ML15104A384

Transcript of Entergy Nuclear Operations, Vermont Yankee Nuclear Power Station, April 8, 2015, Pages 1-35

ML15104A384
Person / Time
Site:	Vermont Yankee
Issue date:	04/08/2015
From:	Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-271-LA-2, ASLBP 15-937-02-LA-BD01, NRC-1496, RAS 27510
Download: ML15104A384 (36)

Text

Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSIONTitle:Entergy Nuclear Operations Vermont Yankee Nuclear Power StationDocket Number:50-271-LA-2ASLBP Number:15-937-02-LA-BD01 Location:(teleconference)

Date:Wednesday, April 8, 2015Work Order No.:NRC-1496Pages 1-35 NEAL R. GROSS AND CO., INC.

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

Washington, D.C. 20005 (202) 234-4433 1UNITED STATES OF AMERICA 1NUCLEAR REGULATORY COMMISSION 2+ + + + +

3ATOMIC SAFETY AND LICENSING BOARD PANEL 4+ + + + +

5HEARING6-------------------------x 7In the Matter of:  : Docket No.

8ENTERGY NUCLEAR VERMONT  : 50-271-LA-2 9YANKEE, LLC, AND ENTERGY : ASLBP No.

10NUCLEAR OPERATIONS, INC. : 15-937-02-LA-BD01 11(Vermont Yankee Nuclear  :

12Power Station)  :

13-------------------------x 14Wednesday, April 8, 2015 1516Teleconference 1718BEFORE:19PAUL S. RYERSON, Chair 20DR. MICHAEL F. KENNEDY, Administrative Judge 21DR. RICHARD E. WARDWELL, Administrative Judge 2223 24 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 2APPEARANCES:

1On Behalf of Entergy 2Raphael Kuyler, Esq.

3Paul Bessette, Esq.

4of:Morgan Lewis & Bockius, LLP 51111 Pennsylvania Ave 6Washington, DC 20004 7(202)739-5146 89Susan Raimo, Esq.

10of:Entergy Services, Inc.

11101 Constitution Ave., NW 12Washington, DC 20001 13(202)530-7300 1415On Behalf of the Nuclear Regulatory Commission 16Mitzi Young, Esq.

17Beth Mizuno, Esq.

18Jeremy Wachutka, Esq.

19Daniel Straus, Esq.

20of:U.S. Nuclear Regulatory Commission 21Office of the General Counsel 22Mail Stop O-15D21 23Washington, DC 20555-0001 24301-415-4126 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 3On Behalf of the State of Vermont 1Aaron Kisicki, Esq.

2Vermont Department of Public Service 3112 State Street - Drawer 20 4Montpelier, VT 05620 5(802)828-3785 67 8

910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 4P R O C E E D I N G S 19:00 a.m.

2CHAIR RYERSON: Good morning everyone and 3welcome. We're here on the matter of an application 4by Entergy Nuclear Vermont Yankee, LLC and Entergy 5Nuclear Operations, Inc. to amend the license for 6Vermont Yankee Nuclear Power Station.

7I'm Judge Ryerson. Excuse me one second.

8MR. PEPPERL: I think we need to join the 9conference to get the listeners in as well.

10Is the conference leader still on the 11line?12OPERATOR: Yes, I'm here.

13MR. PEPPERL: Have we joined in with the 14listeners?

15OPERATOR: I will join you now, one moment 16please.17MR. PEPPERL: Okay, great, thank you.

18Sorry.19OPERATOR: All right, you may proceed.

20CHAIR RYERSON: Okay, so we'll start over.

21Again, I'm Judge Ryerson. We're here on 22the matter of an application by Entergy Nuclear 23Vermont Yankee, LLC and Entergy Nuclear Operations, 24Incorporated to amend the license for Vermont Yankee 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 5Nuclear Power Station.

1I'm trained as a lawyer. I chair the 2Atomic Safety and Licensing Board that the NRC has 3assigned this particular proceeding.

4With me is Judge Kennedy. Dr. Kennedy is 5a nuclear engineer and our third Board Member who is 6also here with us is Dr. Wardwell who is trained as a 7civil engineer and has a particular focus on 8environmental geoscience.

9Today's proceeding concerns a petition by 10the State of Vermont for a hearing on Entergy's 11License Amendment Application and to intervene. And 12I should say that, in addition to being recorded by 13the Court Reporter today, our telephone conference is 14being made available in a listen only telephone mode 15to members of the public and the press.

16Before we take the appearances of counsel, 17I'd like to summarize how the Board intends to proceed 18this morning.

19Our purpose is to hear arguments on 20whether Vermont has submitted an admissible contention 21so as to justify a hearing on Entergy's application.

22There doesn't appear to be any questions, but that the 23State of Vermont has standing to petition for a 24hearing. But the question is whether Vermont has put 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 6forward an admissible contention appropriate for a 1hearing before the Board under the NRC's rules.

2All of the Board Members, I can assure 3you, have read the parties' legal memorandum, we've 4studied them. We understand your arguments and, 5therefore, I'm hopeful that today's call will be a 6relatively short one. We really want to focus today 7on questions the Board Members have.

8And in particular, as we indicated in the 9Scheduling Order for this call, we expect that most of 10our questions will focus on whether Vermont's 11contention number two si admissible regardless of 12whether the Commission reconsiders Entergy's request 13for an exemption from certain NRC regulations.

14The Commission has already approved that 15exemption request once and the Commission has before 16it the State of Vermont's request for reconsideration 17of that approval.

18So, our argument -- the arguments that 19we're most interested in today, frankly, are the 20arguments that are, I think, are advanced at page 21seven of Vermont's reply primarily. And that is, even 22if the Commission were to reaffirm the granting of an 23exemption in full, is it still an admissible 24contention here?

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 7Generally, I think when any Board Member 1asks a question, we will try to direct it to a 2particular party, but we're going to be fairly 3informal here. If someone feels a need to comment on 4a question and they haven't been specifically asked 5for an answer, just let us know at the earliest 6convenience or appropriate moment.

7If would be helpful, of course, and 8especially helpful to the Court Reporter, if everyone 9remembers to identify themselves before they speak.

10I am hopeful, I think the Board is hopeful 11that we will finish within an hour or so. If it looks 12like it might go much longer than that, we'll consider 13taking a short break.

14Any comments from the other Judges before 15we take the formal appearances of counsel?

16Judge Kennedy?

17JUDGE KENNEDY: Nothing.

18CHAIR RYERSON: Judge Wardwell?

19JUDGE WARDWELL: I have nothing.

20CHAIR RYERSON: Okay. Well, let's begin 21then.22Let's start first with the State of 23Vermont. Who will be the primary speaker at least for 24the State of Vermont today?

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 8MR. KISICKI: Good morning, Your Honor.

1My name is Aaron Kisicki and I represent the State of 2Vermont.3CHAIR RYERSON: Okay, welcome, Mr.

4Kisicki.5MR. KISICKI: Thank you.

6CHAIR RYERSON: And for Entergy, is the 7Mr. Kuyler?

8MR. KUYLER: Yes, Your Honor, this is Ray 9Kuyler for Entergy. Also in the room with me is my 10colleague, Paul Bessette and Susan Raimo, Senior 11Counsel at Entergy.

12CHAIR RYERSON: Okay, and welcome to you.

13And the NRC staff?

14MS. MIZUNO: For the NRC staff, this is 15Beth Mizuno. The primary speaker today will be Mitzi 16Young. Accompanying us are Daniel Straus and Jeremy 17Wachutka. We're also joined by a number of members of 18the staff.

19And, if I could, since we're doing notices 20of appearance right now, or we're doing appearances, 21I'd like to apologize, it was last night that we 22discovered that, through inadvertent, we had failed to 23file notices of appearances in this particular Vermont 24Yankee proceeding. And we have remedied that now. My 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 9apologies.

1CHAR RYERSON: We noticed a number of 2filings early this morning. Thank you.

3And welcome to all of you, as well, to the 4call.5All right. Well, let's begin with 6essentially the question we posed in the Order setting 7up the call. We're not asking for formal opening 8arguments, but essentially, this will be a chance to 9say what you would like about that issue.

10So, specifically, the question is, let's 11assume for purposes of argument, that the Commission, 12again, affirms the approval of the exemptions. And I 13know the exemptions haven't technically issued yet, 14but they Commission has approved them conceptually 15once, I guess is an accurate way to describe where we 16are.17There's a pending petition by the State in 18front of the Commission and if the Commission simply 19says we were right the first time or dismisses the 20petition on procedural grounds or whatever, let's 21assume that those exemptions are, in fact, allowed by 22the NRC.23Is the contention still admissible? And 24that's an argument that the State makes, as I said, I 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 10think on page seven, in particular, of your reply.

1So, I will turn it to you, Mr. Kisicki.

2Do you want to elaborate on that argument?

3MR. KISICKI: Certainly, Your Honor.

4And first and foremost, before I begin, I 5also would like to apologize on behalf of the State 6for some of its procedural missteps that we've made in 7this proceeding so far.

8In particular, obtaining certain 9certifications regarding our Motion to Stay. We will 10endeavor to do a better job going forward.

11CHAIR RYERSON: No need to apologize, but 12that is, in my view, an important requirement of the 13rules. If the parties can work things out, often they 14can't, but if they can work things out, that makes 15life easier for everyone including, I think, 16ultimately the parties.

17But, in any event, yes, thank you for 18mentioning that and please continue.

19MR. KISICKI: Thank you.

20In response to your question, the answer 21is yes, contention two standing alone, I think, is 22admissible even in the event that the Commission were 23to reaffirm its approval of the NRC's staff 24recommendation to the exemption request.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 11As outlined on page seven of our reply, we 1have expert -- we have standings from our experts that 2the analysis used to justify the LAR is deficient on 3its face. It doesn't analyze credible beyond design 4basis threats to include a possible action, use of 5accelerants and fuel transfer accidents.

6That alone, I think it would be left to 7justify at a hearing on it was viewed under the 8requirements of 50.54(q)(4).

9But beyond that, the question itself goes 10to a larger issue which needs to be addressed with 11this contention two can't be properly evaluated at 12this time because we don't know what the Commission is 13going to rule. It's speculative at best to say that 14the Commission will reaffirm its initial ruling.

15One, the Commission may wind up siding 16with the State and deciding that there is a hearing 17right that's been triggered with respect to the 18exemption request which very well may cause an 19amendment of contention two that would change the 20dynamics of the position with respect to contention 21two.22Or the Commission may instruct the NRC 23staff to treat contention two in a particular way.

24We simply don't know at this time and I 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 12think that makes it very difficult for any party here 1to say with any certainty whether or not contention 2two isn't admissible. On its face right now it is and 3any change to contention two that might be triggered 4by a Commission ruling pursuant to the Motion for 5Reconsideration could fundamentally change the 6dynamics of the entire contention from the State's 7perspective.

8CHAIR RYERSON: Yes, Mr. Kisicki, let me 9sort of run through the scenarios at least as I see 10them and see whether you disagree.

11It is possible that the Commission will 12simply reject your Petition for Reconsideration in its 13entirety on procedural grounds, on some other grounds, 14we don't know, but simply reject it.

15And if that's the case, then the question 16that the Board has posed for you would seem to be 17highly relevant to me and that is, suppose the 18Commission does that? Is there still, in those 19circumstances, an admissible contention two?

20And that's what we would appreciate your 21addressing in a little more detail than on page seven 22of the reply.

23Now, if the Commission does something else 24which is a much broader category, it is certainly 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 13possible that the Commission has been known to do 1this, but this Commission might explain how it would 2expect the Board to proceed in these circumstances.

3I think that's very possible or the Board would have 4to figure out how it's supposed to proceed or you 5might want to amend or whatever.

6But, I mean don't those seem to you to be 7the options? If the Commission simply rejects your 8Petition for Reconsideration and, in effect, has twice 9approved the exemption that we're talking about or 10exemptions, then isn't the critical question whether 11you have asserted an admissible contention, even in 12those circumstances?

13And if the Commission does something else, 14well, I'm sure that we have to probably kind of play 15it by ear because we'll see what the Commission says 16about that if the Commission does something else.

17I mean do you disagree with that analysis 18of the likely scenarios that are in front of us?

19MR. KISICKI: I agree with you, Your 20Honor, that in the event that if the Commission were 21to reject our Motion for Reconsideration completely 22out of hand in its entirety, we would be left with the 23core question of whether or not contention two is 24admissible as is today.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 14CHAIR RYERSON: Right.

1MR. KISICKI: With that being said, I 2think, again, the answer is yes, it certainly is.

3Again, it goes to another procedurally 4we're up in an upward position and we've been put in 5that position because of Entergy's actions where they 6failed to get the predicate exemption request prior to 7filing the LAR.

8Right now, what is undisputed by any party 9is, if the Board were to grant the LAR today, it would 10-- the LAR would be essentially illegal. It would be 11in violation - it violates the regulations as they are 12put out today. There is no exemptions that's been 13granted at this point.

14So with that said, under the requirements 15at 50.54(q)(4), Entergy is required to show that any 16reduction in emergency plans and emergency plan 17safety, they have to identify the basis for concluding 18that the revised emergency plan would meet the 19requirements of 50.47(b) and Appendix E.

20In this situation, the State's contention 21points out that because the underlying safety analysis 22fails to identify and analyze credible beyond design 23basis threats including hostile actions, use of 24accelerants and, in particular, fuel transfer 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 15accidents.

1That satisfies all the admissibility 2requirements justifying a hearing on this issue alone.

3CHAIR RYERSON: And that, again, is 4because what NRC regulatory requirement mandates that?

5MR. KISICKI: 50.54(q)(4).

6JUDGE WARDWELL: Mr. Kisicki, this is 7Judge Wardwell.

8Do you know if any of these particular 9scenarios were evaluated as part of the exemption 10request?11MR. KISICKI: My understanding is with 12respect -- there was no analysis of a situation where 13accelerants were used and particular hostile actions 14including I think what our experts identified was a 15lack of analysis of say and airplane strike.

16I apologize, I'm not sure of the answer 17with respect to fuel transfer accidents. But I think 18the answer to that is also no, I don't think was 19analyzed as part of the exemption request.

20I'm more than happy to check on that and 21get back to you with that question.

22JUDGE WARDWELL: We'll let you know 23whether we need that or not based on responses we 24receive here from the other parties.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 16MR. KISICKI: Thank you.

1CHAIR RYERSON: Do you have anything more 2to add in regards to whether contention two would be 3admissible if the exemptions were granted?

4MR. KISICKI: Again, I think on its face, 5the State has put forth a contention that identified 6with specificity deficiencies in their analysis that 7is support by expert affidavits not only from the 8Department of Public Affairs and State Nuclear became 9aware but as well as representatives from the State's 10Division of Emergency Management and Homeland Security 11and the State Department of Health.

12And that analysis and those affidavits 13satisfy the admissibility requirements justified in 14here.15CHAIR RYERSON: Mr. Kisicki, this is Judge 16Ryerson.17The affidavits that you talk about are the 18statements that were submitted? Are they sworn 19affidavits or subject to penalty of perjury or are 20they simply statements?

21MR. KISICKI: They are sworn as far as I 22can tell. We did not include an affidavit to that 23effect but we can supply the Board with that if they 24would like.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 17CHAIR RYERSON: Okay. It's not that I 1missed something, there is no sworn declaration with 2the statement at this point.

3MR. KISICKI: No, there is not.

4CHAIR RYERSON: But you are asserting that 5you believe that these individuals would, in fact, 6sign an affidavit incorporating what they wrote?

7MR. KISICKI: Yes.

8JUDGE WARDWELL: Under the basis of our 9arguments -- this is Judge Wardwell again -- the line 10of questioning that we're doing now, that is assuming 11that the exemptions are maintained and as we move 12forward, do you agree that challenging an exemption 13that's been approved by the Commission is 14impermissible similar to any other Commission ruling?

15MR. KISICKI: I think in this instance, 16there is a unique circumstance which may override that 17general rule.

18Here, as outlined in our reply and in our 19Motion for Reconsideration, the NRC has found that a 20hearing right is triggered with respect to exemption 21requests when the exemption request is related to the 22LAR.23Here, Entergy is very clear on the face of 24its LAR that the LAR is predicated exclusively on the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 18granting of the exemption request.

1And in the Private Fuel Storage case which 2is cited in the Motion for Reconsideration and the 3State's reply, NRC was clear that the exemption can't 4remove quote, a matter germane to a licensing 5proceeding in consideration in a hearing assuming that 6an interested party raises an admissible contention 7thereof. To do otherwise would exclude critical 8safety questions from licensing hearings merely on the 9basis of an exemption label.

10That's exactly what's occurred here.

11Entergy is seeking to remove scrutiny by this State 12and by the Board of critical safety questions 13contained in the exemption request simply by labeling 14it an exemption.

15JUDGE WARDWELL: Yes, but does not 16contention two still need to meet the admissibility 17criteria? And if, in fact, it hinges on challenging 18the exemption, if that exemption has been ruled by the 19Commission to be valid, then isn't that grounds for 20dismissing that contention?

21MR. KISICKI: It would be if the 22contention itself was grounded on the exemption 23request.24JUDGE WARDWELL: Right, that's all I'm 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 19saying. Under that scenario, you agree that it would 1be, correct?

2So, what we're left with is your abilities 3to demonstrate that, in fact, you have other things in 4contention to that are not related to those exemptions 5in order to make that admissible, is not that correct 6under the premise of where we're moving forward on 7this argument today?

8MR. KISICKI: Correct. And I think, again 9--10JUDGE WARDWELL: Do you agree with that?

11MR. KISICKI: Yes, I would insofar that 12fundamentally, the State is seeking to have the Board 13consider the exemption request.

14More to the point, NRC precedent indicates 15that we have a right of the exemption request.

16It's hard to align, but I agree with you, 17but it's hard to separate that out.

18CHAIR RYERSON: Mr. Kisicki, this is Judge 19Ryerson.20If I understand the Private Fuel Storage 21case --22MR. KISICKI: It's quite all right.

23CHAIR RYERSON: Let me -- all right.

24There are two things that distinguish that 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 20case I think.

1One is that the Commission had not 2approved the exemption. I mean we have a more, maybe 3it's an unusual situation, I'm not sure exactly in 4what circumstances the Commission must approve an 5exemption. In some circumstances, the staff is 6authorized to grant an exemption without explicit 7Commission approval.

8Here we have Commission approval and also, 9the actual facts in Private Fuel Storage are kind of 10very favorable to the petitioner, frankly. I mean in 11that instance, there was an ongoing adjudication in 12front of a Licensing Board.

13The applicant's compliance with a 14particular regulation was being challenged by the 15petitioner and the staff said, well, we'll handle 16that. We'll just grant an exemption from the 17regulation, end of story.

18And the Commission unanimously said no, 19you can't do that. That's really not fair. That just 20totally undercuts the whole adjudicatory process.

21Now the ruling may go beyond that 22particular circumstance but it's not clear to me 23exactly where it does go, but it seems to me that, as 24a practical matter, when the Commission approves an 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 21exemption and the Commission has the opportunity to 1reconsider its approval of that exemption, then, you 2know, is the Licensing Board supposed to be rethinking 3what the Commission does as far as the exemption goes?

4It seems a little backwards to me. What's your 5response to that?

6MR. KISICKI: Well, the Board shouldn't be 7reading much into the Commission's granting an 8exemption because the Commission showed that there waw 9little process behind their granting of it.

10And this Motion for Reconsideration 11outlines the Commission failed to, you know, engage in 12a NEPA review as required under Federal law.

13And, you know, the fact that an exemption 14hasn't been issued by the NRC staff at this point is 15evidence that it means the staff is considering the 16things laid issues in front of the Commission that 17have merit with respect to the exemption request.

18CHAIR RYERSON: Mr. Kisicki, Judge Ryerson 19again.20You have, in fact, made these same 21arguments to the Commission which is currently 22presumably considering them, is that not correct?

23MR. KISICKI: Correct.

24CHAIR RYERSON: Yes, and -- okay.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 22Well, we've gone on for almost half an 1hour, do you have anything further at this point? We 2may give you an opportunity at the end to say another 3word or two, Mr. Kisicki.

4MR. KISICKI: I appreciate that and I 5think I am okay for now.

6CHAIR RYERSON: Okay.

7MR. KISICKI: Thank you.

8CHAIR RYERSON: Thank you.

9Let's turn next to Entergy. Mr. Kuyler, 10do you want to comment?

11MR. KUYLER: Yes, thank you, Your Honor.

12Before I get started, I should also 13mention we have a couple of technical folks from 14Entergy in the room with me as well, like the NRC 15staff.16In terms of commenting on the discussion 17so far, I would like to point out that, you know, 18under the Notice of Opportunity for Hearing and under 19the regulations, the issue presented to the Board is 20whether the proposed decommissioning emergency plan 21and the AL scheme are adequate under the regulations 22as exempted.

23And that includes questions like, you 24know, does the License Amendment Request provide for 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 23adequate equipment, facilities, organizational 1staffing, whether actions to mitigate consequences are 2identified, whether there are periodic drills and 3exercises for on site emergency planning, et cetera.

4And I think we've briefed this in our answer.

5So, contrary to what the State says on 6page two of its reply, it's not that there's nothing 7left for the NRC or the Board to consider in this 8proceeding, there is quite a bit of substance that 9could be challenged. But the State hasn't challenged 10any of those things.

11Almost the entirety of contention two, as 12far as we can tell, challenges the exemption request 13and not the License Amendment Request.

14Even the statement of the contention 15itself is that the exemption request and License 16Amendment Request taken together are not a challenge 17to the LAR alone.

18So, when the State says that Entergy's 19License Amendment Request, if approved along with the 20predicate requested exemption fails to meet the 21regulations.

22So, our understanding is that the NRC will 23not issue the exemption until it is satisfied that the 24requirements that Commission has set forth in its 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 24precedent are met and that includes the various action 1analyses that go into it.

2So, all of the questions of whether spent 3fuel accident evaluations are adequate, they need to 4be shown to be adequate before the exemption is 5granted. So, those are issues for the exemption 6request, not the License Amendment Request.

7And I think, you know, when we get to the 8question that the Board asked this morning, I think 9the State has effectively conceded this fundamental 10issue.11On page nine of its original petition the 12State says the LAR meets the requirements of Section 1350.54(q)(4) only in the event Entergy is exempted from 14material requirements of Part 50 Appendix E.

15So, our --

16CHAIR RYERSON: Mr. Kuyler, Judge Ryerson 17here.18I sort of agree with you, they probably 19meant to say if at all only if, but I think we're --

20well, I see you make a point and we've noticed that as 21well. But that's clearly, at least in my view, not 22the same thing they're saying at page seven of their 23reply brief.

24So, I would not be inclined to estop them 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 25from the argument on page seven of the reply brief by 1th reason of this statement on page nine of the 2petition.

3But I do want to ask you to a little 4directly address, you know, the argument that the 5State has made that, put aside the exemption, as you 6say the question, if we put aside the exemptions and 7assume that the Commission will reaffirm, assume for 8purposes of argument that the Commission totally 9reaffirms the granting of those exemptions, then as 10you say, the Board's job is to look at whether the 11License Amendment complies with the NRC regulations as 12exempted.

13But that's Mr. Kisicki's argument on page 14seven of the reply is that even if those exemptions 15are, in effect, affirmed, there is still a violation 16or a potential violation has been adequately made out 17that 50.54(q)(4), I think is the cite, is not 18satisfied.

19And, you know, we have three declarations 20from people who have certainly certain qualifications.

21We have the representation of counsel that they would, 22in fact, sign an affidavit to the effect of their 23statements.

24And so, what's your response to that? I 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 26mean are those -- is there a much more slender 1admissible contention here in contention two even 2putting aside the exemptions?

3MR. KUYLER: Well, just to preface this, 4as I mentioned, Your Honor, the statement of the 5contention itself ties the two things together. So, 6we would have to hunt t hrough the bases for the 7contention to try to glean out something that is a 8challenge to the License Amendment Request and not the 9exemption request. And I don't think that Mr. Kisicki 10has identified anything of that nature in this 11morning.12You know, we did brief some of this 13information in our answer starting at page 25. There 14are statements in the expert declarations in certain 15areas that do raise issues related to the LAR.

16For example, the State claims that Entergy 17must comply with all the requirements of Part 50 18Appendix E in order for NRC to approve the LAR. And, 19again, I think we've pointed out that that's actually 20a challenge to the exemption request which must be 21granted before the License Amendment Request is 22granted.23There are also some of the statements of 24Ms. Bornamin (phonetic) ***9:33:28*** talking about 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 27implementing procedures that the State has not had the 1opportunity to look at implementing procedures.

2They've identified no regulatory 3requirement that those implementing procedures be 4presented as part of the License Amendment Request 5review. So, we don't think that raises a material 6issue or a genuine dispute.

7There are certain statements by Mr.

8Leshinskie that, you know, for example, the License 9Amendment Request should reflect the arrangements 10between Entergy and Vermont regarding emergency 11notifications.

12But they haven't identified any deficiency 13in the application in that regard. The application, 14as we pointed out, describes the communication 15channels, et cetera and so they haven't raised a 16material issue or any admissible issue with adequate 17expert opinion support that identifies those portions 18of the application that they are actually disputing.

19JUDGE WARDWELL: Yes, Judge Wardwell.

20I'd like to go back to page seven of 21Vermont's reply where they mentioned those additional 22accident scenarios.

23To what degree were those accident 24scenarios evaluated as part of the exemption requests, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 28Mr. Kuyler?

1MR. KUYLER: Your Honor, there was a short 2discussion of some of those scenarios in the cover 3information for the exemption request as background 4information.

5But the fundamental question of the 6adequacy of the accident analysis must be evaluated by 7the NRC staff and found to be acceptable before they 8can relax the off site emergency planning requirements 9in the exemption request.

10JUDGE WARDWELL: Where is that codified or 11stipulated either in rules or in directions associated 12with the exemption itself? Is it worded that way in 13the exemption or is there a regulation that requires 14that or what would be the basis?

15MR. KUYLER: I don't think there's a 16single regulation that says that. But certainly in 17SECY-14-0125 in general, in order for the staff to 18exempt Entergy from the requirements for off site 19emergency planning that are in the regulations, they 20have -- I guess the regulatory requirement would be 2150.12. They have to find that the public health and 22safety are still adequately protected, et cetera.

23And so, the NRC cannot grant the 24exemptions until they find the accident analyses 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 29adequate.

1CHAIR RYERSON: Any other questions from 2other Board Members for Mr. Kuyler?

3JUDGE KENNEDY: I have nothing.

4CHAIR RYERSON: Judge Wardwell?

5JUDGE WARDWELL: I'm fine.

6CHAIR RYERSON: All right, thank you, Mr.

7Kuyler.8Let's turn -- will it be Ms. Young? Will 9you be speaking for the staff?

10MS. YOUNG: Yes, I will.

11CHAIR RYERSON: If you would like to 12address the same issue that we've been talking about, 13we would appreciate it.

14MS. YOUNG: Well, the staff generally 15agrees with statements by Entergy in terms of the 16scope of the contention which, at bottom, challenges 17whether the exemption was adequate.

18I note for the Board, in the SECY paper 19that has the chart address which regulatory provisions 20would not be no longer imposed on Entergy.

21For example, Appendix E Section 4.1, the 22requirement to have planning associated with hostile 23action would be removed.

24There was an analysis in terms of the time 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 30it would take adiabatic heating in the beyond design 1basis accident situation for to occur, the ten hour 2period that's reflected in draft staff guidance that 3Entergy relied on to submit its exemption request.

4That's referred to on page two of the enclosure.

5So, basically, there were analyses that 6considered what the credible beyond design basis 7accidents were. The License Amendment Application 8also referenced, I believe, the fuel handling accident 9analysis previously done by Entergy that was the 10subject of another amendment. And the staff pointed 11that out in its pleading. The page number I'll have 12to get for you later, yes, probably around page 34 of 13its pleading.

14So, basically, you have a contention which 15challenges the system of the exemption and the 16amendment proposed by Entergy basically seeks to 17implement the exemptions when granted and would revise 18in terms of any delta between what was approved in the 19exemption and what's requested in the License 20Amendment would advise the initiating condition for 21emergency -- only to remaining emergency action levels 22which are notification of unusual event and alert.

23And when looking at the contention, the 24information provided by the State of Vermont, however, 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 31their focus is so squarely on the adequacy of the 1exemption and analyses that support the wisdom of the 2exemption, that they have very little information, if 3any, that challenges those specific changes that go 4beyond the parameters of the exemption itself.

5CHAIR RYERSON: Okay. Thank you, Ms.

6Young.7Board Members, any questions for the 8staff?9JUDGE KENNEDY: This is Judge Kennedy. I 10have nothing to add.

11CHAIR RYERSON: Thank you.

12JUDGE WARDWELL: I have nothing.

13CHAIR RYERSON: All right. Mr. Kisicki, 14I think I promised you the last word, if you want it.

15I do think we pretty much understand the issues.

16I'll, you know, give you a minute or two if there's 17anything you would like to wrap up with.

18MR. KISICKI: Thank you, I would.

19This issue that surrounds the LAR in front 20of the Board right now is of vital importance to the 21citizens in Vermont.

22Of all of the issues that the State has 23been keeping tabs on with respect to the citizens, 24particularly those near the plant, a reduction in the 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 32emergency planning zone is one of -- is very 1significant to those people.

2At this point, the State is putting 3forward a contention as best it can because it seeks 4-- it has raised concerns regarding the adequacy of 5the LAR and to the extent that the LAR is related to 6an exemption request.

7What we're seeking is a hearing to discuss 8those concerns and have this Board make a 9determination with respect to those concerns on the 10merits, and that's very important.

11Now, the fact that the NRC staff and the 12Board is asking questions about what's contained in 13the exemption request shows two things.

14One, it disadvantages the State because 15there has been no processes that are forwarded to the 16State with respect to the exemption request.

17And, two, it shows that the LAR is linked 18to the exemption request triggering a hearing right 19and justified a hearing on both the exemption request 20and the LAR.

21If we look to the Private Fuel Storage 22Tank, and Judge Ryerson, I know that you've posited 23that it is distinguishable, I would have to 24respectfully disagree.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 33First off, the analysis that Private Fuel 1Storage laid out regarding what the basis for 2triggering a hearing right doesn't revolve around sort 3of the procedural mechanics in where the case was 4procedurally. It is clearly focused on one issue and 5one issue alone, that is whether or not a License 6Amendment Request is predicated on or linked to an 7exemption request.

8And it goes on to state that trying to use 9an exemption request and sort of packing in analysis 10with respect to safety concerns may cue an exemption 11request and not an LAR is just a way to try to 12circumvent a process with respect to the LAR.

13That's what's going on in this case and 14that's the discussion that the NRC staff having with 15this.16But finally, the last thing I would state 17is there is -- the State has raised a concern with 18respect to the exemption request and that is that the 19essentially the Commission failed to engaged in a NEPA 20analysis as required under Federal law. And that is 21a substantive issue with respect to the exemption 22request.23But what that means is at this point, the 24Board is in a position where it is not able to grant 25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 34a License Amendment Request because the Commission 1hasn't made a final determination as to the status of 2the exemption request.

3The LAR, therefore, is in violation of the 4regulatory scheme as currently put forward. And until 5there is some process that is put forward with respect 6to the exemption request or the Commission makes clear 7what its thinking on the exemption request, a 8discussion of contention two on the LAR in general is 9not ripe for review.

10Thank you.

11CHAIR RYERSON: Okay, thank you, Mr.

12Kisicki.13Again, Board Members, any further 14questions?

15Okay, all right. Well, that really 16concludes what we intended to cover today.

17Our job, the Board's job now is to take 18the information we have received both this morning and 19in your written pleadings and reach a decision.

20The Commission gives us some guidance on 21when that should be done. Essentially, no later than 2245 days from today which I think is May 26th or issue 23a Notice if we need more time. I don't think we will 24need more time than that.

25NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 35I don't know if anyone wishes to speculate 1as to the likelihood that the Commission will act on 2the petition in front of it before them, but we'll 3have to, obviously, if that were to occur, we would 4take that into account. Otherwise, we will just have 5to proceed as best we see fit.

6On behalf of the Board, I'd like to thank 7all the counsel today for your presentations. You 8gave very helpful and direct responses to the 9questions that we have.

10And, again, we are familiar with the 11briefs. These were simply the questions that we 12thought it would be helpful to have some oral argument 13on.14We're certainly going to consider the full 15range of your arguments as presented in your brief.

16Any questions or comments from Judge 17Wardwell? Judge Kennedy?

18JUDGE KENNEDY: Judge Kennedy has nothing.

19JUDGE WARDWELL: I have nothing more.

20CHAIR RYERSON: Okay. Well, thank you 21again and we stand adjourned.

22(Whereupon, the above-ent itled matter went 23off the record at 9:45 a.m.)

2425NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433