ML040720454
| ML040720454 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 02/26/2004 |
| From: | Hendrixson E 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, RAS 7449 | |
| Download: ML040720454 (56) | |
Text
'RAS i7elIf7 Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Duke Energy Corporation Docket Number:
50-413-OLA; ASLBP No'.: 03-815-03-OLA Location:
Date:
Work Order No.:
(telephone. conference)
Thursday, February 26, NRC-1 337 DOCKETED USNRC March 11, 2004 (12:59PM)
OFFICE OF SECRETARY RULEMAKINGS AND o
ADJUDICATIONS STAFF 2004 Pages 1164-1217 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
)emp/lte= 6C y- 03P1o S5ecq-oS?
50-414-OLA
1164 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 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
+
ATOMIC SAFETY AND LICENSING BOARD (ASLB)
-x IN THE MATTER OF:
DUKE ENERGY CORPORATION Catawba Nuclear Station Units 1 and 2
- Docket No. 50-413-OLA
- ASLBP NO. 03-815-03-OLA
-x Thursday, February 26, 2004 The conference came to order telephonically, pursuant to notice, at 10:30 a.m.
BOARD MEMBERS:
ANN MARSHALL YOUNG, Chair ANTHONY J. BARATTA, Administrative Judge THOMAS S. ELLEMAN, Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 50-413-OLA
50-414-OLA
1165 1
APPEARANCES:
2 On Behalf of the Licensee:
3 ANNE COTTINGHAM, ESQ.
4 DAVID REPKA, ESQ.
5 MARK J. WETTERHAHN, ESQ.
6 Winston & Strawn, LLP 7
1400 L Street, N.W.
8 Washington, D.C.
20005-3502 9
202/371-5726 (DR) 10 202/371-5703 (MW) 11 202/371-5950 fax 12 and 13 STEVEN P. NESBIT 14 Duke Energy Corporation 15 526 South Church Street 16 Charlotte, NC 28202 17 704/382-8134 18 704/382-4504 fax 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1166 1
On Behalf of the Intervenors, Blue Ridge 2
Environmental Defense League and Nuclear Information 3
and Resource Services:
4 DIANNE CURRAN, ESQ.
5 Harmon, Curran, Spielberg & Eisenberg, LLP 6
Suite 600 7
1726 M Street, NW 8
Washington, D.C. 20036 9
202/328-3500 10 On Behalf of the Nuclear Regulatory Commission:
11 MARGARET BUPP, ESQ.
12 ANTONIO FERNANDEZ, ESQ.
13 SUSAN L. UTTAL, ESQ.
14 Office of the General Counsel 15 Mail Stop -
O-15D21 16 U.S. Nuclear Regulatory Commission 17 Washington, D.C.
20555-0001 18 301/415-8339 (AF) 19 301/415-3725 (SU) 20 301/415-3725 fax 21 Also Present:
22 DR. EDWIN LYMAN, BREDL 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
1167 1
P R O C E E D I N G S 2
10:33 A.M.
3 CHAIR YOUNG:
This is Judge Young and 4
Judge Baratta just indicated that he was present.
5 Would the rest of you -- let's start with 6
the staff, identify yourselves and who's with you.
7 MR. UTTAL:
This is Susan Uttal from the 8
staff.
I'm accompanied by Mr. Fernandez and Margaret 9
Bupp who is a new attorney on the case and will be 10 entering an appearance shortly.
11 CHAIR YOUNG:
How is her name spelled?
12 MR. UTTAL:
B-U-P-P.
13 CHAIR YOUNG:
Duke?
14 MR. REPKA: This is Dave Repka and with me 15 is Mr. Wetterhahn, Ms. Cottingham and on a separate 16 line from Charlotte is Mr. Nesbit.
17 CHAIR YOUNG:
Thank you.
And BREDL?
18 MS. CURRAN:
Hi, this is Dianne Curran 19 representing BREDL and Dr. Lyman is also on the line.
20 CHAIR YOUNG:
And we haven't heard from 21 Ms. Olson who indicated yesterday she might not be 22 able to call in.
So if she gets with us during the 23 course of the call, that's fine, but unless anyone 24 gives any reason to wait, given her e-mail yesterday, 25 I think we should probably just go ahead.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 2344433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
1168 1
Is Judge Elleman on?
2 JUDGE ELLEMAN:
I'm here, Judge Young, 3
yes.
4 CHAIR YOUNG:
I'm sorry, thank you.
All 5
right, just to sort of give the parties an update from 6
us and then we're going to want to talk about some 7
dates with you, our goal is to get out our ruling on 8
the nonsecurity-related contentions by the end of next 9
week. After that, I guess the next question would be 10 Ms. Curran, do you anticipate filing any security-11 related contentions?
12 MS. CURRAN:
Yes.
13 CHAIR YOUNG: Okay, so those will be filed 14 next Wednesday. After that, I think we probably need 15 to go ahead and given that at least one contention we 16 all know, I think it's safe to say that contention 7, 17 we are inclined to agree with the Staff and let that 18 in.
So assuming, unless something changes, assuming 19 that we do admit BREDL as a party, at least, we need 20 to think about discovery and we need to think about 21 some hearing time.
So I hope everyone has their 22 calendars.
23 Before we get into that, are there any 24 other issues that have arisen that would be good to 25 talk about today?
I did mention in the order the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.comn
1169 1
issue, the addenda to the protective order and there 2
was one about stamping or writing safeguards on the 3
inside envelope. Were there any other things on that?
4 MS.
CURRAN:
Yes, this is Dianne Curran.
5 There was one other minor detail which was to provide 6
for putting one of those cover sheets on pleadings, 7
the ones that were handed out when we met.
8 CHAIR YOUNG:
Okay.
9 MS.
CURRAN:
Dr. Lyman and I have another 10 issue with the protective order that we raised in an 11 e-mail to the Staff and Duke yesterday that I wanted 12 to raise now.
The Staff hasn't had a chance to 13 respond to it yet.
They said they would respond in 14 this conversation, and that is whether we should be 15 able to remove the security plan submittal from the --
16 and I don't know if you want to talk about that right 17 now, but that is something we would like to talk about 18 today.
19 CHAIR YOUNG:
Well, go ahead. What's the 20 Staff's response to that request?
21 MS.
CURRAN:
Let me just tell you why 22 we're asking.
23 CHAIR YOUNG:
Okay.
24 MS.
CURRAN:
And that is we're allowed to 25 copy the entire security plan submittal if we want to, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
1170 1
but we've got to sit there and do it by hand and we've 2
been doing a lot of hand copying of this document 3
which is extremely tedious and also it can lead to 4
making errors because it's just not as accurate when 5
you don't have it to sit there with it in your office 6
as you're typing a pleading to make sure you've got it 7
right.
8 And also, if we don't copy some piece of 9
it, then we've got to go all the way back to the NRC 10 and look at it.
As we were sitting there the other 11 day, we spent a couple of hours there, mostly copying 12 and we just can't see why, what difference would it 13 make if we had a copy of this plan.
We have the 14 requisite equipment.
We have a heavy duty file 15 cabinet.
We have a lock that costs $300.
We are in 16 a building that is, has controlled accessibility.
17 What would be the reason not for us to be able to take 18 a copy of this plan and use it?
19 CHAIR YOUNG:
Okay.
Ms. Uttal or Mr.
20 Fernandez?
21 MR.
FERNANDEZ:
Your
- Honor, we've 22 considered Ms. Curran's request and we're inclined to 23 deny that at this time, the reason being we were 24 reviewing the Commission's order, CLI 0406 and I would 25 like to refer the Board to page 13 of the order where NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234.4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1171 1
the Commission is giving generic items on future 2
proceedings and matters relating to safeguards 3
information.
4 CHAIR YOUNG:
Page 13?
5 MR. FERNANDEZ:
Yes.
That page, the 6
Commission cites with approval the Appeal Board's 7
decision in ALOC 410 which one can find at 5 NRC 1398 8
and upon review of that decision that the Commission 9
cited, the Appeal Board in that case was addressing 10 this particular issue which Ms. Curran is raising at 11 this point in time and in that regard --
and I think 12 it would probably good to just read this into the 13 record.
14 MS. CURRAN: Antonio, which decision are 15 you referring?
16 MR. FERNANDEZ:
ALOC 410.
17 MS. CURRAN:
But you're reading from CLI 18 0406?
19 MR. FERNANDEZ:
0406 on page 13, footnote 20 26, the Commission --
21 MS. CURRAN:
Okay, all right.
I see.
22 MR. FERNANDEZ:
The Commission is citing 23 and in that decision the Appeal Board stated as 24 follows:
"The licensing board may wish, however" --
25 and this is in reference to a protective order --
"to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
1172 1
include additional or different terms and conditions 2
in such an order.
For example, it may appear to be 3
desirable to limit the locations at which the 4
Intervenor may examine relevant portions of the plan 5
to the offices of the Applicant and the site of any 6
hearing or pre-hearing conference convened to consider 7
the plan."
8 CHAIR YOUNG: Let me interrupt you. What 9
page are you reading from?
10 MR. FERNANDEZ:
Page 1406.
11 CHAIR YOUNG:
1406, okay.
12 MR. FERNANDEZ:
And it's 5 NRC 1406.
13 CHAIR YOUNG:
Right, okay.
14 MR. FERNANDEZ:
Subparagraph b on that 15 page.
16 MS. CURRAN:
Antonio, that language you 17 just read said the Board may wish to do that and I 18 guess I'm asking what is the practical reason for 19 this?
If there's some reason that this makes the 20 document more secure, maybe we could understand that.
21 But we don't see what this adds to it except to make 22 an enormous amount of make work for myself and Dr.
23 Lyman.
24 MR. FERNANDEZ:
I think that the Board in that 25 case specifically addressed that issue.
It has not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1173 1
yet addressed the argument that Ms. Curran was making 2
that she could, in essence, copy the entire plan if 3
she wished to.
We --
I don't think personally, 4
myself, or anybody in this proceeding ever anticipated 5
that Ms. Curran and Dr. Lyman were going to be engaged 6
in basically copying the entire security plan 7
submittal, basically subverting the order and avoiding 8
having to inspect the document here.
9 If the Board recognized what a burden and 10 such a restriction would place and the Appeal Board in 11 that decision stated such restriction could result in 12 a lengthened hearing since the Intervenors might have 13 to refresh their recollections about what they had 14 examined earlier, however, the Board went on to say 15 that may be an acceptable price to pay for the added 16 security obtained.
17 CHAIR YOUNG:
Now you do recall, and I 18 want to hear from Duke on this, but you do recall that 19 Duke has a strong concern about timeliness in this 20 proceeding and you might want to speak to that before 21 we hear from Duke.
22 MR. FERNANDEZ:
Yes, Your Honor, and we 23 shared Duke's concerns for timeliness.
I think that 24 that concern is outweighed by our concern and the 25 protection of this particular information.
I think NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1174 1
that Ms. Curran, unlike other Intervenors, is not 2
outside of the metropolitan area of Washington, D.C.
3 although travel to Rockville may be not the best thing 4
to do, the licensee also keeps these documents at 5
counsel's office.
I'm not saying that --
I'm not 6
making any representations as to whether they would be 7
willing or able to allow for inspection downtown, but 8
that also would allow yet another alternative aside 9
from making this document physically available at yet 10 another location.
11 MS. CURRAN: What is wrong, I just want to 12 know what is wrong with the physical location that I 13 have because I've gone to some trouble and expense to 14 comply with the NRC requirements here.
So what is 15 wrong with what we've got? That's what I want to know 16 because I've got the same thing that Duke's got.
17 MR. FERNANDEZ: Again, I am not speaking 18 specifically about the adequacy of your physical 19 protection.
I don't think the Staff has inspected it 20 to make sure that it meets the physical security 21 requirements.
So I can't speak to the adequacy of 22 what's located at Ms. Curran's offices.
23 All I can say is the Staff's position is 24 that when you're dealing with safeguards information, 25 the less places it's available at, the more you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.neaIrgross.com
1175 1
decrease the possibility that the documents may be 2
inadvertently disclosed or lost or produced or people 3
who should not have access to these documents, 4
unfortunately, gain access to them.
5 This is not specifically making any 6
comments about the adequacy of Ms. Curran's physical 7
security for safeguards information.
8 MS. CURRAN:
I just want to state for the 9
record that we, of course, we signed a nondisclosure 10 agreement, and we committed to comply with the NRC 11 requirements which we have done.
We have bought a 12 heavy duty sealed file cabinet. I have spent $300 on 13 a government-approved padlock for this file cabinet.
14 So it's just -- I'm totally baffled as to why this is 15 not adequate security.
16 MR. FERNANDEZ:
May I respond to that?
17 CHAIR YOUNG:
Go ahead.
18 MR. FERNANDEZ:
The documents that Ms.
19 Curran also agreed to contained the provision that we 20 are talking about today, so of course, we are also 21 baffled as to how she has all of a sudden changed her 22 mind and decided that now she needs to have the 23 document at her facility.
She had an opportunity to 24 bring this up earlier before she came under the 25 protective order.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1176 1
Additionally, I will also state that Ms.
2 Curran's file cabinet for the purposes that we had 3
envisioned is so she can safeguard the safeguards 4
information that she probably is generating as she is 5
making notes, legal memoranda, drafting contentions 6
regarding the security of the protected documents.
7 That's all we have to say, Your Honor.
8 CHAIR YOUNG:
Mr. Repka?
9 MR. REPKA:
Yes.
A couple of points.
10
- First, I'd say that with respect to control of 11 safeguards information, consistent with the 12 Commission's order last week we would defer completely 13 to the NRC Staff's determination as to the 14 appropriateness of the control.
So if the Staff 15 objects, I think we would defer to that objection.
16 Having said that, I would point out a 17 couple of additional things.
First, I'll put the 18 nondisclosure agreements that's premised on simply 19 making the material available in review. It's not at 20 all uncommon. It's an approach used all the time, not 21 just with safeguards information but, for example, 22 proprietary financial information. Although there may 23 be certain burdens attached to that, it is simply a 24 common approach to protecting information.
25 With respect to the assertion that using NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1177 1
this approach will delay this proceeding, I'm not at 2
all sympathetic to that claim. Yes, Duke does have a 3
strong interest in moving the proceeding along.
We 4
don't think compliance with the protective order 5
should in any way delay the case.
The protective 6
order was put into effect in December. BREDL has had 7
access to the security plan submittals at that time.
8 So they've had over two months at this point to review 9
the security plan submittal at the NRC, go back as 10 many times as they like and do whatever it needs.
11 The fact that they may face a time crunch 12 at this point seems to me largely of their own making.
13 CHAIR YOUNG: The case that the Commission 14 cited does specifically mention that the restriction 15 that we're talking about may result in a lengthened 16 hearing because of the need to go back and refresh 17 recollections about what they've examined earlier. So 18 that seems to be something that has been recognized 19 that there can be that, a fact of it.
20 One thing that I would like to ask you is 21 what about Mr. Fernandez' suggestion that Ms. Curran 22 and Dr. Lyman can come to your offices and look at 23 your copy because you're presumably closer to where 24 they are?
25 MR. REPKA: We have no objection to that.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
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 1178 CHAIR YOUNG: Ms. Curran, that would help you out some, wouldn't it?
MS. CURRAN:
Yes, it would help some.
CHAIR YOUNG:
Mr. Repka, did you have anything else?
MR. REPKA:
No.
CHAIR YOUNG:
Okay.
MR. REPKA:
Not on this topic.
CHAIR YOUNG:
Right, anyone else on this issue?
MR. UTTAL:
Judge, can I ask a favor.
Somebody seems to be breathing into their mouthpiece and it's kind of making us lose some of what everybody is saying.
So just a word to the wise.
CHAIR YOUNG:
Okay, any of us who are breathing into the mouthpiece, please stop.
Okay, we'll talk about your request, Ms.
Curran and address it. Meanwhile, until and unless we do grant your request, I think you need to keep doing what you're doing with the change that you can go over to Winston and Strawn and I'm sure they'll provide you some place where you can look at the security submittal there.
So that might make things somewhat easier on you.
And that's not to say we won't consider your request, but especially in light of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1179 1
Commission's order and the citation of this case, I 2
think that for the moment unless the Board decides 3
something different, proceed without waiting to hear 4
further from us because we are concentrating our 5
energies right now on trying to get this memorandum in 6
order done on the nonsecurity-related contentions.
7 Are there any other things that anyone 8
would like to say on that and then any other 9
preliminary matters?
10 First, anything else on the issue of the 11 request to take the security plan to Harmon & Curran 12 offices?
13 Okay, any other preliminary matters?
14 MR. REPKA:
Yes, Judge, this is Dave 15 Repka. One other item I'd like to mention just in the 16 interest of full disclosure, the --
we've talked 17 before about the NRC staff's RAIs on the security 18 issues and Duke will, in fact, be responding to those 19 RAIs.
I believe the schedule calls for the response 20 to be submitted early next week and that information 21 would, of course, be subject to a need to know 22 determination by the NRC staff as to BREDL's access 23 and at this point, I don't think it affects our 24 process. It doesn't affect the dates for the security 25 contentions.
I think we just have to follow the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nearrgross.com
1180 1
process as outlined.
But I want the Board to 2
understand that the RAI responses will be going in.
3 CHAIR YOUNG: That's something probably we 4
should clear up because I guess I had thought that I 5
had heard Ms. Uttal, I think it was, maybe it was Mr.
6 Fernandez, say something to the effect or someone say 7
something to the effect that the RAI responses would 8
be provided to BREDL.
9 Did I hear that wrong?
10 MR. UTTAL:
Judge, this is Susan Uttal.
11 I don't believe that I said that.
If I did, it was --
12 I misspoke. What I have maintained from the beginning 13 is that each individual piece of paper has to undergo 14 its own need to know assessment by the Staff.
And 15 when the RAI responses come in, the Staff will look at 16 them, make their need to know decision and that will 17 be communicated to all concerned.
18 MS. CURRAN: What will be communicated to 19 all concerned? What has come in?
20 MR. UTTAL:
No, the Staff need to know 21 determination.
22 MS. CURRAN: Will we get noticed that the 23 RAI responses have been submitted so that we can 24 request that determination?
25 MR. FERNANDEZ: Yes, you will be copied on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1181 1
the cover letter transmitting, and I believe our 2
intent is to serve the RAI responses on the Board as 3
well.
4 COURT REPORTER: Quick question. This is 5
the Court Reporter.
Is that Mr. Fernandez answering 6
Ms. Curran?
7 CHAIR YOUNG:
I think just now that was 8
Mr. Repka who spoke a little bit longer and then Mr.
9 Fernandez just started to say a couple of words.
10 MR. FERNANDEZ: And Mr. Wetterhahn, before 11 he does that, I'll clarify that we will be asking the 12 Staff to provide the RAI responses to the Board.
13 But to answer Ms. Curran's question, yes, 14 she will be notified.
15 MS. CURRAN: Can we get some indication of 16 what is expected with regard to providing copies of 17 these to BREDL and also maybe address --
I'm looking 18 for my copy of the protective order because I thought 19 that also addressed that.
20 MR.
FERNANDEZ:
Certainly the RAI 21 responses would be within the scope of the protective 22 order, but subject to any need to know determination 23 like any other information.
So the need to know 24 determination is one I think the staff will look at 25 and consider in light of what are the issues that are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1182 1
submitted next week and other potentially relevant 2
factors which would be consistent with the 3
Commission's order last week.
4 CHAIR YOUNG: Will you, Mr. Repka, without 5
getting into a discussion of what the actual RAIs 6
contain or the responses would contain, both you and 7
the staff know the subject matter of them and I think 8
it might be appropriate to give us to the extent that 9
you can some idea of how soon we can expect the staff 10 to make a determination and any indication on what you 11 expect it might be at this point that would save some 12 confusion in the future.
13 I think I can safely speak for the Board 14 in saying that these matters needs to be resolved 15 quickly and if you have a sense of where this is going 16 it might be helpful to speak to that.
17 MR. UTTAL:
Judge, this is Susan Uttal, 18 I've alerted the Staff to the fact that the responses 19 will be coming in on Monday. I cannot say how long it 20 will take to make the need to know determination. But 21 we will not require any further requests from Ms.
22 Curran regarding this. We know that she wants it, but 23 the Staff will move with all deliberate speed to get -
24
- to make its need to know determination.
I can't be 25 any more specific than that.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234.4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
1183 1
CHAIR YOUNG:
Mr. Repka, do you want to 2
speak to that?
3 MR. REPKA: I really have nothing else to 4
add.
Certainly we share the interest in moving that 5
along quickly.
6 JUDGE ELLEMAN:
This is Judge Elleman.
7 Could I ask Mr. Repka a question on the RAIs?
8 MR. REPKA:
Yes.
9 JUDGE ELLEMAN: Do you anticipate they'll 10 be submitted as a single group or will they be coming 11 in individually as individual ones are generated?
12 MR. REPKA: It will be a single submittal.
13 JUDGE ELLEMAN:
Single submittal.
14 MR. REPKA: There's one round of RAIs and 15 this submittal will answer all of the pending 16 questions.
17 JUDGE ELLEMAN:
Okay, thank you.
18 CHAIR YOUNG: We don't know what the Staff 19 would do in response to that.
Again, I think moving 20 quickly would be appropriate. I don't know whether it 21 might be appropriate to set a deadline for that. Does 22 the Staff want to speak to that?
23 MR. UTTAL:
Judge, I don't think it's 24 appropriate to set a deadline for that.
Again, this 25 is a Staff function.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234.4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
1184 1
JUDGE BARATTA:
This is Judge Baratta.
2 Can you at least give us your best guesstimate as to 3
how long once you receive them you would expect to 4
respond?
5 MR. UTTAL: No, I'm sorry, I can't. Maybe 6
once the Staff has seen them, we'd be able to.
7 JUDGE BARATTA: Would you be willing to do 8
that then, once yo usee them?
9 MR. UTTAL:
If I can give you a better 10 estimate after the Staff has seen them, when I will 11 send an e-mail out.
12 JUDGE BARATTA:
Thank you.
13 CHAIR YOUNG:
All right.
I think in 14 regard to all these things, obviously the avoidance of 15 delay is a concern of the Board.
It's a concern of 16 the Commission and we've got both of these issues that 17 we've talked about, the potential for delay and so 18 again, just to conclude on that, we encourage you to 19 move things along as quickly as possible so that this 20 proceeding is not delayed any more than it has to be.
21 Anything else before we start talking 22 about some dates to the extent that we can?
23 Anything else?
24 All right, assuming that we admit BREDL as 25 a party, I think we had provided some dates for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1185 1
potential hearing dates and I think that the --
for 2
nonsecurity-related contentions we had indicated the 3
week of May 17th and then security --
let's see, was 4
it the week of June 14th?
5 Sorry. Judge Baratta and Judge --
no, I'm 6
sorry, no.
It was the first week of June I think we 7
had talked about the week of --
starting on June 1st, 8
doing that here.
9 Has everyone looked at their calendars and 10 are those two time periods --
11 MR. REPKA:
This is Dave Repka for Duke.
12 We can support both of those weeks and in fact, 13 encourage that the Board utilize those weeks.
14 MR. UTTAL:
Judge, this is Susan Uttal for 15 the Staff.
I am not as confident that the Staff can 16 support the May 17th date for a couple of reasons.
17 First of all, the Staff would be in a better position 18 to answer that question once we see which contentions 19 are coming in so that we would know which Staff person 20 would be appropriate to deal with them.
21 The second problem is that the Staff will 22 not be able to --
23 CHAIR YOUNG: I'm sorry, I missed the last 24 thing that you said.
25 MR. UTTAL: If extensions that are coming NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234.4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1186 1
in relate to the issues that the Staff has to review 2
or it's in the environmental report, then the 3
appropriate persons will be the persons who are 4
preparing those documents and they will not be able to 5
respond to discovery until those documents are 6
finalized because otherwise it will delay the 7
preparation of those documents and we really don't 8
want to do that.
9 CHAIR YOUNG:
We are talking about a two 10 and a half months lead time here at least.
11 MR.
UTTAL:
I understand that, but 12 discovery has to be completed during that time and 13 written testimony has to be filed 15 days before the 14 hearing and I'm just not sure since the Staff 15 documents aren't out yet whether the Staff will be 16 able to support that date of May 17th.
17 MS. CURRAN:
Judge Young?
18 CHAIR YOUNG:
Yes.
19 MS. CURRAN:
This is Dianne Curran.
I 20 just wanted to comment that it's been my experience 21 too that the date, the hearing date is usually tied to 22 the date for the issuance of the --
the completion of 23 the SER and where there's environmental contentions 24 the issuance of the whatever final NRC NEPA document 25 goes out and it's for the reason that Ms. Uttal says.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1187 1
In most cases I've been involved in lately, there is 2
no discovery against the Staff until they've done 3
those reviews and then you need a period of discovery.
4 The other thing I wondered about with your schedule is 5
has it been --
are we going to be filing pre-filed 6
written testimony?
Usually that process takes a 7
little while.
8 CHAIR YOUNG:
Yes.
9 MS. CURRAN:
So I guess --
it kind of 10 surprised me when you were ready to talk about hearing 11 dates because it's been my experience that those Staff 12 documents kind of trigger, everything follows from 13 those Staff dates.
14 And I just wanted to make one more comment 15 about your overall schedule which is I'd like to leave 16 a little bit of time between --
more than a week, 17 between the conclusion of the safety hearing and the 18 commencement of the security hearing. I'd like to not 19 have the requirement for submitting testimony on those 20 issues overlap completely if we can avoid it, plus and 21 it's partly because of how cumbersome it is to prepare 22 the testimony on that sort of thing on the security 23 issues.
I'd just like a little more time to get the 24 case ready.
25 CHAIR YOUNG: Just on the timing, I think NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1188 1
we have discussed these dates before and I think I'm 2
obviously aware of the Staff's process. I think that 3
setting hearing dates to the extent that they move 4
things along and cause people to have a goal in mind, 5
that they're a good idea.
And I'm sorry to hear the 6
indication that we may be delayed by delays in the 7
issuance of the SER and the ER or EIS or whatever it 8
is.
9 MS. CURRAN:
Has the Staff --
they must 10 have a schedule. Have they put out a schedule for the 11 issuance of the EIS? They usually do.
12 MR. REPKA: This is Dave Repka. I want to 13 point out though that it's not always essential that 14 you wait for the final Staff documents.
I think Ms.
15 Uttal hit upon it earlier when she said it really 16 depends upon the issues.
17 There's oftentimes where the issues are 18 such that the Staff is prepared to go ahead on that 19 particular issue because it's not something that's 20 addressed per se in the SER or in the EIS or whatever.
21 And so I think the tie to the Staff documents is not 22 quite as tight as Ms. Curran suggests.
23 CHAIR YOUNG: That's a good point. That's 24 a good point. And if we can -- once we get an idea of 25 what the contentions are and especially once we ruled NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 2344433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
1189 1
on them, we'll have more elucidation on that.
I 2
think, however, that avoiding the setting of any dates 3
at all will definitely delay us.
We need to set some 4
goals.
And if we don't, then we're moving into the 5
summer when people have vacations.
We have looked at 6
our three schedules and tried to come up with times 7
when all three of us will be available.
So I think 8
unless there's a strong argument otherwise, setting 9
those certainly as goal dates with the understanding 10 that if we don't use those dates it may be very 11 difficult to find others.
12 MR. UTTAL:
Judge, may I speak? This is 13 Susan Uttal.
14 I think setting realistic goals is a good 15 idea.
I don't think the May 17th date is a realistic 16 goal considering the work that the Staff has to do.
17 One more thing.
There has been no delay in the work 18 on the SER or the environmental documents. The Staff 19 is working in its normal course, in fact, the Staff is 20 putting a lot of effort into those documents.
Any 21 dates that may be set would have to take that into 22 consideration, but it's not because the Staff has 23 delayed in any way in the preparation of these 24 documents.
They will be done in normal course.
25 CHAIR YOUNG: All right, well, we're -- as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
1190 1
I said, we're two and a half months out and I think we 2
need to move along.
3 There has been a request made that we make 4
an attempt to finish this proceeding so that an August 5
date --
so that the potential for that can be met.
6 MR. UTTAL:
I would like --
7 CHAIR YOUNG:
Hold on, Ms. Uttal.
Hold 8
on.
So I think what we need to look at is whether 9
there's any possibility of meeting that.
If there's 10 any possibility of meeting that we're going to have to 11 have a hearing.
12 Normally, our deadline for getting out 13 initial decisions is 60 days.
Our informal deadline 14 is 60 days after receipt of the final documents. We 15 would normally give time to the parties to file 16 proposed findings of fact and conclusions of law after 17 the hearing.
18 Even with these two dates that we have put 19 out there, even with those two dates, that's not going 20 to be an easy task to get an initial decision on all 21 of the issues that may be before us, if we're trying 22 to get this done before August.
23 So I think we all need to recognize that.
24 We need to recognize that we're, as I said, between 25 two and a half and three months out from that first NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1191 1
hearing date and so if the Staff is saying there's no 2
way that that can be met, then what that looks like 3
the result would be is that the sort of informal 4
August deadline that we've set for ourselves will not 5
be met.
6 MR. UTTAL:
Judge, can I say something?
7 I want to propose a different date.
This is Susan 8
Uttal.
9 CHAIR YOUNG:
Go ahead.
10 MR. UTTAL:
I propose that we have the 11 non-security contention hearing in the beginning of 12 June and the security contention two weeks after that, 13 two weeks after the non-security contention hearings 14 end, but I would be looking at a June 7th date to 15 start the first hearing.
16 CHAIR YOUNG:
Pardon?
17 MR. UTTAL:
June 7th date or perhaps --
18 CHAIR YOUNG: No, it was the week of June 19 1st.
20 MR. UTTAL:
Well, I believe --
21 CHAIR YOUNG: The week of June 7th is not 22 available.
Judge Baratta is not going to be here.
23 The week of June 1st is available.
The week of June 24 14th, I think, is available. I'm not going to be here 25 the week of June 21st and getting into those dates, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.oom
1192 1
we're already making it almost impossible to get final 2
decisions out before August, if we're going to allow 3
the parties to file proposed findings of fact and 4
conclusions of law.
5 That may be the result, but I think that 6
we need to recognize the impact of what you're saying.
7 MR. UTTAL: Well, the June 1st date or the 8
week of the June 1st would work. May 31st is Memorial 9
Day, I'd like to point that out.
That's the Monday.
10 And if we're going to travel to Charlotte --
11 CHAIR YOUNG: That's right. That's why we 12 set it earlier in May, so we could have the whole 13 week.
14 MR.
UTTAL:
I don't think that's a 15 realistic date for the Staff.
I do have a strong 16 objection to May 17th.
17 JUDGE ELLEMAN:
Ms. Uttal, this is Judge 18 Elleman.
You said the SER is proceeding on a normal 19 schedule. What is your expectation for the completion 20 of the document?
21 MR. UTTAL:
It's an expedited schedule, 22 Judge, and it looks like we're looking in the April 23 time frame, perhaps the early part of April.
24 JUDGE ELLEMAN:
Thank you.
25 CHAIR YOUNG:
If that's the case, at that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234.4433 WASHINGTON. D.C. 20005.3701 www.nealrgross.com
1193 1
point, starting in early April, you would be open for 2
discovery.
I guess I'm still not seeing why the May 3
17th date for nonsecurity-related contentions would 4
not --
especially in view of what Mr. Repka has said 5
also.
6 MR. REPKA: And this is Dave Repka again.
7 I agree with that. I'm not going to concede that that 8
date is not good because if you just look at the time 9
available between now and then, you could have 10 essentially discovery in the March, early April 11 completed.
The SER would be completed and available 12 essentially in that time frame.
And again, I'm not 13 convinced that the issues necessarily depend upon the 14 SER in its entirety.
You could have testimony in by 15 May 1st or thereabouts and having a hearing on May 16 17th and that seems achievable to me.
17 CHAIR YOUNG:
Ms. Uttal, you're the one 18 who is raising the issue.
Can you respond to that?
19 MR. UTTAL:
Well, since I don't know the 20 exact date when the SER will be available, I think --
21 are we talking about two weeks of discovery?
22 MR.
REPKA:
I think discovery would 23 essentially be available beginning at the time the 24 contentions are defined.
25 MR. UTTAL:
Except for discovery against NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234-4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
1194 1
the facts.
2 CHAIR YOUNG:
But if you get your 3
document, the SER and whatever environmental document 4
the Staff issues is done by early April, discovery 5
against the Staff could take place in April.
We might 6
set expedited discovery, require responses in a
7 shorter time period than would normally be the case 8
and then have the pre-filed testimony in late April or 9
early May.
10 I think the issue is whether we're going 11 to try to --
and I guess maybe I should just stop 12 here.
Mr. Repka, we've heard, I think 13 there was some indication here that DOE has said that 14 the fuel fabrication facility may be delayed.
Does 15 that affect your time line?
16 MR.
REPKA:
No, it does not.
That relates 17 to the fab facility.
It doesn't affect the 18 fabrication schedule for the lead assemblies.
19 So the DOE time frame for shipping feed 20 material and for the lead assemblies coming back to 21 Catawba is the same as it has been all along.
22 CHAIR YOUNG:
- Okay, and I do want to 23 stress that by asking these questions and by talking 24 about this time line that just as we're not --
in 25 talking about discovery indicating what we'll rule on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1195 1
the contentions. By talking about this we're also not 2
indicating what we'll rule on any issues, but they are 3
out there and so we are trying to accommodate 4
schedules.
I think we are going to have to move 5
things along and make some extra effort in this case, 6
whatever the circumstances on all pats, including --
7 well, including all the parties and us.
8 MS. CURRAN: Judge, may I ask a question?
9 This is Dianne Curran.
10 CHAIR YOUNG:
Go ahead.
11 MS. CURRAN: Has there been, and I'm sorry 12 if I forgot, has there been an order from the 13 Commission saying this has to be decided by X date?
14 CHAIR YOUNG:
No, there has not that I'm 15 aware of.
16 Is anyone else aware of any such order?
17 I'm not.
18 MS. CURRAN:
Because it just seems to me 19 that one thing that helps me in doing one of these is 20 to kind of scope out all the stages that have to be 21 completed and I understand that some have planned to 22 expedite, but even when you expedite it, it takes a 23 little time to do it and it's hard when I just set a 24 hearing date, I try to work backwards to --
- well, 25 there has to be a date for filing the written NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
1196 1
testimony and then the other side has to respond and 2
all that.
3 CHAIR YOUNG: Actually, I'm not sure that 4
you're required to have --
there's no requirement for 5
any rebuttal written testimony.
6 MS.
CURRAN:
So we could have 7
simultaneous?
8 CHAIR YOUNG:
Simultaneous direct.
9 MS. CURRAN:
Simultaneous filings.
10 CHAIR YOUNG:
Right.
11 JUDGE BARATTA:
And Ms. Curran, that's 12 basically what we did, we came up --
we worked it both 13 ways starting of when we thought we'd issue our ruling 14 on the contentions and then looked at what dates were 15 available to have a hearing and worked it back and it 16 seemed like they were, in fact, consistent.
17 COURT REPORTER:
This is the Court 18 Reporter, who was that who was just speaking?
19 JUDGE BARATTA:
Judge Baratta.
20 COURT REPORTER:
Thank you, sir.
21 MS. CURRAN: Our concern here just to make 22 sure that we do have enough time to complete 23 discovery, to get two rounds against the staff because 24 in one round you just kind of begin to find out what 25 they're thinking and then you have to probe it a
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1197 1
little.
2 CHAIR YOUNG:
Sorry to interrupt, but if 3
we gave you, as I said, expedited, if we shorten the 4
response time that would assist you in that regard, 5
wouldn't it?
6 MS. CURRAN:
Yes, it would and then you 7
have to have a little time to put it all together.
8 CHAIR YOUNG:
Right.
Okay.
9 MS. CURRAN:
And prepare some testimony 10 and I just haven't tried to figure out --
well, I 11 didn't know before about when do you expect to rule on 12 the contentions and how many contentions they'd be, 13 how much discovery we'd have to prepare and do.
14 CHAIR YOUNG:
Right.
15 MS. CURRAN:
My experience of expedited 16 proceedings, in subpart K proceedings for spent fuel 17 storage are expedited and generally you get 60 days 18 for discovery which goes by in a flash. And it's very 19 difficult to get it all in. That's been my experience 20 so far which --
listen, I'm willing to try and it's 21 just that I want you to know that there are certain 22 things that we've got to do to prepare our case. And 23 of course, I'll try to comply with an expedited 24 schedule, but it does seem tight.
25 CHAIR YOUNG:
Okay, I think maybe --
I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
1198 1
think we know your positions on this.
I think it 2
might be wise to do a couple of things at this point.
3 One, maybe two alternative sets of date that we can 4
then talk about and have everyone hold both of those 5
alternative sets of dates and then indicate that once 6
our nonsecurity-related contentions ruling is out, 7
that discovery just indicate right now that if we do 8
allow in any contentions that discovery on those 9
should commence right away and Judge Baratta is not 10 going to be available the week --
11 JUDGE BARATTA:
June 7th and March 6th.
12 CHAIR YOUNG: March 6th. And I don't know 13 that we would be able to get together as a complete 14 group again until around the 16th of March.
So I 15 would like to get us moving on things as much as 16 possible, certainly by the 16th of March we'll have a 17 very good idea, I think, much better anyway, idea of 18 where we are than we have now.
19 So maybe we should just go ahead and set -
20
- how about March 16th at 1:30 for another telephone 21 conference.
22 MR. UTTAL:
That would be acceptable to 23 the Staff, Your Honor.
24 CHAIR YOUNG: Is everyone available then?
25 MR. REPKA:
That's acceptable to Duke.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234.4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
1199 1
MS. CURRAN:
That works for BREDL.
2 JUDGE ELLEMAN:
This is Judge Elleman.
3 That's fine.
4 CHAIR YOUNG: Judge Baratta, is that okay 5
with you?
6 JUDGE ELLEMAN:
Yes, it is.
7 CHAIR YOUNG: So I think that's everyone.
8 All right, so let's look at these alternative sets of 9
dates.
We've suggested the week of May 17th for 10 nonsecurity-related contentions; the week of June 1st 11 in Rockville for security-related contentions that 12 have already been admitted.
Obviously, that applies 13 for both of those.
14 We would like for everyone to put those on 15 your calendars and save those dates.
Meanwhile, as 16 alternative dates, Ms. Uttal, you were suggesting for 17 nonsecurity-related contentions early in June and then 18 which would really be the week of Memorial Day.
19 MR. UTTAL: Yes.
I think that's about as 20 soon as realistically.
21 CHAIR YOUNG:
You're only talking about 22 two weeks there, you realize.
23 MR. UTTAL: But it depends on when the SER 24 comes out and when the environmental documents come 25 out. We may have to bifurcate if one comes before the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1200 1
other, but I think they're going to come out about the 2
same time.
3 CHAIR YOUNG: Okay, two weeks doesn't seem 4
like a very long time.
But you're proposing as 5
alternative dates the week of June 1st and the week of 6
June 14th?
7 MR. UTTAL:
Yes.
8 CHAIR YOUNG:
How do those work for 9
people?
10 MS. CURRAN:
I guess I have a question.
11 CHAIR YOUNG:
Go ahead.
12 MS. CURRAN:
If we're going to go with 13 June 1st, when is our testimony on security issues 14 going to be due?
Is that all going to be due 15 simultaneous some time in May because there's no time 16 to prepare written testimony or time for anyone to 17 prepare for a hearing after the June 1st week.
18 CHAIR YOUNG:
Let me suggest an 19 alternative that just comes to mind.
Let's assume 20 that we admit some security-related contentions and we 21 would try to get on those as soon as possible.
Is 22 there anything that would mitigate against keeping the 23 June 1st date?
That's a shorter week if anyone is 24 going to try to take Memorial Day.
Keeping the June 25 1st date for security-related contentions, moving the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234.4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1201 1
nonsecurity-related contentions to the week of June 2
14th and then setting the same deadlines for both with 3
regard to prefiled written testimony and so forth?
4 MR. REPKA:
This is Dave Repka for Duke.
5 That seems like that would work.
Essentially, we 6
would set the --
we would have the three weeks, the 7
May 17th week, the June 1st week and the June 14th 8
week all available, but we could definitely do the 9
security first, if necessary.
10 I mean why couldn't we do the security on 11 May 17th?
12 MR. UTTAL:
Is there any reason --
13 MR. UTTAL: We don't have any contentions 14 filed yet.
15 MR. REPKA:
Well, sure, but --
16 MR. UTTAL:
That's really up in the air.
17 I think that the Judge's suggestion is good doing the 18 security during the short week and then followed with 19 the nonsecurity on June 14th.
20 MS. CURRAN:
But then when would we be 21 filing? We'd be filing all of our contentions in this 22 case --
23 CHAIR YOUNG: All your pre-filed testimony 24 at the same time.
25 MS. CURRAN:
At once.
And I don't have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 2344433 WASHINGTON. D.C. 20005-3701 www.nealrgross.com
1202 1
any idea how many contentions are involved, so it's a 2
little bit --
I guess I can't comment at this point on 3
whether we could do it.
4 CHAIR YOUNG:
Let's say this.
Let's say 5
tentatively set the middle of May, some time the 6
middle of May for the prefiled written testimony. And 7
then between now and March 16th start discovery. We 8
can talk about shortened reply time. We need to talk 9
about deadlines for discovery, but it may not be --
it 10 may be better to hold off on deadlines until March 11 16th, but I think it would be certainly reasonable to 12 assist BREDL by shortening response time so that they 13 would be in better shape to prepare their case.
14 If we set the prefiled written testimony 15 deadline for mid-May, and discovery starts in March, 16 that two and a half months, and then I do want to say 17 that we would expect the duty to supplement to be in 18 place so that if any party got any information at any 19 time up to the hearing date that would be the sort of 20 thing that you would have provided in response to the 21 original discovery request that you would be under 22 continuing duty to supplement that.
23 It seems like it might be workable to set 24 aside those three weeks and see where we are again in 25 the middle of March and meanwhile encourage everyone NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neafrgross.com
1203 1
to move swiftly on the two fronts of getting discovery 2
requests out as soon as possible after our ruling or 3
rulings, I should say since we are going to get some 4
security related contentions of the staff's 5
determination of need to know and our responses and 6
any other security-related issues that come up and 7
well, I guess a third front, getting the SER, the 8
environmental document and any other related things 9
moving as quickly as possible.
10 We could meet again on March 16th with the 11 expectation that everyone would have more concrete 12 responses to provide to us on all those issues.
13 Does that sound reasonable to everyone?
14 MS. CURRAN:
Well, this is Diane Curran.
15 To some extent it is.
The security contentions are 16 due the 3rd of March.
17 CHAIR YOUNG:
Right.
18 MS. CURRAN: And we're going to have some 19 security contentions. Then the response of Duke and 20 the Staff wouldn't be due until I think the 15th, so 21 we would not have a Board ruling on the contentions 22 until some time towards the end of March.
So I'm a 23 little concerned that this schedule is overly 24 optimistic for getting all of these issues done.
It 25 seems to me if we expedite the process, we might be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1204 1
able to do a hearing on the safety issues by early 2
June, but I guess I have doubts about whether we can 3
do all of that and the security issues, but maybe we 4
should just wait and talk about it in the middle of 5
March.
6 It sounds like what you're saying is that 7
there's no other time during the summer when dates are 8
available for hearing.
9 CHAIR YOUNG: No, I'm not saying there are 10 no other times available during the summer.
We had 11 not looked farther ahead than that. We can certainly 12 do that.
We can talk about it now and you now, 13 obviously, we're setting goals here and we don't know 14 what's going to come up.
We don't know a lot of 15 things.
We don't know when to expect the documents 16 from the staff.
17 So what you did say reminded me of another 18 thing and that is that probably we should go ahead and 19 try to find a --
actually, I put this in my calendar, 20 but I had neglected to mention it, a date for oral 21 argument on Duke's, on security contentions, if we get 22 any and we now know we're going to get some.
So it 23 might be good to set a date now during the week of 24 March 22nd for oral argument on security contentions 25 which I think we probably need to assume would be a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON. D.C. 20005-3701 www.neaIrgross.com
1205 1
closed hearing. Am I assuming correctly?
2 MR. REPKA: I believe it would have to be.
3 This is Dave Repka.
4 CHAIR YOUNG: So conceivably we can do it 5
late the week --
on March 19th, but I think it 6
probably would be better since Judge Elleman would 7
have to come here for that to set it early the week of 8
the 22nd so we could have the benefit of his presence 9
later during that week.
10 Judge Elleman and Judge Baratta, I think 11 when we were talking we did tentatively mention that 12 week for security contentions and oral argument.
Am 13 I right ton that or is my memory off?
14 JUDGE ELLEMAN: This is Judge Elleman. I 15 can accommodate early in that week of the 22nd.
To 16 get later in that week requires some rearrangement of 17 my schedule.
It's possible, but I would hope I 18 wouldn't have to do that.
19 MR. UTTAL:
Judge, this is Susan Uttal.
20 This is Mr. Fernandez' issue and he's not available 21 the 22nd through the 24th. So perhaps the week of the 22 15th would be better.
23 CHAIR YOUNG:
Well, would you be willing 24 to move your deadline back?
25 I mean your deadline is the 17th and so if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1206 1
we don't get your responses until the end of the 17th, 2
I think we need a day to look at them. That makes the 3
security-related oral argument on the 19th which is 4
Friday which would --
5 MR. UTTAL:
The 19th is fine with the 6
Staff, Your Honor.
7 MR. REPKA:
This is Dave Repka for Duke.
8 We could do the 19th and the 17th and we would be 9
willing to do the 16th.
10 MR. UTTAL: The Staff would be willing to 11 do the 16th also.
12 CHAIR YOUNG:
If you do the 16th, then I 13 think it might be better to set the 18th as the oral 14 argument day and give us the day with Judge Elleman 15 before the weekend, if he's available.
16 Are you available on the 18th and 19th, 17 Judge Elleman?
18 JUDGE ELLEMAN:
Yes.
19 CHAIR YOUNG: Did someone say they're not 20 available?
21 MR. UTTAL:
Staff is available, Your 22 Honor.
23 MR. REPKA:
We are available for Duke.
24 MS. CURRAN: I'm available that day. Are 25 you available, Dr. Lyman?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
1207 1
DR. LYMAN:
I'm sorry, what's the data 2
again?
3 MS. CURRAN:
The Friday, the 19th.
4 CHAIR YOUNG:
The 18th.
5 MS. CURRAN:
Thursday, the 18th.
6 DR. LYMAN:
Yes, I think so.
7 CHAIR YOUNG:
Does anyone have any 8
objections to setting the 18th as oral argument on the 9
security contentions? It will be a closed hearing and 10 then we would have the 19th with Judge Elleman --
11 MS.
CURRAN:
Judge Young, was that 12 assuming that Duke and the Staff respond to our 13 contentions on the 16th?
14 CHAIR YOUNG:
Yes.
15 MS. CURRAN:
Okay.
16 CHAIR YOUNG: Yes, so we would have a day, 17 we'd have the 17th to discuss those.
18 Judge
- Elleman, are you pretty much 19 available that week?
20 JUDGE ELLEMAN:
I'm available, certainly 21 the early part of the week.
I can be available 22 through late Friday.
I can't stay over the weekend 23 through in Washington.
24 CHAIR YOUNG: Maybe --
well, we can talk 25 about that.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1208 1
JUDGE ELLEMAN:
This is Judge Elleman.
2 What has been outlined here I can accommodate, the 3
18th and the 19th will work.
4 CHAIR YOUNG:
Okay, and then even maybe 5
come on the 17th so we'd have a chance to talk in 6
advance?
7 JUDGE ELLEMAN:
That would be fine.
8 CHAIR YOUNG:
Okay.
Then let's set the 9
18th for oral argument on security contentions. We'll 10 find a location and give you more information on that.
11 Let me just check one thing. I did get an 12 e-mail from Barry Manili and I think he's available 13 then, but I want to make absolutely sure.
14 (Pause.)
15 I haven't asked him specifically about 16 that date, but I will call him as soon as we get off 17 the phone and see if he could be available during that 18 time period with us.
19 Okay, so then what the plan is now and 20 tell me, anyone feel free to tell me if I'm leaving 21 anything out or stating anything incorrectly.
One 22 thirty we'll meet by telephone on the 16th to talk 23 about scheduling issues.
And the end of that day 24 would be the deadline for responses to the security 25 contentions.
And then the 18th will be the oral NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1209 1
argument.
2 We're going to keep the weeks of May 17th, 3
June 1st and June 14th open for, as potential hearing 4
dates. We're going to talk more about the schedule on 5
May 16th.
Discovery should commence as soon as 6
possible after our ruling on nonsecurity contentions.
7 We'll deal with deadlines on May 16th.
8 MS. CURRAN:
Don't you mean March 16th, 9
Judge?
10 CHAIR YOUNG: Yes, thank you. March 16th.
11 And Ms. Uttal, could you try to get a ruling from the 12 Staff as quickly as possible on the need to know 13 issue?
14 Now let me just ask you, what is the 15 staff's position going to be?
Are you --
is that 16 something that the parties are going to expect us to 17 make the ultimate ruling on pursuant to the protective 18 order or is the Staff's position that the Staff's 19 ruling is final and it might be good to get a little 20 bit of that out on the table at this point.
21 MR.
FERNANDEZ:
Your Honor, this is 22 Antonio Fernandez from the Staff.
I presume that if 23 we have a disagreement with Ms. Curran and determine 24 that she has no need to know, as prior practice 25 indicates, I am assuming BREDL would bring that to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234.4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
1210 1
Board's attention and ask for the Board's ruling.
2 CHAIR YOUNG: Okay, and at that point your 3
position would not be that we don't have authority to 4
rule on that?
5 MR. FERNANDEZ:
No, I think what the 6
Commission's order says is that the Board does have 7
the authority to rule on that issue, however, the 8
Board's discretion is limited and the standard of 9
review is one which would entitle the Staff to 10 substantial deference as stated in the order.
I'm 11 sorry, considerable deference as stated in the order.
12 CHAIR YOUNG:
They definitely use those 13 words.
All right.
Do you think that you could get a 14 staff determination early enough so that the issue can 15 be raised prior to March 16th, such that we'll have 16 everything in hand on March 16th so that we can hear 17 any arguments on that issue?
18 MR. FERNANDEZ: Your Honor, I'm willing to 19 commit to have the very longest week turnaround from 20 the time the Staff received the RAI responses to the 21 time that we give Ms. Curran the response on the need 22 to know.
23 CHAIR YOUNG:
And Mr. Repka, you think 24 you're going to get those in the first of next week?
25 MR. REPKA: They should be transmitted on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1211 Monday and I'm not sure by what vehicle, but if we assume it goes FedEx, I guess they'll be in on Tuesday.
If they go by secure electronic, it will be Monday, but I don't know what vehicle is being used.
CHAIR YOUNG:
But the 9th at the latest.
I mean that would mean that the staff would make a determination by the 9th at the latest.
MR. UTTAL:
That's correct.
CHAIR YOUNG:
And so then if that determination goes against you, Ms. Curran, you would be able to get any appeal, so to speak to us and all parties. How quickly after that? Within a couple of days you think?
MS. CURRAN: Yes, that sounds reasonable.
They said the 9th?
CHAIR YOUNG: It sounds like the 9th would be the time that the Staff would get to it, if the 2nd is the latest date on which the Staff would receive them and Mr. Fernandez was saying one week.
So then if you got your appeal or whatever to us by the 11th and then any responses to that by the morning of the 15th.
MS. CURRAN:
Okay.
CHAIR YOUNG: Then on the 16th we can talk about that.
Now, the only thing about that is is if NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1212 it involves security issues that we can't talk about on the phone which it may well be. That would just be another thing that we would probably need to add to the March 18th.
So March 18th would be security contentions and any need to know disputes.
JUDGE BARATTA: This is Judge Baratta. If we're going to deal with that type of an issue with that March 18th, then where would you propose holding the meeting.
Will it be here?
CHAIR YOUNG:
Yes, we need to do it here and need to probably get another secure room.
JUDGE BARATTA:
Right.
CHAIR YOUNG:
Whether that will be the same one as before or another one, somewhere in the NRC offices.
Okay, have I overlooked anything?
Is there anything else that anyone wants to put out there?
MR. REPKA:
This is Dave Repka.
Let me just go back to the issue of discovery and I think you mentioned that discovery would commence immediately on the nonsecurity contentions and you would want the parties to identify their requests as soon as possible.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
WASHINGTON. D.C. 20005-3701 (202) 234-4433 www.nealrgross.com
1213 1
I support that, but I just throw out the 2
idea that what may be helpful is if there's actually 3
a date set for initial requests, then to the extent 4
there's going to be any dispute about discovery, we 5
know that early on and I think otherwise, if we leave 6
the day for making requests open ended, then it leaves 7
the date for responses open ended.
So it might be 8
better to nail that prior to the call on the 16th, at 9
least if the parties make their initial requests known 10 to the extent there's going to be any issues we might 11 be able to discuss it early rather than later.
12 MS. CURRAN: This is Diane Curran. Let me 13 just say that if the Board rules by the 5th of March, 14 it's going to take us at least a week to prepare 15 discovery questions, depending on how many contentions 16 are admitted.
So I just want to make sure that we 17 have time to prepare the contentions after the 18 discovery, once we know what the issues are and I 19 think a week might be sufficient and we'd certainly 20 try to do it within a week.
21 CHAIR YOUNG:
So that would be by the 22 12th?
23 MS. CURRAN:
And we would try.
I'd just 24 like to say we would do our best to do that and we 25 would tell the Board if we weren't able to do it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1214 1
because it does take a certain amount of preparation 2
to write discovery questions.
3 DR. LYMAN:
Dianne, this is Ed Lyman.
4 That week is going to be very busy for me and I'm 5
really not sure I can accommodate that schedule..
6 MS. CURRAN:
Okay.
7 CHAIR YOUNG:
Would March 15th make a 8
difference, making it March 15?
9 MS. CURRAN:
Oh, I see.
Well, we could 10 probably --
I think it's more realistic to get them 11 out some time in the next week if Dr. Lyman is not 12 available the week of the 8th and maybe I can describe 13 it a little bit to you on the 16th what the scope of 14 the discovery.
15 CHAIR YOUNG:
Okay, so it sounds like 16 you're saying you would have them by the end of the 17 week of the 15th at least?
18 MS. CURRAN:
Yes.
Dr. Lyman, does that 19 sound like we could do that?
20 CHAIR YOUNG:
Keeping in mind that we're 21 going to have oral argument on the 18th.
22 MS. CURRAN:
Right, right.
23 DR. LYMAN: That would be more reasonable, 24 yes.
25 CHAIR YOUNG: March 19. Okay, and we have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 2344433 WASHINGTON. D.C. 20005.3701 www.nealrgross.com
1215 1
another conference call the week of the 22nd.
Do we 2
need to --
pardon me.
3 (Telephone interruption.)
4 How are people's schedules? Would it be 5
helpful to go ahead and pick another date on the week 6
of March 22nd to talk on the phone?
7 MR. UTTAL:
Judge, why don't --
this is 8
just a suggestion because we don't know what the 9
contentions are and we don't know what we're going to 10 say on the 16th.
Perhaps we can defer a lot of these 11 things until March 16th when we all have a better idea 12 of what's happening.
13 CHAIR YOUNG:
The only reason I'm saying 14 that is if people --
I don't know how quickly people's 15 schedules fill up, but I wouldn't want, on March 15th 16 to find out that we couldn't get a date that we were 17 all available on the week of the 22nd to talk because 18 I think it's probably likely that we'll have something 19 that we'll need to talk about that week such that it 20 would be good to set a status conference date, 21 telephone status conference date in advance.
22 MR. UTTAL: In that case, we would all be 23 available on the 25th or 26th.
24 MR. REPKA:
The 25th or 26th is fine for 25 us.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234.4433 WASHINGTON. D.C. 20005.3701 www.nealrgross.com
1216 1
MS. CURRAN:
That works for me.
Does it 2
work for you, Dr. Lyman?
3 MR. UTTAL:
I'm sorry, Judge, this is 4
Susan Uttal, we're all available the 25th, not the 5
26th.
6 DR. LYMAN:
The 25th for what?
7 MS. CURRAN: For a telephone conference if 8
we have any discovery scheduling issues to talk about.
9 DR. LYMAN:
Sure.
10 CHAIR YOUNG:
Judge Baratta and Judge 11 Elleman, is the 25th okay?
Judge Elleman, you had 12 something?
13 JUDGE ELLEMAN:
Yes, the morning is best 14 for me on the 25th.
The afternoon is best on the 15 26th.
16 If those couldn't be accommodated, I could 17 perhaps be absent since the discussion could proceed 18 without me.
19 CHAIR YOUNG:
For the morning, how about 20 9:30, the morning of March 25th?
21 JUDGE ELLEMAN:
That would be fine with 22 me.
23 JUDGE BARATTA:
This is Judge Baratta.
24 That's fine.
25 CHAIR YOUNG:
Okay.
All right.
- Okay, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 2344433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
1217 1
anything else?
2 I will attempt to get an order out 3
incorporating all of these things, but without the 4
transcript, I'm not sure I'll get everything.
So I 5
may wait until next week to get that out. But I hope 6
everyone has been taking notes.
7 Do I need to sort of summarize those once 8
more or not?
Does everyone pretty much have them?
9 MS. CURRAN:
I think I have it.
10 MR. REPKA:
I think we're fine.
11 CHAIR YOUNG:
Very good.
Thank you all 12 and the Court Reporter, do you need anything?
13 COURT REPORTER:
Yes ma'am.
I will have 14 a few questions when we're finished.
15 CHAIR YOUNG:
If there's nothing else, 16 hearing nothing, let's conclude for today. And then 17 take any questions from the Court Reporter and then --
18 I guess we'll get off the conference call and then 19 afterwards maybe Judge Elleman we can call you back 20 after we get off.
21 JUDGE ELLEMAN:
Fine.
22 CHAIR YOUNG:
Okay.
23 (Whereupon, at 11:47 a.m.,
the 24 teleconference was concluded.)
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
(202) 234-4433 WASHINGTON, D.C. 20005.3701 www.nealrgross.com
CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name of Proceeding: Duke Energy Corporationa Docket Number:
50-413-OLA; ASLBP No.
03-815-03-OLA Location:
Telephone Conference were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
Eric Hendrixson Official Reporter Neal R. Gross & Co., Inc.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 50-414-OLA