ML041000140
| ML041000140 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 04/06/2004 |
| From: | Mongoven J 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-1405, RAS 7583 | |
| Download: ML041000140 (128) | |
Text
1RAS '75 93 Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Duke Energy Corporation Docket Number:
50-413/414-OLA; ASLBP No.: 03-815-03-OLA Location.
(telephone conference)
DOCKETED USNRC Date:
Tuesday, April 6, 2004 Aprl 8, 2004 (10:22AM)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF
- Work Order No.
i NRC-1405 Pages 1575-1700 NEAL R. GROSS AND CO.,.INC.
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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
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ATOMIC SAFETY AND LICENSING BOARD (ASLB)
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TELECONFERNCE In the Matter of DUKE ENERGY CORPORATION Catawba Nuclear Station Units 1 and 2
- Docket Nos.
- 50-413-OLA
- 50-414-OLA
- ASLBP No.
- 03-815-03-OLA Tuesday, April 6, 2004 The above-entitled matter came on for hearing, pursuant to notice, at 10:00 a.m.
BEFORE:
ANN MARSHALL YOUNG, Chairperson ANTHONY J. BARATTA, Administrative Law Judge THOMAS S. ELLEMAN, Administrative Law 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
of:
Winston & Strawn, LLP 5
1400 L Street, N.W.
6 Washington, D.C. 20005 7
(202) 371-5726 8
(202) 371-5950 fax 9
and 10 LISA VAUGHN, ESQ 11 TAMIKA SHAFEEK-HORTON, ESQ 12 of:
Duke Energy Corporation 13 526 South Church Street 14 Charlotte, North Carolina 28202 15 (704) 382-8134 16 (704) 382-4504 fax 17 18 19 On behalf of the Petitioner, Blue Ridge 20 Environmental Defense League 21 DIANE CURRAN, ESQ 22 of:
Harmon, Curran, Spielberg & Eisenberg, LLP 23 1726 M Street, N.W., Suite 600 24 Washington, D.C. 20036 25 (202) 823-3500 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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On behalf of the Nuclear Regulatory Commission 2
ANTONIO FERNANDEZ, ESQ 3
MARGARET BUPP, ESQ 4
KATHERINE MARCO, ESQ 5
TYSON SMITH, ESQ 6
Office of General Counsel 7
Mail Stop 0-15 D21 8
U.S. Nuclear Regulatory Commission 9
Washington, D.C. 20555-0001 10 (301) 451-8339 11 12 13 ALSO PRESENT 14 MICHAEL T. CASH, Duke Energy 15 EDWIN S. LYMAN, Ph.D., BREDL 16 STEPHEN NESBIT, Duke Energy 17 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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P-R-O-C-E-E-D-I-N-G-S 2
10:12 a.m.
3 JUDGE YOUNG:
All right, then.
On the 4
record. This is Ann Marshall Young, I'm the Chair of 5
the Board.
If the other members of the Board would
- 6 introduce yourselves and then we'll go through who 7
from the parties are on the line with us.
8 JUDGE ELLEMAN:
This is Judge Thomas 9
Elleman.
10 JUDGE BARATTA:
This is Judge Anthony J.
11 Baratta.
12 JUDGE YOUNG: Let's start with the staff.
13 MR. FERNANDEZ: Antonio Fernandez for the 14 staff. With me I have Margaret Buck and along with us 15 are also Katherine Marco, an attorney in OGC, and 16 Tyson Smith, an attorney in OGC.
17 JUDGE YOUNG:
Duke?
18 MR. REPKA:
In Washington, this is Dave 19 Repka, and with me is Ms. Ann Cottingham. And then on 20 a separate line from Charlotte are Ms. Lisa Vaughn and 21 Ms. Tamika Shafeek-Horton, both attorneys with Duke 22 Energy.
Also there is Mr. Stephen Nesbit and Mr.
23 Michael Cash are with the Duke Energy MOx Fuel 24 Project. And then on the third line from Charlotte is 25 Mr. Michael McKinnon who is in the Information NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1579 Technology Department at Duke Energy.
He's the Operations Manager for the email system.
JUDGE YOUNG: And for BREDL.
MS. CURRAN: This is Diane Curran, and Dr.
Edwin Lyman, our expert, is also on the line.
JUDGE YOUNG:
All right.
Thank you all.
We have several things to talk about today. I'll just list the ones that I had on my agenda, and if we need to add to those, we can do that.
There are a couple of things that are pending in addition to the discovery issues.
One is Duke counsel's request that we remove certain pages of the transcript from the safeguards information category.
And not having received any response to that, I'm assuming no party has any objection.
Our security expert assistant, Mr. Manili, has been out of town but he's back this week, and as soon as he's had a chance to look at that and make sure there's no problem with that, we'll be glad to do that. And I'm not sure from a mechanical standpoint, I guess we could just take those out and make them public. Any parties have anything to say on that particular issue?
MR. FERNANDEZ: Your Honor, the staff has no objection to Duke's request.
MS. CURRAN:
We don't object to Duke's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 request.
This is Diane Curran.
JUDGE YOUNG:
Okay.
Then we will take care of that, as I said, as soon as we make sure with our security expert assistant that we're not overlooking anything.
Also pending is Duke's motion to dismiss Contention 3 to which we have responses from the staff and BREDL.
Now, I don't show that we ever got an amended Contention 3 from BREDL; is that correct?
MS. CURRAN:
That's correct.
JUDGE YOUNG: Okay. We need to deal with that, and I think probably we can put that off until after we have gone through the discovery issues. And in addition to the objections, we have a motion for protective order from Duke.
Are there any other things that anyone thinks we need to look at or talk about today? All right.
Let me just ask, are there any objections to the motion for a protective order?
MR. FERNANDEZ:
No objection from the staff, Your Honor.
MS. CURRAN:
None from BREDL.
JUDGE YOUNG:
All right.
Then we'll go ahead and issue that.
Moving now to the objections to discovery.
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The only objections that we received, I believe, are 2
Duke's and the staff's objection to BREDL's request.
3 Am I --
4 MS. CURRAN:
That's right.
5 JUDGE YOUNG:
Okay.
And BREDL did not 6
file any objections to any request that were put to 7
it.
8 MS. CURRAN: This is Diane Curran. That's 9
correct.
10 JUDGE YOUNG:
Okay.
All right.
Any 11 preference on which objections --
why don't we go 12 through the staff objections first since there are 13 fewer of those.
14 MR. REPKA: This is Dave Repka. Actually, 15 we have a preference to get our general objection B as 16 early as we can.
That's the one we have Mr. McKinnon 17 on the line, and he has some other commitments, so we 18 would like to get through that at the earliest time.
19 JUDGE YOUNG:
Okay.
The email issue.
20 MR. REPKA:
Correct.
21 JUDGE YOUNG:
If there's no objection, I 22 don't have any problem with going ahead and doing that 23 one first.
Why don't we --
I'm assuming that the 24 staff doesn't --
well, let just ask, what's the 25 staff's position on that?
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MR. FERNANDEZ: Your Honor, we don't have 2
a position.
We feel that is a dispute between BREDL 3
and Duke.
4 JUDGE YOUNG:
Okay.
Ms. Curran, what's 5
your response?
6 MS. CURRAN:
I guess I don't want to 7
impose an unreasonable burden on Duke.
I guess I'd a
like to hear more about how Duke maintains its subject 9
matter files.
If I get a sense that there's a 10 systematic way of preserving documents in the topic 11 files, then maybe this isn't an issue.
12 JUDGE YOUNG:
Go ahead, Mr. Repka.
13 MR. REPKA:
Yes.
I think that, and I'll 14 let Mr. Nesbit add to this, but I think it's, in 15
- general, fair to say that the Duke MOx Project 16 Organization maintains topic files and substantial 17 files on the MOx project relevant to that project, as 18 would other organizations that supply input, internal 19 organizations to Duke Energy.
20 JUDGE YOUNG:
You're talking about paper 21 files?
22 MR. REPKA:
Correct.
There may be 23 electronic files as well for databases or other things 24 in which documents can be retrieved from, but our view 25 is that the discovery requests-are fairly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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comprehensive, and we expect that we will supply 2
substantial information responsive to those requests 3
and substantial information that really provides the 4
basis for Duke's position in the case.
So it's hard 5
for me to characterize that without having completed 6
the reviews in order to compile the answers to the 7
discovery, but perhaps the answer will become apparent 8
after the documents are produced and the 9
interrogatories are answered, and there's other 10 specific things that BREDL is interested in seeing, 11 perhaps the second round can focus on that.
But I 12 think in a general sense the concept of going beyond 13 that and searching for email I think is where the 14 burden comes in without a lot of commensurate value 15 added.
16 JUDGE YOUNG:
Is there any way that email 17 that's easily reachable could be provided without 18 getting into the difficulties that you described?
19 MR. REPKA: Well, I think that where email 20 has become part of a project file, that's what I would 21 consider to be --
and it's maintained in that way.
22 Now, that could be provided.
I don't know how easy 23 that would be, but beyond that I don't think that 24 there's necessarily an easy way to review email and 25 eliminate duplications because every email might exist NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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in two individuals' accounts or more.
2 MS. CURRAN:
Well, let me ask you this, 3
Dave.
Does Duke have a procedure for including 4
internal email, any email correspondence in a project 5
file?
Is there a specific procedure for the relevant 6
email that goes in the file?
7 MR. NESBIT: Dave, you want me to jump in?
8 MR. REPKA: Yes.
That would be fine, Mr.
9 Nesbit.
10 MR. NESBIT:
Typically, if there's an 11 email that's pertinent, for example,
- say, to a 12 calculation or something like that, the Duke procedure 13 is to make a hard copy of that email and to attach it 14 to the calculation so that there is a formal record as 15 part of our out-file process that's retained there.
16 In addition, it's common practice for 17 engineers to make hard copies of email and put them in 18 local files, their own personal files, and also the 19 MOx fuel project section files when those are 20 pertinent.
We will in the process of our complying 21 with discovery requests look through all those files 22 and get anything, including a hard copy of an email 23 that might be in there.
24 MS. CURRAN: Well, at this point, if that 25 is the process, then at least for this round I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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willing to see what we get, and if it becomes an 2
issue, we can raise it in the next round.
3 JUDGE YOUNG:
All right.
Okay.
That 4
takes care of that one at this point, in any event.
5 MR. REPKA:
And with that, I think Mr.
6 McKinnon can safely drop off the line.
7 MR. McKINNON: Okay. Thank you very much.
8 MR. REPKA:
Thanks, Michael.
9 JUDGE YOUNG: Thank you.
10 MR. McKINNON:
Bye-bye.
11 JUDGE YOUNG:
I'm going to just take one 12 second to send an email to our law clerk who got off 13 the line so we could fit everyone on.
14 (Pause.)
15 MR.
REPKA:
And I would add that I 16 appreciate Ms.
Curran's understanding on that 17 particular issue.
18 JUDGE YOUNG:
Great.
All right.
19 MS. CURRAN:
You're welcome.
20 JUDGE YOUNG:
Okay.
21 MS.
CURRAN:
You know, maybe we could --
22 since we're jumping around, would it be p6ssible to go 23 to, let's see, Specific Interrogatory 2 on Page 5 of 24 Duke's response? If we deal with that now, then I can 25 let Dr. Lyman leave the call.
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JUDGE YOUNG: Well, the only thing is I'm 2
not --
I haven't gone through them and categorized 3
them in terms of which things you might want to talk 4
to Dr. Lyman about, but it's possible if there are any 5
substantive issues that we might have questions for 6
Dr. Lyman.
I'm not basing that on anything specific, 7
but I would hate to lose someone and then want to ask 8
a question.
Okay.
Which one were you referring to?
9 MS. CURRAN: Number 2. It's on Page 5 of 10 Duke's motion.
11 JUDGE YOUNG: Oh, specific discovery. All 12 right.
13 MS. CURRAN: But if you'd like to have the 14 experts on the line, Judge Young, that's fine.
I was 15 just hoping to relieve him.
Because I think most of 16 the objections are legalistic other than this one.
17 JUDGE YOUNG:
You may be right.
Judge 18 Elleman and Judge Baratta, were there any others that 19 20 JUDGE ELLEMAN:
Judge Young?
This is 21 Judge Elleman.
As you know, I've been out of touch 22 with my email and U.S. mail since last Saturday, and 23 so I have the discovery requests but I do not have the 24 responses to those.
25 JUDGE YOUNG:
Oh, okay.
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JUDGE BARATTA:
I don't think there's 2
anything else.
3 JUDGE YOUNG:
Okay.
4 JUDGE BARATTA: I'm sorry, that was Judge 5
Baratta, excuse me.
6 JUDGE YOUNG: Well, let's go ahead on that 7
one then.
Ms. Curran, go ahead.
8 MS. CURRAN:
Okay.
This is Specific 9
Interrogatory 2, which should have been --
and 10 Specific Interrogatory 1-2 relates to Contention 1.
11 And the part that --
12 JUDGE YOUNG:
Actually, hold on one 13 second.
Judge Elleman, would it help --
I think it 14 might be helpful since you don't have the objection in 15 front of you, it might be helpful maybe for Mr. Repka 16 to give a short summary of the objection so Judge 17 Elleman will be able to have that as he's listening to 18 your response, Mr. Curran.
Would that be helpful?
19 JUDGE ELLEMAN:
I would appreciate that 20 very much.
Thank you.
21 JUDGE YOUNG:
Mr. Repka?
22 MR. REPKA:
Sure. Let me try to do that.
23 The Specific Interrogatory Number 2 asks that Duke 24 identify and describe in detail, "all experimental 25 data and analysis justifying your omission of a design NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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basis LOCA consequence analysis in the license 2
amendment application."
Goes on from there.
But I 3
think with respect to that request, our objection 4
really is one of the scope of the proceeding, related 5
to the scope of the proceeding.
The contentions in 6
the case, as admitted, relate to the effect of any 7
differences in fuel behavior between LEU and MOx fuel; 8
in Contention 1, the LOCA analysis.
Contention 2 is 9
the issue of beyond design basis severe accident 10 consequences.
11 With respect to this being an 12 interrogatory in Contention 1, what we point out in 13 our objection is that the contentions did not focus on 14 any of the analysis in the application of the dose 15 consequences related to a LOCA.
To some degree, the 16 contentions focused, and we think this is where the 17 proper focus is, is on the analysis, the LOCA 18 analysis, the ECCS performance analysis required by 19 Appendix K, and it's addressed in Section 3.7 of the 20 application.
21 So to the extent that this interrogatory 22 is really going to design basis radiological dose 23 consequence analyses, that's something that did not 24 come out in the original contentions and in the basis 25 for those contentions.
So I think, in a nutshell, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that's really our objection here, it's based upon the 2
scope of the contention.
3 JUDGE YOUNG:
Okay.
Ms. Curran?
4 MS. CURRAN:
Well, first of all, the 5
standard here is relevance, is one of relevance, and 6
if you look at the contention, what it says is there 7
are uncertainties in aspects of MOx fuel behavior that 8
may have a significant impact on Duke's LOCA analysis 9
for the Catawba core with four plutonium MOx LTAs.
10 And in the basis of the contention, we assert there's 11 insufficient information to provide confidence that 12 the MOx LTAs will not cause coolant blockage during a 13 LOCA that could lead to unaccessible loss of core 14 coolable geometry and an uncontrolled core melt.
15 So there's a concern expressed in the 16 contention that the analysis, the LOCA analysis is 17 insufficient because it doesn't identify or address 18 all the factors that are relevant and that this could 19 affect the consequences of an accident.
This is an 20 issue that we consider to be relevant to the 21 contention.
The NRC does require consideration of 22 consequences in design basis accidents.
23 MR. REPKA:
And I would like to reply to 24 that because, as characterized by Ms. Curran, I think 25 the contention does in fact address precisely the LOCA NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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- analysis, and we have no objection to the 2
interrogatory to the extent it relates to the LOCA 3
analysis.
4 The issue really is the way it's phrased 5
it seems to bring into question the separate analysis 6
of Part 100 Radiological Consequences, which was an 7
analysis not in any way challenged by any of the 8
contentions, and the relevant citations to that are 9
provided in our written response.
10 MS. CURRAN:
I wonder if Dr. Lyman could 11 comment?
12 DR. LYMAN:
This is Dr. Lyman.
In my 13
- view, the scope of our original and late filed 14 contentions does encompass this information because 15 there is a feeling that the text is our Contention 10.
16 JUDGE YOUNG: Let me just interrupt here.
17 It might be helpful if we focus on the admitted 18 contentions.
19 DR. LYMAN: Okay. Since the challenge is 20 really to our original --
I mean if you look at Duke's 21 challenge, it was my reading of that that was a 22 challenge to the language that we had in our original 23 contentions. I don't think there's any doubt that the 24 information we seek is within the scope of the 25 Contention 1, as reframed.
So if that's what the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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discussion is limited to, I don't think there's any --
2 JUDGE YOUNG:
Well, I guess in terms of 3
the basis --
4 DR. LYMAN:
Right.
5 JUDGE YOUNG:
there might not be a 6
problem with going into that, but I didn't want us to 7
get on the text of the original contention so much as 8
-- but if either Ms. Curran or Mr. Repka want to offer 9
any clarification before you continue with your 10 answer, I just want to make sure we're all on the same 11 page. Or Judge Elleman or Judge Baratta. We want to 12 make sure we are understanding this in the same 13 context.
14 MR. REPKA:
Well, this is Dave Repka.
I 15 would just say again that the admitted contentions 16 focused on the LOCA analysis and the effect that 17 asserted behavior differences between MOx and LEU fuel 18 would have on LOCA analysis. Again, that's the scope 19 of the contentions.
What we object to is to the 20 extent this goes to the radiological assessment as 21 opposed to the Appendix K analysis. And then I would 22 just say if Mr. Nesbit has anything to add to what Dr.
23 Lyman said, I would welcome that.
24 MR. NESBIT:
This is Steve Nesbit.
I 25 would like to add that the connection between a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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radiological consequent of LOCA and the emergency core 2
cooling system consequences of LOCA is purely in name 3
only.
There is no technical nexus between the ECCS 4
calculations, in other words, things like peak 5
cladding temperature, which is what the BREDL original 6
contentions were focused on, and the radiological 7
consequences, because the NRC requires that you assume 8
significant core damage for your radiological 9
consequence analysis even though your emergency core 10 cooling system is there to prevent significant core 11 damage.
So there's technical nexus between the 12 issues, and it's not something that was brought up or 13 focused on in BREDL's original contentions.
14 MR. REPKA:
- And, again, we have no 15 objection to the scope with respect to the ECCS 16 analysis.
17 DR. LYMAN: Okay. This is Dr. Lyman just 18 to --
19 JUDGE YOUNG:
Go ahead.
Go ahead.
20 DR. LYMAN:
respond.
There isn't a 21 very close relationship between the way the contention 22 is phrased they're referring to --
unfortunately, I 23 don't have the rephrased contention in front of me --
24 but the differences between LEU and MOx, which both 25 affect the probability or the course of events during NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1593 a design basis LOCA as well as the source term during a design basis LOCA, which is of course a function of the particular characteristics of the fuel degradation during the LOCA process.
In particular, the question of whether or not relocation occurs during the design basis LOCA, the relocation could have an effect on the in-vessel, early in-vessel release in the source term, and we see that a key issue in understanding the difference between LEU and MOx fuel behavior is the impact on the source term.
This comes out in the expert panel report on high burn-up in MOx fuel that we cited in the original contentions where there's considerable expert uncertainty on certain aspects of the source term, not only the severe accident source term but also the parts of the source term relating only to design basis accidents.
And to that extent, the emission of any LOCA consequence analysis in Duke's submittal, therefore, fails to take into account the potential impact of these differences on the Part 100 analysis, which we interpret to be a part of the LOCA analysis.
JUDGE ELLEMAN.
Dr. Lyman, Ms. Curran, this is Judge Elleman.
Do not the responses to Contention 2 give you the information you're seeking?
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1594 MS. CURRAN:
You mean Interrogatory 2?
JUDGE ELLEMAN:
Yes.
DR. LYMAN: Sorry, I'm at home and I don't have those documents in front of me.
JUDGE YOUNG: Wait. You're talking about the responses to which --
MS. CURRAN:
I'm confused about what you're asking about, Judge Elleman.
JUDGE ELLEMAN:
Contention 2 relates to beyond LOCA conditions.
It relates to beyond design basis accidents, and so isn't that not the contention yielding you the information you were looking for?
MS. CURRAN:
So in other words, you're asking is the interrogatory relevant --
JUDGE ELLEMAN:
Relevant to that.
MS. CURRAN:
to Contention 2?
JUDGE ELLEMAN:
Yes, that's correct.
MS. CURRAN:
Well, I think Dr. Lyman was just saying it's also relevant to design basis accidents.
Contention the ground JUDGE ELLEMAN: Okay. So the responses to 2, in your judgment, do not cover all of you wish it to cover.
MS. CURRAN:
That's right.
JUDGE YOUNG:
The responses to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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interrogatories on Contention 2; is that what you're 2
talking about?
3 JUDGE ELLEMAN:
Yes.
4 JUDGE YOUNG:
Okay.
5 MS. CURRAN: Yes. And I think that's what 6
Dr. Lyman was just trying to explain, that there's 7
also questions about consequences with a design basis 8
accident.
9 MR. NESBIT:
This is Steve Nesbit from 10 Duke.
If I can just add one more thing.
The 11 treatment of the design basis accident LOCA dose has 12 been in front of Intervenors and the Board for months 13 and months. They've raised no objection to it. So it 14 seems improper to allow that contention to now be 15 brought.
16 JUDGE YOUNG:
Okay.
You're raising a 17 legal argument, and I think that really your counsel 18 needs to speak to that.
19 MR. REPKA:
This is Dave Repka.
20 JUDGE YOUNG: I didn't stop you because I 21 thought you were going to speak to that from a 22 scientific point of view, but, Mr. Repka?
23 MR. REPKA: I think that the contention or 24 the interrogatory itself is based upon a faulty 25 premise.
It talks about justifying the omission of a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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design basis LOCA consequence analysis.
And to the 2
extent that that's asserting the omission of a Part 3
100 design basis radiological consequence analysis, 4
that's not an issue that has appeared in any of the 5
contentions, either the original or the admitted 6
contentions, and it's also based on a faulty premise 7
because in fact there have been radiological 8
consequence assessments included in the license 9
application and in the RAI responses. And so perhaps 10 BREDL would be best looking at what's already out 11 there and a matter of public record rather than 12 seeking a justification for an omission that doesn't 13 really exist.
14 JUDGE YOUNG:
So is what you're saying 15 that with regard to at least the first sentence of 16 Specific Interrogatory Number 2 that there's no 17 relevant answer because you did include that? Is that 18 what you're saying?
19 MR. REPKA: I'm saying two things. First 20 is that to the extent it's related to radiological 21 consequences, that's beyond the scope of the admitted 22 contention, which relates to the ECCS analysis.
But 23 beyond that I'm saying that in fact there is 24 information available, there, is no omission with 25 respect to the radiological consequences, and we cite NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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to some of that in our objection.
So there is no 2
omission.
3 JUDGE YOUNG: And in terms of the second 4
sentence of the interrogatory, is what you're saying 5
that that should --
the response to that would be 6
self-evident from what has already been provided? Is 7
that what you're saying?
8 MR. REPKA: Well, I would say with respect 9
to that
- first, to the extent it relates to 10 radiological consequences it's again raising an issue 11 that's outside the Appendix K ECCS evaluation and the 12 scope of the contention.
Second, with respect to 13 whether or not it's answered by the information that 14 is included in the application of the RAI response, I 15 can't say it's self-evident, I don't know the answer 16 to that and I'm not speculating, but I think that 17 would be one place to look.
18 MS. CURRAN:
This is --
19 JUDGE YOUNG:
Go ahead, Ms. Curran.
20 MS. CURRAN: This is Diane Curran. I just 21 want to emphasize that this is --
the standard for 22 discovery is one of relevance.
It's a different 23 question as to whether we're going to be allowed to 24 put evidence in on a subject as to whether it's 25 relevant, and it seems to me that this is a very NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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relevant inquiry and it should be answered.
And if 2
the answer is, "We've already told you, this is all we 3
have, see X," then that's an answer to discovery. But 4
it seems to me that we should get an answer to this 5
question.
6 JUDGE YOUNG:
Mr. Repka, can you state 7
whether the answer would be that?
I mean it sounds 8
like that's what you sort of said before.
You said 9
with regard to the second part you weren't sure, but 10 is this something that can be resolved by just --
it 11 seemed to be that you were suggesting that this might 12 be resolved by a straightforward statement of what is; 13 in other words, that that would be the equivalent of 14 giving the response that Ms. Curran just mentioned.
15 MR. REPKA:
I do believe we could answer 16 this interrogatory and it would be a
fairly 17 straightforward answer. However, we don't want to, in 18 doing so, concede that the scope of the contention is 19 broader than what we view it as, and that's the reason 20 we've raised the objection.
21 JUDGE YOUNG:
It would be helpful for me 22 at this point, Judge Baratta and Judge Elleman, to 23 have a private conversation at this point.
If that 24 would be all right with you if we could all hang up, 25 I could call you both and then we could call back in, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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assuming we could get back in.
2 MR. FERNANDEZ: Your Honor?
3 JUDGE YOUNG:
Yes.
4 MR. FERNANDEZ:
Before you sign off I 5
didn't know if you wanted to get the staff's view?
6 JUDGE YOUNG:
I thought you said you 7
didn't have anything to say. But if you do, go ahead.
8 MR. FERNANDEZ:
The staff agrees with 9
Duke.
We see the request as going beyond what's 10 currently in the contention, as admitted.
The 11 contention, as
- admitted, and even the previous 12 contentions did not address deficiency with regard to 13 analyses performed to assess dose consequence modeling 14 as a result of LOCA or any other accident.
The 15 contention that's referring by the Board does not talk 16 about those analyses. The analyses it does talk about 17 is LOCA event analyses and --
18 JUDGE YOUNG: What was the word you used, 19 LOCA what analyses?
20 MR. FERNANDEZ:
Event analyses.
21 JUDGE YOUNG:
Event.
22 MR. FERNANDEZ: EVA analyses.
These are 23 all accident analyses, not dose modeling or dose 24 consequence analyses.
This is two very different 25 things, and the adequacy of what Duke provided the 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 1600 staff with regard to dose consequence has never been challenged. So to seek discovery on that matter would be trying to seek discovery on a matter that's outside the scope of the litigation and would not reasonably lead to any evidence admissible during the hearing because the issue is not within the scope of the hearing that's currently presented because of the contentions are they way they are, as admitted.
So the staff's position is that the discovery request, particularly Number 2, Specific Interrogatory Number 2, should probably be stricken as far as it requests information that's outside the scope of the proceeding.
MS. CURRAN:
Judge Young, this is Diane Curran.
I fail to see how it's possible to make an unequivocal statement that this discovery question won't lead to any --
to the discovery of any admissible evidence when the focus of the contention is the behavior of MOx fuel, which of course include consequences of its behavior. So I mean we're talking about relevance here.
JUDGE YOUNG:
Judge Baratta and Judge Elleman, would it be all right with you all if we got off and I called you separately and then we came back on?
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JUDGE BARATTA:
That's fine.
2 JUDGE ELLEMAN:
That's fine.
3 JUDGE YOUNG:
Okay.
Then we're going to 4
hang up and call back in a few minutes if everyone 5
could just hold on for a minute.
Thank you.
6 (Whereupon, the foregoing matter went off 7
the record at 10:45 a.m. and went back on 8
the record at 11:02 a.m.)
9 JUDGE YOUNG: All right. Just without --
10 we're listening to all your arguments and we're going 11 to take them under advisement and make a ruling as 12 quickly as possible, but just to sort of see if we can 13 get a little bit of a clarification on this, I'm going 14 to first sort of ask a general question and then Judge 15 Baratta and Judge Elleman may have more specific 16 technical and scientific questions for Dr. Lyman and 17 Duke's people and the staff possibly.
18 Assuming that whether it's in 1 or 2 that 19 if a LOCA led to a core destructive accident and there 20 was a release, that that would be relevant under 1 or 21 2, I'm not completely clear on Duke's argument and it 22 would be helpful to get Dr. Lyman to speak to it from 23 that perspective as well for me.
Judge Elleman and 24 Judge Baratta, did you want to add anything at this 25 point?
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JUDGE ELLEMAN: Go ahead, Judge Young. We 2
can maybe ask questions later.
3 JUDGE YOUNG:
Okay.
Go ahead then.
Dr.
4 Lyman, do you want to speak to that first since you 5
were talking, and then Duke may have something to say 6
to it as well.
7 DR. LYMAN:
I'm sorry, could you restate 8
the question, please?
9 JUDGE YOUNG: Assuming that what we were 10 looking at in Contentions 1 and 2 as we reframed them, 11 and I can read them to you if you want.
Let me just 12 read them to you. Contention 1, reframed, "The LAR is 13 inadequate because Duke has failed to account for 14 differences in MOx and LEU fuel behavior, parentheses, 15 both known differences and recent information on 16 possible differences, and for the impact of such 17 differences on LOCAs and on the DBA analysis for 18 Catawba."
19 The second contention was, "The LAR is 20 inadequate because Duke has, a, failed to account for 21 the impact of differences in MOx and LEU fuel 22 behavior, parentheses, both known differences and 23 recent information on possible differences, on the 24 potential for releases from Catawba in the event of a 25 core destructive accident, and, b, failed to quantify NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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to the maximum extent practicable environmental impact 2
factors relating to the use of the MOx LTAs at 3
Catawba, as required by NEPA."
4 Assuming that the consequences of a core 5
destructive accident --
if a LOCA led to a core 6
destructive accident, that the consequences would come 7
into what you're asking for, could you speak to that 8
in the framework of the two reframed contentions I 9
just read to you?
10 DR. LYMAN:
I'll try.
I do --
11 JUDGE YOUNG: And it sort of gets to what 12 Judge Elleman had asked before also.
13 DR. LYMAN: Yes. No, it certainly is true 14 that we in our interrogatories for 2 we also asked for 15 specific information related to all the assumptions 16 for the consequence analysis of severe accident using 17 MOx fuel. And, certainly, if that were replied to in 18 full, that would contain some of the information that 19 we requested in the Specific Interrogatory Number 2 20 for Contention 1, except it wouldn't directly address 21 specific issues going to the consequence analysis for 22 LOCAs that are required for design basis accidents, 23 but we would probably be able to back out that 24 information. We're not as specific in the request for 25 Contention 2, so it's -- we believe that that language NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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would encompass what we asked for in Contention 1 but 2
because it's not as specific we may not get it, at 3
least in the first round.
4 JUDGE YOUNG:
At this point, I'd like to 5
ask one more question and direct it to Duke and then 6
Judge Baratta and Judge Elleman may be able to clarify 7
this more.
Mr. Repka, I'll just ask you and then if 8
you need to refer
- this, assuming that this 9
information, that the consequences if there were core 10 destructive accident arising out of a LOCA, assuming 11 that that would come in under 1 or 2, does your 12 objection go to it across the board or is this more --
13 I mean can we sort of cut to the chase, I guess is 14 what I'm talking about?
Is there something that I'm 15 missing in terms of why this --
is your argument that 16 the contentions, as admitted, should not be construed 17 to allow for any consequences arising from, for 18 example, a core destructive accident that was the 19 result of a LOCA?
20 MR. REPKA:
Here's what I think we're 21 saying.
This Interrogatory Number 2 refers to, and 22 I'll
- quote, "a design basis LOCA consequence 23 analysis," okay?
So that's --
when we read that, we 24 read that as a term of art.
That's a design basis 25 LOCA analysis, which is a particular kind of analysis NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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under Part 100.
That's the type of analysis we don't 2
believe is in play, has ever been put in play in 3
either Contention 1 or 2.
4 In Contention 2, which is the severe 5
accident --
or at least we read it as a severe 6
accident consequence contention, perhaps among other 7
things.
That's really a separate kind of risk 8
analysis is the way I believe the Duke has approached 9
that and views it, which is something different from 10 what this interrogatory refers to, which is a design 11 basis LOCA consequence analysis.
So I think in 12 Contention 2 we would say we're not getting in that 13 contention to this particular design basis LOCA Part 14 100 analysis.
15 JUDGE YOUNG:
Earlier you said that you 16 could give a fairly straightforward answer to that but 17 that you didn't want to sort of give up your objection 18 to arguing the relevance of either ECCS or, am I'm 19 forgetting the other term. Given what I've said, can 20 you provide your straightforward response, and can we 21 sort of get to the information that we're talking 22 about in a straightforward way without sort of setting 23 everything up on highly procedural technical kinds of 24 issues?
25 MR. REPKA:
Well, I think we can give a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1606 1
straightforward answer to the question because it's 2
based on the premise of an omission of this Part 100 3
consequence analysis that in fact has been done. But 4
our point then would be, and I don't view it as a 5
procedural point at all, is that we're really --
just 6
in this discussion we've talked about three different 7
analyses:
The Appendix K ECCS analysis, the design 8
basis Part 100 LOCA analysis, and the third thing 9
being the severe accident risk analysis.
And our 10 position is, and I wouldn't want to concede it in 11 giving the straightforward answer, is that the first 12 and the third of those are within the scope of the 13 contention but the second is not, the Part 100 14 radiological consequence analysis. So perhaps we just 15 say that in answering the question, I don't know, if 16 the Board disinclined to rule on us both with the 17 contention today. But I think there is an issue there 18 with respect to the scope of both contentions that's 19 legitimate.
20 MS. CURRAN:
Judge Young?
21 JUDGE YOUNG:
Go ahead, Ms. Curran.
22 MS. CURRAN: This is Diane Curran. I just 23 want to add one more time, I think there will be an 24 appropriate time when we're submitting evidence for 25 Duke to object to evidence based on an argument that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1607 1
relates solely to the scope of the contention.
The 2
standard for discovery is broader.
It's premature to 3
say -- and I'm not conceding it, I'm just saying it's 4
too early to be making this argument.
The question 5
here is one of relevance.
This issue is --
I've 6
explained the relevance of the question and at the 7
discovery point that's the question. The question is 8
not what is going to be the permissible scope of 9
testimony in the hearing, which is I think what Mr.
10 Repka is talking about.
11 JUDGE YOUNG: Well, you're right. You're 12 right on the scope of discovery that it's not grounds 13 for objection if a question's reasonably calculated to 14 lead to the discovery of admissible evidence.
And 15 we're aware of that.
As I said, we're going to take 16 this under advisement, but before we move on from it, 17 Judge Elleman and Judge Baratta, do you have any 18 questions for Dr. Lyman or Duke?
Actually, before 19 that, Dr. Lyman, in view of our discussion and the 20 question I asked earlier, did you want to add anything 21 first?
22 DR. LYMAN: Unless you didn't understand 23 my response, to --
24 JUDGE YOUNG: I think I did, but go ahead.
25 You don't need to repeat what you said before.
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DR. LYMAN: Right. As far as the standard 2
of reasonably calculated to lead to admissible 3
evidence, obviously any information about how Duke 4
considered uncertainties in conducting its source term 5
analysis would provide us with information on how they 6
took into account uncertainties with regard to the 7
entire development or progression of the design basis 8
LOCA. So I think in that context, I think it not only 9
strengthens our argument.
Thank you.
10 JUDGE YOUNG:
Judge Elleman?
11 JUDGE ELLEMAN:
Yes.
This is Judge 12 Elleman.
Dr. Lyman, help me out here a little bit.
13 If Contention 1 is confined to a LOCA analysis and a 14 LOCA analysis deals, does it not, with reaching a 15 specific set of fuel conditions and examining the 16 circumstances that bring you to those set of fuel 17 conditions.
For that analysis, you do not need a 18 source term, do you?
19 DR. LYMAN:
Well, again, we see LOCA 20 analysis that is a term that, in my view, encompasses 21 both analysis of the progression and the compliance 22 with the regulatory criteria for LOCA as well as a 23 consequence analysis associated with LOCA that, in my 24 view, is encompassed by the term LOCA analysis.
And 25 the two are integrally related, as I discussed, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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especially the issues that we have raised associated 2
with uncertainties as to whether regulatory source 3
terms are appropriate for MOx fuel.
4 JUDGE ELLEMAN:
Okay.
Now, so you're 5
saying, I believe, our wording of Contention 1, which 6
is stated in terms of a LOCA analysis, you're saying 7
that to you that implies going beyond that to also do 8
a consequence analysis and a dose analysis to the 9
public and that that is implied implicitly in the 10 statement of Contention 1?
11 DR. LYMAN: Yes.
I mean I don't see that 12 as going beyond what it says in Contention 1 in my 13 reading, because I don't see on technical grounds how 14 those two aspects are distinct.
In particular, the 15 timing of various radionuclide releases, which of 16 course is --
17 JUDGE ELLEMAN:
Okay.
Our wording in 18 Contention 1, confining it to the LOCA analysis, 19 derived from the original contentions that were 20 presented, and I guess what I'm hearing you say is 21 that when you used the word, "LOCA analysis," in the 22 contentions, you were thinking in terms of going 23 beyond that to include what we call Level 3 PRA 24 analyses and consequence analysis to the public.
Is 25 that the case?
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DR. LYMAN:
No, no, no.
No, that's not 2
what we're talking about. We're talking about design 3
basis accidents here, so there's no issue of PRA 4
deterministic analysis.
5 JUDGE ELLEMAN:
Okay.
6 DR. LYMAN: It's only a matter of whether 7
the technical uncertainties in the performance of MOx 8
fuel during design basis LOCA those can have an impact 9
both on the accident progression and the timing of the 10 various phases of fuel degradation during design basis 11 LOCA and therefore also have an impact on the timing 12 and the magnitude of releases from core to 13 containment.
14 JUDGE BARATTA:
This is Judge Baratta 15 here.
I just wanted to put it in terms of --
the 16 question in terms of the regulations to make sure that 17 I understand what Dr. Lyman is saying. So in terms of 18 the way that you define LOCA analysis, you would 19 include the Appendix K LOCA analysis as well as the 20 off-site consequences that are called out in Part 100?
21 DR. LYMAN:
That's correct.
22 JUDGE ELLEMAN: Okay. This is Dr. Elleman 23 again.
Getting back to the need for a source term, 24 the need for the source term derives, does it not, to 25 a need for determining doses to a populus?
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DR. LYMAN:
Yes.
2 JUDGE ELLEMAN:
The source term plays no 3
role at all in the evolution of the accident per se, 4
it's only the consequences of that accident that it's 5
relevant.
6 DR. LYMAN:
Well, I mean the source term 7
is required for consequence analysis.
8 JUDGE ELLEMAN:
Yes.
9 DR. LYMAN:
But the source term is, just 10 to repeat myself, we see the concept of a LOCA 11 analysis as having --
once you have to demonstrate 12 that -- the license is required to demonstrate that a 13 LOCA can be terminated at the design basis stage and 14 also that the dose consequences of the releases that 15 occur during the design basis LOCA are. acceptable.
16 And those are two aspects I see as both encompassed by 17 the concept of a LOCA analysis.
18 JUDGE YOUNG:
I'd like to just get some 19 clarification on something from my side, the lawyer, 20 non-scientist side, and that is, Dr. Lyman, when 21 you're talking about LOCA analysis, and if you can 22 recall how I read the two admitted contentions to you, 23 is there in your view anything --
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destructive accident and quantifying to the maximum 2
extent practicable environmental impact factors, does 3
that --
if you --
is there anything left --
are you 4
saying there's anything left out of that that has to 5
be included in one or - - what am I trying to say? The 6
way we framed Contention 1 and Contention 2 is this 7
primarily an issue of where the consequences come 8
under 1 or 2? Is there something that I'm missing in 9
terms of what you're saying?
10 DR. LYMAN:
No.
I don't think it --
let 11 me explain the distinction.
12 JUDGE YOUNG:
Okay.
13 DR. LYMAN: Certainly, in Contention 2 if 14 we got a full and complete response to our discovery 15 requests concerning the beyond design basis 16 consequence
- analysis, that would include the 17 information in Contention 1, but we do know that Duke 18 hasn't specifically done a beyond design basis 19 consequence analysis for MOx. They just refer to the 20 Department of Energy's analysis from the EIS.
So we 21 know that we're not going to get --
unless there's 22 information Duke has that they didn't supply in their 23 submittal, we can't expect that we're going to get a 24 detailed discussion, but we do know that they did to 25 that analysis for the design basis portion.
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JUDGE YOUNG:
But it could --
just to 2
interrupt to see if I can understand, what you're 3
asking for could come in either category is what you 4
are saying, and you don't expect that you're going to 5
get it in the category of information described in 6
Contention 2, so since you think it was done in the 7
design basis analysis, you're asking for it under 1.
8 DR. LYMAN:
That's right.
9 JUDGE YOUNG:
- But, basically, the 10 information would be the same sort of information.
11 DR. LYMAN:
Well, yes, if we got a 12 complete response to the second set of 13 interrogatories.
14 JUDGE YOUNG:
Could you just help me 15 understand here your position with regard to Duke's 16 argument, as I understand it, that they interpret 17 Contention 2 to be limited to risk analysis and 1 --
18 and if I'm misstating this, please correct me, Mr.
19 Repka --
to be limited to more of a deterministic 20 analysis.
Did I understand that right before?
21 MR.
REPKA:
This is Dave Repka.
22 Contention 1 would be limited to a deterministic LOCA 23 analysis, the ECCS analysis.
That's what the basis 24 for the contention was all about.
25 JUDGE YOUNG:
But you did say that you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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viewed Contention 2 as being limited to the risk --
2 more risk analysis.
3 MR. REPKA:
It's a severe accident beyond 4
design basis contention risk analysis.
That's 5
correct. That's how we read it if you read the term, 6
"core disruptive accident," as beyond design basis.
7 JUDGE YOUNG:
Okay.
Dr. Lyman, do you 8
want to --
9 JUDGE BARATTA:
I'd like to interject 10 something here, if I may.
In terms of what you just 11 said, Mr. Repka, if you look at Part 50.34 --
12 COURT REPORTER:
This is the court 13 reporter, who's speaking?
14 JUDGE BARATTA: I'm sorry, Judge Baratta, 15 excuse me.
16 COURT REPORTER:
Thank you.
17 JUDGE BARATTA:
And I believe that that 18 uses a term very similar to that where it says in 19 Footnote 6 --
20 JUDGE YOUNG:
Tell me the number again, 21 Judge Baratta.
22 JUDGE BARATTA:
Okay, 50.34.
23 JUDGE YOUNG:
Footnote 6, okay.
24 JUDGE BARATTA:
Okay.
And it refers to 25 substantial meltdown of the core, which is obviously NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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a core disruptive accident, and requires, of course, 2
then that the applicant show that certain dose limits 3
are
- achieved, et
- cetera, and that's up in 4
50.34(a)(ii), I believe it is.
Could you comment on 5
that, Mr. Repka?
6 MR. REPKA:
I think, and I'll let Mr.
7 Nesbit correct me if I'm wrong, but you're referring 8
to 50.24(a) (ii) (D), I believe. But I think that that 9
then references the analysis that would show that the 10 site characteristics of Part 100 are complied with, 11 and that's a reference to the design basis Part 100 12 deterministic does consequences assessment that we're 13 talking about under Contention 1.
14 JUDGE YOUNG:
Excuse me, did you say 15 50.34(a)(ii)(D)?
I don't find an (a)(ii)(D).
16 MR.
REPKA:
Fifty thirty-four (a) --
17 (a)(1), I'm sorry 1, arabic 1, two, which is two 18 little Is, and then --
19 JUDGE YOUNG:
And then capital D?
20 MR. REPKA:
Correct.
21 JUDGE YOUNG:
Okay.
Gotcha.
And then 22 Footnote 6 also if you could speak to that.
23 MR. REPKA:
Right.
24 JUDGE YOUNG:
Okay.
25 MR.
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And our point is that's a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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reference to the Part 100 design basis dose 2
consequence assessment that was provided in the 3
application and has been provided in the REI response 4
but was never the basis for any of the original BREDL 5
contentions. That's our point is that that particular 6
analysis has never been in dispute.
7 DR. LYMAN: This is Dr. Lyman. Can I just 8
clarify that we don't see the way core disruptive 9
accident was used in your contentions.
We did not 10 interpret that to mean the damage to the core in the 11 design basis LOCA.
I just want to clarify that.
12 JUDGE YOUNG:
So you interpreted that to 13 be included in impact with such differences on LOCAs; 14 is that what you're saying?
15 DR. LYMAN:
No, that the core disruptive 16 accident is in the Contention 2 and that that we 17 interpret to mean something other than a design basis 18 something worse than design basis LOCA, which is 19 Contention 1.
20 MR. REPKA: Which is how we're reading it.
21 DR. LYMAN: Right. And so the language in 22 50.34 we would not consider that to be the core 23 disruptive accident in that way that you've 24 characterized it in the contentions.
25 JUDGE YOUNG:
So the confusion comes in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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the word, "core disruptive accident?"
2 DR. LYMAN:
Right, although in a design 3
basis LOCA the core can experience substantial 4
meltdown if it's still terminated in the vessel, and 5
I think that's --
6 MR. NESBIT: If I could clarify something, 7
please.
This is Steve Nesbit.
The core does not 8
experience substantial meltdown in a design basis 9
LOCA.
10 JUDGE ELLEMAN: Mr. Nesbit, this is Judge 11 Elleman.
When you perform a LOCA analysis, does the 12 result of that LOCA analysis say anything at all about 13 fission products released into the reactor vessel or 14 containment, the amounts of those fission products, 15 anything that relates to a damaged fuel?
16 MR. NESBIT:
No, sir.
17 JUDGE ELLEMAN: That was my understanding.
18 It's strictly limited to reaching a particular set of 19 conditions, isn't it, a particular fuel temperature.
20 MR.
NESBIT:
The criteria that are 21 outlined in 50.46.
22 JUDGE ELLEMAN:
Yes.
Okay.
Thank you, 23 sir.
24 DR. LYMAN:
This is Dr. Lyman.
But the 25 premise for the Part 100 release is a LOCA leading to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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a substantial meltdown in the core if it's still 2
terminated.
So the Appendix K and the 50.46 3
requirements may be more restrictive than what would 4
lead to that source term, but that source term is 5
still considered part of the design basis LOCA 6
analysis.
7 JUDGE YOUNG:
Anything further on this?
8 I guess my impression at this point is that there does 9
appear to be some confusion about what was intended by 10 certain words in the contention and that the issue 11 that's sort of being talked about now is consequence 12 analysis for LOCAs and where that would fall, whether 13 in Contention 1 or Contention 2 or, as I think Duke is 14 arguing, neither.
15 MR. REPKA:
That's correct.
16 JUDGE YOUNG:
And then the specific 17 question that we're talking about is whether the 18 Interrogatory Number 2 should be responded to and then 19 Dr. Lyman also talked about another interrogatory 20 relating to Contention 2 and having a concern that a 21 complete answer would be provided with regard to that.
22 Am I leaving out anything in terms of just a sort of 23 summary of what the issues are around this one and/or 24 does anyone have anything further to say on this one 25 before we move on? And Judge Elleman, Judge Baratta, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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do you want to ask anymore questions on it?
2 JUDGE BARATTA:
Well, yes.
I do want to 3
ask -- looking at Contention 2, I'm going to ask this 4
of Duke, the admitted contention reads, "The LAR is 5
inadequate because Duke has, a," and it continues on, 6
"on potential releases from Catawba in the event of a 7
core disruptive accident."
How do you interpret as 8
pertaining to a beyond design basis accident as 9
opposed to any accident which the core is disrupted 10 regardless of whether or not it's contained in-vessel 11 or it's not contained?
12 MR. REPKA: Core disruptive accident is a 13 term that we were not familiar with, and so we could 14 only interpret it in light of the original BREDL 15 contentions, and based upon those contentions and the 16 bases for them, we interpret the term as referring to 17 something different than a design basis LOCA as being 18 a severe accident consequences.
You could certainly 19 define that term to include a design basis LOCA 20 analysis and the radiological consequences, but we 21 don't think it would be appropriate to do that, 22 because that was not raised in any of the original 23 contentions.
24 JUDGE YOUNG: Does BREDL want to speak to 25 that?
Ms. Curran?
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MS. CURRAN:
I will ask if Dr. Lyman has 2
any.
3 DR. LYMAN:
This is Dr. Lyman. No, I do 4
agree with Mr. Repka's understanding of a distinction 5
between Contentions 1 and 2. Just by the context we 6
assumed that Contention 2 did refer back to our 7
original contentions involving the environmental 8
assessment and a risk analysis which refers to beyond 9
design basis accidents.
So that was our 10 understanding.
11 JUDGE YOUNG: What's your response to his 12 argument that you did not raise the issue that would 13 under such an understanding be left out of the word 14 core disruptive accident, namely anything --
any 15 accident in which the core is disrupted, including 16 LOCAs or design basis accidents?
17 DR. LYMAN: Well, again, from the context 18 of the way the contentions were structured, we assumed 19 that what you meant by core disruptive accident was 20 something including --
21 JUDGE YOUNG:
No, excuse me.
I'm not 22 asking you to interpret the contentions at this point.
23 I'm asking you -- Duke is saying that they understood 24 our Contention 2 the same way you did.
25 DR. LYMAN:
Right.
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JUDGE YOUNG: But they're saying that they 2
did not understand Contention 1 --
3 DR. LYMAN:
Right.
4 JUDGE YOUNG:
-- to include consequences, 5
and they're saying that you did not include in any of 6
your contentions that led to our consolidation and 7
refraining into Contention 1 and 2 any discussion of 8
consequences other than severe accident beyond design 9
basis.
10 DR. LYMAN: Yes, but I think I'd point out 11 at the beginning that in our Contention 10 we did 12 generally refer to significant differences in LEU and 13 MOx fuel behavior that was not specific to probability 14 or accident progression of a LOCA as opposed to 15 release fractions.
We think both of those refer to 16 significant differences in fuel behavior.
17 MS. CURRAN: This is Diane Curran. I just 18 want to emphasize again the standard of relevance.
19 The standard is not what evidence will we be allowed 20 to present at the hearing but will this be an answer 21 to this question lead to relevant evidence and the 22 concern of the contention is the behavior of the fuel.
23 So it seems to me that it's very relevant.
24 JUDGE YOUNG: Judge Baratta, I interrupted 25 you before to get clarification from Dr. Lyman.
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you want to follow up on what you were asking before?
2 JUDGE BARATTA:
The only other point that 3
this is Judge Baratta.
The only other point that 4
I wanted to ask is that in Part 50.34 again it does 5
not specify the accident that necessarily would result 6
in that meltdown.
It just refers to, I think, 7
accidents in general. Am I misinterpreting that, Mr.
8 Repka?
9 MR. REPKA:
I don't know the answer to 10 that.
Mr. Nesbit, do you know the answer?
11 MR. NESBIT:
We haven't studied that 12 thoroughly as of today, but it is considered to be 13 kind of a generic term. In other words, when you talk 14 about the LOCA dose, you're really talking about just 15 the generic dose from something that results in 16 significant core melt. I mean it's really meant to be 17 an encompassing source term, and that's why I said 18 earlier that the nexus between the LOCA analysis that 19 we do routinely and the dose analysis is just the name 20
- only, and even that name is not necessarily 21 appropriate there.
22 DR. LYMAN:
This is Dr. Lyman.
Yes, I 23 mean it could be any initiator that ends up with a 24 core melt sequence that's terminated in-vessel, so it 25 doesn't necessarily have to be a LOCA.
It could be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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another initiator.
2 JUDGE BARATTA: Okay. Thank you.
I just 3
wanted to make sure that that was --
we were, more or 4
less, all in agreement on that.
That's all I have.
5 JUDGE YOUNG:
In light of what has just 6
been said, Mr. Repka, assuming that either the words, 7
"core disruptive accident," or the open-endedness of 8
impact of such differences on LOCA and the design 9
basis analysis for Catawba encompasses what is 10 described in Footnote 6 and 50.34(a) (i) (B), what does 11 that do to what you were saying earlier? It sounds as 12 though this encompasses the thing that you were saying 13 should not be included.
Am I misunderstanding 14 something?
15 MR. REPKA:
My point is that that's 16 reference to the consequence analysis to meet Part 100 17 that Mr. Nesbit was just talking about that's separate 18 from the LOCA analysis. And our point is that, yes, 19 that analysis exists, but, no, that's never been part 20 of the original contentions.
21 JUDGE YOUNG:
Okay.
And do you want to 22 speak specifically to Dr. Lyman's description of their 23 original Contention 1 and also Ms. Curran's argument 24 about the purpose of discovery?
25 MR. REPKA: Well, I think with respect to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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1624 1
the purpose of discovery there still is a general 2
relevancy, and that doesn't get around the scope of 3
the contention.
So the definition of the contention 4
remains an important issue.
And, no, I don't have 5
anything more to say beyond that.
6 JUDGE YOUNG:
Okay.
7 MR. NESBIT:
Judge Young, this is Steve 8
Nesbit.
Could I just add in that their original 9
contention did refer specifically to things like peak 10 cladding temperature and core coolability, which are 11 criteria under 50.46, but it did not say anything 12 about dose.
13 MR.
REPKA:
Which is the Part 100 14 analysis.
15 MR. NESBIT:
Right.
16 DR. LYMAN:
This is Dr. Lyman.
But I was 17 also referring to late-filed Contention 10 as well.
.18 MR. NESBIT:
That's what I was referring 19 to as well.
20 DR. LYMAN:
No.
21 MR.
REPKA:
I think the issue in 22 Contention 10 was still the same, which is was there 23 anything in the IRSN data with respect to fuel 24 relocation at LOCA temperatures that would affect an 25 Appendix K LOCA analysis.
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1625 1
there.
2 MR. NESBIT: I can quote from their sum-up 3
in Contention 10 that says, "Because these unknowns 4
regarding the behavior of Mox fuel during a LOCA, Duke 5
lacks the factual basis for assuring that the existing 6
emergency core cooling systems at Catawba will meet 7
the acceptance criteria in 10 CFR 50.46." That pretty 8
much sums it up right there.
9 MR. REPKA: And it does reference the 3.7 10 LOCA analysis, ECCS analysis.
11 DR. LYMAN:
That's the basis statement.
12 Maybe our basis statement was not fully developed but 13 the contention itself refers to all differences 14 significant fuel behavior.
15 JUDGE YOUNG:
So I think we're talking 16 about some use of language in the original contentions 17 and in the reframed contentions that we need to look 18 at when we take this under advisement. Before we move 19 on any further questions, Judge
- Baratta, Judge 20 Elleman?
21 JUDGE ELLEMAN:
I have none.
22 JUDGE BARATTA: This is Judge Baratta. I 23 have none.
24 JUDGE YOUNG: All right.
Then let's move 25 on to the rest of Duke's objections.
We've talked NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1626 1
about the email. Ms. Curran, do you have any response 2
under the attorney work product privilege and so 3
forth?
4 MS. CURRAN:
Yes.
Just before we talk 5
about that, I think I'd like to let Dr. Lyman hang up.
6 Ed, will you be working at home today?
7 DR. LYMAN:
Yes, I will.
8 MS. CURRAN:
So if we need him, we can 9
call you if we need you?
10 DR. LYMAN:
Yes.
11 MS. CURRAN:
Is that all right, Judge 12 Young?
13 JUDGE YOUNG:
Sure, that's fine.
14 MS. CURRAN:
Okay.
15 DR. LYMAN:
Call my --
16 MS. CURRAN:
Your cell phone?
17 DR. LYMAN:
Yes.
18 MS. CURRAN:
Okay.
19 DR. LYMAN:
Thank you.
20 MS. CURRAN:
Thanks.
21 JUDGE YOUNG:
Thank you.
22 MS. CURRAN:
Yes, as far as attorney-23 client privilege goes, that's fine. I'd just like to 24
-- if there's something relevant that's identified --
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for us and explain that privilege applies.
2 JUDGE YOUNG:
Mr. Repka, do you have any 3
objections to that?
4 MR. REPKA: Yes. We raised this objection 5
without knowing yet what the universe of documents are 6
that is potentially subject to this objection, and we 7
raised it because we didn't want to -- we were mindful 8
of the Board's admonition that we get all objections 9
out there.
So at this point, I don't know what the 10 scope of documents might be. I would say as a general 11 proposition, certainly that would be the procedure to 12 identify documents subject to the privilege.
I have 13 no idea if that's a large universe and whether that 14 creates a problem, but as a general proposition I 15 would be in agreement with that.
16 JUDGE YOUNG: Okay. Well, do that, and if 17 there's any problem with doing that, then that can be 18 raised at a further conference or in between if 19 necessary.
So anything more on that issue?
20 MS. CURRAN:
No.
21 JUDGE YOUNG:
Okay.
All right.
Then 22 moving on to, let's see --
23 MS. CURRAN:
Oh, there was one more I 24 think that Duke had.
25 JUDGE YOUNG:
Under a general document NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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production request Number 2, vague, overbroad and 2
unduly burdensome.
3 MR. REPKA: This particular objection, and 4
just to summarize it again for Judge Elleman, was the 5
document request is essentially for anything in your 6
possession that may be relevant, and I think that 7
that's precisely the kind of broad request for all 8
documents potentially relevant.
It's the kind of 9
request that's disfavored by the Commission's 10 precedence on discovery, notwithstanding the broad 11 discovery provisions of 2.740.
12 I think that our point on this is we will 13 be responding in detail to all of the other 14 interrogatory document requests, and we're just very 15 wary of a document request that goes somehow beyond 16 that, and we don't know the universe, we have no way 17 to put bounds on it, we have no way to interpret what 18 BREDL might consider to be relevant to its 19 contentions. So from that standpoint, we would object 20 to this request in deference to all of the other 21 requests that we will be responding to.
And, again, 22 I would say if there are further specific requests 23 that BREDL wants to make in the second round, I think 24 that we would be receptive to entertaining that at 25 that time.
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JUDGE YOUNG:
Ms.
Curran, does this 2
encompass anything that's not encompassed in your 3
other interrogatories?
4 MS. CURRAN:
The purpose of asking for 5
relevant documents, and it's important I think in this 6
particular case, is that obviously there's some 7
disagreement about the significance of certain issues 8
that are raised in the contentions, and that what we 9
want is if Duke has information --
we're not just 10 looking for what Duke's going to rely on in its 11 testimony, we're looking for if Duke has considered 12 various --
there's been research done, for instance, 13 on M5 cladding.
Well, if there's something that they 14 disagree with, we'd still like to see what it says.
15 So in terms of --
we're not looking for 16 anything that is conceivably relevant, tangentially 17 relevant, we're looking for --
18 JUDGE YOUNG:
Let me just back up for a 19 second.
20 MS. CURRAN:
Yes.
21 JUDGE YOUNG: What I was trying to get at 22 was just simply do you construe the rest of your 23 interrogatories as covering all of the contentions?
24 MS. CURRAN:
Yes.
25 JUDGE YOUNG:
Okay.
And, obviously, we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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have now sort of fleshed out or brought to the surface 2
one of area of lack of clarity and complete agreement 3
on the meaning of a certain thing.
Apart from that, 4
do you see any other areas of possible lack of clarity 5
that could result in anything being left out?
6 MS. CURRAN:
Yes.
There's specific 7
interrogatories or document production requests and 8
then these are general ones that we're looking for 9
what -- Duke is in a position to research these issue, 10 that when they do a safety analysis they look at what 11 the relevant issues are.
And so we think it's 12 appropriate to ask what they've looked at.
Mr. Repka 13 was saying that Duke keeps topic files. Well, if the 14 topic file is within the contention, has Duke got 15 information on this topic?
And it is broader than 16 what we're going to get in answer to the specific 17 requests.
18 MR. REPKA:
Request Number 1 is, "all 19 documents in possession, custody or control that are 20 identified, referred to or used in any way in 21 responding to all of the general interrogatories and 22 following interrogatories."
So we have no objection 23 to that. We'll respond to that. Request Number 3 is, 24 "all documents including expert opinions, work papers, 25 affidavits and other materials used to render such NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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1631 1
- opinions, supporting or otherwise, related to 2
testimony or evidence that you intend to use in the 3
hearing." Relating to the testimony or evidence that 4
you intend to use, we'll respond to that. We won't x 5
as stated in our other objection, we have no interest 6
in researching the open literature for BREDL, but we 7
will provide the information that relates to our 8
testimony, relates to our responses to the 9
interrogatories and response to the other requests.
10 BREDL will have substantial information in front of it 11 as to why Duke Energy is reaching the conclusions that 12 it's reaching, and I have no doubt about that.
But I 13 just think that the general interrogatory prefaced 14 with all documents in an attempt to catch all is just 15 overbroad and undefined.
16 JUDGE YOUNG: Mr. Repka, let me ask you a 17 question.
If the Request Number 2 were read to be, 18 "all documents relevant to," and then the Contention 19 Number 1 were spelled out and Contention Number 2 were 20 spelled out and Contention Number 3 were spelled out, 21 would that be something that you would find to be more 22 manageable?
23 MR. REPKA: What do you mean spelled out?
24 JUDGE YOUNG: I mean insert the words from 25 Contention Number 1 and then insert the words from NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Contention Number 2 and then insert the words from 2
Contention Number 3.
3 MR. REPKA:
Well, I don't think that 4
really changes anything, because we'll, in effect, 5
already do that with respect to Request Number 1 and 6
Request Number 3.
We're going to provide the 7
information that supports the interrogatories, we're 8
going to provide the information --
9 JUDGE YOUNG: Right, but what I'm getting 10 at is if you know of something, if you know of 11 something that you don't specifically provide in 12 response to any of the other interrogatories and it is 13 something that you would consider to be relevant to 14 Contention 1, do you have any objection to providing 15 it?
16 MR. REPKA:
No, but I think it will be 17 captured in response to either 1 or 3.
18 JUDGE YOUNG:
Okay.
19 MS. CURRAN:
Well, Judge Young, I just 20 don't think that 1 or 3 is asking Duke to provide 21 information that might be critical of Duke's position, 22 and I --
23 JUDGE YOUNG:
Okay.
24 MS. CURRAN:
would assume that Duke 25 might have collected that kind of information, because NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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they do --
I'm sure they do some kind of a survey of 2
what the existing knowledge is about a topic before 3
they write it up.
4 JUDGE YOUNG:
All right.
Any other 5
argument on this one? Questions?
6 MS. CURRAN:
Not from me.
7 JUDGE YOUNG:
Then let's move on.
Let's 8
see, the next one would be --
9 MS. CURRAN: I think it's Duke's objection 10 to --
11 JUDGE YOUNG:
Publicly available 12 information?
13 MS. CURRAN: Yes. And I think I heard Mr.
14 Repka say earlier that we were expecting Duke to do a 15 search of the literature.
That's not what we're 16 asking for.
We're asking Duke to identify documents 17 that it has, and if these are publicly available 18 reports, it's sufficient to just identify them. They 19 don't need to copy them for us.
20 JUDGE YOUNG: Do you have any problem with 21 that, Mr. Repka?
22 MR. REPKA:
No.
Again, if it's in our 23 possession and custody and we would consider it 24 responsive, we won't do new searches but we would just 25 make it publicly available.
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JUDGE YOUNG:
If you have it.
2 MR. REPKA: If it's publicly available, we 3
would just reference it, that's correct.
4 JUDGE YOUNG: Right. Right.
If you have 5
it and you know about it already and you're using it 6
or whatever, you'll identify it and then it would be 7
up to BREDL to get a copy of it, but you don't have 8
any problem with making reference to those that you do 9
have.
10 MR. REPKA:
That's correct.
11 JUDGE YOUNG:
Okay.
Then moving on to 12 Number 3. And it might be good to hold off on that 13 one until we get on to the issue of the motion to 14 dismiss 3 because some of the issues are related 15 there.
If there's no objection to that, let's set 16 that aside for a moment.
And then the staff's 17 objections. And the staff hasn't said anything. Mr.
18 Fernandez, you said something earlier --
I'm assuming 19 that by your silence you didn't have anything to add 20 to any of the other discussion we've had up to this 21 point?
22 MR.
FERNANDEZ:
That's correct, Your 23 Honor.
24 JUDGE YOUNG:
Okay. Then let's go to the 25 staff's objections.
One thing I would note that on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the first page of your objections you say, "The 2
preliminary matter that while some of BREDL's 3
discovery requests may not be objectionable in 4
themselves, specific documents that the staff compiled 5
in response to BREDL's request may be exempt from 6
disclosure under principles of discovery applicable in 7
this proceeding."
I guess I'm wondering a little bit 8
what you meant by that in view of I think our 9
discussion earlier that this would be a time to bring 10 out any objections and not to save them up for later.
11 MR.
FERNANDEZ:
Your Honor, this is 12 similar to what Duke had raised before, and so we've 13 actually assembled our responses to the 14 interrogatories under request for production.
We're 15 not going to be able to identify what privileges may 16 attach to certain documents or certain communications, 17 so --
18 JUDGE YOUNG:
So in other words, this 19 refers to attorney-client privilege, work product 20 privilege; is that what you're saying?
21 MR. FERNANDEZ:
Yes, among others.
22 JUDGE YOUNG:
Which others?
23 MR. FERNANDEZ:
As we identified in our 24 response, the staff --
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to avoid release or a particular document.
2 JUDGE YOUNG: Now, what are you referring 3
to now, which part of your --
4 MR.
FERNANDEZ:
In objection to 5
Interrogatory Number 1, the staff asserted its 6
deliberative process privilege.
7 JUDGE YOUNG: Right.
But what I'm trying 8
to get at is apart from what's contained in your 9
specific objection, do you mean to encompass in this 10 rather general statement on the first page? If you're 11 talking about the privilege, as Duke did, then we can 12 deal with that by just suggesting that you approach it 13 in the same way that we discussed with Duke, that you 14 would identify the document and at that point assert 15 the privilege.
16 MR. FERNANDEZ:
That's what we intend to 17 do, Your Honor.
18 JUDGE YOUNG:
Okay.
So apart from that 19 and apart from the attorney-client or work product 20 privilege, the items listed in Duke's, I think it was 21 the first objection, and apart from those specified in 22 your specific objection, you don't intend for this 23 general statement on the first page to encompass 24 anything else.
25 MR. FERNANDEZ:
That's not correct, Your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Honor.
The staff has available to itself a whole 2
series of privileges which match up with the 3
exemptions under the FOIA statute.
4 JUDGE YOUNG: But that's already addressed 5
in one of your objections, right?
6 MR. FERNANDEZ:
To the extent that the 7
specific interrogatory asks for that information, 8
that's correct. Without seeing the documents that are 9
being generated right now, that are being gathered in 10 response to the request for production, I can't 11 specifically say which one of those privileges may be 12 triggered at this point in time.
13 JUDGE YOUNG: Okay. Well, in the future, 14 we really want to try to get out the objections in 15 time for these conferences so that we can avoid having 16 to hold additional conferences. That was part of the 17 whole plan here.
18 MR. FERNANDEZ:
Well, Your Honor, it's 19 impossible for the staff to tell you right now what 20 privileges it may assert when it hasn't even seen the 21 documents yet.
22 JUDGE YOUNG:
All right.
As I said, I 23 think we all agreed earlier what we're trying to do 24 here is to move things along, and we're asking each 25 party to familiarize itself with its case enough so NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that you can make your objections at this point.
If 2
there are any particular --
I would encourage the 3
staff to follow Duke's example in its --
let me find 4
Duke's document here.
In any event, I think that you 5
know what I'm talking about, Duke's first objection 6
listing the various privileges.
7 Be specific, because what we want to 8
avoid, and the whole purpose of taking all the time 9
that we took last time to set up this schedule and 10 take into account all of the parties' needs and 11 desires and attempts to compromise is to flesh out all 12 these things in advance so that something doesn't come 13 up later that we don't have a chance to talk about 14 here.
So we're not going to feel real favorable if 15 something completely new pops up that you have not in 16 some way identified at this point.
17 In the future - -
we have several other 18 times set up to talk --
in the future, be prepared, be 19 familiar enough with your case that you will be able 20 to say, as Duke did in its objections -- here it is --
21 the General Objection 1A, and if you want to add 22 anything else in there, add anything else.
But what 23 we're trying to avoid is surprises down that line.
24 With that said, also as we discussed 25 earlier with Duke, I think --
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going to suggest the staff do the same --
if there are 2
documents that you're objecting to providing, identify 3
the documents and then identify whatever privilege 4
you're asserting, all right?
5 MR. FERNANDEZ: That has been our intent 6
all along, Your Honor.
7 MS. CURRAN: Judge Young?
8 JUDGE YOUNG: Yes.
9 MS. CURRAN: This is Diane Curran.
It 10 seems to me that from my standpoint, I haven't had the 11 time to identify all of the specific documents that 12 would be responsive to the NRC's and Duke's request.
13 And I was assuming that, and maybe that 14 was wrong, but the kinds of objections that I should 15 be asserting right now would be kind of general 16 objections that could be made without seeing those 17 specific documents.
18 For instance, attorney/client privilege.
19 And I was looking at the case that the NRC Staff cited 20 right at the -
21 JUDGE YOUNG: On the deliberative process?
22 MS. CURRAN: Yes.
And it says here that 23 the deliberative process is qualified and not absent 24 mood, and that there is a balancing -
25 JUDGE YOUNG: Where are you reading from NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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now?
2 MS.
CURRAN: I'm reading from Page 198 of 3
the decision.
4 JUDGE YOUNG: Okay, all right.
5 MS.
CURRAN:
- And, that the government 6
agency has the burden of showing that privilege should 7
be invoked.
It seems to me, I mean we were required 8
to file objections just a couple of days after getting 9
these requests that it just, it probably isn't 10 feasible to provide that kind of information until 11 you've had a chance to identify all the documents.
12 JUDGE YOUNG: Is this something -
13 MS.
CURRAN:
At any rate, it seems to me 14 that this is, it was difficult to deal with this 15 objection because it was so abstract, right? And you 16 don't know anything about it.
17 JUDGE YOUNG: Is this something that would 18 suggest that we need to change the objection deadlines 19 and the dates for conferences?
20 I mean, the whole purpose of setting up 21 this scheduled is to try to arrange it to accommodate 22 all parties' 23 needs, and at the same time, facilitate moving things 24 along and getting responses back more quickly.
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changed, we can talk about that.
2 MS. CURRAN: I have a suggestion for that.
3 JUDGE YOUNG: Go ahead.
4 MS. CURRAN: It seems to me that this 5
process works for certain kinds of objections.
For 6
general objections, it was fine. The ones that, there 7
are certain ones that can be dealt with right off the 8
bat.
9 If somebody says this isn't relevant.
If 10 somebody has an objection to the nature of the 11 question, that can be dealt with really quickly.
12 And the problem is if privileges are 13 asserted with respect to this document.
14 JUDGE YOUNG:
Information that you 15 subsequently find.
16 MS. CURRAN: Yes, then it takes a little 17 time to figure that out.
So, I don't think you have 18 to throw the baby out with the bath water, it's just 19 that it's come up now that there are certain kinds of 20 things where you need a little time to evaluate and 21 determine whether to assert a privilege.
22 JUDGE YOUNG:
Okay, let me ask you this.
23 And this is for all of you.
Will the deadlines that 24 we set for Motions to Compel, allow any of these types 25 of remaining privilege and related objections be dealt NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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with in that context?
2 MR. REPKA: Your Honor, this is Dave Repka.
3 I think that it would. I think with the understanding 4
that the privileges can be asserted, as we have here, 5
as general assertions and then the documents 6
identified later.
7 To the extent that there is some dispute 8
over the applicability of privilege, I think it would 9
be handled in that context.
10 JUDGE YOUNG: Any objection to doing it in 11 that way?
12 MS. CURRAN: No.
13 JUDGE YOUNG: Okay. Well then we can keep 14 our same schedule, then that's good. All right, then 15 let's go on to the Staff's objections.
I'll get that 16 back in front of me.
17 MS. CURRAN: This is Diane Curran.
18 JUDGE YOUNG: Go ahead.
19 MS. CURRAN: In response to Objection A, 20 the Staff's response is acceptable to us.
If the 21 Staff would identify publicly available documents, 22 that would be fine.
23 With respect to -
24 JUDGE YOUNG: Do you have any problem with 25 that, Mr. Fernandez?
In other words, if they are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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publicly available, you just give the title and 2
reference and location and you don't have to provide 3
the whole document.
4 MR. FERNANDEZ: Yes, that's all we intend 5
to do, Your Honor.
6 JUDGE YOUNG: Okay.
7 MR. FERNANDEZ: And for documents contained 8
in ADAMS, we will provide the official number.
9 JUDGE YOUNG: Okay, great.
So that takes 10 care of the first one.
Go ahead.
11 MS. CURRAN: Okay. And then the second, I 12 guess there's two pieces to the second objection, and 13 the first one we just talked about with the 14 deliberative privilege.
15 That's something that needs to be 16 addressed with respect to the specific document.
So 17 it seems premature at this point.
You can't really 18 address that privilege in the abstract.
19 And then -
20 JUDGE YOUNG: Let me just ask, with regard 21 to things that are not documents, in other words, 22 names of people describing, say verbal.
Are you 23 asking for a description of differing information or 24 opinions in anything other than document form?
25 I mean it's open ended and so, and I want NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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to just try to get this, get everybody on the same 2
page as much as possible, on this. Because obviously, 3
Mr. Fernandez, I doubt that you object to providing, 4
to identifying any document.
5 And then stating that the document would 6
be subject to the deliberative process privilege which 7
could then be brought up under the plan we just talked 8
about, in a Motion to Compel.
9 Is there anything else there, and I'm 10 asking Ms. Curran and Mr. Fernandez.
Well, first of 11 all, Mr. Fernandez, you don't have any problem with 12 identifying the document and asserting the privilege 13 with regard to specific documents, right?
14 MR. FERNANDEZ: Not at this point, Your 15 Honor, that's correct.
We do not, Your Honor.
16 JUDGE YOUNG: Okay.
Now, with regard to 17 anything that would not be a document.
Ms. Curran, 18 you asked for the names of people and then, let's see.
19 MS. CURRAN: Well, first was asked for 20 names of people who were consulted or supplied 21 information.
And then we asked if they have an 22 opinion that's different, please describe in detail 23 the differing opinion.
24 So, whether or not there's a document that 25 describes, it, we would, this is a request for the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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staff to describe it.
2 So, it is an Interrogatory. If there's no 3
piece of paper that already exists, then the Staff 4
needs to explain what's the difference. And this gets 5
to, I think, the, well we've sort of dealt with a 6
deliberative privilege issue, and then they also have 7
an objection that relates to -
8 JUDGE YOUNG: The Rule 2.740(b)(3)?
9 MS. CURRAN: Yes, well, the thing is, we're 10 not necessarily asking why the differing opinion is 11 not the position of the Agency. We're just asking for 12 identification of the differing opinion. So, I don't 13 think that really applies.
14 JUDGE YOUNG: I guess the main thing that 15 I'm wanting to get clarity on and hear any views on, 16 is how this would be done.
17 With a document you can identify the 18 document and assert the privilege. Mr. Fernandez, if 19 there are any people that you are aware of, or 20 information that's not in documentary form, can you 21 respond in such a way that indicates, well, let me 22 hear a suggestion from either one of you on how that 23 might be accomplished.
24 MS. CURRAN: Well, it seems to me that, 25 this is Diane Curran.
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and if the Staff consults several people and they 2
would give different answers to the Interrogatories, 3
you just supply the differing answers.
4 JUDGE YOUNG: What I'm trying to get to is 5
if the Staff, if the Staff does not want to provide 6
the differing answers on the basis of the deliberate 7
process privilege -
8 MS. CURRAN: Oh, well then you -
9 JUDGE YOUNG: - what would the Staff do to 10 identify, since you don't have a document. And since 11 they don't want to identify the person.
I guess what 12 I'm trying to get to, and Mr. Fernandez, if you have 13 any ideas, I'd like to hear them.
14 What I'm trying to get to is some way for 15 the Staff to say there may be, or there are persons 16 whom we object to identify and who's information we 17 object to providing because of the deliberative 18 process privilege.
19 And then, presumably, that would prompt a 20 Motion to Compel, and then we'd get into a discussion 21 about more specifics of it.
22 MS. CURRAN: Your Honor, I see what you're 23 saying.
24 JUDGE YOUNG: Mr. Fernandez, do you, what's 25 your view on that? What's your suggestion on how that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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be approached?.
2 MR. FERNANDEZ: We don't have a suggestion, 3
Your Honor.
4 JUDGE YOUNG:
Is there some way that you 5
can, if there is such information out there, or there 6
are such people out there, you can, in your response, 7
somehow indicate that and indicate that at the same 8
time, if you want to raise the deliberative process or 9
other privilege, you're raising a privilege with 10 regard to it.
11 In other words, so that there will be some 12 indication as there would be with documents.
Do you 13 understand what I'm trying to get to?
14 MR.
FERNANDEZ: No.
The way I understand 15 you right now, Judge, is basically we will disclose 16 the information but say that we object to disclosing 17 it because of the privilege?
18 JUDGE YOUNG:
What I'm saying is, rather 19 than not disclose anything at all and not object, is 20 there some way that you could indicate that there is 21 information, without disclosing what it is, but state 22 that the reason that you're not disclosing what it is, 23 is because of this or that privilege.
24 In other words, if an Interrogatory, if 25 the Interrogatory says identify, let's see, if the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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opinions of anyone who is consulted has a differing 2
- opinion, please describe in detail the differing 3
information or opinion, and indicate why differing 4
information is not your official position.
5 Ms. Curran, let me, before we go on with 6
Mr. Fernandez, would you agree that the last part, why 7
such differing information or opinions are not your 8
official position, would come under 2.740(b) (3)?
9 MS.
CURRAN: Yes, so we can drop that part.
10 JUDGE YOUNG: Okay, so we're going to drop 11 the part starting with and indicate why such differing 12 information or opinions are not your official position 13 as expressed in your written answer to the request.
14 What would remain is stating the name and 15 so forth of each person consulted.
And then for each 16 Interrogatory request for admission, request for 17 production, each person who was consulted and who 18 supplied the information.
19 And if the information or opinions of 20 anyone who was consulted, and this is where it would 21 come in.
In connection with your response or request 22 to an Interrogatory or request for admission differs 23 from your written answer, please describe in detail 24 the differing information or opinion.
25 At that point, Mr.
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were any such information, what I was trying to get at 2
is whether, as there would be with a document, you'd 3
say, well there is such a document but we've refused 4
to provide it on the basis of the deliberative process 5
privilege or attorney work product or whatever.
6 Is there any way to describe, to indicate 7
that there may be some differing opinions, but that 8
you're not going to provide them, based on whatever 9
privilege you're asserting?
10 MR. FERNANDEZ: Your Honor, I, two-part 11 answer.
The first part is given what you've stated, 12 I think we wouldn't have any problem trying to get 13 what you just described, the process you just 14 described.
The Staff would endeavor to do what you 15 just described.
16 JUDGE YOUNG: Okay, in other words, don't 17 just be silent, suggesting that there is no such 18 information.
If you know there is such information, 19 then you would have a responsibility to assert, 20 indicate something to that affect without telling what 21 it is and assert the privilege.
22 MR. FERNANDEZ: Can I, I would like to get 23 now to the second part of answer, however. Which is, 24 you know, for us to, for us to say, for us to, at that 25 stage of the discovery process, to then assert the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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privilege would, in that sense, disclose that there 2
are differing views and completely, you know, do away 3
with the privilege as it exists.
4 I think, as an initial matter, we should 5
address whether it is acceptable to ask the question 6
in the first instance.
And whether the privilege 7
would allow for that question be a sound question 8
within the scope of discovery.
9 And if the Board rules against the Staff 10 on that particular issue, then we would comply with 11 the process which you articulated
- before, of 12 identifying whatever. But -
13 JUDGE YOUNG: Let me, let me, let me ask, 14 let me ask you to look at the language on Page 198, 15 because I had looked at this also, before.
And the 16 last paragraph -
17 MR. FERNANDEZ: Your Honor, I'm sorry, I 18 think the copy that I have of the, are we talking 19 about the Vogtle Decision?
20 JUDGE YOUNG: It's the one you cited, let's 21 see.
22 MR. FERNANDEZ: I think it's Vogtle.
23 JUDGE YOUNG: Yes, it is.
24 MR. FERNANDEZ: I don't have page numbers 25 on it right now, so you, if you'd just tell me at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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least what section of the decision -
2 JUDGE YOUNG: It's the very last paragraph 3
in Section V, Discovery Rule.
4 MR. FERNANDEZ: Okay.
5 JUDGE YOUNG: In a litigation context, it 6
begins. In other words, it's qualified, not absolute, 7
that the Government's interest in confidentiality is 8
balanced against the litigant's need for the 9
information.
10 The NRC Staff bears the initial burden of 11 showing that the privilege should be invoked.
And 12 once the applicability of the privilege has been 13 established, the litigants need for the information 14 must demonstrate an overriding need for the material.
15 Without any identification whatsoever, of 16 whatever it is you're asserting the privilege for, it 17 would seem that we couldn't get into that balance.
18 And since the Commission has said that the Staff bears 19 the initial burden, I guess I'm wondering how you, how 20 you fit your argument that basically the questions 21 should not even be allowed to be asked, with that 22 language there that puts the burden on you.
23 MR. FERNANDEZ: Well, we would argue that 24 we've met our burden by raising the issue, and as we 25 stated in Pages 2 and 3 of our objections, we've met NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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our burden by articulating the reasons why we believe 2
that this Interrogatory would invade the purview of 3
the deliberative process privilege.
4 JUDGE YOUNG:
Generally, issues of 5
privilege are addressed in the context of something 6
comparable to saying we, there are X documents, but 7
we're not going to provide them because they represent 8
attorney work product, for example.
9 Without, but what you seem to be asking us 10 to do, is just say from the outset, that the question 11 may not even be asked.
And that seems, I'm not sure 12 how that balances with what the Commission has said 13 here.
14 You seem to be taking a rather, strongly 15 to one side view of how this balancing should be 16 accomplished.
Hello.
17 Hello, Mr. Fernandez?
18 MR. FERNANDEZ: Yes, Your Honor, hello.
19 JUDGE YOUNG: I think the last thing I was 20 saying was sort of asking you to respond to the 21 situation that you seem to be proposing, respond to my 22 concerns about that.
23 MR. FERNANDEZ: Well, I think that the 24 balancing here weighs in favor of protecting the 25 Staff's deliberative process and the Staff's frank NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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discussion of issues into allowing an Intervener to 2
ask whether there have been disagreements that violate 3
the whole purpose of having that privilege.
4 MS. CURRAN:
But that argument, this is 5
Diane Curran, suggests there is a general privilege 6
that just exists and anytime the Staff is 7
deliberating, the information is privileged.
8 And that, that's really not consistent 9
with our case.
Are we all on the line?
10 JUDGE YOUNG: Yes, we are.
11 MR. FERNANDEZ: Your Honor, I -
12 JUDGE YOUNG: I assume we are.
Judge 13 Baratta, Judge Elleman, you are?
14 JUDGE BARATTA: Yes.
15 JUDGE ELLEMAN: Yes, we're here.
16 JUDGE YOUNG: Mr. Repka, you are still?
17 MR. REPKA: We are.
18 JUDGE YOUNG: Okay, great, thank you.
19 MR.
FERNANDEZ:
Although I think we 20 disagree on the reading of the case, first of all we 21 haven't heard any, any articulation of what the 22 interest weighing against violating the Staff's 23 privilege are.
24 And furthermore, the privilege does exist.
25 I mean it does exist as a general principle. And when NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the Staff is deliberating and talking to each other or 2
preparing draft documents that are not final agency 3
petitions, ordinarily those, those type of documents 4
are not discoverable, because they are part of the 5
Staff's deliberative process.
6 JUDGE YOUNG: But the Commission does say 7
here, that it qualifies and that it has to be balanced 8
against the litigant's need for the information.
9 So basically, what you're saying is that 10 you are arguing that the privilege, you should be 11 allowed to invoke the privilege so as to not respond 12 to whether or not there are anyone, any persons who 13 have differing views or opinions on a given subject.
14 Am I understanding you right?
15 MR. FERNANDEZ: Well, yes, Your Honor. And 16 so far we haven't really identified how any of this 17 information would be relevant to the Intervener's 18 case.
19 They haven't articulated any interest that 20 would balance against violating the Staff's privilege.
21 JUDGE YOUNG: Well, against not allowing it 22 in this case.
Ms. Curran, do you want to respond to 23 that?
24 MS. CURRAN: Well, we don't even know if, 25 say, documents exist. So what would be talking about?
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JUDGE YOUNG: Well, let's move on beyond 2
documents. Mr. Fernandez, I think you've agreed, that 3
if there are any documents, that you will identify the 4
documents.
5 MS.
CURRAN: Or the opinion?
6 JUDGE YOUNG:
- Well, hold on.
Mr.
7 Fernandez, I think you have already agreed that if 8
there are documents, you will identify, you will 9
indicate that there are documents, but that you are 10 asserting the deliberative process privilege for any 11 other, with regard to those, correct?
12 MR. FERNANDEZ: That is correct.
13 JUDGE YOUNG: So what we're talking about 14 here, is not documents.
15 MS.
CURRAN: Right.
16 JUDGE YOUNG:
But, the possibility that 17 there might be any, any people on the Staff, any 18 person or persons on the Staff, who would have a 19 differing opinion or information in response to a 20 given Interrogatory.
21 MS.
CURRAN:
Right, and I'm sorry, I
22 misspoke, but it would, it's the same issue if no 23 dispute, if no differing opinion has been identified, 24 then we're arguing in the abstract.
25 And this is obviously something where you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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look at the individual case and figure out if there's, 2
if there's a need for the information.
3 How could we, how could we address the 4
issue, it hasn't, it hasn't even -
5 JUDGE YOUNG:
- Okay, let me suggest 6
something.
I would like, myself, to know whether 7
there is any case law that goes into more detail on 8
this deliberative process privilege in the context of 9
question about opinions of Agency Staff.
10 Any Agency Staff who might have a 11 differing view?
In other words, this type of 12 situation that we're talking about here.
So, Staff, 13 when you give your responses, could you provide that, 14 any such case law, and then if there are any Motions 15 to Compel, BREDL, would you provide case law that you 16 find?
17 MS. CURRAN: Yes.
18 MR. FERNANDEZ: Yes, Your Honor.
19 JUDGE YOUNG:
Okay, all right.
Anything 20 else -
21 MS. CURRAN: But are we, have we clarified 22 that the Staff is going to, if there are differing 23 opinions in the Staff, when it comes to answering 24 these Interrogatories, that's going to be identified 25 by the Staff? Because I'm not sure we've reached that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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point.
2 JUDGE YOUNG: Mr. Fernandez, you're arguing 3
that you should not have to say, for example, there is 4
someone on Staff who disagrees with the answer to this 5
Interrogatory, but we object to providing the name of 6
that person, or the substance of that person's 7
opinion, under the deliberative process privilege, 8
correct?
9 MR. FERNANDEZ: That's correct, Your Honor.
10 JUDGE YOUNG: Okay, if you intend to, if 11 that's what, if there are any questions that would 12 cause you to need, to assert that argument, I want you 13 to, for yourself, hold your responses in such a way 14 that you could provide them.
15 And provide any case law to support you're 16 not responding to the questions.
Am I making sense 17 here?
In other words, I'm not going to require you, 18 I don't think, well, you're saying that you shouldn't 19 have to answer at all.
Because to answer that there 20 might be someone with a differing opinion, would 21 violate, in your words, the privilege.
Right?
22 MR. FERNANDEZ: That's correct, Your Honor.
23 JUDGE YOUNG: Okay, so without requiring 24 you to do that at this point, prior to having gotten 25 further research on this and further argument on this, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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what I'm saying is that if there are any questions 2
that, unbeknownst to the rest of us, you are raising 3
that argument about, or that you would raise that 4
argument about, at some point in your responses 5
include a document providing case law on that.
6 And indicating that, although you're not 7
specifying which question it applies to, you're 8
raising that argument and providing the following 9
briefing in favor of your position.
10 That sort of keeps things open and in 11 effect results in our taking the issue under 12 advisement until we have had more briefings.
13 Then, Ms. Curran, if we rule in your 14 favor, the Staff would have to go back and would be 15 immediately able to provide the information, because 16 they would have kept it available for such provisions, 17 in the event that we rule against them.
Does that 18 make sense to everyone?
19 MS. CURRAN: Judge Young, this is Diane 20 Curran. I guess I want to make sure I understand that 21 if there is a differing opinion among the Staff, in 22 responding to our Interrogatories, then without 23 identifying the specific Interrogatory that's 24 involved, the Staff is being required by the Board to 25 invoke the privilege and to send with citations to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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case law.
Do I understand that right?
2 JUDGE YOUNG: But without regard to any 3
specific Interrogatory's response.
4 MS. CURRAN: Right.
5 JUDGE YOUNG: That's what I'm suggesting as 6
a means of sort of maintaining the status quo and 7
allowing there to be a little bit further briefing on 8
this, before we move forward.
9 We could, alternatively, take it under 10 advisement and if, in our consultations and our own 11 research, we come to a different result, we can 12 certainly provide that in a written order.
13 But that might be one possible way that, 14 unless we say something differently, we could proceed 15 and not slow down the process.
So, subject to the 16 Board deciding one way or the other, definitely, 17 that's sort of an interim approach that it seems like 18 it might be good to take, allow everyone to move 19 forward without holding this up at this point.
20 MS. CURRAN: Judge, this is Diane Curran.
21 I'd just like to request that you put that in writing 22 to the parties in an order. Just so that everyone is 23 really clear as to what's being required.
24 JUDGE YOUNG: We're going to issue an 25 order.
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MS. CURRAN: Okay.
2 JUDGE YOUNG: And we'll either say that or 3
whatever else we decide, if that's it.
If the Board 4
decides something different, that's something that we 5
might do.
6 I don't want to go off the record right 7
now, because we don't have a whole lot of time left 8
before I'm going to have go request more time if we 9
don't finish up.
10 And we still need to argue on this Motion 11 to Dismiss Contention 3.
Judge Baratta and Judge 12 Elleman, is that okay with you, to proceed in that 13 fashion and then we can talk later and change that if 14 we need to?
15 JUDGE ELLEMAN: I would appreciate the 16 opportunity for us to discuss it later, yes.
17 JUDGE BARATTA: Yes, same here.
18 JUDGE YOUNG: Yes, okay. Just as a measure 19 of trying to have everyone on the same page, 20 understanding sort of where we are. Anything else on 21 that?
22 MR. FERNANDEZ: Nothing from the Staff, 23 Your Honor.
24 JUDGE YOUNG: Judge Elleman and Judge 25 Baratta, do you have any questions that you want to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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ask on that one?
2 JUDGE BARATTA: This is Judge Baratta, I 3
have none at this time.
4 JUDGE YOUNG: Judge Elleman?
5 JUDGE ELLEMAN:
I think I'm going to 6
reserve my questions for the discussion among the 7
three of us.
Thank you.
8 JUDGE YOUNG: Okay. Anything, and I heard 9
no further argument from BREDL or the Staff.
- Duke, 10 have you had any thoughts that you want to share with 11 us on any of the Staff objections?
12 MR. REPKA: No.
13 JUDGE YOUNG: Okay. Any, and I think we've 14 covered all of them, right?
15 MS. CURRAN: I think so.
16 JUDGE YOUNG: Okay. Now, then moving on to 17 the Motion to Dismiss Contention 3.
I have a few 18 questions.
I'm sorry, I lent out my documents and 19 they came back in a different order. So I'm having to 20 find, trying to find BREDL.
21 Excuse me for a moment. I'm going to need 22 to see if, Susan Lynn, are you on the line?
23 (No response.)
24 JUDGE YOUNG: I'm going to have to get 25 BREDL's response back from her.
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right back.
2 (Long silence.)
3 JUDGE YOUNG:
I'm going to have to 4
apologize.
I have not been able to locate this, so 5
I'm going to have to print out another copy.
Can you 6
give me quickly the day that you e-mailed that?
7 MS. CURRAN: The response?
8 JUDGE YOUNG: Right, to -
9 MR. FERNANDEZ: March 25th, Your Honor.
10 JUDGE YOUNG: March 25th?
Okay.
All 11 right, let's see. All right, can someone, we had put 12 aside one objection earlier.
13 MR.
REPKA:
It's Duke's objection to 14 Request Number 3-1.
15 JUDGE YOUNG: Right.
Okay.
I have a 16 couple of questions. Judge Elleman and Judge Baratta, 17 do you have any?
Do you want to go ahead or do you 18 want me to go ahead with mine?
19 I thought it might be helpful to let them 20 know some of our concerns without cutting off the 21 parties' argument.
22 JUDGE ELLEMAN: Judge Young, I thought you 23 were preparing to discuss Contention 3 Dismissal.
24 JUDGE YOUNG: Right.
25 JUDGE ELLEMAN: But that's not correct, is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that right?
2 JUDGE YOUNG: No, that is correct.
3 JUDGE ELLEMAN: That is correct?
4 JUDGE YOUNG: Right. And I had a couple of 5
questions, just to sort of ask the parties to focus on 6
in their argument. And I wondered if you had any that 7
you wanted to ask before we heard from them on that.
8 JUDGE ELLEMAN: I do not. This is Thomas 9
Elleman.
10 JUDGE BARATTA: I do not.
This is Judge 11 Baratta.
12 JUDGE YOUNG: Okay, well, here are two 13 questions I have.
One goes to Duke and one goes to 14 BREDL.
With regard to BREDL, I guess my question to 15 you is why didn't you file an amended Contention 3, 16 raising some of the issues that you raised in your 17 response to the Motion to Dismiss Contention 3?
18 That's one that I'd like for you to 19 address.
And then for Duke, I guess the question I 20 have, the main question is you, in your argument that 21 BREDL should not be able to get into the batch use 22 issue.
23 Let me back up.
Your argument that the 24 Catawba reactor is similar to, and designed for the 25 European reactors and your argument is based on the 15 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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by 15 lattice, as opposed to the 17 by 17.
2 Sort of substantive arguments on the 3
relative merits of the two plants as a place to use 4
the fuel.
But another argument that you offered is 5
that a reason, and I'm referring not only to your 6
motion but also to your RAI responses, obviously.
7 Another response is that the reason Oconee 8
would not be a good place to do the retest assemblies, 9
is because Oconee is not the place that has been 10 proposed or selected for the use of that quantity.
11 And in a sense, that gets into sort of a 12 circular kind of almost catch-22 kind of situation.
13 Because once the process gets to the stage, if it 14 does, of batch quantity use, the proposed license 15 amendment to allow batch quantity use, the response on 16 alternatives could easily be something like that the 17 lead testing was done in Catawba, for example, and 18 therefore it makes no sense to do the batch use in a 19 different plant, a different type of plant.
20 And that's really the concern that I'd 21 like to ask you to address.
I just found it, the 22 response.
It was re-stapled onto the back of this.
23 Anyway, I think the two questions are 24 clear.
If not, say so, and then we can move forward 25 to hearing from Duke on the motion and then BREDL on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the response.
2 MS. CURRAN: All right, shall I go first?
3 JUDGE YOUNG: If you want to go first. Mr.
4 Repka, do you have any preference?
5 MR. REPKA: No.
6 JUDGE YOUNG: Okay, go ahead, Ms. Curran.
7 MS. CURRAN: It's very simple. The reason 8
we didn't amend the Contention was because we had, 9
there was nothing that we had to say in addition to 10 what we'd already said.
11 JUDGE YOUNG: Well, what about what you 12 said in your opposition to the Motion to Dismiss 13 Contention 3?
14 MS. CURRAN: Well, that doesn't change the 15 Contention.
The Contention is still that Oconee 16 hasn't been properly considered.
And the RAI didn't 17 properly consider it.
So, what would we say?
18 JUDGE YOUNG: Well, let me -
19 MS. CURRAN: The RAI didn't consider this 20 is a viable alternative for use of MOX fuel.
21 JUDGE YOUNG: Here's the argument that I 22 want you to address.
The Commission has, in its case 23 law, I believe it was in the Duke case, the Duke's 24 license renewal case, and there may be others.
25 It talked about the contention of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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omissions concept. And when there is a contention of 2
omission, it indicated that, something to the effect 3
of that parties, an Applicant can provide something 4
that would render moot a contention of omission, by 5
providing something.
Whatever that something is.
6 And then if there is some assertion that 7
the something that has been provided is inadequate, 8
that that should be argued, that should be provided in 9
an amended contention.
10 And the argument that I'm, I'm 11 understanding Duke to be making, is to that affect.
12 That's the original contention on alternatives was a 13 contention of omission.
And, on Page 4 of Duke's 14 motion.
15 MS. CURRAN: Okay.
16 JUDGE YOUNG: And where the contention 17 alleges the omission, if information is later 18 supplied, then that moves us to the stage of having an 19 amended contention.
20 And the context in which I would like you 21 to address it, is the idea of a brief discussion, and 22 that you would challenge the adequacy of that 23 discussion in an amended contention.
24 MS. CURRAN: Okay, I understand what you're 25 asking.
If you go back to Contention 5, it says the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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environmental report is deficient because it fails to 2
consider alternative nuclear power plants for testing 3
and batch MOX fuel use, other than Catawba and 4
McGuire.
5 And that's still true.
There's no where 6
that Duke has considered alternative nuclear power 7
plants for testing and batch MOX fuel use.
Now, it 8
maybe that this -
9 JUDGE YOUNG: Okay, okay.
10 MS. CURRAN:
RAI response considers an 11 alternative place for testing, but that's not what 12 it's about. That's not what the contention is about.
13 JUDGE YOUNG: Okay.
So let -
14 MS. CURRAN: So we're content to rest on -
15 JUDGE YOUNG:
me see if I dan, let me 16 see if I can understand you now?
17 MS. CURRAN: Okay.
18 JUDGE YOUNG: I think you've clarified 19 something.
20 What you're saying is that the, Duke's motion may be, 21 I don't know if you're saying this, but Duke's motion 22 may be moot with regard to testing, but it doesn't 23 provide any information on batch use, which was part 24 of the original contention.
25 Now, I'm just looked to see what, well, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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but you see, the Contention 3, that we admitted, 2
doesn't refer to batch use.
3 MS. CURRAN: See, the way I look at this is 4
testing and batch use kind of go together.
That, and 5
the way the Board admitted the contention, they used 6
the word testing, but the background of that is that 7
these things go together.
8 That if you're looking at alternatives for 9
testing, they have to be alternatives for testing and 10 batch use, otherwise it doesn't make any sense.
11 Otherwise, the alternative is always going 12 to be the same plant where you're going to use it.
13 JUDGE YOUNG: I understand the argument 14 you're making, and that's what I was asking Duke to 15 address, and I'll expect to hear from them on.
16 I guess, still my question to you, looking 17 back at, I'll look at your contention and I'll look at 18 the one we admitted. It seems like it would have been 19 a relatively easy thing to do, to file an amended 20 contention saying the same thing you're saying, in 21 this motion to dismiss.
22 That it's inadequate because it does not 23 address batch use and that they're interrelated and 24 so forth like you're arguing now.
And you didn't do 25 that.
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So, I'm wondering, you know, that would 2
put you in a very different procedural posture with 3
regard to the Commission's Contention of Omission new 4
doctrine.
5 MS.
CURRAN: Well, I think I've said 6
everything I have to say.
I don't think that it's 7
necessary to amend a contention if what you say in the 8
contention hasn't changed. And it hasn't changed.
9 JUDGE YOUNG: Well, but, approach it from 10 this standpoint. Approach it from the standpoint of 11 what was admitted was the reframed contention.
And 12 it did not, it did not refer to batch use, it referred 13 to the lead test assembly only.
14 MS. CURRAN: But, to make any sense, there 15 has to be some implicit reference to batch use, that's 16 the way I understood the contention that there, that 17 while the contention may, and I'm just looking for -
18 JUDGE YOUNG: Was there any particular 19 reason why you refrained from doing an amended 20 contention?
Wouldn't it have covered your bases 21 better if you had done both a response and also an 22 amended contention?
23 MS. CURRAN: No.
Because when one, when 24 one does an amended contention, there's an implicit 25 concession that there's something wrong with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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contention that you've already got.
2 And I didn't have anything to question 3
about the contention that we'd already had. And when 4
one does -
5 JUDGE YOUNG: When you say, when you're 6
talking, excuse me, excuse me, excuse me.
7 MS. CURRAN: Okay.
8 JUDGE YOUNG: When you're talking about the 9
contention that you already had, what are you talking 10 about? Your contention or the admitted contention?
11 MS. CURRAN: Both.
12 JUDGE YOUNG:
- Well, but the admitted 13 contention is limited to the lead test assemblies.
14 MS. CURRAN: Right.
But, there's got to 15 be, I think, that, my understanding of the contention 16 was that, the question right now, okay, the question 17 before the Board right now is should this permit be 18 granted to use lead test assemblies at Catawba?
19 And there's a NEPA question that in order 20 to, and so the environmental report looks at should we 21 use LTAs at Catawba?
But related to that, is the 22 question of whether Catawba is the right place to do 23 all of the MOX fuel use?
24 And that's, if the Board didn't mean to 25 admit the contention for that purpose, amending it, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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don't have any grounds to come in and seek an 2
amendment to say, to say things have changed.
3 That now you should be considering batch 4
use.
We said that at the beginning.
You can't, if 5
the Board didn't mean to look at batch use, in this 6
contention, then, then maybe what we need is a ruling 7
from the Board clarifying that and then we would 8
appeal that at the end of the case.
If the Board 9
meant to, I think anything about this RAI changed that 10 problem.
11 If that's a problem for us, nothing about 12 the RAI changed that. That's a different problem than 13 whether a contention ought to be amended.
14 JUDGE BARATTA: This is Judge Baratta. May 15 I interject something here, Ms. Curran?
16 MS. CURRAN: Yes, sure, please.
17 JUDGE BARATTA: Judge Young?
18 JUDGE YOUNG: Oh, sure, go ahead.
19 JUDGE BARATTA:
Does the admitted 20 contention, Contention 3, mention batch use?
21 MS. CURRAN: No, it doesn't.
22 JUDGE BARATTA: Okay, that's something I 23 want to, make sure that we're all in agreement.
24 MS. CURRAN: And isn't it the intention of 25 the Board that we're only allowed to look at testing, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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alternatives for testing, and that batch uses are 2
relevant, then we really have no interest in pursuing 3
the contention.
4 And we can all stipulate to that and we'll 5
file an appeal at the end of the case.
6 JUDGE YOUNG: I think what I'm trying to 7
get you to look, to respond to, is really something 8
much simpler.
Your argument that you can't consider 9
one without considering the other, in effect, makes 10 sense, as indicated in my question that I want Duke to 11 answer.
The question is the Commission has this 12 Doctrine of Contention of Omission, and what I'm 13 trying to get you to respond to is the procedural 14 aspect of a Contention of Omission.
15 And to the idea that, more or less, 16 anything, even if minimal, provided to respond or in 17 an RAI response, that addresses a Contention of 18 Omission, renders the Contention of Omission moot 19 because there is now something there which is to be 20 challenged, which is to challenged in an amended 21 contention, challenging the adequacy of it.
22 MS. CURRAN: Okay.
23 JUDGE YOUNG: In which, in other words, you 24 could have filed an amended contention saying it's 25 inadequate because it doesn't address batch use and it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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doesn't make sense to consider one without the other.
2 MS. CURRAN: Okay.
3 JUDGE YOUNG: It's a purely procedural 4
question.
5 MS.
CURRAN: I understand what you're 6
saying, Judge Young, and let me just say this, okay?
7 When you just said, you just used the phrase is there 8
something there.
9 It continues to be our position that 10 there's nothing there, in the sense that there is no 11 discussion of batch fuel use at Oconee.
- Nothing, 12 there's nothing there.
13 They talk about testing, well that's 14 really not, testing is kind of like the tail on the 15 dog.
The dog is batch use and testing is basically 16 irrelevant.
We could have filed a contention, I 17 suppose, that said this RAI response is irrelevant, 18 the contention remains the same.
They haven't 19 adjusted it.
20 JUDGE YOUNG:
- Well, let me ask you 21 something.
The argument that Duke makes, or the 22 response to the RAI in which they distinguish, I think 23 they refer to it in their Motion to Dismiss.
24 They talk about the feasibility of Oconee 25 and the fact that the assembly lattice or type of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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assembly and the type of plant that, where MOX has 2
been used in Europe, is similar to the Catawba plant 3
and fuel assemblies there, and not to Oconee.
And 4
therefore, it's not feasible to use Oconee. And also, 5
I think they argue that if something is not feasible, 6
then an Applicant should not be required to get into 7
comparable safety or safety comparisons.
8 So, that is something that Duke has 9
provided that is more than nothing.
It's something, 10 and it makes sense. The issue, as it relates to batch 11 use, has some issues with it as we've talked about.
12 You know, I don't know whether it, it 13 would have put you in a much better spot had you 14 raised this same kinds of arguments in an amended 15 contention as you raise here.
Or had you done both, 16 for example.
17 MS. CURRAN: Well, I read the, I read the 18 response and it seemed to me that what Duke was 19 answering, and actually the question is quite 20 specific. Please provide an assessment that evaluates 21 McGuire and also Oconee as alternative facilities for 22 the irradiation of the MOX lead test assembly.
23 And then the whole answer basically 24 presumes that Catawba is going to be the plant where 25 the assemblies are used in batch form.
That was how NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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I read this response.
If the Board believes I've 2
read it wrong, then I will accept the Board's ruling.
3 JUDGE YOUNG: Well, look at the response to 4
Question 1 on Page 1 of the RAI response.
The first 5
paragraph that continues on to the top of Page 2, and 6
second paragraph on Page 2, both deal with the 7
feasibility issue.
8 MS. CURRAN: Of using MOX fuel lead test 9
assemblies. It uses that right in the first sentence.
10 JUDGE YOUNG: But, I mean the principle 11 applies to both, don't you think?
12 MS. CURRAN: Well, I don't think that, I 13 don't think I need to read things into this RAI 14 response that aren't being said. This RAI response is 15 explicitly addressed to the use of MOX fuel lead 16 assemblies.
17 And it doesn't seem to be, to me to be 18 BREDL's responsibility to infer information from this 19 that isn't here, it's not presented.
20 MR. FERNANDEZ: Your Honor, this is Antonio 21 Fernandez from the Staff, just a brief question.
We 22 have some members of the Staff with us that we want to 23 excuse.
Are we just going to continue talking about 24 Contention 3, for the rest of the teleconference?
25 JUDGE YOUNG: Are there any other issues NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that anyone thinks we should talk about? I think this 2
is the last one we were just going to finish up with 3
this.
4 And the, that, the question, let's see, 5
Duke's objection to one of the questions.
I don't 6
have a big enough desk here to keep everything in 7
front of me.
To Request Number 3-1, any and all 8
documents evaluating the suitability of the Oconee 9
Nuclear Power Plant for batch use of plutonium MOX 10 fuel.
11 Unless there's anything that they want to 12 say on that, or that you want them to say on that, I 13 don't see any problem.
14 (No response.)
15 JUDGE YOUNG: Okay, Ms. Curran, anything 16 else on this one?
17 MS. CURRAN: Yes, I just, you know, to go 18 back to your example, under response to Question 1, in 19 the first paragraph there that goes from Page 1 onto 20 Page 2. The last sentence in that paragraph it says 21 McGuire and Catawba are the facilities that have been 22 proposed to and accepted by the U.S. Department of 23 Energy for the larger scale irradiation of the MOX 24 fuel.
25 So that's, now that's basically saying NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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we've already picked Catawba and McGuire.
All this 2
other information is just to tell you why it doesn't 3
make sense to test the assemblies at Oconee.
4 JUDGE YOUNG: But take that -
5 MS. CURRAN: And that's the same thing -
6 JUDGE YOUNG:
Take that part out and 7
address the merits of the feasibility argument in 8
terms of the similarity to the European reactors and 9
the fuel design lattice.
I mean that's a different 10 kind of argument.
11 And the argument as to the, which ones are 12 proposed for batch use, is the question that I have 13 for Duke.
So, I mean, obviously I see the issue that 14 you're raising.
15 MS. CURRAN: Okay, I'm going to the next 16 paragraph, the first full paragraph on two.
It says 17 McGuire and Catawba share the same fuel assembly 18 design.
By contrast, Oconee has a different fuel 19 assembly design.
20 Okay, so all they're saying is if we're 21 going to use the fuel in batch form, in batch 22 quantities at McGuire and Catawba, why should we test 23 it in a reactor with different characteristics?
24 That's what I read that paragraph to say.
25 JUDGE YOUNG: Well, let's assume that what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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the argument is, let's assume, let's take it as being 2
the following. All the MOX fuel that's been used in 3
Europe, has been used in a certain type of plant and 4
has been used in the 17 by 17 fuel assembly.
5 MS.
CURRAN: Judge Young, where does it, I 6
don't see anywhere in this letter that it says that.
7 Does that say that somewhere in this letter?
8 JUDGE YOUNG: I may be reading that into it 9
based on earlier discussions.
If I'm wrong, then, I 10 maybe wrong.
11 MR. NESBIT: Your Honor, this is Steve 12 Nesbit with Duke.
13 JUDGE YOUNG: Yes.
14 MR. NESBIT: That is not what we said and 15 it is not true that all fuel, MOX fuel has been used 16 in Europe has been used with 17 by 17 fuel.
17 JUDGE YOUNG:
- Okay, thank you for 18 clarifying that.
Okay, I stand corrected.
Okay, so 19 it's the, all right, go ahead, then, I stand corrected 20 on that.
Go ahead with your argument.
21 MS.
CURRAN: Well, again, the rest of this 22 Section 1, simply addresses why Oconee isn't a 23 practical alternative for a MOX fuel lead assembly 24 program.
And that, to us, that's neither here nor 25 there.
It doesn't answer the consent of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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contention at all.
2 So, we're prepared to stand on the grounds 3
where we are.
4 JUDGE YOUNG: So, basically what you're 5
saying is that everything except the reference to 6
McGuire and Catawba being very similar in design to 7
the European reactor?
8 MS. CURRAN: Wait, that, I still don't know 9
where it says that.
10 JUDGE YOUNG: At the bottom of Page 1, 11 going on to the top of Page 2.
12 MS. CURRAN: Oh, okay.
13 JUDGE YOUNG: What you're saying is apart 14 from that, the rest of the responses are making a 15 comparison between Catawba and Oconee with regard to 16 the fuel assembly lattices and so forth.
17 MS. CURRAN: And actually that sentence 18 doesn't say anything about Oconee, you know.
It just 19 says we think that McGuire and Catawba are a great 20 choice for batch fuel.
It doesn't make a comparison 21 to Oconee.
22 So, you know, it seems to me that we're 23 entitled to rely on what the document says and not 24 read things into it.
25 JUDGE YOUNG: Okay, I understand what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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you're saying now, I think.
Judge Baratta, Judge 2
Elleman, do you have any questions for Ms. Curran?
3 JUDGE ELLEMAN: I do not, this is Judge 4
Elleman.
5 JUDGE BARATTA: I do not, this is Judge 6
Baratta.
7 JUDGE YOUNG: Ms. Curran, do you have 8
anything else?
9 MS. CURRAN: No, I don't.
10 JUDGE YOUNG: Okay, Mr. Repka?
11 MR. REPKA: Yes, Your Honor.
I want to 12 make three points, and the last one will address your 13 question about the relative order of addressing the 14 issues.
15 First, I think that, the first point is I 16 think it's pretty clear from the discussion and the 17 response to the Motion to Dismiss since today, that 18 Ms. Curran's only point is with respect to the use of 19 Oconee for batch MOX use.
20 And with respect to that point, I just 21 want to state our agreement and I think everybody 22 recognizes that the admitted contention as it states 23 in Contention 3, is limited to the issue of Oconee as 24 an alternative for MOX lead assembly.
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use alternative, is beyond the scope of the admitted 2
contention.
3 JUDGE YOUNG: But getting to the question 4
that I asked you, and I know you're going to get to 5
it, but the issue would not be what the contention 6
said, but what would be relevant to it and what should 7
be considered in regard to it.
8 So, in other words, even though all that's 9
before us now is whether, is whether Catawba or Oconee 10 are more suited for the lead test assembly.
11 I think what BREDL is arguing is that you 12 can't, you can't separate out the batch use from your 13 analysis of the question of which is better for the 14 lead test assemblies by just referring to, by just 15 saying that the reason not to use Oconee for the lead 16 test assembly is because Oconee is not the one that's 17 going to be used for batch assemblies.
18 Because then that really does sort of 19 foreclose and consideration of the issue of 20 alternative, of the overall, of either part of the 21 picture.
22 MR. REPKA: I think the answer to that 23 question is, with respect to the lead assembly 24 application, you have to look at the scope of 25 alternatives as required by NEPA for this particular NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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application.
2 And that's what we addressed in our Motion 3
to Dismiss, that the NEPA case law requires the 4
alternatives be defined by the purpose of the proposal 5
at issue, and the feasibility of other alternatives to 6
achieve that purpose.
7 And that's precisely what's been 8
addressed. Now the concern, I think, that you, Judge 9
Young, have raised in your argument that that's 10 circular, I don't think is correct.
11 I think in what BREDL is doing here, 12 again, is what it's done in other NEPA contentions 13 which is to try to put all of the issues of the MOX 14 fuel program into the context of this one narrow 15 approval.
16 JUDGE YOUNG: What I'm trying, what I'm 17 trying to do, and I want you to understand what I'm 18 saying here.
What I'm doing here is I'm taking 19 BREDL's opposition and the argument that they make, 20 and I'm looking back at your RAI responses.
21 And I'm realizing, well, BREDL has a point 22 here.
If you don't, if you, if you, if you use the 23 argument that it's already been decided where the 24 batch use is going to be, and therefore it's not 25 appropriate to do the lead testing assembly anywhere NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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- else, then there would be no point at which 2
alternatives would be, once you got to the batch use, 3
the reason for not, at least one reason for not 4
considering the Oconee alternative would be, well 5
that's not where the lead testing was done.
6 And so, I think what I'm trying to point 7
out to you is to that extent I think BREDL's argument 8
about the relevance of batch use at this stage, with 9
regard to your RAI response, has some coherence.
10 MR. REPKA: Well, I disagree with that 11 extremely, strongly.
And here's why.
The issue of, 12 the argument, the specific argument that it will be 13 foreclosed by the argument that the lead assemblies 14 were there, that's entirely speculative.
15 We don't know what the arguments would be 16 in an alternative -
17 JUDGE YOUNG: But can you imagine not 18 making that argument?
19 MR. REPKA: Well, let me back up again and 20 say that one, in many respects the argument is too 21 late, in other respects the argument is premature.
22 The premise here is that there has been on 23 environmental work done to date with respect to the 24 MOX Program. And, of course, the Department of Energy 25 has done a tremendous amount of work, including NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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alternatives, that led to the contract selection that 2
involves McGuire and Catawba as the mission reactors.
3 So the Department of Energy has made that 4
selection and has done the environmental work to 5
support that, including those alternatives.
6 JUDGE YOUNG: Well, what does that do -
7 MR. REPKA: So now we -
8 JUDGE YOUNG: Hold on.
What does that do 9
to do the NRC's role in doing its environmental 10 assessment or impact statement in terms of 11 alternatives?
And at this stage, Oconee, which the 12 Staff agreed with, Oconee is the valid alternative to 13 consider.
14 And so, you know, if it gets to the batch 15 stage, a licensed amendment application regarding 16 batch, proposed batch use, the NRC would likewise have 17 a role in looking at the environmental impact and 18 doing an environmental assessment or impact statement.
19 And part of that involves looking at 20 alternatives.
So, whatever has happened up to this 21 point, there is that role of the NRC and it does sound 22 like the practical affect of what you're arguing. And 23 I'd really like for you to sort of zero in on that and 24 actually address it.
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there would be no way to actually look at the 2
alternative of Oconee if you're making the argument at 3
this point that you can only look at the lead test 4
assemblies and that the batch use isn't even relevant 5
to that consideration.
6 MR.
REPKA: What the NRC will do at the 7
batch stage is exactly the same as what they'll do at 8
this stage, the lead assembly stage.
9 They'll look at the scope of alternatives, 10 consistent with the case law.
Which means the scope 11 of alternatives that would serve the purpose of the 12 application at that time.
And number two, are 13 reasonable, are feasible or reasonably achievable.
14 So the NRC will look in the batch phase at 15 the lay of the land and the work that has been done.
16 And if in fact the Department of Energy has already 17 limited the universe, that will be a fact that the NRC 18 not only will consider, they must consider -
19 JUDGE YOUNG: But you're saying that that's 20 already happened. And so in effect what you're saying 21 is that the consideration of alternatives is pretty 22 much just a formality.
That it's a foregone 23 conclusion.
24 MR. REPKA:
Well, in many cases, in all 25 cases addressing the scope of alternatives, including NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the cases we've cited in our brief, the existence of 2
other approvals and other actions are very, and other 3
agencies that are involved, would be very relevant 4
considerations to defining what's feasible, what's a 5
reasonable alternative.
6 So the fact that the Department of Energy 7
has made a selection, will be something that's very 8
relevant to the scope of alternatives.
9 JUDGE YOUNG: But it's determinative under 10 your analysis, pretty much, isn't it?
11 MR. REPKA: Well, and if it is or is not is 12 irrelevant.
If it is determinative then so be it.
13 That would be completely consistent with the NEPA case 14 law.
15 But I think that in many respects we're 16 getting out in front of, you know, we're here talking 17 about a lead assembly application, and a lead assembly 18 application is simply to support a prospective batch 19 use at two very specific plants.
20 If it turns out that when -
21 JUDGE YOUNG: McGuire and Catawba you mean.
22 MR. REPKA: Yes, the batch or the lead 23 assemblies would support a batch application at two 24 specific plants, McGuire or Catawba.
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review, that those plants are not suitable, for any 2
particular reason still to be determined, then the 3
Department of Energy is back to square one.
4 So that doesn't, that doesn't negate the 5
fact of the review down the road, nor does it mean 6
that the review at this stage has to be expanded. The 7
review at this stage needs to meet the NEPA limits of 8
what an alternative analysis are at this stage.
9 And quite frankly, there are many, many 10 NEPA evaluations where the scope of alternatives is 11 very narrow. It might include the proposed action and 12 no action alternative as the only alternatives.
13 In this case, for the lead assembly at 14 least, the NRC Staff has asked the question about 15 Oconee, and it's been answered in the context of the 16 lead assembly.
That is not an atypical NEPA 17 evaluation.
18 So we don't, under NEPA, ignore the real 19 world, and the real world includes the fact that the 20 Department of Energy has done environmental work and 21 made a selection.
22 JUDGE BARATTA: I have a question, if I 23 may?
24 JUDGE YOUNG: Oh, go ahead, please, go 25 ahead.
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JUDGE BARATTA: Are you in the midst, do 2
you want to continue with your, because I can hold it 3
to the end if you're not.
4 JUDGE YOUNG: Why don't you go ahead and 5
ask it.
I think we need to go ahead and get the 6
questions out.
Sure.
7 JUDGE BARATTA: Okay, has, have lead test 8
assemblies, MOX lead test assemblies, ever been tested 9
in a U.S. reactor before?
10 MR. REPKA: Mr. Nesbit can probably help me 11 with that.
There was an approval granted for 12 assemblies at Ginna. And whether or not it was ever 13 actually used, I can't answer off the top of my head.
14 MR. NESBIT: This is Steve Nesbit. There's 15 been five MOX lead test assembly programs in United 16 States reactors:
Ginna, San Onofre, Quad Cities, 17 Dresden and, now the fifth one is escaping me.
18 JUDGE BARATTA: Oyster Creek, could it be.
19 MR. NESBIT: It wasn't Oyster Creek.
20 JUDGE BARATTA: Okay, were the lead test 21 assemblies actually installed in any of those?
22 MR. NESBIT: Yes, at all of them. Big Rock 23 Point was the fifth, that's right.
24 JUDGE BARATTA: Okay. And were, was there 25 any subsequent batch use at any of those?
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MR. NESBIT: Not in the United States.
I 2
will amend that.
Big Rock Point actually was an 3
interesting program in that they loaded quite a few 4
MOX assemblies, but it's kind of off point because 5
it's a very small reactor and it's a BWR.
6 JUDGE BARATTA: Right, okay.
All right, 7
that's all I have, Your Honor, thank you.
8 MR. REPKA: Actually, if I could respond to 9
that too, because I think that line of questioning is 10 helpful.
11 RECORDED VOICE:
Your conference is 12 scheduled to end in 15 minutes.
13 JUDGE YOUNG: Hold on one second, I'm going 14 to go see if I can extend this just a little bit 15 longer, so we can finish up on this.
I want to hear 16 from the Staff, too, on it, after Duke finishes.
17 It shouldn't take much more than 15 18 minutes, but just to make sure, hold on.
19 (Long silence.)
20 JUDGE YOUNG: Okay, sorry, go ahead.
21 MR. REPKA: Yes, I just wanted to follow up 22 on Judge Baratta's point because it jogs my 23 recollection that we made a point about the earlier 24 applications in the context previously in this case of 25 dealing with NEPA's segmentation arguments, which is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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a little bit of what I believe, I theme I hear 2
underlying Judge Young's questions. And I think that 3
4 JUDGE YOUNG: Well no, don't, don't assume 5
anything more than what I'm saying in terms of the 6
impact of your argument and BREDL.
7 I can see how you would, I can see how you 8
would possible go there, but I'm not intending that 9
you go there.
10 MR. REPKA: My point would be that the 11 factual history just highlights the speculative nature 12 of jumping ahead to the batch complication at this 13 time.
14 And I
think that's something the 15 Commission has highlighted in its prior rulings on any 16 possible linkage between lead assemblies and batch.
17 JUDGE YOUNG:
Would it be possible to, 18 would it be possible to do a batch assembly in Oconee, 19 just for sake of argument that the Oconee alternatives 20 were raised at the level of the batch use?
21 Would it be possible to do batch use at 22 Oconee based on the lead test assemblies at Catawba?
23 24 MR. REPKA: I doubt that that would ever be 25 proposed, for many reasons, but I just cannot see that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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as being a realistic hypothetical.
2 MR. NESBIT: Dave, this is Mr. Nesbit.
I 3
believe we addressed that in the RAI response, if I'm 4
not mistaken.
I don't have it in front of me.
5 JUDGE BARATTA: Okay, does anybody, could 6
they summarize it?
This is Judge Baratta.
7 JUDGE YOUNG: Let's see.
8 MR. REPKA: Reading from the RAI response 9
on Page 2, it says the differences between McGuire, 10 Catawba and Oconee, while not extreme, are great 11 enough that MOX fuel lead assembly used at Oconee 12 would not be considered prototypical.
13 For those same reasons, Duke considers it 14 likely that the NRC would not consider a MOX fuel lead 15 assembly program at Oconee to be sufficient for NRC to 16 authorize use at McGuire and Catawba.
17 I think that's probably what -
18 MR. NESBIT: That's what I was talking 19
- about, Dave.
It wasn't exactly, you know, in 20 response.
21 JUDGE YOUNG:
I was thinking of the 22 opposite of that. Whether, if the lead test assembly 23 proposal is approved for Catawba and you were 24 subsequently to request a license amendment to allow 25 you to do batch use at Catawba, and the issue of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Oconee alternative were raised at that point, would 2
the same argument or the same principle of using the 3
Catawba as a prototype for batch use in Oconee would 4
not be appropriate.
5 MR. NESBIT: This is Mr. Nesbit.
I think 6
that the, that we would not, we would expect to do a 7
lead test assembly program at Oconee before we 8
deployed the fuel there, absent any experience with 9
batch use elsewhere in the United States.
10 JUDGE YOUNG: I guess that gets, Mr. Repka, 11 that gets to the sort of issue of the catch-22 12 situation that I was at, trying to get you to address.
13 MR. REPKA: No, I think that actually takes 14 you out of any potential for that, because the idea is 15 if you were to do batch use at Oconee, in your 16 hypothetical, DOE and Duke would be back at square one 17 with trying to get a lead assembly application 18 approved for Oconee.
19 JUDGE YOUNG:
But if there were an 20 application to do batch use at Catawba, one of the 21 reasons for not considering Oconee as an alternative, 22 would be that there had not been any lead testing 23 there.
24 MR. REPKA: Well, that could be one reason, 25 but there would be many other reasons as well.
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JUDGE YOUNG: Right, but that's the reason 2
that I would -
3 MR. REPKA: All of which would just add up 4
to be entirely consistent with NEPA that you would 5
only look at that stage at feasible alternatives.
6 JUDGE YOUNG: Are you, are you saying that 7
once, if this program gets to the stage of you're 8
submitting an application for batch use, that you 9
would not object to there being a consideration of 10 Oconee as an alternative that would not be foreclosed 11 by the fact that the lead test assembly, that the lead 12 testing had been done at Catawba?
13 MR. REPKA: I think the alternative of 14 Oconee could be looked at, at that time, in a way 15 similar to the way it's looked at here.
Which is a 16 brief discussion to determine whether it would serve 17 the objectives of the application and whether it would 18 be a feasible alternative consistent with NEPA case 19 law.
20 JUDGE YOUNG: Apart from the fact that the 21 lead testing had been done at Catawba?
22 MR. REPKA: Yes, I don't want to say that 23 wouldn't be a reason, but I would be, but there would 24 be many other reasons as well, I'm quite sure.
25 JUDGE YOUNG: Okay, anything further from NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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you on that one? I think you've answered some of our 2
questions.
Did you have anything further you wanted 3
to add to your argument?
4 MR. REPKA: No.
5 JUDGE YOUNG: I'd like to hear from Mr.
6 Fernandez. Do you have anything that, in our argument 7
on the contention, you indicated that you agreed that 8
Oconee was an appropriate alternative to consider.
9 And that was part of the basis for 10 admitting this contention.
What's your, what's the 11 Staff's view on these issues that we've been 12 discussing here, without having to repeat them all?
13 MR. FERNANDEZ: The Staff's view is that 14 Duke has met the Staff's needs so that it could 15 prepare an adequate environmental document.
16 The deficiency or missing piece of 17 information has been provided to the Staff.
Any 18 alleged deficiency in their ER, given what's under 19 contention, has been cured by what has been submitted.
20 21 And, as Duke articulated in their motion, 22 we believe that the contention was one of the 23 omissions.
The omission has been cured.
No 24 subsequent amended contention has been filed.
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same.
Additionally, we would like to add that with 2
regard to the questioning about what the NRC's 3
discretion would be in reviewing the Department of 4
Energy's selection of Catawba and/or McGuire reactors 5
to irradiate batch quantities of MOX fuel, although as 6
Mr.
Repka
- stated, we would take that into 7
consideration.
8 Under NEPA the NRC is required to consider 9
all reasonable alternatives to the proposal, even if 10 those alternatives are not within its jurisdiction.
11 So, although we, our identification of 12 alternatives will be guided by the purpose and need as 13 identified by the Applicant, we do have an independent 14 duty, under the statute, to identify all reasonable 15 alternatives.
16 Whether those meet up with what the 17 Applicant's have identified or what the DOE has 18 identified, that's not an issue. So that's in forming 19 our decision, but it's not determinative of the scope 20 of the Agency's review.
21 JUDGE YOUNG:
- Okay, and this was my 22 understanding.
I guess on the issue that BREDL has 23 raised about the relevance of the batch use or the 24 assumption of batch use only being carried out at 25 Catawba and the possibility of, the practical NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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possibility of considering Oconee as an alternative 2
for batch use, at that stage, if that stage is 3
reached.
4 Do you, how would you view the argument 5
that Oconee is not a good alternative for batch use 6
because the lead testing was done at Catawba, which is 7
sort of the impact of what BREDL is arguing here and 8
sort of the little circle that gets created there?
9 MR. FERNANDEZ: Well, Your Honor, the fact 10 of the matter is I think this circle has been created 11 because BREDL Counsel is not fessing up to the 12 admitted contention merely -
13 JUDGE YOUNG: Well, what I'm trying to get 14 you to address is the issue of if there is, down the 15 line, a licensed amendment application to approve 16 batch use at Catawba, and there is a contention 17 submitted that says the application doesn't consider 18 alternatives and Oconee should be considered as an 19 alternative.
20 And a response to that is Oconee is not 21 appropriate because no lead testing was done at Oconee 22 and the lead testing was done at a different kind of 23 plant, does that foreclose consideration of Oconee as 24 a practical matter as an alternative?
25 MR. FERNANDEZ:
At that stage, at the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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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 batch, at the batch stage, Your Honor?
JUDGE YOUNG: Yes.
MR. FERNANDEZ: Well, I, we don't have enough information to answer that question. We would have to look at what the purpose and need of the action is at the time.
JUDGE YOUNG: I'm asking you to consider that hypothetical, though.
MR. FERNANDEZ: But, I don't have enough information.
I mean I would have to know what the purpose and need is for the proposal in order to identify what the reasonable alternatives to it are.
JUDGE YOUNG:
You can't imagine the argument being raised that Oconee is not a viable alternative because no lead testing has been done there, but that the lead testing had been done at a different kind of plant?
MR. FERNANDEZ: Oh, I can imagine that, Your Honor.
I don't, I can't assess whether that would be a valid argument or not, because I don't know what the purpose and need of the project is.
Unless you know what the purpose and need of the project is, you can't determine what the reasonable alternatives to the proposal are.
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parameters and the purposes of the program pretty well 2
laid out already at this point, as described in Duke's 3
application in referring to the Treaty and the DOE and 4
the Joint DCS proposal?
5 There have been numerous references to 6
that in the application and I think we summarized some 7
of those from Duke's application in our ruling on the 8
contention.
9 MR. FERNANDEZ: I don't think the Staff, at 10 this point, would be willing to comment until it saw 11 what the purpose and need as identified in that 12 particular proposal would be.
13 JUDGE YOUNG: Anything further on this?
14 Ms. Curran, did you have anything further you wanted 15 to say?
16 MS. CURRAN: I think I've made all the 17 points I need to.
18 JUDGE YOUNG: And other questions, Judge 19 Baratta, Judge Elleman?
20 JUDGE ELLEMAN: I have none, this is Judge 21 Elleman.
22 JUDGE BARATTA: I have none, Judge Baratta.
23 JUDGE YOUNG: Anything further from the 24 parties?
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Honor.
2 MR. NESBIT: Not from Duke.
3 JUDGE YOUNG:
Okay, well thank you all.
4 We've covered several things today, and we will try to 5
get an order out on the discovery ruling as quickly as 6
possible.
7 MR.
FERNANDEZ: Your Honor?
8 JUDGE YOUNG: Yes.
9 MR. FERNANDEZ: I just wanted to inform the 10 Board and the parties that the Staff issued a Safety 11 Evaluation today.
The Safety Evaluation does not 12 cover the security portion of the application, 13 however.
14 That's going to be supplemented at a later 15 date.
But we will be providing the parties and the 16 Board with copies of the Safety Evaluation today.
17 JUDGE YOUNG: Thank you. All right, now, 18 as I was saying, thereafter, we will be ruling on the 19 Motion to Dismiss Contention 3.
And I guess you can 20 hold off on your discovery on that until we've ruled 21 on that.
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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 1700 our rulings on the security contentions in the near future.
Anything further from the parties?
MS. CURRAN: No, not from me.
MR.
REPKA: No.
MR. FERNANDEZ: No.
JUDGE YOUNG: Thank you all.
I guess we can go off the record at this point, and the Court Reporter might have questions.
(Whereupon, the foregoing matter was concluded at 1:30 p.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 Docket Number:
50-413/414-OLA Location:
Teleconference 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.
J hn o govan fficial Reporter Neal R. Gross & Co., Inc.
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