apply to all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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82 1 future reactors, as all regulations are normally 2 assumed to do. And this stands in contrast to other 3 NRC regulations that are limited in time.
4 In these examples you'll see throughout 5 Part 50, such as in 50.33(k)(2), 50.34(a)(11) said, 6 there are lots of regulations that say as of this 7 year, you know, through this year, so the NRC Staff 8 when it writes rules it knows how to limit them in 9 time, and does do that.
10 In this case, the NRC purposely did not do 11 that. So, therefore, this should be interpreted in the 12 traditional sense, which is that it's prospective rule 13 that applies in all future situations.
14 And as stated before, Your Honor, it would 15 just -- it would be logically nonsensical if it 16 didn't, or else we would have written this regulation 17 and not had an end point where it doesn't apply any 18 more. So, like I said, I mean, Zion would still have 19 to have ERDS, or a plant that's totally torn down 20 which by the letter of the rules still have to have 21 ERDS even though it wouldn't physically be possible.
22 CHAIR HAWKENS: In regards to the shut down 23 then, if it applied to all future shut downs, it also 24 applies to all future licensees. Is that correct?
25 MR. WACHUTKA: That's correct, Your Honor.
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83 1 CHAIR HAWKENS: Isn't it logically 2 nonsensical that the licensee, a new licensee now is 3 going to have to meet the dates of the deadlines that 4 are presented in Appendix E?
5 MR. WACHUTKA: The deadlines are for 6 individuals that didn't have ERDS before they had a 7 license.
8 CHAIR HAWKENS: That's what the plain 9 language says?
10 MR. WACHUTKA: But in the future, all COL 11 applicants will have ERDS as part of their license.
12 CHAIR HAWKENS: So, you say there are no 13 future licensees that would deal with Appendix E.
14 Appendix E doesn't apply to any future licensee?
15 MR. WACHUTKA: Appendix E applies to all 16 Part 50 licensees, and applies to all Part 52 17 licensees. So, therefore, new plants have to have ERDS 18 and when those new plants permanently shut down they 19 will not be required to have ERDS any further 20 according to Section 6.2.
21 CHAIR HAWKENS: Right. But under your 22 interpretation of how this applies wouldn't it be 23 illogical for them, the new licensees to have to meet 24 those deadlines, and it's impossible for them to do 25 it?
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84 1 MR. WACHUTKA: I mean, no, Your Honor. I 2 think that it would be more illogical to say --
3 CHAIR HAWKENS: Not impossible for them to 4 do it?
5 MR. WACHUTKA: Your Honor, I think it would 6 be illogical to think that plants have to have ERDS 7 throughout perpetuity without an end date.
8 CHAIR HAWKENS: Mr. Wachutka, in the 9 proposed rule they talk about the cost impact of the 10 rule estimated to be about $150,000 for one reactor 11 which represent the incremental work of installing and 12 operating the ERDS for 30 years.
13 MR. WACHUTKA: Yes, Your Honor.
14 CHAIR HAWKENS: Is that 30 years cut in one 15 direction or the other regarding exempting permanently 16 shut down reactors?
17 MR. WACHUTKA: I think it cuts in favor of 18 the Staff's interpretation, Your Honor, because the 19 rule at first was as we were saying how do we apply 20 this to plants that do not have ERDS? So, that is part 21 of that justification. But in the future all plants 22 are required to have ERDS, so there's no backfit to a 23 new plant that is getting say a COL license, or a new 24 Part 50 license, because all these regulations already 25 apply to it from the get-go.
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85 1 MS. MIZUNO: This is Beth Mizuno. I have a 2 question. I'm not quite sure what dates, Judge 3 Wardwell, you find inconsistent with our 4 interpretation. I see a passage in Appendix E that 5 talks about -- it's Subsection B, and it says, "Each 6 licensee shall complete implementation of the ERDS by 7 February 13, 1993, or before initial escalation to 8 full power, whichever comes later." So, it seems to me 9 that there is no incompatible date being used in 10 Appendix E.
11 JUDGE WARDWELL: Thank you.
12 MR. WACHUTKA: Therefore, Your Honors, in 13 conclusion, Vermont's proposed contention arguing that 14 Vermont Yankee should maintain ERDS after its 15 permanent shut down is squarely a challenge to the 16 Commission's regulations and not Entergy's license 17 amendment request. Therefore, it is both outside the 18 scope of this license amendment proceeding, and it's 19 a collateral attack on the regulations without any 20 sort of petition for a waiver of those regulations and 21 should be denied, Your Honors.
22 CHAIR HAWKENS: Mr. Wachutka, in your view 23 which is the stronger argument, being a collateral 24 attack on the regulation, or it being outside the 25 scope?
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86 1 MR. WACHUTKA: Your Honor, I think they're 2 alternative arguments that are both equally a strong 3 bases for the inadmissibility of the contention.
4 CHAIR HAWKENS: All right, thank you.
5 MR. WACHUTKA: Thank you.
6 CHAIR HAWKENS: Mr. Kisicki, we'll hear 7 from you now, any rebuttal?
8 MR. KISICKI: Yes, thank you.
9 I think what the State needs to make 10 crystal clear to the Board at this moment is that what 11 we're talking about is the protection of public health 12 and safety. That is central to what the NRC does, and 13 the reason why we're speaking today.
14 And the contention, the core contention of 15 the State of Vermont is that the elimination of ERDS, 16 which is explicit in a license amendment request is -
17 - significantly implicates whether or not the State 18 can effectively protect the health and safety of its 19 own citizens. That is uncontested, it's unrefuted 20 throughout this oral argument. I think that that 21 serves as a telling and meaningful backdrop to what 22 we've been discussing today.
23 CHAIR HAWKENS: Mr. Kisicki, you argument, 24 though, hinges on the Board accepting your view of 25 Appendix E. Is that correct?
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87 1 MR. KISICKI: Appendix E in terms of the 2 exception?
3 CHAIR HAWKENS: Yes.
4 MR. KISICKI: I don't know that it hinges 5 entirely on it. Again, I think to go back -- at its 6 core, you know, when the NRC was discussing the 7 implementation of ERDS, and this is from the ERDS 8 discussion on August 13th, 1991, the citation is 9 Volume 56 of the Federal Register 40178.
10 "The NRC in its mandated role to protect 11 public health and safety has the responsibility in the 12 event of an accident to monitor the actions of the 13 licensee that has the primary responsibility for 14 limiting the consequences of the accident," -- I'm 15 sorry, this refers to reactor accidents. I don't want 16 to leave that out.
17 "The NRC also has an important role in 18 assuring a flow of accurate information to affected 19 on-site officials and the public regarding the status 20 of the emergency, and as requested or needed giving 21 advisory support or assistance in diagnosing the 22 situation, isolating critical problems, and 23 determining what remedial actions are appropriate. The 24 NRC must be capable of providing to the state and 25 local authorities and to other federal agencies an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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88 1 independent assessment of protective actions 2 recommended by the licensee."
3 That is strong language from the NRC in 4 the rationalization of why it should adopt ERDS. And 5 I think it militates towards accepting the State's 6 interpretation of Subsection E. I think even if you 7 reject it, there is a clear policy argument that I 8 would raise, the regulatory argument here. Public 9 health and safety is critical, and the hook here is 10 not as Entergy indicates that somehow there's a 11 reduction in employees that's needed. No, in the 12 license amendment request in Appendix -- in Attachment 13 4, this is page 8 of the attachment, it says clearly, 14 "The VY Emergency Response Data System linked to the 15 NRC will not be operational in a permanently shut down 16 or defueled condition. The task of ERDS activation is, 17 therefore, not included on this on shift task 18 requiring evaluation as part of its testing analysis."
19 That is a critical component to the LAR. And the hook 20 is not the staffing reduction. It is clear on the face 21 of the LAR itself that ERDS will be eliminated, and 22 that's the hook.
23 Now, the discussion between the convoluted 24 connection between Vermont Yankee to the NRC, and NRC 25 to the state is immaterial because in the end both the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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89 1 Vermont Yankee Emergency plan reference the ERDS 2 system as playing a vital role, and the Vermont State 3 Emergency Response Plan talks about ERDS. Again, our 4 expert has identified 37 parameters under which ERDS 5 is critical here.
6 Now, I think it also should be mentioned 7 that much of the discussion that Entergy and the NRC 8 Staff had with the Board Members here today go to the 9 merits of the argument. At this point at the 10 contention phase we don't need to discuss the merits 11 here. At this point we have a factual basis supported 12 by expert testimony that there a sufficient reason to 13 hold a hearing. We can discuss whether or not there's 14 effective data responses at the EOF, you know, 15 comparable to the ERDS data that's available now.
16 But here's the problem with all of this.
17 Entergy has conceded after that that there's already 18 an ERDS -- an ERDS system will not be shut off, it 19 just won't go to the NRC any more. And somehow Entergy 20 is arguing that it will cost them almost $700,000 over 21 the next six years to maintain a connection with the 22 NRC. That alone is probably enough of a basis to at 23 least hold an evidentiary hearing to determine whether 24 or not that's the case, and to see whether or not it's 25 economically feasible to continue ERDS. If ERDS is not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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90 1 going away and the data is still going to be 2 collected, I don't see what the burden here on 3 Entergy's part is to continue having ERDS access to 4 the NRC, and then have State access to it.
5 Alternatively, if they want to go ahead 6 and discontinue access -- ERDS access by the NRC, 7 which again would be in violation of the clear policy 8 rationale expressed in 1991 that I read earlier, that 9 the NRC has an obligation to look at this data, that 10 it's important to them, but there can be an 11 alternative that could be fashioned between the State 12 and the plant being alternative. But right now none of 13 the analysis exists to show that the absolute 14 elimination of this somehow conforms to the 15 requirements of 50.54(q).
16 I would also note, you know, Entergy 17 relies on what I'll term the Lewis Memorandum as an 18 argument for why their arguments should hold the day.
19 However, the Lewis Memorandum, you know, (a) I think 20 incorrectly interprets the exception language in 21 Appendix E. But even in the case that the Board 22 assumes that the Lewis Memorandum interprets that 23 language correctly, if that's the case, the Lewis 24 Memorandum militates heavily towards the State's 25 interpretation here.
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91 1 It says on page 2 very clearly, "However, 2 if the licensee's emergency plan relies upon ERDS for 3 the provision of assessment data to the emergency 4 response organization and with the states" -- that's 5 me inserting my own words there -- "which is an 6 emergency planning function, the licensee will need to 7 evaluate whether removing ERDS results in a reduction 8 in effectiveness during special circumstances. In 9 either case, the licensee of a permanently shut down 10 facility seeking to remove ERDS is required by 11 Paragraph 50.54(q)(3) to perform and retain an 12 analysis that concludes that the removal of ERDS is 13 not a reduction in effectiveness."
14 A simple cross-reference to this note does 15 not satisfy that requirement. Here it seems that the 16 NRC Staff is arguing that it has already seen that 17 analysis and has already made the determination that 18 there's not a reduction in effectiveness. If that's 19 the case, the NRC Staff is now arguing that it has the 20 ability to look at analysis as it sees fit and make 21 determinations as to whether or not there's effective 22 -- make an effectiveness determination with respect to 23 a license amendment request.
24 That absolutely underscores whey we need 25 to have a hearing here so that the State can put its NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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92 1 case on before the Board. To think of it to say that 2 the NRC Staff has the ability to make determinations 3 unilaterally I think is inappropriate.
4 CHAIR HAWKENS: Mr. Kisicki, this is Judge 5 Hawkens. Aren't you confusing the 50.54(q)(3) analysis 6 with the license amendment request? They're two 7 different functions. One provides an opportunity for 8 a hearing to the public, the other does not.
9 MR. KISICKI: With respect to the -- I'm 10 sorry, could you repeat the question?
11 CHAIR HAWKENS: You were saying that the -
12 - and I'm not sure, I want to hear back from Mr.
13 Wachutka again, but I don't recall him saying that 14 Staff had already reviewed the analysis performed by 15 Entergy. It's 50.54(q)(3), but putting that side, are 16 you stating its your belief that Entergy has to give 17 the public an opportunity for a hearing when it 18 performs its 50.54(q)(3) analysis?
19 MR. KISICKI: No, I'm not arguing that it's 20 obligated to put it for a public hearing, though I 21 think in this case that the State of Vermont has 22 satisfied the requirements for contention 23 admissibility that we have a unique issue with respect 24 to the 50.54 analysis in so far that it hasn't been 25 conducted yet. And we had the no showing by Entergy in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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93 1 its license amendment request that there'll be a 2 reduction in emergency plan capability. And that's the 3 issue that the State is requesting a hearing to debate 4 these things, to debate whether or not -- you know, 5 hold an evidentiary hearing to determine whether or 6 not, in fact, it's going to cost $700,000 to continue 7 ERDS maintenance at the plant for the next six years, 8 you know, whether or not it's feasible. It's issues 9 like that that we need to be able to discuss 10 thoroughly, particularly in light of the fact that so 11 far Entergy has not provided any analysis with respect 12 to 50.54(q)(3) ERDS elimination at the plant.
13 You know, I think in summation the State 14 has engaged and continues to engage in negotiations 15 here with Entergy. And I looked at my notes while the 16 other parties were arguing, from notes it indicates 17 that -- and I correct myself, that the State was not 18 necessarily aware of the fact that we weren't going to 19 reach a settlement through negotiations until the 20 weekend leading up to the Monday deadline. It simply 21 was not enough time for us to file, you know, in a 22 form the Commission deems that it prefers.
23 Again, a lot of this discussion here is -
24 - goes to the merits which we are happy to discuss.
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94 1 State Emergency Response Plan and the VY Emergency 2 Response plans specifically to ERDS. Any discussion 3 about there being comparable information services 4 through the EOF, through phones is not material to the 5 discussion that we're having here today. That should 6 be, you know -- and, again, there's no evidence in the 7 record that indicates that that's the case.
8 Right now what's in the record is that 9 both the State plan and the VY emergency plan call for 10 ERDS access. That alone is enough, I think, to warrant 11 further hearing, and respectfully request that the 12 Commission grant that request for a hearing.
13 JUDGE KENNEDY: Mr. Kisicki, this is Judge 14 Kennedy. I just want to clarify, maybe you can help me 15 understand. I thought I heard the NRC Staff indicate 16 that both the State of Vermont, the State of 17 Massachusetts, and the State of New Hampshire approved 18 the change in staffing.
19 MR. KISICKI: I'm very glad that you asked 20 that question. My understanding is that is not the 21 case at all, that FEMA's representation -- first off, 22 that's a new argument that's nowhere in the NRC 23 Staff's pleadings to begin with. I think that it's 24 outside the scope of what we should be discussing now.
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95 1 understanding that the State of Vermont actually did 2 not approve -- did not indicate to FEMA that it 3 approved the staffing reduction. In fact, in said it 4 needed more information before it could make a 5 determination as to whether the staffing reductions 6 were acceptable to the Vermont agencies for the 7 liaison with FEMA.
8 JUDGE KENNEDY: Just one other 9 clarification, has the State of Vermont received any 10 indication of termination of the Memorandum of 11 Understanding with the NRC?
12 MR. KISICKI: Not that I'm aware of.
13 JUDGE KENNEDY: Thank you.
14 CHAIR HAWKENS: Do you have anything else, 15 Mr. Kisicki?
16 MR. KISICKI: I do not. Thank you for your 17 time.
18 CHAIR HAWKENS: This is Judge Hawkens. Mr.
19 Wachutka, I have a couple of questions for you, 20 please.
21 MR. WACHUTKA: Yes, Your Honor.
22 CHAIR HAWKENS: Can you respond to Mr.
23 Kisicki's understanding that neither FEMA nor the 24 States have approved the staff reduction proposal?
25 MR. WACHUTKA: Your Honor, I'd let Ms.
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96 1 Mizuno speak to that.
2 CHAIR HAWKENS: Okay.
3 MS. MIZUNO: Your Honor, I don't understand 4 where Mr. Kisicki is coming from, because I am looking 5 at FEMA's comments on the license amendment request.
6 We asked for their findings. They sent findings in.
7 CHAIR HAWKENS: And was that in your 8 pleadings, Ms. Mizuno?
9 MS. MIZUNO: No, sir, it was not, but you 10 asked about it and so I answered.
11 CHAIR HAWKENS: No, I appreciate that.
12 MS. MIZUNO: Your Honor, the -- with 13 respect to a lot of these emergency planning documents 14 they are by default classified as non-public. I have 15 an ML number for it, but it is a non-public ML number.
16 When there is a need for emergency planning documents 17 such as this to be made available, they can be, but 18 it's a default classification because we have so many 19 coming in all at once. That is my understanding. So, 20 if the Judges and the parties would like a copy of the 21 document, please so instruct Staff and we will provide 22 you one. The Staff can review and make the document 23 public in an expeditious fashion, Your Honor.
24 CHAIR HAWKENS: All right, thank you. Well, 25 if either of the parties would like that, I'll let NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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97 1 them work that out with you, Ms. Mizuno.
2 MS. MIZUNO: Yes, sir.
3 CHAIR HAWKENS: Mr. Wachutka, another 4 question for you. Can you specify the number of 5 reactors that have permanently shut down since '93, 6 and then the number that have discontinued maintenance 7 of ERDS?
8 MR. WACHUTKA: Yes, Your Honor. If you can 9 give me one second, I can look it up.
10 CHAIR HAWKENS: Sure.
11 MR. WACHUTKA: Your Honor, we count that 12 there's been 10 since 1991, and one in 1991, so 11 13 including that one. And there's no ERDS connection 14 between any of these plants. And currently we have 15 SONGS, Kewaunee, and Crystal River which as we 16 discussed are undergoing decommissioning. All of those 17 are defueled and all of those plants have changed 18 their emergency plan without prior NRC approval to 19 remove all references to ERDS.
20 CHAIR HAWKENS: Thank you. And I have one 21 final question, and then my colleagues may have some.
22 But when the rule was promulgated it excepted Big Rock 23 Point and all nuclear power facilities that are shut 24 down permanently. Were any of the facilities that were 25 shut down permanently, did they have spent fuel in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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98 1 pools, and were not required to implement ERDS?
2 MR. WACHUTKA: Yes, Your Honor, we can look 3 that up and get you a response.
4 CHAIR HAWKENS: I'd be grateful for that.
5 MR. WACHUTKA: Your Honor, you want to know 6 plants that were shut down permanently as of 1991, and 7 if there was any fuel in the pools.
8 CHAIR HAWKENS: Correct.
9 MR. WACHUTKA: Okay, Your Honor, we will 10 look that up and we will notify all the parties.
11 CHAIR HAWKENS: All right. This is Judge 12 Hawkens. I thank everybody for their participation.
13 It's helped us out immensely, and your case is 14 submitted. We're adjourned.
15 If you'd stay on the line so Brandon can 16 follow-up with any questions he may have regarding 17 transcript needs, I'd be grateful. Thank you.
18 COURT REPORTER: I actually don't have any 19 questions.
20 CHAIR HAWKENS: Good, then we're 21 terminated, we're adjourned. Thank you.
22 MR. KISICKI: Thank you.
23 MS. RAIMO: Thank you.
24 (Whereupon, the above-entitled matter went 25 off the record at 5:05 p.m.)
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