ML042930585
| ML042930585 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 10/13/2004 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, NRC-064, RAS 8639 | |
| Download: ML042930585 (62) | |
Text
RAs 86Lo39 Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Vermont Yankee Nuclear Power Station Docket Number: 50-271-OLA; ASLBP No.: 04-832-02-OLA DOCKETED USNRC October 18, 2004 (2:37PM)
Location: (conference call)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Date: Wednesday, October 13, 2004 Work Order No.: NRC-064 Pages 1-60 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
. Washington, D.C. 20005 (202) 234-4433 I lp lte = Sc %-o3cv- SE Cy- 09-,
1 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + . . . .
4 ATOMIC SAFETY AND LICENSING BOARD (ASLB) 5 6 PRE-HEARING TELECONFERENCE 7 _________ -x 8 IN THE MATTER OF:
9 ENTERGY NUCLEAR VERMONT 10 YANKEE, LLC and ENTERGY : Docket No. 50-271-OLA 11 NUCLEAR OPERATIONS, INC. : ASLBP No. 04-832-02-OLA 12 (Vermont Yankee Nuclear 13 Power Station Operating 14 License Amendment) 15 ___-____ __ x 16 Wednesday, October 13, 2004 17 The above-entitled matter came on for 18 hearing, pursuant to notice, at 2:00 p.m.
19 BEFORE:
20 ALEX S. KARLIN Administrative Judge, Chair 21 ANTHONY BARATTA Administrative Judge 22 LESTER RUBENSTEIN Administrative Judge 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 1 APPEARANCES:
2 On Behalf of Applicants Enterqy Nuclear Vermont 3 Yankee, LLC 4 and Entercy Nuclear Operations, Inc.:
5 JAY E. SILBERG, ESQ.
6 DOUGLAS TRAVIESO-DIAZ, ESQ.
7 DOUGLAS ROSINSKI, ESQ.
8 of: Shaw Pittman 9 2300 N Street, NW 10 Washington, DC 20037 11 (202) 663-8000 12 (202) 663-8063 13 (202) 663-8007 14 15 and 16 17 TRAVIS McCULLOUGH, ESQ.
18 Entergy Nuclear Operations, Inc.
19 440 Hamilton Avenue 20 White Plains, NY 10601 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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3 1 On Behalf of the Vermont Department of Public 2 Service:
3 ANTHONY Z. ROISMAN, ESQ.
4 National Legal Scholars Law Firm 5 84 East Thetford Rd.
6 Lyme, NH 03768 7 (603) 795-2045 8 (603) 795-4245 9
10 and 11 12 SARAH HOFMANN, ESQ.
13 Special Counsel 14 Department of Public Service 15 112 State Street - Drawer 20 16 Montpelier, VT 05620-2601 17 (802) 828-2358 18 19 On Behalf of the New England Coalition:
20 RAYMOND SHADIS, pro se 21 P.O. Box 98 22 Edgecomb, ME 04556 23 (802) 257-0336 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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4 1 On Behalf of the Nuclear Requlatorv Commission:
2 BROOKE D. POOLE, ESQ.
3 MARISA HIGGINS, ESQ.
4 ROBERT WEISMAN, ESQ.
5 KATHRYN L. WINSBERG, ESQ.
6 Office of the General Counsel 7 Mail Stop 15 D21 8 Washington, DC 20555-0001 9
10 Also Present:
11 Peter Alexander, NEC Executive Director 12 Richard Ennis, NRC 13 Suzanne Fleek, Senator Patrick Leahy 14 Cornelius Holden, NRR, NRC 15 Allen Howe, NRR, NRC 16 Richard Lobel, NRR, NRC 17 Mary Francis Repko, Senate Environmental and 18 Public Works Committee 19 William Sherman, Technical Advisor for the State 20 of Vermont 21 Neil Sheehan, Office of Public Affairs, NRC 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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5 1 P R O C E E D I N G S 2 (2:07 p.m.)
3 ADMIN. JUDGE KARLIN: This is Alex Karlin, 4 Judge and Chair of this Board Panel. And I think we 5 have a quorum. So I'd like to go on the record with 6 the Court Reporter and begin this proceeding.
7 This is a pre-hearing conference call in 8 the Matter of Entergy Nuclear Vermont Yankee and 9 Entergy Nuclear Operations, Inc. It is Docket No. 50-10 271, ASLBP No. 04-832-02-OLA.
11 Today is October 13, 2004 and this pre-12 hearing conference call is being held pursuant to the 13 notice that this Board issued on October 1st.
14 The hearing is on the record and will be 15 transcribed by Rebecca Davis who is on the line and 16 she is with Neal Gross Reporting Services.
17 For those not familiar with this type of 18 proceeding, the transcript by Neal Gross will be 19 available for the public and anyone else within 20 several days after this conference call.
21 In a moment what I'd like to do is ask 22 everyone on the call to introduce themselves for the 23 record. But first I'd like to introduce the members 24 of the ASLBP who are here and on the call.
25 I've introduced myself as the Chair of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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6 1 this Board.
2 Dr. Anthony Baratta is also here in 3 Rockville in the conference room in the chambers. And 4 he is the Chief Technical Administrative Law Judge 5 with the ASLBP.
6 On the line is Lester Rubenstein who is a 7 Judge and he is calling in from the West Coast.
8 ADMIN. JUDGE RUBENSTEIN: I'm in Arizona 9 today.
10 ADMIN. JUDGE KARLIN: Arizona.
11 Chris Wachter, a lawyer and a law clerk 12 with the ASLBP is on the line.
13 Anthony Eitreim, who is the Chief Counsel 14 of the ASLBP, is also in the conference room here as 15 is Karen Valloch who is secretary and administrative 16 assistant to the Board.
17 Before going any further, do Judges 18 Baratta or Rubenstein have anything they would like to 19 add at this point?
20 ADMIN. JUDGE BARATTA: No. This is Judge 21 Baratta. No, I don't.
22 ADMIN. JUDGE RUBENSTEIN: This is Judge 23 Rubenstein. One minor logistical detail. I'd like 24 the Court Reporter to send me the transcript 25 electronically. And the NEC's submittals have not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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7 1 been coming through electronically. My e-mail address 2 is lesrrr~msn.com. Thank you.
3 PARTICIPANT: I'm sorry. Could you repeat 4 that e-mail address?
5 ADMIN. JUDGE RUBENSTEIN: lesrrr~msn.com.
6 PARTICIPANT: Thank you.
7 ADMIN. JUDGE RUBENSTEIN: You're welcome.
8 ADMIN. JUDGE KARLIN: Okay. Good. At 9 this point, if each of the -- if each person on the 10 line would identify and introduce themselves and those 11 who are in the room with them, I guess we ought to 12 start with Entergy, the Applicant. Then the State.
13 Then New England Coalition. Then the NRC personnel.
14 And then the representatives of Senators Leahy or 15 Jeffords or any other members of the public who might 16 be on.
17 So if you could introduce yourselves at 18 this point for the record, please do so.
19 MR. SILBERG: Yes, this is Jay Silberg.
20 I'm a partner at the Washington Law Firm of Shaw 21 Pittman. We are representing Entergy Nuclear Vermont 22 Yankee, L.L.C. and Entergy Nuclear Operations, Inc.,
23 the Applicants in this proceeding.
24 With me in our offices are Matias 25 Travieso-Diaz and Douglas Rosinski. And also on the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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8 1 phone from another location is Travis McCullough who 2 is a lawyer with Entergy.
3 ADMIN. JUDGE KARLIN: Okay. Thank you.
4 MR. ROISMAN: This is Anthony Roisman.
5 I'm the managing partner of the National Legal 6 Scholars Law Firm. I represent the Department of 7 Public Service of the State of Vermont.
8 With me are William Sherman, the technical 9 advisor and nuclear engineer for the State of Vermont 10 and Sarah Hofmann, Special Counsel to the Department.
11 ADMIN. JUDGE KARLIN: Thank you. New 12 England Coalition please?
13 MR. SHADIS: Yes, this is Raymond Shadis, 14 pro se representative for New England Coalition.
15 I have with me today Mr. Peter Alexander, 16 the Executive Director of the Coalition.
17 ADMIN. JUDGE KARLIN: Thank you. Good.
18 NRC?
19 MS. POOLE: Brooke Poole with the NRC 20 Staff. With me today are Katherine Winsberg, the 21 Assistant General Counsel for Reactor Programs, Robert 22 Weisman, with the Office of the General Counsel, 23 Marisa Higgins, also of the Office of the General 24 Counsel.
25 Also with us today are Richard Ennis, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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9
. Project Manager for Vermont Yankee, Cornelius Holden, 2 the Director of Project Directorate I in the Office of 3 Nuclear of Reactor Regulation, Alan Howe, Section 4 Chief for Vermont Yankee, also from NRR, and Richard 5 Lobel, also with NRR.
6 MR. SHEEHAN: And this is Neil Sheehan 7 from the NRC's Office of Public Affairs.
8 ADMIN. JUDGE KARLIN: All right, thank 9 you.
10 And Senator Jeffords' office again?
11 MS. REPKO: This is Mary Francis Repko.
12 I'm Senior Policy Advisor to Senator Jim Jeffords on 13 the Senate Environment and Public Works Committee.
14 ADMIN. JUDGE KARLIN: Great. Is there 15 anyone else on the line that we missed?
16 (No response.)
17 ADMIN. JUDGE KARLIN: All right. Fine.
18 I appreciate -- did someone just join us?
19 MS. FLEEK: Yes, hi. This is Susanne 20 Fleek in Senator Patrick Leahy's office.
21 ADMIN. JUDGE KARLIN: Oh, excellent.
22 Good. Ms. Leek --
23 MS. FLEEK: Fleek, F-L-E-E-K.
24 ADMIN. JUDGE KARLIN: Yes, this is Alex 25 Karlin. We have just started and have just gone NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 1 through the introductions so it was a good point to 2 join. We now have everybody on the line and we're 3 ready to proceed.
4 PARTICIPANT: Would we just -- excuse me -
5 - have Ms. Fleek's full name? I couldn't hear it over 6 the phone.
7 MS. FLEEK: Yes, it's Susanne, S-U-S-A-N--
8 N-E, last name is F, as in Frank, L-E-E-K.
9 PARTICIPANT: Thank you very much.
10 ADMIN. !JUDGE KARLIN: Okay. All right.
11 As a procedural matter, I just wanted to remind 12 everyone that this is a public meeting. And so a 13 transcript will be made. However this is simply a 14 .pre-hearing conference call.
15 And while the public and the government 16 representatives are welcome, entirely welcome to 17 listen to the proceeding, the only people who will be 18 authorized to speak or we need to speak in this, given 19 the purpose of the call, are Entergy, the Applicant, 20 the State of Vermont, and the New England Coalition 21 who are seeking to request hearings here, and the NRC 22 Staff.
23 Could each party, if they haven't already 24 done so, tell me -- and I use party loosely, again, to 25 specify who will be speaking for them today.
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11 1 MR. SILBERG: This is Jay Silberg. I will 2 probably be doing the majority of the speaking today 3 for the Applicants.
4 ADMIN. JUDGE KARLIN: Okay.
5 ADMIN. JUDGE RUBENSTEIN: This is Anthony 6 Roisman. I'll be speaking for the State of Vermont.
7 MR. SHADIS: This is Raymond Shadis. I 8 will be speaking for the New England Coalition.
9 ADMIN. JUDGE KARLIN: Great. And Staff?
10 MS. POOLE: Brooke Poole with the NRC 11 Staff. I'll probably do most of the speaking for the 12 Staff today.
13 ADMIN. JUDGE KARLIN: Okay. I expect this 14 to be a relatively short call and I would hope that 15 only the principal's representative would need to 16 speak on the issues.
17 As we proceed, you know, given that this 18 is a conference call, if everyone would identify 19 themselves before they begin to speak, that would be 20 helpful for the record and keeping everything 21 straight.
22 Really the purpose of this call is to 23 assess -- it was spelled out in the October 1st order 24 which was to get input -- for this Board to receive 25 input from the parties, the participants as to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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12 1 value of any oral argument that might be held on 2 October 21st. We have set that date aside and the 3 22nd as well with the thought that we might need oral 4 argument.
5 And we wanted to hear from the parties on 6 those points, as to the contentions, other procedural 7 issues, standing, which does not appear will be an 8 issue in this case. So that's the purpose of this 9 call.
10 Are there any other matters at this point 11 that any of the participants believe will need to be 12 discussed in the call?
13 MR. SHADIS: This is Ray Shadis with the 14 New England Coalition.
15 ADMIN. JUDGE KARLIN: Yes.
16 MR. SHADIS: We would like to discuss the 17 possibility of opening some part of the oral argument 18 proceeding to a discussion of the scope and form of 19 the proceeding.
20 ADMIN. JUDGE KARLIN: Okay. The 21 possibility of opening the oral argument to a 22 discussion? I certainly -- if we have oral argument, 23 each party's participant will have the opportunity to 24 raise issues to discuss the matters with the Court, 25 with the Board. And we will ask questions.
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13 1 But a roundtable discussion is kind of not 2 in the cards for this kind of proceeding.
3 MR. SHADIS: This is Ray Shadis again, 4 Judge Karlin. What I intended there was that we want 5 to ask the Board, the Panel, to provide us with an 6 opportunity, set aside maybe 20 minutes, to address 7 issues of scope and form for the proceeding.
8 ADMIN. JUDGE KARLIN: Okay. Well, that 9 may be a different point, that is procedural issues as 10 to the oral argument itself or as to something else?
11 MR. SHADIS: As to -- presuming that there 12 is going to be a hearing and as to the, you know, 13 remainder of activities within the proceeding.
14 ADMIN. JUDGE RUBENSTEIN: Are you talking 15 about the scope of the hearing?
16 MR. SHADIS: Yes, sir.
17 ADMIN. JUDGE RUBENSTEIN: And/or the scope 18 of the NRC's review of the license amendment request?
19 ADMIN. JUDGE KARLIN: Could you identify 20 who just spoke?
21 ADMIN. JUDGE RUBENSTEIN: Judge 22 Rubenstein.
23 ADMIN. JUDGE KARLIN: Okay, sorry, Judge.
24 ADMIN. JUDGE RUBENSTEIN: Okay.
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14 1 again. Thank you, Judge Rubenstein. Yes to both 2 questions.
3 ADMIN. JUDGE RUBENSTEIN: Okay. Are you 4 acquainted with the Chairman's letter to Mr. Dworkin 5 of Vermont in which he fairly well defines the review 6 process for --
7 MR. SHADIS: Yes, sir.
8 ADMIN. JUDGE RUBENSTEIN: -- the NRC 9 Staff?
10 MR. SHADIS: Yes, sir, I am.
11 ADMIN. JUDGE RUBENSTEIN: And you have 12 read RS-0001, "The Power Uprate Review Process""
13 MR. SHADIS: Yes, I have read through it.
14 I have not plowed through it in depth. I think what 15 I'm speaking about is not the NRC technical review 16 process but the administrative process. That is to 17 say the legal process.
18 MR. SILBERG: This is Jay Silberg, if I 19 could, certainly the scope of the hearing will 20 presumably be a major part of the pre-hearing 21 conference in terms of discussing contentions that 22 either are or are not admissible.
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15 1 I think we are clearly talking about the scope of the 2 hearing.
3 ADMIN. JUDGE KARLIN: Yes, I think that I 4 agree with that. Is that your intent and concern, Mr.
5 Shadis?
6 MR. SHADIS: Well, thank you again. This 7 is Ray Shadis. It is in part but we are also 8 concerned with the type of hearing that might be 9 offered. And --
10 ADMIN. JUDGE KARLIN: Oh, well let me just 11 say I understand that that is an issue, whether it is 12 Subpart G-, Subpart L-type of hearing. And we 13 certainly -- let us -- I think as we go through each 14 of you and ask about your particular issues, I think -
15 - I will certainly give you an opportunity to talk 16 about that.
17 MR. SHADIS: Thank you.
18 ADMIN. JUDGE KARLIN: Okay. Good. All 19 right. We set aside this time. Our point is now 20 whether or not we need an oral argument. And how much 21 time it would consume.
22 I think we ought to start with the State 23 of Vermont. They have, as I understand it, raised 24 five contentions and requested a hearing.
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16 1 Section 274(1) of the Atomic Energy Act to examine 2 witnesses, obtain some discovery, and perhaps live 3 testimony.
4 They have also, as I understand it, 5 requested that the hearing be held under Subpart G, 6 formal hearing.
7 Mr. Roisman, please correct me if I've 8 misstated any of your positions but we have reviewed 9 the pleadings and the State's position. Could you 10 tell us your position regarding whether you think oral 11 argument would be valuable and how much time you would 12 need for those issues?
13 MR. ROISMAN: Yes, thank you, Mr.
14 Chairman. This is Anthony Roisman.
15 Well, let me start with the easy one. We 16 intend to rest on our papers with regard to the 17 Section 274(1) issue unless any other party speaks to 18 the issue, in which case we would reserve an equal 19 amount of time to reply or address the question, 20 assuming that what they said was contrary to what we 21 thought was appropriate.
22 With regard to the contentions themselves, 23 again, depending upon the amount of time that any 24 party opposing the admissibility of the contention 25 would intend to use, we would need approximately 30 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 1 minutes to present oral argument, which we would use 2 maybe 10 or 15 to present our initial statement and, 3 of course, answer questions from the Board.
4 And then reserve the remaining time to 5 reply to any statements made by other parties with 6 regard to the admissibility of each of those 7 contentions.
8 In that regard, we would note, as we did 9 in our reply, that there appears to be at least the 10 possibility that we could reach a stipulation with the 11 Applicant with regard to the issue raised in 12 Contention 5.
13 And if that were done, then we wouldn't, 14 of course, have to argue that contention at all. We 15 could stipulate to that and we wouldn't have any 16 argument on it at all.
17 With regard to the question of the type of 18 hearing, we would think, again, that about 30 minutes 19 would be adequate and maybe less because, as you know, 20 most of what is involved in the type of hearing has to 21 do with whether or not there are actual disputes that 22 warrant either a type G or a type L hearing.
23 And much of that might be developed just 24 in the merits of the contentions. That might make for 25 less time.
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18 1 We also think there are some preliminary 2 legal issues that ought to be discussed at the outset 3 of the hearing. These would include the status of the 4 Staff proceeding at this stage. In other words, 5 whether the Staff should be permitted to speak.
6 And if so, whether they. have time 7 independent of the time allocated to the Applicant if 8 they are agreeing with the Applicant's position or 9 whether they have to only be part of the total time 10 that the opponents of the contention can offer.
11 To the extent that the Staff is supporting 12 the admissibility of our contentions, our position 13 would be that we do not wish them to speak on behalf 14 of the contention. We're perfectly prepared to defend 15 it ourselves and would not cede any of our time to 16 them if the Board agreed that the Staff should not 17 have independent time.
18 There is a question of the standards for 19 admissibility. I think it would be helpful to have 20 some oral argument on that issue before we begin to 21 argue the specifics so that the Board is clear on what 22 the position of the parties are as to what standards 23 we think are applicable.
24 And similarly sort of related to that is 25 this issue that we raised in our reply which is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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19 1 whether or not the Board is also passing on the 2 admissibility of bases and supporting evidence or 3 whether it is only passing on the admissibility of 4 contentions.
5 We think the hearing format question 6 should be at the end of the whole hearing on the 7 merits of the contentions, not in the middle or at the 8 beginning.
9 I think that really covers the issues that 10 we would need to present. So assuming for a moment 11 that we and whoever opposed us used the equal amount 12 of time and that they were agreeable to the same 13 amount of time as we've asked for, I would expect that 14 the initial discussion of legal issues would take 15 maybe 20 minutes on our side, that the contentions, 30 16 minutes, and assuming the Applicant and Staff together 17 30 minutes.
18 So that's about an hour for each 19 contention. And then probably no more than 30 minutes 20 with regard to the form of the hearing.
21 Now all of that is subject to how active 22 the Board is. When I read your transcripts, it 23 appears that the Boards are extremely active and 24 obviously these time limits are almost assuming no 25 interruption which may be naive.
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20 1 But just so you have an understanding of 2 -- I think that on contentions, for example, we 3 probably have about 30 minutes of things we want to 4 say.
5 Now, of course, the questions may get us 6 to say them and then we won't have to say them again.
7 So it's hard to say. But that's a rough idea of what 8 I think our time requirements are going to be and the 9 issues on which we would like to have a hearing.
10 I'm not clear whether your question 11 intended for me to tell you why I thought we needed an 12 oral hearing.
13 ADMIN. JUDGE KARLIN: Well -- and I don't 14 think we need that. I will ask the Applicant and the 15 Staff to respond. But firstly, I want to clarify what 16 you meant there on several points, Mr. Roisman.
17 MR. ROISMAN: Okay.
18 ADMIN. JUDGE BARATTA: Mr. Roisman, this 19 is Judge Baratta. Did you say that you wanted 30 20 minutes on each contention?
21 MR. ROISMAN: That's correct.
22 ADMIN. JUDGE BARATTA: You realize, of 23 course, that we will have read all of your -- whatever 24 filings you have made and that really that time should 25 be mostly devoted to clarification issues, not a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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21 1 presentation of those issues. We will have already 2 read them.
3 MR. ROISMAN: Yes, I understand that. My 4 time estimate is based upon my expectation that the 5 Applicant and Staff in the time allotted to them will 6 spend a lot of time presenting arguments contrary to 7 what we said in our reply.
8 And thus that I will be in a position of 9 having to respond and having the Board hear for the 10 first time our position with regard to those comments.
11 If nothing new is being said, if they're 12 merely saying what they said in their pleadings and 13 we're then only going to be saying what we said in our 14 pleadings, then I would agree with you. We wouldn't 15 need nearly that amount of time.
16 I'm anticipating that. And that's why I 17 think that the initial statement, it might even be 18 much less than 15 minutes because I don't intend to 19 simply read to the Board what I know the Board has 20 already read.
21 ADMIN. JUDGE BARATTA: All right. I would 22 also -- this is Judge Baratta again -- I would also 23 hope the Applicant as well as Staff would -- you will 24 know that we will have read all of your initial 25 filings and such and be conversant on those. And NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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22 1 really do not need to hear them again. Thank you.
2 ADMIN. JUDGE KARLIN: Right. Judge 3 Rubenstein, do you have any questions on this?
4 ADMIN. JUDGE RUBENSTEIN: Well, I agree 5 with Judge Baratta that the incremental discussion 6 should take place on the basis of what we've read.
7 ADMIN. JUDGE KARLIN: Right. I agree.
8 Clarification and then we'll go to Entergy. Mr.
9 Roisman, 20 minutes for introductory legal procedural 10 issues, 30 minutes per each contention, and what else?
11 MR. ROISMAN: And as much as possibly 30 12 minutes on the question of the point I think Mr.
13 Shadis was making. If there is going to be a hearing, 14 should it be a Subpart G or a Subpart L here.
15 ADMIN. JUDGE KARLIN: Okay. And you don't 16 see the Subpart G versus Subpart L as being related to 17 your Section 274(1) Energy Act question?
18 MR. ROISMAN: No. I mean related only in 19 the sense that if -- frankly, I think that the 20 Commission's regulations, as written, don't really 21 address the 274(1) issue that we've raised. They've 22 not said they've tried to address it. And I don't 23 think they have.
24 Obviously if the --
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23 1 on that. We don't --
2 MR. ROISMAN: Right. If the Board were to 3 conclude that we were going to get a Subpart G hearing 4 and that all of the contentions that we raised were 5 admissible, the 274 issue would be moot.
6 ADMIN. JUDGE KARLIN: Okay. Thank you, 7 Mr. Roisman.
8 Mr. Silberg, having heard from the State, 9 your assessment in terms of the time to respond and 10 the need to respond.
11 MR. SILBERG: Yes, thank you. I think we 12 might have a little bit to say about the Section 13 274 (1) issue, just to address some of the points that 14 were raised in the DPS's reply. I don't think it 15 would be a lengthy presentation certainly.
16 In terms of other preliminary issues, I 17 think the question about the status of the Staff is 18 really something for the Staff and not us to address.
19 We would certainly be prepared and happy 20 to address the issue of standards of admissibility of 21 contentions. I think that's been pretty well briefed 22 by the parties.
23 We can certainly address that and I think 24 we could make some points probably in response to Mr.
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24 1 need more time than Mr. Roisman had taken to address 2 those issues.
3 But I think largely those issues have been 4 addressed in the briefs. And I don't think it ought 5 to take a lot.
6 With respect to the contentions 7 themselves, I agree that 30 minutes per contention 8 seems to be a little on the high side. I would think 9 that if we had 15 minutes per contention, I think that 10 would be adequate from our standpoint.
11 There may be some that we might need a 12 little bit more and some that we might need a little 13 bit less given the differences in the contentions but 14 15 minutes for our presentation I think would be 15 adequate.
16 And certainly we're aware that the Board 17 will have read and understood all the parties' 18 filings.
19 With respect to other issues, there are a 20 number of other points that were raised by both the 21 Coalition and DPS. The issue of the right to amend 22 contentions or delay the hearing pending the outcome 23 of the engineering assessment I think is probably 24 something that is worthy of a little bit of discussion 25 but not more than a little bit of discussion.
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25 1 And I think that's probably the list.
2 ADMIN. JUDGE KARLIN: Okay. Ms. Poole?
3 ADMIN. JUDGE RUBENSTEIN: A question for 4 the Staff before you go, Alex?
5 ADMIN. JUDGE KARLIN: Oh, yes, certainly.
6 Sorry.
7 ADMIN. JUDGE RUBENSTEIN: Have not the 8 inspections germane to the power uprate been 9 completed?
10 MS. POOLE: Yes, the inspections have been 11 completed.
12 ADMIN. JUDGE RUBENSTEIN: And published?
13 MS. POOLE: No. There has not yet been 14 scheduled a public exit meeting nor has the inspection 15 report itself been published or made available to the 16 public.
17 ADMIN. JUDGE RUBENSTEIN: Okay. Thank 18 you.
19 ADMIN. JUDGE KARLIN: Any other -- any 20 questions of Mr. Silberg?
21 (No response.)
22 ADMIN. JUDGE KARLIN: Okay. I guess we 23 turn to Ms. Poole. Again, your thoughts and input on 24 the time needed to respond to the State's time 25 allocation.
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26 1 MS. POOLE: Yes, I think that the Staff 2 would be more than happy to address any issues 3 regarding our status and the extent of our 4 participation.
5 I think that we were thinking we would 6 take about ten minutes to address all of the 7 introductory matters that were addressed including the 8 Section 274 (1) question, standards of admissibility of 9 contentions, and the request to amend contentions 10 later.
11 With respect to the contentions 12 themselves, I think that we would want to speak 13 independently and have our own time and not 14 necessarily take any of the Applicant's time. We 15 formulated our arguments independently and I think 16 we'd want to present them as such.
17 With respect to the contentions to which 18 we did not object, I would underline that we didn't 19 necessarily speak in favor of them. We simply didn't 20 object to them.
21 But I would agree that we need only a very 22 little bit of time, if any, to say anything about 23 those. We would rest on our papers.
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27 1 than 15 minutes per contention to make any kind of 2 prepared presentation.
3 And with respect to the Subpart G hearing 4 issue, I think we would take no more than 10 minutes.
5 ADMIN. JUDGE KARLIN: That's helpful. Any 6 questions? Judge Rubenstein or Baratta?
7 Clarifications?
8 ADMIN. JUDGE RUBENSTEIN: Not at this 9 time.
10 ADMIN. JUDGE BARATTA: Not at this time.
11 ADMIN. JUDGE KARLIN: All right. Let's 12 turn to Mr. Shadis then and ask him on behalf of the 13 New England Coalition, again, how much time do you 14 think you are going to need to present your arguments, 15 sir?
16 MR. SHADIS: Thank you. This is Ray 17 Shadis. Thank you.
18 Yes, we had discussed this at some length 19 with our experts. And we had come up with the idea 20 that we would need approximately 30 minutes per 21 contention although we would like to propose that if 22 some of that time isn't used, it can be allotted to 23 the next contention.
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28 1 argument is very important to us. Some of the replies 2 we got, and I'm thinking now of a particular example 3 from the Staff's reply, depended upon material that 4 was not made available to the public until late July.
5 And it was material that we weren't aware of and we're 6 now reviewing.
7 So it is important to us to the defense of 8 our contentions that we're able to present some 9 argument on it and I must say possibly some new 10 information.
11 ADMIN. JUDGE KARLIN: All right. Your 12 position is 30 minutes per contention. I understand 13 you also, as you spoke earlier, want to address the 14 type of proceeding, Subpart G versus Subpart L?
15 MR. SHADIS: Yes, sir. And we agree 16 completely with Mr. Roisman that from our point of 17 view it would best addressed at the end of the 18 proceeding when the Board and the parties have had a 19 chance to review or discuss the contentions.
20 We would also appreciate the opportunity 21 to speak to the questions that Mr. Roisman wanted to 22 raise as preliminary matters, not necessarily the 23 State's right to a particular type of hearing but on 24 the standards of admissibility, on whether or not 25 there is a carryover in terms of judging the evidence NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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29 1 in the contentions as opposed to just judging the 2 contentions themselves.
3 And so, you know, whatever is allotted 4 there, we certainly would want to participate in that 5 discussion.
6 ADMIN. JUDGE RUBENSTEIN: Judge Karlin?
7 ADMIN. JUDGE KARLIN: Yes?
8 ADMIN. JUDGE RUBENSTEIN: Judge 9 Rubenstein. I have a suggestion. If we -- perhaps if 10 we received from each of the parties a sterile ranking 11 of the contentions they would like to talk about first 12 rather than one, two, three, four, five, we may find 13 that across the board there are some contentions which 14 an early exchange of views on would be most 15 productive.
16 ADMIN. JUDGE KARLIN: Yes, all right.
17 ADMIN. JUDGE RUBENSTEIN: In other words, 18 a ranking preference:
19 ADMIN. JUDGE KARLIN: Yes, that might be 20 valuable. I suspect we have a relatively short amount 21 of time, one week to go before we show up.
22 ADMIN. JUDGE RUBENSTEIN: But no prejudice 23 as to the value of any contention. But some may be 24 more important or --
25 ADMIN. JUDGE KARLIN: Right.
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30 1 ADMIN. JUDGE RUBENSTEIN: -- the parties 2 may feel better based on --
3 MR. SILBERG: This is Mr. Silberg. If I 4 may, it seems to me that I think all the parties could 5 benefit from knowing early on the order in which both 6 the contentions and the other legal issues will be 7 taken up at the hearing just in order of planning our 8 resources.
9 I think if we start exchanging this ranked 10 order of preference of contentions, that may delay the 11 Board in coming up with an order that specifies when 12 we're going to talk about specific items.
13 And frankly, from our standpoint, all of 14 the contentions are important because -- are equally 15 important because, you know, we think that they are 16 all subject to the deficiencies that we pointed out in 17 our pleadings. And I don't know that we would 18 shortchange any of them. I think they all need to be 19 discussed.
20 I think it's, you know, an interesting 21 concept. But I guess I would opt for an earlier 22 determination of the order in which the Board would 23 like to proceed on both the legal and preliminary 24 issues and the contentions.
25 MR. ROISMAN: Mr. Chairman, it's Mr.
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31 1 Roisman, to answer Member Rubenstein's question, the 2 State would take Contentions 2, 3, 4, and 1. And we 3 would not do oral argument on 5.
4 ADMIN. JUDGE KARLIN: Okay.
5 MR. ROISMAN: And some of that is also 6 driven by the fact that our technical expert on -- at 7 least on part of Contention 3 is available on the 21st 8 but not on the 22nd. So we'd like to move Contention 9 3 up a little bit.
10 And we think that Contention 2 is more --
11 it's got more of the generic issues that impact the 12 other contentions in it. And so discussing it first 13 may facilitate the discussion of 3, 4, and then 1 14 last.
15 ADMIN. JUDGE KARLIN: All right. Does --
16 Mr. Shadis, can you give us a general ranking of your 17 seven contentions?
18 MR. SHADIS: Generally speaking, I believe 19 they rank from the back to the front. And that is to 20 say that contentions that relate to design basis to 21 the single-failure mode are really probably the most 22 important to us.
23 But let me say this much about the way in 24 which -- or the order in which these are addressed by 25 the Board, we would greatly appreciate following the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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32 1 State. In other words, if it is possible, it would 2 serve us best if the State were to be able to present 3 on all of its contentions. And then New England 4 Coalition to follow to present on all of its 5 contentions.
6 Part of it is the availability of one of 7 our experts to advise. But part of it, too, is it 8 would be helpful for us to get a feel for the process.
9 And I think the State has already indicated that they 10 would like to go first on the 21st.
11 So, you know, if that would be acceptable, 12 that would certainly be preferable to us in terms of 13 organization if nothing else.
14 ADMIN. JUDGE RUBENSTEIN: Let me ask 15 clarification. You ranked yours from back to front?
16 MR. SHADIS: Well --
17 ADMIN. JUDGE RUBENSTEIN: Does that mean 18 No. 7 is the highest rank and No. 1 is the lowest?
19 MR. SHADIS: Well, I may have been too 20 glib with that. I just -- it's almost impossible for 21 me to rank these in order of importance.
22 It is very important for us to get a 23 hearing. We are fully in anticipation of developing 24 new contentions based on the results of the 25 engineering assessment that was completed back on --
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33 1 I believe it was supposed to be completed the 5th of 2 September.
3 And in addition to that, apparently there 4 is still new information coming in on the request for 5 additional information. So, you know, of primary 6 importance to us is to get a hearing, to have 7 standing, to be able to bring forward other 8 contentions as they arise.
9 ADMIN. JUDGE RUBENSTEIN: You recognize 10 the regulations on late files?
11 ADMIN. JUDGE KARLIN: Yes. I was going to 12 point -- there are regs regarding late filed 13 contentions, Mr. Shadis, that you have to make sure 14 you follow because generally they are not acceptable 15 except under specified circumstances. And I'm sure 16 you are familiar with that.
17 MR. SHADIS: Ray Shadis again. I am and, 18 you know, we have reviewed them.
19 ADMIN. JUDGE KARLIN: Okay. All right.
20 Well, I think we have helpful information unless Judge 21 Rubenstein or Judge Baratta want to ask a question?
22 (No response.)
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34 1 about the time he needs?
2 MR. SILBERG: No, we don't object to his -
3 - the Coalition going after the State's contentions.
4 I personally think it's a good idea to take all the 5 contentions of one party and then go to all the 6 contentions of the next party.
7 ADMIN. JUDGE KARLIN: Okay.
8 MR. SHADIS: This is Ray Shadis again.
9 And if I may offer, where there are some similarities 10 -- we think there are great distinctions between our 11 contentions and the State's but where there are some 12 similarities with, for example, with performance of 13 the emergency core cooling system and so on, it may 14 well be that having gone through the arguments on the 15 State's contentions, it may well pare down the amount 16 of time that is needed to discuss our contentions when 17 the time comes up.
18 ADMIN. JUDGE KARLIN: Right. Ms. Poole?
19 Any thoughts on the time to respond to the New England 20 Coalition's presentation?
21 MS. POOLE: No, no additional thoughts.
22 I think we would stick with our position that we 23 expressed with respect to the State where we seem to 24 be seeking about half of the time that is taken for 25 the initial presentations. For example, if NEC would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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35 1 like 30 minutes per contention, we would ask for 15.
2 In addition, the Staff has no preference 3 with respect to the order in which contentions are 4 discussed.
5 ADMIN. JUDGE KARLIN: All right.
6 ADMIN. JUDGE RUBENSTEIN: This is Judge 7 Rubenstein. I'm harkening back to your no objection 8 to 4 and C 3 but not support, you found them to be 9 admissible on some grounds?
10 MS. POOLE: That's correct.
11 ADMIN. JUDGE RUBENSTEIN: Okay so either 12 they are or they aren't?
13 MS. POOLE: Right, no. We didn't object 14 to --
15 ADMIN. JUDGE RUBENSTEIN: Is this lukewarm 16 admissibility?
17 MS. POOLE: Pardon?
18 ADMIN. JUDGE RUBENSTEIN: Is this lukewarm 19 admissibility?
20 MS. POOLE: Oh, no, no. We didn't object.
21 And we stand on that.
22 ADMIN. JUDGE RUBENSTEIN: Okay.
23 ADMIN. JUDGE KARLIN: Well, thank you. I 24 think that's been helpful.
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36 1 to alert you to is to simply -- I mean in recognition 2 of the fact that we will have read these pleadings, 3 and the purpose, as we see it, of the oral argument is 4 to help elicit and answers questions that we may have 5 and for us to elicit additional information that might 6 help us decide the issues raised in the contentions 7 presented, another approach we're contemplating is 8 simply to set an amount of time available for, for 9 example, the contentions that the State or that New 10 England Coalition might present as a lump sum amount 11 of time, one hour for all contentions. And not break 12 them out as separate contentions.
13 We seriously would like to do this in one 14 day and we do not initially contemplate -- or I didn't 15 contemplate although certainly we'll discuss this with 16 the other Judges that we have 30 minutes, 30 minutes, 17 and 30 minutes on each of the 12 contentions, five 18 plus seven here. That would certainly would be a full 19 two day -- plus the other issues that are presented 20 here.
21 I don't know. We'll decide whether we 22 think that is needed for our purposes in trying to 23 understand and decide this case. So I appreciate the 24 time estimates but we may not break it out that way.
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37 1 could comment on the idea, I don't have a problem on 2 setting an overall time limit. I'm just not sure that 3 it would accomplish the Board's purpose if one party 4 were to make all of its arguments on all of its 5 contentions before hearing from the Staff and the 6 Applicant.
7 ADMIN. JUDGE KARLIN: Well, I think what 8 we'll contemplate is whatever time is set, we'll 9 include the time for questioning. It will certainly 10 not be an hour's presentation. It will be 45 minutes 11 worth of questions and 15 minutes worth of 12 presentation.
13 So mostly it will be us asking questions 14 about what we think are important to that and, I 15 guess, otherwise asking the Counsel to be prepared to 16 address what they think are important. But also be 17 prepared to respond to our questions.
18 MR. SILBERG: No, I understand that. My 19 comment goes to the idea of having, for example, the 20 State address one of its contentions after another 21 before then hearing from Applicant or the Staff. And 22 I wonder whether that would create as well organized 23 a record for the Board's purposes as if the discussion 24 were held on a single contention, hearing from all 25 parties, then moving on to the next contention.
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38 1 That's a different question as to the 2 allocation of time.
3 ADMIN. JUDGE KARLIN: Right, right. I 4 understand the point. Thank you.
5 MR. ROISMAN: And, MR. Chairman, this is 6 Mr. Roisman. I'm not clear about what the option is 7 that you are presenting either. I agree with Mr.
8 Silberg that I think staying contention to contention 9 is the most efficient way to consider it in that if we 10 make a presentation with regard, let's say, to 11 Contention 2, that when we're done and the Board is 12 done asking us questions, then the Staff and the 13 Applicant would have their chance to have their say.
14 And then we would have a reply.
15 Now if the Board's intention is that we 16 won't have a reply, then I would like to suggest that 17 the Board allow the Applicant and Staff to go first.
18 Otherwise, they will have replied to what we have 19 written in our reply and we won't ever be able to 20 address those issues which seems to us to be unfair.
21 If the Board -- I'm not concerned about 22 the time limit. We'll stay within any time limit that 23 the Board sets but I want to be able to use our time 24 to answer Board questions and to respond to anything 25 that is said by the Applicant and the Staff.
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39 1 And to husband our resources in that way, 2 not to have to present everything at the beginning and 3 particularly not to present everything at the 4 beginning on all the contentions before we hear 5 anything from the Staff or the Applicant.
6 ADMIN. JUDGE KARLIN: I appreciate that, 7 Mr. Roisman, you know we'll certainly take your 8 concerns and your remarks into consideration. I think 9 that whatever structure we establish, my contemplation 10 at this point would be that the State, the proposed 11 intervener, the NEC or the State, would have a certain 12 amount of time and they could reserve some of that at 13 the end to reply or rebut anything that came up in the 14 discussion or the time allocated to Entergy. So that 15 issue would be covered.
16 But anyway, I appreciate your comments.
17 We'll take that into consideration. We are trying to 18 deal with this -- I mean quite frankly, with the 19 pleadings, the briefing here has been quite thorough 20 on many of the issues. And, you know, I think we have 21 a good feel for, you know, the issues here.
22 And we want to make any time we use for 23 oral argument simply efficient and not necessarily 24 follow a traditional mechanism of several hours on 25 each contention.
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40 1 But thank you for those remarks.
2 Any other comments?
3 MR. SHADIS: Judge Karlin, this is Ray 4 Shadis again. And I'm trying to follow this 5 conversation. I'm having a little bit of a difficult 6 time understanding what exactly is being proposed.
7 What I hear is that the Panel now wishes 8 to complete this oral argument in one day as opposed 9 to two days. The order that we received indicated 10 that you were allotting two days. And certainly that 11 entered into our planning on it.
12 We've gone forward, you know, on the 13 notion that this is going to be a two-day pre-hearing 14 conference. And if that is not the case -- in any 15 case, I'm looking here for some clarification.
16 ADMIN. JUDGE KARLIN: The order indicated 17 -- asked all the parties to reserve those two dates 18 for possible oral argument. We indicated in the order 19 that if after this October 13th pre-hearing conference 20 call we decided that it would be unnecessary, we would 21 not convene oral argument at all.
22 I think we further indicate that -- and 23 I'm saying here today -- is that we have no 24 presumption that this will be two days. In fact, I 25 think our preference is to do this in one day.
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41 1 And then we will take what has been said 2 to us and try to -- we will issue before the end of 3 this week, is our intent, an order setting out the 4 amount of time that each participant will be allocated 5 in the oral argument.
6 ADMIN. JUDGE RUBENSTEIN: This is Judge 7 Rubenstein. I would second that. The quality of the 8 briefs and their comprehensiveness and their 9 discussions are a very good basis for moving with just 10 an incremental differential on the final pleadings by 11 both NEC and DPS.
12 ADMIN. JUDGE KARLIN: Yes.
13 ADMIN. JUDGE RUBENSTEIN: So I agree that 14 the proper use of time can get this done in one day.
15 ADMIN. JUDGE KARLIN: Right. And we would 16 intend it to be a full day. Not, you know -- 9:00 17 a.m. until -- if need be. So -- and we are ready and 18 able to attend on the following day, if necessary. I 19 mean that's not the issue.
20 We just want to look at some efficient use 21 of time. And we want to make sure we hear from 22 everyone as to what we need to know, what we need. So 23 hopefully that is somewhat clarifying, Mr. Shadis.
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42 1 some portion of the second day at least. And part of 2 it really is the intense public interest in this 3 proceeding.
4 Our constituency in Vermont, New 5 Hampshire, and Massachusetts all are really 6 desperately concerned that there be a full discussion 7 on the safety-related issues with respect to this 8 upgrade. And I can only tell you that we were, New 9 England Coalition, counting on this available time.
10 While we were discussing this today, I did 11 reread the order and I understand that -- the language 12 of it a little better now with respect to the option 13 of a second day. But I would urge you, if at all 14 possible, to be as generous as you can with your time 15 and at least entertain the notion of getting into that 16 second day.
17 ADMIN. JUDGE KARLIN: Okay. Well, I mean 18 we'll take that into consideration.
19 I want to speak to the issue of the 20 hearing itself on the 22nd -- 21st, I'm sorry -- as we 21 hold it. First --
22 MS. POOLE: Judge Karlin --
23 ADMIN. JUDGE KARLIN: -- we did try to 24 schedule that time frame in a way that accommodated 25 your needs, Mr. Shadis, and that of the New England NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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43 1 Coalition. So we do have dates that I think met 2 everyone's availability.
3 Ms. Poole, did you want to say something?
4 COURT REPORTER: Sorry, this is the Court 5 Reporter. I'm going to have to put you on hold for 6 ten seconds and switch to another phone. I didn't 7 want you to start a new topic.
8 ADMIN. JUDGE KARLIN: Okay. We'll hold.
9 COURT REPORTER. Yes, everybody hold on.
10 And I'll rejoin you.
11 ADMIN. JUDGE KARLIN: We'll pause for a 12 moment.
13 (Whereupon, the foregoing 14 matter went off the record at 15 2:59 p.m. and went back on the 16 record at 3:00 p.m.)
17 COURT REPORTER: Okay. I'm back.
18 ADMIN. JUDGE KARLIN: Okay. Thank you.
19 Mr. Shadis, you want to say something?
20 MR. SHADIS: I just wanted to clarify in 21 terms of getting a transcript of this proceeding, we 22 would go directly to the transcription service, is 23 that correct?
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44 1 it's on ADAMS. Is it on ADAMS?
2 COURT REPORTER: It will be within up to 3 ten business days.
4 ADMIN. JUDGE KARLIN: Okay. Well, that 5 might be a problem but it does become posted on the 6 NRC web page, I believe, the ADAM system ultimately.
7 I thought it was only a three or four delay. But if 8 you want to get it, you can go directly to Neal Gross 9 Reporting Services.
10 MR. SHADIS: All right. Thank you very 11 much.
12 ADMIN. JUDGE KARLIN: Okay.
13 MR. ROISMAN: Mr. Chairman, this is Mr.
14 Roisman. I hear the Board talking about its concern 15 that the hearing be as efficient as possible. But I 16 also heard you indicate that the order that you were 17 going to issue was going to address the question, the 18 amount of time allocated to each of the different 19 participants, Staff, Applicant, NEC, and the State.
20 ADMIN. JUDGE KARLIN: Yes.
21 MR. ROISMAN: In light of that, I would 22 like to at least make the point that it seems to me 23 that if the hearing is going to be efficient and fair, 24 it would not be appropriate that if the party who has 25 a contention that is seeking admission is given --
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45 1 let's use your number, one hour, to present and answer 2 questions from the Board on all their contentions, 3 that those who oppose it should be given two hours, 4 one for the Staff and one for the Applicant.
5 And that it would only be fair that the 6 Applicant and the Staff be required to share the 7 amount of time where they take the same position. And 8 that is certainly true, for instance, on Contentions 9 1 and 4 of the State where they both oppose its 10 admission.
11 That seems to me to apply whether the 12 Staff is, as we believe they are, a party or whether 13 they are not a party. And otherwise, it seems to me 14 that we are really getting redundant argument or we 15 are being subjected to an unfair disadvantage by being 16 essentially tag-teamed, the Staff waiting to see what 17 the Applicant says, filling in the gaps, et cetera, et 18 cetera, which I don't think is appropriate. And I 19 don't think the rules contemplate that.
20 ADMIN. JUDGE KARLIN: All right. Well, I 21 appreciate that. And I think certainly there is no 22 automatic equal time for the State, the Staff, and the 23 Applicant.
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46 1 making rulings on these contentions which, as I said, 2 are very well articulated and briefed, on all sides.
3 So I appreciate your point. I mean it's a valid point 4 and we understand it.
5 MR. SILBERG: Yes, this is Mr. Silberg, if 6 I might, I think the Applicants and the Staff have 7 very different roles in this proceeding and sometimes 8 have very different analyses of the contentions.
9 And I think it would be equally unfair to 10 force the Applicant and Staff into a bed and forced to 11 share their time because frankly our arguments, you 12 know, may or may not be the same.
13 We have the ultimate burden. The Staff, 14 you know, has a governmental function. I think the 15 folks are different. My experience has always been, 16 and typically the Applicant goes first as between the 17 Applicant and the Staff, that there is no repetition.
18 And the Staff hears what is said and does not need to 19 repeat it.
20 I would also note in terms of the overall 21 time that to some extent, this very much takes the 22 form of an appellate argument in which the parties are 23 given a clock. And they have to make due with that 24 time allotted on the clock for the points that they 25 want to make and responding to the questions from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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47 1 bench.
2 And I suspect this is very much like an 3 appellate argument at the stage where there have been 4 full briefings. And the question here is -- and there 5 may be some points that a party wants to emphasize but 6 it really ought to be to respond to questions that 7 members of the Board have.
8 ADMIN. JUDGE KARLIN: All right. Well, 9 we'll respond to you in the same was as Mr. Roisman, 10 that is to say there is no automatic rule one way or 11 the other. And we will try to allocate time in 12 accordance with what we think how it would help us 13 work through issues that we -- or questions that we 14 have. So thank you.
15 So now I would like to turn in closing, as 16 it were essentially, to a question, the point raised 17 perhaps by Mr. Shadis a little bit which is the 18 logistics of our hearing and oral argument. And we 19 tend think we will need one in Brattleboro, Vermont.
20 Did someone just add or leave the call?
21 No one joined the call?
22 (No response.)
23 ADMIN. JUDGE KARLIN: Okay. Perhaps it 24 was someone who dropped off.
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48 1 argument up there, we tend to think we will need one.
2 I mean we often have these oral arguments in our 3 hearing room here in Rockville, Maryland. But we 4 understand the concern of the community and it is 5 NRC's policy to try to have these hearings and oral 6 arguments in the communities effected.
7 So we do want to be up there. And we've 8 made arrangements after some searching to use the 9 Vermont Agricultural Business Education Center in 10 Brattleboro.
11 As I understand it, the seating there is 12 somewhere between 150 and 130 depending on how the 13 room is arranged. So it's not infinite seating 14 arrangements.
15 And we're also aware that there was -- a 16 prior NRC program office had a public meeting up there 17 in March of this year and there was quite a large 18 attendance and it became, at some point, apparently 19 rather difficult.
20 And I hope and ask the representatives of 21 all the parties here today to recognize that this is 22 a different type of proceeding. The public is welcome 23 to attend. That is not the issue.
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49 1 understand is that the only people who will be allowed 2 to participate and speak in this hearing are the 3 people on the phone here today, the representatives of 4 the participants.
5 And we hope that the public is not 6 disappointed, that they think this is someplace where 7 they will have the opportunity to speak.
8 As I've said in our memorandum and order, 9 that everyone can file a written limited appearance 10 statement and oral limited appearance statements may 11 be appropriate if we decide to hold a hearing on the 12 merits on this matter. At that time and place, it is 13 likely we would allow oral limited appearance 14 statements.
15 But I would ask each of you to sort of 16 turn to your constituents if you could and help 17 everyone understand the nature of this proceeding. I 18 mean Mr. Roisman, I wonder -- I know that all of you 19 understand this fully but whether or not the public 20 does and any suggestions you have about helping us 21 make this an orderly meeting.
22 MR. ROISMAN: Mr. Chairman, it seems to be 23 that if there is a concern that the volume of people 24 who want to attend will exceed the capacity of the 25 room, that perhaps as was done at the first NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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50 1 construction permit hearing for this plant over 40 2 years ago, which I don't want to pretend I was there 3 for but I was there for the first operating license 4 hearing.
5 But in any event, they provided -- because 6 again, the space was not large enough to accommodate 7 everybody, they provided an alternate room with -- now 8 it could be video and audio, I think in those days it 9 was only audio, where people could see ad hear 10 everything that was going on.
11 And I would urge the Board if there is a 12 concern -- and I don't have any way to measure this.
13 And perhaps Mr. Shadis has a better sense 14 or maybe some of my technical people know whether 15 there might be over 100 people who would want to come 16 to this pre-hearing conference that arrangements could 17 be made even if not physically at the same location, 18 that people could, on closed-circuit television, view 19 this hearing and be able to see it live.
20 ADMIN. JUDGE KARLIN: All right. Well, 21 that's a suggest. I mean we really have no idea what 22 the attendance at a daytime meeting rather than an 23 evening one just, you know, that sort of thing.
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51 1 members and the constituents of the nature of this 2 hearing and perhaps you could give us your thoughts as 3 to how we can make sure this is conducted in an 4 orderly way?
5 MR. SHADIS: Thank you, Chairman Karlin.
6 Yes, I have a number of thoughts on this. First, I 7 just want to tell you that the informational meeting 8 that NRC put on on the 31st from a public relations 9 standpoint was just as badly structured as it could 10 be.
11 It didn't begin until eight in the 12 evening. And the first member of the public didn't 13 get to speak until about 9:40, I believe, that 14 evening. So they just managed to simply infuriate the 15 crowd that was there.
16 With respect to the turn out of this, I 17 don't have any way of predicting.
18 We did advise people early on that -- and 19 we may have been speaking out of school, that there 20 was a likelihood that the Panel would allow limited 21 oral appearances because that was our experience in 22 the first Yankee Rowe license termination plan pre-23 hearing conference.
24 But we read in the order now that this is 25 only potentially contemplated for some point in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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52 1 future. I think what the situation is is that people 2 in the region, Vermont, New Hampshire, and 3 Massachusetts in the area of Vermont Yankee are 4 anxious to have somebody hear their concerns.
5 And so I cannot, you know, predict where 6 this emotional commitment is going to, you know, spill 7 out. And we will do our best to make sure that, you 8 know, people understand the nature of the hearing.
9 I will also say that New England Coalition 10 has a wide constituency but limited and, you know, 11 many of the people that participated in these other 12 meetings were there entirely on their own. They were 13 not people that we particularly encouraged to attend.
14 So there's a limited amount that New 15 England Coalition can do to try to smooth the way 16 here.
17 ADMIN. JUDGE BARATTA: This is Judge 18 Baratta. I do want to point out that we recognize 19 that there is a desire for people to be heard on the 20 issues. And there is a time and a place appropriate 21 to that. However, this is not the time and the place.
22 MR. SHADIS: Sure.
23 ADMIN. JUDGE BARATTA: I say that based 24 upon my experience in other proceedings of this type.
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53 1 that, of course, will be decided after we hear oral 2 arguments next week, then we will -- be assured that 3 we will seriously take under advisement the issue of 4 having a session where we will have oral limited 5 appearances for members of the public.
6 I also want to say we did try to come up 7 with a larger facility and, unfortunately, because of 8 everybody's scheduling constraints and facility 9 availability, this was about the largest we could find 10 for those days.
11 MR. ROISMAN: Mr. Chairman, this is Mr.
12 Roisman again. Our concern is not so much with the 13 question of the limited appearances, and we know that 14 the Board will when that time arrives accommodate 15 every person who wishes to make an oral limited 16 appearance.
17 Ours is more with making sure that every 18 interested person who wants to see this process live 19 has the opportunity to do that. It's very important, 20 as we mentioned in our pleadings, this is a matter of 21 substantial interest in this state to its citizens.
22 And given the advanced electronic 23 technology that is now available, it would seem to me 24 that it wouldn't be difficult to arrange to have an 25 electronic alternative either place or places, even to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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54 1 the point of if you were able to convince CSPAN to 2 cover it, then everybody could watch it on their 3 televisions at home to ensure that it is available to 4 everybody who wants to hear and see this part of the 5 process.
6 And I now it seems probably to all of us 7 involved in it as kind of dry. It's the legal 8 arguments. To the people in the State of Vermont, I 9 think it is a question of this is the point at which 10 the NRC is going to decide whether there will be a 11 full hearing or whether there won't be. And that's a 12 very big issue here.
13 So I would urge the Board to look for ways 14 to -- not to find a bigger space. I'm sure that this 15 is the best you could do. But to find alternative 16 ways for people to hear and see.
17 ADMIN. JUDGE KARLIN: Okay. I mean I 18 appreciate those concerns. And we are interested in 19 making our proceedings available and open to the 20 public. And we'll see what we can do to facilitate 21 that.
22 I appreciate your points on this. And I 23 really think we do want to -- if we have this oral 24 argument, and I think we will, I mean we want to hear 25 what you have to say and ask questions.
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55 1 And it would certainly do no one any good 2 if this thing just simply degenerates into a 3 misunderstanding with the public and we are not able 4 to complete the oral arguments because of confusion 5 within the public.
6 At this point, are there any other issues 7 we need to discuss at this time?
8 MR. SILBERG: This is Mr. Silberg. First, 9 I agree with Mr. Roisman. I think it would be in 10 nobody's interest if there are more people who want to 11 come and attend than the room can hold.
12 I've seen that happen in other proceedings 13 over the years and it is an unfortunate occasion. And 14 I'm sure the Board will do what it can to make 15 arrangements to avoid that.
16 Two other points. Mr. Shadis had left me 17 a message earlier that the Coalition was on the brink 18 of retaining Counsel.
19 I don't know if there are any developments 20 on that but I just wanted to make sure that if that 21 happened, that that would not in any way change what 22 our plans are for this pre-hearing conference. That 23 whatever happens, the Coalition is prepared to go 24 ahead next week.
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56 1 inquire of Mr. Shadis?
2 ADMIN. JUDGE KARLIN: Certainly you 3 understand that whatever we set down it will be 4 established irrelevant of whether you retain a Counsel 5 or not but could you speak to that issue?
6 MR. SHADIS: Certainly. New England 7 Coalition has been attempting to secure Counsel. And 8 that's a very strong possibility but it is by no means 9 secured and absolute at this point.
10 And we fully understand that the schedule 11 is set and the form of this meeting is set, you know 12 that's the way it's going to be.
13 On the other hand, I can't speak to any 14 issues that should we retain Counsel, that Counsel 15 would raise coming out of the transcript of this 16 meeting. But I am dead certain that we're prepared to 17 go forward and take part in the oral argument for the 18 pre-hearing conference.
19 ADMIN. JUDGE KARLIN: Great. Great. And 20 we understand you are proceeding in a sense as a pro 21 se representative of the New England Coalition. So 22 that's fine.
23 Anything else?
24 MR. SILBERG: I have one other question.
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57 1 recent filing of the Coalition's petition included an 2 affidavit by Mr. Blanch.
3 And I was just wondering if Mr. Shadis 4 could explain where that fits into the reply itself 5 because I didn't see any reference in the reply to 6 this new affidavit. I may have missed it.
7 MR. SHADIS: Yes, there may be an omission 8 in the reply. My suggestion is that you review it and 9 if there is an issue as to admissibility, that can be 10 taken up in the oral argument.
11 MR. SILBERG: No, we're just trying to 12 understand how it fit in with the argument.
13 MR. SHADIS: Sure. Mr. Blanch submitted 14 a declaration with respect to his two contentions that 15 he underwrote as an expert.
16 ADMIN. JUDGE KARLIN: Okay. That point is 17 taken. Certainly Mr. Silberg and Mr. Shadis you can 18 argue about the appropriateness of an affidavit that 19 is sort of floating out there and not explicitly 20 referenced.
21 MR. SILBERG: It was just a question of 22 understanding.
23 MR. SHADIS: Yes, I know that -- I don't 24 have -- to be honest with you, I don't have our reply 25 brief in front of us. You know my recollection is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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58 1 that it was referenced. If it wasn't, you know, 2 that's an omission on our part. And what can happen 3 to remedy that or not, I don't know.
4 MR. SILBERG: Maybe if offline when you 5 get a chance, Mr. Shadis, you could just let me know 6 or let the Staff and us know?
7 MR. SHADIS: Certainly.
8 MR. SILBERG: Thanks.
9 MR. SHADIS: I'll look into it. Thank 10 you.
11 ADMIN. JUDGE KARLIN: Any other points?
12 Ms. Poole? Anyone else?
13 ADMIN. JUDGE RUBENSTEIN: This is Judge 14 Rubenstein.
15 ADMIN. JUDGE KARLIN: Yes?
16 ADMIN. JUDGE RUBENSTEIN: Moving on to the 17 potential agenda, I was wondering if there were any 18 comments on what I heard from Mr. Shadis starting the 19 oral arguments with discussion as to the scope of the 20 hearing, going then on to the contentions with or 21 without order, and then ultimately to Subpart G versus 22 Subpart L.
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59 1 in that, the contentions per se, and Subpart G v. L.
2 ADMIN. JUDGE KARLIN: I think the scope of 3 the hearing is in some ways similar to G versus L. So 4 perhaps we can talk about that. But that's what -- I 5 think that they blend together.
6 ADMIN. JUDGE RUBENSTEIN: Well, in terms 7 of the scope of the hearing, as a prelude to the 8 contentions, one should be clear on the so-called 9 sanctity of the current licensing basis and the 10 contentions which may address it, those types of 11 issues.
12 ADMIN. JUDGE KARLIN: That's a good point, 13 yes.
14 ADMIN. JUDGE RUBENSTEIN: In other words, 15 one should understand that the contentions have to be 16 derived from the SAR and related documents. And one 17 cannot question the SER so that should not be within 18 the scope.
19 Those sort of things, I think are what --
20 that plus the legal format of our hearing is what Mr.
21 Shadis is talking about. And that might set the stage 22 for a better understanding of our remarks on the 23 contentions.
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60 1 challenging? What specific relief are you asking for 2 if this contention were admissible?
3 So it may get to a better discussion on 4 the contentions.
5 ADMIN. JUDGE KARLIN: Okay. Well, I think 6 that's a valuable point. And the Board will work 7 together, you and I and Judge Baratta to develop a 8 format and order that articulates what we think will 9 be needed on the 21st. That's a good point.
10 Anything else?
11 ADMIN. JUDGE BARATTA: No. Judge Baratta.
12 ADMIN. JUDGE KARLIN: Okay. All right.
13 I appreciate everyone's participation and being 14 available for this call.
15 And we will -- we intend to and I think we 16 will issue an order by the end of this week laying out 17 the allocation of time for oral argument on the 21st.
18 Thank you everyone.
19 (Whereupon, the above-entitled matter was 20 concluded at 3:23 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: Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.
Docket Number: 50-271-OLA and ASLBP No.04-832-02-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.
Rebecca Davis Official Reporter Neal R. Gross & Co., Inc.
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