ML021070708

LB Fifth Prehearing Conference Order (Confirming Matters Addressed at April 9, 2002, Telephone Conference)

ML021070708
Person / Time
Site:	Browns Ferry, Watts Bar, Sequoyah
Issue date:	04/17/2002
From:	Bechhoefer C Atomic Safety and Licensing Board Panel
To:
Byrdsong A
References
+adjud/rulemjr200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327 CivP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, RAS 4325
Download: ML021070708 (6)

Text

RAS 4325 UNITED STATES OF AMERICA DOCKETED 04/17/02 NUCLEAR REGULATORY COMMISSION SERVED 04/17/02 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. Richard F. Cole Ann Marshall Young In the Matter of TENNESSEE VALLEY AUTHORITY (Watts Bar Nuclear Plant, Unit 1; Sequoyah Nuclear Plant, Units 1 & 2; Browns Ferry Nuclear Plant, Units 1, 2 & 3)

Docket Nos. 50-390-CivP; 50-327 CivP; 50-328-CivP; 50-259-CivP; 50-260-CivP; 50-296-CivP ASLBP No. 01-791-01-CivP EA 99-234 April 17, 2002 FIFTH PREHEARING CONFERENCE ORDER (Confirming Matters Addressed at April 9, 2002, Telephone Conference)

On April 9, 2002, the Atomic Safety and Licensing Board conducted a telephone prehearing status conference (Tr. 199-261). (The conference had been scheduled during the February 5, 2002 conference, see Fourth Prehearing Conference Order, dated February 13, 2002, at 3). Participating, in addition to the three Licensing Board Administrative Judges, were Brent Marquand, Esq., John Slater, Esq., Edward Vigliucci, Esq. and David Repka, Esq.

Counsel for Tennessee Valley Authority (TVA), Licensee; and NRC Staff Counsel Dennis C.

Dambly, Esq. and Jennifer Euchner, Esq., accompanied by Nicholas Hilton, of NRCs Office of Enforcement (OE). The following matters were addressed at this conference:

1. The Board granted the March 1, 2002 Motion of the Nuclear Energy Institute (NEI) for Leave to File a Brief Amicus Curiae, to which no party objected, and will take the brief into account in making its decision in the case. Tr. 203.

2. The Board ruled on two motions in limine filed by the NRC Staff on April 4, 2002, to exclude the testimony and summary of analyses of Carey L. Peters, and to exclude certain documents related to Ronald Grover. The Board denied the motions, finding TVAs argument in opposition to both motions (see TVAs Responses In Opposition to NRC Staff Motion In Limine to Exclude the Testimony and Summary of Analyses of Cary L. Peters, and TVAs Response in Opposition to Motion In Limine to Exclude Documents Related to Ronald Grover

[TVA Grover Response], both filed on April 8, 2002) to be persuasive, with the following qualifications:

(A) Any objections the Staff has to Mr. Peters testimony would go to the weight the Board should accord his testimony, and the Staff may, through cross-examination of Mr. Peters, bring out any weaknesses in his statistical analyses. Tr. 203. Any questions regarding Mr.

Peters qualifications as an expert witness may also be raised during the hearing, through appropriate means including voir dire examination.

(B) With the exception of the TVA Office of Inspector General (OIG) report, all documents relating to Mr. Grover that the Staffs motion addressed may be presented at the evidentiary hearing, in that the Board is persuaded by TVAs argument in opposition to the Staffs motion that these documents would relate to issues of bias and credibility. See TVA Grover Response. The parties agreed, with regard to the OIG report, to enter into stipulations of fact with regard to the undisputed facts underlying the OIG report, in lieu of introducing the report itself. Tr. 228-30.

3. With regard to the NRC OI report relating to Mr. Fizers complaint against TVA, the board noted the de novo nature of this proceeding, in which the action of the NRC Staff is not at issue, and the parties agreed to enter into stipulations of fact with regard to the NRC OI report regarding Mr. Fizer, and also agreed that a document written by NRC Regional Counsel Evans would be admitted by stipulation, and that the previously sought testimony of Mr. McNulty would no longer be needed. Tr. 216-30.

4. Staff counsel agreed that the personnel policies at issue in a TVA Motion in Limine filed April 5, 2002, would not be presented into evidence unless a TVA witness testimony makes them relevant, which was agreed to by TVA counsel. Tr. 207-8.

5. TVAs Motion in Limine regarding certain tape recordings made by Mr. Fizer, which the NRC Staff has had enhanced and transcribed, was denied, with the following provision: Any transcripts will be used only as guidance, with the tapes themselves being the only evidence considered as such, and the NRC will provide copies of all enhanced recording and transcripts to TVA post haste, in order that TVA can counter any perceived inaccuracies in the transcripts with its own version of what is said on the tapes in question. Any necessary measures to mitigate any possible prejudice against TVA by virtue of the timing of the provision of the tapes and transcripts to TVA may be taken, as necessary. The quality and audibility of the tape recordings will be considered in determining what weight to give them in making a decision in the case. Tr. 208-12.

6. The parties agreed that, in lieu of the testimony of either Attorney Marquand or Attorney Vigliucci, the Staff may call other witnesses, including Mr. Donald Hickman, Ms. Cathy Welch, and Mr. Robert Beecken. Tr. 239-55.

7. All further objections to evidence shall be taken up in appropriate order during the evidentiary hearing. The parties were also advised to be prepared to omit witnesses whose testimony would be cumulative, in the interest of an efficient hearing process. Stipulations that such witnesses would testify to the same effect as other witnesses might be made in lieu of the actual testimony of such witnesses, and the Board may also suggest omitting cumulative testimony during the evidentiary hearing. Tr. 255-57.

8. The Board Chairman agreed to issue several subpoenas that are still required after the above rulings. (Such subpoenas were in fact issued on April 9, 2002, and transmitted to the parties who sought them.) With regard to hearing exhibits, the parties agreed to provide notebooks of their exhibits, in the following categories: NRC Staff exhibits; TVA exhibits; and joint exhibits, which both parties intend to use. These shall be accompanied by detailed indexes to the exhibits. Each Board member will be provided with a complete set of exhibits, in mailable boxes; the court reporter will be provided with an original set and two copy sets of exhibits; and copies will also be provided for opposing counsel and for witnesses to utilize as necessary during their testimony. Tr. 237-38.

9. Any witnesses who have special needs or scheduling difficulties may be accommodated, and to facilitate this, counsel will bring any such issues to the attention of the Board in a timely manner. Tr. 259.

10. After the conclusion of the evidentiary hearing, counsel for both parties will be provided time to submit proposed findings of fact and conclusions of law. Tr. 212.

It is so ORDERED.

For the Atomic Safety and Licensing Board

/RA/

Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland April 17, 2002

[Copies of this Order have been e-mailed this date to counsel for each party.]

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

)

TENNESSEE VALLEY AUTHORITY

)

Docket Nos. 50-390-CIVP,

)

50-327/328-CIVP and (Watts Bar Nuclear Plant, Unit 1;

)

50-259/260/296-CIVP Sequoyah Nuclear Plant, Units 1 & 2; and

)

Browns Ferry Nuclear Plant, Units 1, 2 & 3) )

(Order Imposing Civil Monetary Penalty)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB FIFTH PREHEARING CONFERENCE ORDER (CONFIRMING MATTERS ADDRESSED AT APRIL 9, 2002, TELEPHONE CONFERENCE) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Charles Bechhoefer, Chairman Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Ann Marshall Young Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Dennis C. Dambly, Esq.

Susan S. Chidakel, Esq.

Jennifer M. Euchner, Esq.

Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Mark J. Burzynski, Manager Nuclear Licensing Tennessee Valley Authority 1101 Market Street Chattanooga, TN 37402-2801

2 Docket Nos. 50-390-CIVP 50-327/328-CIVP and 50-259/260/296-CIVP LB FIFTH PREHEARING CONFERENCE ORDER (CONFIRMING MATTERS ADDRESSED AT APRIL 9, 2002, TELEPHONE CONFERENCE)

Thomas F. Fine, Esq.

Assistant General Counsel Office of the General Counsel, ET 10A-K Tennessee Valley Authority 400 W. Summit Hill Drive Knoxville, TN 37902

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 17th day of April 2002