ML15194A134

Transcript of Wednesday, July 8, 2015 Teleconference

ML15194A134
Person / Time
Site:	Palisades
Issue date:	07/08/2015
From:	Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-255-LA-2, ASLBP 15-939-04-LA-BD01, NRC-1728, RAS 28046
Download: ML15194A134 (20)

Text

Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION Title: Entergy Nuclear Operations Palisades Nuclear Plant Docket Number: 50-255-LA-2 ASLBP No. 15-939-04-LA-BD01 Location: teleconference Date: Wednesday, July 8, 2015 Work Order No.: NRC-1728 Pages 1-19 NEAL R. GROSS AND CO., INC.

Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.

Washington, D.C. 20005 (202) 234-4433

1 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  : 50-255-LA-2 10 OPERATIONS, INC.  : ASLBP No.

11 (Palisades Nuclear  : 15-939-04-LA-BD01 12 Plant)  :

13 ----------------------x 14 Wednesday, July 8, 2015 15 16 Teleconference 17 18 BEFORE:

19 RONALD M. SPRITZER, Chair 20 GARY S. ARNOLD, Administrative Judge 21 THOMAS J. HIRONS, Administrative Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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2 1 APPEARANCES:

2 3 Counsel for the Applicant 4 Paul Bessette, Esq.

5 Raphael P. Kuyler, Esq.

6 of: Morgan, Lewis & Bockius LLP 7 1111 Pennsylvania Avenue, N.W.

8 Washington, DC 20004 9 pbessette@morganlewis.com 10 rkuyler@morganlewis.com 11 (202) 739-5796 12 13 On Behalf of the Nuclear Regulatory Commission 14 Anita Ghosh, Esq.

15 Joseph Lindell, Esq.

16 of: U.S. Nuclear Regulatory Commission 17 Office of the General Counsel 18 Mail Stop O-15D21 19 Washington, DC 20555-0001 20 (301) 415-4126 21 anita.ghosh@nrc.gov 22 joseph.lindell@nrc.gov 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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3 1 On Behalf of the Petitioners:

2 Terry J. Lodge, Esq.

3 316 N. Michigan Street, Suite 520 4 Toledo, OH 43604-5627 5 (419) 255-7552 6 terry@beyondnuclear.org 7

8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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4 1 P R O C E E D I N G S 2 2:01 p.m.

3 CHAIR SPRITZER: All right, I think we are 4 now ready to go on the record, Mr. Court Reporter. We 5 are here in the matter of Entergy Nuclear Operations, 6 Inc. This is Palisades Nuclear Plant, NRC Docket 7 number 50-255-LA-2. This is the License Amendment Two 8 request, and we're here pursuant to the Board's order 9 of June 26, scheduling this conference call to review 10 scheduling issues. Why don't we go around again and 11 identify everyone who is on the call, I'm going with 12 start with the Intervenors.

13 MR. LODGE: Terry Lodge, counsel for the 14 Intervenors.

15 MR. KAMPS: And this is Kevin Kamps with 16 Beyond Nuclear.

17 CHAIR SPRITZER: All right, and for 18 Entergy?

19 MR. BESSETTE: Yes, Your Honor, this is 20 Paul Bessette from Morgan, Lewis & Bockius, 21 representing Entergy, and I have my colleague, Ray 22 Kuyler with me.

23 CHAIR SPRITZER: And for the NRC Staff?

24 MS. GHOSH: Hi Your Honor, this is Anita 25 Ghosh for the NRC Staff, with me as co-counsel Joseph NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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5 1 Lindell. I also have a member of the NRC technical 2 staff, Kimberly Green.

3 CHAIR SPRITZER: All right, and I believe 4 that should do it, but if anybody else is on the line 5 and planning to participate, please speak now. All 6 right, hearing no takers, with me of course I 7 mentioned are Judge Hirons and Judge Arnold, also our 8 law clerk, Nicole Pepperl and Sachin Desai, who is 9 technically a law clerk on the other Palisades case, 10 but is also listening in on this case.

11 So, let's go over the issues that we're 12 going to talk about today. With respect to the 13 deferral motion, the Motion to Defer the Mandatory 14 Disclosure, we of course just got the response from 15 the Intervenors today. We'll rule on that as soon as 16 possible. In fact, we probably should have an order 17 out by tomorrow. But I think we know the parties' 18 positions, so I don't know if there's anything more we 19 need to hear on that issue.

20 So why don't we move ahead and talk about 21 the--well, let me just start off with staff, and are 22 you all--we saw the statement on Entergy's motion that 23 you didn't--that the Staff does not oppose the motion.

24 Is the Staff planning to file anything on that? This 25 is the Motion to Defer the Due Date for Mandatory NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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6 1 Disclosures?

2 MS. GHOSH: No, Your Honor.

3 CHAIR SPRITZER: Okay. So we're ready--

4 it's ready for decision, then. Okay. On the joint 5 proposal, first of all, we appreciate the parties' 6 efforts at working out a joint proposal, and for the 7 most part it seems acceptable to the Board with a few 8 possible changes that we're interested in, and we'll 9 give you the chance to offer your thoughts on.

10 First, on the direct and rebuttal 11 testimony, what we're thinking might shorten things a 12 bit and also be of benefit to the Board would be to 13 take what is a three-stage process and basically make 14 it a two-stage process. The first stage would be all 15 the written direct testimony and statements of 16 positions, that is from all the parties, Intervenors, 17 staff and Entergy would be submitted simultaneously, 18 and then 45 days later, the rebuttal testimony from 19 Intervenors, Entergy and staff would be submitted.

20 So that would shorten that process from it 21 looks like about 90 days to about 45 days, and from 22 our point of view, it's often more helpful to get all 23 of the direct testimony together and all the rebuttal 24 testimony together. It certainly doesn't hurt. So 25 let me ask if anyone wants to comment on that from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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7 1 parties on the line?

2 MR. BESSETTE: Your Honor, this is Paul 3 Bessette, maybe I'll jump in. We certainly can do 4 whatever the Board wishes to do. We can accommodate 5 any pleading standard, any pleading schedule or 6 process. I would note though that you know, we really 7 do not at this point know many of Intervenor's 8 arguments.

9 We really haven't seen our case yet, all 10 we have is an admitted contention. So it's often hard 11 for applicants to prepare testimony when we don't full 12 know what their arguments are. So it is often to I 13 think everyone's benefit to understand the 14 Petitioner's case.

15 In fact, in the Petitioner's pleading from 16 this morning, they note that they may be hiring a new 17 expert, and we have no idea what that expert is going 18 to say, because it says they have the potential need 19 for Petitioner to identify one or more appropriate 20 experts on metallurgical issues. So Entergy would 21 have no way of addressing that expert testimony if we 22 went in at the same time.

23 CHAIR SPRITZER: Okay.

24 ADMIN. JUDGE ARNOLD: Well, and that's--

25 this is Judge Arnold -- that's what the rebuttals are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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8 1 for. You would each have an equal opportunity to 2 rebut the position of your opponents.

3 MR. BESSETTE: I understand, and that's 4 why we could accommodate any process, I just wanted to 5 provide some, just some alternate thoughts there, Your 6 Honor. We fully respect your discussion of that 7 issue.

8 CHAIR SPRITZER: All right, does anybody 9 else have any thoughts on that particular possible 10 modification?

11 MR. LODGE: Yes, Judge--go ahead.

12 MS. GHOSH: Yes, the NRC Staff, I think we 13 would echo the same sentiments. I think it would be 14 easier--not easier, but it would--some of the claims 15 that are written out in the Petitioner's case would 16 be--I think it would help to narrow the scope of the 17 proceeding, and it would provide for a more efficient 18 process if the Intervenor were--if we were to do the 19 staggered filing, but we would be amenable to either 20 process.

21 CHAIR SPRITZER: All right, from the 22 Intervenors, did you have any thoughts on this?

23 MR. LODGE: Yes sir, this is Terry Lodge.

24 You may recall in the 33 proceeding over which you 25 presided, you also asked for the procedure that you're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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9 1 proposing today, and of course we'll comply with any 2 orders that you might make. But in 33 as well as 3 today, my view was that as proposed, the three-step 4 process more tends to follow what federal civil 5 practice utilizes, and I think that as the other 6 parties have suggested, it may actually help narrow or 7 frame the issues better.

8 What occurs otherwise, and what happened 9 in the 33 case, and it wasn't a terrible thing, but 10 what it does requires that all parties essentially 11 shotgun every conceivable position as opposed to 12 providing a more targeted kind of expert opinion in 13 response, and then ultimately on rebuttal.

14 CHAIR SPRITZER: Okay. Well, those are 15 some interesting points; we'll take them under 16 advisement. If there's nothing else on that 17 particular issue, I would assume that this is related 18 to the filing of the direct and rebuttal testimony; 19 the schedule I don't think specifically mentions 20 exhibits, but I assume they would be filed--well let's 21 see, for the Intervenors, they would be filed with 22 your direct testimony, same thing for the Staff and 23 Applicant. And whenever that happens to come, and any 24 rebuttal exhibits would be filed with the rebuttal 25 testimony. Did you have anything else in mind, or was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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10 1 it just--you just didn't mention exhibits in here?

2 MR. BESSETTE: No, Your Honor. This is 3 Paul Bessette again. We anticipated or envisioned 4 filing the exhibits along with the testimony.

5 CHAIR SPRITZER: Okay, I just wanted to be 6 clear on that. Now, on the 60 versus 30 day issue, 7 this is for the filing of your amended contentions, I 8 guess our preliminary reaction is more in line of a 9 general idea to move this case along that we go with 10 the 30 days.

11 Intervenors, you're not prohibited from 12 asking for an extension, although you should do so 13 promptly if you need it and give us a good reason why 14 you need an extension, so you're not completely locked 15 into 30 days. But in terms of what we're doing with 16 the scheduling order, our inclination is to go with 17 the 30 days. Any response on that?

18 MR. BESSETTE: Essentially what you're 19 saying is that, procedurally, if we believe it will 20 take 60 days to articulate a new or amended 21 contention, we can make a request within the first 30, 22 and--

23 (Simultaneous speaking.)

24 CHAIR SPRITZER: If you need more time, 25 you could file a motion for extension of time. We're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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11 1 not guaranteeing you that we'll grant it, I'm just 2 saying--or saying that necessarily 30 days should be 3 the time you should ask for, only that we would put in 4 our scheduling order 30 days; if there really are 5 extenuating circumstances--if the staff's safety 6 evaluation comes out at the end of November, you know, 7 then you're going into the Christmas holidays, most 8 people like to take at least a few days off in there, 9 so you know that kind of thing is something we would 10 take into account. I'm not giving you a guarantee 11 that we will give you an extra 30 days; you should ask 12 for the smallest amount of time that you would need in 13 addition to 30 days, if you need any at all. All I'm 14 saying is you have the option of asking for an 15 extension if it's really necessary, but we'd prefer to 16 keep 30 days as the goal and see if there's any 17 justification or need for further time down the road.

18 MR. BESSETTE: Well, we would prefer the 19 60, but we will abide by whatever order the Board 20 makes.

21 CHAIR SPRITZER: Okay. With respect to 22 summary disposition motions, right now the schedule 23 has two deadlines for summary disposition motions; of 24 course nobody's prohibited from filing earlier than 25 the deadline. What we thought might make more sense NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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12 1 is to have one deadline geared to the due date for 2 direct testimony, depending upon which schedule we're 3 under, that is whether it's--whether new or amended 4 contentions are filed or not filed, we would probably 5 gear, you know, 30 days before direct testimony or 45 6 days before the direct testimony is due.

7 We haven't quite worked that out yet, but 8 we try to have a deadline like that rather than two 9 separate deadlines. I mean if Entergy files a motion 10 for summary disposition after 30 days, 30 days after 11 the safety evaluation comes out, but simultaneously 12 new or amended contentions are filed could effectively 13 make the summary disposition motion moot, so we 14 thought rather than having more motions filed than we 15 really need, it might make sense to defer the 16 deadline.

17 So were there any thoughts on that? Let 18 me have Entergy first on that.

19 MR. BESSETTE: Your Honor, that sounds 20 reasonable to us, thank you.

21 CHAIR SPRITZER: Staff?

22 MS. GHOSH: That sounds reasonable to us 23 as well.

24 CHAIR SPRITZER: And Intervenor?

25 MR. LODGE: Your Honor, that's a good NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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13 1 suggestion. Thank you.

2 CHAIR SPRITZER: All right. If you look 3 at--this is on page 2 of your joint proposal, 4 paragraph number 6, imposition came up in the Fermi 2 5 case which Mr. Lodge may remember. It's a little 6 confusing because I think what's intended here is to 7 say that--the first sentence says that if the staff is 8 going to identify the documents, it's required to 9 identify--I think what's intended in the second 10 sentence is to say that the parties shall not 11 otherwise be required to identify or produce docketed 12 correspondence or other documents identified by the 13 staff.

14 If it's broader than that, then it would 15 seem to be an inconsistency with paragraph 7, which 16 does require identification of some documents that may 17 or may not have been identified by the staff, namely 18 ones that a party may rely on at the hearing. If we 19 made that modification, would that be a problem that 20 it's changing the paragraph--second sentence in 21 paragraph 6 to say that the parties will not otherwise 22 be required to identify or produce docketed 23 correspondence or other documents identified by the 24 staff?

25 MR. BESSETTE: Your Honor, this is Paul NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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14 1 Bessette from Entergy. We would concur with that 2 change to the extent any documents are identified on 3 ADAMS or not otherwise identified by the staff or on 4 ADAMS, we had always intended to identify those with 5 the appropriate accession number.

6 CHAIR SPRITZER: Right. It just seemed--I 7 assumed that was probably intended, but it seemed to 8 be a potential inconsistency there. Does anyone else 9 have any comment on that particular issue?

10 MR. LODGE: It's fine with Intervenors.

11 MS. GHOSH: It's fine with the NRC staff 12 as well.

13 CHAIR SPRITZER: All right. Okay, that 14 comes pretty much to the end of my list I think. Do 15 any of my fellow judges have any--

16 ADMIN. JUDGE ARNOLD: This is Judge 17 Arnold. I--there's the staff technical person on the 18 line; is that so?

19 MS. GHOSH: Yes.

20 ADMIN. JUDGE ARNOLD: Would you be able to 21 answer a question such as the safety evaluation, is 22 this going to be a 500-page document, a 50-page 23 document, about how big is it going to be?

24 MS. GHOSH: Can you give me one moment, 25 Your Honor?

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15 1 ADMIN. JUDGE ARNOLD: Okay.

2 MS. GHOSH: Your Honor, the SE will 3 probably be no longer than 30 pages.

4 ADMIN. JUDGE ARNOLD: Thank you very much.

5 CHAIR SPRITZER: Well let me just ask 6 then. Based on the joint proposal, I take it 7 everyone's agreed though that we should wait--we 8 shouldn't--the schedule should not--should wait until 9 the safety evaluation is completed. Anybody feel 10 differently? All right, hearing no takers, I assume 11 that everyone's agreed on that point.

12 And if the schedule, particularly if we 13 follow the schedule that assumes that there will be 14 new or amended contentions, we could get well into 15 2016 before we actually have the hearing. From 16 Entergy's point of view, is that going to be a 17 problem? It's my understanding that it looks like you 18 need a decision certainly before December of 2016.

19 MR. BESSETTE: A decision on the hearing, 20 Your Honor?

21 CHAIR SPRITZER: Well, a ruling, 22 conclusion of the evidentiary hearing and the Board's 23 initial decision. And I suppose also time to appeal 24 to the--or whoever happens to be the losing party to 25 appeal to the Commission. And that's based on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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16 1 fact as I understand it there's at least one of the 2 materials that will be approaching this limit, 3 fracture toughness limit by December of 2016, but 4 maybe I'm misinterpreting something.

5 MR. BESSETTE: No Your Honor, I believe 6 that's generally consistent with our understanding.

7 We just, you know, we looked at this carefully. With 8 regard to Your Honor's first point, we are not aware 9 of even the ability to go to hearing without the SER, 10 the staff's SER, because we really do need the 11 staff's--we believe we need the staff's position on 12 this. We would--perhaps we were hoping for the SER a 13 bit earlier candidly, which would move this up a bit 14 earlier.

15 CHAIR SPRITZER: Okay. That would be 16 good, that would help everybody I think.

17 MR. BESSETTE: Yes.

18 CHAIR SPRITZER: I mean, the other 19 possibility of course is to shorten some of the other 20 deadlines; we mentioned one possibility already in 21 terms of the having two--a two-step process for 22 submitting testimony rather than a three-step process.

23 24 Maybe the best thing to do is simply go 25 ahead and issue the scheduling order based on what we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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17 1 have now, and if it seems like you're pushing up 2 against a deadline, and keeping in mind that I would 3 assume both sides want to preserve the option of an 4 appeal to the Commission, come back to us with some 5 alternative proposal if it looks like you're running 6 into a potential problem.

7 MR. BESSETTE: Yes, Your Honor, that's 8 entirely reasonable, and we would need to confer with 9 the client on that.

10 CHAIR SPRITZER: Okay. Just to let you 11 know, we would certainly be open to--we understand 12 that the issue around getting your decision within the 13 time period that you need one.

14 MR. BESSETTE: Thank you, Your Honor.

15 CHAIR SPRITZER: Okay. Judge Hirons, did 16 you want to make--

17 ADMIN. JUDGE HIRONS: I just want to 18 confirm with the staff that the date for the SER is 19 the end of November, is that correct?

20 MS. GHOSH: That's our current best 21 estimate.

22 ADMIN. JUDGE HIRONS: Thank you.

23 CHAIR SPRITZER: Is it realistic that it 24 might be earlier than that?

25 MS. GHOSH: Possibly.

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18 1 CHAIR SPRITZER: Okay. All right, I think 2 the judges, I've asked all my questions; my 3 colleagues, I assume, have asked theirs. Are there any 4 other procedural issues any of the parties want to 5 bring up?

6 MR. BESSETTE: None from Entergy, Your 7 Honor.

8 MS. GHOSH: Nothing from the Staff.

9 CHAIR SPRITZER: And Intervenors?

10 MR. LODGE: Nothing from the Intervenors.

11 MR. KAMPE: If I could just quickly, Your 12 Honor. Maybe it's a bit premature, but the holding of 13 the actual evidentiary hearing itself, I would hope 14 that that would take place in West Michigan given the 15 broad public interest. It would be difficult for 16 folks to travel to Rockville for example.

17 CHAIR SPRITZER: Right. I mean, that's 18 our normal policy as you know from the Fermi 3 case, 19 we did the hearing there in Michigan, so unless 20 there's some compelling reason to do it here, that 21 would be the normal Commission policy to hold the 22 hearing in the vicinity of the plant.

23 MR. KAMPS: I appreciate it.

24 CHAIR SPRITZER: Does anybody--for the 25 staff or Entergy, do you have any reason to think that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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19 1 we should do it in Washington in Rockville, Maryland?

2 MR. BESSETTE: This is Entergy, no Your 3 Honor, particularly because it's not in winter either, 4 so.

5 CHAIR SPRITZER: Okay. Well, I think it 6 was winter in Fermi 3, or close, it felt like winter.

7 To the staff, any thoughts on that?

8 MS. GHOSH: No, we wouldn't have any 9 objection to having the hearing in Michigan.

10 CHAIR SPRITZER: Okay. All right, I think 11 that's concludes our business. To the court reporter, 12 do you need the parties to stay on the line?

13 MR. JACKSON: No, I don't think so.

14 CHAIR SPRITZER: All right. All right, 15 that concludes our scheduling conference then. Thank 16 you for your participation. As I said, we hope to get 17 an order out on the mandatory disclosures by tomorrow.

18 So the schedule probably Monday or Tuesday of next 19 week.

20 MR. BESSETTE: Thank you, Your Honor.

21 CHAIR SPRITZER: Very well, thank you.

22 (Whereupon, the above-entitled matter was 23 concluded at 2:22 p.m.)

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