ML022130242
| ML022130242 | |
| Person / Time | |
|---|---|
| Site: | Mcguire, Catawba, McGuire  |
| Issue date: | 07/29/2002 |
| From: | Robert Davis Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-369-LR, 50-370-LR, 50-413-LR, 50-414-LR, NRC-495, RAS 4704 | |
| Download: ML022130242 (85) | |
Text
-1ýA-5 4-7QoL(
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Duke Energy Corporation McGuire Nuclear Station Units 1 & 2 Catawba Nuclear Station Units 1 & 2 Docket Number:
Location:
Date:
50-369-LR et al.
(telephone conference)
Monday, July 29, 2002 Work Order No.:
NRC-495 Pages 1064-1146 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 SECY-62L C'5
.-3 C=,
C-,-'
S 0K MITc 1(93 C9-
0641 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
+ +.
+ +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5
LICENSING RENEWAL 6
TELEPHONE CONFERENCE CALL 7
x 8
IN THE MATTER OF Docket Nos.
9 DUKE ENERGY CORPORATION 50-369-LR 10 (McGuire Nuclear Station, 50-370-LR 11 Units 1 & 2, Catawba Nuclear
- 50-413-LR 12
- Station, Units 1 & 2) 50-414-LR 13 x
14
- Monday, 15 July 29, 2002 16 The above-entitled matter came on for hearing, 17 pursuant to notice, at 10:00 a.m.
18 BEFORE:
19 THE HONORABLE ANN MARSHALL YOUNG, Chair 20 THE HONORABLE CHARLES N.
KELBER 21 THE HONORABLE LESTER S.
RUBENSTEIN 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1065 1
APPEARANCES:
2 on Behalf of the Licensee, Duke Energy Corp.:
3 DAVID A.
- REPKA, ESQ.
4 ANNE W. COTTINGHAM, ESQ.
5 Of:
Winston & Strawn 6
Suite 800 7
1400 L Street, NW 8
Washington, DC 20005 9
(202) 371-5700 10 AND 11 LISA F.
- VAUGHN, ESQ.
12 Of:
Duke Energy Corporation 13 422 South Church Street 14 Charlotte, NC 28202 15 16 On Behalf of the Nuclear Regulatory Commission:
17 JARED HECK, ESQ.
18 SUSAN L.
- UTTAL, ESQ.
19 U.S. Nuclear Regulatory Commission 20 Office of the General Counsel 21 Mail Stop-0-14D21 22 Washington, DC 20555-0001 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1066 1
APPEARANCES:
(cont.)
2 on Behalf of the Intervenors:
3 DIANE CURRAN, ESQ.
4 Washington, D.C.
5 6
MARY OLSON, Director Southeast Office 7
Of:
Nuclear Information and Resource Service 8
729 Haywood Road, 1-A 9
P.O.
Box 7586 10 Asheville, NC 28802 11 12 LOU ZELLER, Executive Director 13 Blue Ridge Environmental Defense League 14 P.O. Box 88 15 Glendale Springs, NC 28629 16 ALSO PRESENT:
17 Michael Barrett, Duke Energy 18 Duncan Brewer, Duke Energy 19 Ken Canady, Duke Energy 20 Bob Gill, Duke Energy 21 Dr.
Ed Lyman 22 Robert Palla, NRC staff 23 Greg Robison, Duke Energy 24 Jim Wilson, NRC staff 25 James Wilson NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1067 1
P-R-O-C-E-E-D-I-N-G-S 2
(10:07 a.m.)
3 JUDGE YOUNG:
Okay.
So, then, going on 4
the record, Judge Kelber and Judge Rubenstein 5
hello?
6 MS.
COTTINGHAM:
Judge Young?
This is 7
Anne Cottingham.
I'm sorry to interrupt.
You're 8
cutting out.
I can't hear you every sentence.
9 JUDGE YOUNG:
Okay.
Let me just ask --
I 10 know that this happens when more than one party is on 11 a speakerphone, and anyone rustles papers or makes any 12 noise or talks at the same time.
It causes whoever is 13 speaking to sort of blank out.
14 So thanks for bringing that to my 15 attention, and please do it again if it seems like I 16 am.
I know sometimes reading transcripts it appears 17 that that is what has happened.
So any party or the 18 Court Reporter, please feel free to interrupt me or 19 anyone else if that seems like that's happening.
20 As I
was
- saying, Judge
- Kelber, Judge 21 Rubenstein and I
have all read the Commission's 22 CLI 02-17.
And we have been deliberating and 23 conferring on how best to approach the remainder of 24 this proceeding in light of that, and have found 25 several helpful suggestions in the order, in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1068 1
2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 memorandum and order.
By the way, I wasn't here, but is Snodderly with us?
I don't hear any response, assume he's not.
What I'd like to do is just -- just tell the parties sort of our thinking on how we are inclined to proceed at this point and --
- well, we would like to get the three -
MS.
UTTAL:
Judge Young, excuse me.
This is Susan Uttal.
You keep on fading out, so we're only hearing part of your sentence.
JUDGE YOUNG:
Okay.
I'm going to start over again.
Judge Rubenstein, Judge Kelber, and I have all read the Commission's recent order of what's the date?
July 23rd.
And I assume the parties have also.
In light of that order, Judge Rubenstein, Judge Kelber, and I have considered and deliberated on what is the best manner in which to proceed from this point forward in this proceeding.
We found many helpful suggestions in the
- order, either --
such as the direct suggestion on proceeding with summary disposition and in other language found in the order.
What we would like to do at this point is I will read or I will go over with you our proposed sort of outline for proceeding in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com Mike so I
1069 1
most efficient manner, and then we would like to hear 2
responses from the parties on whether you agree, 3
disagree, see any problems, have any suggestions, have 4
any fine tunings that you would like to offer.
5 And then, if we go with our outline, we do 6
not necessarily see any need to hear further argument 7
on the remaining four subparts of the Petitioners' 8
proposed amended contention 2.
But if at the end of 9
our outline there does develop a need to hear further 10
- argument, we can hear what you have to say on that.
11 So what I'd like to do at this point is 12 just sort of go through that outline and then start a
13 discussion with the parties on the best manner in 14 which to proceed.
15 First, in light of the suggestion to this 16 effect in the Commission's order, we are inclined to 17 proceed at this point in the context of a Motion for 18 Summary Disposition, which would follow a
60-day 19 period of discovery among all parties, including the 20 staff.
21 Forthwith, as soon as possible, we would 22 expect the parties to negotiate on any necessary 23 agreements with regard to protective orders on any 24 proprietary information, and then get very quickly 25 into whatever discovery is needed in light of the rest NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1 070 1
of what I have to say and the Commission's order.
2 After the close of discovery, there would 3
be appropriate deadlines for motions for summary 4
disposition and responses and then oral argument on 7 1 those.
We are thinking in terms of the party -
6 possibly the only party filing such a motion being 7
Duke.
- However, obviously, that would not foreclose 8
any other party from filing their own motions.
9 We would expect that any motions for 10 summary disposition would address a
number of 11 concerns, including the following.
First, in view of 12 the criteria used in risk-informed regulations, as set 13 forth in NUREG/BR-0058, Regulatory Analysis Guidelines 14 of the U.S. Nuclear Regulatory Commission, Revision 3, 15 which set of estimates goes in Duke's analysis or 16 those of the Sandia study, NUREG-6427, of conditional 17 containment failure probability are more appropriate 18 for use in the SAMA --
Duke's SAMA analysis in this 19 license renewal proceeding.
20 That is, do the Sandia assumptions reflect 21 better estimates than Duke's?
And should the values 22 from the Sandia study have been utilized in the 23 analyses of mitigation alternatives for hydrogen 24 control during station blackout?
25 There are other examples of language in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1071 1
the Commission's order, but basically this category 2
would include all of the issues of adequacy and which 3
approach is more appropriate, as discussed in various 4
places by the Commission, and as has been discussed at 5
various points in this proceeding before the Board.
6
- Also, was Duke's overall cost-benefit 7
assessment skewed or incomplete because of a failure 8
to include the higher event frequencies used in the 9
Sandia study?
10
- Next, because they address the Sandia 11 study results, do the draft SEISs, as the Commission 12 said, they made indeed largely appear to render moot 13 the contention's first concern, i.e.
the SAMA analysis 14 failure to include information from the Sandia study.
15 In other words, do the RAIs and the SEISs moot the 16 contention?
17
- Next, we would like to have the criticisms 13 of the Sandia study alluded to in footnote 24 of 19 CLI 02-17 to be addressed.
And this is not an 20 exhaustive list, but these are issues that, in light 21 of the Commission's
- order, we think should be 22 addressed either in a motion or a response to a
23 motion, or both.
24
- Next, in light of the Commission's order 25 and the foregoing how we are proposing that we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C.
20005-3701 www.nealrgross.com
1072 1
proceed, obviously, we will hear any argument of the 2
parties.
But in light of these, our ruling on the 3
Motion to Amend consolidated contention 2,
we are 4
inclined to find --
we are inclined not to admit the 5
contention as such, because we find that good cause 6
for late filing of those parts that are outside this 7
has not been shown, such that they --
they -
8 MS.
CURRAN:
You're cutting out there, 9
Judge Young.
10 JUDGE YOUNG:
And I think I hear people 11 sort of rustling papers, and I
think that's the 12 reason.
I hope we haven't missed anything --
other 13 things I've said.
So if there are any blanks, please 14 interrupt me.
15 MS.
CURRAN:
There was one blank at the 16 end where you said, "We are inclined not to allow the 17 amendment of the contention."
There was a blank in 18 there.
But the rest I heard, I thought.
19 JUDGE YOUNG:
I'll start over on that one.
20 In light of the Commission's order and the sort of 21 alternative approach that we have developed and are 22 inclined to follow, we are inclined to rule on the 23 Motion to Amend consolidated contention 2
in the 24 following manner:
that we would not admit it as such, 25 because we -- one, because we find that good cause for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1073 1
late filing of those parts outside the scope of 2
consolidated contention 2 has not been shown, such 3
that we would find that they do not meet the criteria 4
for late-filed contentions, nor do we find good cause 5 1 has been shown for the late filing of any parts that 6
do not arise out of the RAI responses.
7 And then,
- finally, we find we would 8
find that the intent of any portions that might 9
otherwise --
as arising out of the RAI responses and 10 otherwise meeting the standards for late-filed may 1I be addressed -
12 THE COURT REPORTER:
I'm sorry, Judge.
13 Could you start that sentence over again?
14 JUDGE YOUNG:
The last five minutes have 15 been one sentence, but --
did you get the first two 16 parts of it?
17 MS.
CURRAN:
I think we I heard, "No 18 good cause for admission of issues outside the scope 19 of contention 2 or arising out of RAI responses," and 20 then I I didn't hear very well after that.
21 JUDGE YOUNG:
Okay.
I'm going to start 22
- over, and I'm going to ask everyone to please stay 23 quiet so -- let me just say it.
I'll use the handset.
24 And then, when we listen to what you have to say, I'll 25 put you back on speaker.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1074 Okay.
Let me try again.
In light of the Commission's order and of our proposed outline for how to proceed in this in the remainder of this proceeding before the Board, our inclination on the Motion to Amend consolidated contention 2 is to rule as follows:
that we would not admit it as such, because we find that good cause for late filing of those parts outside the scope of consolidated contention 2, the original contention, has not been
- shown, such that we would find that they do not meet the criteria for late-filed contentions under 10 CFR 2.714, I believe it's (a).
If I'm mistaken about that section, we can correct that.
Nor do we find --
second, nor do we find that good cause has been shown for the late filing of those parts that do not arise out of the RAI responses.
- And, finally, we would find that the intent of any portions that might otherwise be considered to arise out of the RAI responses, and otherwise meet the standards for late-filed contentions, may be addressed appropriately in the context of a Motion for Summary Disposition in which
- subjects, including those listed
- above, including those we have I have already gone through, are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1075 1
addressed either in a motion or a response.
2 That is, all subjects of the late-filed 3
contentions may be raised in a response to a Duke 4
Motion for Summary Disposition, and would be 5
considered by the Board in that context.
6
- Some, like, for example, Subpart 1
in 7
particular, may not receive much attention by the 8
Board, but we would not prohibit you from arguing any 9
part, and all parts would be considered as they would 10 be in considering any Motion for Summary Disposition 11 and responses thereto.
12 And now that Ms.
Curran is on board 13 representing the Petitioners, I don't think I need to 14 explain the standards for --
and the requirements for 15 motions for summary disposition and responses.
16
- Then, if
-- to conclude on the Motion for 17 Summary Disposition context, obviously, if the motion 18 were granted, that would end the proceeding.
And if 19 the motion were denied, we would go to hearing.
20 Also, Judge Kelber has located some other 21 reference which --
references which may be cited in 22 any filings relating to such a motion, and I'm going 23 to let him read those to you.
24 I'm going to go back on speaker now.
25 JUDGE KELBER:
Has everyone heard Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
"1076 1
Young completely?
2 MS.
CURRAN:
This is Diane Curran.
I 3
think I heard it all.
4 MR.
REPKA:
- Yes, sir.
This is Dave Repka.
5 MR.
HECK:
This is Jared Heck for the 6
staff.
We heard that.
7 JUDGE KELBER:
Okay.
In studying all of 8
- this, I came across two other references which 9
well, three other references which may be relied upon, 10 I believe, in one way or the other.
The first is 11 NUREG/CR-6595 an approach for estimating the 12 frequencies of various containment failure modes and 13 bypass events.
14 This was written by Trevor Pratt and 15 others in January 1999 and has received Commission 16 endorsement in the formulation of national standards 17 for PRAs.
18 Secondly, there is a report available on 19 the web Flame Acceleration and Deflagration to 20 Detonation Transition in Nuclear Safety -- a state-of 21 the-art report by a group of experts, OECD Nuclear 22 Energy Agency.
Its number is NEA/CSNI/R 2000(7).
And 23 this was August 2000.
But it's available on the web 24 at,
- well, www.galcit that's G-A-L-C-I-T 25
.caltech.edu/-jeshep/soar/.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1077 1
And, finally, Elizabeth Bettay Carnell has 2
published a paper in the latest issue of Risk Analysis 3
entitled "Risk and Uncertainty Analysis in Government Safety Decisions."
And it's in Volume 22, Number 3.
5 That's June.
And it's pages 633 to 646.
It's also 6
available on the web, but I think the risk analysis 7
journal article is available widely.
8 MS.
CURRAN:
Judge Kelber, this is Diane 9
Curran.
I want to ask --
I think I got numbers 1 and 10 3, but number 2, if you could send us an e-mail with 11 that information.
It's just a little hard to hear all 12 the words and the numbers and all.
13 JUDGE KELBER:
Let me give you the 14
- website, and then it becomes clearer.
It's 15 www.galcit.caltech.edu/-jeshep/soar/.
If you have 16 trouble locating it, give me an e-mail and I'll send 17 it I'll send you the link directly.
18 MS.
CURRAN:
Okay.
19 JUDGE YOUNG:
All right.
You've heard, I 20 hope -- this is Judge Young again.
You've heard, I
21 hope, what we have had to say to you this morning, and 22 we would like to hear your responses, based on your 23 own --
and I'm sure everyone --
all of you have read 24 the Commission's order -- based on your own reading of 25 it.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1078 1
At this point, I'd like to hear your 2
responses to what we have said this morning.
3 MS.
CURRAN:
Judge Young, this is Diane 4
Curran.
I want to make a request.
This is all new 5
here, what you've laid out this morning.
And I would 6
like to have a chance to talk it over with our expert 7
and my client,
- and, of course, we're in different 8
places.
I wonder if it would be possible to take a 9
15-minute break and then come back on the line.
I 10 feel like I could give a better response if we were 11 able to do that.
12 JUDGE YOUNG:
That might be a good idea.
13 That way everyone could talk with your respective 14 clients and come back and maybe more efficiently 15 address the issues we've raised.
16 Before we do that, does anyone have any 17 questions, just to clarify what we've said, that would 18 make it easier for you in your consultations 19 separately?
20 MR.
REPKA:
- Yes, Judge Young.
This is 21 Dave Repka.
I think what I'm trying to understand is 22 going through your outline you talk about the fact 23 that you would be non-inclined to admit --
that are 24 shown to be outside the scope -
25 JUDGE YOUNG:
Now you're breaking out.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1079 1
We're missing I think a lot of your words.
So maybe 2
you should -
3 MR.
REPKA:
Okay.
I've picked up the 4
phone.
Does that help?
5 JUDGE YOUNG:
That does.
Thank you.
6 MR.
REPKA:
What we're trying to 7
understand, I think, is what really the Board intends 8
to do with the eight proposed amended contentions.
If 9
we talk about going into discovery and addressing i0 certain things in a
summary disposition
- motion, 11 obviously, we have an original consolidated 12 contention 2, which defined a specific issue, and that 13 we can address in summary disposition as well as the 14 issues that you have identified here this morning.
15 But I think, as you know, our position is 16 on the eight amended contentions that they are beyond 17 the scope of the original contention and/or have no 18 basis.
And we're not clear what the Board 19 contemplates in terms of allowing discovery on those 20 issues and needing to address all of those issues in 21 summary disposition or not.
22 JUDGE YOUNG:
Okay.
I'm going to speak up 23 I'm going to pick up the receiver now and just try 24 to answer your questions.
Our thinking is that we 25 want to address --
we want to proceed at this point in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com v
1080 1
the most efficient manner possible.
2 We could continue with argument on the 3
proposed amended contention.
However, after reading 4
the Commission's order, and several references in the 5
Commission's order to the broad issue that might be 6
described as relating to the adequacy of Duke's SAMA 7
analysis in its consideration of NUREG-6427, or with 8
regard to which assumptions reflect better estimates, 9
which approach would -- which set of estimates would 10 be more appropriate for use in the SAMA analysis -
11 Duke's or NUREG-6427.
12 We are sort of viewing the original 13 consolidated contention 2, at this point, based on the 14 Commission's order, as implicitly including what could 15 be described as the intent of Subpart 4
of the 16 proposed amended contention, and that various other 17 parts of the proposed amended contention might fall 18 within that general scope.
19 For example, on discovery it's not unusual 20 for parties to challenge PRAs.
I know that Duke said 21 in our last conference --
I think it was the last one 22
-- that the original PRAs are available and that the 23 recent revisions have been provided to the NRC not as 24 sort of revamped PRAs but as revisions which someone 25 could read and apply to the original PRAs and see how NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1081 they would make them differ.
That might be an area 2
for discovery.
3 Several other parts of the proposed 4
amended contention might fall within the general issue 5
of the adequacy of Duke's consideration of NUREG-6427 6
and basically which approach, which estimates, which 7
assumptions, which values are more appropriate to be 8
used in the SAMA analysis for the McGuire and Catawba 9
plants.
i0 So we could take the time to hear the ii argument of all of you on all of these separate 12 subparts of the amended contention.
And we could then 13 take the time to write up a long much longer than 14 I've gone through a moment ago order addressing 15 each subpart of the proposed amended contention.
16 The Commission,
- however, has suggested 17 that summary disposition would be an appropriate route 18 to follow as the next step in this case.
We are 19 inclined to think that it is not the most efficient 20 use of the parties' time, or of our time, to go more 21 in depth into the proposed amended contention, given 22 that, in light of the Commission's order, we would now 23 construe the original contention to allow for adequacy 24
- issues, which approach is more appropriate issues, 25 those types of issues, to be argued under the original NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1082 1
consolidated contention 2.
2 In
- effect, as Ms.
Curran had argued I
3 think on April 29th when the issue of mooting first 4
came up --
in other words, I think we would probably 5
- not, after the Commission's order, be inclined to 6
entertain favorably and this is I'm talking 7
about our inclination now, and I'm speaking --
- and, 8
obviously, I have not conferred privately with Judge 9
Kelber and Judge Rubenstein, but I think that after 10 the Commission's order, if Duke, for example, were to 11 file a Motion for Summary Disposition saying we have 12 done the analysis with NUREG-6427 -- and that's enough 13 to moot it out without getting to issues of adequacy 14 and which approach is more appropriate --
we would not 15 be inclined, I think, to grant a simple Motion for 16 Summary Disposition limited in that way, which I think 17 was how Duke was looking at it earlier on.
18 By virtue of the clarification and 19 assistance offered in the Commission's order, we think 20 that the Commission's suggestion to proceed in a
21 context of a Motion for Summary Disposition is more 22 appropriate.
23 We think that the adequacy, which is 24 which approach is more appropriate issues, can be 25 dealt with in both the motion and responses to that.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1083 1
And then, to the degree they would be relevant, that 2
the Petitioners might find them relevant, or any other 3
party for that matter, the various other subparts of 4
the proposed amended contention 2, those same issues 5
could be argued in the context of a Motion for Summary 6
Disposition.
7 Given that, what we are inclined to do is 8
make a fairly concise and condensed ruling on proposed 9
amended contention 2, as I stated earlier.
In other 10 words, without going into detail on which parts fall 11 within which categories, we would find either that 12 certain parts might not be within the scope of the 13 original consolidated contention 2, such that the sort 14 of exception we created by setting deadlines would not 15 make them fall within or meet the late filing criteria 16 of 10 CFR 2.714.
17 Other parts we might find that good 18 cause has not been shown for the late filing of them, 19 because they do not arise out of the RAI responses.
20 Subpart 1, in particular, comes to mind there.
21 And then, finally, we would find that the 22 intent of any portions that might otherwise be 23 considered as arising out of the RAI responses, and 24 otherwise meeting the standards for late-filed 25 contentions, may be addressed in the context of a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1084 1
Motion for Summary Disposition by Duke in which the 2
various subjects that we listed would be addressed.
3 I think probably Subpart 4 --
the intent of that would be would go to the general 5
adequacy/which approach is better issue.
Some of the 6
other subparts might be, in effect, subissues of the 7
general adequacy issue, and could be raised in a
8 response to a Motion for Summary Disposition.
9 And in contrast to how we might have 10 proceeded prior to issuance of the Commission's order 11 on July 23rd, at this point we would not be inclined 12 to just knock them out of the ball park or knock them 13 out of the ball game based on the previous arguments 14 on scope and on interpretation of the original 15 consolidated contention that we've been hearing and 16 discussing and considering.
17 Does that assist you in understanding what 18 we would be intending to do with the pending Motion to 19 Amend the contention 2?
In other words, rather than 20 doing a long, detailed order on it, we would --
we 21 would resolve it in the somewhat condensed manner that 22 I outlined briefly before.
23 I'm going to put you back on speaker now.
24 MR.
REPKA:
Judge Young, this is Dave 25 Repka again.
Do I -- when you talk about resolving in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1085 1
a short or a condensed form, do I hear you to say that 2
you would give us some indication as to what issues 3
you would like to see addressed versus those that 4
you've determined would not be on scope or good cause 5
filed?
6 I guess we would have a concern for any 7
summary disposition motion that we would need to tell 8
what the universe of what we need to address is.
And 9
without that kind of specificity, we would feel like 10 we're shooting at a moving target.
11 JUDGE KELBER:
This is Judge Kelber.
The 12 Commission, in addition to noting the question of 13 whether or not the SEISs moot the consolidated 14 contention, the Commission has also drawn attention, 15 on the bottom of page 11 and top of page 12 of its 16 decision, to the question of the --
appropriate.
17 And I think that defines the scope of 18 topics deal with the appropriateness of the 19 contention, and that's why I mentioned NUREG/BR-0058, 20 which defines the regulatory analysis guidelines.
21 JUDGE YOUNG:
- Also, I think the --
I agree 22 with Judge Kelber, and I think if Duke files a Motion 23 for Summary Disposition --
this is Judge Young again 24 for the Court Reporter that your motion would 25 address the general issue that Judge Kelber just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1086 1
referenced, the general adequacy/which approach is 2
better issue.
3
- Now, then, with regard to the other 4
subparts -- and I think that we're sort of looking at 5
Subpart 4 as being the broad, which is better for 6
- short, issue.
The other subparts would either be 7
rendered unnecessary for consideration through the -
8 by virtue of the discovery process or they would be 9
issues that the Petitioner could argue in the context 10 of a --
a Duke Motion for Summary Disposition.
11 So based on
- that, we would find it 12 unnecessary to do --
to give any --
to go into any 13 greater detail and ruling on the proposed amended 14 contention, at this
- point, in light of the 15 Commission's order.
And in light of our ability to 16 assess all of those issues in the context of summary 17 disposition.
And I say a motion, but, obviously, any 18 party could file a motion.
19 JUDGE RUBENSTEIN:
This is Judge 20 Rubenstein.
One might look to additional guidance 21 under Commission's licensing instruction, wherein they 22 state the contention is admissible, but only insofar 23 as it raises the question whether the values from the 24 study should have been utilized in the analysis of 25 mitigation alternatives for hydrogen control during a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1087 1
station blackout.
2 So this provides some narrowing guidance 3
on where we should be going.
In effect, should the 4
Sandia assumptions have been used?
Did the RAI and 5
SEIS moot the contention?
And should Duke's SAMA have 6
addressed the study?
7 So those are the core issues which we have 8
to come to grips with, and which we are looking for 9
arguments on within the framework of what Judge Young 10 laid out.
11 JUDGE YOUNG:
Other questions?
12 JUDGE RUBENSTEIN:
Are there any questions 13 on that?
14 MS.
CURRAN:
So, Judge --
this is Diane 15 Curran -- just to clarify, before discovery commences, 16 there would be a ruling on the Motion to Amend 17 contention 2?
18 JUDGE YOUNG:
Assuming none of your 19 arguments --
this is Judge Young.
Assuming none of 20 your arguments change our minds, we would proceed as 21 T just laid out in other words, with a fairly 22 condensed, brief ruling on the proposed amendment to 23 contention 2, with the understanding that virtually 24 all of the issues that you have raised could be 25 addressed in the context of a summary disposition NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 break?
MR.
REPKA:
What time should we come back?
MS.
CURRAN:
I'd like to ask for at least 20 minutes.
JUDGE YOUNG:
MS.
CURRAN:
JUDGE YOUNG:
MS.
CURRAN:
Five after 11:00?
Okay.
All right.
And I'll call the other Intervenors.
JUDGE YOUNG:
Okay.
Great.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 1088 motion more efficiently at this point in light of the guidance offered by the Commission.
MS.
CURRAN:
Okay.
I understand.
JUDGE YOUNG:
Any other questions before we take a short break to let each party confer with your -
MS.
OLSON:
Judge Young, this is Mary Olson.
I apologize for being late.
I just wanted to let Ms.
Curran know that I'm here.
JUDGE YOUNG:
And whatever arrangements you all need to make with each other for conferring privately, you can do that.
I think you can come back on the line if you go off.
Either that or you can put it on mute.
So, any other questions before we take a
1089 1
JUDGE KELBER:
Now, before you start your 2
considerations, I suggest that you really consider the 3
guidelines, because this is not an open -- this is not 4
an open hunting season.
We are limiting it on the 5
guidelines for regulatory analysis.
That's what the 6
Commission has in mind.
7 MS.
CURRAN:
Could you just explain that 8
a little more, Judge Kelber?
9 JUDGE KELBER:
NUREG/BR-0058 combines the 10 guidelines contained in the Commission's various 11 statements, both published in the Federal Register and 12 elsewhere, on how regulatory analysis is performed, 13 and there is a substantial portion on the use of PRAs 14 in regulatory analysis.
And I think that has to be 15 kept in mind.
And we're not proposing that there be 16 open hunting season on every number in every PRA.
17 JUDGE YOUNG:
We are considering --
- and, 18 obviously, as in other cases, parties can challenge 19 PRAs.
And, you know, that -- that would be something 20 that would be resolved in the discovery process.
21 We'll give you a few more minutes, since 22 we are taking up a little bit more time here.
23 But I
but I guess one thing that I
24 would say, and that you might want to talk about with 25 your respective clients, is that given that Duke has NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1090 1
said that the original PRAs are available, given the 2
general interest in proceeding as efficiently as 3
possible, what we would suggest is that immediately, 4
assuming we proceed as our outline would indicate, we 5
would suggest that starting immediately after the 6
conclusion of this conference --
if not immediately, 7
within the next day or so --
that the parties would 8
commence informal discovery to the extent possible.
9 In other words, to the degree that
-- that 10 getting together and talking about what you need and 11 how would be the easiest way to achieve that, if you 12 can do that informally that helps everyone, saves 13 everyone attorney fees and time.
- And, in fact, if at 14 the end of our conference today there are any issues 15 on that that people might want to ask our assistance 16 on, we can discuss those briefly.
17 With that said, if there are no more 18 questions, let's say 10 after 11:00, at this point, 19 we'll reconvene.
20 (Whereupon, the proceedings in the 21 foregoing matter went off the record at 22 10:49 a.m. and went back on the record at 23 11:13 a.m.)
24 JUDGE YOUNG:
All right.
Any party have 25 a desire to go first?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1091 1
MR.
REPKA:
This is Dave Repka for Duke.
2 I'm happy to go first.
3 JUDGE YOUNG:
Go ahead.
4 MR.
REPKA:
After discussing the Board's 5
- proposal, it's Duke's position that it's very 6
important that before we proceed with discovery and 7
summary disposition, that we have a decision on the 8
eight proposed subissues or amended subissues.
9 In our view, the Commission allowed the 10 one consolidated contention 2, which dealt with the 11 containment failure probabilities related to the 12 hydrogen combustion event as a result of station 13 blackout --
fairly specific issue, and the question is 14 how well has that been dealt with in the original SAMA 15 analysis and in the RAI responses.
16 Before we and before we evaluate and 17 deal with any resolution of that issue and summary 18 disposition and discovery, it's very important to have 19 a decision that limits the scope of issues, so that we 20 know what it is that we're having discovery on and 21 what it is that needs to be and can be addressed in 22 summary disposition.
23 Most importantly, as we discussed on the 24 conference call a couple of weeks ago, and as we 25 discussed in our papers on a couple of the additional NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1092 1
proposed amended contentions, the Intervenors have 2
raised issues related to the Level 1 PRA as well as 3
the Level 3
PRA.
Those are matters that are 4
completely unrelated to the analysis, either the original SAMA analysis or the revised SAMA analysis, 6
based upon the NUREG-6427 numbers.
7 And I think it's very important to define 8
the scope of the proceeding in discovery, that those 9
Level 1 issues and Level 3 issues not be included for 10 all the reasons we've said.
The SAMA analysis, to try 11 to draw a picture of it, both originally and the 12 revised version, you can look at it almost as a
13 Level 1 number times a Level 2 number times a Level 3 14 number gives you a result.
15 And the issue that's been admitted by the 16 Commission, and the issue that's really related to the 17 issues raised in NUREG-6427, relates to the Level 2 18 number.
19 When Duke submitted revised information 20 based upon the NUREG-6427 containment failure 21 probabilities, that changed the Level 2 number.
And 22 we don't think it's appropriate to go into amended 23 issues that talk about those numbers which really were 24 constant in the revised analysis the Level 1
25 numbers and the Level 3 numbers.
And several of these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1093 1
subissues do precisely that.
2 JUDGE YOUNG:
Mr.
Repka?
3 MR.
REPKA:
- Yes, Judge.
4 JUDGE YOUNG:
I really want to make sure 5
that we don't get off course.
With regard to the 6
Level 1 numbers, page 9 of the Commission's order, the 7
it said that the Sandia study found significantly 8
higher station blackout frequencies, and I believe 9
that goes to the Level 1 PRA.
10 And
- then, it goes on to
- say, "And, 11 consequently, higher probabilities of containment 12
- failure, particularly for the McGuire Station."
13 That's one example of how we find that the Commission 14 has provided some assistance to us in how they 15 interpreted the original contention.
16 What you started out by saying -
17 JUDGE KELBER:
I differ with that.
18 MR.
REPKA:
Judge Young, I just -- before 19 you go too far on that, I want to -- without being too 20 disrespectful, but that statement of the Commission is 21 just wrong.
The Sandia study did not find anything 22 about station blackout frequency.
23 JUDGE YOUNG:
- Well, you can raise your 24 disagreement with the Commission with the Commission.
25 But the Commission stated what it stated, and with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1094 1
that guidance -
2 JUDGE KELBER:
I differ with that, and we 3
will have to consider -
4 MR.
REPKA:
This is Dave Repka again.
I 5
think the bottom line on our position is that before 6
we proceed on discovery I think in some form it's very 7
important to have a statement of what issues are in 8
and what issues are not.
9 JUDGE YOUNG:
Mr.
- Repka, let me ask you 10 another question.
- Before, when I
said that the 11 primary thing that I would expect a Duke Motion for 12 Summary Disposition to --
I may need to refer to that.
13 That I
would expect a
Duke Motion for Summary 14 Disposition to address is the adequacy of your SAMA 15 analysis in light of 6427.
16 In other words, is the more appropriate 17 approach to take a comparison of the two?
That is 18 something that you were arguing at the -- at our last 19 meeting.
I believe it was July 10th.
You were 20 arguing that that was not relevant -- that going into 21 the cost-benefit analysis was not relevant, that all 22 you had to do was show the two how the two 23 calculations would be done, which you had done, but 24 that the evaluation issue didn't come into play.
25 It seems clear to us that the evaluation NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1095 1
of which approach is the more appropriate does come 2
into play based on the Commission's order.
And that's 3
all that you would need to address in a motion.
4 With regard to some of the other subparts, 5
it might be helpful today for you or any other party 6
to raise how specific portions of the proposed amended 7
contention 2
would come into play if what we said 8
earlier did not make sense to you.
9 But I'm not following what you're saying 10 at this point as to why it would be necessary or an 11 efficient use of anybody's time for us to go into a 12 detailed ruling on the proposed amended contention, if 13 all of the issues can be addressed in the manner we 14 spoke of earlier.
15 So while you are saying that you want us 16 to do that, so that it can be clear what the scope of 17 the Motion for Summary Disposition and what discovery 18 would include, I think it would be more helpful if you 19 would be more specific in where you see problem areas.
20 In other words, you have mentioned the 21 Level 1 PRA.
You say you believe the Commission was 22 wrong.
I'm not willing to go to that extent.
23 JUDGE KELBER:
I am.
24 JUDGE YOUNG:
Judge Kelber will agree with 25 you.
But I think we we need to accept what the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1096 1
Commission has said as such and -
2 JUDGE KELBER:
- And, again, I differ with 3
that.
It is possible that they have made a technical 4
mistake and it is.
5 JUDGE YOUNG:
Moving on from that, apart 6
from the Level 1 PRA issue --
and I believe that you 7
said that those were all available anyway, did you 8
not, last time?
9 MR.
REPKA:
I think what we explained the 10 last time was what is
-- there is a substantial amount 11 of information on the PRA on the docket, summary 12 reports subsequent to the initial PRA filing.
So very 13 substantial information from which you can derive the 14 station blackout frequency numbers that were used.
15 That number -- station blackout frequency 16 number was has been held at a constant in the 17 various calculations Duke has submitted on the SAMA 18 analysis.
So that information can be derived from 19 what's in the public domain.
20
- Now, you asked for more specificity with 21 respect to those things that we would like to see a 22 ruling on, and I think proposed amended contention 3 23 is one example where it raises the station blackout 24 frequency number.
That's a number, again, that didn't 25 change in any way based on the RAI responses --
the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1097 1
Level 1 number.
And we don't think that that's within 2
the scope of either timeliness or the scope of the 3
original contention.
4 Another example of
- that, very 5
specifically, would be proposed amended contention 6, 6
I believe it is, that goes to a number of Level 3 7
factors that are used in the SAMA analysis.
Those did 8
not change between the original SAMA analysis and the 9
revised SAMA analysis based upon the NUREG-6427 10 number.
Constants -- the NUREG-6427 report did not go 11 to the Level 3 numbers.
12 So those are things that are clearly 13 beyond the scope of the new information.
They are 14 beyond the scope of the original contention.
15 JUDGE YOUNG:
Mr. Repka, you broke up just 16 a little bit.
Let me make sure I understand you.
The 17 two subparts that you referred to as your needing 18 clarification on were subparts 3 and 6, correct?
19 MR.
REPKA:
Correct.
20 JUDGE YOUNG:
It may be that in our 21 conference today we can discuss those and see exactly 22 what the parties' positions on those are.
I think 23 that what we intended to say earlier is that Duke 24 addresses the which is more appropriate/adequacy issue 25 in any Duke Motion for Summary Disposition.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1098 1
And if it's understood that that is a
2 subject that is open for briefing and argument in a
3 summary disposition
- context, that there may be 4
portions other parts of the proposed amended 5
contention besides Subpart 4, which is the general 6
- one, that could be brought into play either in a
7 response or in a discovery context.
8 And so it's very helpful that you provided 9
those two areas for us to talk about, because it may 10 be, by the end of our discussion today, that we will 11 have resolved your concerns to an extent that we do 12 not need to proceed on with a detailed consideration, 13 argument on, and ruling on all separate parts of the 14 proposed amended contention.
15 Just those same things can be dealt with 16 in another context.
There is no reason to spend undue 17 time at this point to delay everything by doing a 18 detailed ruling on that.
So -
19 MR.
REPKA:
Judge Young, this is Dave 20 Repka.
Having said that, I'm not it's not our 21 intent to abandon our conclusions on any of the other 22 contentions with respect to whether there is any 23 regulatory basis on the arguments about uncertainty 24 and those kinds of things.
25 But it's the two I mentioned are those NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1099 1
that go directly to the threshold for what really 2
would be the scope of discovery here.
And so it would 3
be contention 6 or -
4 JUDGE KELBER:
This is Judge Kelber.
Of 5
- course, Mr.
- Repka, if there is a discovery request 6
that you think is not within the scope, you can always 7
ask raise an objection and leave it up to our 8
tender hands.
9 MR.
REPKA:
That's true.
10 JUDGE KELBER:
This is why I've mentioned 11 repeatedly NUREG/BR-0058, which lays out how you would 12 do it and how anyone should do it when approaching the 13 Commission with a proposal for a change.
14 JUDGE YOUNG:
Judge Young again.
I think 15 that if if a
discovery dispute arises
- and, 16
- again, we would encourage,
- first, informal discovery 17 through just simply talking with each other and seeing 18 what --
telling each other what's out there, what you 19
- want, how you can go about getting it in the most -
20 in the least expensive and cumbersome manner.
21 If you raise if there are disputes on 22 discovery, then what I would expect all parties to 23 address would be how the particular request relates to 24 the issue of which approach is better.
And I think 25 that based on other cases in the history of NRC cases NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1100 1
that the PRAs would be relevant.
2 As to whether the Level 1 ones would be 3
relevant, I think the Commission states that they are, 4
and there may be some disagreement about that.
But -
5 JUDGE KELBER:
The Commission does not 6
state that.
That's if you want to discuss it, 7
we'll discuss it.
Put it on mute.
8 JUDGE YOUNG:
But --
hold on one second.
9 (Pause.)
10 All right.
What I was saying is any -
11 any types of issues that the parties disagree on, I
12 think that you can make your arguments on how they 13 relate to the broader issue of which approach is 14 better in light of the language -- various language of 15 the Commission in its order.
16 And given that this that all of these 17 issues can be raised either in a discovery context or 18 in the context of a response to a Motion for Summary 19 Disposition, in which any party could argue whatever 20 they want to, whether or not -- without indicating how 21 we would rule, obviously, on anything at this point, 22 what I would encourage you to do is address why 23 something would need to be addressed in the context of 24 ruling on a Motion for Summary I'm sorry --
why 25 something would need to be addressed in the context of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1101 1
ruling on the proposed amended contention in the level 2
of detail which you seem to be seeking and why that 3
could not be as easily addressed in the context of 4
summary disposition and discovery.
5 MR.
HECK:
Judge Young, this is Jared Heck 6
for the staff.
7 JUDGE YOUNG:
Go ahead.
8 MR.
HECK:
In our view, discovery is not 9
appropriate until the admissibility of the contentions 10 has been determined.
It would be, at this point, a
11 preliminary question as to whether the contentions are 12 admissible in the first instance.
13 JUDGE YOUNG:
Mr.
- Heck, let me see if I
14 can clarify.
What we are saying here is that the 15 Commission, in ruling on Duke's and the staff's appeal 16 of our admission, our --
the original consolidated 17 contention 2,
the Commission discusses issues of 18 adequacy and -- nice music, but --
okay.
19 MR.
HECK:
Judge Young, may I interject?
20 This is Jared Heck again.
21 JUDGE YOUNG:
Well, I have --
I was in the 22 middle of a sentence when the music interrupted me.
23 What I'm trying to get across to you is the 24 Commission's order addressed the original contention.
25 The Commission's -- much of the Commission's language NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1102 1
throughout addresses the issue of the adequacy of how 2
how well Duke's SAMA analysis takes into account 3
the analysis found in Sandia's study, NUREG-6427.
4 The Commission makes various references to 5
which are the better estimates, which is the more 6
appropriate approach to take.
In light of that, in 7
light of that construction of the original 8
consolidated contention 2, we do not see the need -
9 the discovery would be on the original contention 2 as 10 construed by the Commission in various places, and 11 Subpart 4
of the proposed amended contention 12 essentially goes to the adequacy/which is better 13 issue.
14 Other parts of the proposed amended 15 contention could be raised in a discovery context or 16 in responses under the --
the general issue of which 17 approach is better as the Commission construed the 18 original consolidated contention 2, the part of it 19 relating to NUREG-6427.
20 So I want to encourage you to try to 21 understand the substance of what I'm saying and not 22 get sidetracked onto a procedural issue of whether we 23 have ruled on all of the separate parts of the 24 proposed amended contention.
If there are any 25 particular parts that you do not see could be resolved NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1103 1
in the manner in which we have proposed, that's what 2
we would like to hear, rather than just a conclusory 3
statement that you think that we need to rule on it, 4
period.
5 MR.
HECK:
Judge Young, this is Jared Heck 6
again.
I understand your interpretation of CLI 02-17.
7 But the staff respectfully disagrees with that 8
construction.
In our view, the Commission, while 9
ruling on the initial contention's admissibility, 10 stated that it would be more efficient to resolve the 11 question of whether Duke included information from the 12 Sandia study in its environmental report through 13 summary disposition, not whether one --
whether the 14 Sandia numbers were better than Duke's numbers, but 15 simply whether Duke has, in fact, in some way taken 16 those numbers into account, so that the staff can then 17 consider the cost-benefit analysis resulting from that 18 consideration by Duke in its final environmental 19 impact statements.
20 JUDGE YOUNG:
How do you view all of the 21 Commission's statements on the adequacy issue and the 22 which is the better approach, which is the more 23 appropriate approach?
24 MR.
HECK:
Judge Young, I think that in 25 the summary of the Commission's statement on page 17 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com v
1i04 1
Js really instructed here and I think it was 2
Judge Rubenstein that noted this is a
limiting 3
construction.
The contention is admissible but only 4
insofar as it raises the question of whether the 5
values from the Sandia study should have been utilized 6
in the McGuire and Catawba analyses.
And our position is that those values 8
- were, in
- fact, utilized when Duke performed a
9 reanalysis in its SAMA evaluation using the 10 conditional containment failure probabilities from the 11 Sandia study.
12 JUDGE YOUNG:
But you didn't answer my 13 question.
My question was:
how do you view the 14 Commission's statement throughout its order referring 15 to the adequacy issue, which, in effect, would come 16 under the language whether the values from the Sandia 17 study should have been utilized.
I think utilized 18 goes farther than providing not making any 19 evaluation of which is better.
20 Utilized I think probably goes to a lot of 21 the Commission's language on adequacy and which is 22
- better, and the SEIS goes into some level of 23 evaluation.
And what I'm asking you, which you have 24 not answered, is, how do you view all of the language 25 in the order on that issue?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1105 1
MR.
HECK:
Judge Young, the language I see 2
that may refer to adequacy --
the only language I see 3
is on page 12.
The Commission states that the Board 4
did not resolve the merits questions, whether the 5
Sandia studies' assumptions reflected better estimates 6
than Duke's, or whether Duke's SAMA analysis should have addressedk that study.
Is that the language 8
you're referring to?
9 JUDGE YOUNG:
That's one that's one 10 point in the decision.
And I think even just 11 addressing that one, how do you view that?
I mean, 12 I'm having a hard time understanding how you don't -
13 and if you do, please correct me if I'm wrong.
But 14 I'm having a hard time understanding how you don't see 15
- that, in
- effect, the Commission has construed the 16 original contention 2,
the part of it relating to 17
- 6427, as including the adequacy issue, the issue of 18 which approach is the more appropriate approach to 19 take.
20 Obviously, Duke has done the calculations 21 and has provided the results of those in the RAI 22 responses based on NUREG-6427 and has provided two 23 parallel sets of calculations.
The thing that seems 24 to be the obvious issue sitting out there on the 25 table, which the Commission obviously saw, is, which NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.
(2021 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
- w*I
- w
1106 1
approach is more appropriate?
And that's what we 2
would expect a Motion for Summary Disposition to 3
address.
4 And insofar as the other issues in the 5
proposed amended contentions are concerned, those 6
could come in under that broad issue, and the parties 7
could argue the extent to which they could come in in 8
a context of summary disposition and discovery, rather 9
than continuing to spend a lot of all parties' time 10 and expense on the proposed amended contention.
11 MS.
CURRAN:
Judge Young, this is Diane 12 Curran.
As I have been sitting here listening to the 13 discussion, and thinking back to how we got in the 14 position of filing this amended contention in the 15 first
- place, it seems to me that we
-- we're almost 16 back in April or something when we had that last 17 discussion about what did your decision mean, and was i8 the issue of adequacy encompassed in the contention.
19 We thought it
- was, and there was some disagreement 20 about whether it was.
21 It seems to me that now the Commission has 22 said, yes, the issue of adequacy is encompassed in 23 this contention.
And I'm not used to doing this, but 24 I'm wondering if it would be helpful if BREDL and NIRS 25 withdrew amended contention 2 with the understanding NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1107 1
that, based on the Commission's order, the issue of 2
adequacy is now encompassed in the contention.
And 3
that way it removes the question of whether you have 4
to rule on it.
5 JUDGE YOUNG:
I would like to hear what 6
the other parties have to say to that.
I think that 7
would simplify matters greatly.
Does Duke or the 8
staff have any objection to a construction of the 9
original consolidated contention 2 as encompassing the 10 issue of adequacy as Ms. Curran just stated, and as I ii have stated several times earlier?
12 JUDGE RUBENSTEIN:
This is Judge 13 Rubenstein.
Adequacy is too nebulous and broad a term 14 for me right now.
Would Ms.
Curran explain what she 15 means by that?
Are we to go into the Level 1 and the 16 Level 3 PRAs?
Are we to go into the uncertainty?
Are 17 we to go into the assumptions in the IPE?
18 MS.
CURRAN:
- Well, it is certainly our 19 position that those issues are relevant, yes.
The 20 Level 1 is integrally related with Level 2.
21 JUDGE KELBER:
No, it is not, Ms. Curran.
22 That's why I referenced 6595.
Take a look.
23 DR.
LYMAN:
This is Dr. Lyman.
With all 24 due respect, Level 1 and Level 2 are integrated.
25 JUDGE KELBER:
Sir, please -
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www nealrgross.com
1108 1
DR.
LYMAN:
You have to propagate every 2
accident sequence through, and they are not --
it is 3
not an independent calculation that is defendable on 4
a technical basis.
5 JUDGE KELBER:
Sir, read NUREG-6595.
6 JUDGE YOUNG:
Let me interrupt here.
I 7
want to try to get us off arguments c,- -he merits, so 8
to speak, of these subissues.
I think -
9 JUDGE RUBENSTEIN:
This is Judge 10 Rubenstein.
11 JUDGE YOUNG:
Let me -
12 JUDGE RUBENSTEIN:
I don't think adequacy 13 talks to the merits.
It talks to the scope, and I 14 have a very hard time accepting that now, even before 15 hearing the arguments from Duke and the staff.
16 JUDGE YOUNG:
Let me see if I can -
17 JUDGE RUBENSTEIN:
So I would not go along 18 clearly my intent at this
- time, prior to full 19
- argument, is not to go along with that proposal.
20 JUDGE YOUNG:
But let me see if I can 21 clarify what I was trying to say.
That's what I was 22 trying to do here.
When I said merits, what I was 23 referring to was the discussion about whether or not 24 Level 1 PRAs relating to station blackout frequency is 25 was addressed in NUREG-6427 and would be relevant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C.
20005-3701 www.nealrgross com
1109 1
to that.
2 What I -- what I think we're trying to get 3
to is the most efficient means of ruling on things 4
like that.
And I think Judge Rubenstein's request 5
that Ms.
Curran clarify what you mean by adequacy 6
would be helpful.
The context in the procedural 7
- context, so to speak, in which or framework in 8
which we are sort of discussing this I see as what is 9
the most efficient manner to address all of these 10 concerns.
If we construe the original contention 2 12 as encompassing the issue of adequacy/which approach 13 NUREG-6427 or Duke's SAMA analysis using Duke's 14 figures is
- better, which is more appropriate to 1 5 apply, then I hear Ms. Curran offering to withdraw the 16 original
-- I'm sorry -- withdraw the proposed amended 17 contention 2.
18 That would, then, place the issues, or at 19 least some of them, and possibly all of the issues 20 that are raised in proposed amended contention 2, all 21 of the parts --
obviously, the Petitioners, in any 22 response to a Duke summary judgment motion, which we 23 would expect to address the issue of which approach is 24 better, the response could raise whatever arguments 25 the Petitioners wish to raise.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1110 1
They would be resolved by us in that 2
- context, rather than this
- context, without any 3
suggestion at this point about which would come in, 4
which would be considered, and which wouldn't, because 5
the arguments would be made in the context of the 6
summary --
the response to Duke's Motion for Summary 7
Judgment.
8 So none of what is being said at this 9
point should indicate the Board's ruling on any of 10 those subparts.
I think the maximum that we're saying 1I is that this whole adequacy issue, which approach is 12 the better approach, is is encompassed within the 13 original contention, thereby making -- well, thereby 14 leading Ms.
Curran to offer to withdraw the amended 15 contention, and with the understanding that adequacy 16 can be addressed.
17 So if that clarifies
- things, I hope it 18 does --
in other words, we're not making any rulings 19 on the merits at this point.
When disputes arise in 20 discovery and/or when the response is filed to any 21 Motion for Summary Disposition, to the extent those 22 issues arise, we'll resolve them at that time.
23 MR.
HECK:
Judge Young, this is Jared Heck 24 for the staff.
If I may, I'd like to respond to your 25 question to me earlier regarding our interpretation of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www~nealrgross.com
1i11 1
CLI 02-17.
2 In our view, we read this with sort of a 3
background concept in mind, and that is that no matter 4
whether Duke uses Sandia's numbers or its own numbers 5
in conducting the SAMA analysis here, that issue is 6
sort of irrelevant to the ultimate purpose of a SAMA 7
- analysis, which is to identify cost beneficial 8
mitigative measures.
9 They have taken into account Sandia's 10 numbers and come out with a range of risk reductions 11 that can be viewed by the staff and judged for their 12 cost benefit and implementation.
13 JUDGE YOUNG:
Mr.
- Heck, I understand what 14 you're saying, and I would expect that a Motion for 15 Summary Disposition filed by Duke or your --
or the 16 staff for that matter, would no doubt take that 17 approach on the issue of how adequate Duke's SAMA 18 analysis is in its consideration of NUREG-6427, and 19 which approach is better.
20 And I
would expect,
- further, that in 21 response to that the Petitioners would likely 22 challenge that conclusion, as they have every right to 23 do, and that we would then make a ruling on the Motion 24 for Summary Disposition based on the arguments of the 25 parties, the affidavits that are filed with them, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
i 1112 1
we would decide whether there is, in
- fact, any 2
disputed facts such that we needed to go further with 3
a hearing.
4 Or if there is if, on the other hand, 5
Duke and/or the staff have shown that there is no 6
dispute of fact, and that Duke is entitled to judgment 7
in its Favor as a matter of law, then we would rule in 8
their favor.
9 I think we need to try to remember the i0 context here.
We're talking about a
procedural 11 framework within which to address these issues.
We're 12 not talking about or suggesting in any way what our 13 rulings would be on the merits of any of these issues.
14 MS.
UTTAL:
Your Honor, this is Susan 15 Uttal from the staff.
I think that we're getting the 16 cart before the horse.
Before we can decide or even 17 get to the merits, we have to decide whether there are 18 contentions that should be admitted late-filed 19 contentions that should be admitted.
20 And the procedural posture of this case 21 is, at this
- time, a
motion to file late-filed 22 contentions.
And I believe --
and it's the staff's 23 position that we need a decision on that motion before 24 we can proceed any further with this case.
25 MS.
CURRAN:
This is Diane Curran.
It NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D,C. 20005-3701 www.nealrgross.com
seems co us that the reason for filing the amended 2
contention was to delineate ways in which the 3
Intervenors considered the SAMA analysis to be 4
inadequate with respect to its incorporation of the 5
And now it essentially is the issue has 6
been mooted by the issuance of the Commission's 7
decision.
8 So it seems to me more appropriate to 9
treat our amended contention as a first discovery 10 response, as a listing of ways in which we believe the 11 analysis is deficient.
12 MS.
UTTAL:
I think that that is a very -
13 this is Susan Uttal -- a very expansive reading of the 14 Commission's opinion.
15 JUDGE YOUNG:
Ms. Uttal, let me interrupt 16 you at this point.
Let's go back a step.
A few 17 minutes
- ago, Ms.
Curran offered to withdraw the 18 proposed amended contention, with the understanding 19 that the original contention and any Motion for 2C Summary Judgment with regard to it would be viewed as 21 encompassing the adequacy issue.
22 The question was then asked, what do you 23 mean by adequacy?
I think it might be helpful for us 24 all to go back to that point and look at that alone.
25 With regard to Ms.
Curran's suggestion NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1114 1
just now that all parts of the proposed amended 2
contention could be viewed as discovery requests, 3
assuming we get to tie point of, for example, the 4
Petitioners withdrawing the proposed amended 5
content-on, then I would expect that any discovery 6
request would,
- first, be undertaken in an informal 7
manner through discussion between the parties on what 8
things are requested and where they can be obtained, 9
and the degree to which Duke and the staff agree to 10 provide them, and that any discovery requests --
any i1 formal discovery requests should any informal 12 attempts not work out -- any formal requests would be 13
- couched, would be drafted and couched, in terms of 14 requests and would --
and it would not be simply a
-5 matter of taking the existing proposed amended 16 contention and plopping it into our laps as a
17 discovery request.
And I'm taking what Ms.
Curran 18 said as not suggesting that.
19 With that said, I
think it would be 20 helpful to step back to Ms. Curran's earlier offer and 21 ask Ms.
Curran, first, I'm assuming that your offer is 22 still out there, and there has been a question raised, 23 I believe by Judge Rubenstein, about how you view the 24 adequacy issue.
25 Let me ask you, do you view the adequacy NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1115 1
issue as encompassing anything other than which 2
approach NUREG-6427 or Duke's
's more 3
appropriate and allowing the subissues to make their 4
way through the process through discovery or responses 5
to a Motion for Summary Disposition with the rulings 6
to fall where they may.
7 Did that make sense?
And can you address 8
that further, Ms.
Curran?
9 MS.
CURRAN:
- Well, I'd like to --
I don't 10 want to paraphrase the Commission's order without 11 studying it pretty carefully.
But it seems to me as 12 I look at the --
just the summary on the very last 13 page, the way the Commission summarizes it is whether 14 the values from the Sandia study should have been 15 utilized in the McGuire and Catawba analyses as 16 mitigation alternatives.
17 And, you know, the word "values" is not -
18 that is not a narrowly defined term.
They don't say 19 "some of the values in NUREG-6427."
They say "the 20 values."
So I guess what we would go back to is the 21 the entirety of NUREG-6427 in terms of all of the 22 values that were used and in what way were they taken 23 into consideration in Duke's SAMA analysis as -
24 JUDGE YOUNG:
Let me interrupt you for a 25 second.
If we look at the original consolidated NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1116 1
contention 2, the first part of it relating to 6427, 2
if we look at that and consider that the Commission, 3
in CLI 02-17, has --
I'm sorry, I
lost my train of 4
thought.
5 JUDGE RUBENSTEIN:
This is Judge 6
Rubenstein.
7 JUDGE YOUNG:
Let me try to finish getting 8
out this thought first.
I'm having a
little 9
difficulty here.
Pardon the interruption.
10 If we look at the original consolidated 11 contention 2, in light of the Commission's order as
-2 construing the original contention, to raise --
to 13 raise the question of whether the values of the Sandia 14 study should have been utilized in the McGuire and 15 Catawba analyses of mitigation alternatives for 16 hydrogen control during station blackout, as stated in 17 the summary, if we view that to mean whether the 18 NUREG-6427 values should have been utilized,
- whether, 19 in other words, they are better than the Duke numbers, 20 and such that litigation of the contention would call 21 for a conclusion on which approach is the better 22 approach as the broad issue, then if we can get that 23 far together as agreeing that that's the broad issue, 24 then could not we all also get to a
point of 25 understanding that issues such as whether Level 1 PRAs NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1117 1
come into play in determining that general which is 2
better issue, that those could be resolved in several 3
contexts.
If we were to take the time to do a
5 detailed ruling on the proposed amended contention, we 6
could do it in that context.
If, on the other hand, rne Petit
-loners withdraw the proposed amended 8
contention or we do a brief ruling on it, as we set 9
forth at the beginning of the conference.
It could be 10 done in the context of a request for a discovery or in Ii the context of ruling on the motion for some 12 redisposition in light of various responses filed by 13 the Petitioners.
14 I don't think at this point, I don't see 15 that we need to say anything about how we feel or any 16 party needs to say anything about how they feel about
- 7nie merits of all these issues because what we're 18 talking about is what's the best, most efficient 19 context in which to resolve them.
20 They will be resolved whether in this 21 context of ruling on the amended contentions or in the 22 context of discovery or in the context of summary 23 disoosition.
For some reason, it seems to me that 24 we're having a hard time getting to the point of 25 seeing that all we're talking about is what's the most NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C.
20005-3701 www.nealrgross.com
1118 1
efficient way of resolving these disputes between the 2
parties.
3 JUDGE RUBENSTEIN:
This is Judge 4
Rubenstein.
Based on what Judge Young just said, is 5
it possible that the amended contention could be 6
withdrawn without qualification and then we could go 7
on to use The Commission's guidance in CLI 02-17?
8 MS.
CURRAN:
That seems like a reasonable 9
approach to me, Judge Rubenstein.
This is Diane 10 Curran.
11 JUDGE RUBENSTEIN:
- Well, I thank you for 12 being gracious.
13 JUDGE YOUNG:
So then in other words, the 14 issue of adequacy would be left open.
I guess the 15 first thing I would ask how the parties suggest would 16 be the most efficient manner of ruling on that.
17 Because if we don't, if we're not all together on 18 understanding that adequacy and which approach is 19 better should be addressed in any summary judgement 20
- motion, if we get a summary judgement motion saying 21 for example, Duke has addressed it.
It did its 22 calculations and that's all we have to do, then that 23 gets us back to ground zero and I can see a lot of 24 complications arising at that point.
25 So to the degree that we can get a common NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
1202, 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1i19 1
understanding on that basic issue, I think it would 2
help us a lot in terms of getting this case moving 3
along in the most efficient manner.
4 MR.
REPKA:
Judge
- Young, this is Dave 5
- Repka, may I respond?
6 JUDGE YOUNG:
Please.
MR.
REPKA:
First, oLbiously, we have no 8
objection to withdrawal of the amended contentions and 9
proceeding from there.
That's a given.
Second is 10 that we still think it's very important to define the 11 scope of the proceeding up front because efficiently 12 as we go into discovery, it's better to have a common 13 understanding of scope than it is to proceed without 14 that.
15 JUDGE YOUNG:
That's what I was trying to get you to address.
And I guess my question to you 17 is, do you have any problem with proceeding under the 18 understanding that the scope is a fairly broad issue 19 of whether the NUREG-6427 values should be utilized, 20 understanding that to mean which approach is the 21 better approach to take?
NUREG-6427 or Duke's SAMA 22 analysis, getting into an evaluation of that.
23 If you can agree that that issue defines 24 the scope of contention
- two, than I
think we're 25 probably getting close to being on the same page here.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1120 MR.
REPKA:
- Well, Judge Young, I think 2
it's a matter of degree.
I don't think that we agreed 3
that the original contention was one of which approach 4
is better.
We think it was one of you have not 5
considered the NUREG data.
So we went back and we 6
considered the NUREG data and incorporated it straight 7
up, and therefore gave the Staff a range of numbers.
8 It was really up to the Staff at that point to 9
determine what to do with that range of cost benefit
-0 numbers.
11 From the standpoint of where the Staff is 12 of putting this whole issue into the generic issue, 13 we're really in the most conservative possible space.
14 They've decided that some of these SAMAs may be cost 15 beneficial.
They're not license renewal issues 16 because they don't relate to equipment aging, and 17 they'll go off and examine that in current licensing 18 bases part 50 space.
So we're in the most 1-9 conservative position with respect to the SAMAs.
20 Now our position is we've done everything 21 we need to do for a license renewal SAMA evaluation.
22 That's a given.
- Now, if you come back and the Board 23 decides that the issue is which approach is
- better, 24 now we will clearly in a summary disposition motion, 25 go the next step beyond what I've just articulated and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1121 1
we'
- explain exactly why which approach is better and 2
why.
I have no concern about doing that.
3 Having said that, let me go on, why is it 4
important to understand scope even further.
If the S
issue is which approach is better, because I think 6
it's very important up front, the most efficient thing 7
to do up front is to clearly articulate if we're 8
talking about two approaches, a
and b,
and the 9
argument is which is better, the argument has to focus 10 on what is different between a and b.
And the only 11 thing different between a and b is level two.
The 12 level one and the level three are no different.
13 And so if the question is which is better, 14 it's very important to realize it has to focus on that 15 which changed.
We're not here reinventing the wheel 16 from the very first step, and that the entire PRA is 17 not open to debate.
Because that would introduce some 18 third alternative which we don't even know what it 19 might be because we've never seen a basis for what new 20 level one numbers might be used, what new level three 21 numbers might be used.
That's not a narrow issue, and 22 that's not the issue that was in consolidation.
23 MS.
CURRAN:
Judge Young, this is Diane 24 Curran.
Can I make a comment?
25 JUDGE YOUNG:
Go ahead, and then I want to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C.
20005-3701 www.nealrgross.com
1122 1
get a little clarification because I really think Mr.
2 Repka has raised several issues that I'd like to sort 3
of separate out.
q MS.
CURRAN:
- Well, I'd like to ask to use 5
a discovery process.
The first step is going to be 6
discovery.
And we are going to ask for the level one 7
PRA and Duke is going to say no.
And then we're going 8
to do a motion to compel.
And we're going to lay out 9
our arguments according to the standard of relevance i0 and ask the Board for a ruling on that.
11 I guess I'd like to recommend using the 12 process that's given to us to resolve those disputes 13 instead of having an abstract discussion here today.
14 JUDGE YOUNG:
Mr. Repka, I'd like to hear 15 your response to that.
In giving your response, just 16 to reflect back on what you said, I think that it 17 would be very helpful if today --
we, the Board, has 18 construed quite a
bit of the language in the 19 Commission's order as opening up in the context of the 20 original contention two, the issue of adequacy or 21 which approach is better.
If we start from ground -
22 JUDGE RUBENSTEIN:
This is Judge 23 Rubenstein.
I see it as a little more precise, and 24 when you're finished, I'm going to state how I see it 25 at this time.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C.
20005-3701 www.nealrgross.com
1123 1
JUDGE YOUNG:
Okay.
With regard, if we 2
can start from ground zero with an understanding of 3
the basic scope of contention
- two, the original 4
contention two, as incorporating adequacy which has 5
the better estimates to use the Commission's language.
6 Basically, as I'm sort of summarizing it
- here, or 7
paraphrasing, which approach is the most appropriate 8
approach to take I think is Judge Kelber's language.
9 If we can start from there, Ms.
Curran's 10 suggestion is let's work out issues of whether level 11 one PRAs should come in the course of a discovery 12 motion to compel, for example.
13 Now, at that point, what I would expect to 14 accompany or be included in any such motion to compel 15 would be a reference to the part of 6427 that makes 16 that relevant.
I have not read NUREG-6427 in any 17 detail.
I do not know whether there is or there are 18 statements in it that make level one PRAs relevant.
i9 I would expect that a motion to compel would point me 20 to any parts in NUREG-6427 that do make them relevant.
21 And the resolution of the issue would then be based on 22 looking at those parts of the NUREG, seeing whether 23 they make them relevant or not.
24 And then the same approach would be taken 25 with any other discovery request.
They would have to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1124 1
be obviously a
basis for getting access to the 2
materials that are requested based on a relevant 3
standard.
And to limit them at this point prior to 4
having really given them any of these issues the kind 5
of deliberation that they would warrant in any of the S
context in which we could consider them, I think would 7
be premature.
8 So what I guess what I'm trying to do is 9
encourage us to get on the same page here with regard I0 to the scope of the original contention two on I1 adequacy issues, which is more appropriate, etcetera, 12 and then the appropriate context in which to resolve 13 the other sub-issues with the understanding that we're 14 not saying that any party is right or wrong.
We're 15 leaving it open for resolution in whatever context is 16 most appropriate.
17 Judge Rubenstein, did you want to -
18 JUDGE RUBENSTEIN:
- Yes, I'd like to say 19 something.
My reading of the Commission's guidance 20 can be expressed in five bullets.
The first bullet is 21 the underlying point of the SAMA analysis is cost 22 benefit and this is confirmed,
- affirmed, by the 23 Commission's writing, once the overall cost benefit 24 assessment, skewed or incomplete, the cost of a
25 failure to include or acknowledge or discount the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1125 I
n" hg-er events sequences used in the Sandia study.
2 So the object is a thing of the entire 3
exercise is ultimately an input to the decision 4
process in 189.
Then they go on to say the contention 5
is admissible, but only insofar as it raises the 6
question of whether the values from the study should 7
have been utilized in the analysis of mitigational 8
alternatives for hydrogen control during station 9
blackout.
10 In clarifying that, in the text of the 11
- CLI, any and all, pretty much direct quotes, number 12
- one, should Duke's SAMA have addressed the study?
13
14 And finally, through the Sandia assumption, reflect 15 better estimates in Duke's?
16 So somehow inherent at least in my mind is 17 this sort of redefines the scope as we wrote it in our 18 original contention.
I ýJUDGE YOUNG:
i think that's an excellent 20 summary of -
21 JUDGE RUBENSTEIN:
Then I
would add 22 parenthetically, that all these points are not made in 23 a vacuum.
Dr. Kelber early on in the discussion said 24 you should be also guided by what the Commission's 25 policy of PRA is.
And this is expounded in a variety NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1126 of places; in their policy statement on PRA, in the 2
- NUREG, in the standard review
- plan, and other 3
guidelines.
So if we get into discovery or arguments which are contrary to the Commission's general guldance on the use of the PRA, we're going to find 6
ourselves in a difficult area because we're going to 7
start to turn down discovery and we're going to start 8
to turn down motions.
So, with this context, I want 9
you to focus on what the Commission has said.
Thank 10 you.
ii JUDGE YOUNG:
Thank you.
I think that 12 provides an excellent summary of the sort of adequacy 13 issue and how the Commission has construed the original contention, and if we can proceed with that 15 understanding and leave these other issues for 16 resolution later based on the standard for discovery 17 or the ultimate -- whether there's a genuine dispute, 18 such as when a summary disposition is not appropriate 19 or is appropriate, then I think that would be a good 20 approach to take.
21 MR.
HECK:
Judge Young, this is Jared Heck 22 for the Staff.
Whatever the Board decides is the best 23 approach to take today, I want to go on the record and 24 say that we disagree that the Commission's decision 25 expanded the scope in any way of amended consolidated NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1127 1
contentions.
2 MR.
REPKA:
And this is Dave Repka for 3
Duke.
I would just add that I still think if the 4
issue of what is, what it boils down to now, what is 5
the better way to proceed, what is the most efficient 6
way to proceed, do we go through the discovery process 7
to resolve these issues.
I just don't agree with 8
that.
9 I think there are some basic discovery 10 disputes that are inevitable.
And I think they go to 11 the scope of the contention, and I think that some 12 definition of scope that would, and I think what Judge 13 Rubenstein just read is a definition of scope that 14 would lead to the conclusion that level one and level 15 three information is not relevant to that proposed 16 contention because there were no changes between the 17 original SAMA and the supplemented based upon the 18 NUREG number, and there are good reasons for that.
-9 And I don't see how after submitting at 20 least two rounds of paper on that issue, several hours 21 of conference calls on these amended contentions, how 22 we're going to get any further efficiency by having a 23 motion to compel and responses demotions to compel.
24 I
think this issue can and should be 25 resolved right up front.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234-4433 WASHINGTON, D C. 20005-3701 www nealrgross.com
1128 1
JUDGE YOUNG:
Mr. Repka, the argument that 2
you Dust made --
first you said that you agreed with SJudge Rubenstein's summary of the issue which includes 4
which is the
- better, which provides the better 5
estimate, which is the better approach in effect.
And 6
then you thought if that's the scope, that you don't 7
think tbc level one PRAs would come in because you 8
don't think that includes that, and it basically gets 9
to the issue of whether 6427 used any different 10 numbers or discussed the level one in any way such 11 that 1t would be relevant.
12 Now when I was talking about that earlier, 13 I said I would expect that any discovery motion to 14 compel would point us to a part of 6427 that would 15 make that relevant and I would expect that you would 16 make the argument that you just made.
And that's 17 pretty straightforward and simple and we would look at 18 6427, the parts of it that were pointed to by you, the 19
- Staff, by the Petitioners, and resolve it in that 20 context.
And it would be fairly simple and 21 straightforward to do that.
22 To go through, on the other hand, if we 23 can agree on the scope, to go through the motions and 24 to take the time to hear further arguments on the 25 proposed amended contentions and make detailed rulings NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C.
20005-3701 www.nealrgross.com
1129 1
on that, I don't see how that would be any more 2
efficient and how it would be even as efficient as a 3
fairly straight forward discovery request.
4 JUDGE RUBENSTEIN:
This is Judge 5
Rubenstein.
6 Ms.
- Curran, have you reconsidered your 7
standing on wi:hdrawing the motion?
8 MR.
DUNCAN:
I've been thinking about it 9
and we would continue to stand by our request to 10 withdraw the motion but I guess I have some hesitance 11 because there seems to be such a disagreement about 12 what the Commission's decision means.
13 JUDGE KELBER:
This is Judge Kelber.
14 Somebody should ask them to clear it up.
It's clear 15 that the decision is trying to carry water on one and 16 a half shoulders, and that's causing quite a bit of
--7 confusion.
And I don't know of any way to resolve 18 that other than what has been proposed here today -
19 say, someone going back to the Commission and saying 20 we don't understand, please clear it up.
21 JUDGE YOUNG:
Let me pose again.
Given 22 the summary given by Judge Rubenstein, and it was a 23 five point summary.
The underlying point of the SAMAs 24 is cost benefit analysis and was the original cost 2 5 benefit analysis skewed or incomplete by virtue of not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1130 i
adequately considering NUREG 6427.
I didn't get down 2
all your words, but I was taking a few notes, Judge 3
Rubenstein.
4 Second, whether the values of NUREG 6427 5
should have been utilized in the SAMA analysis.
6 Third, Duke's REI responses and/or the SEISs mooted 7
out the original contention.
Which provides the 8
better estimates NUREG 6427 or Duke's own numbers.
9 Within that context, if we go forward, 10 leaving open these other issues to be resolved in the 11 context of discovery leading to summary disposition 12 motions based on the understanding of the original 13 contention as summarized by Judge Rubenstein and 14 paraphrased by me just now, all of the issues that are 15 out there will be resolved one way or another.
And 16 all parties' rights to make to make your arguments on 17 them will be preserved and to the degree that Mr.
18 Repka, for example, you want us right now to say no, 19 we're going to rule against someone --
rule against a 20 Petitioner on any particular sub-issue.
21 Whichever way we do it, we're not prepared 22 to do it at this point.
And so we leave those open 23 and they get resolved in the most appropriate context 24 for most efficiently going forward in the case.
25 The Commission has suggested some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N-W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1131 1
redistribution context and that is why we have 2
proposed the approach that we have proposed this 3
morning and I think that if Ms.
Curran does still wish 4
to withdraw the proposed amended contention without 5
giving up the Petitioner's right to make their 6
arguments in discovery context or response to summary 7
judgement
- motions, allowing them to make those 8
arguments does not foreclose the Staff and Duke from 9
arguing that the Petitioners are wrong and how we 10 ultimately rule will be based on the parties' 11 arguments.
12 And if you just repeat the same arguments 13 you've already made, that's fine.
I'm sure you all 14 got them on your computers and you can cut and paste 15 just as well as I can.
16 Again, I guess we're back to the start and 17 if all this discussion has helped in clarifying what 18 it is that we're proposing and getting us on that 19 track, are there still any problems with proceeding in 20 that manner?
21 MS.
CURRAN:
Judge Young, this is Diane 22 Curran.
I do want to restate that the Intervenors 23 would like to withdraw amended contention two based on 24 the discussion that we have had here today and Judge 25 Rubenstein's characterization of the decision and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.
(202) 234-4433 WASHINGTON, D.C.
20005-3701 www.nealrgross.com
1132 CLI-0217.
2 JUDGE YOUNG:
All right.
3 MR.
REPKA:
And this is Dave Repka for 4
Duke.
Obviously, if the Intervenors have withdrawn 5
the proposed amended contentions, we have nothing 6
there to object to.
With respect to the scope of the 7
contended issue, we do continue to believe that the 8
scope of the issue is a limited one with respect to 9
whether the NUREG data was used or not.
We don't 10 necessarily agree that which is better was within the 11 scope of the original contention or even makes sense 12 in a SAMA review.
13 However, having said that for the record, 14 we do understand Judge Rubenstein's statement of where 15 he sees the issue today.
We believe that's an issue 16 we can address and will address.
That was not meant, 17 and I
think Judge
- Young, you characterized my 13 agreement with that issue.
That was not meant to say i9 that we concede that was within the scope of the 20 original contention.
21 Beyond that, with respect to discovery 22 going forward on the issue that the Board believes is 23 appropriate, we understand what you're saying and 24 we'll make our objections at the appropriate time.
We 25 do continue to believe that level one and level three NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1133 1
-ssues are beyond the scope of that contention as 2
articulated by Judge Rubenstein.
3 MR.
HECK:
This is Jared Heck with Staff.
4 I
would just stand by our previous statements 5
regarding the scope of the contention as admitted and 6
also note that under the Commission's referral order 7
ln this case, the Staff is not subject to formal 8
discovery regarding its environmental findings until 9
its final environmental impact statements have been i0 issued.
11 JUDGE YOUNG:
On that issue, Mr. Heck, let 12 me just ask you what the basis, since you have issued 13 the supplements eight and nine to the GEIS, even 14 though they're in drafts, in draft form, you have out 15 there the Staff's position at this point on that.
So 16 on what would you rely for declining or arguing that 17 you should not have to be subject to discovery at this 18 point?
MR.
HECK:
Judge Young, the Commission's 20 referral order CLI 01-20 on page four says formal 21 discovery against the Staff regarding the Staff's 22 environmental review documents will be suspended until 23 after issuance of the final supplemental environmental 24 impact statement.
25 JUDGE KELBER:
What's the --
this is Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www nealrgross.com
1134 1
Kelber.
What's the time scheduled you think for the 2
final?
3 MR.
HECK:
It's currently expected to be 4
issued in January.
5 JUDGE KELBER:
Thank you.
6 JUDGE YOUNG:
Yes, and thank you for that 7
reference.
On what part of that?
I thought I had 8
seen something like that.
Which part of that of the 9
Commission's referral order -
10 MR.
HECK:
That is page four, Judge.
11 JUDGE YOUNG:
Four, and I got a computer 12 printout, I mean e-mail 13 MR.
HECK:
Section B.
14 MS.
UTTAL:
- Judge, this is Susan Uttal.
- Z; It's the bottom of the second to last paragraph of 16 section b of the Commission's order.
17 JUDGE YOUNG:
Thank you, I see.
Yes, that 18 is the case and again when did you say?
January.
19 Let me ask the Petitioners.
Do you feel 20 that in order to proceed forward and respond to Duke's 21 motion for summary disposition assuming that's what 22 arises, that you would need discovery from the Staff 23 at this point or that discovery against Duke would be 24 sufficient, with the understanding that, of course, as 25 in any response to summary disposition motion that you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www nealrgross.com
1135 1
at the point of responding feel that you do need more 2
dtscovery you could raise that in your response?
Does 3
that-make sense?
4 MS.
CURRAN:
Right off the top of my head 5
at this point, I think we would want to have some 6
opportunity for discovery against the Staff before 7
responding to a dispositive motion like that.
That 8
would end the case, and I think it's important to have 9
had a chance to see what's the Staff's position and 10 what's the basis for it.
11 JUDGE KELBER:
Mr. Repka, how about Duke?
12 Do you anticipate discovery against the Staff?
13 MR.
REPKA:
We would not anticipate that.
14 And I
would observe that the Staff's position is 15 already available as the draft's supplemental 16 environmental impact statement.
17 JUDGE KELBER:
I guess they're reserving 13 the right to change their mind.
19 MR.
REPKA:
Sure, but it's not like we're 2C in a vacuum.
21 JUDGE YOUNG:
I think if we go forward 22 with discovery again between Duke and the Intervenors, 23 if we do get to the point it may be that that's 24 enough.
- Now, I don't know.
I obviously can't say 25 that for the Petitioners, but the rule on summary NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
"1136 1
dispositions at 10 CFR 2.749B does state we may permit 2
affidavits to be supplemented or posed by deposition 3
answers to interrogatories of further affidavits.
If 4
the Petitioners feel that they need further affidavits F
or further discovery against the Staff in order to 6
supplement their affidavits, then that's something we 7
could consider at that point.
8 I'm sort of of the mind that we don't want 9
to wait until January to start the process.
We can go 10 ahead and start now and if at the point of filing your 11 responses, the Petitioners feel that you need 12 discovery in order to supplement your affidavits, then 13 that could be taken up at that point.
14 Ms.
Curran?
15 MS.
CURRAN:
I'm a little bit concerned 16 about that, but perhaps if we could think about it and 17 get a chance to comment on it.
It just seems like the 18 discovery process is one in which the Staff's position 19 is an important issue in a
NEPA case especially 20 because the Staff's the ultimate party that resolves 21 NEPA issues.
So this is a NEPA issue here and I guess 2 2 I'd like to look at the case law.
I'd be really 23 surprised if it were possible to resolve at least, to 24 resolve a NEPA issue in favor of the Applicant.
In 25 other words to deny hearing on a NEPA issue before the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1l37 Staff had reached its ultimate conclusion in the final 2
EIS which may, in fact, change from the draft.
3 It seems unlikely to me that that is 4
legitimate under Commission jurisprudence.
5 JUDGE YOUNG:
I guess what I was saying 6
was that if it were to turn out that by the time we 7
got to the point of your filing responses that you 8
felt that you could not respond adequately without 9
having the Staff's final position, without conducting i0 discovery against the Staff, then you could make that ii request at that point, and that could be considered 12 after we've made some progress already so that we 13 would not have wasted all that time in the interim not "iI making any progress at all.
15 MS.
CURRAN:
- Well, I can tell you right 1'6 now that when faced with a summary judgement motion, 17 one wants to have every available resource that one 18 can.
And the Staff's position on it so far there's U9 been a certain amount of disagreement between Duke and the Staff on this, the factual issues related to this.
21 And so we want to be able to utilize whatever we could 22 from the Staff.
23 So, you know, just from the point of view 24 of a lawyer who is trying to defend against the 25 summary disposition motion, if there was a big piece NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www nealrgross-com
1138 of information out there that just didn't have it
- all, 2
in this
- case, the Staff's position and some 3
understanding of how they got there, it's hard for me to imagine going into a summary disposition proceeding 5
and not wanting to insist on that piece being 6
available.
JUDGE YOUNG:
Let me propose something and 8
ask how the parties feel about this.
If we were to 9
say start a 60-day discovery period between Duke and I0 the Petitioners starting, let's say the middle of 1i August.
That would take us to the middle of October.
12 And at that point, we could have a status conference 13 to determine whether the case is ripe for motions for 1q summary dispositions and then set appropriate 15 deadlines at that point.
16 Would any party have any objection to 17 proceeding in that manner?
18 MR.
REPKA:
This is Duke.
No, we have no 19 objection.
20 MR.
HECK:
This is Jared Heck for the 21 Staff.
If the Board chooses to proceed in the way 42 it's outlined today, we would not object to discovery 23 between the Intervenors and Duke.
But again, just 24 reassert our position as stated in the Commission's 25 referral order.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1139 MS.
CURRAN:
Judge Young, this is Diane 2
Curran.
I wonder if it's necessary to limit discovery 3
to 60 days.
Would 90 days be acceptable?
4 JUDGE YOUNG:
- Well, in view of the Staff's 5
pointing out the Commission's delaying of discovery 6
against :he Staff until after issuance is a final 7
- SEIS, it would seem to me that given that, a 90-day 8
period might not be unreasonable.
And how do you feel 9
about that?
10 JUDGE KELBER:
I feel 60 days and if more 1
is needed after the final environmental impact 12 statement, then it could be extended at that time.
13 MS.
CURRAN:
Are we expected to do 14 informal discovery first?
Because mid-August is two 15 weeks from now, approximately.
16 JUDGE YOUNG:
How would you feel about 17 doing -- allowing a month for informal discovery and 18 then starting a 60-day period staring September 1st, 19 taking us through the end of October, and then we 20 would have a status conference early in November to 21 see where we are, to see whether the Staff is still on 22 track and whether any more discovery against or 23 between Duke and the Intervenors is necessary.
How 24 does that sound to everyone?
25 MS.
CURRAN:
This is Diane Curran and that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1140 sounds reasonable to me.
2 MR.
REPKA:
This is Dave Repka for Duke.
3 I mean, we certainly believe that this is a narrow 4
contention and 60 days is sufficient.
I'm not 5
confident that informal discovery is going to lead 6
anywhere given our discussions here today about the 7
scope.
So we're more inclined to just say let's begin 8
discovery, and if we have to go through a formal 9
process to resolve what the scope of discovery is we 10 might as well get on with that.
So we would start the 11 discovery period along the lines of the original 12 suggestion, in August.
13 JUDGE YOUNG:
But Mr.
- Repka, given what 14 the Staff's position here is on the timing, and given 15 the value of informal discovery, if it can be 16 achieved, you're not saying that you wouldn't even 17 make an effort to talk about telling each other where 18 things are and what things you might be willing to 19 provide, are you?
2C MR.
REPKA:
Of course not.
And we have 21 already done that by pointing to the information z2 several times that's in the public docket.
23 JUDGE YOUNG:
- Well, under the 24 circumstances and given the timing of the Staff's 25 final SEIS, we can -- do you want to take a moment to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1141 1
confer?
2 Maybe we'll hear last statements by all of 3
you and then Judge Kelber and Judge Rubenstein and I 4
can confer for a moment and then make a decision on the trriing.
And meanwhile, if everyone has their C
calendars, we could look at dates in early November 7
-or another status conference which would put us a lot 8
closer to the date for the final SEIS and SER.
9 So does anyone want to say anything else 10 before we confer and then Judge Rubenstein, Judge 11
- Kelber, and I can call you separately.
Are you at 12 your regular number?
13 MS.
CURRAN:
Judge Young, this is Diane 14 Curran.
Just to add more item on the discovery 15
- schedule, I
still have a
little vacation left in 16 August and I don't know about our expert.
We would 17 just like to have enough time to prepare the 18 discovery, and it would be helpful to me personally to 19 start it.
If it's a 60-day period, that goes by 20 pretty fast, and it would be helpful to start it in 21 September.
22 JUDGE YOUNG:
Okay.
23 JUDGE RUBENSTEIN:
I'm not sure.
I need 24 to confer and that seems like a reasonable offer from 25 Ms.
Curran.
Start it in September.
Ignore the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1142 1
informal period and go forward in that way.
2 JUDGE YOUNG:
I think Judge Kelber and I 3
agree and except that I'd say if you can have informal 4
discovery, we always encourage that.
If not, we'll 5
start formal in September, but -
6 JUDGE KELBER:
One thing you could do is 7
use the intervening rime for any protective orders you 8
think you might need.
I would encourage the parties J I to take a
look at the references that we cited 10 earlier.
They're very important.
They're used by 11 everybody in the regulatory process and please take 12 heed.
13 MS.
CURRAN:
Judge Young, this is Diane 14 Curran.
I just have one more procedural request.
I'd 1D like a chance just for five minutes to consult with my 16 client before we conclude this call just to make sure 17 I don't need to raise anything else.
18 JUDGE YOUNG:
Why don't everyone do that
-9 and we'll come back at a quarter until one.
2--,
MS.
CURRAN:
Thank you.
21 (Off the record.)
22 JUDGE YOUNG:
- Okay, Ms.
Curran you 23 requested the time.
Have you conferred with your 24 people and are you -
25 MS.
CURRAN:
Yes, I have and we don't have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
I 143 anything more to add at this point.
2 JUDGE YO*NG:
Okay, then I think -- well, 3
let me ask The other parties.
Do you have anything to 4
add or say?
5 MR.
HECK:
Jared Heck with the Staff.
No, 6
Judge Young, we have nothing to add.
7 MR.
REPKA:
Duke has noth-ing else.
8 JUDGE YOUNG:
Then I think probably when 9
we get the transcript back we will issue an order 10 reflecting that Petitioners have withdrawn their 11 motion to amend contention two.
I guess in the end, 12 Ms. Curran, there were not any qualifications on that.
13 But we on the Board understood the original contention 14 two insofar as it relates to NUREG 6427 as 15 incorporating the five points summarized by Judge 16 Rubenstein.
And so in light of that, there would be 17 no need for any written withdraw.
18 MS.
CURRAN:
But Judge Young, I just want 19 to clarify that our withdrawal is based on Judge 20 Rubenstein's clarification or paraphrasing of where 21 the contention stands now.
22 JUDGE YOUNG:
And obviously if our order, 23 when it is issued omits anything or leaves anything -
24 in a timely manner requests -
25 REPORTER:
Judge Young, you dropped off NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross-com St
1144 1
after you said that if our order omits anything.
2 JUDGE YOUNG:
All right, thank you.
If 3
our order omits anything that needs to be in it or 4
otherwise misstates anything, any party can timely 5
request a modification or correction and we may for 6
that purpose put in say a
10-day deadline for 7
requesting any such thing.
- Normally, I would not do 8
that, but given what we talked about today I think it 9
would be best and I think though we have everything 10 clear.
11 We're going to be going forward with the 12 60-day discovery period, and starting September ist.
13 Oh, I'm glad I said that because we were going to set 14 a status conference for early November and I asked 15 everyone to look at your calendars.
16 The first week of November, the 5th is election day.
I would suggest the 6th.
November 6th, which is a Wednesday.
19 JUDGE RUBENSTEIN:
That's good for me.
20 Judge Rubenstein.
21 JUDGE YOUNG:
Everyone else?
November 22 6th?
23 MR.
REPKA:
This is Dave Repka for Duke.
24 We're just looking around the table.
Just give us one 25 second.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 wwwnealrgross.com
1145 1
MS.
UTTAL:
Your Honor, this is Susan 2
Uttal for the Staff.
The day looks clear for us.
3 MS.
CURRAN:
Diane Curran for the Intervenors.
November 6th is fine with us.
I think, 5
unless -
6 MR.
ZELLER:
The 6th is good for me.
This 7
ls Lou.
8 JUDGE RUBENSTEIN:
Would that be at ten 9
o'clock again?
10 JUDGE YOUNG:
- Yes, that seems to be the Ii best time to balance the west coast time and Ms.
12 Uttal's need to leave early.
13 MR.
REPKA:
This is Dave Repka for Duke.
14 We have one conflict on the 6th.
Is the 5th fifth not 15 available?
16 MR.
ZELLER:
Election day.
17 JUDGE YOUNG:
That's election day.
That's 18 the only reason.
What about the 7th?
19 MS.
CURRAN:
November 7th, I think would 2C be fine for us.
21 MR.
ZELLER:
Also okay.
22 JUDGE YOUNG:
Would that work out your 23 conflict, Mr.
Repka?
24 MR.
REPKA:
Actually, that does not.
The 25 5th was better.
But we will find a way to work around NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1146 it and we'll do it on the 6th.
2 JUDGE YOUNG:
- Okay, it's just that on 3
election day I don't know --
it would not interrupt 4
me, and if everyone wants to agree to do it on that 5
- day, that's fine.
6 MS.
OLSON:
This is Mary Olson.
I'm not 7
available on that day.
8 JUDGE YOUNG:
Let's just set it on the 9
6th.
- Okay, any other questions?
Anything that any 10 party wants to address before we adjourn for today?
11 MS.
CURRAN:
Diane Curran, no.
12 JUDGE YOUNG:
Staff?
13 MR.
HECK:
No, Judge Young.
14 JUDGE YOUNG:
And Duke?
- r MR. REPKA:
No.
16 JUDGE YOUNG:
- Okay, thank you all for 17 working through all this and getting us to a point 18 where I
think we're on our way forward in a
19 efficient manner.
Thank you.
Bye.
20 (Whereupon, at 12:53 p.m.,
the 21 teleconference was concluded.)
22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name of Proceeding: Duke Energy Corporation McGuire Nuclear Station Units 1 & 2, Catawba Nuclear Station Units 1 & 2 Docket Number:
50-369-LR, et al 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.
'Rebecca Davis Official Reporter Neal R.
Gross & Co.,
Inc.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross com