ML040420606
| ML040420606 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 02/04/2004 |
| From: | Robert Davis Neal R. Gross & Co. |
| To: | Office of Nuclear Reactor Regulation |
| Byrdsong A T | |
| References | |
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, NRC-1294, RAS 7339 | |
| Download: ML040420606 (66) | |
Text
-A5 7539 Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Duke Energy Corporation Catawba Nuclear Station Docket Number:
50-413/414-OLA; ASLBP No. 03-81 5-03-OLA DOCKETED I
USNRC Location:
(telephone conference)
February 10, 2004 (2:18PM)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Date:
Wednesday, February 4, 2004 Work Order No.:
NRC-1 294.
Pages 947-1 010 NE4,AL R. GROSS AND CO., INC.
Couirt Reporters and Transcribeis 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 734-4433
- SEC e /-
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD (ASLB)
TELECONFERENCE tter of:
Docket Nos.
3Y CORPORATION 50-413-OLA uclear Station, 50-414-OLA nd 2 ASLBP No.
03-815-03-OLA Wednesday, February 4, 2004 In the Ma DUKE ENERI Catawba Ni Units 1 ai The above hearing, pursuant to BEFORE:
ANN MARSHALL YOUNG ANTHONY J. BARATTA e-entitled matter came on for notice, at 10:00 a.m.
Chair Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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APPEARANCES:
2 On Behalf of the Licensee:
3 DAVID A. REPKA, ESQ.
4 ANNE W. COTTINGHAM, ESQ.
5 MARK J. WETTERHAHN, ESQ.
6 of:
Winston & Strawn, LLP 7
1400 L. Street, NW 8
Washington, DC 20005-3502 9
(202) 371-5726 (DR) 10 (202) 371-5724 (AC) 11 (202) 371-5703 (MW) 12 (202) 371-5950 fax 13 and 14 LISA VAUGHN, ESQ.
15 of:
Duke Energy Corporation 16 526 South Church Street 17 Charlotte, NC 28202 18 (704) 382-8134 19 (704) 382-4504 fax 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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On Behalf of the Petitioner, Blue Ridge 2
Environmental Defense League:
3 DIANE CURRAN, ESQ.
4 of:
Harmon, Curran, Spielberg & Eisenberg, L.L.P.
5 Suite 600 1726 M Street, NW 6
Washington, DC 20036 7
(202) 328-3500 8
9 On Behalf of the Nuclear Regulatory 10 Commission:
11 SUSAN L. UTTAL, ESQ.
12 ANTONIO FERNANDEZ, ESQ.
13 Office of the General Counsel 14 Mail Stop -
0-15 D21 15 U.S. Nuclear Regulatory Commission 16 Washington, DC 20555-0001 17 (301) 415-8339 AF 18 (301) 415-3725 SU 19 (301) 415-3725 fax 20 21 Also Present:
22 23 Michael T. Cash, Duke Energy 24 Edwin S. Lyman, Ph.D.
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P-R-O-C-E-E-D-I-N-G-S 2
10:02 a.m.
3 JUDGE YOUNG: On the record. This is Ann 4
Young.
I'd just like to have everyone introduce 5
yourselves for the record.
Judge Baratta and then 6
let's start with the staff and BREDL and Duke.
7 JUDGE BARATTA:
This is Judge Anthony J.
8 Baratta.
9 MS.
UTTAL:
This is Susan
- Uttal, 10 attorneys for NRC Staff ("Staff") and with me is 11 Antonio Fernandez.
12 MS. CURRAN:
This is Diane Curran for 13 BREDL and Dr. Edwin Lyman is also on the phone.
14 JUDGE YOUNG:
Incidentally BREDL is B-R-15 E-D-L.
That's the acronym.
16 MR. REPKA:
And for Duke Energy this is 17 David Repka.
With me is Mr. Mark Wetterhahn as well 18 as Ms. Anne Cottingham has joined me.
On a separate 19 line from Charlotte are Ms. Lisa Vaughn and Mr.
20 Michael Cash.
21 JUDGE YOUNG: Okay.
I assume by the fact 22 that everyone's with us that everyone received my 23 email of yesterday afternoon.
Could I just ask?
24 Have you talked with each other to try to see whether 25 you can agree on how to proceed from here?
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MS. CURRAN:
This is Diane Curran.
I 2
haven't heard from anyone.
3 MS. UTTAL:
Your Honor, I wasn't in the 4
office yesterday.
I got in this morning around 9:00 5
a.m.
That's when I first got this motion.
Mr.
6 Fernandez was not in the office yesterday so we did 7
not have the opportunity to speak to anybody.
8 JUDGE YOUNG:
Okay.
Well, I guess we 9
need to hear responses to the motion and then see 10 where we are.
Does the Staff care to go first? It's 11 sort of directed to you so I think that might be 12 appropriate.
What's the Staff's position on this?
13 MS. UTTAL:
It's the Staff's position 14 that Dr. Lyman and Ms. Curran would not be permitted 15 to come to this meeting.
It's a closed meeting.
16 They have no need to know what Staff's RAIs are not 17 based contentions.
18 JUDGE YOUNG: Excuse me. You're breaking 19 up and I'm not catching all your words.
20 MS. UTTAL:
I don't know how to fix it, 21 Judge.
22 JUDGE YOUNG:
We may need to do the same 23 thing we've done here which is to go off speaker 24 while you're talking and then go back on speaker 25 while you're listening.
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MS. UTTAL:
Okay.
Can you hear me now?
2 JUDGE YOUNG:
Yes, that's much better.
3 Thank you.
4 MS. UTTAL: The Staff's position that the 5
meeting is closed, that the Petitioners who have not 6
been admitted to this proceeding yet have no need to 7
know the RAIs, what the Request for Additional 8
Information is to frame their contentions because 9
they do not base their contentions on the existence 10 of RAI.
11 Therefore the fact that there's a protective order is 12 not particularly relevant to --
Well, it is relevant 13 but it doesn't answer the question of need to know.
14 JUDGE YOUNG:
What about our suggestion in 15 my email yesterday?
16 MS. UTTAL:
The Staff is proceeding as it 17 normally would under these circumstances.
There is 18 ample reason to have the closed meeting because there 19 will be certain things discussed regarding the RAIs.
20 JUDGE YOUNG:
I was talking about your 21 suggestion that you transcribe the meeting.
22 MS. UTTAL:
That is not the normal way that 23 we do things.
The Staff is not amenable to doing 24 that.
25 JUDGE YOUNG:
Anything further from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Staff?
2 MS.
UTTAL:
I'll respond to whatever 3
anybody else says, but that's my major point.
4 JUDGE YOUNG: We'll go ahead. Mr. Repka or 5
whoever is representing Duke who wishes to speak.
6 MR. REPKA:
This is Mr.
Repka.
Duke 7
concurs with the NRC Staff's position that there's no 8
need to know with respect to the discussions at this 9
meeting.
The way Duke understands the meeting is it 10 will be opportunity for the NRC Staff to explain to 11 Duke the RAIs that will be issued with respect to the 12 security plan submittal.
13 So it's not a discussion per se of the 14 plan, but an explanation of the Staff's questions 15 with respect to what's already been submitted.
16 Obviously at some point in the future, Duke will be 17 required to respond to the RAIs to in effect 18 supplement the security plan submittal and that's 19 information that at least in the abstract, it's 20 potentially within the scope of the protective order 21 and I think it's really a bit different character 22 than the subject of the meeting itself which is just 23 the RAIs.
24 With respect given that it's the nature of 25 the
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information concurs that there would be no basis for 2
a need to know determination at this point.
3 Obviously there will be as with any staff meeting we 4
expect that the Staff would put together a meeting 5
summary that would be publicly available that would 6
have a copy of the RAIs attached, redacted if 7
necessary, but that would be publicly available.
8 That would be sufficient.
9 As Ms.
Uttal
- said, there is ample 10 commission precedent including in the Oconee license 11 renewal case that the RAI itself can't be the basis 12 for a contention.
The subject of the contention has 13 to be the Petitioner's independent analysis of the 14 plan which information the Petitioner already has 15 access to.
Of course if there is additional 16 information submitted later that would be perhaps 17 information available during the discovery process 18 that could be used to supplement a contention or 19 whatever consisted with the rules. But at this point 20 to simply have access to the RAIs would not provide 21 a basis for a contention.
In addition, we would cite 22 to the fact that the Commission's open meeting policy 23 which is available in the Federal Register May 28, 24 2002, 67 Federal Register 36920.
25 JUDGE YOUNG:
Sixty-seven 36920?
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 955 MR. REPKA: That's correct, Judge Young. At page 36921, it specifically talks about an exception to open meetings for meetings between the NRC Staff and external stakeholders that contain safeguards or other protective information.
So in the ordinary
- course, that would be a closed meeting of the Commission policy.
JUDGE YOUNG:
What's the basis for the exception?
The fact that the information is safeguards, is that the only basis for the exception?
MR. REPKA:
Yes.
JUDGE YOUNG:
It sounded as if that's what you were saying, but since I don't have that in front of me.
MR. REPKA:
There are number of exceptions and one exception would be the sole basis that the discussion contains safeguards or other protective information.
JUDGE YOUNG:
Are there any exceptions that you're arguing apply here?
MR. REPKA:
No, that would be the c would apply directly.
JUDGE YOUNG:
Can I just ask a q while we're on the safeguards?
Do you discuss any other safeguards information tU NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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submittal itself?
I guess the Staff would need to 2
answer this too.
3 MR. REPKA:
Well from our perspective the 4
discussion would be the RAIs and the Staff explaining 5
what they are which would relate directly to the 6
submittal.
However we believe that it's quite 7
possible that it may get into other safeguards 8
information that's not specifically part of the plan.
9 We can't rule that out.
I think the Staff would know 10 perhaps better than I what the subject of that 11 discussion will be.
12 MS. UTTAL:
This is Susan Uttal.
If I 13 might.
I generally agree with what Mr. Repka said.
14 The subject of the meeting will be for the Staff to 15 explain the RAI.
The RAIs are based on questions 16 that were asked. I would like to point out something 17 else to the Board that these are the posing of the 18 RAIs and asking of RAIs as part of the Staff's normal 19 review of a license application-or a license --
20 JUDGE YOUNG:
Sorry.
I'm losing things 21 that you're saying again.
You might need to repeat 22 that last thing.
23 MS. UTTAL:
Okay, Judge.
The posing, the 24 asking of RAIs, is part of the Staff's normal review 25 of a
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applications. It is not part of this proceeding. It 2
is part of the Staff's administrative task in 3
reviewing license applications and license amendment 4
applications and thus it is not really within the 5
bailiwick of this Board to put limits or to put 6
requirements on such meetings.
I believe there's 7
ample case law on that.
I can get you some sites if 8
you would like.
9 JUDGE YOUNG:
Yes, except that I guess I 10 thought when you interrupted that you were going to 11 say something about the possibility of any other 12 safeguards information besides the submittal since 13 that's what Mr. Repka was talking about just then.
14 MS.
UTTAL:
I'm sorry.
I thought you heard 15 that part when I said it.
I generally agree with 16 what Mr. Repka said.
This would be an opportunity 17 for the Staff to explain the RAIs and then what they 18 are looking for.
19 JUDGE YOUNG:
So are you saying that it is 20 or is not contemplated that other safeguards 21 information than the submittal will be discussed?
22 MS. UTTAL:
Yes.
23 JUDGE YOUNG:
It is possible.
Okay.
Mr.
24 Repka, were you finished?
I had interrupted you and 25 then I got the impression that you had something more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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to say.
2 MR. REPKA:
Just one further point which I 3
think follows up with what Ms. Uttal said about the 4
administrative review of the application which is a 5
Staff function.
In the NRC's regulations, 10 CFR 6
2.102(a) it states just as an example of that, 7
"During the review of an application by the Staff an 8
applicant may be required to supply additional 9
information.
The staff may request any one party to 10 the proceeding to confer with the staff informally.'
11 I frame that as an example of the fact that the 12 administrative review process will go on and that the 13 regulations do not contemplate that it's necessarily 14 a process that's open to petitioners in hearing 15 cases.
16 JUDGE YOUNG: Anything else from the Staff 17 before we hear from BREDL?
18 MS. UTTAL:
No, Your Honor.
19 JUDGE YOUNG: Okay.
Ms. Curran, could you 20 respond to the point phrased by Ms. Uttal and Mr.
21 Repka?
22 MS. CURRAN:
Sure.
First I think it's 23 important to point out that the protective order 24 specifically refers to requests for additional 25 information and responses to RAIs.
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in a protective order that was negotiated by the 2
Staff and Duke and BREDL. So we're revisiting ground 3
that's already been gone over that was agreed to and 4
we're frankly kind of surprised because it seems to 5
me that in this protective order this was anticipated 6
and it's also surprising to me that the Staff argues 7
this is an administrative matter that basically the 8
Interveners don't have any business in these 9
administrative matters.
10 In my experience and based on the policy 11 statement that we cited in our motion, that's just 12 not the case.
The back and forth between the Staff 13 and the Applicant is very relevant to the 14 Interveners' ability to formulate contentions and 15 litigate them.
Here we have a situation where the 16 Staff is going to be talking with the Applicant about 17 two things, a revised security plan and an exemption 18 request.
19 The Staff could just issue a letter to Duke 20 saying "Here are our questions and explain the 21 questions in the letter."
But instead the Staff and 22 Duke have arranged a conversation in which there's 23 going to be a back and forth I would think where some 24 information is exchanged by both sides and some 25 understanding is reached about what's being asked and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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what's been submitted and a relationship between 2
those two things.
3 The open meeting policy basically gives the 4
public access to those kinds of meetings and says 5
"We're only going to keep the public out of these 6
meetings under certain limited circumstances."
The 7
one that is being used here is the safeguards 8
limitation.
But I don't see why that should be a 9
limitation because we have gone through the necessary 10 procedures.
We've gotten a clearance to get these 11 documents.
The RAIs and responses have been 12 specifically mentioned in the protective agreement.
13 The Staff has said to the Commission "We 14 are not using any safeguards related standards to 15 judge this application."
All we have from the Staff 16 is a very vague statement here that maybe some other 17 safeguards information will be discussed, but that 18 doesn't seem to me to be an adequate reason to 19 completely preclude us from attending this meeting.
20 JUDGE BARATTA:
Could I ask a question at 21 this point?
22 MS. CURRAN:
Sure.
23 JUDGE BARATTA:
Correct me if I'm wrong.
24 This question I guess is for the Staff.
Is it 25 customary to have such meetings as opposed to simply NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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sending out a letter with the RAIs in it?
2 MS. UTTAL:
Yes, it is customary.
3 JUDGE BARATTA: And is that the usual case 4
or is it maybe not the usual case, but fairly 5
frequently done?
6 MS. UTTAL:
I would say that it's fairly 7
frequently done.
It's not usual to have face-to-face 8
meetings.
9 JUDGE BARATTA:
Thank you.
10 JUDGE YOUNG:
Are the meetings generally 11 open to the public when safeguards information is not 12 discussed?
13 MS. UTTAL:
No.
When it's not discussed?
14 JUDGE BARATTA:
Yes.
15 MS. UTTAL:
They are.
16 JUDGE YOUNG:
They are.
17 MS. UTTAL:
I did want to say one more 18 thing because Ms. Curran keeps on referring to BREDL 19 as an intervener. They haven't granted intervention 20 yet. The organization is still just a petitioner and 21 clearly I want to just emphasize that under 22 Commission law, they are to base their contentions on 23 the application, not on the Staff review.
Based on 24 that, the Staff emphasizes again that they have no 25 need to know what these RAIs are.
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MS. CURRAN:
Can I respond to that, Judge 2
Young?
3 JUDGE YOUNG:
Sure.
4 MS. CURRAN:
We certainly understand that 5
our contentions have to be based on the security 6
plans submittal.
There's no argument about that.
7 But the proposition that RAIs are completely 8
irrelevant to the development of contention that's 9
not correct because RAIs often raise issue that 10 petitioners or Interveners wish to pursue.
So it's 11 very important to the public to be able to gain 12 access to the Staff's concern so that they can be 13 pursued and the public can share those concerns and 14 bring them up and assure that they have been 15 resolved.
That's also a part of the process.
16 Now an intervener can't rely exclusively on 17 an RAI and nothing more, but the Staff's expressions 18 of concerns are something that's considered relevant, 19 probative and useful for purposes of developing 20 contention.
We're talking about a well established 21 policy and means of going about the NRC's business 22 here.
23 The opening meeting policy has been in 24 effect since long before 2002.
It existed before 25 that. Generally as soon as one of these cases starts NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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up, the meeting are to be held open to the public 2
unless there's some specific reason to keep them out.
3 That reason just doesn't exist here by virtue of this 4
protective agreement.
5 MR. REPKA; Judge Young, I would like to 6
respond to the issue of the protective agreement.
7 The protective order defines protected information to 8
include a category of information. However that does 9
not grant access independent of a need to know 10 determination.
The protective order doesn't 11 eliminate the need to know issue and that's the crux 12 of the issue here.
It's need to know.
13 The fact of the matter is that this is a 14 meeting to explain RAIs.
The RAIs will be available 15 perhaps in a redacted form but would be available 16 with a meeting summary.
The responses to the RAIs 17 would be available in due course.
So that's a very 18 different issue than needing access to attend this 19 meeting.
The determination is need to know and that 20 requires more than just a desire to know.
21 JUDGE YOUNG: Let me ask a question and I'd 22 like to get responses from Duke and the Staff at 23 least and BREDL if you wish to respond.
What I hear 24 is that if this meeting did not involve any 25 possibility of discussing safeguards information it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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would be open to the public.
As everyone knows, 2
Judge Baratta and I issued an order finding a need to 3
know with regard to the first three documents listed 4
in BREDL's motion regarding need to know occurrence, 5
BREDL's earlier motion.
6 As everyone knows, the Commission has 7
stayed that and I believe this Friday is the deadline 8
for responses to the Staff's appeal if I'm recalling 9
correctly.
So the issue of need to know with regard 10 to what would seem to be all the safeguards 11 information that might arise it's sort of pending at 12 this moment.
13 In light of that and in light of the fact 14 that these meetings according to the Staff are 15 generally opened presumably under the open meeting 16 policy referred to by Ms. Curran, what would be the 17 problem with having the meeting transcribed so that 18 in the event the Commission were to rule that BREDL 19 does have a need to know with regard to the 20 information addressed in Judge Baratta and my order?
21 In other words, if the Commission upholds our order 22 so that the transcript would then be available to 23 BREDL at this point since it's pending, we're sort of 24 in an unusual situation.
That was the basis for the 25 idea of having the transcript available in the event NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that the ultimate ruling would find a need to know 2
with regard to the material that would be discussed 3
among other things in the meeting.
4 MS. UTTAL:
Judge, this is Susan Uttal.
5 JUDGE YOUNG:
Hello?
6 MS. UTTAL:
I'm sorry.
I'm not so sure 7
that the appeal before the Commission is relevant.
8 JUDGE YOUNG:
If it weren't for the appeal, 9
then our determination that there is a need to know 10 with regard to that material would more or less 11 nullify the safeguards exception.
12 MS. UTTAL: No, because we're talking about 13 a different set of documents here.
There's a 14 specific set of documents that the Board decided 15 there was a need to know for.
Here we're talking 16 about a meeting regarding a different set of 17 documents, the RAIs.
18 JUDGE YOUNG:
Wait.
Hold on for just a 19 second.
As I understand it, if this were just a 20 meeting regarding RAIs that did not relate to any 21 safeguards information, then the meeting would be 22 open and the safeguards information that will come 23 into play in the meeting is the submittal along with 24 the documents described in the first three numbers in 25 our recent order.
Is that not right?
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2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. UTTAL:
No, that's not correct.
not so sure that the documents in your recent order have anything to do with what is going to be discussed at this meeting.
In the meeting, we'll be discussing the RAIs and there may be other safeguards information that may come up at this meeting that's not necessarily in the order. And I absolutely don't think we will be discussing anything that relates to your January 29th order.
JUDGE YOUNG:
You say you don't think so.
Are you certain of that?
MS. UTTAL:
Well I can't really read the future.
Can you hold on a minute please?
No, they will not be discussing them.
JUDGE YOUNG:
I'm sorry.
They will not be discussing what?
MS. UTTAL:
The documents that are covered by the Board's order of January 29th will not be discussed at this meeting. We will be discussing the RAIs.
JUDGE YOUNG: So the additional category of safeguards information besides the Duke submittals that might come up in the discussion would be the RAIs themselves.
MS. UTTAL: Hold on just a second.
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MR. FERNANDEZ:
Judge, Antonio Fernandez 2
for the Staff.
The specific documents and the 3
specific information that will be the subject of the 4
meeting is specific protective measures that the 5
licensee may or may not be taking as part of their 6
security --
7 JUDGE YOUNG: I'm sorry. Could you get off 8
the speaker?
9 MR. FERNANDEZ:
I'm not on the speaker 10 phone.
11 JUDGE YOUNG:
You're not?
Then maybe 12 somebody else could back away from theirs because I'm 13 getting some inference.
14 MR. FERNANDEZ:
Can you hear me now, Your 15 Honor?
16 JUDGE YOUNG:
Go ahead.
17 MR. FERNANDEZ:
The meeting on Friday, the 18 specific subject of the meeting is going to be actual 19 specific security measures that the licensee is 20 expected to take during the time that they have 21 fresh, unirradiated MOX fuel at the facility at the 22 explanation of questions that the Staff has with 23 regard to those specific measures.
It does not 24 relate to any other documents covered by the January 25 29th order.
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JUDGE BARATTA:
May I interject something 2
here?
3 JUDGE YOUNG:
Who's that?
4 JUDGE BARATTA:
It's Judge Baratta.
5 JUDGE YOUNG:
Go ahead.
6 JUDGE BARATTA:
In looking at the 7
protective order that everybody agreed to, it would 8
seem that there is some item which says any 9
information obtained, developed or created by virtue 10 of these proceedings in any form it's otherwise a 11 matter of public record and it indeed deals with the 12 prescribed need of the security plan submittal is 13 therefore covered by this protective order.
Would 14 somebody clarify that for MEI guess starting with the 15 Staff?
16 MR. FERNANDEZ:
If you keep on reading 17 further down in the order, the substantive matter of 18 need to know is covered as well.
Just because 19 something now may or may not be protected information 20 as defined in the order, it does not in fact become 21 available to people party to the order. There may be 22 information out there that wouldn't qualify as 23 protected information under the order. However, each 24 individual piece of information, and in this case 25 that comes up when requested by BREDL, have to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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undergo an independent need to know determination 2
before it's turned over to the person or persons 3
requesting it.
4 JUDGE YOUNG:
What I was trying to get 5
clarification on was what pieces of information 6
you're talking about without disclosing the 7
information itself? I think you could describe those 8
and what I'm trying to understand is a part from 9
Duke's submittal and I'm understanding from Ms. Uttal 10 the RAIs themselves, apart from
- those, what 11 additional information or types of information would 12 come up that would be safeguards information.
13 MR. FERNANDEZ:
Well without getting into 14 the specifics of the meeting and then completely 15 circumvent the need for a need to know determination 16 in general terms what I can tell you is that we will 17 be discussing specific measures that the licensee may 18 or may not take in support of their request for 19 exemptions from certain parts of the regulations.
20 JUDGE YOUNG:
In addition to those that 21 Duke has described in its submittal.
22 MR. FERNANDEZ: Or maybe further discussion 23 of the ones that they have already described.
24 JUDGE YOUNG:
Would those measures be 25 included the RAIs?
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MR. FERNANDEZ: Maybe in the RAI responses.
2 Your Honor, let me put you on mute for a second and 3
I'll get back in one second.
4 MR. REPKA:
This is Dave Repka.
5 JUDGE YOUNG:
Do you want to wait until 6
they get back?
7 MR. REPKA:
Okay.
8 (Pause.)
9 MR. FERNANDEZ:
We're back, Your Honor.
10 Sorry about that.
11 JUDGE YOUNG: Okay.
Mr. Repka, do you want 12 to say what you were going to say first?
Did it 13 relate to something that was already said? Would it 14 make more sense to hear you first or hear from the 15 Staff?
16 MR. REPKA:
We'll listen to see if the 17 Staff was going to say more.
18 JUDGE YOUNG:
Good ahead, Mr. Fernandez or 19 Ms. Uttal.
20 MR. FERNANDEZ:
We don't have anything to 21 add, Your Honor.
22 MR. REPKA:
Okay. To follow up on the 23 Staff's earlier point what we would say is without 24 knowing exactly what the substance of the meeting 25 would be we find it difficult to guarantee that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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subject or information in the design-basis threat and 2
other orders would not necessarily come up.
But 3
otherwise we would expect some of the additional 4
information that might come up would be on the lines 5
of beyond what was already included in the security 6
plan submittal with the specific implementing 7
procedures and the like.
8 JUDGE YOUNG:
That are different from 9
what's in any of the documents that are addressed by 10 our earlier order.
11 MR. REPKA:
That are different from the 12 security plan submittal of September 15th.
Now with 13 respect to the order
- itself, it's certainly 14 contemplates RAIs and RAI responses and I think 15 that's an issue that is fundamentally different from 16 attending a meeting.
Whereas the latter, the 17 meeting, is at least potentially more open-ended 18 discussion that could range into additional 19 safeguards information and for that very reason is 20 closed under the policy.
21 Again coming back to need to know, it's one 22 thing to talk about the meeting.
It's another thing 23 to talk about the RAIs themselves and the RAI 24 responses. We think that with respect to the meeting 25 given the open-ended nature of it and the information NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that could come up there is certainly no need to know 2
about the meeting itself.
3 JUDGE YOUNG:
Let me just see if I can get 4
a response from you on this situation that was 5
described earlier.
Let's say the Commission were to 6
rule tomorrow and they're not because Friday is the 7
response date.
But let's say hypothetically the 8
Commission were to rule tomorrow that BREDL had a 9
need to know with regard to all of the documents that 10 our order of last week covered and gave some 11 indications that the type of information that may be 12 discussed at the meeting was the kind of information 13 that BREDL would also have a need to know.
14 Were that to be the case I would expect 15 that you and the staff would be deferring to the 16 Commission's order and might be more amenable to 17 having BREDL come to the meeting which they would 18 normally come to were it not to concern safeguards 19 information? Am I correct in assuming that?
20 MR. REPKA: If the Commission were to order 21 that there's a need to know with respect to the 22 design basis threat and other orders plus that 23 there's a need to know with respect to the other 24 issues that might come up in the meeting, we would 25 certainly defer to that Commission order on those two NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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need to know determinations.
Obviously we're not 2
there at this point.
3 JUDGE YOUNG: Right, and that's sort of the 4
problem we're in because right now everything's 5
pending.
6 MR. REPKA:
That's correct.
We agree.
7 Everything is pending and certainly attendance at the 8
meeting while that's pending would be premature and 9
would feed the Commission's stay.
The problem is 10 that the issue before the Commission would go to a 11 discrete set of documents procedurally with respect 12 to the issue of any other safeguards information 13 beyond the mere printed RAIs and in the future, RAI 14 responses that might come up in Friday's meeting.
15 That information's not procedurally before 16 the Commission. That's not subject to the order that 17 the Commission would be ruling upon.
So I'm not sure 18 how the Commission could or would address that issue.
19 Our position is that given that and given all of the 20 various circumstances that apply and particularly 21 given that the protective order doesn't abrogate a 22 need to know determination and the information that 23 will subsequently be available on this meeting 24 including the RAIs and Duke's responses to the RAIs, 25 there's no need to know with respect to attending the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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meeting or a transcript of the meeting.
2 JUDGE YOUNG:
I guess what I was trying to 3
get at --
Hold on one second.
I guess what I was 4
trying to get at is if the Commission were to issue 5
this hypothetical order tomorrow and the tenor of the 6
order were to suggest that the type of information 7
that might be discussed at this meeting tomorrow 8
would be something that BREDL would have a need to 9
- know, that's what I was really getting at.
10 Ultimately what I'm getting at is trying to get a 11 response to the question given that the Commission's 12 statement on the three classifications of documents 13 on which Judge Baratta and I earlier ruled given that 14 the Commission's decision on that is now pending and 15 that the decision might well provide some elucidation 16 with regard to need to know issues in this case 17 generally, what would be the reason not to order a 18 transcript which if the Commission's ultimate ruling 19 would suggest that there were no need to know with 20 regard to the information discussed in the meeting, 21 the transcript would remain sealed and BREDL would 22 never see it.
On the other hand, if the Commission's 23 ruling went the other way, the transcript would be 24 there so that it would allow for the status quo to be 25 maintained more effectively than not allowing a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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transcript.
2 MS. CURRAN:
Judge Young, do you think I 3
could answer that question? This is Diane Curran.
4 JUDGE YOUNG:
Well you can but I know 5
pretty much what you're going to say.
I wanted to 6
try and hear that from Mr. Repka as well.
So go 7
ahead.
8 MS. CURRAN: I have not a chance to comment 9
on that issue.
I think this is really important.
10 What's before the Commission now isn't relevant to 11 this February 6th meeting.
I don't think it is at 12 all.
I agree with the Staff on that because if you 13 look at the Staff's motion for interlocutory review, 14 the one the Staff refiled on February 2, they say 15 "We're not using any of these confidential safeguards 16 documents to review the security plan submittal."
17 Their position is these confidential standards are 18 irrelevant.
So they made it really clear.
They are 19 not going to talk about those things in this meeting.
20 Then the question is what are they going to 21 talk about and do we have a need to know that?
I 22 think Mr. Fernandez said it really clearly a few 23 minutes ago that they are going to talk about the 24 specific measures that Duke is going to take under 25 its security measures for using the LTAs at Catawba.
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That is precisely the subject of the security plan 2
submittal.
If they are going to embellish it, if 3
they are going to say "Well, the plan may not satisfy 4
you but here look at these procedures," we want to be 5
there.
We want to hear what it is Duke is offering 6
the Staff to satisfy the Staff that the security plan 7
submittal is adequate.
8 I don't see that the Commission's decision 9
is going to have any bearing on that.
The only real 10 subject matter of this meeting is the security plan 11 submittal and what the Staff wants to know about it.
12 That's it.
There's already been a determination of 13 a need to know with respect to the security plan 14 submittal and we've read it.
15 If Duke is going to explain more, embellish 16 on what they said in their written filing in this 17 meeting, to us it's very clearly something that we 18 need to know.
It's quite relevant.
It's an oral 19 submission.
20 MR. REPKA:
There's a presumption --
21 JUDGE YOUNG:
Hold on.
Let's not everyone 22 jump in at once.
Before we get too far down the 23 line, I want to just try to lay out two issues as I'm 24 hearing them discussed here.
I'd like to get 25 responses from everyone on those. First on the issue NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that Ms. Curran is raising that the Staff is not 2
going to be getting into the other documents, but 3
will be discussing specific additional measures which 4
I think Duke anyway and I think the Staff would S
probably agree ultimately the RAIs themselves and the 6
RAI responses would probably be something that the 7
Petitioners would need to know.
What I hear Ms.
8 Curran saying is given that this information seems to 9
be so closely tied to the submittal itself and the 10 submittal has already been agreed to be something 11 that the Petitioners have a need to know on, why 12 would not any additional measures likewise be 13 something they would need to know. That's one issue.
14 I would like to get responses on that.
15 But before I do, Ms. Curran, with regard to 16 transcribing the proceeding, I guess even though the 17 issue before the Commission relates to specific 18 documents I think we can probably all agree that 19 there's a possibility that whatever the Commission 20 rules will provide some elucidation on how they see 21 the security issues and need to know with regard to 22 security issues generally in this proceeding.
There 23 might be something that would provide guidance for us 24 in the future conduct of this proceeding.
25 Because of that, that's why I wanted to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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hear from everyone on why a transcript would or would 2
not be something that would be appropriate in light 3
of the pending status of any elucidation and guidance 4
that the Commission might provide to us in their 5
ruling on the Staff's appeal.
6 MS. CURRAN:
Judge Young?
7 JUDGE YOUNG:
Yes.
8 MS. CURRAN:
This is Diane Curran.
We did 9
ask in the alternative that a transcript of the 10 meeting be made. That would be at least some form of 11 relief for us.
We prefer to simply attend the 12 meeting but short of that having a transcript made 13 would certainly be helpful so we'd certainly be 14 willing to settle for that.
15 JUDGE YOUNG: Okay.
Mr. Repka, I think you 16 were talking before and I was trying to get your 17 response from that question.
Could you respond to 18 that?
19 MR. REPKA:
There were so many questions.
20 I'm not sure what one you want me to respond to.
21 JUDGE YOUNG:
The issue of the transcript 22 and then let's move on to the other issue raised by 23 Ms. Curran.
24 MR. REPKA:
The transcript.
We did not 25 object per se to the transcript.
It certainly would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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preserve the status quo and we certainly agree that 2
if the Commission provides some guidance on what's 3
appropriate in this proceeding that it can be 4
applied.
The problem we have with that is what I 5
explained earlier which is that the Commission does 6
have this issue of attending a meeting on the RAIs 7
directly in front of them.
8 JUDGE YOUNG:
That's true, but we're 9
talking about the kind of guidance that they might 10 provide.
11 MR. REPKA:
Right.
12 JUDGE YOUNG:
And that might lead in one 13 path or another and if we have the transcript then 14 the status quo is maintained and we don't have to go 15 back and make new tracks.
16 MR. REPKA: Right. I agree with that. But 17 to the extent that there's additional guidance as 18 needed or there's still a dispute after the 19 Commission comes out with respect to additional 20 information in this transcript, I think that we can't 21 assume that it will be and have been resolved.
22 That's number one.
That's my response.
23 JUDGE YOUNG:
But there's no real harm in 24 having a transcript done is what I hear you saying.
25 MR. REPKA: No harm to Duke.
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JUDGE YOUNG:
Okay.
2 MR.
REPKA:
Now with respect to Ms.
3 Curran's last argument about needing to hear the 4
additional measures that Duke is going to take, etc.,
5 I think Ms. Curran is presuming something about the 6
meeting that is not consistent with our understanding 7
of the meeting.
The meeting is an opportunity for 8
the Staff to explain the RAIs to Duke.
It is not an 9
opportunity for Duke to explain its responses, to 10 describe additional measures.
Duke will be doing 11 that in its formal written responses to the RAIs.
12 I don't think there's any expectation that 13 this meeting Friday is an attempt to answer all Staff 14 questions or even any Staff questions.
I think it's 15 important that --
Did I say something funny? I heard 16 some laughter on the telephone.
17 JUDGE YOUNG:
I don't know.
18 MR. REPKA:
But I think it's important we 19 understand and characterize correctly what will be 20 happening and not happening on Friday.
21 JUDGE YOUNG:
Ms. Uttal?
22 MS. UTTAL:
Yes.
I think that I have to 23 clear up a couple of things.
At this meeting on 24 Friday, the Staff will be explaining its RAIs but I 25 believe that we'll be expecting the informal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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responses from Duke. But all the responses that will 2
be considered will have to be reduced to writing and 3
submitted to the Staff under oath or affirmation.
4 Therefore what happens at the meeting will be reduced 5
to writing after the meeting and submitted as answers 6
to RAIs.
Therefore there is again no need to know 7
the actual questions before they are answered.
8 MS. CURRAN:
Is anyone --
9 JUDGE YOUNG:
Go ahead, Ms. Curran.
10 MS. CURRAN:
Well, I'm presuming that the 11 Staff is going to be objecting if we try to get the 12 answers to the RAIs too.
It seems to me if it's all 13 right for us to get the answers to the RAIs it should 14 be all right for us to be a party to that meeting.
15 One thing about going to a meeting is that if someone 16 is there to observe it who is not one of the 17 principals then at least you know what was discussed.
18 If we don't go who would ever have an idea of what 19 was discussed at this meeting.
20 JUDGE YOUNG:
Or have a transcript I 21 presume you're saying.
22 MS. CURRAN: Yes, if there's no transcript, 23 if we're not allowed to go, there isn't any control 24 on what's discussed at the meeting at all when it's 25 obvious that the subject matter of that meeting is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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the application in which we have expressed an 2
interest in preparing contention.
3 I don't understand what Ms. Uttal implying 4
is that eventually we'll be able to see RAIs 5
responses.
Well, if we're going to be able to see 6
those, then why shouldn't we be able to attend the 7
meeting?
8 MS. UTTAL:
Your Honor, I'm not implying 9
that they will eventually be able to see RAI 10 responses.
That would require another need to know 11 determination.
12 MS. CURRAN:
Okay.
So what you're saying 13 is that at this meeting Duke is going to be supplying 14 information orally, perhaps informally, but they're 15 going to be supplying information related to the 16 security plan submittal.
What I hear you saying is 17 that you don't think we should be able to get that 18 under any circumstances.
19 JUDGE YOUNG:
Ms. Uttal.
20 MS. UTTAL:
I'm sorry.
She was asking me 21 a question.
22 MS. CURRAN:
Yes.
23 MR. FERNANDEZ: Your Honor, this is Antonio 24 Fernandez.
We're not saying that.
At the time that 25 their licensee submits its responses if Ms. Curran NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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requests
- them, we'll review the responses and 2
determine whether she has a need to know that 3
information. Currently BREDL does not have a need to 4
know as the Staff has determined and that's why we've 5
denied them access to the meeting. I think it's very 6
important to go back to a fundamental principle in 7
the meeting that we all keep forgetting.
The 8
Petitioners in this case are required to look at the 9
docketed information and frame their contentions 10 based on that information.
11 If there are gaps in that information, if 12 information they feel is inadequate, they need to 13 point that out.
They have not done so.
We would K> y14 point out to the Board that this is akin to granting 15 discovery prior to having contentions admitted in 16 this case.
17 BREDL has yet to get one contention on any 18 issue admitted in this proceeding and we are being 19 obligated that there are actions of the Board to 20 force the Staff to produce documents which originally 21 would not be available at this stage of the 22 proceeding particularly because of the nature of the 23 documents here as safeguards.
Going back to what I 24 said initially, they have yet to frame any 25 contention.
If they believe that there are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 984 deficiencies on the face of the document as submitted by Duke, then they should point those out.
They should not rely on the Staff's questions regarding the submittal as basis for their contentions or as an opportunity to go on a fishing expedition to get issues for framing contentions.
JUDGE YOUNG:
Mr. Fernandez or Ms. Uttal, I hear both BREDL and Duke saying that ordering a transcript of this obviously through a cleared court reporter would be an appropriate way to preserve the status quo that would not create any harm.
I just want to make sure that you've had full opportunity to give your input on that.
I haven't heard you say anything different than that.
MS. UTTAL:
Well at the beginning of this phone conference, I stated that the Staff was not amendable to a transcript.
I don't believe it's within the Board's jurisdiction to order the Staff to make a transcript.
This meetings are not normally transcribed and the Staff is not willing to do it.
JUDGE YOUNG:
If I
could get some clarification, I think it would help us.
If you would explain where you see the harm especially given that the other two participants don't see any harm in approaching it in that way. All that would do is to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 2
3 4
S 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 985 preserve the status quo and then depending upon what develops in the future including what guidance the Commission may provide to us on the security related issues, that transcript would be available and would or would not be provided based on future developments.
JUDGE ARATTA: I think I would like to add on that if I may, Judge Young.
JUDGE YOUNG:
Please.
JUDGE BARATTA:
It is the Board's prerogative to determine or make a ruling on the need to know as well.
Having the transcript clearly enables us then to make that ruling.
JUDGE YOUNG:
I agree.
That would be very helpful.
It would be pretty hard to make that ultimately without that as a matter of fact.
MS. UTTAL:
Well, Judge Young and Judge Baratta, I believe that it's the Staff's prerogative to make order that effect this meeting and the proceedings before the Board.
This is a Staff function. Having this meeting is a Staff function on which the administrative responsibility is to review this license amendment application.
JUDGE YOUNG:
What I was really trying to get you to address without needing to get into NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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jurisdictional questions is where's the harm in 2
preserving the status quo by having a transcript 3
made?
4 MS.
UTTAL:
I'm not so sure that the 5
standard is what's the harm.
6 JUDGE YOUNG:
Well I'm asking you to 7
address that because that would be helpful to us in 8
ruling on the motion that's before us.
9 MS. UTTAL:
It's a harm to the process.
10 Staff is proceeding as it normally would in any case 11 and it's a blurring of the responsibilities between 12 the Staff and the Board.
13 JUDGE YOUNG:
I'm sorry.
You said 14 something about the harm to the process.
I didn't 15 catch what you said or meant by that.
16 MS. UTTAL:
Hold on a minute.
17 MR. FERNANDEZ: Your Honor, this is Antonio 18 Fernandez from the Staff.
The status quo ordinarily 19 would be that these documents would not be available 20 to the petitioners.
So we are preserving the status 21 quo in making this information not available to them.
22 If in the event that at a later time the 23 Board or the Commission were to rule that this 24 information should be made available to the 25 Petitioners the information would have been reduced NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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to writing and it would be embodied in a document, 2
not a transcript necessarily, but a more relevant 3
document which is the docketed response from the 4
licensee addressing each individual RAI.
So there 5
would be a document.
Let me point out --
6 JUDGE YOUNG:
Excuse me for a moment.
7 (Pause.)
8 MR. FERNANDEZ:
And let me point out that 9
more importantly the discussions at the meeting would 10 not be what the Staff would base its ultimate 11 decision on.
It would be based on the docketed 12 responses under oath or affirmations. So, yes, there 13 would be a document that in the future would preserve 14 any need that BREDL may or may not have to access 15 information.
16 JUDGE YOUNG: I think my question was where 17 would be the harm in having a transcript which would 18 provide obviously a lot more in-depth and detailed 19 accounting of the actual interactions that would 20 normally be open but for the safeguards information.
21 Where is the harm in ordering a transcript?
22 MR. FERNANDEZ:
First of all, let me say 23 that normally these meetings are not open to anybody 24 except for the two parties involved in communication.
25 JUDGE BARATTA:
Is that a true statement if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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it were not safeguards information?
2 MS.
UTTAL:
But it is safeguards 3
information.
4 JUDGE BARATTA: Is that a true statement if 5
it were not safeguards information?
6 JUDGE YOUNG:
I thought you said earlier 7
that normally they were open if they do not involve 8
safeguards information.
9 MR. FERNANDEZ: RAI meetings regarding non-10 safeguards information are conducted under the open 11 meeting policy and noticed to the public.
RAI 12 meetings or other meetings in which safeguards 13 information is discussed are not open to stakeholders 14 that do not have a need to know.
15 JUDGE YOUNG:
If you could, could you 16 address the issue of harm because I still don't hear 17 you giving a reason why there would be any harm in 18 having a transcript made?
Then I think we probably 19 need to conclude the argument and we'll get an order 20 out on this today.
21 MR. FERNANDEZ:
Yes, Your Honor.
The 22 reason why the Staff feels that it would be harmed is 23 without addressing the issue that the Board has no 24 authority to order the Staff to do a transcript the 25 Staff does not ordinarily transcribe these meetings.
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The Staff tries to limit the generation of new 2
documents containing safeguards to a minimum.
3 In essence this would be yet another 4
document containing safeguards, therefore, expanding 5
the possibility that this information ultimately be 6
made inadvertently public.
The Staff regards this 7
meeting as one that is just within the course of its 8
ordinary business and there shouldn't be any reason 9
why it shouldn't follow that course as it would do 10 otherwise. To oblige the Staff to do otherwise would 11 cause a harm on the Staff by setting a precedent that 12 would be quite unfortunate in that it would be 13 preserving something other than the status quo 14 because the status quo naturally precludes the 15 petitioners from this discussion.
16 Ultimately the Board's and the Petitioner's 17 interest in making the information the Staff is going 18 to use ultimately available to the Petitioner would 19 still be preserved, not in performing this unnatural 20 function of doing a transcript, but in what normally 21 is done which is that licensees' docketed response to 22 RAIs.
That would be the more natural course of 23 business that would maintain the status quo as 24 normally the Staff conducts its business.
25 JUDGE YOUNG: Mr. Fernandez, how often does NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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the Staff hold meetings about RAIs with Applicants or 2
Licensees that concern safeguards information?
3 MR. FERNANDEZ:
Hold on one second to 4
answer that question.
5 (Pause.)
6 MR.
FERNANDEZ:
Your Honor, it is my 7
understanding that normally these types of requests 8
are not something that's done very often.
However 9
common practice has been that the times a
10 clarification is needed in a Staff document that 11 contains safeguards information, there are such 12 meetings between the stakeholders that have a need to 13 know the information and the Staff.
14 JUDGE YOUNG:
I guess just to give us an 15 idea.
When was the last time you had a meeting like 16 this that involved safeguards information?
17 MR. FERNANDEZ:
I don't think I have 18 anybody here that can answer that question.
19 JUDGE YOUNG:
So you're not aware of any.
20 MR. FERNANDEZ: Not personally, no.
21 JUDGE BARATTA:
Could you maybe rephrase 22 what you said about the time the classification 23 takes?
Somehow I didn't quite what your point was 24 there.
I apologize for that.
25 MR. FERNANDEZ:
I don't know what you're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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talking about, Judge Baratta.
2 JUDGE BARATTA:
You made a statement just 3
recently a minute or so ago that the time the 4
classification takes and then something about there 5
is a meeting with the stakeholder parties.
I didn't 6
quite follow what you were saying there.
7 MR. FERNANDEZ:
To my just recent response 8
to Judge Young?
9 JUDGE BARATTA:
Yes, about a minute ago.
10 MR. FERNANDEZ:
Okay.
11 JUDGE YOUNG:
He said that there would be 12 a meeting with stakeholders who had a need to know.
13 JUDGE BARATTA:
Right.
14 JUDGE YOUNG:
I didn't follow that 15 completely either now that you mentioned it, Judge 16 Baratta.
17 MR. FERNANDEZ:
Let's say for example the 18 Staff issued an order to a licensee, similar to the 19 orders that were issued before.
If those licensees 20 or NEI or whoever had a need to know the information 21 and had asked for clarification on statements that 22 the Staff made in that safeguard document, the Staff 23 would ordinarily as a matter of its normal course of 24 business meet with the stakeholders that had a need 25 to know and address whatever questions that had NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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arisen regarding the Staff's request in whatever form 2
they may be, either for addition information or for 3
an immediate action or whatever it may be.
4 JUDGE YOUNG:
Just one last question.
How 5
does the Staff make those need to know determinations 6
on who would be the stakeholders that would be 7
admitted to any such meetings?
8 MR. FERNANDEZ:
The Staff would make the 9
need to know determinations following Part 73 and are 10 made on a case-by-case basis.
11 MR. REPKA:
Judge Young, this is Dave 12 Repka.
I have one point I'd like to make.
13 JUDGE YOUNG:
Excuse me.
I have to close 14 my door.
I keep getting knocks on my door all the 15 time.
I apologize.
I want to be able to hear 16 everyone better.
Go ahead.
17 MR. REPKA:
I just wanted to follow up on 18 a couple of things that Mr. Fernandez said.
Number 19 one with respect to the transcript, my position 20 before was that there is no harm to Duke, not there 21 is no harm generally.
There is no harm to Duke of 22 such a transcript and that is my position.
23 But with respect to the jurisdictional 24 point that Mr. Fernandez is raising, I think that 25 really does take us back to the point I made at the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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very top of this discussion which was that 10 CFR 2
2.102(a) talks about meetings in the ordinary course 3
of the Staff's review process and that the Staff may 4
meet informally with a party including the applicant 5
to discuss requests for additional information.
6 JUDGE YOUNG: But wouldn't the open meeting 7
policy override that to the extent that the issue is 8
who may be present at those meetings?
9 MR. REPKA:
Yes, it would to the extent 10 that the meeting was going to be held subject to the 11 policy.
Those kinds of RAI discussion don't 12 necessarily have to be the subject of a public 13 meeting.
14 JUDGE YOUNG: But we've been told that they 15 are if they don't involve safeguards information.
16 MR. REPKA:
Well, I think experience would 17 teach in some cases that RAIs are discussed by 18 teleconference that wouldn't necessarily be an open 19 meeting.
But that's not the point I was really 20 getting at.
The question about what to 2.102 means, 21 a couple cases have just been called to my attention 22 through the Practice and Procedure Diqest that I 23 think the Board would want to look at.
I haven't 24 read the cases in detail but at least according to 25 the Digest it characterizes them as saying that --
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JUDGE YOUNG:
Let me get out my Digest and 2
you can tell me what page to look on.
Hold on.
Have 3
you the most recent one?
4 MR. REPKA:
Well, I have Digest 12.
5 JUDGE YOUNG:
June 2003.
6 MR. REPKA:
That would be it.
7 JUDGE YOUNG:
Okay.
8 MR. REPKA:
You want to look at section 9
6.5.4.1 which is on "General Matters" page 25.
10 JUDGE YOUNG:
"General Matters"?
11 MR. REPKA:
Yes, "General Matters" page 25 12 or if you follow the sections it's 6.5.4.
13 JUDGE YOUNG:
All right.
There are no 14 separate page numbers.
I'm almost there.
15 MR. REPKA:
Okay.
16 JUDGE YOUNG:
6.5.4 "Staff-Applicant 17 Communications."
18 MR. REPKA:
Right and right under that.1, 19 it cites 2.102(a) and says the staff may confer 20 privately with the applicant.
21 JUDGE YOUNG: Informally. Privately, okay.
22 MR. REPKA:
Right.
Well, putting that 23 aside, it's the next statement set that potentially 24 are relevant.
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part of the hearing process, it has no jurisdiction 2
to supervise the staff's review process and as such 3
cannot order the staff and applicant to hold their 4
private discussions in the vicinity of the site" 5
which is not what we're talking about "or to provide 6
transcripts of such discussions."
Citing two cases, 7
a Northeast Nuclear Licensing Board decision and a 8
Rancho Seco Commission decision.
I think perhaps 9
those cases go to Mr.
Fernandez's jurisdictional 10 argument.
11 JUDGE YOUNG:
We're both looking in the 12 Digest and I'm looking back at the motion and the 13 policy statement is a 2002 policy statement.
I'm 14 wondering whether you know or anyone knows of any 15 case law post-2002.
16 MS.
CURRAN:
- Well, if you keep looking 17
- down, Judge Young, I have an older version of the 18 Digest but there's also cases that say "With certain 19 exceptions, all meetings conducted by the NRC 20 technical staff as part of its review, etc. are to be 21 open to attendance by all parties."
I guess this is 22 citation to the open meeting policy.
23 MR.
REPKA:
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the Regulation 2.102.
I think that the relevant 2
issue is the issue of may the licensing board order 3
the staff to create a transcript.
That's a more 4
narrow issue than the broad presumption of the open 5
meeting policy.
6 MS. CURRAN:
Well is anybody here denying 7
that the Board can order that the meeting be held 8
open?
Because it seems to me what the Board was 9
trying to do was say "Here's an alternative interim 10 measure that can be taken while we work this out" 11 that no one else seems to be interested. What I hear 12 the Board saying is whether or not the Board has 13 authority to order the transcript.
It's a way of 14 preserving the status quo until the Board gets 15 further guidance from the Commission. The Board also 16 has the alternative of ordering that BREDL will be 17 allowed to attend the meeting.
18 MS. UTTAL:
This is Susan Uttal.
I don't 19 believe that the Board has that authority. I believe 20 that the first blurb in the section 6.5.4.1 makes 21 that clear that the Board has the authority to make 22 23 JUDGE YOUNG: I missed the last bit of what 24 you said.
Go ahead.
25 MS.
UTTAL:
The Board does not the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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authority to order the staff to hold a meeting and I 2
believe the blurb in section 6.5.4 --
3 JUDGE YOUNG:
We're missing words.
I'm 4
missing words that you're saying.
About every third 5
words it sounds like I'm missing.
6 MS. UTTAL:
Can you hear me better now?
7 JUDGE YOUNG:
Yes.
8 MS. UTTAL:
Okay.
I do not believe that 9
the Board has the authority to order the Staff to 10 hold this meeting open. I believe that the first two 11 cases cited in section 6.5.4.1 makes that clear that 12 the licensing board has the authority over staff 13 actions at a part of the hearing process.
The 14 meeting is part of the Staff's administrative process 15 in reviewing this license amendment application and 16 the Board cannot order the Staff to hold it open or 17 to provide transcripts of the discussion.
18 MS. CURRAN:
Well, there seems to be a 19 difference between private discussions and meetings.
20 We all probably should read these cases because there 21 is this open meeting policy that doesn't seem to be 22 the subject of the cases.
I don't have the cases in 23 front of me, but it seems like it would be important 24 to read them.
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can override the regulation or override the case law.
2 JUDGE YOUNG:
I do note Ms.
Curran's 3
distinction between a private conversation and a 4
meeting and I'm just looking here through the January 5
30th memorandum to John Nakoski from Robert Martin 6
referring to this as a meeting.
Let me just see if 7
I can cut through some issues here.
It strikes me 8
that wherever we do the likelihood is that if we do 9
anything other than agree with the Staff that we 10 don't have jurisdiction and not order a transcript 11 that the Staff would likely appeal that to the 12 Commission.
13 We do have a motion before us and we 14 obviously have jurisdiction to rule on that motion.
15 If we were to find that we did not have jurisdiction 16 to order a transcript, I believe --
Hold on just a 17 second.
Well I may want to get back to this but 18 putting aside the issue of whether we would have 19 authority to find a need to know and order that the 20 meeting be open to Petitioners if we were to suggest 21 a
transcript as the least intrusive way of 22 maintaining status quo and allow the parties to take 23 the issue further to the Commission, let me hear the 24 parties' responses on that approach.
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will hold true, but I would like to think that we can 2
try to work together cooperatively to facilitate the 3
most efficient and effective process possible with 4
regard to issues that are likely going to be coming 5
up in this adjudication process notwithstanding that 6
they are also coming up in the Staff's separate 7
review.
So in that vein, do any of you wish to 8
address the approach that I just posed?
9 MS. CURRAN:
This is Diane Curran.
Judge 10 Young, we would like a ruling from the Board on a 11 motion, but the Board decides for whatever reason 12 that it doesn't have jurisdiction, we'd like to see 13 something done to preserve the status
- quo, to 14 preserve the record of that meeting while we go to 15 the Commission.
16 JUDGE YOUNG: Anyone else?
17 MR. REPKA:
This is Dave Repka.
I don't 18 think I'm prepared to say what position we will take 19 if you ordered the transcript of the meeting whether 20 we would appeal that to the Commission.
I'm just not 21 prepared to say at this point what would happen. Our 22 fundamental position at this point on the motion is 23 that there is no need to know and we have to look at 24 that need to know determination in the context of 25 this entire proceeding.
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JUDGE YOUNG:
What I was really trying to 2
get you to address is my suggestion that we suggest 3
a transcript and urge the parties to go to the 4
Commission if they disagree with that suggestion.
5 MR. REPKA:
I have no objection to that 6
suggestion or that urging.
7 MS. UTTAL:
Your Honor, I don't know what 8
status the suggestion would have.
The Staff as I 9
said from the beginning is not amenable to having a 10 transcript made of this meeting.
11 JUDGE BARATTA:
Judge Young, may I ask a 12 question?
13 JUDGE YOUNG:
Go ahead please.
14 JUDGE BARATTA:
Hypothetically speaking 15 now, if a meeting that is conducted and I use the 16 word "meeting" as defined in the second paragraph 17 which deals with certain exceptions etc. and there is 18 material that is discussed there that is relevant to 19 a case and it is safeguards information, is there any 20 dispute that the Board has then the authority to 21 review that information and determine if a party has 22 a need to know?
I would like to hear from the Staff 23 if I could.
24 MS. UTTAL:
You're asking if the Staff in 25 the normal course of its administrative duties holds NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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a meeting and then something comes up about a case.
2 JUDGE BARATTA:
No, I'm talking in regards 3
that the Staff holds a meeting as part of its review 4
of a
particular domestic license or permit 5
application as defined in the third paragraph on page 6
25 there under 6.5.4.1.
7 MS. UTTAL:
I would have to look.
8 JUDGE YOUNG:
Let me see if I understand.
9 Pardon me.
I was just trying to sign under Westlaw 10 to see if I could find anything quickly under there.
11 You're saying if there were a request for a need to 12 know determination that the Staff disagree that we 13 would make that ruling.
14 JUDGE BARATTA:
That we would have that 15 authority to make that ruling.
16 MS. UTTAL: Your Honor, I disagree that you 17 could make a need to know ruling having to do with a 18 Staff meeting.
That is not part of the hearing 19 process.
20 JUDGE YOUNG: Under your protective order, 21 you agreed that any disputes on need to know with 22 regard to the information in the protective order 23 would be resolved by the Board.
24 MS. UTTAL:
Yes.
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described in the protective order as Ms. Curran has 2
pointed out relates to RAIs and RAI responses. So it 3
would seem that under the protective order you have 4
agreed that the Board would resolve any disputes 5
about need to know determinations.
6 MS. UTTAL:
Within the context of the 7
hearing.
This is not within the context of the 8
hearing.
This is within the context of the Staff's 9
review of the filed license renewal application.
10 JUDGE YOUNG:
Maybe the other parties and 11 you could address whether the protective order is 12 limited to the hearing.
I'm trying to get the 13 protective order out from under my files right now.
14 I had it a second ago.
Here it is.
I assumed that 15 the protective order dealt with anything related to 16 the proceedings.
17 MS. CURRAN:
Judge Young, this is Diane 18 Curran.
That's how I interpreted it partly because 19 the security plan submittal itself is not part of the 20 hearing at this point.
It is part of the licensing 21 proceeding.
To make any sense, I think this 22 protective order relates to information that 23 generated during the licensing proceeding.
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determination and a motion.
But I do want to make 2
that now, clarifying that we are asking for a need to 3
know determination from the Board.
4 JUDGE YOUNG:
Could we have the Staff and 5
Duke speak to the need to know issue and speak to 6
that in the context of --
The status quo right now 7
with regard to our previous ruling is that it stands.
8 It has been stayed but it has been stayed as a 9
housekeeping matter so that the status quo can be 10 maintained while the Commission receives responses to 11 the Staff's appeal.
12 Let's assume for a moment that -
Well 13 let's not assume the Commission upholds this.
Let's 14 just as a given that at this moment our order of last 15 week stands.
In light of that and in any other 16 arguments you want to make, what would be your 17 response to Ms. Curran's request for a need to know 18 determination regarding the information to be 19 discussed in the meeting and attending the meeting?
20 MR. REPKA:
This is Dave Repka for Duke.
21 We have not contested the Board's authority to make 22 a need to know determination with respect to either 23 the earlier request and have not made that argument 24 today with respect to the information that could come 25 up in the meeting.
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in the context of this particular issue.
2 Ultimately the protective order which 3
provides recourse to the licensing board for need to 4
know determinations is limited in its scope to the 5
scope of the protective order and the licensing 6
board's jurisdiction, but we're not making any 7
argument with respect to this specific request that 8
a need to know determination would be beyond the 9
Board's jurisdiction.
Our argument is that there is 10 no need to know.
11 JUDGE YOUNG:
Assuming that we have 12 jurisdiction to make a need to know determination and 13 given that the parties have agreed that we should 14 resolve any disputes on that and assuming further 15 that ordering a transcript would be in a sense a 16 lesser included measure, do you have anything further 17 to say on that, Mr. Repka?
Then I'd like to hear 18 from the Staff on both issues.
19 MR. REPKA:
No.
I don't really have 20 anything further to say.
21 JUDGE YOUNG:
Okay.
From Ms. Uttal or Mr.
22 Fernandez?
23 MS. UTTAL: I'm trying to remember what you 24 want to know.
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request for a need to know determination and then my 2
question.
I guess part of the reason I ask the 3
question about the transcript being a lesser included 4
measure is because I don't know to what extent it's 5
falling on receptive ears.
I do think that 6
proceedings tend to move along more efficiently when 7
the parties can work together cooperatively to the 8
greatest extent possible.
9 MS. UTTAL:
Judge, the Staff is willing 10 with the parties for reasonable requests.
We don't 11 think that there's a need to know this information 12 and that's been our position from the beginning.
So 13 to the extent that the Board is considering making a 14 need to know finding that there is no need to know 15 what the RAIs are and we have to remember what 16 context is referring now that BREDL is right now a 17 petitioner. They have not filed any contentions.
18 They do not need to know what the RAIs are.
19 JUDGE YOUNG: Could you get off the speaker 20 again? I'm having a hard time hearing you.
21 MS. UTTAL: Hello. Did you hear everything 22 I said?
23 JUDGE YOUNG:
No, I coughed and I blocked 24 you out while I was coughing.
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is no need to know.
I wish I could remember what I 2
was saying again.
3 JUDGE YOUNG:
Maybe it would be helpful if 4
you could distinguish between what I understood Mr.
5 Fernandez to say that there would be a written 6
document produced that came out of this.
Maybe I 7
misunderstood him but I thought that he was, if not 8
saying, implying that there would be a need to know 9
with regard to information that came out of the 10 meeting.
So if you could distinguish between that, 11 if I understood it correctly, and a need to know with 12 regard to the actual meeting itself and why there is 13 no need to know.
14 MS.
UTTAL:
Your Honor, the written 15 document that may result from this meeting would be 16 the licensee's response to the RAIs which would be 17 filed on the docket under oath or affirmation.
It 18 would not be a public document if it contained 19 safeguards.
It may be that the Interveners or the 20 petitioners have a need to know that somewhere down 21 the line, but that would have to be a separate need 22 to know determination based on the content of those 23 documents.
24 There is no need to know what the RAIs are.
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intervener ought to be able to use their expert to 2
develop contentions from the application.
The fact 3
that the Staff may be asking additional questions is 4
not relevant to the development of the contention and 5
there's no need to know that. That's the position on 6
those two different things, the meeting and the final 7
response to the RAI, two different documents.
8 JUDGE YOUNG:
And your position on the 9
final responses to the RAIs would be again, I thought 10 I heard you say that a future need to know 11 determination would be made with regard to set the 12 facts.
13 MS. UTTAL:
Under the protective order, a 14 need to know determination has to be made to each 15 document individually.
16 JUDGE YOUNG:
Right.
What I'm trying to 17 get you to address is the need to know with regard to 18 the information that would come out of the meeting.
19 MS. UTTAL:
You mean a future document?
20 I'm not going to address that now because that would 21 be a separate need to know finding.
22 JUDGE YOUNG:
Well could you address that 23 now?
24 MS. UTTAL:
No, I'm not going to make 25 supposition as to what may happen in the future and 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 1008 we don't know what status the case is going to be in, whether they are actually going to be some contentions filed regarding the security plan or whether the Petitioners are actually going to get some contentions admitted to this proceeding. So I'm not going to speculate.
JUDGE YOUNG:
Judge Baratta, do you have more questions?
JUDGE BARATTA: No.
Is it possible that we could confer for a moment at this time?
JUDGE YOUNG:
Yes.
If everyone would give us a few minutes.
Now the only thing I'm wondering about is I think we have two hours though on the conference call.
I don't think we'll lose you.
We're going to take a few minutes and put you on mute and get back to you.
Off the record.
(Whereupon, the foregoing matter went off the record at 11:32 a.m. and went back on the record at 11:34 a.m.)
JUDGE YOUNG:
On the record. I think we're all back.
Before we adjourn, we will be issuing an order on this this afternoon.
Before we adjourn, does any party or participant have any further arguments you'd like to make on any of these issues?
MS. UTTAL:
The Staff has nothing further.
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MR. REPKA:
Nothing from Duke.
2 MS. CURRAN:
And nothing from BREDL.
3 JUDGE YOUNG:
All right.
We'll get you a 4
ruling by this afternoon and as I said in my email, 5
I'm not going to be in the office the next couple of 6
days. Whatever we rule and whichever way it goes, if 7
any party wishes to appeal that to the Commission, 8
you obviously know how.
We will leave that for the 9
next two days.
Is there anything else that anyone 10 anticipates arising in the next two days?
I will be 11 back Monday assuming my plane gets me back.
Hearing 12 nothing, I assume we're all set apart from the motion 13 and the need to know request currently before.
We 14 will be ruling on that this afternoon then. Does the 15 Court Reporter need any spellings or anything else 16 from us?
17 COURT REPORTER: Yes, the last page number.
18 JUDGE YOUNG:
I believe that was 946.
So 19 you would start on page 947.
I will someone call 20 Neal Gross and correct that if I'm wrong on that.
21 COURT REPORTER: And my only other question 22 is Rancho Seco.
Is that S-E-C-C-O?
23 JUDGE YOUNG: I just one C. Is that right?
24 MR. REPKA:
Yes, one C.
25 COURT-REPORTER:
All right.
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2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 concluded JUDGE YOUNG:
Thank you all.
(Chorus of thank yous.)
JUDGE YOUNG:
Off the record.
(Whereupon, the above-entitled matter was at 11:37 a.m.)
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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 Catawba Nuclear Station Docket Number:
50-413/414-OLA Location:
Rockville, MD 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.
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