ML101160416
| ML101160416 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/19/2010 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, NRC-189, RAS E-349 | |
| Download: ML101160416 (108) | |
Text
~pS C--3Y7 Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION DOCKETED USNRC April 19, 2010 (1:00pm)
Title:
Entergy Nuclear Operations OFFICE OF SECRETARY RULEMAKINGS AND Indian Point, Units 2 & 3 ADJUDICATIONS STAFF Pre-hearing Conference Docket Number: 50-247-LR and 50-286-LR ASLBP Number: 07-858-03-LR-BDO1 Location: (telephone conference)
Date: Monday, April 19, 2010 Work Order No.: NRC-189 Pages 795-900 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 E p PL Aý TE =dEýýX 63 I;_ bS-1CD2
795 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5
6 PRE-HEARING CONFERENCE 7 -- -------------------- x 8 IN THE MATTER OF:
9 Docket Nos. 50-247-LR 10 ENTERGY NUCLEAR and 50-286-LR 11 OPERATIONS, INC.
.12 (Indian Point Nuclear ASLBP No.
13 Generating Units 2 and 3) 07-858-03-LR-BDO1 14 - -------------------- x 15 Monday, April 19, 2010 16 Via teleconference 17 18 The above-entitled matter came on for prehearing 19 conference, pursuant to notice, at 1:00 p.m.
20 BEFORE:
21 LAWRENCE G. McDADE Chairman 22 KAYE D. LATHROP Administrative Judge 23 RICHARD E. WARDWELL Administrative Judge 24 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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796 1 APPEARANCES:
2 On Behalf of the NRC Staff:
3 SHERWIN E. TURK, ESQ.
4 BRIAN HARRIS, ESQ.
5 ANDREW STUYVENBERG, ESQ.
6 BRIAN NEWELL 7 U.S. Nuclear Regulatory Commission 8 Office of the General Counsel 9 Mail Stop 0-15D21 10 Washington, DC 20555-0001
-11 12 On Behalf of Entergy Nuclear Operations, Inc.:
13 WILLIAM C. DENNIS, ESQ.
14 Assistant General Counsel 15 Entergy Nuclear Operations, Inc.
16 440 Hamilton Avenue 17 White Plains, NY 106.01 18 19 PAUL M. BESSETTE, ESQ.
20 KATHRYN M. SUTTON, ESQ.
21 MARTIN J. O'NEILL, ESQ.
22 Morgan, Lewis & Bockius, LLP 23 1111 Pennsylvania Avenue, NW 24 Washington, DC 20004 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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797 1 On Behalf of the State of New York:
2 JOHN J. SIPOS, ESQ.
3 SUSAN TAYLOR, ESQ.
4 SUSAN VON REUSNER, ESQ.
5 Assistant Attorneys General 6 Office of the Attorney General of the State of 7 New York 8 The Capitol 9 State Street 10 Albany, NY 12224 11 12 ANTHONY Z. ROISMAN, ESQ.
13 National Legal Scholars Law Firm, P.C.
14 Stonewall Farm 15 84 East Thetford Road 16 Lyme, NH 03768 17 18 JOAN LEARY MATTHEWS, ESQ.
19 Senior Attorney for Special Projects 20 New York State Department of Environmental 21 Conservation 22 625 Broadway, 14th Floor 23 Albany, New York 12233 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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798 1 On Behalf of the State of Connecticut:
2 ROBERT D. SNOOK, ESQ.
3 Office of the Attorney General 4 State of Connecticut 5 55 Elm Street 6 P.O. Box 120 7 Hartford, CT 06141-0120 8
9 On Behalf of Hudson River Sloop Clearwater, 10 Inc.:
11 ROSS GOULD, ESQ., Board Member 12 MANNA JO GREENE, Environmental Action 13 Director 14 Hudson River Sloop Clearwater, Inc.
15 303 South.Broadway, Suite 222 16 Tarrytown, NY 10591 17 18 On Behalf of the Town of Cortlandt:
19 20 JESSICA STEINBERG, J.D.
21 Counsel for the Town of Cortlandt 22 Sive, Paget & Riesel, P.C.
23 460 Park Avenue 24 New York, NY 10022 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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799 1 On Behalf of Riverkeeper, Inc.:
2 DEBORAH BRANCATO, ESQ.
3 PHILLIP MUSEGAAS, ESQ.
4 Riverkeeper, Inc.
5 828 South Broadway 6 Tarrytown, NY 10591 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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800 1P ROC E E D I NG S 2 1:08 p.m.
3 CHAIRMAN McDADE: We are here on the 4 record in the matter of Entergy Nuclear Operations, 5 Indian Point Nuclear Generating Units 1 and 2. It's 6 Docket No. 50-0247-LR and 50-286-LR. We're here for 7 a telephone status conference and scheduling 8 conference.
9 What I would ask if for the pagties who 10 are present and I will go through each of the 11 participants to identify themselves for the record.
12 Also, when you do speak during the course 13 of this conference, I would ask that you identify 14 yourself by name to make sure that the court report is 15 able to properly identify the individual who has 16 spoken to attribute the statement to the right party.
17 First of all, from the NRC staff, who is 18 present?
19 MR. TURK: Your Honor, this is Sherwin 20 Turk. I'm with the Office of the General Counsel.
21 I'm joined by Brian Harris, my co-counsel and Brian 22 Newell, paralegal in our office.
23 Also with me are two members of the staff.
24 I'll turn to them if we need to. And Andrew 25 Stuyvenberg is on the phone from a distant location.
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801 1 CHAIRMAN McDADE: Representing Entergy 2 from Morgan Lewis.
3 MR. BESSETTE: Your Honor, this is Paul 4 Bessette from Morgan Lewis. Joining me is Kathryn 5 Sutton, Martin O'Neill and then we have William Dennis 6 from Entergy.
7 CHAIRMAN McDADE: From Riverkeeper?.
8 MS. BRANCATO: Your Honor, this is Deborah 9 Brancato from Riverkeeper. And I'm here with Phillip 10 Musegaas.
11 CHAIRMAN McDADE: From Clearwater?
12 MR. GOULD: Your Honor, you have Board 13 Member Ross Gould and another line manager green 14 manager director.
15 CHAIRMAN McDADE: From the State of New 16 York.
17 MR. SIPOS: Good afternoon, Judge McDade.
18 This is John Sipos, S-I-P-O-S. And with me in Albany 19 is Susan von Reusner and Susan Taylor, who colleagues 20 of mine who will be listening in as well.
21 I believe we may have Mr. Anthony Roisman 22 on the line as well. And we may also have Joan Leary 23 Matthews from the New York State Department of 24 Environmental Conversation on a separate line also.
25 MS. MATTHEWS: Yes, I'm on the line.
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802 1 CHAIRMAN McDADE: Okay, thank you. From 2 the State of Connecticut 3 MR. SNOOK: Yes, Your Honor. Attorney 4 General Robert Snook for the State of Connecticut.
5 CHAIRMAN McDADE: From the Town of 6 Cortlandt?
7 MS. STEINBERG: Your Honor, this is 8 Jessica Steinberg for the Town of Cortlandt.
9 CHAIRMAN McDADE: Do we have anyone from 10 Westchester County? Apparently not.
11 Anyone from the Village of -Buchanan?
12 Apparently not.
13 And we have counsel for the New York City 14 Economic Development Corporation? Apparently not.
15 Let's get started. Item No. 1 we have, as 16 I understand it the last was had as far as a projected 17 date where the publication of the Environmental Impact 18 Statement in this case is May 31st.
19 Mr. Turk, does that remain the current 20 estimate?
21 MR. TURK: No, Your Honor. The staff has 22 been working on putting out the Final EIS, but has 23 determined that due to the number of -- the very large 24 number of comments that have been received on the 25 draft that more time will be required before the FEIS NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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803 1 can come out.
2 We're currently looking at an extension of 3 several months on that.
4 CHAIRMAN McDADE: Okay, can you narrow it 5 down. Does several months mean three? Does it mean 6 12?
7 MR. TURK: It's on the order of three, 8 Your Honor. I think three would probably be a very 9 good estimate.
10 CHAIRMAN McDADE: Okay. What we're going 11 to-do is not necessarily establish any hard and fast 12 dates here today, but to go through some general 13 scheduling issues. All of those scheduling issues are 14 going to sort of have a jump off date of the issuance 15 of the Environmental Impact Statement. I think we can 16 get an idea of scheduling in any event.
17 First of all, before we get into specific 18 scheduling, are there any issues that any party has 19 with regard to the Section 2.236 mandatory 20 disclosures? Are there any issues that need to be 21 addressed by the Board with regard to those mandatory 22 disclosures?
23 MR. GOULD: Your Honor, this is Ross Gould 24 from Clearwater. We just had a question. We're 25 trying to work something out between the parties but NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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804 1 just if there was to a Motion to Compel that would be 2 required, how would that factor into your scheduling?
3 CHAIRMAN McDADE: Well, given what Mr.
4 Tuck said with regard to the delay in the issuance of 5 the Environmental Impact Statement, it probably 6 wouldn't. What we would urge you to do is to try to 7 work out any issues as quickly as possible and file 8 the Motion to Compel as quickly as possible. We don't 9 want to put a specific deadline on filing a motion 10 because the hope is that you will be able to work it 11 out. If it appears that you are not able to work it 12 out, then file a motion once you've reached that 13 conclusion.
14 MR. GOULD: And Your Honor, if I may, just 15 how much effort at working it out -- I'm looking for 16 a little guidance in how much we need to be trying, 17 how far we need to push to work things out before 18 coming to the Board in your preference?
19 CHAIRMAN McDADE: I think it's always 20 going to be easier if you can work it out. I mean 21 it's a situation where from your standpoint, talking 22 to either Mr. Kirk or Mr. Bessette is probably going 23 to be a lot quicker and easier than-filing a motion 24 with us and then having it fully briefed.
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805 1 there's an impasse, there's just simply a disagreement 2 between you and a party from whom you are seeking 3 information as to whether or not that information is 4 properly within the scope of this proceeding, and you 5 can't reach a resolution, then I would urge you to 6 come to us as soon as possible.
7 MR. GOULD: Okay. Then at this point I'll 8 just leave it at that and I'll continue to work with 9 the parties and see if we can come up with a 10 resolution.
11 CHAIRMAN McDADE: The next thing that we 12 wanted to cover has to do with Motions for Summary 13 Disposition and setting a deadline for the motions for 14 summary disposition. What we want to avoid is setting 15 a situation where as people are getting ready for the 16 hearing, Motions for Summary Disposition are coming in 17 and all of the other parties and the Board are forced 18 to deal with them at the same time they're preparing 19 for the hearing, preparing -- either drafting the 20 direct testimony or reading the direct testimony, 21 depending on which participant we're talking about.
22 We would think, given the fact that 23 there's going to be somewhat of a delay in filing the 24 Environmental Impact Statement, that setting a motion 25 deadline for Motions for Summary Disposition based on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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806 1 any of the matters that are currently before the 2 Board, in other words not things that are going to be 3 raised in the Environmental Impact Statement would be 4 appropriate., I would think that some time probably in 5 June would be appropriate, probably the early part of 6 June.
7 From the standpoint of Entergy, do you 8 have any comments on that?
9 MR. BESSETTE: Your Honor, we have no 10 concerns with that due date, although Entergy has two 11 submissions to the NRC staff that it has planned that 12 may impact that schedule. I don't know if you want to 13 talk about them now or wait for another opportunity.
14 CHAIRMAN McDADE: Is this Mr. O'Neill 15 speaking?
16 MR. BESSETTE: This is Paul Bessette.
17 CHAIRMAN McDADE: Mr. Bessette, what are 18 those matters?
19 MR. BESSETTE: Your Honor, in response to 20 two technical contentions that have been admitted by 21 the Board, in an effort to facilitate resolution of 22 those issues, Entergy plans on making two submissions 23 in the next severalmonths. The first one in response 24 to New York State 25, it plans on -- it is preparing 25 an aging management program associated with reactor NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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807 1 vessel internals. That was one of the issues raised 2 that there wasn't sufficient details, so we're 3 preparing an aging management program and we hope to 4 have that submitted to the NRC staff in June.
5 Also, in response to New York State 26 and 6 26A, where there was a challenge to the fact that the 7 fatigue calculations were not submitted to the Board, 8 we have been in the process of working with the vendor 9 to prepare those calculations to submit to the NRC to 10 facilitate that issue. And we hope to haX*i those 11 calculations into the NRC by July.
12 Because we believe we are sort of filling 13 in some blanks on those issues, we may -- we would 14 consider, perhaps, a Motion to Dismiss or Motion for 15 Summary Disposition, as appropriate, partial or full, 16 on those issues.
17 So with respect to any other safety 18 contentions, Your Honor, the June date is perfectly 19 acceptable, but because these two, submissions would 20 not have been entirely completed by then, we would 21 seek a bit of leeway on those two.
22 CHAIRMAN McDADE: Mr. Turk, am I correct 23 that September, early September would be at this point 24 the earliest estimate for the issuance of the 25 Environmental Impact Statement?
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808 1 MR. TURK: I would think that the latter 2 part of August is a possibility, Your Honor; 3 CHAIRMAN McDADE: Okay, after these are 4 submitted to the NRC, having to do with New York 25 5 and 26, I assume the position would be that you would 6 view 'that those submissions would render the ending 7 contentions moot and would then file a Motion for 8 Summary Disposition. How much time would you need?
9 Would 30 days after the date that those are submitted 10 be sufficient for filing a Motion for Summary 11 Disposition?
12 MR. BESSETTE: Yes, Your Honor. We 13 believe that would be sufficient.
14 CHAIRMAN McDADE: Okay, because what I 15 want to do is to make those dates come in so that New 16 York would have an opportunity to read them and 17 respond to them before the Environmental Impact 18 "Statemt issues so that they would not be trying to 19 respond to those Motions for Summary Disposition at 20 the same time they're trying to analyze the 21 Environmental Impact Statement and make a 22 determination as to whether or not any new or amended 23 contentions are appropriate. So taking that into 24 consideration, we will try to set a schedule that will 25 take that into consideration and meet those concerns.
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809 1 MR. SIPOS: Thank you, Your Honor. This 2 is John Sipos for New York State.
3 CHAIRMAN McDADE: Okay, now after the 4 Environmental Impact Statement is filed, the next 5 issue would be filing motions for -- to file new or 6 amended contentions.
7 From the standpoint of first of all the 8 Intervenors, I will just sort of go through those.
9 How much time do you think would be needed? New York?
10 MR. SIPOS: Judge, this is Assistant 11 Attorney General John Sipos. .I would think 3.0 days 12 would be as close as we could cut it. It sounds like 13 the staff is doing fairly extensive additional work on 14 the FEIS. Obviously, no one can predict how that will 15 come out. But given -- in light of that, I would 16 suggest 30 days.
17 CHAIRMAN McDADE: From the standpoint of 18 Riverkeeper, do you think that would be adequate?
19 MS. BRANCATO: Yes, Your Honor. We agree 20 with New York.
21 CHAIRMAN McDADE: Clearwater?
22 MR. GOULD: Your Honor, this is Ross 23 Gould. Thirty days would be the shortest time period.
24 As you know, we have very little amount of resources 25 as a small public interest group.
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810 1 CHAIRMAN McDADE: Okay. Connecticut?
2 MR. SNOOK: This is Bob Snook for 3 Connecticut. Yes, we can work with 30 days.
4 CHAIRMAN McDADE: And Cortlandt?
5 MS. STEINBERG: This is Jessica Steinberg.
6 Thirty days would be sufficient.
7 CHAIRMAN McDADE: If we then went after 8 that, would 20 days for reply, 10 days for response, 9 then probably 30.days for the Board to rule on the 10 admissibility of any new or amended contentions, would 11 then be look-ing at a period of time after that for the 12 filing of the Statement of Position of the parties.
13 And the first question that I would ask of 14 the staff is it your view of the Statements of 15 Position should be filed together or seriatim. In 16 other words, we have the Intervenors, they're the ones 17 who have brought the various contentions. Should they 18 be filing their Statements of Position first, to then 19 be responded to by the Applicant and then the staff?
20 What's the staff's position on that?
21 MR. TURK: That's an interesting question 22 that I have not considered until now. I don't have a 23 position on that yet, Your Honor.
24 CHAIRMAN McDADE: Does Entergy?
25 MR. BESSETTE: Your Honor, we would prefer NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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811 1 simultaneously filings.
2 CHAIRMAN McDADE: Okay, it seems like 3 actually having it seriatim would give you the benefit 4 of being able to respond to what the State's position 5 is. I don't see there would be any harm to the State 6 by having them filed simultaneously.
7 What's New York's position on that?
8 MR. SIPOS: I guess along with Mr. Turk, 9 I hadn't considered that. This would be a staggered 10 filing, is that what Your Honor is proposing would be 11 proponent of each contention going first and then 12 essentially the respondents going second? Do I 13 understand that correctly?
14 CHAIRMAN McDADE: Except for the word 15 proposing. I'm not proposing it. I'm just raising it 16 as a possibility and asking to get the input from the 17 parties on whether or not they think that advisable or 18 whether or not they think simultaneous would be for 19 the Statement of Position would be more appropriate.
20 MR. SIPOS: And Judge, if I could ask a 21 further question and this is John Sipos again for the 22 record, would that be in any way tied the filing of 23 pre-filed testimony?
24 CHAIRMAN McDADE: Well, that's the next 25 question. And given the fact that two of the major NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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812 1 participants in this said they really haven't thought 2 about the issue and given the fact that we have a 3 three-month delay on the issue of the Environmental A4 Impact Statement, it may be appropriate just to raise 5 it right now and then to ask you all to submit within 6 a reasonable period of time, say within ten days after 7 this status conference, what your views are on that.
8 The next had to do with the submission of 9 written direct testimony and the question is whether 10 or not the submission of written direct testimony 11 should be at the same time as the submission of the 12 Statement of Positionh and again, whether the written 13 direct testimony should be done at one time or whether 14 or not it should be staggered, in other words the 15 proponent of the contentions submit their written 16 direct testimony, exhibits, along with that and then 17 to allow the party opposing the contention a period of 18 time within which to submit their testimony which 19 would inherently be in rebuttal to it.
20 The question is whether or not having 21 Entergy or the staff submit their written direct 22 testimony is helpful when they haven't seen what the 23 proponents of the contention are going to submit. It 24 may well be that they will agree with much, if not 25 all, of what the proponent says and the question do we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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813 1 want to have two ships passing in the night where most 2 of the direct testimony is parallel which is simply 3 have the direct testimony and the party opposing the 4 contention focus effectively being rebuttal on it.
5 So what I would ask you to do is to think 6 about that and also to give us your views with regard 7 to the amount of time that would be appropriate 8 between them, again, with the understanding that most 9 of this would already be done and it would just be a 10 question of tailoring it, based on the submissions of 11 position and the direct testimony and exhibits that 12 have already been submitted.
13 We would then need a period of time for 14 the preparation of questions for cross examination as 15 well and a question of how much time would be 16 appropriate for that in this scenario.
17 Before we move on, are there any of the 18 participants here that wish to weigh in on that at 19 this point or just simply reserve and submit something 20 in writing within the next ten days?
21 Entergy?
22 MR. BESSETTE: Your Honor, we would just 23 note that we would work with any process parties agree 24 to and I was perhaps a bit confused on the Statements 25 of Position and the written direct testimony, so we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N:W.
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814 1 have nothing further. We'd be glad to provide our 2 comments in writing. And we'd be glad to work and 3 coordinate with the parties including the NRC on that.
4 CHAIRMAN McDADE: Okay. Mr. Turk, do you 5 have anything further?
6 MR. TURK: I do and I would just note that 7 typically the way that I prepare a Statement of 8 Position is really as we develop the direct testimony.
9 We'll then take highlights from the testimony and make 10 that the Statement of Position. So I think it's 11 helpful, for us and for all parties to do a 12 simultaneous filing of our Statement of Position and 13 direct testimony. A different question as to whether 14 the parties should file in staggered fashion or 15 simultaneously.
16 And now that we've talked a little bit, I 17 tend to favor the idea of the Intervenor files first, 18 so that all parties know what they have to address.
19 And if that's agreeable to everyone else, I think 20 that's the way to go.
21 MR. SIPOS: Judge, this is John Sipos for 22 the State. I wonder if another alternative, putting 23 aside for the moment the issue of staggered versus 24 simultaneous filing of testimony, would be to consider 25 having the Statement of Position be filed some time NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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815 1 after the testimony so that it could perhaps be more 2 of a synthesis and perhaps more useful for all 3 concerned, sort of the opposite or' the opposite 4 sequence of what was initially quoted by Your Honor.
5 CHAIRMAN McDADE: Well, let me just sort 6 of raise some something and speaking from my own 7 standpoint, part of it is what's going to be most 8 useful to the Board. I know from my standpoint 9 reading the Statement of Position tends to put into 10 focus the written direct testimony. Instead of 11 getting it piece by piece, you're able to sort of get 12 an overview in the submission of the Statement of 13 Position and then read through the direct testimony.
14 Again, we're not going to be deciding 15 anything here today. I just throw that out to allow 16 you all to address that, say within ten days as we get 17 ready. And actually, I sit here and say ten days.
18 Why don't we make it 14 since I'm not going to be here 19 or is Judge Wardwell next week. So you might as well 20 take a full 14 days since we're not going to be here 21 to read it until the end of the following week in any 22 event.
23 MR. BESSETTE: Your Honor, this is Paul 24 Bessette. I don't know if it's appropriate to raise 25 it at this point, but it's really responding to your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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816 1 question No. 7, but due to the number of contentions 2 and the delay in the issuance of the FSEIS, we were 3 wondering if it would be appropriate if we could raise 4 the issue of perhaps going to hearing on several of 5 the safety contentions earlier rather than going into 6 one hearing on 13 contentions.
7 I think the issues, Your Honor, is raising 8 that it will be a challenge for all the parties under 9 any normal circumstances for a hearing of this 10 duration. And I think there are *certain safety 11 contentions that really there's nothing further being 12 done. There's no filings. The SER is out and I was 13 just wondering if the Board would be open to having a 14 - starting part of the hearing earlier rather than 15 kicking it off based on the FSEIS.
16 CHAIRMAN McDADE: Well, at an earlier 17 status conference,. the Board raised that as a 18 possibility as to whether or not the safety and 19 environmental contentions, that part of the hearing, 20 could be bifurcated. At that point, it was the view*
21 of the parties it seemed like a consensus that that 22 would not be appropriate, that it would be -- make it 23 more difficult rather than less difficult tb do that.
24 What I would suggest though is within that 25 14-day period of time, if there are specific NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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817 1 contentions that you believe would be appropriate to 2 go forward with prior to the issuance of the 3 Environmental Impact Statement, if you could identify 4 those and then we could leave a period of time, say 5 another 14 days for anyone else to respond to see 6 whether or not they believe that would be helpful or 7 otherwise.
8 MR. BESSETTE: Thank you, Your Honor.
9 CHAIRMAN McDADE: Okay, the next thing 10 that we wanted to raise -- if you could hold on for 11 just a moment. I want to confer.
12 (Whereupon, the above-entitled matter went 13 off the record at 1:31 p.m. and resumed at 1:34 p.m.)
14 CHAIRMAN McDADE: This is Judge McDade 15 again. There was one other thing I wanted to raise 16 and that had to do with establishing a deadline for 17 any motions to proceed pursuant to subpart G as 18 opposed to subpart L.
19 That being the case, it seems like it 20 would necessarily come after the receipt of the 21 written direct testimony until the parties know who 22 the other parties' witnesses are going to be. It 23 would seem to be difficult for raising that kind of a 24 motion and just to seek input on how much time after 25 the submission of the written direct testimony would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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818 1 be appropriate to file that kind of a motion.
2 What I'd like to raise at this point is 3 just to sort of go back on something that we've said 4 a little bit ago. We had talked about submitting 5 various things in writing, then 14 days of today, and 6 just sort of run through and for you all to be 7 thinking about this. What I don't want to do is just 8 create busy work and having people write things out 9 just for the sake of writing things out. And the 10 question is whether or not it would make more sense instead of doing this by written submissions of just 12 simply setting another telephone conference and having 13 you express your positions orally.
14 What I'm trying to do is one, allow you 15 the opportunity to have the input, the same point, not 16 force to do things that are going to just simply take 17 up more time than otherwise.
18 Mr. Turk, do you have a view as to whether 19 or not it would be better to do this in writing or 20 just simply to have another telephone status 21 conference? What's the view of the staff?
22 MR. TURK: I think the parties should try 23 to talk among themselves and see if we can work out a 24 common approach and maybe file a status report with 25 the Board perhaps a week from now and let you know NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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819 1 whether we feel we can reach agreement or not. And 2 maybe at that point go to a telephone conference call 3 to resolve any disagreements.
4 CHAIRMAN McDADE: Well, I mean part of 5 that, even if the parties agree among themselves, it 6 isn't necessarily true that the Board is going to 7 agree with the same time schedule. Certainly, if 8 there were joint submission and joint recommendations 9 that would go a long way to convincing us to acquiesce 10 in those proposals, but it wouldn't necessarily be 11 simply rubber stamped either.
12 At this point in time, again, the question 13 -- what I don't want to do is just have you spend a 14 lot of time writing things out if it could be handled 15 orally quicker. Based on what Mr. Turk just said, 16 what it may be is if you all could get together and 17 among yourselves decide, get back to us within a week 18 just to simply let us know and perhaps have the NRC 19 staff act as the spokesperson as to whether or not 20 there is a consensus. If people want to do something 21 in writing, we're certainly not going to.say no, don't 22 do it in writing, but at the same period of time if 23 there's a consensus that it could be handled just as 24 well, more efficiently, orally in another status 25 conference, we would be willing to entertain that as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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820 1 well.
2 Mr. Bessette, what's the view of Entergy 3 on that?
4 MR. BESSETTE: We would certainly concur 5 with that, Your Honor. And I just want to make sure 6 I'm clear. We're talking about a proposed schedule 7 basically working from the EIS and based on your 8 milestones for new contentions. It's after a Board 9 ruling on any new contentions and working its way 10 through hearing, proposed schedule milestones. Is 11 that correct?
12 CHAIRMAN McDADE: Yes. And then also the 13 issue that you raise as to whether or not there are 14 any of the contentions currently pending that it would 15 be appropriate to bifurcate, in other words, to try to 16 schedule a hearing on those contentions prior to the 17 time that the Environmental Impact Statement is issued 18 so that we could resolve those rather than waiting 19 until then. Again, when we raised it last time, there 20 seemed to be a consensus against that. If that 21 consensus is changed and again, entertain -- we don't 22 necessarily need a consensus, but willing to entertain 23 the views of all of the participants. It may well be 24 that Entergy feels that's appropriate, but New York, 25 Connecticut, Clearwater, Riverkeeper don't. So it's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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821 1 just an opportunity to hear from the parties.
2 And again, the issue is at this point 3 whether or not you all would feel more comfortable 4 just doing it orally or whether or not you'd feel more 5 comfortable submitting something in writing to the 6 Board. And the suggestion, as I understood it from 7 Mr. Turk was to let you all think about it and get 8 back to us in a week and at that point in time if you 9 wanted us to schedule another telephone status 10 conference, we would then go about setting that 11 telephone status conference. If not, just to go ahead 12 and issue whatever you had in writing in a two-week 13 period of time.
14 MR. SIPOS: Judge, this is John Sipos from 15 the State of New York. We're certainly not opposed to 16 New York talking things out and seeing if we can reach 17 consensus. I'm a little concerned that over the next 18 seven days that that just given the intricacies of my 19 schedule over that time that that may not be enough.
20 I think sometimes it's helpful for the parties to 21 think about positions that have been expressed in 22 these conferences with NRC and Entergy.
23-. I'm just unavailable next Monday through 24 a previous commitment. I'm wondering if it might be 25 possible to have until the 4th or the 5th to see if we
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822 1 can work things out amongst the parties.
.2 CHAIRMAN McDADE: At this point it's a 3 relatively simple question. It's just do you want to 4 do this in writing or do you want to do it orally?
5 And--
6 MR. SIPOS: I'm sorry, Judge.
7 MR. TURK: Your Honor, this is Sherwin 8 Turk.
9 CHAIRMAN McDADE: Yes.
10 MR. TURK: I think it's a great idea that 11 the parties talk amongst themselves. Maybe we can 12 come up with a joint written proposal. But I would 13 say at this point may be it's better that we just 14 submit in writing, jointly, if possible., otherwise 15 separately. And then based on that you could 16 determine whether there's a need for a conference call 17 or what the issues should be to address in that 18 conference call.
19 I would go with your original suggestion 20 which is approximately in two weeks, by May 3rd-,the 21 parties submit either jointly or separately their 22 positions.
23 CHAIRMAN McDADE: Does that work for New 24 York?
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823 1 helpful, Judge.
2 CHAIRMAN McDADE: And again, given the 3 fact that the Environmental Impact Statement is 4 delayed a bit, a day or so one way or the other isn't 5 going to make any difference. Certainly, the 6 difference between the 3rd and the 4th of May at this 7 point is de minimis. At least from our standpoint I 8 can understand from your scheduling standpoint that it 9 may not be.
10 Mr. Bessette?
11 MR. BESSETTE: Either day is fine with us, 12 Your Honor.
13 CHAIRMAN McDADE: Okay. From Riverkeeper, 14 any views on this?
15 MS. BRANCATO: We would be amenable to the 16 written submissions, Your Honor. This is Deborah 17 Brancato.
18 CHAIRMAN McDADE: Okay, and from 19 Clearwater?
20 MR. GOULD: This is Ross Gould, Your 21 Honor. The written submission is good with us.
22 CHAIRMAN McDADE: And Cortlandt?
23 MS. STEiNBERG: This is Jessica Steinberg, 24 Your Honor, the written submission is fine with us.
25 CHAIRMAN McDADE: And Connecticut?
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824 1 MR. SNOOK: This is Bob Snook for 2 Connecticut. We can work with the written submission 3 as well.
4 CHAIRMAN McDADE: Have I missed anybody?
5 MR. TURK: Your Honor, this is Sherwin 6 Turk.
7 CHAIRMAN McDADE: Yes.
8 MR. TURK: In terms of the parties 9 conferring, I would suggest that the only parties that 10 need to confer are those who have lead responsibility 11 for prosecuting or defending on a contention. So that 12 would be New York State, Riverkeeper, Clearwater, 13 Entergy, and the staff.
14 I don't believe Connecticut or Cortlandt 15 or others have any lead responsibility on litigation 16 on the contention. So I would ask whoever is involved 17 with as lead on a contention on the Intervenors' side 18 that they coordinate with any other Intervenors or 19 state governments that may have an interest.
20 I don't think it will be as easy to work 21 with a larger number of participants, especially if 22 they don't have lead responsibility.
23 CHAIRMAN McDADE: I mean we're not talking 24 about that many additional people and I think probably 25 they are going to tend to defer to the parties that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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825 1 have been more involved, but at this point in time I'm 2 not going to exclude any of the other entities, 3 Connecticut, Cortlandt from this. Again, they can 4 simply say that whatever you guys work out is fine or 5 they can have an opportunity to put in -- I mean all 6 they initially have to say is look, we'd rather do 7 this orally. If you're going to do it as a joint 8 -submission, in writing, this is what we would like to 9 have in. If it turns out that's not the consensus of 10 the other participants, then they can add that as an 11 addendum.
12 I'm willing to get their input. They may, 13 given the issues that we have, may or may not wish to 14 chime in, but I'm not going to exclude them from it at 15 this point in time. And we'll use the date of May 16 4th.
17 What I would like to do at this point in 18 time 19 ADMIN. JUDGE WARDWELL: Excuse me, this is 20 Judge Wardwell. Would everyone clarify what we're 21 getting on May 4th because I'm getting a little 22 confused here.
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826 1 there are going to be written submissions on a 2 suggested scheduling order talking about the various 3 items we just have postponed discussion of. Is that 4 a fair assessment of what I just heard?
5 CHAIRMAN McDADE: And this is Judge 6 McDade. In addition to that, any input with regard to 7 potential contentions that could be taken care of 8 prior to the issuance of the Environmental Impact 9 Statement.
10 ADMIN. JUDGE WARDWELL: Yes.
11- CHAIRMAN McDADE: That's your 12 understanding Mr. Turk?
.13 MR. TURK: Yes, Your Honor.
14 CHAIRMAN McDADE: Mr. Bessette?
15 MR. BESSETTE: Yes, Your Honor.
16 CHAIRMAN McDADE: Mr. Sipos?
17 MR. SIPOS: Yes, just with reference to 18 the phrase "taken care of" is that for summary 19 disposition or also hearing?
20 CHAIRMAN McDADE: I mean at this point in 21 time, we had already talked about putting a deadline 22 for Motions for Summary Disposition for anything not 23 related to the Environmental Impact Statement, so if 24 we were able to move ahead for a hearing on these, 25 there probably would be no reason to have any Motions NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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827 1 for Summary Disposition.
2 I have to go back to two that you raised.
3 I'm assuming are not ones that Entergy would be 4 looking to go ahead to on a hearing prior to the 5 Environmental Impact Statement, 25 and 26. Am I 6 correct?
7 MR. BESSETTE: Yes, Your Honor. This is 8 Paul Bessette.
9 CHAIRMAN McDADE: So we shouldn't have an 10 issue with regard to that. What we're looking for are 11 those contentions, we can move ahead to a hearing 12 expeditiously rather than waiting.
13 MR. TURK: Your Honor, this is Sherwin 14 Turk. There are a total of seven, consolidated or 15 individual basic contentions. Two of them would be 16 the submit of new information that Entergy plans to 17 submit. So that leaves five. And if I can enumerate 18 them maybe that will help us go forward today 19 understanding which ones we might be able to address 20 before the FEIS comes out.
21 They are New York 5 which is the AMP for 22 buried pipes and tanks. New York 6 and 7, medium and 23 low-voltage cables, the AMP. New York 8, the 24 electrical transformers AMP. New York 24, the AMP for 25 containment structures. And Riverkeeper TC2, the AMP NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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828 1 for components subject to full-accelerated corrosion.
2 On all five of those, the staff's work has 3 completed the SER, addresses those issues and the 4 staff would be prepared to go forward on those before 5 the FEIS issues.
6 CHAIRMAN McDADE: Okay, and --
7 MR. TURK: But, I won't say that we'd be 8 able to get to hearing on them, but if the whole 9 process of filing testimony and possibly going to 10 hearing before the FEIS comes out is a good option.
11 Maybe going to hearing shortly after the FEIS comes 12 out. We have to work out the details on the schedule.
13 CHAIRMAN McDADE: So those -- again, by 14 the 4th to get the input of all of the other 15 participants, I don't want to put you in a box at this 16 point without going back and taking a look at those 17 contentions and saying yes, we're.ready to go ahead to 18 a hearing on those contentions before the 19 Environmental Impact Statement. I don't want you to 20 have to just do that off the top of your head. I do 21 appreciate, Mr. Turk, your going through those 5, 6, 22 7, 8 and 24 and then -- what was the last one by 23 Riverkeeper?
24 MR. TURK: Technical Contention 2, TC 2.
25 CHAIRMAN McDADE: Okay, thank you.
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829 1 MR. BESSETTE: And Your Honor, this is 2 Paul Bessette. We agree that those five of the 3 potential safety issues, some or all of which would go 4 forward and again, our goal is to figure out a way to 5 facilitate this hearing so that the parties perhaps 6 can group their efforts rather than working 7 simultaneously on 14 issues.
8 CHAIRMAN McDADE: I understand.
9 MR. BESSETTE: Thank you.
10 CHAIRMAN McDADE: And then we would ask 11 again by the 4th for the other participants, New York, 12 Riverkeeper, Clearwater, Connecticut, and Cortlandt to 13 indicate to us whether or not they think that is a 14 viable option and that would then be part of our 1.5 schedule.
16 ADMIN. JUDGE WARDWELL: And then just so 17 I'm clear, this is Judge Wardwell again, I sometimes 18 need extra clarity, that -once we receive those 19 submittals on the 4th, there would be no other 20 responses in regards to what was written on that, that 21 we will look them over and if warranted and feel 22 necessary, then we might either ask for responses or 23 get everyone on the phone to discuss some of the 24 intricacies of the various responses we get back.
25 Is that everyone's understanding?
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830 1 MR. TURK: This is Sherwin Turk. Assuming 2 that the parties air all of their views amongst 3 themselves before we file, so that there are no 4 surprises, then I don't see why we'd have to file 5 written responses. But if there's something that is 6 unexpected and any individual parties filing them, 7 somebody might want to respond, I can't foreclose that 8 possibility. But hopefully, we'll all know each 9 others' -- all the parties will know each others' 10 positions before we make our filings on May 4th. So 11 there should not be a need to respond.
12 CHAIRMAN McDADE: Okay, at this point that 13 should basically take care of what we have with regard 14 to scheduling. There are some questions with regard 15 to the new or amended contentions filed by New York.
16 The first question that I would have to the State of 17 New York, one of the cases cited by the staff and the 18 Applicant in response to your motion was the Pilgrim 19 that was decided by the Commission on March 26, CLI 20 10-11. Specifically, on page 7, note 26 of that 21 decision, the Commission seems to indicate a view as 22 to limitations of SAMA contentions indicating there 23 that because none of -- in that case, because none of 24 the seven potentially cost-effective SAMAs bear on 25 adequately managing the effects of aging, none need to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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831 1 be implemented as part of the license safety renewal 2 pursuant to 10 CFR Part 54.
3 How does that decision affect -- I realize 4 this came out after you submitted your motion to have 5 a new contention. How does this affect the viability 6 of that new contention, Mr. Sipos?
7 MR. SIPOS: Yes, Judge. This is John 8 Sipos. In fact, the State believes that what the 9 Commissioners wrote in that decision on March 26th" 10 further supports the State'.s contention. And on page 11 20 of our reply, which we filed a week ago today, we 12 made notes of that statement in note 26 on. page 7 and 13 what the State notes is material in that quote is in 14 fact, that the Commissioners went beyond the language 15 that was in the FEIS that the staff prepared in the 16 Pilgrim proceeding. And the FEIS issued there had a 17 phrase and I'm paraphrasing it, but essentially it 18 said if there's a SAMA that looks at an issue that's 19 not covered by Part 54, there's no need for further 20 review.
21 And the Commission -- the language of the 22 Commission's order goes further and we believe it 23 parses it further. It talks about the safety review.
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832 1 review pursuant to 10 CFR Part 54." And that phrase 2 is nowhere in the staff's FEIS.
3 Again, this issue is not squarely raised, 4 as we understand it in looking at the filings in the 5 Pilgrim case, but it is notable that the Commissioners 6 themselves added language to that and that additional 7 phrase, we think is consistent with what the 8 Commissions said in 2001, early 2001 in their decision 9 denying the petition for rulemaking by NEI and we 10 cited that also in our reply, as did Entergy cited it 11 as well in their answer to New York's proposed 12 filings.
13 And the 2001 decisioh by the Commissioners 14 makes it pretty clear that the Commissioners decided 15 that they would retain SAMA review or review of SAMA 16 candidates. And they seemed to have specifically 17 rejected the position that the staff and Entergy are 18 seeking to -- New York would submit -- recycle here.
19 And that's in the Federal Register, I believe it's 66 20 Federal Register 10834. This is the February 20, 2001 21 Commission ruling and we cite this to some 'extent on 22 page 5 of our reply.
23 We also think New York's position, as we 24 understand the Pilgrim position, in response to your 25 question i-s completely consistent with the GEIS and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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833 1 other statements that we also set forth. I don't want 2 to belabor it. If you have any more specific 3 questions I'd be happy to answer them, but actually 4 New York feels that the Pilgrim de'cision supports the 5 State's contentions here.
6 CHAIRMAN McDADE: Thank you. Mr. Turk, 7 for the staff, as I understand the staff's argument 8 limiting the review here to aging management, we ha-ie 9 a situation where as part of the original application, 10 there were not SAMA analysis done. It seems to be 11 that there was a requirement that a SAMA analysis be 12 done as part of this application. If the analysis 13 that you put forward is accurate, how would anyone go 14 about contesting the adequacy of the SAMA analysis 15 done on areas other than aging management? Are you 16 saying that although it *was required to be done as 17 part of the application there would be no opportunity 18 to contest it?
19 MR. TURK: No, Your Honor. The rule is a 20 little bit different than what you'just stated. The 21 rule is that if severe accident mitigation alternative 22 analysis was not at the operating license stage, not 23 for license renewal, but previously, then SAMAs have 24 to be considered at the license renewal stage.
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834 1 here, is it not?
2 MR. TURK: And that's the case'here. The 3 Applicant's Environmental Report has a.SAMA analysis.
4 The staff's Draft EIS considered that analysis, 5 discussed it. The staff, during its review, found 6 some problems with the analysis. They held conference 7 calls with Entergy. Entergy came back and revised 8 their analysis. And that led to the submission of the 9 new contentions by the State.
10 The way in which a party contests the SAMA 11 is exactly as the State has done, trying to raise 12 contentions that attack or challenge the adequacy of 13 the SAMA analysis that was conducted. What's 14 significant here is that New York did not identify any 15 SAMAs which have not already been identified by 16 Entergy. The state could have, but did not say here's 17 another mitigational alternative that you failed to 18 consider that we think would be cost beneficial in a 19 favorable way, and therefore, that should be 20 considered. The State didn't raise that kind of a 21 contention.
22 CHAIRMAN McDADE: But what they have done 23 is say a number of. these SAMAs are inadequate because 24 they're incomplete, that there has been an initial 25 estimate, but it has not been carried through. So at
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835 1 this point in time, there's insufficient data for the 2 NRC to give the hard look under NEPA and what they're 3 urging is an additional analysis needs to be done so 4 that the data will be there for the NRC to take that 5 hard look.
6 MR. TURK: But what they're --
7 CHAIRMAN McDADE: That's not limited to 8 just aging management SAMAs?
9 MR. TURK: That's correct, but there are 10 two different questions that you're combining into 11 one, Your Honor. I'd like to separate them for a 12 moment. What the State is urging is that there should 13 be a final determination and that means essentially 14 that Entergy should go out and perform an engineering
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15 analysis to determine the precise cost of implementing 16 any particular SAMA, which they have already 17 identified as potentially cost beneficial.
18 The staff's position is you don't need to 19 reach the final cost assessment because you have 20 already determined that the SAMA is potentially cost 21 beneficial. Having identified that, that's all we 22 need to know. We don't need to know precisely how 23 much will it actually cost, but the precise 24 measurement of the cost and benefit.
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836 1 that these are potentially cost. beneficial at this 2 stage.
3 ADMIN. JUDGE WARDWELL: This is Judge 4 Wardwell. Has not Entergy stated that they are 5 running more detailed cost analyses on many of the 6 contentions -- on many of these SAMAs?
7 MR. TURK: All applicants for license 8 renewal come in with the same sort of position. They 9 identify the potentially cost beneficial SAMAs. And 10 later on they determine well, is this something that 11 we really want to go forward with? Is this something 12 that's worthwhile going forward with on our own?
13 They'll continue to do engineering analyses, but we 14 don't need those in order to identify for NEPA 15 purposes what are the potentially cost beneficial 16 actions.
17 ADMIN. JUDGE WARDWELL: But did they not 18 only recommend several of the many SAMAs that were and 19 not all of those that were potentially cost beneficial 20 as requiring additional analyses?
21 The point I'm bringing up here is it 22 wasn't New York State that's requesting these 23 additional analyses. It is New York State's position, 24 as I interpret it, is it not, that all they're saying 25 is here the Applicant says they are doing more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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837 1 detailed ones in accordance with the Applicant's 2 tiered approach of SAMAs as getting more detailed as 3 the cost benefits come into focus. And they're 4 suggesting that that's needed for both public 5 scrutiny, but also by you people to understand the r 6 r, degree and the magnitude of the potentialbenefits in 7 comparison to the costs.
8 I don't understand why you're not 9 interested in seeing that information before you reach 10 your decision on the SAMAs.
11 MR. TURK: Your Honor, you raise a gpod 12 point, but there's a very good answer to it. First of 13 all, there is no legal requirement that an applicant 14 implement any SAMA, no matter now beneficial it might 15 be to impose it.
16 ADMIN. JUDGE WARDWELL: Let's separate 17 that question. We'll get to that question later.
18 Let's stay now on strictly whether or not these costs 19 are appropriate, because that will muddy the waters I 20 think. We'll get to that.
21 MR. TURK: But it's an important 22 distinction to make because once you set that question 23 aside, then you say well, what is the requirement?
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838 1 the potential cost benefit -- to SAMAs that are 2 potentially cost beneficial and Entergy has now done 3 that and we have considered in the Draft EIS and we'll 4 further discuss it in the Final EIS. But that's 5 what's required by NEPA.
6 The reason I raised that first threshold 7 question as to whether there's any implementation 8 requirement, there is none and you come now to the 9 important point that under NEPA there is no 10 requirement that a SAMA be implemented.
11 ADMIN. JUDGE WARDWELL: Again, let me just 12 -- I've got Judge McDade -ready to jump.in. I want to 13 fix this point before we move on to the other one in 14 regards to whether or not you need to address any 15 SAMAs.
16 Entergy has said I still -- as I interpret 17 it, or as I paraphrase it, I still need some 18 information in regards to analyzing these cost 19 benefits, that I've not done that SAMA analysis yet.
20 I still need to fine tune that costing. And they said 21 that that's the way they approach SAMAs is by doing it 22 in a tiered approach and they're still within those 23 tiers to reach that decision in regards to whether or 24 not the degree to which it is cost beneficial.
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839 1 that before you start making any decisions in regards 2 to whether or not to even suggest implementing them.
3 It's not complete yet.
4 MR. TURK: Your Honor, that is not the 5 staff's requirement. We do not require that fine 6 tuning to the point of knowing with some sense of 7 certainty what the actual numbers will be. As long as 8 now understand what are potentially cost beneficial 9 SAMAs, what they are, and they've been identified, the 10 staff is satisfied the Commission is satisfied.
11 ADMIN. JUDGE WARDWELL-: How do you know 12 that those SAMAs, that they're now saying they are 13 going to do some more analysis won't, in fact, drive 14 those benefits -- have the cost benefit ratio be so 15 high that it's just so relatively apparent that the 16 benefits far exceed the costs beyond what is now 17 currently in the analysis?
18 MR. O'NEILL: Your Honor, this is Mr.
19 O'Neill with Entergy.
20 ADMIN. JUDGE WARDWELL: Can I get to you 21 in al minute?
22 MR. O'NEILL: Sure.
23 ADMIN. JUDGE WARDWELL: Let's let the 24 staff respond.
25 MR. O'NEILL: I'm sorry, Your Honor.
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840 1 ADMIN. JUDGE WARDWELL: And then we'll let 2 you respond.
3 How do you know that those additional 4 analyses won't, in fact, change your opinion of those 5 SAMAs if, in fact, the Applicant has taken the 6 position that they're not done with these yet?
7 What I'm saying, not for any other reason, 8 it's for the SAMA.
9 MR. TURK: Your Honor, our understanding 10 is that the way the analysis has been conducted leads 11 to bounding analyses, or at least the bounding 12 considerations of the costs and benefits. So we don't 13 believe that any SAMA that's been identified as 14 potentially cost beneficial will increase in magnitude 15 in terms of the benefits versus costs.
16 But let me also mention that the basis on 17 which the staff has considered Entergy's analysis here 18 is the same basis that we've considered more than 50 19 license renewal applications that the Commission has 20 approved to date. This is an established method of 21 analysis and determination of acceptability.
,22.. ... And in terms of what Entergy mans when 23 they say they intend to do more analysis, I would turn 24 to Entergy and ask them to explain that to you.
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841 1 appropriate time to do that.
2 Mr. O'Neill?
3 MR. O'NEILL: Yes, thank you, Judge 4 Wardwell.
5 I would reiterate what Mr. Turk said. We 6 do view the SAMA implementation cost estimates that 7 were done in the application and the revise SAMA 8 analysis as being bounding or conservative, 9 conservative in the sense that they under estimate the 10 cost of implementing particular SAMAs. For instance, 11 they don't take into account the cost of replacement 12 power during an outage that might be required or 13 adjustments for inflation. So in our view, we have 14 completed the necessary cost analyses to demonstrate 15 compliance with NEPA and Part 51.
- 16. ADMIN. JUDGE WARDWELL: So why did you 17 include any other statements in your application?
18 It's irrelevant then if, in fact, whatever else you're 19 doing has no effect on the SAMAs.
20 MR. O'NEILL: They do to the extent they 21 would have any effect on the SAMAs, drilling down 22 further into the cost estimates could indicate that 23 the cost of implementation is potentially higher or in 24 some instances potentially lower. But I agree., as a 25 legal matter, that statement is not required to be in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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842 1 the EIS. There is no legal-requirement that Entergy 2 must implement any of the SAMAs identified as 3 potentially cost beneficial.
4 ADMIN. JUDGE WARDWELL: I'm not talking 5 about any implementation. I'm talking about coming up 6 with the cost benefit ratio, if you will, associated 7 with this SAMA so people can then evaluate it both for 8 public scrutiny and for the staff's benefit.
9 If you are satisfied with your cost 10 numbers which a number of them you were, weren't you?
11 You didn't propose additional analyses for every one 12 of these SAMAs, did you?
13 MR. O'NEILL: No.
14 ADMIN. JUDGE WARDWELL: So there were only 15 selected ones that you did and in presenting that that 16 says to me you've not done your SAMA analysis.
17 MR. O'NEILL: Your Honor, again, we do 18 view the analysis as being complete. I think the cost 19 analysis that is done to meet Part 51, again, is a 20 fairly high-level screening conservative analysis and 21 to a large extent Entergy looked at cost estimates 22 prepared by other licensees that had been reviewed'and 23 approved by the staff. And in many instances, use 24 those cost estimates or tweaked them slightly, but I 25 think it was very clear that in a number of cases, a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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843 1 particular SAMA would or would not be cost beneficial.
2 In some cases they did some refined estimates, taking 3 into account a number of factors that we cite on page 4 29 of our answer. That process i5 consistent with NEI 5 guidance in NEI 05-01.
6 And in terms of what we ultimately do with 7 the SAMAs really is a matter of, to some extent, 8 discretion. I think the Applicant or Entergy has a 9 place engineering change request processes where they 10 submit potentially beneficial costs, cost beneficial, 11 SAMAs for further evaluation, say for instance, a 12 gagging device.
13 ADMIN. JUDGE WARDWELL: Can you point to 14 us and then I'll let the staff do the same thing, any 15 situation where a party or petitioner contested the 16 fact that the SAMAs weren't complete because of these 17 statements and where a ruling *has come down agreeing 18 that these additional analyses were not required?
19 MR. O'NEILL: I'm not aware of any 20 specific cases, although again I point to the prior 21 proceeding in which the Commission held that a SAMA 22 would ultimately be considered under the current 23 licensing basis process.
24 ADMIN. JUDGE WARDWELL: We'll talk about 25 the implementation later. We're just trying to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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844 1 complete the SAMA right now.
2 Mr. Turk, can you point us to any case law 3 that would support someone contesting this as I 4 interpret New York State contesting this?
5 MR. TURK: As I sit here today on' the 6 telephone, I can't put my finger on anything, Your 7 Honor. I'd have to go back and check.
8 ADMIN. JUDGE WARDWELL: 'Thank you.
9 JUDGE-LATHROP: This is Judge Lathrop. I 10 believe the staff cited *the Commission that they 11 observed the determination of potential cost benefit 12 was enough and that was in the McGuire decision.
13 MR. TURK: Just one moment, Your Honor.
14 (Pause.)
15 I think, Your Honor, you point to a very 16 important decision, that is CLI 03-17 decision in 17 McGuire Catawba. We did cite at pages 25 to 26 of our 18 brief a 'fairly long quotation in which the Commission 19 indicated -- these are the Commission's words that
- 20. "our Boards do not sit to parse and fine tune EISs."
21 And they go on to talk about the need to determine --
22 to take a hard look at significant environmental 23 questions. But the point they made in the McGuire 24 decision is that the sense of having to get to 25 certainty of the cost benefit is not a requirement NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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845 1 under NEPA.
2 CHAIRMAN McDADE: Did New York State have 3 to get to that degree of level or didn't they just say 4 all we want to have them do is what they say they're 5 going to be doing?
6 It's Entergy that brought up the need for 7 additional analysis, not New York State.
8 MR. BESSETTE: Your Honor, this is Paul 9 Bessette. Just to be clear and to emphasize what 10 Martin O'Neill said, we believe our SAMA analyses are 11 complete for the purposes of our obligations under 12 NEPA. The processes that are referred to are just an 13 internal further scoping process that is conducted at 14 the discretion of Entergy, regardless of how New York 15 attempts to clarify it or characterize.
16 We believe our SAMA analyses are complete 17 and as provided to the staff and as provided to the 18 members of the public. We believe we've done 19 sufficient. So to the extent New York is saying we 20 have further SAMA steps to do, we believe that's an 21 incorrect characterization.
22 ADMIN. JUDGE WARDWELL: Okay, thank you.
23 CHAIRMAN McDADE: As I understand, under 24 McGuire, basically what the Commission said is that 25 the NEPA analysis needed to be in sufficient detail to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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846 1 ensure that environmental consequences of the proposed 2 project have been fairly evaluated.
3 As I understand New York's claim is that 4 because the analysis was curtailed at a certain point, 5 that there's insufficient data at this point to fairly 6 evaluate the SAMAs.
7 Mr. Sipos, is that New York's position?
8 MR. SIPOS: That is correct, Your Honor.
9 This is John Sipos. That is correct, Judge McDade.
10 And moreover, NEI guidance and Commission guidance 11 make it clear that it is important to develop the 12 detail here and Entergy has in its December 2009 SAMA 13 re-analysis, made an admission or stipulation that 14 there is still work to be done on it.
15 CHAIRMAN McDADE: Well, the question isn't 16 whether there's still work to be done. Is it the 17 question whether or not there is currently sufficient' 18 detail to fairly evaluate the SAMAs? I mean there 19 always could be more work that can be done on almost 20 anything. Isn't that true, Mr. Sipos?
21 MR. SIPOS: That is correct.
22 CHAIRMAN McDADE: Okay, from the 23 standpoint of Entergy, either Mr. O'Neill or Mr.
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847 1 here to evaluate the SAMAs appropriately?
2 MR. BESSETTE: Well, Your Honor, that 3 could be said about anything. We believe it's not a 4 reasonable disagreement of material fact. No, we 5 believe what we provided is sufficient and consistent 6 with the Commission guidance and particularly what 7 we've been talking about in McGuire.
8 If New York State wants something further, 9 we believe it's outside of this proceeding. There are 10 other avenues for them to do that.
11 CHAIRMAN McDADE: But essentially, and 12 correct me if I'm misinterpreting what you're saying, 13 is that you have completed a SAMA'analysis. Did you 14 concede that there could be more work that could be 15 done, but the work that is done to date is sufficient 16 to fairly evaluate the SAMA and that the mere fact 17 that New York is able to point to your statement that 18 you could and intend to do some additional work 19 doesn't undercut the argument that you have that there 20 is sufficient detail currently before us to fairly 21 evaluate the SAMA. Am I accurately summarizing your 22 position?
23 MR. BESSETTE: Yes, Your Honor. You're 24 completely accurate.
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848 1 position not valid?
2 MR. SIPOS: It's -- well, it's not valid, 3 Judge, because what they have done here is depart from 4 their own guidance, their own NEI guidance and the NRC 5 guidance. And they have curtailed the process. So 6 they are not able to complete the analysis as to 7 whether or not the mitigation candidates identified in 8 New York State 35 are cost effective and that's it.
9 They have curtailed the inquiry here.
10 CHAIRMAN McDADE: And they've curtailed it 11 at a point where it's insufficient to make a fair 12 evaluation at this point.
13 MR. SIPOS: It appears so. That's how we 14 read it. That's how we read what they have said, 15 Judge.
16 CHAIRMAN McDADE: Now -- and again, I just 17 want to make sure I'm correctly stating what New 18 York's position is. Your position is that although 19 NEPA is procedural and requires only that there is a 20 fair look taken and that there's no specific 21 implementation requirement under NEPA, that 22 nevertheless under the Administrative Procedure Act, 23 the Commission is required to act or is precluded from 24 acting arbitrarily and capriciously, that the 25 Commission has the authority to oppose license NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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849 1 conditions which would include the implementation of 2 the SAMAs and that although there's a certain area 3 where reasonable minds could differ and the Commission 4 would have discretion as to whether or not to act, 5 there is a certain level at 'which it would be 6 arbitrary and capricious for the Commission not to 7 require as a license condition the implementation of 8 certain SAMAs where the-cost benefit analysis is 'such 9 that it's necessary to protect the public health.
10 Is that the gist of the New York argument 11 on implementation?
12 MR. SIPOS: Yes, it is, Judge. We think 13 it's quite clear. I mean Indian Point is facility 14 that is quite different from the other facilities.
15 Mr. Sherwin Turk said -- he made reference to 50 16 previous matters. Given the population distribution 17 around Indian Point, New York is -- Indian Point's 18 facilities--- it's clearly different from the other 19 ones. And that population distribution and as we've 20 seen with the weather data, that can't have very 21 significant effects on cost benefit analysis.
22 And to the extent your question went to 23 Contention 36, in Contention 36, the State identified, 24 I believe, 9 contentions, 9 SAMA candidates that are 25 cost beneficial, that are cheaper to implement and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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850 1 will have a greater public benefit, so the benefit 2 clearly outweighs the cost and that Your Honor is 3 correct. The State does emphasize the Administrative 4 Procedure Act with respect to that as well.
5 And this whole exercise, the whole going 6 to Contention 36, New York's position is entirely 7 consistent with NEI 05-01 and internal NRC guidance 1
8 documents. And as we read the 1996 Statement of 9 Considerations that went with the GEIS and as we read 10 the Commission's ruling in February of 2001 on the NEI 11 petition to change the regulations under Part 51, but 12 yes, Your Honor, I believe, summarized ýthe State's 13 position on that.
14 CHAIRMANMcDADE: Mr. Turk, from the NRC's 15 standpoint, the, SAMA analysis is not just a hollow 16 exercise. There's a purpose behind it. The 17 Commission has the authority to require the 18 implementation of a SAMA as a license condition. It 19 has that authority, does it not?
20 MR. TURK: The Commission has the 21 authority to do anything that it determines is 22 necessary to do, necessary and appropriate in order to 23 protect the public health and safety. So a more 24 specific question though is is there any regulation, 25 any existing requirement which an applicant for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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851 1 license renewal is bound to follow in order to get 2 license renewal. Is there any implementation required 3 to get license renewal. The answer is clearly, simply 4 no.
5 CHAIRMAN McDADE: Well, New York says that 6 there is. It says under the Administrative Procedure 7 Act, that is a SAMA has been analyzed, the date is out 8 there showing that there is a clear cost benefit 9 analysis, that the Commission giving a hard look at 10 that, although given a great deal of discretion in 11 whether to require implementation or not, 12 nevertheless, there could be if there were -a 13 sufficient cost benefit ratio, a requirement for the 14 Commission to require the implementation of the SAMA 15 as a license condition and that the failure to do that 16 would constitute an arbitrary and capricious action on, 17 the part of the Commission, that the Commission has a 18 duty, when appropriate, not just the ability to, but 19 has the duty, when appropriate, to mandate the 20 implementation of a SAMA.
21 Do you disagree and if so, why?
22 MR. TURK: There is no existing legal 23 requirement that a SAMA be implemented. That is a 24 very simple truth. The Administrative Procedure 25 Act requires that the Agency have a rational basis NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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852 1 for its decision. There is no --
2 CHAIRMAN McDADE: What's the basis for 3 this decision?
4 MR. TURK: For the license renewal 5 decision.
6 CHAIRMAN McDADE: Yes.
7 MR. TURK: There is no requirement that 8 would be violated that the Commission would be remiss 9 in not implementing. Were it to say okay, we now have 10 -- we now know what the SAMAs are. We now have-a good 11 enough understanding of what the SAMAs, we can go 12 forward. There is simply nothing --
13 CHAIRMAN McDADE: This is Judge McDade 14 again. If that analysis, and I'm not saying -- I'm 15 talking hypothetically right now, not.l!9ki-ng at any 16 of the particular SAMA analyses that are currently as 17 part'of the motion, just talking hypothetically.
18 If there were a situation where there was 19 a clear benefit, a minimal cost, a very significant 20 benefit, and the Commission did not require, went 21 ahead and issued a license renewal, issued a license, 22 without taking that into consideration, without 23 demanding that the Applicant use that action that for 24 very small cost could significant reduce risk, 25 wouldn't the Commission in order to justify that have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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853 1 to demonstrate a rational basis? Wouldn't the 2 Commission have to demonstrate that issuing the 3 license without that condition was not arbitrary and 4 capricious? Isn't that a legal hook for .New York to 5 hang this contention on?
6 MR. TURK: Your Honor, you have to 7 understand the place of SAMYA. I'm sure Your Honor 8 does understand it, but let me make the point for the 9 record.
10 We have to be clear on what is a SAMA to 11 begin with. The SAMA is an assessment of mitigation 12 alternatives in the event of a severe accident. The 13 accident, to begin with, is a very unlikely event.
14 Typically, we'll refer to severe accidents as beyond 15 the design basis. The entire approach of the 16 Commission in licensing a nuclear power plant and 17 Indian Point is licensed, is to say what are the 18 design basis accidents that must be considered? What 19 are those accidents that are credible enough, whether 20 the standard is one in a million per year or whatever 21 the precise standard is. I believe that is what it 22 is. But what is the likelihood of an accident 23 occurring?
24 If it's likely enough to occur, i.e.,
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854 1 chance per year, then it has to be designed so that it 2 won't occur. So what we're talking about here are 3 accidents that are unlikely to begin with. And what 4 we're considering is all right, you're now in the 5 design basis accident space. Are there any things 6 that we can do in order to ameliorate the consequences 7 of this very unlikely event? There is no requirement 8 that a SAMA be implemented.
9 If a SAMA is identified that is 10 particularly favorable from a cost beneficial 11 standpoint, then the Commission would consider that 12 not just for license renewal, but also for the 13 existing operator license. The Commission might then 14 decide to impose through a backfit requirement, i.e.,
15 so a requirement imposed after the license has already 16 been issued, after the OL was issued, the Commission 17 might decide this is too important to pass up. We are 18 going to impose this requirement by order.
19 That is not what we do on license renewal 20 space. For license renewal space, we are following 21 the directive of the Third Circuit Court of Appeal in 22 Limerick to consider the SAMAs for license renewal 23 purposes as part of our NEPA evaluation. That is what 24 we have done and that is sufficient.
25 In the Draft EIS, the staff identified the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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.855 1 SAMAs which it believes pertain to license renewal, and 2 we've reached determination in the Draft EIS that 3 enough has been done in order to reach a conclusion 4 that the Applicant has adequately addressed the SAMA.
5 Upon finding a flaw in part of the inputs that the 6 Applicant used, the Applicant then came back and said 7 well here, the re-analysis fixes the problem that was 8 identified. And when we issued the FEIS we will 9 address the sufficiency of the re-analysis.
10 But for SAMA purposes, for license renewal 11 purposes, the Applicant has done enough to meet the 12 Commissions requirements. If the Commission reaches 13 a decision to issue a renewed license to the Indian 14 Point reactors, it will be on the basis that the 15 reactors are safe, that they meet the Commission's 16 safety standards and for environmental purposes, we 17 have considered the potential impact of license 18 renewal. And we will have done that even if certainty 19 has not been reached on the exact cost benefit 20 quantification that the Applicant may come up with.
21 ADMIN. JUDGE WARDWELL: This is Judge 22 Wardwell. On page 25, I believe, of your response, 23 you reference the reason for not implementing any 24 SAMAs for license renewal was because none of the 25 SAMAs relate to aging management. Is that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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856 1 entirety of your rational basis for not implementing 2 any of the SAMAs?
3 MR. TURK: For license renewal purposes, 4 yes.
5 ADMIN. JUDGE WARDWELL: And what's your 6 authority for that? What regulation allows that --
7 all of the SAMAs for license renewal be categorically 8 dismissed if they don't relate to aging management?
9 MR. TURK: First of all, it's not that 10 they're dismissed, they're considered. So the EIS 11 does consider them.
12 ADMIN. JUDGE WARDWELL: What about 13 implemented?
14 MR. TURK: The basis -- there's no legal 15 requirement to require the opposite. There's no legal 16 requirement that they be implemented.
17 ADMIN. JUDGE WARDWELL: But isn't there a 18 requirement for you to provide a rational basis?
19 MR. TURK: Yes.
20 ADMIN. JUDGE WARDWELL: And isn't this by 21 only saying that they don't relate to aging management 22 issues, aren't you tying together what you say is a 23 NEPA type evaluation under our SAMA, that-i-s Part 51, 24 254 safety issue. This isn't a safety issue. Isn't 25 that correct? That's what you were talking about.
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857 1 MR. TURK: The requirement to consider 2 SAMAs is an environmental requirement, not a safety 3 requirement.
4 ADMIN. JUDGE WARDWELL: Right, it's a 5 mitigation analysis, correct? It's not a safety 6 analysis.
7 MR. TURK: -It's a consideration of the 8 environmental impacts of license renewal.
9 ADMIN. JUDGE WARDWELL: So how can you use 10 the fact that none of them relate to aging management 11 under a NEPA-type approach to categorically refuse to 12 implement any of them?
13 MS. SUTTON: Your Honor, this is Kathryn 14 Sutton from Entergy. If I may request to answer the 15 question?
16 ADMIN. JUDGE WARDWELL: I'd like Mr. Turk 17 to answer first and then we'll allow you to respond.
18 MR. TURK: When the Commission reaches a 19 decision on license renewal, we will look at the 20 regulations in 10 CFR Part 34 which lay out specific 21 safety standards' and which require us to reach a 22 determination that all environmental considerations --
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858 1 identified as potentially cross beneficial in a SAMA 2 analysis, it there might becomes a requirement of 3 license renewal, that requirement simply does not 4 exist.
5 Let me give a comparison and this is 6 strictly hypothetical. If an Environmental Impact 7 Statement determines that there are aquatic impacts, 8 you can ask the same question, well, how could you 9 possibly go forward to license renewal if some fish 10 are going to be killed? Of if, for instance, if a 11 plant had a cooling tower and there was going to be 12 steam released into the air which could cause 13 aesthetic or traffic implications in a nearby area.
14 That's an environmental impact. This question would 15 be the same, how could you possibly have a rational 16 basis for licensing if you're going to have 17 environmental impact? Well, that's the wrong 18 question, because all an Applicant has to do is meet 19 the safety regulations and provide consideration of 20 environmental impacts.
21 The Commission, in turn, under the 22 Administrative Procedure Act has to follow its 23 regulations, because if it did otherwise it would be 24 irrational. There's a rulemaking process the 25 Commission has adopted regulations, both for safety NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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859 1 and for consideration of environmental impacts. As 2 long as the Commission follows its safety regulations 3 and considers environmental impacts, it is doing what 4 it is required to do by statute and by Congress.
5 ADMIN. JUDGE WARDWELL: Where in the 6 regulations does it allow you to categorically reject 7 any SAMAs from being implemented based on them not 8 relating to aging management for license renewal? Is 9 there one?
10 MR. TURK: It depends on the trier.
11 ADMIN. JUDGE WARDWELL: Okay, and while 12 you're looking that up, I'll go to Ms. Sutton.
13 MS. SUTTON: Yes, Your Honor. While Mr.
14 Turk is looking at that, there is a statutory basis 15 for that. The scope of your NEPA analysis as defined 16 by the National Environmental Policy Act is limited to 17 the scope of a major federal action. In this case, 18 that's license renewal. The scope of license renewal 19 is clearly defined in Part 54. And it's limited to an 20 analysis of age-related degradation. It does not 21 include a re-analysis of the original design basis of 22 the plant. Its current licensing basis is protected 23 as part of that analysis.
24 ADMIN. JUDGE WARDWELL: Was a SAMA 25 conducted for that licensing basis?
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860 1 MS. SUTTON: The SAMA was conducted in 2 conjunction with the major federal action which is 3 license renewal. And for that reason if the 4 particular SAMA is not related to age-related 5 degradation, it falls outside the scope of this 6 particular licensing proceeding and the scope of the 7 necessary NEPA analysis.
8 ADMIN. JUDGE WARDWELL: I gather you would 9 also agree that then any environmental impacts 10 associated with NEPA, any alternative analysis would 11 have to be related to aging management then if you 12 carried the same logic?
13 MS. SUTTON: No, Your Honor. We're 14 carrying it to the identification of the cost 15 beneficial SAMA.
16 ADMIN. JUDGE WARDWELL: That is a 17 mitigation analysis. That's not a safety analysis.
18 Is that not correct?
19 MS. SUTTON: The mitigation is an 20 environmental analysis, Your Honor.
21 ADMIN. JUDGE WARDWELL: And that's what a 22 SAMA is.
23 MS. SUTTON: It's conducted under NEPA, 24 Your Honor.
25 ADMIN. JUDGE WARDWELL: Thank you.
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861 1 MR. TURK: Your Honor, I might be able to 2 shed a little more light. I hope I don't confuse 3 things.
4 The SAMA is an environmental assessment.
5 They're looking to see what arepotentially beneficial 6 mitigating actions that you might take that are not 7 overly costly to implement.
8 If one was identified which related to 9 aging management, for instance, there may be an aging 10 management program for some sort of a component. And 11 if the SAMA says well here's a way you could-improve 12 the performance of that component from which an AMP is 13 required, well the staff might then go back and say 14 well, you know, we are requiring you to have an 15 adequate AMP and we find that without this 16 improvement, the AMP is not adequate. That would be, 17 hypothetically, an aging-related determination which 18 under the safety side you would need to have a 19 modification of the AMP in order to reach a finding of 20 adequacy. But that would be the basis for finding 21 that a particular SAMA would have to be implemented, 22 but-not because of-ýenvironmental considerations, but 23 because on the safety side, the AMP is found to be 24 inadequate.
25 ADMIN. JUDGE WARDWELL: I wonder if a SAMA NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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862 1 analysis was conducted and it was determined that it 2 was going to cost $1 to gain $1 million worth of 3 environmental benefit, but yet had nothing to do with 4 aging management activities. You would still 5 categorically not require a license condition to 6 implement that SAMA because it's not related to aging 7 management?
8 MR. TURK: We would not impose that 9 requirement based on the SAMA itself. We might then 10 want to go to the regulation to determine if a backfit 11 should be required.
12 MS. SUTTON: And Your Honor, I would agree 13 with that as well.
14 MR. BESSETTE: Your Honor, this is Paul 15 Bessette. Just one point of clarification. We 16 mentioned the recent Commission decision CLI 10-11.
17 I would refer the Board to pages 37 to 38 of that 18 decision where we have to realize SAMA analysis is --
19 the Commission has already generically evaluated the 20 environmental impacts of severe accidents on all 21 plants as small.
22 So the Commission has already determined 23 that the environmental -- a severe accident itself is 24 small, so what we're talking about is alternatives, 25 mitigation alternatives of an issue that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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863 1 Commission has already determined has small 2 environmental impacts for all plants including Indian 3 Point.
4 So that itself to me provides a rational 5 basis for the decision of what we're talking about.
6 The Commission has already decided, generically, that 7 the environmental impacts of severe accidents are 8 small.
ADMIN. JUDGE WARDWELL: Mr. Turk, can you 10 cite us any cases where you've implemented the 11 potentially cost beneficial SAMA analysis as a license 12 condition for any license?
13 MR. TURK: No, Your Honor. I'm not aware 14 of any as I sit here.
15 ADMIN. JUDGE WARDWELL: And you 16 referenced, I think, a little bit earlier in our 17 conversation that there are some other mechanisms for 18 SAMA to be implemented. Is that correct and just 19 refresh my memory on what those were?
20 MR. TURK: Yes, under 10 CFR Part 50, the 21 backfitting requirements provide a basis for the staff 22 or the Commission to determine that some regulatory 23 action is necessary to protect -- to provide adequate 24 protection for the public health and safety. Let me 25 see if I can get you the exact words. I'm looking at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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864 1 10 CFR 50.109 which defines backfitting as "the 2 modification of, or addition to systems, structures, 3 or components, or design of a facility where it's 4 based upon an interpretation of the Commission 5 regulations that is either new or different from a 6 previously applicable staff position. " It's somewhere 7 where we've already determined the regulations are 8 met, but now we would be adding the requirement on 9 what we interpret the regulations to require until 10 then.
11 I'm looking to see specifically how we 12 would reach that decision.
13 ADMIN. JUDGE WARDWELL: Do you know if you 14 required Entergy to perform any more detailed cost 15 analyses for any potential cost beneficial SAMAs or 16 whether all of the analyses that they performed were 17 done on their own initiative.
18 MR. TURK: The analyses were done on their 19 own initiative: The staff separately did a 20 determination that there might be 'some additional 21 SAMAs that are appropriate, so we identified those in 22 the Draft EIS.
23 We also identified a potential flaw in 24 their analysis having to do with meteorological data.
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865 1 re-analysis where they identified further SAMAs. And 2 I think now we've reached a complete universe of 3 potentially cost beneficial SAMAs as laid out in the 4 table on page 15 of our response to the contentions 5 which lays out a listing of where the SAMA was found 6 to be potentially cost beneficial, either in the 7 Environmental Report, the Draft EIS or the 're-8 analysis.
9 ADMIN. JUDGE WARDWELL: I'm glad you 10 opened up that because I was just going to ask you a 11 question on that table on page 15 of your response 12 because mainly I want to ask some questions of the 13 State on that, but I want to clarify something that's 14 there first.
15 On the fourth column, one, two, three, 16 four, you title that "Found to be Cost Beneficial in 17 Applicant's SAMA Re-analysis." And just to make sure 18 we're talking about the same thing, that really, to be 19 precise, should be entitled "Found to be Potentially 20 Cost Beneficial." Is that correct?
21 MR. TURK: Yes.
22 ADMIN. JUDGE WARDWELL: What is the 23 significance of that potentially cost beneficial?
24 What does that mean? Why isn't it just cost 25 beneficial? Why is it potentially cost beneficial?
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866 1 The reason I'm getting to this is the 2 potentiality associated with oh gee, there's more 3 analysis and maybe it will become cost beneficial 4 later or is it only potentially cost beneficial 5 because it will only be cost beneficial if you 6 implement it?
7 MR. TURK: The reason why the word 8 potentially is important is going back to the guidance 9 issued by the Nuclear Energy Institute which by the 10 way the staff has endorsed in their interim staff 11 guidance document. The NEI guidance is the -- I 12 believe it's titled 05-01, NEI 05-01.
13 At page 33 of that guidance, they give the 14 following recommendation to applicants for license 15 renewal. "This analysis ". talking about the SAMA 16 analysis -- "This analysis may not estimate all of the 17 benefits or all of the costs of a SAMA. For instance, 18 it may not consider increases or decreases in 19 maintenance of operation costs following SAMA 20 implementation. Also, it may not consider the 21 possible adverse consequences of procedure changes 22 such as additional personnel. Since the SAMA analysis 23 is not a complete engineering project cost benefit 24 analysis, the SAMAs that are cost beneficial after the 25 Phase 2 analysis and sensitivity analysis are only NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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867 1 potentially cost *beneficial." And potentially is 2 written in bold.
3 That's the final paragraph on page 33 of 4 the NEI guidance. Essentially, the reason why SAMAs 5 are labeled as potentially cost beneficial is because 6 they are assessed before a final engineering project 7 cost benefit analysis is performed. But the 8 determination that they're potentially cost beneficial 9 is following- of what NEI describes as the Phase 2, 10 analysis and -- what's the second term? Sensitivity 11 analysis is performed. So it's labeled potentially 12 cost beneficial until the final cost benefit' 13 engineering analysis is done.
14 ADMIN. JUDGE WARDWELL: Thank you.
15 CHAIRMAN McDADE: Let me just very 16 briefly, I don't want to belabor this, but in the 17 Pilgrim decision one of the things somewhere in there 18 and I don't have it right on the tip of my tongue 19 right now as to -vhere, but it talks about SAMA 20 analysis and it says the goal is todetermine what 21 safety enhancements are cost effective to implement.
22 That, as I understand what the Commission is saying, 23 is the purpose of the SAMA analysis.
24 Once as part of the NEPA requirement, the 25 Commission reviews and makes a determination that a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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868 1 safety enhancement is cost effective to implement. is 2 it your position that there is no obligation on the 3 part of the Commission to, in fact, require the safety 4 enhancement to be implemented regardless of how skewed 5 that cost benefit analysis is? Is that your view, Mr.
6 Turk?
7 Again, the idea that there's no legal 8 requirement?
9 MR. TURK: That is correct. And I would 10 then point you to 10 CFR 50.109(a) (3) in which the 11 regulations provide that "the Commission shall require 12 the backfitting of a facility only when it determines 13 based on the analysis described in the regulations 14 that there's a substantial increase in the overall 15 protection of the public health and safety for the 16 common defense and security to be dei'fVed from the 17 backfit and that a direct and indirect cost of 18 implementation for that facility are justified in view 19 of this increasedprotection."
20 So for license renewal purposes, there is 21 no implementation requirements. The Commission can 22 consider for backfitting purposes whether a SAMA is so 23 favorable from a cost beneficial standpoint so as to 24 require a backfit under the regulation. That 25 determination of whether a backfit is required can be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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869' I made by the Commission or the staff independently or 2 to be made in response to a 2206 petition filed by the 3 State or any other entity.
4 CHAIRMAN McDADE: But here we have a 5 situation where there had not been a SAMA analysis at 6 the time of the original operating license.
7 Accordingly, it was necessary to do a SAMA analysis as 8 part of the license renewal procedure.
9 MR. TURK: Correct.
10 CHAIRMAN McDADE: But it's the position of 11 the staff that if that analysis demonstrates that 12 certain safety enhancements are cost effective to 13 implement and are -- even if they are exceedingly cost 14 effective to implement, that it is not part of the 15- license renewal. It would not be a condition of the 16 li(ente renewal that that safety enhancement be 17 implemented. Rather, it need be part of a separate 18 backfit procedure under 50.109(a) (3).
19 MR. TURK: That is correct, with the 20 exemption that if a SAMA pertained to a license 21 renewal AMP, some safety requirement for license 22 renewal, that'we might then consider it under our Part 23 54 requirement for safety.
24 CHAIRMAN McDADE: Okay, now under that 25 circumstance, would there be a way for a potential NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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870 1 intervenor to challenge the Agency's conclusions in 9 2 this regard? In other words, if there was a situation 3 where safety enhancement was shown as part of this 4 SAMA analysis, as part of the license renewal to be 5 exceedingly cost effective to implement, and the 6 Agency did not require it as a condition of the 7 license renewal, nor did the Agency initiate the 8 backfit procedure, would there be a way for a party 9 and interested government entity, anybody, to 10 challenge the Agency's conclusions, claiming that it 11 was not rationally based, it was arbitrary and 12 capricious. And if so, what would that vehicle be, 13 Mr. Turk?
14 MR. TURK: The proper vehicle would be a 15 petition under 10 CFR 2.206 to modify, suspend, or 16 revoke a license. And that would be the operating 17 license on the grounds that something -- the Applicant 18 is somehow not in compliance with Agency regulations 19 or because something, for instance, a backfit should 20 be required.
21 CHAIRMAN McDADE: Now why would that be --
22 assume for the sake of argument we agreed that that 23 would be a potential avenue for challenge. What would 24 that be the exclusive avenue for challenge? Is there 25 anything in the regulations that specifically NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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871 1 precludes a party to this litigation from saying that
.2 the granting of the renewal without imposing a 3 condition where a safety enhancement is identified 4 blatantly cost effective would be inappropriate, that 5 it would be arbitrary and capricious, that it wouldn't 6 be rationally based?
7 MR. TURK: The Commission has adopted a 8 set of regulations that govern its decision as to 9 whether to issuing a license at all. If an applicant 10 meets the Commission's regulations, they're entitled 11 -to have the license renewed. There is no requirement 12 that a cost beneficial SAMA be implemented in order to 13 secure the license renewal. And therefore the 14 challenge is beyond the scope of what the Commission 15 has required applicants to do in order to obtain 16 license renewal.
17 CHAIRMAN McDADE: Mr. Sipos, what Mr. Turk 18 has just said is that within the license renewal 19 procedure there's no specific portion of the 20 regulation that required the implementation of SAMAs.
21 There's no specific portion that allows a party to 22 challenge the implementation of the SAMA. He's 23 indicated that under 5109(a)© that there is an 24 alternative avenue. From New York's standpoint, why 25 is he wrong?
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872 1 MR. SIPOS: Mr. Turk is wrong, Your Honor, 2 and so is Entergy for a variety of reasons. First and 3 foremost, I would cite Your Honors and the parties to 4 10 CFR Section 54.33©. And I'll just read a portion 5 of it.
6 CHAIRMAN MCDADE: I'm sorry, excuse me, 7 could you repeat that? 54 point --
8 MR. SIPOS: I'm sorry, Your Honor, I will 9 repeat it. It's 10 CFR Section 54.33© and I believe 10 we've cited it in our papers, but I think it bears 11 some underscoring here given what Entergy and NRC 12 staff are trying to argue. And I'm picking up that 13 regulation halfway through. It says "these 14 conditions" and that's a reference back to the 15 conditions in the previous sentence. It says "These 16 conditions may be supplemented or amended, as 17 necessary, to protect the environment during the term 18 of the renewed license and will be derived from the 19 information contained in the supplement to the 20 Environmental Report submitted pursuant to 10 CFR Part 21 51, as analyzed and evaluated in the NRC record of 22 decision.
23 The conditions will identify the 24 obligations of the licensee in the environmental area, 25 including, as appropriate, requirements for reporting NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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873 1 and record keeping of environmental data and any 2 conditions and monitoring requirements for the 3 protection of the non-aquatic environment."
4 There's clearly a mechanism here to bring 5 in the information from the Environmental Report and 6 the Environmental Impact Statement pertaining to SAMAs 7 and to review it and if they are cost beneficial as 8 the ones we have identified in New York Contention 36 9 are, to implement them.
10 The staff seems to be really trying to 11 have a different decision from that which was reached 12 by the Commissioners in connection with the NEI 13 petition for rulemaking. And it's -- I have to say 14 it's regrettable in the case of Indian Point given the 15 amount of people that are located nearby and when we 16 have SAMAs that clearly are substantially cost 17 beneficial. And for them.-- for the NRC staff and for 18 Entergy to say well, that's outside the scope, that 19 runs counter to the Commissioner's decision in the NEI 20 case and it's also counter to the Statement of 21 Considerations back in 1996 for license renewal.
22 And I would just -- we mentioned this and 23 I hate to belabor points that were already mentioned, 24 but if it bears repeating, I guess, and the reference 25 is on page four of our reply. I mean there is a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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874 I recognition that there could be a situation in which 2 the SAMA was cost beneficial and that it could be 3 implemented. Maybe Indian Point will be the only 4 facility where the cost benefit analysis works out 5 that way. But that doesn't mean it should be 6 discarded here. It's part of license renewal.
7 License renewal, really going back to what 8 Ms. Sutton said, what is being renewed is not only the 9 pipes or the cables. It's the operation of the entire 10 facility. And the SAMA analysis is a way' to analyze 11 through the mitigation or alternative branches of 12 NEPA,. are there alternatives that should be considered 13 and if it is cost beneficial, implement it.
14 I mean this is not an instance where the 15 mitigation measures that the State is highlighting are 16 not cost beneficial, where the cost outweighs the 17 benefit. These are clearly -- with 26 -- they're cost 18 beneficial and very clearly so given the re-analysis 19 with the weather data and the other adjustments that 20 were made to the re-analysis.
21 CHAIRMAN McDADE: But isn't what Mr. Turk 22 is saying for the staff is that 54.33 had to do with 23 the continuation of the CLB and the CLB is outside the 24 scope of this proceeding, that if there is a 25 deficiency in the CLB the correct vehicle is through NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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875 1 the backfit procedures under 50.109(a)©, not under the 2 license renewal procedures?
3 MR. SIPOS: Mr. Turk is wrong. Staff is 4 wrong. The State acknowledges and it clearly 5 acknowledges that the Board has ruled -- has made 6 rulings in this case about the CLB. But this is --
7 what it seems that staff is trying to do and it is 8 regrettable in the case of Indian Point where we have 9 cost beneficial mitigation candidates. They're trying 10 to take them out of license renewal and put them in 11 another box. But these questions that were asked by 12 staff in the SAMA analysis, it is part of NEPA. And 13 it seems to be that staff is presenting something of 14 a semantical defense here.
15 Clearly -- or how could a -- how could the 16 Commissioners agree to a permit and bypass an 17 opportunity to mitigate environmental impacts for the 18 people of the New York metropolitan area?
19 CHAIRMAN McDADE: Okay, thank you.
20 Mr. Turk, did I accurately summarize your 21 position?
22 MR. TURK: Part of our position, Your 23 Honor. I was not limiting my self only to 24 environmental impacts where were excessive to CLB 25 states.
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876 1 The point I was making, perhaps if I have 2 to link it to something I had said earlier is that the 3 environmental impacts for radiological purposes of 4 license renewal have already been determined to be 5 small. That determination was' made in the GEIS, in 6 the Generic Environmental Impact Statement, so that 7 even if a SAMA is determined to be found -- is 8 determined to be favorable from a -cost beneficial 9 standpoint, the-impact is still small.
10 MR. SIPOS: Judge, may I? This is John 11 Sipos. May I respond to that point?
12 CHAIRMAN McDADE: Yes.
13 MR. SIPOS: I think Mr. Bessette and Mr.
14 Turk have both made references to the 1996 Generic 15 Environmental Impact Statement. But in connection 16 with severe accidents, that document or the 17 preparation of that document or there was, I should 18 say, there was a predecessor document, another NUREG.
19 I believe it's 1150, and that document looked at 20 certain facilities around the country. And most 21 notably, it did not look at Indian Point. It did not 22 look at what would be the benefits or what would be 23 the impacts of a severe accident at Indian Point.
24 Indian Point's surrounding population 25 dwarfs that of any other plant. Zion, which was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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877 1 looked at, I believe, in 1150, and possibly some of 2 the ones in Pennsylvania, they don't come close to 3 Indian Point. It's projected to have 19 million 4 people -- this is by Entergy's own accounts -- 19 5 million people within 50 miles by 2035.
6 So talking about what the GEIS said about 7 Indian Point, excuse me, about severe accidents, it 8 really misses the boat.
9 MR. BESSETTE: Your Honor, this is Paul 10 Bessette. I think Mr. Sipos is trying to exclude IPEC 11 from the scope of the gu-idance which is clearly 12 inaccurate. And my reference was to the Commission's 13 decision just twoweeks ago in Pilgrim where they say 14 because the guidance provides a severe accident impact 15 analysis that envelopes potential impacts of all 16 existing plants.
17 CHAIRMAN McDADE: And I believe they 18 bolded "all".
19 MR. BESSETTE: Yes, Your Honor.
20 MR. SIPOS: And Your Honors, I would also 21 submit that this issue has not been litigated. As the 22 State of New York is trying to do with going back and 23 looking at the historical documents, what is the bases 24 for statements here and there. And it is really 25 regrettable that the language or the rationale of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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878 1 Commissioners from 2001 and what they also said in the 2 Statement of Considerations which clearly for the 3 GEIS, if we want to talk about the GEIS which clearly 4 envisioned the possibility of implementing some SAMAs 5 that are cost beneficial, it's really regrettable in 6 this case that that is what is what staff and Entergy 7- wants to do. There's no basis for it.
8 CHAIRMAN McDADE: Mr. Turk, let me just 9 propose one other hypothetical here and just have you 10 address it,. if you would. And then have Entergy 11 address it as well.
12 The sort of scenario is that in this 13 particular circumstances of license renewal, where no 14 previous SAMA analysis has been done. It's required 15 that a SAMA analysis be done. But yet, it's the 16 position of the staff that having been done, it's--
17 there's no ability to make use of the SAMA analysis in 18 the context of this license renewal proceeding; that 19 if the SAMA analysis is not based on aging management, 20 although it's required to be done, it's just sort of 21 left out there hanging. It's not part of the license 22 renewal. It can't be part of the license renewal.
23 There's no legal ability for it to be part of the 24 license renewal.
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879 1 be done as part of the license renewal, doesn't it 2 follow that you should be able to go to the logical 3 extent that if the SAMA analysis identifies a safety 4 enhancement that's cost effective that it should be, 5 that it need be, implemented as part. of the license 6 renewal, if it is so clear that to do otherwise would 7 be arbitrary and capricious, that there is a legal 8 ability to address it?
9 MR. TURK: Your Honor, you have not stated 10 my position. I have not said that SAMAs are not 11 required as part of license renewal.
.12 CHAIRMAN McDADE: I wasn't stating your 13 position. I was stating a hypothetical and asking you 14 to respond to it.
15 MR. TURK: Okay. The SAMAs are required 16 to be considered, just like all environmental impacts 17 are required to be considered by NEPA.
18 CHAIRMAN McDADE: But they're not limited 19 to those related to aging management, a full SAMA 20 analysis needs to be done, including those that are 21 related to aging management and otherwise, as part of 22 this license renewal proceeding, correct?
23 MR. TURK: The SAMA analyses are required 24 to be performed and considered. But there is no 25 implementation requirement that comes with that. If NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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880 1 there was any: implementation, it would be done not 2 just for license renewal, but for the existing 3 operating license.
4 CHAIRMAN A cDADE: But then what does the 5 consideration consist of? You're saying that once 6 you've considered it, once the Commission has 7 considered it, the Commission doesn't have the ability 8 to act on it within the scope of the license renewal.
9 MR. TURK: The Commission has the ability 10 to determine what is necessary for adequate protection 11 of the public health and safety. If they found that 12 there was something that needed to be done to protect 13 public health and safety, they could impose a 14 requirement and they would do that through 15 backfitting.
16 The SAMA analysis is considered to the 17 same extent that all environmental impacts are 18 considered. NEPA requires us to consider the impacts 19 and let me be specific for SAMAs, it requires us to 20 consider the SAMA analyses so that when the Commission 21 makes a decision, it is an informed decision. That is 22 what NEPA requires. The law is very clear that NEPA 23 is not an implementation requirement. It- is 24 consideration only. It is important for the 25 Commission to consider the impacts of its potential NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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881 1 actions and that the public be informed about the 2 impacts. And that's *what NEPA requires us to do.
- 3. That's what Congress mandated.
4 Congress did not mandate that any 5 environmental impacts that are found to be 'great must 6 be addressed and re-addressed. NEPA does not require 7 that.
8 CHAIRMAN McDADE: Mr. Turk, but you're 9 saying that it needs to be an informed decision. But 10 what you're saying is there is no decision for the 11 Commission to make on these SAMAs in the context of a 12 license renewal. It needs to make the decision on 13 license renewal irrespective of a SAMA analysis that 14 if it chooses to do anything, it would then, outside 15 the license renewal, sua sponte, initiate a backfit 16 and if a party were not satisfied with what the 17 Commission did, the remedy is not within this license 18 renewal procedure, but rather in a 2.206 petition.
19 And if that's the case, then why'is-'t-lis 20 SAMA analysis requirement part of the license renewal 21 application?
22 MR. TURK: First of all, your statement as 23 the law is correct. I agree with the way you 24 'summarize the way SAMAs are considered and 'what the 25 Commission does with the SAMA analysis that licensing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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882 1 will stage.
2 The reason we consider SAMAs during 3 license renewal 'is because the Third Circuit Court of 4 Appeals in the Limerick decision reached a decision 5 that found that SAMAs had not -- as I recall -- SAMAs 6 had not been adequately considered. So the Commission 7 undertook to make sure that SAMAs are considered as a 8 license renewal stage.
9 But they did not undertake to impose any 10 requirement that SAMAs be implement.
11 ADMIN. JUDGE WARDWELL: But did Part 54 12 exclude the implementation of any SAMA if it wasn't 13 related to aging management anywhere in the 14 regulation?
15 MR. TURK: No.
16 ADMIN. JUDGE WARDWELL: Thank you.
17 MR. TURK: If we consider SAMAs regardless 18 of whether they're aging related or not.
19 ADMIN. JUDGE WARDWELL: But in your -- I 20 guess I set the question wrong. I was qondering 21 whether Part 54 excluded staff from recommending and 22 implementation of a SAMA if it wasn't related to aging 23 management, because I believe that was the basis that 24 you used for not implementing any of these based on 25 the filings that we received here at Indian Point.
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883 1 MR. TURK: As I understand it, the 2 regulation is silent in terms of requiring the 3 implementation of SAMA.
4 CHAIRMAN McDADE: Before we move on, Mr.
5 Bessette, Mr. O'Neill, Ms. Sutton, do you have 6 anything further on this point?
7 MR. O'NEILL: Your Honor, this is Mr.
8 O'Neill. I would just emphasize that it's-our view 9 that NEPA really confers no independent authority on 10 the Commission or the NRC to require implementation of 11 SAMA. I think that stems from the Methow Valley 12 decision where the Court stood quote, unquote NEPA 13 imposed no substantive requirement that mitigation 14 measures actually be taken.
15 And I think the reason the Commission 16 decided to impose this requirement is is at the time 17 that they implemented Parts 51 in 1996, they were able 18 to make a generic determination regarding the impacts 19 of severe accidents, but they weren't at the time able 20 to make a determination regarding possible mitigation 21 measures.
22 And in view of the Limerick decision, I 23 think the Commission felt compelled or obligation to 24 impose this requirement. And again, I would stress 25 that it focuses on an analysis of possible mitigation NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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884 1 measures, reasonably thorough discussion of 2 potentially cost beneficial SAMAs.
3 And again, I would direct the Board, 4 respectfully, to pages 26 to 27 of our answer, where 5 the Commission said the NRC believes that it should 6 continue to consider SAMAs for individual applications 7 to meet its responsibilities under NEPA.
8 And as NEPA requires the NRC to analyze 9 the environmental impacts of.. its actions and in so 10 doing implicitly requires agencies. to consider 11 measures to mitigate those impacts -when preparing 12 impact statements.
13 NRC's obligation to consider mitigation 14 exists whether or not mitigation ultimately is found 15 to be cost beneficial and whether or not mitigation 16 ultimately will be implemented by the licensee.
17 So I think in a nutshell, that's our 18 position. I think it's consistent with the NRC 19 staff's.
20 CHAIRMAN McDADE: Okay, thank you.
21 Mr. Sipos, anything further from New York 22 on this point?
23 MR. SIPOS: Yes, Judge. Just going back 24 to the Statement of Considerations, Federal Register 25 61 Federal Register 28481, clearly the discussion in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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885 1 there about implementation would envision, would 2 foresee the possibility that certain SAMAs, albeit 3 cost beneficial ones, could be implemented.
4 And while there's been discussion about 5 Methow Valley and NEPA as not mandating the 6 implementation of anything specific, clearly NEPA does 7 not constrain that. And if I.could address a question 8 from Judge Lathrop about McGuire, there is a line is 9 McGuire, Judge Lathrop, I believe it's at page 10.
10 I'll have to double check that page number, but it is 11 -- While NEPA does not require agencies to select 12 particular options, it is intended to 'foster both 13 informed decision making and informed public
.14 participation, and thus to ensure that the Agency does 15 not act upon any complete information, only to regret 16 its decision after it is too late to correct."
17 And there is also some discussion, I 18 believe, about a 2.206 petition process. And that's 19 not where this proceeding is. First of all, a 2.206 20 petition process has a very limited public 21 participation and even more limited right of review as 22 the Second Circuit's Riverkeeper case would bear out 23 from a few years back.
24 So really this is the venue, Judge McDade.
25 Perhaps getting back to your question or one of your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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886 1 questions, this is the appropriate venue. The 2 Commission in the Statement of Considerations back in 3 '96 anticipated the possibility of mitigation. The 4 Commission rejected the Part 54 categorical exclusion 5 argument in 2001. And it would be irrational under a 6 NEPA alternatives analysis to completely dismiss and 7 terminate a review of severe accident mitigation
.8 alternatives simply because they went to systems --
9 simply because they did not go to systems structures 10 and components that are outside the scope of Part 54, 11 That's wherethe rationality comes in. That's where 12 the alternatives analysis comes in under NEPA.
13 CHAIRMAN McDADE: Thank you. Mr. Sipos, 14 if I might refer you to page 15 of the staff's 15 response that table --
16 MR. SIPOS: Yes, Judge. I have that in 17 front of me.
18 CHAIRMAN McDADE: Under column 5 and 6, 19 they list -the various SAMAs that relate to your 20 Contention 35 and 36. Do you have any disagreement 21 with the information provided on that table?
22 MR. SIPOS: Judge, I know we had some 23 questions about this table when we were preparing our 24 reply. We alluded to that in our reply.
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887 1 check if there's a specified one you had a question 2 about.
3 CHAIRMAN McDADE: Under column 1, 2, 3, 4, 4 5 -- entitled "New York Contention 35" they put a yes 5 for the additional SAMAs that allegedly you say need 6 further analysis. There are nine of them.
7 MR. SIPOS: Yes, I think nine is the total 8 we had identified in Contention 35. Yes, Your Honor.
9 CHAIRMAN McDADE: Are those the nine that 10 you identified in 35?
11 MR. SIPOS: I beli.eve they are; 9, 21, 22, 12 53, 62, 7, 18, 19, and 53.
13 CHAIRMAN McDADE: Your contention says 14 that these -- you know with the re-analysis showed a 15 higher advantageous cost benefit ratio.
16 MR. SIPOS: Yes, for 35, they had not --
17 they were not cost beneficial in Entergy's' initial 18 Environmental Report. They were actually, it's the 19 opposite -- they were -- the costs were higher than 20 the benefits I believe.
21 CHAIRMAN McDADE: Correct. And I believe 22 that was for those and but didn't the staff identify 23 three of those that being IP 09, IP 53, IP 253, i'm 24 sorry. IP 209, IP 253, and IP 353, as being cost 25 beneficial in their SEI -- Draft SEIS. Is that not NEAL R. GROSS COURT REPORTERS -AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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888 1 correct?
2 MR. SIPOS: I would wish to double check 3 that, but that's what this chart does.
4 CHAIRMAN McDADE: So for the sake of 5 argument, then let's assume this chart is correct and 6 if it's isn't, then fine. What we say now is not 7 correct. But assuming this is correct, why are not 8 your allegations in regards to IP 209, IP 253, and IP 9 353 unt-imely because couldn't you have raised this 10 when the DEIS came out and not the re-analysis?
11 MR. SIPOS: Well, Judge, when the 12 re-analysis came out, we were able to see the 13 differences between the cost and the benefit. And we 14 initially focused on 21, 22, 62, 718, and 19, and then 15 we also realized that 953 and 53 again were of a 16 similar class. In that initially, by initially, I 17 mean Entergy, from Entergy's filings, they were found 18 to be too expensive. And then the re-analysis which 19 we were focusing on showed them to be beneficial.
20 So we were able to compare the numbers and 21 see that. Very clearly, at that time, you know, 22 starting in December of 2009.
23 CHAIRMAN McDADE: Again, why couldn't you 24 have raised that as part of the DEIS, for those three 25 contentions, three SAMAs, I'm sorry.
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889 1 MR. SIPOS: Three SAMAs, yes, Your Honor.
2 I think we were --
3 MR. ROISMAN: This is Tony. I'm sorry to 4 interrupt, but since this is an easy answer. I 5 wondered if I could give it to you.
6 MR. SIPOS: Judge, would that be 7 acceptable? Mr. Roisman is out of the office from 8 where I am.
9 CHAIRMAN McDADE: Go ahead.
10 MR. ROISMAN: Judge Wardwell, the three 11 that the staff identified for only cost effective in 12 the uncertainty analysis, not in the baseline 13 analysis, so they were in a different category, and 14 like the other six, there was still more cost 15 effective analysis to be done as to them.
16 We didn't feel and we made this point in 17 Contention 36 that if a SAMA were only cost effective 18 when you did the uncertainty analysis, but not cost 19 effective in the baseline analysis, there was much 20 chance that one could establish that there was a 21 substantial edge and that that should be an 22 implemented SAMA.
23 So that's the difference between those 24 three, and what we found when the 2009 re-analysis was 25 done.
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890 1 ADMIN. JUDGE WARDWELL: Thank you. Any 2 response to those line of questionings from staff?
3 MR. TURK: Yes, very briefly, Your Honor.
4 First, in response to Mr. Roisman, he's partially 5 correct. Of the three that staff identified in the 6 SEIS, in the SEIS as being cost beneficial, two of 7 them were part of the uncertainty analysis. Those are 8 the IC 221, IC 222. The third one, I believe the 9 staff identified as IC 353, was identified as both the 10 base case and the uncertainty analysis by the 11 Applicants as potentially cost beneficial.
12 But I think that's a minor point. I 13 wanted to make one other point about the table. The 14 data that are represented in the table are drawn from 15 the footnotes that appear at page 14 and if you'll 16 note on that page, 32, it gives you a citation to 17 where in the Environmental Report the Applicant has 18 identified potentially cost beneficial SAMAs of 33 19 identified as the Draft FEIS location, the source for 20 the table, the data on those. And for 035, the re-21 analysis sources.
22 So if anyone wants to re-examine the 23 source for those data that appear in the table, that's 24 where they are.
25 ADMIN. JUDGE WARDWELL: Thank you.
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891 1 Entergy, any response to that line-of questioning in 2 regards to column 5 of'table 15?
3 MR. O'NEILL: Yes, Judge Wardwell, this is 4 Mr. O'Neill. I would just emphasize that those 5 particular SAMAs you identified, IP 29, IP 253, and IP 6 353, were actually identified as potentially cost 7 beneficial as early as February 2008. And Entergy's 8 response to a staff RAI. And in that RAI response, we 9 detailed this in our answer, I believe on pages 8 to 10 9, Entergy provided additional analysis case in which 11 the impact to lost tourism and business was analyzed 12 as a baseline analysis and multiplied to account for 13 uncertainties. So they were first identified as 14 potentially cost beneficial. In February 2008, and of 15 course, that was ultimately reflected in the staff's 16 DSEIS.
17 ADMIN. JUDGE WARDWELL: Thank you, Mr.
18 O'Neill.
19 Mr. Sipos, back to the table, column 6, 20 dealing with New York Contention 36. Unfortunately, 21 this table identifies 9 SAMAs also, but a different 9.
22 So we won't be able to use the numbers, depending on 23 which ones we're talking about.
24 But as I understand this table now and you 25 can correct me if I'm wrong, these were the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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892 1 contentions that you felt where the re-analysis became 2 so cost beneficial that they warrant them to be 3 implemented as a license condition. Is that correct?
4 MR. SIPOS: Yes, Judge Wardwell, the SAMA 5 candidates, not the contentions, but the SAMA 6 candidates --
7 ADMIN. JUDGE WARDWELL: Every time I say 8 a C word, just assume I mean something different, the 9 contentions, because I probably call it a contention.
10 MR. SIPOS: The nine SAMA candidates that 11 we. -- that the State of -New York specifically 12 identified in Contention 36, became quite -- became 13 substantially most cost effective.
14 ADMIN. JUDGE WARDWELL: What criteria did 15 you use to, you know, kick you over? Was there a 16 threshold, ratio or something that says oh, now it's 17 way too cost effective to be ignored?
18 MR. SIPOS: I do not believe there was a, 19 specific mathematical ratio that we used and we may 20 have not necessarily captured all of the candidates in 21 Contention 36 that had an increase to cost, had an 22 increase in their effectiveness that made them 23 substantially more cost beneficial.
24 ADMIN. JUDGE WARDWELL: But if your 25 recollection that the number was a lot more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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893 1 advantageous with the re-analysis than it was with the 2 finding that the SEIS made in the draft?
3 MR. SIPOS: Yes, I believe so, Your Honor.
4 ADMIN. JUDGE WARDWELL: Mr. Turk, would 5 you like to respond to that question?
6 MR. TURK: I'm sorry, Your Honor, which 7 question.
8 ADMIN. JUDGE WARDWELL: Any of the line of 9 questioning dealing with New York State 36 and the 10 responses that New York State provided.
i 11 MR. TURK: The only thing I would note, 12 Your Honor, is that I'm not aware that New York did 13 any analysis to reach a position on potential cost 14 beneficial SAMAs. I believe they were just looking at 15 what the Applicant did and then just flagged the 16 Applicant's SAMAs of either being appropriate for 17 column 5 or column 6.
18 ADMIN. JUDGE WARDWELL: If that's true, my 19 question was towards them was what did they use that 20 allowed them to flag certain ones as being candidates 21 for support of New York State 36?
22 MR. SIPOS: And my answer is I really have 23 no idea, Your Honor. We did not see any quantitative 24 challenge in the contentions. There is absolutely 25 nothing in what the State filed that would say that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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894 1 there is some defect in the Applicant's analysis that 2 some quantitative factor should be give more weight or 3 ,that some factor was excluded. There's no challenge 4 at all to the analysis at all. It's simply a legal 5 conclusion. What should the Applicant do now that 6 it's done these analyses? And that goes to both 7 Contentions 35 and 36.
8 ADMIN. JUDGE WARDWELL: I understand that.
9 My line of questioning was. to determine what rationale 10 they used for indicating that the change in the
-11 results of the analysis warranted these potential 12 SAMAs to be part of 36. And that's what I was trying 13 to see if I could get better understanding of.
14 MR. TURK: Your Honor, we could find no 15 rational basis in the contention.
16 ) ADMIN. JUDGE WARDWELL: I'm sorry, I 17 interrupted you. Go ahead.
18 MR. TURK: I'm sorry. I said we could 19 find no rational basis of the contentions that could 20 explain that.
21 ADMIN. JUDGE WARDWELL: Thank you.
22 Entergy. Do you have any response?
23 MR. BESSETTE: Your Honor, this is Paul 24 Bessette. We're not aware of any criteria, or 25 rationale they used. Similar to Mr. Turk, we believe NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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895 1 the arguments are more legal and generic that should 2 have been made two years ago, and that's just saying 3 well, now it's really big. It's, just not a real 4 sufficient basis for a contention.
5 ADMIN. JUDGE WARDWELL: Mr. Turk, doesn't 6 the relative benefit play into any decision you might 7 reach? Let's say, for instance, there was a SAMA that 8 had -- that dealt with -- let's say we had two SAMAs 9 that dealt with -aging management at a hypothetical 10 site and that one was just marginally cost beneficial, 11 but the other one was had an obvious several orders or 12 magnitude benefit associated with it compared to the 13 cost. Does not that weigh into which ones you might 14 or might not implement as a license condition?
15 MR. TURK: Hypothetically, if a contention 16 addressed an aging related SAMA and of course, we 17 don't have one like that here, but. hypothetically, 18 once the staff considered that SAMA, they would have 19 to determine that there was a substantial benefit. I 20 forget the exact words of the regulation. But they 21 would then go to see whether or not they could reach 22 their adequacy determination under Part 54. Adequacy 23 of the AMP.
24 If you could hold just one second, Your 25 Honor.
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896 1 (Pause.)
2 The criteria that I was thinking of was 3 the use of the word substantial, the backfit criteria 4 under 50.109. But if a SAMA related to an aging-5 related element of license renewal, if it was only 6 marginally cost beneficial, then I would think it 7 would change our adequacy determination under Part 54.
8 But if there was something that was significantly cost 9 beneficial from a favorable standpoint, we would then 10 examine whether or not the AMP was adequate under Part 11 54, because that might affect a determination whether 12 the AMP was itself-adequate. And that's how we would 13 consider it.
14 ADMIN. JUDGE WARDWELL: Thank you.
15 MR. SIPOS: Judge Wardwell, this is John 16 Sipos, again. We did try to depict some of these 17 comparisons in a chart that accompanied the Contention 18 36. And I believe it's at page 49 and 48 of the March 19 I1.>submission.
20 Because they're charts, we actually lost, 21 I think, the page numbers on the bottom, but it 22 follows on page 47.
23 ADMIN. JUDGE WARDWELL: But as I look at 24 that, that's merely a chart of the figures for the 25 various nine SAMAs, but doesn't really say how you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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897 1 ended up selecting only those nine for that particular 2 chart or what criteria you used, to say ooh, this too 3 big a job or too small a job, etcetera.
4 MR. SIPOS: As I said before, we may not 5 have been -- covered the entire universe here, but we 6 did try to provide this comparison to show the 7 differences.
8 I think it was staff, but Entergy 9 criticized New York for not including one or more --
10 there I go -- one or more SAMA candidates, I believe, 11 within the contention. And State is not aware of any 12 NRC proceeding or decision that says because you 13 missed one SAMA in your contention, you can't go 14 forward with a contention regarding other SAMAs.
15 ADMIN. JUDGE WARDWELL: Thank you.
16 MR. O'NEILL: Your Honor, this is Mr.
17 O'Neill.
18 Mr. Sipos is referring to pages 23 and 24 19 of our answer where we point out the example that 20 dedicated gagging divide for steam generated tube 21 rupture events where Entergy identified these 22 particular SAMAs. They actually are numbered SAMAs, 23 but they're identified as potentially cost beneficial 24 in a May 2008 RAI response. They were discussed in 25 the DSEIS and in that case the estimated benefits were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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898 1 in order of $1 million to $3.5 million and the 2 implementation cost was about $50,000. So again, a 3 very significant difference there.
4 And that one was not one that was 5 highlighted by New York.
6 CHAIRMAN McDADE: Thank you, Mr. O'Neill.
7 Okay, I'm going to put the mute button on for a 8 second and we will be back with you in just a couple 9 of moments.
10 (Whereupon, the above-entitled matter went 11 off the record at 3:28 p.m. and resumed at 3:29 p.m.)
12 CHAIRMAN McDADE: This is Judge McDade, 13 back on the line. We don't have any further 14 questions. Before we terminate this status 15 conference, we just sort of go through from the NRC 16 staff standpoint, is there anything further that you 17 believe we should discuss at this status conference 18 before we recess?
19 MR. TURK: I don't believe so, Your Honor.
20 CHAIRMAN McDADE: From the standpoint of 21 Entergy?
22 MR. BESSETTE: No, Your Honor. We have 23 nothing further.
24 CHAIRMAN McDADE: New York?
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899 1 Sipos. Just following up on a response or colloquy I 2 was having with Judge Wardwell, I would also note that 3 in the accompanying statement of David Cannon, there 4 were also some charts that compared the differences in 5 various parts of the -- or various results of the SAMA 6 analysis between the 2007 and the 2009 SAMA analysis 7 that the Applicant provided. And I believe the issue 8 about the uncertainty of- the difference between 9 baseline and -- baseline -- preventative with 10 uncertainty, we also covered in paragraph 24 at least.
11 And may. have done so elsewhere, our Contention No. 36.
12 That's t for the State of New York.
13 CHAIRMAN McDADE: Thank you. From 14 Riverkeeper?
15 MS. BRANCATO: Hi, this is Brenda 16 Brancato. I was just wondering in light of the recent 17 decision by the New York State . of Environmental 18 Conversation to deny 401 water quality specification 19 which is necessary in order for 18.2 continuing 20 operating for license units 2 and 3B, renewed. I was 21 just wondering if the Board or the NRC staff could 22 speak to the impact of that decision, if any, on the 23 ongoing proceedings that we are all in the midst of?
24 CHAIRMAN McDADE: The answer is the Board 25 can't. Whether or not the NRC staff -- you can give NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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900 1 the NRC staff a call and speak with them.
2 MS. BRANCATO: Okay. Nothing besides 3 that, Your Honor. Thank you.
4 CHAIRMAN McDADE: From Clearwater?
5 MS. GREENE: We're fine with completing 6 the call.
7 CHAIRMAN McDADE: Okay, Connecticut.
8 . MR. SNOOK: Connecticut is also ready to 9 complete the call.
10 CHAIRMAN McDADE: Connecticut sounded like 11 it's more than ready-.
12 (Laughter.)
13 CHAIRMAN McDADE: Town of Cortlandt?
14 MS. STEINBERG: Town of Cortlandt has 15 nothing further, Your Honor.
16 SPEC. AGENT HANNAN: Okay, did 17 Westchester, Buchanan, or the New York City Economic 18 Development Corporation come on the line during the 19 course of the proceeding?
20 (No response.)
21 Apparently not. We will terminate the 22 status conference and we will expect to hear from you 23 all by May 4th. Thank you.
24 (Whereupon, at 3:32 p.m., the 25 teleconference was concluded.)
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CERTIFICATE This is t6 ceftify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: Entergy Nuclear Indian Point, Units 2&3 Name of Proceeding: Pre-Hearing Conference Docket Number: 50-247-LR, 50-286-LR ASLBP Number: 07-858-03-LR-BDO1 Location: (telephone conference) were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
Eric Mok len Official Reporter Neal R. Gross & Co., Inc.
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