Text

Transcript of Telephone Conference Held on 01/31/03; Pp. 1182 - 1203
	ML030370050
Person / Time
Site:	Mcguire, Catawba, McGuire
Issue date:	01/31/2003
From:	Denise Wilson; 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, ASLBP 02-794-01-LR, NRC-732, RAS 5664
	Download: ML030370050 (24)
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"RA~ S~'"

Official Transcript of ProceedingfCKETE, 1

USNRC Q0 NUCLEAR REGULATORY COM 91!PI*,: 26 OFFICE O*

SC. L 1ARY RULEIMAKINGS AND ADJUDICATIONS STAFF Duke Energy Corporation: McGuire Nuclear Station; Catawba Nuclear Station Docket Number:

Location:

Date:

50-369-LR et al.

(Telephone Conference)

Friday, January 31, 2003 Work Order No.:

NRC-732 Pages 1182-1203 NEAL R. GROSS AND CO., INC.

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

Washington, D.C. 20005 (202) 234-4433 ll14 SEC Y-039-CY-9

Title:

560y-6:L

1182 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

x IN THE MATTER OF

Docket Nos.

DUKE ENERGY CORPORATION

50-369-LR (McGuire Nuclear Station,

50-370-LR Units 1 & 2, Catawba Nuclear : 50-413-LR Station, Units 1 & 2)

50-414-LR

x

Friday, January 31, 2003 The above-entitled matter came on for hearing, pursuant to notice, at 10:00 a.m.,

BEFORE:

THE HONORABLE ANN MARSHALL YOUNG, Chair THE HONORABLE CHARLES N.

KELBER THE HONORABLE LESTER S.

RUBENSTEIN NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL LICENSING RENEWAL TELEPHONE CONFERENCE CALL

1183 1

APPEARANCES:

2 3

On Behalf of the Licensee, Duke Energy Corp.:

4 DAVID A.

REPKA, ESQ.

5 ANNE W. COTTINGHAM, ESQ.

6 Of:

Winston & Strawn 7

Suite 800 8

1400 L Street, N.W.

9 Washington, D.C. 20005 10 (202) 371-5700 11 AND 12 LISA F. VAUGHN, ESQ.

13 Of:

Duke Energy Corporation 14 422 South Church Street 15 Charlotte, NC 28202 16 17 On Behalf of the Nuclear Regulatory Commission:

18 SUSAN L.

UTTAL, ESQ.

19 ANTONIO FERNANDEZ, ESQ.

20 U.S. Nuclear Regulatory Commission 21 Office of the General Counsel 22 Mail Stop-0-14D21 23 Washington, D.C. 20555-0001 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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1184 1

APPEARANCES:

(cont.)

2 3

On Behalf of the Intervenors:

4 DIANE CURRAN, ESQ.

5 Of:

Harmon, Curran, Spielberg & Eisenberg 6

Suite 600 7

1726 M Street, N.W.

8 Washington, D.C. 20036 9

AND 10 MARY OLSON, Director Southeast Office 11 Of:

Nuclear Information and Resource Service 12 729 Haywood Road, 1-A 13 P.O. Box 7586 14 Asheville, NC 28802 15 16 ALSO PRESENT:

17 LOUIS ZELLER 18 Blue Ridge Environmental Defense League 19 P.O. Box 88 20 Glendale Springs, NC 28629 21 22 DR.

EDWIN LYMAN 23 Nuclear Control Institute 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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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 1185 ALSO PRESENT:

Michael Barrett, Duke Energy Duncan Brewer, Duke Energy Bob Gill, Duke Energy Greg Robinson, Duke Energy Michael S.

Tuckman, Duke Energy Rani Franovich, NRC Robert Palla, NRC Brooke Smith, NRC James Wilson, NRC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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P-R-O-C-E-E-D-I-N-G-S 2

10:01 a.m.

3 CHAIRPERSON YOUNG:

This is Judge Young, 4

and I have Judge Kelber with me, and I heard Judge 5

Rubenstein earlier.

I'm going start with the staff.

6 MS.

UTTAL:

Good morning.

This is Susan 7

Uttal.

I'm here with Antonio Fernandez, co-counsel of 8

Brooke Smith, who's a member of OGC, and Robert Palla, 9

who's a staff member.

10 CHAIRPERSON YOUNG:

And, let's see, for 11 Duke?

12 MR.

REPKA:

This is David Repka and I'm 13 here in Charlotte with a number of people:

Lisa 14

Vaughn, Michael

Tuckman, Duncan

Brewer, Michael 15 Barrett, Greg Robinson and Bob Gill.

I think all the 16 names and spellings and titles are probably on the 17 record previously.

I can go through that if you'd 18 like.

And in

addition, we have, as I think Ms.

19 Cottingham noted, Ms.

Cottingham in my office in 20 Washington.

21 CHAIRPERSON YOUNG:

I

think, court 22

reporter, you have all the names and spellings 23 already, don' t you, or do you any more --

any of them?

24 COURT REPORTER:

I have most of them but 25 I can go over them at the end if you'd rather.

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CHAIRPERSON YOUNG:

Okay.

And then Ms.

2 Curran?

3 MS.

CURRAN:

Hi.

This is Diane Curran, 4

and I was hoping that Dr. Lyman and Lou Zeller would 5

be on the phone, but I'm not sure they are.

6 MS. OLSON:

And Mary Olson is on the line.

7 CHAIRPERSON YOUNG:

Okay.

Well, I think 8

we can go ahead and get started on some things.

The 9

Board really was thinking that we wouldn't get into 10 any substantive issues today.

Did someone else just 11 join us?

12 MR.

ZELLER:

Yes.

This is Lou Zeller.

13 CHAIRPERSON YOUNG:

Okay.

Hi.

I was just 14 saying the Board, in discussing the case, we do not 15 anticipate getting into any substantive issues today, 16 but we thought that we should substantively talk about 17 some procedural issues, scheduling issues.

18 The first thing that we have on our agenda 19 is that we have read all the parties' submissions with 20 regard to Duke's Motion to Dismiss and given the 21 responses in light of the Commission's order in LI-02 22 28, that's LI-02-28, we will grant Duke's motion to 23 dismiss the original Contention 2,

and we will 24 memorialize this in an order following up on this 25 conference.

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Before moving on to the other two items 2

that the Commission has directed us to resolve, which 3

would be the amended contention and discovery, we 4

would like to ask the parties whether there are any 5

other issues that you would like us to address anymore 6

late filed contentions expected?

I guess we presume 7

not since I think the --

it's been more than 30 days 8

since the final SEIS, I'm not quite sure about the 9

SERs.

But is there anything else besides the amended 10 contention and discovery that any of you would like to 11 raise?

12 MS.

CURRAN:

This is Diane Curran.

I 13 don't have anything else to raise.

14 MR.

REPKA:

And this is Dave Repka.

We 15 have nothing to raise at Duke, although we certainly 16 would like to discuss the other two issues.

17 MS.

UTTAL:

This is the staff, Susan 18 Uttal.

We have nothing else to raise.

19 CHAIRPERSON YOUNG:

All right.

First of 20 all, on discovery, in discussing this among ourselves, 21 we see this as being something that we would not need 22 to resolve until after we've ruled on the amended 23 contention.

24 (Bird singing in background.)

25 CHAIRPERSON YOUNG:

Excuse us, it will NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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stop in a minute.

2 MS.

CURRAN:

Sounds like a

tufted 3

titmouse.

4 CHAIRPERSON YOUNG:

I'm not sure what it 5

is.

6 MR.

REPKA:

It's not me.

7 (Laughter.)

8 CHAIRPERSON YOUNG:

Okay.

As I

was 9

saying, we considered that we would not need to make 10 any rulings on discovery until after we had ruled on 11 the amended contention.

Does any party disagree with 12 that or see that there's anything that we would need 13 to resolve at this point?

14 MR.

REPKA:

This is Dave Repka.

No, we 15 don't disagree with that at all.

I think that's 16 consistent with the Commission's view that the issue 17 of admissibility of contentions comes first.

18 MS.

CURRAN:

This is Diane Curran.

We 19 would agree with that.

20 MS. UTTAL: Staff agrees also, Your Honor.

21 CHAIRPERSON YOUNG:

Okay.

Then we're 22 through talking -- did someone else just join us?

23 MR.

LYMAN:

This is Ed Lyman from Nuclear 24 Control Institute.

25 CHAIRPERSON YOUNG:

This is Judge Young.

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We're just about to start talking about the amended 2

contention.

I believe it's I can't remember the 3

exact date, but I believe we had gotten through half 4

the first four parts of the A part amended 5

contention when we held oral argument on the 6

telephone.

And, obviously, in light of the 7

Commission's recent order, there may be some other 8

considerations that might apply to all parts of the 9

amended contention.

10 We would like to hear what the parties 11 have to say about further oral arguments, how and 12 where to conduct that.

Have you discussed this among 13 yourselves?

If not, go one by one and tell us what -

14 Ms.

Curran, maybe we could start with you since if 15 you're representing your party.

16 MS.

CURRAN:

We haven't discussed this, 17 and we think it's appropriate to go ahead and finish 18 the oral argument.

And we had previously asked if we 19 could do that in person, because it is difficult to do 20 it over the telephone, and we would repeat the 21 request.

22 MR.

REPKA:

This is Dave Repka for Duke.

23 We were certainly prepared today to go ahead and have 24 that argument on the amended contention.

With respect 25 to the first four that we've already had argument, I

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think that the Commission's decision in LI-02-28 and 2

the fact that the SEIS has issued put even the first 3

four that we've previously argued in a whole new 4

light, and I think there is an overarching issue of 5

the continuing validity of any of the amended 6

contentions related to this -

7 (Phone problems.)

8 CHAIRPERSON YOUNG:

Hello?

Mr. Repka, we 9

lost you somewhere in there.

Does someone maybe have 10 the phone out? There's some noise that's in it that's 11 12 MS.

CURRAN:

Did that help? This is Diane 13 Curran.

I was using a headphone.

I wonder if that 14 might have -

15 CHAIRPERSON YOUNG:

Oh, I don't know.

It 16 seems to have gone.

17 MS.

CURRAN:

Okay.

18 CHAIRPERSON YOUNG:

So it might help.

19 MR.

REPKA:

I guess -- this is Dave Repka 20 again.

What I was saying is we were prepared to argue 21 the contentions today, the issue of the viability of 22 the amended contentions.

I think that the issuance of 23 the Commission's decision and the SEIS in the last few 24 weeks or so put even the original four contentions 25 that we already argued in a new light.

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questions about their continuing viability --

the 2

continuing viability of any of the eight proposed 3

amended contentions.

So I think that those are 4

arguments that need to be heard.

5 As I said, we were prepared to do that 6

today, and I don't think that argument is restricted 7

to the last four is the point I want to make.

We 8

believe that to the extent that any of the amended 9

contentions are addressing the same evaluation of the 10 issue first identified in NUREG-66427, those issues 11 are moot just to Contention 2, so I think we want to 12 have an opportunity to make that argument.

13 CHAIRPERSON YOUNG:

The Board anticipates 14 we would hear some additional argument on the first 15 four parts of the contention as

well, and, 16 specifically, now might be a good time to mention that 17 we would like to brief the sort of 18 reasonableness/sufficient care issue prior to oral 19 argument; that is, how should the term, "sufficient 20 care," be interpreted and applied in this case as it 21 used in the following phrase from the Commission's 22 order:

"Hearing petitioners have an, quote,

'iron 23 clad obligation' to examine the publicly available 24 documentary materials pertaining the facility in 25 question with sufficient care," and those are the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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operative words, "to enable the petitioner to uncover 2

any information that could serve as the foundation for 3

a specific contention."

4 So we would like to have the parties read 5

that and provide any supporting authority on that 6

prior to hearing oral arguments so that we can get as 7

full as possible an understanding of how that should 8

be applied in this case.

9 Let me just ask, Ms. Curran, you indicated 10 you'd like to have oral argument and, first, do you 11 have a -- are you requesting that that be done here, 12 in North Carolina?

13 MS.

CURRAN:

I think we would prefer North 14 Carolina, but we realize the Board has some practical 15 considerations.

In the past, we've just found it 16 difficult with so many different participants in these 17 telephone conferences, so I think our preference would 18 be North Carolina.

We'd also be willing to do it in 19 Washington, D.C.

20 CHAIRPERSON YOUNG:

Assuming we do in 21 person oral argument, we understand your concerns, it 22 is difficult with so many people on a telephone 23 conference, I can tell you that we can probably do 24 them earlier if we do them in Washington.

25 MS.

CURRAN:

Well, in terms of timing, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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here's another suggestion that may affect that.

I 2

guess we would like to see --

if Duke believes that 3

the amended contentions have been mooted by the 4

issuance of the final EIS or the Commission's decision 5

or something that's happened since the amended 6

contentions were filed, we would like to see that in 7

writing so that we can respond to it in writing.

8 CHAIRPERSON YOUNG:

We can set deadlines 9

for briefing on any issues that the parties would like 10 to address in addition to the sufficient care issue.

11 I think we didn't hear from the staff before.

Ms.

12 Uttal?

13 MS.

UTTAL:

Well, Your Honor, we were 14 prepared to argue the amended contention today.

We 15 agree with the Licensee that most of this, if not all 16 of the amended contention, has been mooted out and is 17 untimely.

We are in what is called critical path 18 right now.

The staff documents have been completed, 19 the staff is meeting with the ACRS, I believe, next 20

week, so that the only proceeding relating to this 21 license application will be this proceeding.

So we 22 would ask that if we are going to have subsequent 23 hearings and filings, that they be done sooner rather 24 than later so that the Agency may proceed regarding 25 the license renewal application.

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CHAIRPERSON YOUNG:

There's still some 2

noise coming over the phone.

I don't --

is someone 3

moving things?

Okay.

If anyone is moving papers 4

around or breathing into the phone, it sort of cuts 5

into the -- being able to hear everyone.

6 Apart from the sufficient 7

care/reasonableness issue and the mootness issue based 8

on the Commission's order, are there any other issues 9

the parties know will be arising such that we might 10 benefit from briefing prior to oral arguments?

11 MR.

REPKA:

This is Dave Repka.

I think 12 the issue before us is one of the admissibility of the 13 amended contentions, and, certainly, we're happy to 14 address any issue that hasn't already been addressed 15 related to why we believe the amended contention 16 shouldn't be admitted.

And Ms. Curran has invited to 17 do that, we're happy to do that.

But I think it's 18 important to recognize the burden is not on us at this 19 point.

The burden is on the Intervenors to 20 demonstrate an admissible issue.

And that's got to 21 satisfy at least three tests.

One -

22 CHAIRPERSON YOUNG:

Mr. Repka?

23 MR.

REPKA:

Yes.

24 CHAIRPERSON YOUNG:

My question was simply 25 does anyone see any additional issues that it would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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helpful to have briefed prior to oral argument?

That 2

was my question.

3 MR.

REPKA:

And my response is that we 4

would be happy to brief any issue related to the 5

admissibility of the contentions.

I think that the 6

effect of the Commission's decision is one.

Any 7

insights the Commission's decision might have on 8

evaluating the timeliness of the proposed amended 9

contentions is another.

And the third is any effect 10 that the Commission's decision might have as to 11 whether there's a viable basis for the amended 12 contention is something that would be addressed.

All 13 of that would be perhaps new information that we 14 didn't have in front of us back in July of last year, 15 so I think the issue to be addressed is one of, 16 broadly

speaking, the admissibility of the 17 contentions.

18 CHAIRPERSON YOUNG: Well, everything could 19 be obviously viewed as coming under that rubric.

Any 20 other issues besides the sufficient 21 care/reasonableness, all of which goes to timeliness, 22 or the mootness or viability of the contentions in 23 light of the Commission's order?

Any other issues 24 that any party sees that would be helpful to have 25 briefed prior to oral argument?

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All right, then.

We would like to get 2

briefed on these issues, and we can probably do oral 3

arguments more quickly if we do it in Washington.

4 Maybe if everyone could get out your calendars.

5 February 22 through March 7 I'm going out of town next 6

week and won't be back until the end of the following 7

week.

The week of February 18 I have a hearing out of 8

town the week of March 10, will be back March 18.

So, 9

Judge Rubenstein, what were your times?

10 JUDGE RUBENSTEIN:

The week of March the 11 17th works for me oh, no, excuse me, probably 12 starting the 19th through the 21st probably works for 13 me.

14 CHAIRPERSON YOUNG:

What about March 19 to 15 20 for the parties?

16 MR.

ZELLER:

That's not good.

It's Lou 17 Zeller.

18 MR.

REPKA:

Judge Young, this is Dave 19 Repka.

We're consulting here, if you could just give 20 us a second.

21 MS.

UTTAL:

Judge, this is Susan Uttal.

22 What about February 19 and 20, just to move this along 23 quicker?

24 CHAIRPERSON YOUNG:

Who was it that was 25 not available to do it then?

Oh, Judge Rubenstein, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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1198 you had --

JUDGE RUBENSTEIN:

Oh, no, I'm okay in 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 17?

MS.

CURRAN:

That's a federal holiday, isn't it?

CHAIRPERSON YOUNG:

Oh.

JUDGE RUBENSTEIN:

Or the 18th.

CHAIRPERSON YOUNG:

The 18th would work?

MS.

UTTAL:

That's available, Your Honor.

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CHAIRPERSON YOUNG:

Okay.

MS.

CURRAN:

Lou Zeller is not available in February, right?

MR.

ZELLER:

February 19 and 20 is out, right.

CHAIRPERSON YOUNG:

What about the 21st, which is a Friday?

JUDGE RUBENSTEIN:

I'd prefer any Monday, Tuesday and Wednesday in February.

This is Judge Rubenstein.

MR.

REPKA:

This is Dave Repka.

I think any Monday, Tuesday or Wednesday in February we will be available, and we do believe February is the right time to do this.

CHAIRPERSON YOUNG:

What about February (202) 234-4433

1199 1

CHAIRPERSON YOUNG:

All right.

2 MS.

UTTAL:

Are you available then, Lou?

3 MR.

ZELLER:

Yes.

4 MR.

REPKA:

February 18 works for Duke.

5 MS.

UTTAL:

Ed, are you available then?

6 MR.

LYMAN:

February 18, I believe so.

7 MS.

CURRAN:

I'm available that day.

8 CHAIRPERSON YOUNG:

Okay.

February 18 9

then, oral argument in Washington in our courtroom.

10 We're going to have to probably specify some security 11 procedures that are different than they have been in 12 the past.

We may have to have escorts for people, but 13 we can work that out.

With regards to briefs, we -

14 MR.

ZELLER:

Judge Young, I'm sorry, this 15 is Lou Zeller again.

The 18th is problematic because 16 the meeting on the 19th is in North Carolina early in 17 the morning.

18 CHAIRPERSON YOUNG:

Well, you can fly back 19 the night of the 18th.

It's obvious that we're going 20 to have difficulty finding a time that doesn't 21 inconvenience someone to some degree, but you can fly 22 back the night of the 18th.

23 With regard to the briefs, we can give you 24 until the -- well, what about filing briefs on the 6th 25 or 7th and responses on the 12th, which would give NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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everyone a little bit of time to read them prior to 2

oral arguments?

Does the 6th or 7th make any 3

difference to people?

4 MS.

CURRAN:

The 7th is better for us.

5 CHAIRPERSON YOUNG:

Okay.

February 7 for 6

briefs and February 12 for responses.

And these 7

briefs will cover the issues of timeliness and whether 8

the Petitioner's exercised sufficient care in 9

examining publicly available documentary materials 10 pertaining to the facility, whether they could have 11 done that earlier than they did with sufficient care, 12 and also whether the Commission's order has rendered 13 moot or otherwise non-viable any of the bases for the 14 eight parts of the amended contention, and the SEIS 15 and SER, I guess, also.

16 Then there will be some issues that we'll 17 cover -- will be things that we will want to ask and 18 that you all will be addressing with regard to all 19 parts of the amended contention.

But with regard to 20 the last four parts, since we didn't have any oral 21 argument on those before, we'll probably allow for 22 more time on those.

And I don't know that we have any 23 preference.

It might be better to consider the 24 broader issues first with regard to all the parts and 25 then go into specific argument on the last four parts.

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And if there are any other issues that any party would 2

like to brief, according to the schedule we've just 3

given, you can feel free to do that.

4 Then we will convene on February 18 at 5

nine o'clock and take as long as we need.

We'll 6

finish by the close of business that day.

Any 7

questions or other issues that any party would like to 8

raise?

9 MR.

REPKA:

This is Dave Repka for Duke.

10 I'd just like to raise one other question or point.

11 You know, we do agree with Ms. Uttal that this process 12 is now on critical path, and I guess the question 13 would be whether the Board will the original 14 Commission delegation order set a schedule of mile 15 posts for the license renewal proceeding, and I think 16 one of those mile posts is that 50 days after the SER 17 comes out there would be any ruling on any late-filed 18 contentions.

And I guess our question would be if 19 it's the Board intent to try to maintain that 20 schedule?

21 CHAIRPERSON YOUNG:

Well, at this point 22 I'm not sure it's possible.

I'm not recalling the 23 exact dates when those were issued, but, obviously, 24 this case has taken a somewhat unusual turn or turns, 25 I should probably say, so obviously the Board will try NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.

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to be as timely as it possibly can.

Any other -

2 MS.

UTTAL:

Your Honor, this is Susan 3

Uttal.

I believe that I e-mailed the questions of the 4

SER on January 9, if I'm not mistaken.

5 CHAIRPERSON YOUNG:

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