ML041400453
| ML041400453 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 05/14/2004 |
| From: | Patton A 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-1478, RAS 7780 | |
| Download: ML041400453 (21) | |
Text
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NUCLEAR REGULATORY. COMMISSION'
Title:
'Dujke EnergyQ Croration DceNuber:. 413/414-OL'A; ASLBP No. 03-815-03-OLA' LocaionU.S.NRCDOCKETED Two Wte'Flint'North.USR 1 1545 Rockville 'Pike May 18, 2004 (2:17PM)
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1896 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOARD (ASLB) 5
+ +
.+ +
6 7
8 x
9 IN THE MATTER OF:
10 DUKE ENERGY CORPORATION
- Docket No. 50-413-OLA 11 Catawba Nuclear Station
- Docket No. 50-414-OLA 12 Units 1 and 2
- ASLBP NO. 03-815-03-OLA 13
____________--------------- x 14 15 Friday, May 14, 2004 16 U.S. NRC 17 Two White Flint North 18 11545 Rockville Pike 19 Rockville, Maryland 20852 20 The above-entitled matter came on for 21 hearing, pursuant to notice, at 10:00 a.m.
22 BEFORE:
23 ANN MARSHALL YOUNG, Chair 24 ANTHONY J. BARATTA, Administrative Judge 25 THOMAS S. ELLEMAN, Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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APPEARANCES:
2 On Behalf of the Licensee:
3 DAVID REPKA, ESQ.
4 MARK WETTERHAHN, ESQ.
5 Winston & Strawn, LLP 6
1400 L Street, N.W.
7 Washington, D.C.
20005-3502 8
202/371-5726 (DR) 9 202/371-5950 fax 10 11 On Behalf of the Petitioner, Blue Ridge 12 Environmental Defense League:
13 DIANNE CURRAN, ESQ.
14 Harmon, Curran, Spielberg & Eisenberg, LLP 15 Suite 600 16 1726 M Street, NW 17 Washington, D.C. 20036 18 202/328-3500 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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On Behalf of the Nuclear Regulatory 2
Commission:
3 ANTONIO FERNANDEZ, ESQ.
4 SUSAN L. UTTAL, ESQ.
5 Office of the General Counsel 6
Mail Stop -
0-15D21 7
U.S. Nuclear Regulatory Commission 8
Washington, D.C.
20555-0001 9
301/415-8339 (AF) 10 301/415-3725 (SU) 11 301/415-3725 fax 12 Also Present:
13 BERNARD STAPLETON 14 MARVIN ITXKOWITZ 15 MARGARET BUPP 16 SEAN PETERS 17 STEPHANIE COFFIN 18 ROBERT BARRY MANILI 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
(10:00 a.m.)
3 CHAIR YOUNG:
On the record.
By the way, 4
when we set the schedule for anything further on the 5
redactions, either of these two documents, the direct 6
transmittal or the RIS document, anything in there 7
that anyone does think is relevant, feel free to point 8
that out to us, too.
9 Okay.
On the schedule.
You, all were 10 talking together.
Do you have anything you want to 11 report?
12 MR. REPKA: I think we are close to agreeing 13 on an approach.
Mr. Nesbitt is making one call to 14 check on the availability of some of our witnesses.
15 CHAIR YOUNG:
Does it include hearing dates?
16 MR. REPKA:
Yes.
What we're talking about 17 would actually maintain the June 14th hearing date on 18 Contention 1.
19 CHAIR YOUNG:
That would work.
The only 20 thing is, I just got assigned to another case, and 21 part of the thing that we were trying to --
22 MR. REPKA:
That case should be a secondary 23 priority.
It's not one of my cases, is it?
24 (Laughter.)
25 CHAIR YOUNG: You're right.
I may have to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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go back and reconsider some things.
2 MR. REPKA:
Let me try to summarize this, 3
and then Ms. Curran and Ms. Uttal can make any 4
revisions that are necessary.
5 Obviously, Duke has a strong interest in 6
trying to maintain the schedule to the maximum extent 7
possible. We are sympathetic to the circumstances and 8
are trying to make reasonable accommodations 9
consistent with the need to go forward with the 10 process and the program.
11 We have had preliminary discussions, and I 12 think we have some confidence we can reach a 13 resolution on Contention 2. Obviously, we have not 14 reached a resolution yet, but we have some confidence 15 that there may be a basis to do that.
And what we 16 would propose would be in the next two weeks to pursue 17 that resolution, with the hope that we can finalize a 18 resolution of Contention 2 in that two-week period.
19 At the same time, recognizing that that 20 would significantly reduce the workload for hearing in 21 June, we would maintain the June 14th hearing date --
22 actually, I think the 15th was the hearing date for 23 Contention 1. There are two outstanding discovery 24 issues on Contention 1.. One is the Staff's request 25 for a deposition of Dr. Lyman, and the second is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Duke's second set of interrogatories to BREDL that 2
need responses, and the Staff's second set.
3 Now, to meet the June 14th --
June 15th 4
hearing date on Contention 1, the Staff and Duke have 5
agreed to dispense with the deposition if we can meet 6
the --
as a basis to continue to meet the hearing 7
date. We would then look for some certain relaxations 8
on the interim dates before June 15th. And I have not 9
come up with a date for a response to the pending 10 discovery requests, so that's one I think we have not 11 built in.
12 We would also relax the testimony dates, and 13 I think that was one of the things Mr. Nesbitt was 14 just confirming, but I think we would be looking at 15 filing testimony on Contention 1 on June 2nd, and with 16 rebuttal testimony then on --
did we say June 7th? Is 17 that what we said?
18 MS. CURRAN:
Yes.
If the hearing doesn't 19 start until the 15th, could we make that the 8th?
20 MR. REPKA:
That's fine.
21 ADMIN. JUDGE BARATTA:
So you're saying 22 rebuttal at that time would begin June 8th?
23 MR. REPKA:
June 2nd for direct testimony, 24 June 8th for rebuttal, hearing on June 15th.
So then 25 we would just need a date prior to June for discovery NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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responses, something sufficiently prior to June 2nd 2
for those responses, but with enough time for Dr.
3 Lyman to get back to work and to do that.
All that 4
would be on Contention 1.
5 And then on Contention 2, I think what we 6
would like is to set a contingency date if for some 7
reason we can't get the settlement resolution in the 8
next two weeks on Contention 2.
Ideally, that date 9
should be as early as possible.
July would be our 10 target, but we understand the Board has had scheduling 11 in the past on July.
We were hopeful that if it was 12 just a one-day target, that might facilitate that, but 13 that would be the goal.
14 CHAIR YOUNG:
Just on Contention 2.
15 MR. REPKA:
Just on Contention 2.
16 CHAIR YOUNG:
So we'd keep the 15th, 16th 17 and 17th -- well, we probably won't need it all, but 18 keep that time, and we would add in an opportunity for 19 limited appearance statements when we're down in 20 Charlotte on Contention 2. Are you agreed on where 21 the hearing would be --
if that was just a one-day 22 thing, could we do that here?
23 MR.
REPKA:
Certainly, if that would 24 accommodate the Board, we are happy to do that.
25 MS. CURRAN:
If that would make it possible NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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for the Board to do --
of course, we'd like to have it 2
in North Carolina, but --
first of all, I'd just like 3
to say, we appreciate the extent to which the other 4
parties have tried to accommodate us.
It's really 5
unfortunate what happened to Dr. Lyman and his family, 6
and we appreciate that you have all been so 7
cooperative. So, if that would make it easier to have 8
that second hearing --
because we realize --
I've 9
gotten a sense that you all are very busy in July --
10 CHAIR YOUNG: Well, Judge Baratta has other 11 responsibilities and, as I said, I just got assigned 12 to a new case --
and we realize that nothing was 13 final, but it sounded as if you all were in agreement 14 on changing the June date, so --
and, meanwhile, I'm 15 trying to figure out whether I can change some plans 16 I had for vacation and when that could be, when would 17 be the best time to do that.
Let's assume we do one 18 day, we need the one day and we do the one day --
19 ADMIN. JUDGE BARATTA:
We already have a 20 security hearing scheduled for the 15th, July 15th.
21 CHAIR YOUNG:
Right.
22 ADMIN. JUDGE BARATTA: So, would something -
23 24 CHAIR YOUNG:
You're coming back on the 25 13th, could you get here by the 15th?
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ADMIN. JUDGE ELLEMAN:
I'm coming back on 2
Tuesday, what date is --
3 CHAIR YOUNG:
The 13th.
4 ADMIN. JUDGE BARATTA: The 15th is Thursday 5
6 CHAIR YOUNG:
We had the 15th set for a 7
closed hearing on any security discovery or other 8
issues, so --
Judge Elleman is going to be out of town 9
through the 13th, through Tuesday --
is that right?
10 ADMIN. JUDGE ELLEMAN: That's correct, I'm 11 coming back Tuesday afternoon.
12 CHAIR YOUNG: So he was planning to come up 13 here for that closed hearing on the 15th, if we could 14 combine that with a hearing on Contention 2 --
15 MS. CURRAN: I don't think we could get them 16 both done.
17 CHAIR YOUNG: Maybe not on the one date, but 18 carrying it over to Friday, the 16th.
19 MS. UTTAL:
I lose one of my witnesses on 20 the 16th that I would for Contention 2.
21 ADMIN. JUDGE BARATTA: Well, maybe we could 22 switch, do the security on Friday and the hearing on 23 Thursday.
24 MS. UTTAL:
Judge Elleman won't be here on 25 the 14th.
Okay.
If we have the security argument on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the 16th and have the Contention 2 on the 15th, then 2
I can do it.
3 MR. REPKA:
Those dates work for us, the 4
15th and 16th are good dates.
5 CHAIR YOUNG: And this is just a potential 6
hearing on Contention 2. So, if we need to move --
7 assuming we do Contention 2, we would move the closed 8
hearing to the 16th.
If we don't do Contention 2, we 9
would keep the closed hearing on the 15th.
10 MS.
CURRAN:
I just have one little 11 modification that occurs to me.
If we had set aside 12 the 15th, 16th, and 17th for hearing in Charlotte --
13 I'm just trying to give Dr. Lyman as much time as he 14 can to prepare and, again, I don't know what his 15 situation is going to be.
I'm making a good faith 16 effort here to set up a schedule.
I just don't know 17 if he's going to be in a position to do this, but I 18 think it's reasonable to anticipate that he will. But 19 what I'd like to propose is setting aside the 16th of 20 June and maybe the 17th, if we need to go over on 21 Contention 1, and then push the deadline for testimony 22 back by a day --
what do you do, push it forward or 23 backwards, I get confused --
to the 3rd and the 9th of 24 June.
25 ADMIN. JUDGE BARATTA: I would like to try -
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I'd like really to try to shoot for that June 15th 2
date because we have a problem that's developing on 3
something else that may necessitate my not being 4
available on the 16th, but --
5 CHAIR YOUNG:
On the 17th.
6 ADMIN.
JUDGE BARATTA:
I 'm sorry --
the 7
17th.
I understand that Dr. Lyman's situation takes 8
precedence but, again, I'd like to try to shoot for 9
the 15th.
10 CHAIR YOUNG:
So we'll keep it the 2nd and 11 the 8th and the 15th.
Now, what we thought we would 12 do in terms of -- you weren't part of this discussion, 13 but we were talking about limited appearance 14 statements --
is set aside an hour or two at the end 15 of one day for those, and when we do the Notice of 16 Hearing, require anyone who wants to give a statement 17 to notify us.
In any event, we would need to set 18 aside some time on one of the days for that, and 19 probably the best would be to do that earlier rather 20 than later, so that if we have any finishing up 21 problems, that wouldn't interfere with that.
So, we 22 could set that for the 15th.
23 MS. CURRAN:
Judge Young, I'd just like to 24 suggest that you set aside at least some evening hours 25 early evening is fine --
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and they can't come during the day.
2 CHAIR YOUNG:
Okay.
3 ADMIN. JUDGE BARATTA: I think maybe 7:00 to 4
9:00.
5 MS. CURRAN:
That sounds reasonable.
6 MR. FERNANDEZ: Finding that the facility we 7
normally use down there may not be available.
8 ADMIN.
JUDGE BARATTA:
The limited 9
appearances do not necessarily have to be in that 10
- facility, though.
We may be able to find an 11 alternative site.
12 CHAIR YOUNG:
Right, we have to leave the 13 courtroom at 5:00 or 5:30, I can't remember which it 14 is.
15 ADMIN. JUDGE BARATTA: We can check on that.
16 MS. UTTAL:
Judge, we should set dates for 17 filing testimony.
Although I have given up the idea 18 of having a deposition on Contention 1, if we go 19 forward with Contention 2, I will want to take Dr.
20 Lyman's deposition.
So, we need dates for those 21 things.
22 CHAIR YOUNG: Can you talk about a date for 23 that at this point?
24 MR. REPKA:
Well, let's go backwards here.
25 On Contention 1, we needed a date for filing the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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discovery responses, BREDL's discovery responses, and 2
if testimony is due on the 2nd, at least a week before 3
that would seem appropriate, at least.
So, I would 4
propose Monday the 24th, that's a week and a day, 5
which is tight, but we want to give Dr. Lyman time --
6 MS. UTTAL:
We're going up against a 7
holiday weekend, so I would prefer the Monday because 8
I would like to spend some time with the children.
9 MS. CURRAN:
We'll try.
I guess I'll just 10 have to get back to you on whether we can do it.
11 CHAIR YOUNG:
So, 5/24, unless further 12 problems --
was there anything else on Contention 1?
13 MR. REPKA: I think that should take care of 14 Contention 1, and then we just need --
we probably 15 should set a date in there on Contention 2 --
- well, 16 two weeks from today, in which we would report to the 17 Board on successful resolution.
18 CHAIR YOUNG: I'm sorry, I was writing. May 19 28th for what?
20 MR. REPKA:
A report to the Board on the 21 outcome of settlement discussions on Contention 2. As 22 I said, hopefully a report on a successful resolution.
23 Then we would need dates for a --
24 MS. UTTAL:
Deposition.
25 MR. REPKA:
Susan, do you want to propose 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 something on a deposition date?
MS. UTTAL:
CHAIR YOUNG MS. UTTAL:
MS. CURRAN:
MS. UTTAL:
MS. CURRAN:
MS. UTTAL:
MS. CURRAN:
rebuttal testimony.
MS. UTTAL:
back to June.
MS. CURRAN:
July 7th.
- July 7th, is that --
Yes.
For what?
For the deposition.
No, that's too late.
You're right.
That's probably when you want Absolutely.
We've got to go Maybe we should work backwards 14 15 16 17 18 19 20 21 22 23 24 25 from --
what if we say rebuttal testimony on the 8th, initial testimony on the 1st, and work backwards that way.
And then you want discovery to close maybe a week before that, a week before the 1st, which would be the 24th of June, last deposition?
MS. UTTAL: One of my people that I want to bring to deposition is not available.
MS. CURRAN:
In June?
MS. UTTAL:
The third week of June.
MS. CURRAN:
What about the second week of June?
MS. UTTAL:
Could we keep that open until I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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talk to him?
2 MS. CURRAN:
It seems like we'll be able to 3
work out a date for the deposition.
4 MS. UTTAL:
I hope so.
Okay.
And then 5
testimony --
6 CHAIR YOUNG: She said July 1st and 8th for 7
the direct and rebuttal.
8 MS. UTTAL:
Okay, 1st and 8th.
9 CHAIR YOUNG: So the only thing that remains 10 open is the deposition date.
Now, on --
if there are 11 any disputes on discovery, I'm wondering whether we 12 need to go ahead and try to find a date to talk in 13 case there are.
If the deadline for the responses is 14 the 24th, you're out that week of the 24th, right?
15 ADMIN. JUDGE ELLEMAN:
Right.
16 CHAIR YOUNG: Are you going to be accessible 17 to a phone?
18 ADMIN. JUDGE ELLEMAN:
I'll be back in on 19 the 28th.
20 MS. UTTAL:
Why don't we do that on the 21 28th?
22 CHAIR YOUNG:
The 28th --
23 MS. UTTAL:
Because we may not need it.
24 CHAIR YOUNG:
Okay.
9:30?
25 MR. REPKA:
Is this June?
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(Simultaneous discussion.)
2 MS. CURRAN:
What time did you say?
3 CHAIR YOUNG:
9:30 on May 28th, we'll just 4
set a telephone conference.
Anything else?
So, all 5
other deadlines and dates that have been previously 6
set will remain.
7 MR. REPKA: All other dates would relate to 8
security, and they would be unchanged. I think we've 9
changed everything else.
10 CHAIR YOUNG: Well, I think there are still 11 proposed findings.
12 MR.
REPKA:
Oh, everything after the 13 hearing, that would be correct.
14 CHAIR YOUNG:
All right.
Well, that was 15 relatively easy.
Anything else that we need to talk 16 about today? Did you want to bring up anything?
17 ADMIN. JUDGE ELLEMAN:
Well, let me pursue 18 my question that I was going to ask.
This is on the 19 protective order, and since there is not disagreement 20 on it, I guess this is for my edification only, and I 21 had a question when I looked over the May 11th Duke 22 Energy Corporation Motion to Modify Protective Order, 23 and on the second page of that is the proposed 24 revision to the protective order which is worded 25 "1BREDL agrees that any threatened or existing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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violation of this agreement would cause Duke" --
and 2
then it goes on related to subcontractors.
And that 3
wording seemed more severe to me than the original 4
protective order requirement or the confidential and 5
nondisclosure agreements that were a part of that.
6 And so I was curious where this came from 7
and what a threatened violation might consist of.
8 MR. REPKA:
I don't have that in front of 9
me, and so I can't compare one-to-one.
It should not 10 be different.
It should be --
the paragraph 4 should 11 be the same as the paragraph taken from the form 12 attached to the original --
I believe it was April 8th 13 protective order -- which would be the form, paragraph 14 4 of the form, not the protective order itself.
And 15 I believe we just literally took the wordprocessor and 16 cut and --
17 ADMIN. JUDGE ELLEMAN:
Okay. I see what's 18 happened here.
You're right, it starts out the same 19 way, and it's simply been expanded to include the 20 specified subcontractors and other corporate --
21 MR. REPKA:
Right.
So, it's the form.
22 ADMIN. JUDGE ELLEMAN: Okay. That addresses 23 that question I had.
24 CHAIR YOUNG: Okay. Now I don't understand 25 that.
I'm sorry.
The modification is to --
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.1 MR.
REPKA:
It's to the form that's 2
incorporated as part of the protective order.
3 CHAIR YOUNG:
Right.
4 MR. REPKA: Not to the order itself, but to 5
the form of the nondisclosure agreement that the 6
protective order --
7 CHAIR YOUNG:
Does the existing paragraph 8
form leave out something?
9 MR. REPKA:
Does the existing form --
the 10 difference is that it adds Duke's contractors. That's 11 the word that is in there four times.
12 CHAIR YOUNG: It just adds the words "Duke's 13 contractors", otherwise, it's the same.
14 MR. REPKA:
Four times, in one paragraph.
15 CHAIR YOUNG:
Okay.
So, basically --
16 MR. REPKA: The form covers Westinghouse in 17 the future, but we thought there may be an amendment 18 to the already executed nondisclosure agreement.
19 CHAIR YOUNG:
So all you want me to do is 20 sign addendum number --
21 MR. REPKA:
Addendum No. 1.
22 CHAIR YOUNG:
Didn't we already have one 23 addendum --
24 MR. REPKA:
I believe that was to security.
25 CHAIR YOUNG:
That was a separate one.
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Right, that was the other one.
Okay.
2 ADMIN. JUDGE ELLEMAN:
That was all.
3 CHAIR YOUNG:
All right.
Then we're going 4
to hear from you in two weeks about Contention 2.
5 We're going to hear from you in one week about any 6
additional comments on redactions, and then after that 7
we will provide a way of allowing the Staff or anyone 8
else to make any objections to anything that we may 9
choose to de-redact or not to redact as argued by the 10 Staff in the manner that we described earlier.
11 If there's nothing else, then I think that 12 would conclude.
Thank you, all.
13 (Whereupon, at 1:49 p.m., the proceedings in 14 the above-entitled matter were concluded.)
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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-OLA; ASLBP No.
03-815-03-OLA Location:
Rockville, MD were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
Alex P tton Official Reporter Neal R. Gross & Co., Inc.
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