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 COMMISSIONTitle:Entergy Nuclear Operations Palisades Nuclear PlantDocket Number:50-255-LA-2 ASLBP No.15-939-04-LA-BD01 Location:teleconference Date:Wednesday, July 8, 2015Work Order No.:NRC-1728Pages 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 UNITED STATES OF AMERICA 1 NUCLEAR REGULATORY COMMISSION 2+ + + + +3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4+ + + + +5 HEARING 6----------------------x 7 In the Matter of:  : Docket No.

8 ENTERGY NUCLEAR  : 50-255-LA-2 9 OPERATIONS, INC.  : ASLBP No.

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

12----------------------x 13 Wednesday, July 8, 2015 14 15 Teleconference 16 17 BEFORE: 18 RONALD M. SPRITZER, Chair 19 GARY S. ARNOLD, Administrative Judge 20 THOMAS J. HIRONS, Administrative Judge 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 2 APPEARANCES:

1 2 Counsel for the Applicant 3 Paul Bessette, Esq.

4 Raphael P. Kuyler, Esq.

5of:Morgan, Lewis & Bockius LLP 6 1111 Pennsylvania Avenue, N.W.

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

14 Joseph Lindell, Esq.

15of:U.S. Nuclear Regulatory Commission 16 Office of the General Counsel 17 Mail Stop O-15D21 18 Washington, DC 20555-0001 19 (301) 415-4126 20 anita.ghosh@nrc.gov 21 joseph.lindell@nrc.gov 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 3 On Behalf of the Petitioners

1 Terry J. Lodge, Esq.

2 316 N. Michigan Street, Suite 520 3 Toledo, OH 43604-5627 4 (419) 255-7552 5 terry@beyondnuclear.org 6 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.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 4 P R O C E E D I N G S 1 2:01 p.m.2CHAIR SPRITZER: All right, I think we are 3now ready to go on the record, Mr. Court Reporter. We 4 are here in the matter of Entergy Nuclear Operations, 5Inc. This is Palisades Nuclear Plant, NRC Docket 6number 50-255-LA-2. This is the License Amendment Two 7 request, and we're here pursuant to the Board's order 8 of June 26, scheduling this conference call to review 9 scheduling issues. Why don't we go around again and 10 identify everyone who is on the call, I'm going with 11 start with the Intervenors.

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

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

16CHAIR SPRITZER: All right, and for 17 Entergy?18MR. BESSETTE: Yes, Your Honor, this is 19 Paul Bessette from Morgan, Lewis & Bockius, 20representing Entergy, and I have my colleague, Ray 21 Kuyler with me.

22 CHAIR SPRITZER: And for the NRC Staff?

23 MS. GHOSH: Hi Your Honor, this is Anita 24 Ghosh for the NRC Staff, with me as co-counsel Joseph 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 5Lindell. I also have a member of the NRC technical 1 staff, Kimberly Green.

2CHAIR SPRITZER: All right, and I believe 3 that should do it, but if anybody else is on the line 4and planning to participate, please speak now. All 5right, hearing no takers, with me of course I 6 mentioned are Judge Hirons and Judge Arnold, also our 7law clerk, Nicole Pepperl and Sachin Desai, who is 8 technically a law clerk on the other Palisades case, 9 but is also listening in on this case.

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

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

23Is the Staff planning to file anything on that? This 24 is the Motion to Defer the Due Date for Mandatory 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 6 Disclosures?

1 MS. GHOSH: No, Your Honor.

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

3it's ready for decision, then. Okay. On the joint 4proposal, first of all, we appreciate the parties' 5 efforts at working out a joint proposal, and for the 6 most part it seems acceptable to the Board with a few 7 possible changes that we're interested in, and we'll 8 give you the chance to offer your thoughts on.

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

19 So that would shorten that process from it 20 looks like about 90 days to about 45 days, and from 21 our point of view, it's often more helpful to get all 22 of the direct testimony together and all the rebuttal 23testimony together. It certainly doesn't hurt. So 24 let me ask if anyone wants to comment on that from the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 7 parties on the line?

1MR. BESSETTE: Your Honor, this is Paul 2 Bessette, maybe I'll jump in. We certainly can do 3 whatever the Board wishes to do. We can accommodate 4 any pleading standard, any pleading schedule or 5process. I would note though that you know, we really 6 do not at this point know many of Intervenor's 7 arguments.

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

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

22 CHAIR SPRITZER: Okay.

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

24this is Judge Arnold -- that's what the rebuttals are 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 8for. You would each have an equal opportunity to 1 rebut the position of your opponents.

2MR. BESSETTE: I understand, and that's 3 why we could accommodate any process, I just wanted to 4 provide some, just some alternate thoughts there, Your 5Honor. We fully respect your discussion of that 6 issue.7 CHAIR SPRITZER: All right, does anybody 8 else have any thoughts on that particular possible 9 modification?

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

11MS. GHOSH: Yes, the NRC Staff, I think we 12 would echo the same sentiments. I think it would be 13 easier--not easier, but it would--some of the claims 14 that are written out in the Petitioner's case would 15 be--I think it would help to narrow the scope of the 16 proceeding, and it would provide for a more efficient 17 process if the Intervenor were--if we were to do the 18 staggered filing, but we would be amenable to either 19 process.20CHAIR SPRITZER: All right, from the 21 Intervenors, did you have any thoughts on this?

22MR. LODGE: Yes sir, this is Terry Lodge.

23 You may recall in the 33 proceeding over which you 24 presided, you also asked for the procedure that you're 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 9 proposing today, and of course we'll comply with any 1orders that you might make. But in 33 as well as 2 today, my view was that as proposed, the three-step 3process more tends to follow what federal civil 4 practice utilizes, and I think that as the other 5 parties have suggested, it may actually help narrow or 6 frame the issues better.

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

13CHAIR SPRITZER: Okay. Well, those are 14 some interesting points; we'll take them under 15advisement. If there's nothing else on that 16 particular issue, I would assume that this is related 17 to the filing of the direct and rebuttal testimony; 18 the schedule I don't think specifically mentions 19 exhibits, but I assume they would be filed--well let's 20 see, for the Intervenors, they would be filed with 21 your direct testimony, same thing for the Staff and 22Applicant. And whenever that happens to come, and any 23rebuttal exhibits would be filed with the rebuttal 24testimony. Did you have anything else in mind, or was 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 10 it just--you just didn't mention exhibits in here?

1MR. BESSETTE: No, Your Honor. This is 2Paul Bessette again. We anticipated or envisioned 3 filing the exhibits along with the testimony.

4CHAIR SPRITZER: Okay, I just wanted to be 5clear on that. Now, on the 60 versus 30 day issue, 6 this is for the filing of your amended contentions, I 7guess our preliminary reaction is more in line of a 8 general idea to move this case along that we go with 9 the 30 days.

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

17MR. BESSETTE: Essentially what you're 18 saying is that, procedurally, if we believe it will 19 take 60 days to articulate a new or amended 20 contention, we can make a request within the first 30, 21 and--22 (Simultaneous speaking.)

23 CHAIR SPRITZER: If you need more time, 24you could file a motion for extension of time. We're 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 11 not guaranteeing you that we'll grant it, I'm just 1 saying--or saying that necessarily 30 days should be 2 the time you should ask for, only that we would put in 3 our scheduling order 30 days; if there really are 4 extenuating circumstances--if the staff's safety 5 evaluation comes out at the end of November, you know, 6 then you're going into the Christmas holidays, most 7 people like to take at least a few days off in there, 8 so you know that kind of thing is something we would 9take into account. I'm not giving you a guarantee 10 that we will give you an extra 30 days; you should ask 11 for the smallest amount of time that you would need in 12addition to 30 days, if you need any at all. All I'm 13 saying is you have the option of asking for an 14 extension if it's really necessary, but we'd prefer to 15 keep 30 days as the goal and see if there's any 16 justification or need for further time down the road.

17 MR. BESSETTE: Well, we would prefer the 18 60, but we will abide by whatever order the Board 19 makes.20CHAIR SPRITZER: Okay. With respect to 21 summary disposition motions, right now the schedule 22 has two deadlines for summary disposition motions; of 23 course nobody's prohibited from filing earlier than 24 the deadline. What we thought might make more sense 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 12 is to have one deadline geared to the due date for 1 direct testimony, depending upon which schedule we're 2 under, that is whether it's--whether new or amended 3 contentions are filed or not filed, we would probably 4 gear, you know, 30 days before direct testimony or 45 5 days before the direct testimony is due.

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

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

18MR. BESSETTE: Your Honor, that sounds 19 reasonable to us, thank you.

20 CHAIR SPRITZER: Staff?

21 MS. GHOSH: That sounds reasonable to us 22 as well.23 CHAIR SPRITZER: And Intervenor?

24MR. LODGE: Your Honor, that's a good 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 13 suggestion. Thank you.

1 CHAIR SPRITZER: All right. If you look 2 at--this is on page 2 of your joint proposal, 3 paragraph number 6, imposition came up in the Fermi 2 4case which Mr. Lodge may remember. It's a little 5 confusing because I think what's intended here is to 6 say that--the first sentence says that if the staff is 7going to identify the documents, it's required to 8 identify--I think what's intended in the second 9 sentence is to say that the parties shall not 10 otherwise be required to identify or produce docketed 11 correspondence or other documents identified by the 12 staff. 13 If it's broader than that, then it would 14 seem to be an inconsistency with paragraph 7, which 15 does require identification of some documents that may 16 or may not have been identified by the staff, namely 17 ones that a party may rely on at the hearing. If we 18 made that modification, would that be a problem that 19 it's changing the paragraph--second sentence in 20 paragraph 6 to say that the parties will not otherwise 21 be required to identify or produce docketed 22 correspondence or other documents identified by the 23 staff?24MR. BESSETTE: Your Honor, this is Paul 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 14Bessette from Entergy. We would concur with that 1 change to the extent any documents are identified on 2 ADAMS or not otherwise identified by the staff or on 3ADAMS, we had always intended to identify those with 4 the appropriate accession number.

5CHAIR SPRITZER: Right. It just seemed--I 6 assumed that was probably intended, but it seemed to 7be a potential inconsistency there. Does anyone else 8 have any comment on that particular issue?

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

10 MS. GHOSH: It's fine with the NRC staff 11 as well.12CHAIR SPRITZER: All right. Okay, that 13 comes pretty much to the end of my list I think. Do 14 any of my fellow judges have any--

15ADMIN. JUDGE ARNOLD: This is Judge 16Arnold. I--there's the staff technical person on the 17 line; is that so?

18 MS. GHOSH: Yes.

19ADMIN. JUDGE ARNOLD: Would you be able to 20 answer a question such as the safety evaluation, is 21 this going to be a 500-page document, a 50-page 22 document, about how big is it going to be?

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

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 15 ADMIN. JUDGE ARNOLD: Okay.

1MS. GHOSH: Your Honor, the SE will 2 probably be no longer than 30 pages.

3ADMIN. JUDGE ARNOLD: Thank you very much.

4CHAIR SPRITZER: Well let me just ask 5then. Based on the joint proposal, I take it 6 everyone's agreed though that we should wait--we 7 shouldn't--the schedule should not--should wait until 8the safety evaluation is completed. Anybody feel 9 differently? All right, hearing no takers, I assume 10 that everyone's agreed on that point.

11 And if the schedule, particularly if we 12 follow the schedule that assumes that there will be 13 new or amended contentions, we could get well into 142016 before we actually have the hearing. From 15 Entergy's point of view, is that going to be a 16problem? It's my understanding that it looks like you 17 need a decision certainly before December of 2016.

18MR. BESSETTE: A decision on the hearing, 19 Your Honor?

20CHAIR SPRITZER: Well, a ruling, 21 conclusion of the evidentiary hearing and the Board's 22 initial decision. And I suppose also time to appeal 23 to the--or whoever happens to be the losing party to 24appeal to the Commission. And that's based on the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 16 fact as I understand it there's at least one of the 1 materials that will be approaching this limit, 2 fracture toughness limit by December of 2016, but 3 maybe I'm misinterpreting something.

4MR. BESSETTE: No Your Honor, I believe 5 that's generally consistent with our understanding.

6We just, you know, we looked at this carefully. With 7 regard to Your Honor's first point, we are not aware 8 of even the ability to go to hearing without the SER, 9 the staff's SER, because we really do need the 10 staff's--we believe we need the staff's position on 11this. We would--perhaps we were hoping for the SER a 12 bit earlier candidly, which would move this up a bit 13 earlier.14CHAIR SPRITZER: Okay. That would be 15 good, that would help everybody I think.

16 MR. BESSETTE: Yes.

17CHAIR SPRITZER: I mean, the other 18 possibility of course is to shorten some of the other 19 deadlines; we mentioned one possibility already in 20 terms of the having two--a two-step process for 21 submitting testimony rather than a three-step process.

22 23 Maybe the best thing to do is simply go 24 ahead and issue the scheduling order based on what we 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 17 have now, and if it seems like you're pushing up 1 against a deadline, and keeping in mind that I would 2 assume both sides want to preserve the option of an 3 appeal to the Commission, come back to us with some 4 alternative proposal if it looks like you're running 5 into a potential problem.

6MR. BESSETTE: Yes, Your Honor, that's 7 entirely reasonable, and we would need to confer with 8 the client on that.

9CHAIR SPRITZER: Okay. Just to let you 10 know, we would certainly be open to--we understand 11 that the issue around getting your decision within the 12 time period that you need one.

13 MR. BESSETTE: Thank you, Your Honor.

14CHAIR SPRITZER: Okay. Judge Hirons, did 15 you want to make--

16ADMIN. JUDGE HIRONS: I just want to 17 confirm with the staff that the date for the SER is 18 the end of November, is that correct?

19MS. GHOSH: That's our current best 20 estimate.21 ADMIN. JUDGE HIRONS: Thank you.

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

24 MS. GHOSH: Possibly.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 18CHAIR SPRITZER: Okay. All right, I think 1 the judges, I've asked all my questions; my 2 colleagues, I assume, have asked theirs. Are there any 3 other procedural issues any of the parties want to 4 bring up?5MR. BESSETTE: None from Entergy, Your 6 Honor.7MS. GHOSH: Nothing from the Staff.

8 CHAIR SPRITZER: And Intervenors?

9MR. LODGE: Nothing from the Intervenors.

10MR. KAMPE: If I could just quickly, Your 11Honor. Maybe it's a bit premature, but the holding of 12 the actual evidentiary hearing itself, I would hope 13 that that would take place in West Michigan given the 14broad public interest. It would be difficult for 15 folks to travel to Rockville for example.

16CHAIR SPRITZER: Right. I mean, that's 17 our normal policy as you know from the Fermi 3 case, 18 we did the hearing there in Michigan, so unless 19 there's some compelling reason to do it here, that 20 would be the normal Commission policy to hold the 21 hearing in the vicinity of the plant.

22 MR. KAMPS: I appreciate it.

23CHAIR SPRITZER: Does anybody--for the 24 staff or Entergy, do you have any reason to think that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 19 we should do it in Washington in Rockville, Maryland?

1MR. BESSETTE: This is Entergy, no Your 2 Honor, particularly because it's not in winter either, 3 so.4 CHAIR SPRITZER: Okay. Well, I think it 5 was winter in Fermi 3, or close, it felt like winter.

6 To the staff, any thoughts on that?

7MS. GHOSH: No, we wouldn't have any 8 objection to having the hearing in Michigan.

9CHAIR SPRITZER: Okay. All right, I think 10that's concludes our business. To the court reporter, 11 do you need the parties to stay on the line?

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

13CHAIR SPRITZER: All right. All right, 14that concludes our scheduling conference then. Thank 15 you for your participation. As I said, we hope to get 16 an order out on the mandatory disclosures by tomorrow.

17 So the schedule probably Monday or Tuesday of next 18 week.19 MR. BESSETTE: Thank you, Your Honor.

20 CHAIR SPRITZER: Very well, thank you.

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

23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433