ML15104A384

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Transcript of Entergy Nuclear Operations, Vermont Yankee Nuclear Power Station, April 8, 2015, Pages 1-35
ML15104A384
Person / Time
Site: Vermont Yankee Entergy icon.png
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)
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Official Transcript of ProceedingsNUCLEAR REGULATORY COMMISSIONTitle:Entergy Nuclear OperationsVermont 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 1-35NEAL R. GROSS AND CO., INC.Court Reporters and Transcribers1323 Rhode Island Avenue, N.W.Washington, D.C. 20005(202) 234-4433 1UNITED STATES OF AMERICA1NUCLEAR REGULATORY COMMISSION2+ + + + +3ATOMIC SAFETY AND LICENSING BOARD PANEL4+ + + + +5HEARING6-------------------------x7In the Matter of:  : Docket No.8ENTERGY NUCLEAR VERMONT  : 50-271-LA-29YANKEE, LLC, AND ENTERGY : ASLBP No.10NUCLEAR OPERATIONS, INC. : 15-937-02-LA-BD0111(Vermont Yankee Nuclear  : 12Power Station) :13-------------------------x14Wednesday, April 8, 20151516Teleconference1718BEFORE:19PAUL S. RYERSON, Chair 20DR. MICHAEL F. KENNEDY, Administrative Judge21DR. RICHARD E. WARDWELL, Administrative Judge2223 24 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 2APPEARANCES:1On Behalf of Entergy2Raphael Kuyler, Esq.3Paul Bessette, Esq.4of:Morgan Lewis & Bockius, LLP51111 Pennsylvania Ave6Washington, DC 200047(202)739-514689Susan Raimo, Esq.10of:Entergy Services, Inc.11101 Constitution Ave., NW12Washington, DC 2000113(202)530-73001415On Behalf of the Nuclear Regulatory Commission16Mitzi Young, Esq.17Beth Mizuno, Esq.18Jeremy Wachutka, Esq.19Daniel Straus, Esq.20of:U.S. Nuclear Regulatory Commission21Office of the General Counsel22Mail Stop O-15D2123Washington, DC 20555-000124301-415-412625NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 3On Behalf of the State of Vermont1Aaron Kisicki, Esq.2Vermont Department of Public Service3112 State Street - Drawer 204Montpelier, VT 056205(802)828-378567 8

910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 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 S19:00 a.m.2CHAIR RYERSON: Good morning everyone and3welcome. We're here on the matter of an application4by Entergy Nuclear Vermont Yankee, LLC and Entergy5Nuclear Operations, Inc. to amend the license for6Vermont Yankee Nuclear Power Station.7I'm Judge Ryerson. Excuse me one second.8MR. PEPPERL: I think we need to join the9conference to get the listeners in as well.10Is the conference leader still on the11line?12OPERATOR: Yes, I'm here.13MR. PEPPERL: Have we joined in with the14listeners?15OPERATOR: I will join you now, one moment16please.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 on22the matter of an application by Entergy Nuclear23Vermont Yankee, LLC and Entergy Nuclear Operations,24Incorporated to amend the license for Vermont Yankee25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 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 the2Atomic Safety and Licensing Board that the NRC has3assigned this particular proceeding.4With me is Judge Kennedy. Dr. Kennedy is5a nuclear engineer and our third Board Member who is6also here with us is Dr. Wardwell who is trained as a7civil engineer and has a particular focus on8environmental geoscience.9Today's proceeding concerns a petition by10the State of Vermont for a hearing on Entergy's11License Amendment Application and to intervene. And12I should say that, in addition to being recorded by13the Court Reporter today, our telephone conference is14being made available in a listen only telephone mode15to members of the public and the press.16Before we take the appearances of counsel,17I'd like to summarize how the Board intends to proceed18this morning.19Our purpose is to hear arguments on20whether Vermont has submitted an admissible contention21so as to justify a hearing on Entergy's application. 22There doesn't appear to be any questions, but that the23State of Vermont has standing to petition for a24hearing. But the question is whether Vermont has put25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 6forward an admissible contention appropriate for a1hearing before the Board under the NRC's rules.2All of the Board Members, I can assure3you, have read the parties' legal memorandum, we've4studied them. We understand your arguments and,5therefore, I'm hopeful that today's call will be a6relatively short one. We really want to focus today7on questions the Board Members have.8And in particular, as we indicated in the9Scheduling Order for this call, we expect that most of10our questions will focus on whether Vermont's11contention number two si admissible regardless of12whether the Commission reconsiders Entergy's request13for an exemption from certain NRC regulations.14The Commission has already approved that15exemption request once and the Commission has before16it the State of Vermont's request for reconsideration17of that approval.18So, our argument -- the arguments that19we're most interested in today, frankly, are the20arguments that are, I think, are advanced at page21seven of Vermont's reply primarily. And that is, even22if the Commission were to reaffirm the granting of an23exemption in full, is it still an admissible24contention here?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 7Generally, I think when any Board Member1asks a question, we will try to direct it to a2particular party, but we're going to be fairly3informal here. If someone feels a need to comment on4a question and they haven't been specifically asked5for an answer, just let us know at the earliest6convenience or appropriate moment.7If would be helpful, of course, and8especially helpful to the Court Reporter, if everyone9remembers to identify themselves before they speak.10I am hopeful, I think the Board is hopeful11that we will finish within an hour or so. If it looks12like it might go much longer than that, we'll consider13taking a short break.14Any comments from the other Judges before15we 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 begin21then.22Let's start first with the State of23Vermont. Who will be the primary speaker at least for24the State of Vermont today?25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 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 of2Vermont.3CHAIR RYERSON: Okay, welcome, Mr.4Kisicki.5MR. KISICKI: Thank you.6CHAIR RYERSON: And for Entergy, is the7Mr. Kuyler?8MR. KUYLER: Yes, Your Honor, this is Ray9Kuyler for Entergy. Also in the room with me is my10colleague, Paul Bessette and Susan Raimo, Senior11Counsel at Entergy.12CHAIR RYERSON: Okay, and welcome to you.13And the NRC staff?14MS. MIZUNO: For the NRC staff, this is15Beth Mizuno. The primary speaker today will be Mitzi16Young. Accompanying us are Daniel Straus and Jeremy17Wachutka. We're also joined by a number of members of18the staff.19And, if I could, since we're doing notices20of appearance right now, or we're doing appearances,21I'd like to apologize, it was last night that we22discovered that, through inadvertent, we had failed to23file notices of appearances in this particular Vermont24Yankee proceeding. And we have remedied that now. My25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 9apologies.1CHAR RYERSON: We noticed a number of2filings early this morning. Thank you.3And welcome to all of you, as well, to the4call.5All right. Well, let's begin with6essentially the question we posed in the Order setting7up the call. We're not asking for formal opening8arguments, but essentially, this will be a chance to9say what you would like about that issue.10So, specifically, the question is, let's11assume for purposes of argument, that the Commission,12again, affirms the approval of the exemptions. And I13know the exemptions haven't technically issued yet,14but they Commission has approved them conceptually15once, I guess is an accurate way to describe where we16are.17There's a pending petition by the State in18front of the Commission and if the Commission simply19says we were right the first time or dismisses the20petition on procedural grounds or whatever, let's21assume that those exemptions are, in fact, allowed by22the NRC.23Is the contention still admissible? And24that's an argument that the State makes, as I said, I25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 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, I5also would like to apologize on behalf of the State6for some of its procedural missteps that we've made in7this proceeding so far.8In particular, obtaining certain9certifications regarding our Motion to Stay. We will10endeavor to do a better job going forward.11CHAIR RYERSON: No need to apologize, but12that is, in my view, an important requirement of the13rules. If the parties can work things out, often they14can't, but if they can work things out, that makes15life easier for everyone including, I think,16ultimately the parties.17But, in any event, yes, thank you for18mentioning that and please continue.19MR. KISICKI: Thank you.20In response to your question, the answer21is yes, contention two standing alone, I think, is22admissible even in the event that the Commission were23to reaffirm its approval of the NRC's staff24recommendation to the exemption request.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 11As outlined on page seven of our reply, we1have expert -- we have standings from our experts that2the analysis used to justify the LAR is deficient on3its face. It doesn't analyze credible beyond design4basis threats to include a possible action, use of5accelerants and fuel transfer accidents.6That alone, I think it would be left to7justify at a hearing on it was viewed under the8requirements of 50.54(q)(4).9But beyond that, the question itself goes10to a larger issue which needs to be addressed with11this contention two can't be properly evaluated at12this time because we don't know what the Commission is13going to rule. It's speculative at best to say that14the Commission will reaffirm its initial ruling.15One, the Commission may wind up siding16with the State and deciding that there is a hearing17right that's been triggered with respect to the18exemption request which very well may cause an19amendment of contention two that would change the20dynamics of the position with respect to contention21two.22Or the Commission may instruct the NRC23staff to treat contention two in a particular way.24We simply don't know at this time and I25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 12think that makes it very difficult for any party here1to say with any certainty whether or not contention2two isn't admissible. On its face right now it is and3any change to contention two that might be triggered4by a Commission ruling pursuant to the Motion for5Reconsideration could fundamentally change the6dynamics of the entire contention from the State's7perspective.8CHAIR RYERSON: Yes, Mr. Kisicki, let me9sort of run through the scenarios at least as I see10them and see whether you disagree.11It is possible that the Commission will12simply reject your Petition for Reconsideration in its13entirety on procedural grounds, on some other grounds,14we don't know, but simply reject it.15And if that's the case, then the question16that the Board has posed for you would seem to be17highly relevant to me and that is, suppose the18Commission does that? Is there still, in those19circumstances, an admissible contention two?20And that's what we would appreciate your21addressing in a little more detail than on page seven22of the reply.23Now, if the Commission does something else24which is a much broader category, it is certainly25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 13possible that the Commission has been known to do1this, but this Commission might explain how it would2expect the Board to proceed in these circumstances. 3I think that's very possible or the Board would have4to figure out how it's supposed to proceed or you5might want to amend or whatever.6But, I mean don't those seem to you to be7the options? If the Commission simply rejects your8Petition for Reconsideration and, in effect, has twice9approved the exemption that we're talking about or10exemptions, then isn't the critical question whether11you have asserted an admissible contention, even in12those circumstances?13And if the Commission does something else,14well, I'm sure that we have to probably kind of play15it by ear because we'll see what the Commission says16about that if the Commission does something else.17I mean do you disagree with that analysis18of the likely scenarios that are in front of us?19MR. KISICKI: I agree with you, Your20Honor, that in the event that if the Commission were21to reject our Motion for Reconsideration completely22out of hand in its entirety, we would be left with the23core question of whether or not contention two is24admissible as is today.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 14CHAIR RYERSON: Right.1MR. KISICKI: With that being said, I2think, again, the answer is yes, it certainly is.3Again, it goes to another procedurally4we're up in an upward position and we've been put in5that position because of Entergy's actions where they6failed to get the predicate exemption request prior to7filing the LAR.8Right now, what is undisputed by any party9is, if the Board were to grant the LAR today, it would10-- the LAR would be essentially illegal. It would be11in violation - it violates the regulations as they are12put out today. There is no exemptions that's been13granted at this point.14So with that said, under the requirements15at 50.54(q)(4), Entergy is required to show that any16reduction in emergency plans and emergency plan17safety, they have to identify the basis for concluding18that the revised emergency plan would meet the19requirements of 50.47(b) and Appendix E.20In this situation, the State's contention21points out that because the underlying safety analysis22fails to identify and analyze credible beyond design23basis threats including hostile actions, use of24accelerants and, in particular, fuel transfer25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 15accidents.1That satisfies all the admissibility2requirements justifying a hearing on this issue alone.3CHAIR RYERSON: And that, again, is4because what NRC regulatory requirement mandates that?5MR. KISICKI: 50.54(q)(4).6JUDGE WARDWELL: Mr. Kisicki, this is7Judge Wardwell.8Do you know if any of these particular9scenarios were evaluated as part of the exemption10request?11MR. KISICKI: My understanding is with12respect -- there was no analysis of a situation where13accelerants were used and particular hostile actions14including I think what our experts identified was a15lack of analysis of say and airplane strike.16I apologize, I'm not sure of the answer17with respect to fuel transfer accidents. But I think18the answer to that is also no, I don't think was19analyzed as part of the exemption request.20I'm more than happy to check on that and21get back to you with that question.22JUDGE WARDWELL: We'll let you know23whether we need that or not based on responses we24receive here from the other parties.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 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 more2to add in regards to whether contention two would be3admissible if the exemptions were granted?4MR. KISICKI: Again, I think on its face,5the State has put forth a contention that identified6with specificity deficiencies in their analysis that7is support by expert affidavits not only from the8Department of Public Affairs and State Nuclear became9aware but as well as representatives from the State's10Division of Emergency Management and Homeland Security11and the State Department of Health.12And that analysis and those affidavits13satisfy the admissibility requirements justified in14here.15CHAIR RYERSON: Mr. Kisicki, this is Judge16Ryerson.17The affidavits that you talk about are the18statements that were submitted? Are they sworn19affidavits or subject to penalty of perjury or are20they simply statements?21MR. KISICKI: They are sworn as far as I22can tell. We did not include an affidavit to that23effect but we can supply the Board with that if they24would like.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 17CHAIR RYERSON: Okay. It's not that I1missed something, there is no sworn declaration with2the statement at this point.3MR. KISICKI: No, there is not.4CHAIR RYERSON: But you are asserting that5you believe that these individuals would, in fact,6sign an affidavit incorporating what they wrote?7MR. KISICKI: Yes.8JUDGE WARDWELL: Under the basis of our9arguments -- this is Judge Wardwell again -- the line10of questioning that we're doing now, that is assuming11that the exemptions are maintained and as we move12forward, do you agree that challenging an exemption13that's been approved by the Commission is14impermissible similar to any other Commission ruling?15MR. KISICKI: I think in this instance,16there is a unique circumstance which may override that17general rule.18Here, as outlined in our reply and in our 19Motion for Reconsideration, the NRC has found that a20hearing right is triggered with respect to exemption21requests when the exemption request is related to the22LAR.23Here, Entergy is very clear on the face of24its LAR that the LAR is predicated exclusively on the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 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 which2is cited in the Motion for Reconsideration and the3State's reply, NRC was clear that the exemption can't4remove quote, a matter germane to a licensing5proceeding in consideration in a hearing assuming that6an interested party raises an admissible contention7thereof. To do otherwise would exclude critical8safety questions from licensing hearings merely on the9basis of an exemption label.10That's exactly what's occurred here. 11Entergy is seeking to remove scrutiny by this State12and by the Board of critical safety questions13contained in the exemption request simply by labeling14it an exemption.15JUDGE WARDWELL: Yes, but does not16contention two still need to meet the admissibility17criteria? And if, in fact, it hinges on challenging18the exemption, if that exemption has been ruled by the19Commission to be valid, then isn't that grounds for20dismissing that contention?21MR. KISICKI: It would be if the22contention itself was grounded on the exemption23request.24JUDGE WARDWELL: Right, that's all I'm25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 19saying. Under that scenario, you agree that it would1be, correct?2So, what we're left with is your abilities3to demonstrate that, in fact, you have other things in4contention to that are not related to those exemptions5in order to make that admissible, is not that correct6under the premise of where we're moving forward on7this argument today?8MR. KISICKI: Correct. And I think, again9--10JUDGE WARDWELL: Do you agree with that?11MR. KISICKI: Yes, I would insofar that12fundamentally, the State is seeking to have the Board13consider the exemption request.14More to the point, NRC precedent indicates15that 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 Judge19Ryerson.20If I understand the Private Fuel Storage21case --22MR. KISICKI: It's quite all right.23CHAIR RYERSON: Let me -- all right.24There are two things that distinguish that25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 20case I think.1One is that the Commission had not2approved the exemption. I mean we have a more, maybe3it's an unusual situation, I'm not sure exactly in4what circumstances the Commission must approve an5exemption. In some circumstances, the staff is6authorized to grant an exemption without explicit7Commission approval.8Here we have Commission approval and also,9the actual facts in Private Fuel Storage are kind of10very favorable to the petitioner, frankly. I mean in11that instance, there was an ongoing adjudication in12front of a Licensing Board.13The applicant's compliance with a14particular regulation was being challenged by the15petitioner and the staff said, well, we'll handle16that. We'll just grant an exemption from the17regulation, end of story.18And the Commission unanimously said no,19you can't do that. That's really not fair. That just20totally undercuts the whole adjudicatory process.21Now the ruling may go beyond that22particular circumstance but it's not clear to me23exactly where it does go, but it seems to me that, as24a practical matter, when the Commission approves an25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 21exemption and the Commission has the opportunity to1reconsider its approval of that exemption, then, you2know, is the Licensing Board supposed to be rethinking3what the Commission does as far as the exemption goes? 4It seems a little backwards to me. What's your5response to that?6MR. KISICKI: Well, the Board shouldn't be7reading much into the Commission's granting an8exemption because the Commission showed that there waw9little process behind their granting of it.10And this Motion for Reconsideration11outlines the Commission failed to, you know, engage in12a NEPA review as required under Federal law.13And, you know, the fact that an exemption14hasn't been issued by the NRC staff at this point is15evidence that it means the staff is considering the16things laid issues in front of the Commission that17have merit with respect to the exemption request.18CHAIR RYERSON: Mr. Kisicki, Judge Ryerson19again.20You have, in fact, made these same21arguments to the Commission which is currently22presumably considering them, is that not correct?23MR. KISICKI: Correct.24CHAIR RYERSON: Yes, and -- okay.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 22Well, we've gone on for almost half an1hour, do you have anything further at this point? We2may give you an opportunity at the end to say another3word or two, Mr. Kisicki.4MR. KISICKI: I appreciate that and I5think 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 also13mention we have a couple of technical folks from14Entergy in the room with me as well, like the NRC15staff.16In terms of commenting on the discussion17so far, I would like to point out that, you know,18under the Notice of Opportunity for Hearing and under19the regulations, the issue presented to the Board is20whether the proposed decommissioning emergency plan21and the AL scheme are adequate under the regulations22as exempted.23And that includes questions like, you24know, does the License Amendment Request provide for25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 23adequate equipment, facilities, organizational1staffing, whether actions to mitigate consequences are2identified, whether there are periodic drills and3exercises for on site emergency planning, et cetera. 4And I think we've briefed this in our answer.5So, contrary to what the State says on6page two of its reply, it's not that there's nothing7left for the NRC or the Board to consider in this8proceeding, there is quite a bit of substance that9could be challenged. But the State hasn't challenged10any of those things.11Almost the entirety of contention two, as12far as we can tell, challenges the exemption request13and not the License Amendment Request.14Even the statement of the contention15itself is that the exemption request and License16Amendment Request taken together are not a challenge17to the LAR alone.18So, when the State says that Entergy's19License Amendment Request, if approved along with the20predicate requested exemption fails to meet the21regulations.22So, our understanding is that the NRC will23not issue the exemption until it is satisfied that the24requirements that Commission has set forth in its25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 24precedent are met and that includes the various action1analyses that go into it.2So, all of the questions of whether spent3fuel accident evaluations are adequate, they need to4be shown to be adequate before the exemption is5granted. So, those are issues for the exemption6request, not the License Amendment Request.7And I think, you know, when we get to the8question that the Board asked this morning, I think9the State has effectively conceded this fundamental10issue.11On page nine of its original petition the12State says the LAR meets the requirements of Section1350.54(q)(4) only in the event Entergy is exempted from14material requirements of Part 50 Appendix E.15So, our --16CHAIR RYERSON: Mr. Kuyler, Judge Ryerson17here.18I sort of agree with you, they probably19meant to say if at all only if, but I think we're --20well, I see you make a point and we've noticed that as21well. But that's clearly, at least in my view, not22the same thing they're saying at page seven of their23reply brief.24So, I would not be inclined to estop them25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 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 by1th reason of this statement on page nine of the2petition.3But I do want to ask you to a little4directly address, you know, the argument that the5State has made that, put aside the exemption, as you6say the question, if we put aside the exemptions and7assume that the Commission will reaffirm, assume for8purposes of argument that the Commission totally9reaffirms the granting of those exemptions, then as10you say, the Board's job is to look at whether the11License Amendment complies with the NRC regulations as12exempted.13But that's Mr. Kisicki's argument on page14seven of the reply is that even if those exemptions15are, in effect, affirmed, there is still a violation16or a potential violation has been adequately made out17that 50.54(q)(4), I think is the cite, is not18satisfied.19And, you know, we have three declarations20from people who have certainly certain qualifications. 21We have the representation of counsel that they would,22in fact, sign an affidavit to the effect of their23statements.24And so, what's your response to that? I25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 26mean are those -- is there a much more slender1admissible contention here in contention two even2putting aside the exemptions?3MR. KUYLER: Well, just to preface this,4as I mentioned, Your Honor, the statement of the5contention itself ties the two things together. So,6we would have to hunt through the bases for the7contention to try to glean out something that is a8challenge to the License Amendment Request and not the9exemption request. And I don't think that Mr. Kisicki10has identified anything of that nature in this11morning.12You know, we did brief some of this13information in our answer starting at page 25. There14are statements in the expert declarations in certain15areas that do raise issues related to the LAR.16For example, the State claims that Entergy17must comply with all the requirements of Part 5018Appendix E in order for NRC to approve the LAR. And,19again, I think we've pointed out that that's actually20a challenge to the exemption request which must be21granted before the License Amendment Request is22granted.23There are also some of the statements of24Ms. Bornamin (phonetic) ***9:33:28*** talking about25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 27implementing procedures that the State has not had the1opportunity to look at implementing procedures.2They've identified no regulatory3requirement that those implementing procedures be4presented as part of the License Amendment Request5review. So, we don't think that raises a material6issue or a genuine dispute.7There are certain statements by Mr.8Leshinskie that, you know, for example, the License9Amendment Request should reflect the arrangements10between Entergy and Vermont regarding emergency11notifications.12But they haven't identified any deficiency13in the application in that regard. The application,14as we pointed out, describes the communication15channels, et cetera and so they haven't raised a16material issue or any admissible issue with adequate17expert opinion support that identifies those portions18of the application that they are actually disputing.19JUDGE WARDWELL: Yes, Judge Wardwell.20I'd like to go back to page seven of21Vermont's reply where they mentioned those additional22accident scenarios.23To what degree were those accident24scenarios evaluated as part of the exemption requests,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 28Mr. Kuyler?1MR. KUYLER: Your Honor, there was a short2discussion of some of those scenarios in the cover3information for the exemption request as background4information.5But the fundamental question of the6adequacy of the accident analysis must be evaluated by7the NRC staff and found to be acceptable before they8can relax the off site emergency planning requirements9in the exemption request.10JUDGE WARDWELL: Where is that codified or11stipulated either in rules or in directions associated12with the exemption itself? Is it worded that way in13the exemption or is there a regulation that requires14that or what would be the basis?15MR. KUYLER: I don't think there's a16single regulation that says that. But certainly in17SECY-14-0125 in general, in order for the staff to18exempt Entergy from the requirements for off site19emergency planning that are in the regulations, they20have -- I guess the regulatory requirement would be2150.12. They have to find that the public health and22safety are still adequately protected, et cetera.23And so, the NRC cannot grant the24exemptions until they find the accident analyses25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 29adequate.1CHAIR RYERSON: Any other questions from2other 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? Will9you be speaking for the staff?10MS. YOUNG: Yes, I will.11CHAIR RYERSON: If you would like to12address the same issue that we've been talking about,13we would appreciate it.14MS. YOUNG: Well, the staff generally15agrees with statements by Entergy in terms of the16scope of the contention which, at bottom, challenges17whether the exemption was adequate.18I note for the Board, in the SECY paper19that has the chart address which regulatory provisions20would not be no longer imposed on Entergy.21For example, Appendix E Section 4.1, the22requirement to have planning associated with hostile23action would be removed.24There was an analysis in terms of the time25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 30it would take adiabatic heating in the beyond design1basis accident situation for to occur, the ten hour2period that's reflected in draft staff guidance that3Entergy relied on to submit its exemption request. 4That's referred to on page two of the enclosure.5So, basically, there were analyses that6considered what the credible beyond design basis7accidents were. The License Amendment Application8also referenced, I believe, the fuel handling accident9analysis previously done by Entergy that was the10subject of another amendment. And the staff pointed11that out in its pleading. The page number I'll have12to get for you later, yes, probably around page 34 of13its pleading.14So, basically, you have a contention which15challenges the system of the exemption and the16amendment proposed by Entergy basically seeks to17implement the exemptions when granted and would revise18in terms of any delta between what was approved in the19exemption and what's requested in the License20Amendment would advise the initiating condition for21emergency -- only to remaining emergency action levels22which are notification of unusual event and alert.23And when looking at the contention, the24information provided by the State of Vermont, however,25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 31their focus is so squarely on the adequacy of the1exemption and analyses that support the wisdom of the2exemption, that they have very little information, if3any, that challenges those specific changes that go4beyond the parameters of the exemption itself.5CHAIR RYERSON: Okay. Thank you, Ms.6Young.7Board Members, any questions for the8staff?9JUDGE KENNEDY: This is Judge Kennedy. I10have 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's17anything you would like to wrap up with.18MR. KISICKI: Thank you, I would.19This issue that surrounds the LAR in front20of the Board right now is of vital importance to the21citizens in Vermont.22Of all of the issues that the State has23been keeping tabs on with respect to the citizens,24particularly those near the plant, a reduction in the25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 32emergency planning zone is one of -- is very1significant to those people.2At this point, the State is putting3forward a contention as best it can because it seeks4-- it has raised concerns regarding the adequacy of5the LAR and to the extent that the LAR is related to6an exemption request.7What we're seeking is a hearing to discuss8those concerns and have this Board make a9determination with respect to those concerns on the10merits, and that's very important.11Now, the fact that the NRC staff and the12Board is asking questions about what's contained in13the exemption request shows two things.14One, it disadvantages the State because15there has been no processes that are forwarded to the16State with respect to the exemption request.17And, two, it shows that the LAR is linked18to the exemption request triggering a hearing right19and justified a hearing on both the exemption request20and the LAR.21If we look to the Private Fuel Storage22Tank, and Judge Ryerson, I know that you've posited23that it is distinguishable, I would have to24respectfully disagree.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 33First off, the analysis that Private Fuel1Storage laid out regarding what the basis for2triggering a hearing right doesn't revolve around sort3of the procedural mechanics in where the case was4procedurally. It is clearly focused on one issue and5one issue alone, that is whether or not a License6Amendment Request is predicated on or linked to an7exemption request.8And it goes on to state that trying to use9an exemption request and sort of packing in analysis10with respect to safety concerns may cue an exemption11request and not an LAR is just a way to try to12circumvent a process with respect to the LAR.13That's what's going on in this case and14that's the discussion that the NRC staff having with15this.16But finally, the last thing I would state17is there is -- the State has raised a concern with18respect to the exemption request and that is that the19essentially the Commission failed to engaged in a NEPA20analysis as required under Federal law. And that is21a substantive issue with respect to the exemption22request.23But what that means is at this point, the24Board is in a position where it is not able to grant25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 34a License Amendment Request because the Commission1hasn't made a final determination as to the status of2the exemption request.3The LAR, therefore, is in violation of the4regulatory scheme as currently put forward. And until5there is some process that is put forward with respect6to the exemption request or the Commission makes clear7what its thinking on the exemption request, a8discussion of contention two on the LAR in general is9not ripe for review.10Thank you.11CHAIR RYERSON: Okay, thank you, Mr.12Kisicki.13Again, Board Members, any further14questions?15Okay, all right. Well, that really16concludes what we intended to cover today.17Our job, the Board's job now is to take18the information we have received both this morning and19in your written pleadings and reach a decision.20The Commission gives us some guidance on21when that should be done. Essentially, no later than2245 days from today which I think is May 26th or issue23a Notice if we need more time. I don't think we will24need more time than that.25NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 35I don't know if anyone wishes to speculate1as to the likelihood that the Commission will act on2the petition in front of it before them, but we'll3have to, obviously, if that were to occur, we would4take that into account. Otherwise, we will just have5to proceed as best we see fit.6On behalf of the Board, I'd like to thank7all the counsel today for your presentations. You8gave very helpful and direct responses to the9questions that we have.10And, again, we are familiar with the11briefs. These were simply the questions that we12thought it would be helpful to have some oral argument13on.14We're certainly going to consider the full15range of your arguments as presented in your brief.16Any questions or comments from Judge17Wardwell? Judge Kennedy?18JUDGE KENNEDY: Judge Kennedy has nothing.19JUDGE WARDWELL: I have nothing more.20CHAIR RYERSON: Okay. Well, thank you21again and we stand adjourned.22(Whereupon, the above-entitled matter went23off the record at 9:45 a.m.)2425NEAL R. GROSSCOURT REPORTERS AND TRANSCRIBERS1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433

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