ML051080233
| ML051080233 | |
| Person / Time | |
|---|---|
| Site: | Millstone  (DPR-065, NPF-049) |
| Issue date: | 04/12/2005 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Julian E | |
| References | |
| 50-336/423-LR, ASLBP 05-837-01-LR, NRC-327, RAS 9863 | |
| Download: ML051080233 (98) | |
Text
OffMical Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Dominion Nuclear Millstone Plant Pre-Hearing Conference Docket Number:
Location:
Date:
50-336 and 50-423; ASLBP No.: 05-837-01-LR (telephone conference)
Tuesday, April 12, 2005 Work Order No.:
NRC-327 Pages 1-96 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD (ASLB)
PRE-HEARING CONFERENCE
-x IN THE MATTER OF:
DOMINION NUCLEAR, CONNECTICUT, INC.
(Millstone Nuclear Power Station, Units 2 and 3
- Docket Nos.
- 50-336 and 50-423
- ASLBP No. 05-837-01-LR x
Tuesday, April 12, 2005 The pre-hearing teleconference came to order at 2:00 p.m., the Honorable Michael Farrar, Chair, Presiding.
BEFORE:
MICHAEL C. FARRAR Administrative Judge, Chair ALAN S. ROSENTHAL Administrative Judge PETER LAM Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
WASHINGTON, D.C. 20005-3701 (202).
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APPEARANCES (continued):
2 On Behalf of the Petitioner, Suffolk County:
3 JENNIFER B. KOHN, ESQ.,
4 Assistant County Attorney 5
GEORGE NOLAN, ESQ.,
6 Bureau Chief 7
Department of Law 8
158 North Country Complex 9
Veterans Memorial Highway 10 Hauppauge, NY 11787-4311 11 (631) 853-530 12 13 On Behalf of the Applicant, Dominion:
14 LILLIAN CUOCO, ESQ.,
15 Senior Counsel 16 Dominion Resources Services, Inc.
17 Rope Ferry Road 18 Waterford, CT 06385 19 (860) 444-5316 20 and 21 MATIAS TRAVIESO-DIAZ, ESQ.
22 TIMOTHY WALSH, ESQ.
23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES (continued):
Shaw Pitman, LLP 2300 N Street, NW Washington, DC 20037-1128 (202) 663-8000 On Behalf of NRC Staff:
BROOKE POOLE, ESQ.
KATHERINE WISBERG, ESQ.,
Assistant General Counsel To Reactor Programs JOHNNY EADS, ESQ.
Office of the General Counsel Mail Stop 0-15 D21 US Nuclear Regulatory Commission Washington, DC 20555-0001 (301) 415-1778 ALSO PRESENT:
Paul Sabatino II, Chief Deputy County Executive Michael Deering, Director of Environmental Affairs Joseph F. Williams, Commissioner of Fire, Rescue, Emergency Services (202) 234-4433 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23 24 25 APPEARANCES (continued):
Warren Horst, Chief Fire Marshall Richard Gimbl, Fire, Rescue, Emergency Services Martin Trent, Acting Chief, Office of Ecology, Department of Health Services Pat Doddona, The Day of New London Neil Sheehan, OPM Dennie Williams, Hartford Courant Report Nancy Burton, Connecticut Coalition Against Millstone Sherverne Cloyd, Board Staff 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
(2:04 p.m.)
3 ADMIN. JUDGE FARRAR: This is Mike Farrar.
4 I'm the Chairman of Millstone Licensing Board. I'm at 5
Licensing Board Chambers.
With me are my two 6
colleagues, Judge Alan Rosenthal and Judge Peter Lam.
7 We have the Court Reporter here with us.
And 8
Sherverne Cloyd is with us from our staff who was so 9
helpful in setting all this up.
10 It's the county's motion.
Who is 11 representing the county?
12 MS. KOHN:
The Suffolk County Attorney 13 Jennifer Kohn and Assistant County Attorney and George 14 Nolan, Bureau Chief.
We also --
15 MR. SABATINO:
The other people present 16 are myself, Paul Sabatino, Chief Deputy County 17 Executive.
And I'll let the other people introduce 18 themselves.
We have some staff people here.
19 ADMIN. JUDGE FARRAR:
All right.
20 MR. HORST:
Warren Horst, Chief Fire 21 Marshall from the county's Department of Fire, Rescue, 22 Emergency Services.
23 ADMIN. JUDGE FARRAR: You'll have to come 24 closer to the phone. We missed your name.
25 MR. HORST:
Warren Horst.
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ADMIN. JUDGE FARRAR:
All right.
2 MR. HORST:
I'm the Chief Fire Marshall 3
with the county's Department of
- Fire, Rescue, 4
Emergency Services.
5 ADMIN. JUDGE FARRAR:
All right.
Thank 6
you.
7 MR. WILLIAMS:
Joseph Williams.
I'm the 8
Commissioner of Fire, Rescue, Emergency Services, 9
Suffolk County.
10 ADMIN. JUDGE FARRAR:
Okay.
11 MR. GIMBL:
Rick Gimbl, Fire, Rescue, 12 Emergency Services, Suffolk County.
13 ADMIN. JUDGE FARRAR: All right.
14 MR. DEERING: Michael Deering, Director of 15 Environmental Affairs for Suffolk County.
16 MR.
TRENT:
And Martin Trent with the 17 Department of Health Services for Suffolk County.
18 ADMIN. JUDGE FARRAR: All right. And the 19 first person with you, Ms. Kohn, was George Nolan?
20 MS. KOHN:
George Nolan.
21 ADMIN. JUDGE FARRAR:
Yes.
22 MR. NOLAN: From the Municipal Law Bureau, 23 County Attorney's Office.
24 ADMIN. JUDGE FARRAR: All right.
25 For the company? Oh, and by the way, I'm NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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sorry, we appreciate all of you taking the time to 2
participate.
Thank you.
3 MR. SABATINO: We also --
we want to thank 4
you on behalf of the County of Suffolk for giving us 5
the opportunity to make the presentations.
So thank 6
you very much.
7 ADMIN. JUDGE FARRAR:
All right.
8 For the company?
9 MR. TRAVIESO-DIAZ:
Yes, good afternoon, 10 Mr. Chairman, members of the Board, my name is Matias 11 Travieso-Diaz.
And I'll spell it for the Reporter.
12 First name is --
13 ADMIN. JUDGE FARRAR:
He's got it.
We
('
14 gave him a list.
15 MR. TRAVIESO-DIAZ:
All right.
16 MR. SABATINO:
Could he spell it anyway?
17 I'm sorry.
18 MR. TRAVIESO-DIAZ:
Sure.
19 MS. KOHN:
Could I get a list at the end 20 of the day? Thank you.
21 MR. TRAVIESO-DIAZ: First name is spelled 22 M, as in Mary, A-T, as in Thomas, I-A-S. Last name is 23 a hyphenated name Travieso-Diaz spelled T as in 24 Thomas, R-A, V as in Victor, I-E-S-O, hyphen, D as in 25 David, I-A-Z.
The Law Firm that I worked with is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 called Pillsbury Winthrop Shaw Pitman.
With me in the office today is Timothy Walsh, also from our firm. And I believe on the line, although not with us, is Lillian Cuoco.
That's spelled C-U-O-C-O.
And she's in-house counsel for Dominion Nuclear.
MS. CUOCO:
That's correct.
I am on the line.
Good afternoon everyone.
ADMIN. JUDGE FARRAR:
All right.
Mr. Travieso-Diaz, this is not just a coincidence.
A gentleman by that name appeared in front of us in the Private Fuel Storage proceeding for a number of years.
MR. TRAVIESO-DIAZ:
I vaguely seem to remember that, sir.
(Laughter.)
ADMIN. JUDGE FARRAR: I'm glad to have you
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on board.
For the staff?
MS. POOLE:
Good afternoon.
This is Brooke Poole.
With me in the room is Katharine Wisberg, also from the Office of the General Counsel.
And Johnny Eads, E as in Eric, A-D-S. And he is the Safety Project Manager from Millstone.
And, I believe, Neil Sheehan from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Office of Public Affairs is present from another line, correct?
ADMIN. JUDGE FARRAR: Yes, I'll get to him in a minute.
All right.
We welcome all the parties.
Neil, you're on here?
MR. SHEEHAN:
Yes, sir.
ADMIN. JUDGE FARRAR: Okay. Good to hear from you.
Is Diane on?
MR. SHEEHAN:
No, just myself and Mary Joann.
ADMIN. JUDGE FARRAR:
All right.
And I think we had a couple of reporters.
MS. DODDONA:
Yes, Pat Doddona from The Day of New London.
ADMIN. JUDGE FARRAR:
All right.
MR. WILLIAMS:
Johnny Williams from the Hartford Times.
ADMIN. JUDGE FARRAR: All right. Welcome to both of you.
Anyone else on the line?
MS. BURTON:
Yes, Judge Farrar, it's Nancy Burton. And I'm here participating to a limited extent on behalf of the Connecticut Coalition against NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Millstone.
ADMIN. JUDGE FARRAR: All right.
This is a --
welcome all of you.
This is a little bit of an unusual proceeding.
When we have pre-hearing conferences in person, we have them in the courtroom and they're open to public observation.
When we do them as conference calls, we have tended not to have anyone but the parties involved.
And I think there are three reasons for that. There has always been a concern that you could lose control of the proceeding. The only way we can have any control is to end the call entirely rather than in a courtroom where we have more control.
Second, when you're on the phone, to the extent that there is humor injected to alleviate tensions, people who are not present may not --
and don't know each other, may not see that.
And third, we sometimes would bring counsel to the bench for off-the-record conferences on things that we don't want to have on the transcript.
And, of course, we can't do that on a phone call.
But all things considered, we thought it was worthwhile to go ahead with the reporters and with Ms. Burton.
I think --
well, I mean if the rules weren't explained, this is not a public hearing. The NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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only people entitled to speak at this are the counsel 2
for the parties and anyone with them whom they 3
designate.
4 Ordinarily it would be counsel who speaks 5
but Ms. Kohn has a number of people there who she 6
could call on if a question requires it. And the same 7
thing with the staff with the Project Manager and the 8
company with in-house counsel somewhere else.
9 But as far as the two reporters and Ms.
10 Burton are concerned, you're welcome to listen but not 11 welcome to speak.
Is that all right, Ms. Doddona?
12 MS. DODDONA:
Absolutely.
13 ADMIN. JUDGE FARRAR:
Mr. Williams?
14 MR. WILLIAMS:
Yes, that's fine.
One 15 thing is if, at the end, we could make sure that if 16 something comes up that we understand who is who 17 because, you know, there are a lot of names here. But 18 that's fine.
19 ADMIN. JUDGE FARRAR: Yes, and you are, of 20 course, welcome to call the parties afterwards --
21 MR. WILLIAMS:
Okay.
22 ADMIN. JUDGE FARRAR:
and, you know, 23 get their view on what they thought. But we'll not do 24 that --
25 MR. WILLIAMS:
Right.
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ADMIN. JUDGE FARRAR:
on the call.
2 And Ms. Burton, those ground rules are 3
fine with you?
4 MS. BURTON:
Understood.
5 ADMIN. JUDGE FARRAR:
Okay.
Thank you.
6 Let's get started.
Our order convening 7
this call, it said --
and we've, you know, we've read 8
all your briefs.
9 We said we would start with wanting to 10 hear --
even though this is the county's motion, we 11 want to hear first from the company and the staff 12 about the West Valley series of decisions, the issue, 13 of course, being the county was late filing its 14 request here.
15 But there is a West Valley case in which 16 the Commission held that a county nine months late 17 with no excuse would be permitted to intervene.
And 18 so we thought we'd want to hear first from the company 19 and the staff.
20 And it's no coincidence that the name of 21 the Appeal Board dissenting decision that became the 22 law of the case is the same Judge Rosenthal who is 23 sitting here with me.
24 So, Mr. Travieso-Diaz, do you want to 25 start?
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MR. TRAVIESO-DIAZ:
Yes, surely.
2 I would like, at an opportune time, to 3
talk more generally beyond the West Valley decision.
4 ADMIN. JUDGE FARRAR:
All right.
5 MR. TRAVIESO-DIAZ:
I hope I have the 6
opportunity to do that later on.
But let's just get 7
into West Valley now.
8 The 1975 West Valley case, the main 9
holding of the case was that in evaluating an untimely 10 intervention petition, one must look at all the 11 factors that were at the time listed.
There were 12 five. Now there are eight. And I think that is still 13 the law and I don't think anybody disputes that. Both 14 the Applicant and the staff have addressed at some 15 length all these factors in the file.
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- However, there are other Commission 17 decisions, both more recent and more on point, that 18 control what we have before us today.
The most 19 important, I think, because it is most akin to the 20 facts that we have here, is the decision by the 21 Commission on the Comanche Peak case.
I'm referring 22 to CLI-93-4, 37 NRC 156. And as I discuss that case, 23 you will see why it is directly on point with what we 24 have here.
25 In the Comanche Peak case, there was, like NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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here, a very late intervention petition by a party who 2
did not have a good excuse for the late intervention.
3 The Commission looked, again, at the time, there were 4
only five factors as opposed to the eight that we have 5
now, and went through all of them in determining that 6
a party should not be allowed to intervene.
7 With respect to the first factor, which is 8
good cause for a non-timely filing, the Commission 9
noted that that particular intervention petition 10 raised an issue that had to do with the use of 11 thermal-like insulation at the Comanche Peak plant.
12 The Commission found that Investor 13 Vinershu had known for a long time that this issue had 14 been raised. And they were at least six months late, 15 specifically one date he would certain that they had 16 noticed, in filing the petition. That is, of course, 17 exactly as it is that we are here.
18 We are nine months of actual notice in the 19 Federal Register and six months of beyond doubt notice 20 not contested by the county by virtue of the 21 resolution passed by the County Board -- pardon me --
22 by the County Legislation authorizing the initiation 23 of proceedings to oppose the renewal of the Millstone 24 license.
25 So in that situation, the Commission --
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 Comanche Peak felt that when there is no excuse for a late filing, that petitioner must make a compelling case with respect to the other factors.
ADMIN. JUDGE FARRAR: All right. But then you would agree that the nine months late with no good cause and for purposes of this portion of the argument, let's assume there was no good cause, that's not disqualifying on its own?
MR. TRAVIESO-DIAZ:
No.
But as was said by the Board in the Comanche Peak decision, and I believe that was said by Judge Rosenthal in another case, in a situation like that, you must make a compelling case with respect to the remaining factors.
That is the significance of Comanche Peak and others in this part.
ADMIN. JUDGE FARRAR: Is that the one from West Valley where the showing looked to be a little less than compelling?
MR. TRAVIESO-DIAZ:
No, actually even in West Valley, the Commission, when the rule said the burden would just be find intervention when the basis of the other factors in the rule is considerably greater than when the latecomer has no good excuse.
So if you want to call it compelling, very strong, or greater, they have to show significantly more than NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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just, you know, even money.
They have to make a very 2
strong case on the remaining factors --
3 ADMIN. JUDGE FARRAR: Let me ask you --
4 MR. TRAVIESO-DIAZ:
if there is any 5
decision on that.
6 ADMIN. JUDGE FARRAR:
let me ask you 7
this.
In West Valley as in this case, the late 8
petitioner is a governmental entity. Was that true in 9
Comanche Peak?
And if not, is that a factor that 10 should be taken into consideration in weighing these 11 various criteria?
12 MR. TRAVIESO-DIAZ:
Well, in Comanche 13 Peak, the party was not a government entity. However, 14 I believe the status of the petitioner as a government 15 entity or not is only relevant to the most outstanding 16 interest. But I don't think that a government entity 17 has any greater rights to participate in a hearing if 18 it doesn't meet the requirements about the regulations 19 than anybody else. They are not privileged to come in 20 if they don't meet the requirements.
21 ADMIN. JUDGE FARRAR:
And wasn't there a 22 hint of that in West Vallev? That the --
I think it 23 was the County of Erie, that that was a --
that they 24 had --
they were a little more equal than say a 25 private party?
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TRAVIESO-DIAZ:
No, I think the 2
distinction was valid.
- And, again, it is a
3 distinction between that case on the one hand and 4
Comanche Peak and our case on the other.
5 ADMIN. JUDGE LAM:
This is Judge --
6 MR. TRAVIESO-DIAZ:
In the West Valley 7
situation, there were already other parties in an 8
already ongoing proceeding. And that the state entity 9
had raised an issue that nobody else had raised. And 10 that it was a legitimate issue for a hearing.
11 So in that respect when you have an 12 already ongoing proceeding, it's not going to be 13 greater prejudice if somebody else comes in 14 particularly if it is a new issue that has not been 15 alleged by anybody, a valid contention represented by 16 somebody who is in a position to raise it.
I think 17 that that would be --
that would put the county, in 18 that case, in a position of being more equal than the 19 others.
20 But I don't think it applies here at all.
21 Because here we don't have a proceeding going on.
22 Here we don't have a contention that it is admissible.
23 And I will talk on that at quite long length later if 24 you want.
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justify establishing a proceeding only on that basis.
2 ADMIN. JUDGE LAM: Mr. Travieso-Diaz, this 3
is Judge Lam.
Let me go back to things you earlier 4
said about compelling reasons.
Assuming there is 5
indeed a lack of good cause, isn't it true the 6
Licensing Board also had considerable discretion in 7
determining what the standard for compelling reason.
8 MR. TRAVIESO-DIAZ:
Obviously compelling 9
is like any other word, one that is open to 10 interpretation.
However, you look at the way that 11 that word has been applied, say in the Comanche Peak, 12 as I will tell you in a moment, you will see that it 13 is clear that compelling is not just making some sort 14 of a case. You have to have very strong arguments on 15 your side as to why you should be able to intervene 16 based on the other factors.
17 If I could go on?
Unless you have any 18 more questions?
19 ADMIN. JUDGE FARRAR:
Yes.
You talked 20 about the distinction with West Valley, the nature of 21 that proceeding and here you have no proceeding. Your 22 client's two licenses are due to expire when?
23 MR. TRAVIESO-DIAZ: Ten and 20 years from 24 now.
25 ADMIN. JUDGE FARRAR:
2015 and 2025?
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TRAVIESO-DIAZ:
correct.
ADMIN. JUDGE FARRAR:
And how much under the Commission's rules, how far in advance are you ordinarily allowed to apply for a license renewal?
MR. TRAVIESO-DIAZ:
You are allowed to apply in 20 years. And if I could tell you why the 20 years was set that way, that might clarify what these numbers mean.
ADMIN. JUDGE FARRAR: Hold it. So you are allowed automatically to apply 20 years ahead of time?
MR. TRAVIESO-DIAZ:
Yes.
ADMIN. JUDGE FARRAR:
I thought --
for some reason, I thought it was shorter. I've never had a license renewal case.
I thought it was shorter.
And that you got a special permission to apply early.
MR. TRAVIESO-DIAZ: Well, let me tell you why that special permission. And I'll tell you where you are going to find it.
You can find it on 56 FR 64943.
At 64963, that is the rule that established the procedures for license renewal.
And the NRC explained in that statement of considerations for renewal that you need 20 years because -- and the numbers, I suspect, are even longer today, if the application is for some reason denied, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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you want to plan on startup generation, you need 10 to 2
12-year minimum for a fossil plant and 12 to 14 years 3
for other generation plus that doesn't take into 4
account the amount of time that the staff has to spend 5
reviewing the application before they decide to turn 6
it down.
7 So they felt that 20 years was a
8 reasonable time because it's not just a question as to 9
when the license expires but what happens if you don't 10 get the renewal.
11 ADMIN. JUDGE FARRAR:
All right. And if 12 there were no interveners in this case, when is the 13 staff due to pass its judgment on your license renewal 14 request?
15 MR. TRAVIESO-DIAZ:
I believe that the 16 schedule that has been set is for November of --
okay 17 November of this year.
Let me tell you that the 18 staff has published, and you can find this on the NRC 19 website, a table of estimated times for acting on a 20 license renewal application.
21 And the table indicates, based on 22 experience, that the difference between having a 23 license application that is uncontested and one that 24 is contested leading to hearing is a minimum of eight 25 months.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 So having the petition accepted and carried through could add eight months to the period that the staff would need in order to be able to issue the license.
I'm making this point, not only because you asked but also because the county has suggested that there is no prejudice to Dominion by having the application delayed by the institution of the proceeding as they request.
That's actually not the case for a number of reasons.
But the ones that I gave you a moment ago are the most obvious ones.
ADMIN. JUDGE FARRAR:
All right.
That's helpful.
I'll tell you how we'd like to proceed.
I think we have your view on what West Valley means and doesn't mean. I'd like to hear -- unless you have we want to hold the discussion of the --
you know, how the factors weigh and whether they are, in fact, compelling or if that is the right standard --
hold that to the next phase.
Do you have anything else you want to say about West Valley and the timing issue before we hear from the staff and then from the county?
MR. TRAVIESO-DIAZ:
Well, I'd be glad to answer any more questions.
I do want to address when NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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3 22 we get to the factors the relevance of the Comanche Peak decision in which all these things were discussed.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ADMIN. JUDGE FARRAR:
let's hold that. We have your view the timeliness.
All right.
Well on West Vallev and ADMIN. JUDGE LAM: Now this is Judge Lam.
I'd like to hear you clarify this timing issue.
Now given you had 10, 20 years' time to renewal, why isn't the county's argument persuasive?
MR.
TRAVIESO-DIAZ:
- Well, I think I explained to you what and how the numbers play out, okay?
In fact, as you just pointed out, the license for Unit 2 expires in ten years.
If you go through the mathematics that the Commission used in implementing the rule, the tables that the staff provided, but you will find that the schedule for Unit 2 is relatively tight.
And, in fact, should there be a denial either by the staff or as the result of this hearing of the license, Dominion may have to scramble to find a way to replace the power for Unit 2.
So I think that there is urgency.
And anything that derails the schedule as it is, it is going to adversely impact our client and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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their ability to continue normal operations at 2
Millstone.
3 ADMIN. JUDGE FARRAR:
So that's more on 4
the order of the company's business planning to supply 5
the consumers in Connecticut than it is tied right to 6
the operation of the plant itself?
7 MR. TRAVIESO-DIAZ:
Well --
8 ADMIN.
JUDGE FARRAR:
And I'm not 9
discounting that factor. But that's the argument that 10 you're making. That the company is entitled to know -
11 or the consumers of electricity in Connecticut are 12 entitled to have the company know sooner rather than 13 later which direction it is going.
14 MR. TRAVIESO-DIAZ:
Well, it goes to one 15 of the eight factors for allowing a late petition to 16 be accepted because you have to see where the burden 17 for having such an application accepted -- pardon me -
18 such a petition filed and accepted as timely.
19 It is a
burden of potentially 20 significantly adverse consequences to the client --
to 21 the company.
22 ADMIN. JUDGE LAM:
Well, you know, but 23 this really not --
I mean I understand the value of 24 long-term planning.
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cause a delay of a few months, that should not 2
materially impact on your planning because you have 3
such a long lead time.
4 I mean I understand what you were saying 5
about a tight schedule. But the impact, to me, seems 6
to be perhaps minimal.
7 MR. TRAVIESO-DIAZ:
I'm sorry.
But, in 8
- fact, 2.309(c) (vii) says in deciding whether to 9
consider an unjustifiably late petition for 10 intervention is the potential for delay. And this is 11 what I'm talking about. So it is a factor that needs 12 to be considered and given considerable weight.
13 ADMIN. JUDGE FARRAR:
All right.
- Well, 14 let's hold that until we get to the factors.
Thank 15 you, Mr. Travieso-Diaz.
16 Ms. Poole, you want to give us the staff's 17 position on this?
18 MS. POOLE:
Thank you.
The staff agrees 19 that the fundamental premise of the Commission's 20 decision in West Valley is still good law.
Which is 21 to say that a showing of good cause for lateness is 22 not a condition precedent to consideration of the 23 other factors, then four, now seven, in the late 24 filing rule.
25 But I
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Commission's decision in West Valley are some 2
circumstances that the staff believes necessitate 3
coming to a different conclusion in this case.
4 In West Valley, the Licensing Board and 5
the Commission determined that under the rules in 6
effect at that time, Erie County had proffered an 7
admissible contention.
In the case before us, 8
however, putting aside completely the county's lack of 9
good cause for its lateness, the petition must still 10 be denied for failure to proffer an admissible 11 contention.
12 ADMIN.
JUDGE FARRAR:
Yes, but wait --
13 that's --
we want to hold that.
14 MS. POOLE: No, no, and I understand. We 15 need to talk about that --
16 ADMIN.
JUDGE FARRAR:
Right.
17 MS.
POOLE:
later on.
18 ADMIN. JUDGE FARRAR:
For purpose of the 19 timeliness argument, let's assume that this was a 20 valid --
for purposes of this part of the argument --
21 and I know we'll hear from you later that it isn't, 22 but let's assume that this was a valid contention, you 23 know, within our jurisdiction and well stated and so 24 forth.
25 MS.
POOLE:
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 in CLI-75-4 that favorable findings on some or even all of the other factors in the late filing rule need not outweigh the effect of the inexcusable tardiness.
And for the reasons set forth in our answer, I think we continue to believe that the silence of the late filing factors doesn't weigh in favor of granting the petition.
ADMIN. JUDGE FARRAR: Is that because you think not only is there no excuse for being late here but there's really no excuse?
If you --
MS. POOLE: Well, putting the late filing aside, the other factors, we think, don't weigh in favor of granting the late petition.
ADMIN. JUDGE FARRAR:
Okay.
Because I will tell you that when I read West Valley, I was surprised at how really no excuse there was there. Or is that an improper reading of West Valley?
MS. POOLE:
No, no.
There was really no excuse there.
And we think there's really no excuse here.
But even still, we have to consider the other factors and we don't think they weigh in favor of granting the petition.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 to talk both about West Valley and about the degree to which your excuse, whether you do have an excuse --
and I'll caution you that not getting the Federal Register is not viewed around here as much of an excuse.
We've had a series of cases on that.
But, Ms. Kohn, go ahead.
MS. KOHN:
Well, as I said in my papers, I did believe that the West Valley case directly applies to these facts and circumstances.
I think that the county has a very clear cognizable interest here that outweighs any tardiness.
I think first of all, that we are within -
- we're in a close distance to the plant. There is a proximity presumption, which I outlined in my papers.
ADMIN. JUDGE FARRAR:
Yes, well wait a minute.
Let's hold those that go to the factors.
Let's talk first on the matter of the excuse.
Can we proceed on the basis that like the County of Erie, there's not much of an excuse, if any, for the lateness here?
I'm not saying that's --
MS. KOHN:
I'm not going to admit that.
We do feel that, you know, there is an excuse. We're not as familiar with the rules of the proceedings, obviously, as the people who deal in this area all the time are.
We had a new administration.
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28 I can tell you that researching the motion, from my own personal point of view, was quite difficult. A lot of the documents weren't available on the website for security reasons. And I think we did the best we could.
And I think that given the strength of our interest in this proceeding, that that outweighs the lateness factor.
And I think we have a very clear cognizable interest here that wouldn't otherwise be represented.
ADMIN. JUDGE FARRAR: All right. Well, I think we have an understanding of where we start from here.
I think with that --
or unless you have something to add, Ms. Kohn, on this point, I was going to move into the factors.
But I didn't want to cut you off.
MS. KOHN: Well, just that, you know, I do feel that the time in between the --
should the county be allowed to intervene, I think that Dominion does have sufficient time to continue without interrupting electric service to the population of Connecticut.
ADMIN. JUDGE FARRAR: All right. I think then --
I don't think there's any need from the company or the staff for rebuttal on that.
Let's move into the factors.
I'll let --
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and the company says it has to be a compelling showing 2
on the other factors to outweigh the lack of good 3
cause.
So, Mr. Travieso-Diaz, let's go through those 4
factors. And I'd like you to discuss those factors on 5
the following assumption.
There's an argument here 6
that the contention is outside the jurisdiction of 7
this kind of proceeding.
8 If you're right on that, and I know the 9
county has a request for an exemption, but if you are 10 right on that that it is outside the jurisdiction, 11 then you necessarily win and we wouldn't allow the 12 county to intervene.
13 Let's discuss the factors then on the
-14 assumption that the contention is within our 15 jurisdiction.
In other words if we, because, as I 16 said, the alternative is if it is not within our 17 jurisdiction, the company wins and the county gets 18 dismissed.
19 If it were within our jurisdiction, how 20 would the factors weigh? Is that clear, Mr. Travieso-21 Diaz, the hypothetical I'm asking you?
22 MR. TRAVIESO-DIAZ: It is very clear. Let 23 me fight with your hypothetical for just one second 24 and you'll understand why.
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12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 petition should even be considered relate to what kind of case does the petitioner want to make.
ADMIN. JUDGE FARRAR:
Yes.
MR. TRAVIESO-DIAZ:
So if you are going to, for example in West Valley, one of the factors, an important factor in letting Erie County in is that they had proffered an admissible contention.
So I need to fight your hypothetical only in the limited sense of showing to you how the fact that they do not have an admissible contention effects even the factors to be admitted to be considered with respect to lateness.
Let me explain.
For example, the county just made a big argument that their interest in this proceeding outweighs lateness and other factors of the law.
The law on point is that that factor is relatively minor compared to the others.
But more importantly, the interest that they are citing here, and this goes to (ii) and (iii) on 309 (c) (1), the interest they are citing here is the interest in protecting their citizens against emergency preparedness deficiencies.
That is an interest only so in this kind of proceeding.
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31 that the interest they're trying to raise is not one that should be raised or can be raised in this proceedings.
That's why I'm fighting your hypothetical a little bit.
ADMIN. JUDGE FARRAR:
Right.
And I understand that. And we certainly don't want to take that argument away from you ultimately. But in order for us --
you know, this is our first contact with the case.
In order for us to understand clearly the different arguments, we'd like to see how that shapes up if this were an admissible contention.
MR. TRAVIESO-DIAZ:
Okay.
Let me go on.
ADMIN. JUDGE FARRAR: And, you know, we're not intending to deprive you of that argument.
And that's a very --
obviously a very forceful argument.
The problem is for purposes of the eight factors, it's almost too strong because if you are right on that, then they have nothing on the eight factors, and so --
MR. TRAVIESO-DIAZ: I understand. But let me just go through them --
ADMIN. JUDGE FARRAR:
Right.
MR. TRAVIESO-DIAZ:
and you will see.
And I'm not going to do them in the order in which they are listed because the Commission has, in other decisions, stated which are the most important ones, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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okay?
2 ADMIN. JUDGE FARRAR:
All right.
3 MR. TRAVIESO-DIAZ:
And, in fact, let me 4
go back to Comanche Peak. One of the factors that the 5
Commission said in Comanche Peak was the most --
or 6
most greatest weight, or most important, is the 7
ability that can be expected the petitioner will make 8
to the developing of a sound record.
9 The Commission said in Comanche Peak there 10 appears to us to be no reason to allow an inexcusable 11 belated petition particularly to trigger a hearing.
12 It is cause to believe that a petitioner not only 13 proposes to raise at least one substantial safety or 14 environmental contention, but as well is equipped to 15 make a worthwhile contribution to it.
I'm reading 16 from 37 NRC 166.
17 Now here we have a situation which unlike 18 in West Valley where the county had raised at least 19 one, maybe more than one valid contention.
The 20 contentions that are raised here are inadmissible for 21 two different reasons.
One, the one that I just said 22 before and I'm not going to dwell on it, is the fact 23 that emergency response contentions are admissible.
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examine, assuming that you go past the lateness, how 2
do you go about meeting the burden of 'having 3
admissible contentions and actually having the right 4
to have a hearing on them?
5 There is no evidence to show that the 6
county is prepared to make a contribution to 7
developing a more stronger or a sound record even in 8
emergency response.
There is not a single --
a 9
specific Millstone-related document that has clearly 10 supported the contention they're making. There is not 11 a single expert that they have said they are going to 12 retain that is going to testify or what he is going to 13 say.
14 ADMIN. JUDGE FARRAR:
Okay.
Let me 15 interrupt you there. I guess I have problems with the 16 direction of your argument because it would seem to me 17 that if I am worried about emergency planning then the 18 people who without any question are the experts are 19 the people in the county.
20 And they have the information on how they 21 do emergency planning.
They have information on 22 population.
They have information on projected 23 population growth.
They know how their resorts work 24 on the weekends.
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county is not the outfit that knows the most about 2
emergency planning?
3 MR. TRAVIESO-DIAZ: Well, the question is 4
not whether they have expertise.
It is whether their 5
contentions are supported by the statements as to what 6
the basis for the contentions is, what evidence they 7
intend to provide, what the experts will testify 8
about.
9 I'm not here, of course, this is too early LO in the day to talk about the expertise and LI qualifications of the potential witnesses.
I'm L2 talking about the quality, the basis, the specificity L3 of the contentions.
They have done nothing to show L4 that A, they have a big problem and that they can 15 provide very strong evidence on the record to show the 16 developing of that particular thought.
That's my
.7 point.
.8 It's not evidentiary.
It is just they
.9 have failed to comply with the requirements that would 20 determine to the satisfaction of the Board that they 21 come prepared that they can make a strong showing.
22 ADMIN. JUDGE ROSENTHAL:
I thought -- this 23 is Alan Rosenthal.
I thought that Judge Farrar asked 4
you to assume for the purpose of this discussion that
!5 there was a valid contention on the table.
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MR. TRAVIESO-DIAZ:
Yes.
2 ADMIN. JUDGE ROSENTHAL: And he asked you 3
to consider the factors on that premise.
Now we 4
appreciate the fact that you do not think that this 5
issue is within the Board's jurisdiction although the 6
county, as you know, has requested us to certify to 7
the Commission or request the Commission to grant an 8
exemption, which is an entirely separate issue.
9 But what I'm interested in hearing from 10 you is an answer to Judge Farrar's question as posed.
11 And that is assuming that there is a valid contention 12 on the table, how do these other factors play out.
13 And I can tell you from my standpoint that 14 I'm not prepared to get into, at this juncture, 15 whether the county has the expertise or doesn't have 16 the expertise, or whether it appears from what has 17 been presented that there is that expertise.
18 MR. TRAVIESO-DIAZ: Well, I'm sorry, first 19 to clarify, I thought that Judge Farrar hypothetically 20 said assume that, in fact, emergency preparedness is -
21 22 ADMIN. JUDGE ROSENTHAL:
All right.
All 23 right.
Now --
24 MR. TRAVIESO-DIAZ: So, now you are asking 25 a different question.
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contention?
2 ADMIN. JUDGE ROSENTHAL:
No, I'm not 3
getting into the contention. What I want to know from 4
you is how these other factors play on the assumption 5
that there is an admissible contention. Now you have 6
suggested that they can't make a contribution to the 7
record.
Or at least that they haven't demonstrated 8
that they can make that contribution.
Okay, that 9
addresses one factor.
10 Now let's get into the other factors as 11 you see them bearing upon this.
12 MR. TRAVIESO-DIAZ: All right. But again 13 with respect to these factors, again my point is 14 assuming that emergency preparedness is a valid 15 subject, the contentions that they have raised don't 16 demonstrate that they can make a strong contribution 17 to the record.
18 ADMIN. JUDGE FARRAR:
All right.
So 19 you're saying there is a failure of pleading --
20 MR. TRAVIESO-DIAZ:
Exactly.
21 ADMIN. JUDGE FARRAR:
in other words, 22 whether or not we think counties are generally the 23 right kind of people to be in on this kind of issue, 24 you're saying that looking at their pleading, we can't 25 draw that conclusion.
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MR. TRAVIESO-DIAZ:
That is the point I 2
was making.
3 ADMIN.
JUDGE FARRAR:
All right.
4 ADMIN.
JUDGE ROSENTHAL:
Let's go on to 5
the other factors.
6 MR. TRAVIESO-DIAZ: Another very important 7
factor that has been determined by the Commission in 8
a number of cases that is important is whether an 9
unjustifiably late intervention creates the potential 10 for delay if it is granted. And that's Factor No. 7.
11 In Comanche Peak, the Commission ruled 12 that this factor weighs heavily against the petitioner 13 because granting the petition will result in the 14 establishment of an entirely new pro forma proceeding, 15 just as we have here.
And this would force broad 16 existing regulatory issues and delay proceeding.
17 I'm reading 37 NRC at 167, quoting you, 18 Judge Rosenthal, from your decision in Jamesport, CLI-19 292, 2 NRC 631 at 650.
There is no way that anybody 20 can argue that the county coming in now and 21 establishing a new proceeding is not going to 22 introduce delay.
23 ADMIN.
JUDGE FARRAR:
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years to spare.
2 MR. TRAVIESO-DIAZ: Right. The Commission 3
told you you cannot say that. That that is not a good 4
argument to make.
5 ADMIN. JUDGE FARRAR:
Okay.
6 MR. TRAVIESO-DIAZ:
That's my point.
I 7
mean that's why the Commission said when they passed 8
license renewal as a proceeding.
9 And, in fact, the staff, if you take a 10 look at the website, you will see that the inevitable 11 consequence of having a new proceeding started now is 12 to add a minimum of eight months to the staff's 13 approval or the NRC's approval of the license renewal 14 application.
15 So there is going to be significant delay 16 if this petition is granted.
And that's a very 17 important factor.
18 ADMIN. JUDGE FARRAR: Okay. So you'd say 19 factors --
20 MR. TRAVIESO-DIAZ:
Seven and eight, in 21 addition to one, which we started from by saying it is 22 very important is the unjustifiable nature of the 23 delay.
24 ADMIN. JUDGE FARRAR:
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Factors Two and Three, they're all right on those?
2 MR. TRAVIESO-DIAZ: Well, I told you they 3
are not because --
4 ADMIN. JUDGE FARRAR: No, no, no, under my 5
hypothetical.
6 MR. TRAVIESO-DIAZ:
Oh, yes, yes, under 7
your hypothetical.
8 ADMIN.
JUDGE FARRAR:
Under the 9
hypothetical, they're all right on two, three, and 10 four presumably?
11 MR. TRAVIESO-DIAZ:
Yes.
12 ADMIN. JUDGE FARRAR:
Wait a minute.
13 They're all right under two, three, four, and six?
14 MR. TRAVIESO-DIAZ:
Let me see four and 15 six.
Six, of course, it is met because there are no 16 other parties. I mean that assumption applied in West 17 Valley but it doesn't apply here because there are no 18 other parties in the existing proceeding because of 19 the existing proceeding. However, I do not concede on 20 Factor Five.
21 ADMIN. JUDGE FARRAR:
Right.
I didn't 22 mention five yet.
23 MR. TRAVIESO-DIAZ:
Okay.
But five --
I 24 know you're going to be asking the county about five 25 but I'm going to tell you about five.
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ADMIN. JUDGE FARRAR:
All right.
2 MR. TRAVIESO-DIAZ: Five says if there is 3
any other way to protect the petitioner's interest.
4 The county has told you there are ways they intend to 5
use them.
In fact, there is a very simple one. They 6
can file a 2.206 petition, for which there are many 7
petitions that have been filed on this very subject of 8
9 ADMIN. JUDGE FARRAR:
Let me ask you a 10 question.
11 MR. TRAVIESO-DIAZ:
Yes?
12 ADMIN. JUDGE FARRAR:
And let me see, I 13 don't want to overstate this.
It's my impression 14 through the history of the Atomic Energy Commission 15 and the Nuclear Regulatory Commission there have not 16 been --
the 2.206 petitions have --
how can I say this 17 not be granted with great frequency.
18 MR. TRAVIESO-DIAZ:
That is --
well, I 19 don't know the statistics. They are very often denied 20 simply because the basis for filing the petition is 21 not meritorious.
22 ADMIN.
JUDGE ROSENTHAL:
Would you 23 disagree with my statement that in the last 30 years 24 or so, there have been no more than one or two 25 granted?
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MR. TRAVIESO-DIAZ: I don't have the facts 2
on that.
3 ADMIN. JUDGE ROSENTHAL:
Would you be 4
surprised if I told you that?
5 MR. TRAVIESO-DIAZ:
Well, again, I don't 6
have any facts.
7 ADMIN. JUDGE ROSENTHAL: Well, if that is 8
the case, would you still insist that 2.206 is a 9
meaningful remedy in reality as opposed to in theory?
10 MR. TRAVIESO-DIAZ:
Yes.
Because if you 11 assume, as you must, that the NRC staff is going to do 12 its job, if a meritorious 2.206 petition is filed, 13 they will grant it and they will take action and do 14 the 2.202 proceeding.
15 The statistics on which have been denied 16 doesn't go to whether it is a meaningful avenue.
It 17 goes to whether the petitions that have been have had 18 merit.
If, in fact, the county believes that the 19 claims they're making with respect to emergency 20 response have merit, let them file a 2.206 petition 21 then and we'll see what the staff does.
22 I'm not recommending that they do.
But 23 I'm saying this is an avenue.
That is available in 24 the regulations, available to them. And they can file 25 for it if they so choose.
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remedy.
2 ADMIN. JUDGE ROSENTHAL:
All right.
I 3
think you were going to say there were two reasons.
4 MR. TRAVIESO-DIAZ:
I'm sorry?
5 ADMIN. JUDGE ROSENTHAL: I think you said 6
there were two other ways their interest could be 7
protected.
8 MR. TRAVIESO-DIAZ: Well, again, without -
9 I don't want to either put ideas in their minds or 10 go into the details of the factual sessions which are 11 not before us now.
But you can file a petition.
12 There is a way of doing business by the staff and the 13 applicant or the licensee that is commonly accepted 14 and they don't think it is adequate.
15 One of the contentions seems to have 16 problems with the entire way that emergency response 17 is handled. That is the kind of thing that is ideally 18 suited for a rulemaking petition.
So that's another 19 way they have.
20 ADMIN. JUDGE LAM: Now perhaps the barrier 21 or the successful outcome for rulemaking petition is 22 even smaller than what Judge Rosenthal was talking 23 about.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 successful they will be.
I think that that entirely depends on the merits of what it is that they are asserting and whether there are facts to support it, and there is already a decision saying the issue has been raised.
I don't think that judging those things.
But available.
we can sit in here the procedures are I
ADMIN. JUDGE FARRAR:
Mr. Travieso-Diaz, it strikes me, as you mentioned, that there are two ways they could proceed. Maybe I'm naive here but it seems to me there's a third way they could proceed.
And that's to sit down and work with you all and help you with your emergency plan.
And the reason I say that there's a history at the Commission and Seabrook comes to mind where the State of Massachusetts tried to block the plant in New Hampshire saying we're not going to work with you on the emergency plan. And I think that led to the realism rule.
MR.
TRAVIESO-DIAZ:
Mr.
- Chairman, I
couldn't agree with you more.
But here is what is happening.
a minute ADMIN. JUDGE FARRAR: Wait a minute. Wait And closer to home, I believe this very NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 county put a roadblock in front of the Shoreham facility by saying they would not work with Long Island Lighting.
And now as I read their papers, they're saying we have all this information. We want to have it in there.
We want to participate. Why isn't that the third remedy. And why doesn't that make the case go away.
- Chairman, entirely, good way petition.
MR. TRAVIESO-DIAZ:
Well, in fact, Mr.
what you're pointing out, which I agree just evidence there is a good example or a to cast the normal situation with this If, as the county appears to have, there are concerns about the way emergency preparedness is being handled today, the way to address them is to work with the licensee and with FEMA and with the NRC staff today to get those problems resolved not to try to deny a license that won't be in effect for 10, 20 years when we don't know even what the conditions are going to be.
The reality is, and I need to, since you brought it up, make reference to it, what the county is seeking to do here, and let's be honest about what's going on, and they say it on the pleadings.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 I'm talking about page 6. What they want to do is use these license renewal procedures as a way to put pressure on a licensee to look at the issues that they are concerned about.
Here what they say I'm only denying the renewal until the emergency planning deficiencies are corrected.
They would have great impact on public health and safety and would, perhaps, push the applicant to examine the issue now during the current licensing period.
Let them do that.
Let them talk to the applicant, I mean the licensee, let them talk to FEMA and the NRC, to see if the concerns, in fact, have basis and can be addressed.
Don't bring it up in a proceeding that has nothing to do with it.
ADMIN. JUDGE FARRAR:
I take it then by what you, in effect, have done here is represent that your client is ready to do that?
MR. TRAVIESO-DIAZ: I think our client is always ready to talk to all effected organizations about issues that might be a concern to them.
ADMIN. JUDGE FARRAR:
All right.
Then I think on your behalf, Mr. Travieso-Diaz, you've covered all the factors.
And to keep things moving along, let me ask the staff --
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 something you need to add on these points, the factors themselves.
Let me --
do you have anything to add?
MR. TRAVIESO-DIAZ:
I'm sorry.
Are you talking to me?
Or to --
ADMIN. JUDGE FARRAR:
Yes, do you have anything you need to add on this point because I'd like to move to the staff to keep the proceeding moving along in good time here.
MR. TRAVIESO-DIAZ:
Yes, I addressed the four significant factors which I think weigh very heavily against, in addition to the first one that I said.
ADMIN. JUDGE FARRAR:
Okay.
Thank you.
Ms. Poole?
MS. POOLE: Thank you. Under the scenario hypothesized by Judge Farrar, just looking at the other seven factors, if there is a robust and admissible contention, then we think Factors Two, Three, Four, and Six would certainly weigh in favor of the county.
ADMIN. JUDGE FARRAR:
All right.
What about Seven and Eight?
MS. POOLE:
Well, as Mr. Travieso-Diaz noted, the Commission has accorded Factor Eight a little bit more weight, the extent to which the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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petition's participation may reasonably be expected to 2
assist in developing a sound record. The staff is of 3
the view --
now not saying anything about the 4
country's ability to contribute in an emergency 5
planning capacity, we're not disputing that at all.
6 But we do think that there has been a 7
pleading deficiency in this factor in the papers that 8
are set out in this proceeding because it is the 9
staff's view looking at the Commission's decisions in 10 State of New Jersey, that's CLI-93-25, and an earlier 11 Comanche Peak decision, CLI-92-12, that in order to 12 set forth -- to satisfy this factor, a petitioner must 13 set forth with particularity the precise issues it 14 plans to address and "identify potential witnesses and 15 summarize their proposed testimony."
16 And it is true that this is a high burden.
17 But we just don't think that the county has satisfied 18 that in this case.
And that that factor is accorded 19 a bit more weight than the others.
20 ADMIN. JUDGE FARRAR:
So you're saying 21 that even though the Board might assume they have the 22 people there, you're saying the pleading deficiencies 23 should make us question whether at a hearing, for 24 example, that the sound record would be forthcoming?
25 MS. POOLE:
We do because we think the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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14 15 16 17 18 19 20 21 22 23 24 25 48 Commission requirements, you know, the Commission case law requires greater particularity than has been provided here.
ADMIN. JUDGE LAM:
Ms. Poole?
MS. POOLE:
With respect to --
ADMIN. JUDGE LAM:
May I interrupt you?
Ms. Poole?
ADMIN. JUDGE FARRAR: Ms. Poole, Judge Lam has a question.
MS. POOLE:
I'm sorry.
Go ahead.
ADMIN. JUDGE LAM:
Ms. Poole, yes.
Go back to Factor Eight. What would prevent the county, if and when the hearing does take place, for them to acquire the expertise and expert witnesses to help develop a sound record?
MS. POOLE:
Well, nothing would prevent them from doing it. But the requirements mandate that that information be provided now.
You know the requirements don't state that every affidavit must be filed with particularity.
Just a summary of testimony, just something more than what has been done here.
ADMIN. JUDGE FARRAR:
All right.
How about Factor Seven?
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we think that factor clearly weighs against granting 2
the petition.
3 ADMIN. JUDGE FARRAR:
Do you buy the 4
company's argument that time is of the essence even S
though we're talking about licenses that don't expire 6
for a considerable period?
7 MS. POOLE:
Yes, I think we do.
I think 8
that that was explained well in the 96 rule for 9
10 ADMIN. JUDGE FARRAR:
All right.
11 MS. POOLE: And I wanted to say a word, if 12 I may, about Factor Five.
It's true that no other 13 participant with an identical contention has been 14 admitted in this proceeding. But it is also true that 15 the factor says its availability of other means 16 whereby a petitioner's interest is effected.
17 We're really not litigating the 18 effectiveness of the Section 2.206 process.
What 19 matters is that 2.206 process is available.
20 ADMIN. JUDGE FARRAR:
Wait, wait, wait.
21 If I'm not mistaken, you all didn't mention 2.206 in 22 your brief.
23 MS. POOLE:
Oh, no we didn't.
I just 24 wanted to raise it now since it has been discussed.
25 ADMIN. JUDGE FARRAR:
Okay.
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50 MS. POOLE: But we do think that the 2.206 process is a robust process, that each petition is considered on its individual merit, and each gets the full attention of the staff individually.
ADMIN. JUDGE ROSENTHAL:
Well, I don't want to prolong the discussion on that point.
But I have to tell you, Ms. Poole, that that falls on deaf ears in my case. I cannot believe that in the last 30 to 35 years there have been only one or two 2.206 petitions that have had colorable merit.
I just believe it.
And every time there is the suggestion of 2.206 as an alternative remedy, I shudder. But that's only my view.
I realize it is on the books.
Just from my perspective, it is a --
in the vernacular, rubber sandwich.
But let's go on.
MS. POOLE:
We won't say anything more then about that.
ADMIN. JUDGE FARRAR:
All right.
How about the company's suggested rulemaking?
MS. POOLE:
That opportunity is there.
That process exists. And it is open to any MEMBER of the public.
It is, perhaps, another means by which the interests could be protected.
I guess summing up --
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ADMIN.
JUDGE FARRAR:
Well, don't sum up 2
before you get to the suggestion that seemed to emerge 3
on its own here.
Why isn't everybody just working 4
together?
5 MS.
POOLE:
Well, the staff is always open 6
to meeting with government agencies or other 7
interested stakeholders.
8 ADMIN. JUDGE FARRAR: I mean I can't help 9
but be struck, and perhaps, you know, I'm mistaken, 10 but struck by the fact that through the history here, 11 we've had local and state governments saying they 12 won't work with the company. And maybe I'm misreading 13 their papers but I think these people are saying 14 please let us work with you.
15 MS. POOLE: Well, we're absolutely open to 16 that. And we're happy to meet.
17 ADMIN. JUDGE FARRAR:
All right.
Then 18 let's -- did that cover the factors from your point of 19 view, Ms. Poole?
20 MS. POOLE:
That covers the factors from 21 our point of view.
I guess I would just say with 22 respect to compelling circumstances, as has been 23 stated, you know, there is no specific regulatory 24 meaning for compelling factors.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 two or three factors, especially those that have been accorded conditionally more weight by the Commission and the Licensing Board, that that does not create a compelling showing that would justify granting the petition.
And that's all we'll say about that.
ADMIN. JUDGE FARRAR:
All right.
Thank you.
Ms. Kohn, let's --
you've heard what the two other parties have said about the factors. Let's hear your view on them.
MS. KOHN: Well, the strongest factor is, we believe, in favor of the county's petition is the clearly cognizable interest that the country has.
There is a proximity presumption.
Part of Suffolk County is within the current emergency planning zone.
The county is responsible under state law for protecting the health and safety of their citizens and residents.
We have a very broad interest.
We are a provider of emergency services. I have sitting around the table here, I have some of the people who are responsible for doing that.
We have representatives from Health Services, from Fire, Rescue, and Emergency Services.
The county also has the police department so that the county does --
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expertise I in this area really is unquestioned and 2
unquestionable.
3 And --
4 ADMIN. JUDGE FARRAR:
So you're saying 5
that on Factor Three where we usually would say in the 6
case of a private intervener or a group intervener, 7
yes, yes, they have an interest, you're saying this 8
one really --
I mean this really counts heavily in 9
your favor. It's not just that you have an interest -
10 11 MS.
KOHN:
Yes.
12 ADMIN. JUDGE FARRAR:
you have more 13 than an interest.
You have something really to I
14 contribute.
15 MS. KOHN:
Right.
That's right.
And 16 we're also the county has the elected 17 representatives of the citizens and the residents 18 here. And we feel that they are raising issues that 19 need to be heard and by granting this petition, that 20 would be one way. We feel the best way at the current 21 time to hear those concerns heard.
There is no one 22 else in the proceeding that really can represent the 23 county's interest.
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the strong cognizability of the county's interest.
2 I'd just like to go back for one minute to 3
the question of the delay which is just to point out 4
that there was a change in administration with a large 5
turnover.
It's a different party.
And the county 6
really is trying to have an opportunity to address 7
these issues.
So, you know, I think that is a factor 8
in our favor.
9 As far as alternative ways, while I'm not 10 prepared to outline the county's legal strategies here 11 or foreclose any options, you know I am kind of 12 surprised the Dominion has suggested --
Dominion's 13 counsel is suggesting that we should maybe bring a 14 petition to modify or revoke the current Millstone 15 license. That's not what we're seeking to do in this 16 proceeding.
17 ADMIN. JUDGE FARRAR: What are you seeking 18 to do?
19 MS. KOHN:
We're seeking to have these 20 issues of emergency planning addressed with respect to 21 the areas of the county that are in close proximity to 22 the plant.
23 ADMIN. JUDGE ROSENTHAL: Well, let me ask 24 you this, Ms. Kohn, I have been struck over the years 25 by the number of cases that I have been involved in in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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55 which a governmental body, in many instances a state, has been at loggerheads with a licensee over frequently decommissioning plants. They want to come in and challenge the licensing plant in an adjudicatory proceeding.
What struck me in those cases was that it seemed to me it would have made a great deal more sense if the governmental body, be it a state, be it a county, be it a municipality, sat down with the Commission staff and with the licensee and endeavored to work these matters out in a non-adjudicatory setting.
Now licensee's counsel has represented this afternoon that his client is perfectly prepared to sit down with the county and I take it would be perfectly prepared to take into account the county's concerns and to make a good faith effort to resolve those concerns.
I think it is also --
I heard I think the staff counsel indicating that her client would be willing to participate in that.
It seems to me that in the totality of these circumstances, where at the very least you're coming in very late, where there is a claim by the licensee that seems to me to have at least some facial NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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merit, that an adjudicatory proceeding would present 2
unreasonable and harmful delay, that the solution to 3
this matter, the best course of proceeding would be 4
for all of these officials that you have referred to 5
sitting down with the licensee, with perhaps also the 6
involvement of the NRC staff members that are 7
concerned with emergency planning, and endeavoring to 8
work this out in a non-adversarial, non-adjudicatory 9
context.
10 Now what's wrong with that?
11 MS. KOHN: We're certainly willing to sit 12 down in a non-adversarial process. But I think having 13 the county as an intervener would ensure that these 14 concerns are addressed.
In the Dominion's papers on 15 this motion, they have indicated that the cost for 16 considering these issues would be too great.
So 17 they've already kind of put their cards on the table 18 in that regard. And --
19 ADMIN. JUDGE FARRAR:
Were they not just 20 suggesting it would be too great in the context of an 21 adjudicatory hearing at this stage? And let me add to 22 that, suppose we had an adjudicatory hearing now and 23 you won --
24 MS. KOHN:
Yes.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 adversarial relationship with them --
MS. KOHN:
Right.
ADMIN. JUDGE FARRAR:
then you're going to be --
we're going to have this same fight every year -- assuming they get the license, we're going to have the same fight every year for the next 40 years.
Why does that not make this a classic case where you all need to develop a working relationship that's good for 40 years?
You all are concerned about growth out on Long Island.
And that seems like a legitimate concern.
And, again, if I were a company and the county came and said we'd like to work with you, given the history of counties that wouldn't work with them, I think there may even be other counties in New York State right now in other facilities that are not willing to work with companies, why is this not the solution?
MS. KOHN: Well, I think given the length of time that the licenses are being extended for, I mean we're talking about what the applicant is seeking is going to 2035 and 2045, I really think that the county would be remiss if it didn't take this opportunity here in this proceeding.
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you should not have tried to come in here.
We're 2
saying that now having tried to come in here and 3
seeing where the parties' real interests seem to lie, 4
why is the solution not to use this proceeding as a 5
springboard to develop the long-term relationship you 6
all need?
7 MS. KOHN:
Well, I mean we're willing to 8
sit down with the operator and the NRC staff to 9
discuss this issue.
The problem is, though, that if 10 the county's petition isn't granted in this instance, 11 that we lose this opportunity.
12 And if the counties are unable to come to 13 an agreement about what the plans should be and how 14 the plans should be funded and whatever other fact 15 that, you know, whatever needs to be taken into 16 account, that then the licensing renewal proceeding 17 will be over.
And the county won't be able to come 18 back.
19 If the applicant is willing to adjourn the 20 proceeding and put a moratorium on the proceeding and 21 try and sit down with the county and work things out, 22 that would be one thing.
But I don't know if they 23 would be willing to do that.
Is he willing to let 24 this opportunity go?
25 ADMIN. JUDGE LAM:
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lam?
MS. KOHN:
Yes?
ADMIN. JUDGE LAM:
May I ask you, has the county ever worked with the licensee or the Commission staff before? Do you have a working relationship with the licensee and the Commission staff?
MS. KOHN:
This is a new administration that just came in this year --
I'm sorry, the past year.
So I don't think that they've had the opportunity to work with the staff and the operator previously.
ADMIN. JUDGE LAM:
I see.
So without a working experience in relationship with the staff nor the licensee, it appears to me now you're saying that the county's administration's preference is to adjudicate this matter in order to obtain a
satisfaction in resolving your concern. Am I correct to assume that?
MS. KOHN:
Well, I'm sorry.
Could you clarify? I'm not sure exactly what you're asking.
ADMIN. JUDGE LAM:
It appears to me that the county now prefers adjudicating this matter in order to obtain satisfactory resolution of the concern instead of what Judge Rosenthal and Judge Farrar were suggesting.
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MS. KOHN:
You know again, the county is 2
willing to explore the options that the Judges are 3
suggesting here and that Dominion has suggesting if 4
Dominion is willing to hold the proceeding in abeyance 5
while the issues are explored.
We need to --
6 ADMIN. JUDGE ROSENTHAL:
Why do you think 7
that Dominion should or would agree to that?
I mean 8
Dominion's position is look at, you folks are 9
considerably late without, according to what they have 10 suggested, any excuse.
And that a number of these 11 other factors, they say, weigh against you.
12 Now if we were to determine that there's 13 merit to that position, it seems to me that your, as 14 a practical matter, your recourse is to work with 15 them. And it seems to me offhand that, again, you are 16 a new --
apparently a new administration. You have a 17 licensee that has indicated a willingness to work with 18 you.
The NRC staff has an obligation, in my view, to 19 work with you and the licensee in these circumstances.
20 And it seems to me that you would be 21 jumping on this possible remedy irrespective of 22 whether the licensee would agree, as I'm sure it 23 wouldn't, to somehow putting your belated petition in 24 the icebox to wait and see how things worked out.
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you are talking about something that is over a course 2
of 30 or 40 years and where there is going to be a 3
dynamic situation in terms of population development 4
and other factors that go into emergency planning, 5
that the most sensible approach is not an adversarial 6
it isn't where you put up contentions and the 7
licensee responds to them and you're battling each 8
other in a courtroom before the three of us.
9 But rather in sitting down with that 10 licensee, identifying the problems that you see over 11 the course of the coming years, and perhaps, again, 12 with the staff's intervention, endeavoring to work 13 them out.
14 MS. KOHN:
You know, again, we have no 15 objection to working with Dominion.
But once this 16 licensing proceeding is over, Dominion really has no -
17
- however, I'm not suggesting any bad faith there, but 18 they really don't have an incentive to work with us 19 after the licensing proceeding is over.
20 They've said we have no standing. They've 21 already said, you know, taken the position that the 22 ten-mile limit is sufficient.
So, they've taken 23 positions in this proceeding that are inconsistent 24 with them working these problems out.
25 ADMIN. JUDGE FARRAR:
Well --
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MS. KOHN: And, you know, as you say, the 2
fact that we're talking --
going 30 to 40 years into 3
the future in a dynamic situation where the population 4
is growing and there are other factors coming in to 5
play, only makes it even more important that these 6
issues are resolved, not, you know, 20 or 30 years 7
from now but now.
8 ADMIN. JUDGE ROSENTHAL: Well, you'd be in 9
a stronger position in advancing that if the petition 10 of the county had been filed on time. Or if there was 11 what's a better excuse than it seems to me to exist 12 for the late filing.
13 I mean the fact of the matter is that 14 we've held time and time again that Federal Register 15 notice is notice to the world.
And I mean just, I 16 think, a year or so ago in a case involving the State 17 of Oklahoma, I was constrained to reject as untimely 18 a petition filed by the state in which, again, the 19 argument was advanced gee, we just didn't know about 20 the Federal Register notice.
And that just doesn't 21 cut the mustard.
22 MS. KOHN: Well, I understand your doing.
23 I think we did the best we could under the 24 circumstances.
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the interest of moving on.
Did we cover all the 2
factors either directly or indirectly?
3 MS. KOHN: Yes.
I would, though, like to 4
just address for a minute again the issue of the 5
county's ability to help develop a sound record 6
because I really feel that that is something that 7
can't be disputed, you know.
We're providers of 8
emergency services.
And we have the information 9
available to offer to Dominion and to the Commission 10 to help develop these plans.
11 So, you know, I just would like to say 12 that I also feel we have very strong --
that that 13 factor also weighs very strongly in our favor.
14 ADMIN. JUDGE FARRAR:
All right.
We've 15 heard each of the three parties on the factors. Let's 16 now talk about the --
fairly briefly about the --
17 whether this contention is within our jurisdiction.
18 And I think the --
correct me if I'm wrong 19 but the staff and the company have made a strong 20 argument that the Commission has said --
I think even 21 in this very case that license renewal proceedings 22 essentially deal with aging of equipment.
And that 23 emergency planning is outside of that.
24 But the county has asked for --
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rule in front of the Commission.
2 Let me ask the company what its view on 3
the county's request is.
4 MR. TRAVIESO-DIAZ:
Yes, Mr. Chairman, 5
thank you.
6 Before I do that, though, there is an 7
error on the record given by county's counsel that 8
needs to be corrected. They have said that Dominion 9
will not talk to them because the cost of addressing 10 their concerns would be too great.
In fact, what we 11 said on page 11 of our response was the cost 12 associated with having a licensing proceeding of the 13 type they want will be high.
14 It has nothing to do with talking to them.
15 It has to do with exactly what they want to do which 16 is essentially use this proceeding as leverage so they 17 can get whatever remedy they want.
18 Going to your question or to this second 19 part of the conversation, a party like the county, as 20 I said earlier, has two burdens that it needs to meet 21 or overcome.
22 First the burden of the lateness which we 23 were just talking about.
Second, they have to 24 overcome the burden that every petitioner has which is 25 to comply with the requirements which are very well NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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set out explicitly in 10 CFR 2.309(f) which are six 2
- factors, six requirements that any petition for 3
intervention must meet with respect to the contention 4
it raises.
5 And it doesn't meet any of the six.
I'm 6
going to start with (f)(iii) because (f)(iii) talks 7
about the most direct of the issue they want to raise 8
which was the scope.
9 There is regulations, there is prior case 10 law, an on point case at CLI-117, 54 NRC 3 at 9.
11 There is the decision by the Abramson Board in this 12 proceeding with respect to the prior application which 13 raised an emergency planning contention.
14 There is the Commission's decision 15 upholding the decision by Judge Abramson's Panel, CLI-16 4-36, 60 NRC 631-640, all of which say unequivocally, 17 without any ifs or buts, emergency preparedness 18 contentions are outside the scope and they are not to 19 be raised in the context of the license renewal 20 proceedings.
21 ADMIN. JUDGE FARRAR: So even if this was 22 a very well-articulated contention, you're saying it 23 is outside the scope.
And we're not surprised you 24 would say that.
But what about their request for an 25 exemption?
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 66 MR. TRAVIESO-DIAZ: You want to talk about the waiver request? We can talk about that.
ADMIN. JUDGE FARRAR:
Yes.
MR. TRAVIESO-DIAZ:
Let's catapult to that.
But I would like to come to the other five factors in 2.309(f) if I could.
But with respect to the waiver request, the Commission has announced very explicitly on the high burden that a party must meet in order to have a regulation waived. And this high burden is expressed in 10 CFR 235 (b). And, quite frankly, the county here doesn't even begin to meet that burden.
The most important --
ADMIN. JUDGE FARRAR: Hold on. Let me ask you this --
MR. TRAVIESO-DIAZ:
thing, I think, that the county said about the waiver of the petition is that the arguments that they are making are not unique. They weren't specifically and exactly made by the people who were commenting on the rule as it was being formulated.
And the NRC rejected those arguments expressly saying that, in fact, the management of emergency preparedness is the kind of ongoing regulatory oversight activity by NRC staff that is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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independent of the issues that are to be considered 2
And that, therefore, there is no 3
reason why there should be consideration of those 4
issues in your license renewal proceedings.
5 ADMIN. JUDGE FARRAR:
So let me see if I 6
get your position.
You're saying that even if this 7
contention were beautifully pleaded and even if the 8
waiver request was as powerful as you can make it, 9
you're saying no waiver --
well, let's not say never 10 but essentially there would never be a waiver request 11 in this particular subject matter area that would ever 12 be granted.
13 MR.
TRAVIESO-DIAZ:
Because the NRC 14 specifically considered emergency preparedness in 15 enacting 50.47(a)(1) and considered the factors that 16 were raised, which are the same, saying, you know, 17 emergency preparedness is sufficient. They're forcing 18 the various kinds.
It's exactly the kind of thing 19 that the NRC has determined, has looked at, and has 20 ruled that it falls totally within the purview of what 21 the NRC staff regulates today.
It is an operational 22 issue.
23 It is not an issue that relates to the 24 effects of aging.
It is not an issue that operation 25 of the facility as such.
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ADMIN.
JUDGE FARRAR:
All right.
Let me ask the staff if they agree with the company's approach on that.
MS.
POOLE:
Yes, Your Honor, I think that we do.
But mostly, I won't say anything more about admissibility of the contention because I think we briefed it pretty thoroughly in our papers.
ADMIN.
JUDGE FARRAR:
Right.
MS.
POOLE:
As for the substance of the waiver request, I would just underscore that the most important factors and circumstances, the Commission in Seabrook, CLI-88-10 stated that special circumstances are present only if the petition properly pleads one or more facts not common to a large class of applicants or facilities that were not considered either explicitly or by necessary implication in the proceeding leading to the rule sought to be waived.
And in this
- case, the Commission specifically considered issues regarding the adequacy of existing emergency preparedness plans in the 1991 license renewal rulemaking.
Therefore, special circumstances simply don't exist in this circumstance in this waiver request.
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JUDGE FARRAR:
And that's, as I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 69 understand your argument, that's not just a pleading deficiency.
You're saying no waiver request could ever be written that could get over the hurdle as to this issue.
MS. POOLE:
That's correct.
That's our view.
ADMIN. JUDGE LAM:
Ms.
Poole, but the county does have the right to request a waiver though.
MS.
POOLE:
The right to request it?
ADMIN.
JUDGE LAM:
Yes.
MS.
POOLE:
Well, it's our view that if the county wanted to request a waiver, the proper place to do it was in its original petition.
By raising it in the reply, the staff is of the view that the reply was really tantamount to an attempt to amend the original petition, which is not countenanced under the new Part 2 rules.
So while we don't --
while we think a waiver request is acceptable under 2.335, in the way that it was raised in this proceeding, it is procedurally defective in that regard.
ADMIN.
JUDGE FARRAR:
But you could make an argument that they filed a contention, you came back and said sorry, that's outside jurisdiction. And they said well, then we want a waiver.
I mean that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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could be a natural progression.
2 MS. POOLE:
We would argue not.
I mean 3
the county cited 50.47 (a) (1) in its original petition 4
and simply left out that portion which says that 5
emergency planning is not considered in license 6
renewal.
It was an argument that reasonably could 7
have been anticipated.
8 ADMIN. JUDGE FARRAR:
Oh, so they didn't 9
have to wait for you to alert them that they had a 10 problem?
11 MS. POOLE: We think it's improper. Their 12 reply pleading is really a form for unanticipated 13 arguments.
And that's really something that could 14 have been raised initially and should have been.
15 ADMIN. JUDGE FARRAR:
All right.
16 Let me then ask the county to address 17 this.
You have the applicant and staff lined up with 18 a pretty forceful position here.
How do you address 19 that?
20 MS. KOHN: Well, the county believes that 21 its request for a waiver is supported by the papers.
22 We believe that there are unique facts here related to 23 Suffolk County specifically that are not common to any 24 other party.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71 case because -- well, of course, in Seabrook, you had the 12-mile New Hampshire shoreline in Massachusetts effected.
But here you have rate-payers or citizens who are not served by the Millstone facility, okay, and I can remember the details on that cable under the Sound.
But you are not served by Millstone. And yet you are one of these geographically a
geographical set up that is ill suited to evacuation just like your barrier islands are.
You've got a problem there and you're not served by this.
Is that why you're saying it is unique to you all?
Or am I missing something?
MS. KOHN: I think while part of it is the geography, I think the road system is a factor here.
And the water, the fact that the --
and I'm not a radiation expert but we would certainly, you know, provide one if we were going to intervene, that the idea of how radiation might travel over water may be different because of the circulation patterns and the wind.
I think there are many factors which suggest that citizens of Suffolk County could be effected by an emergency situation.
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generically.
But in this particular situation, I 2
don't believe that the factors addressing Long Island 3
were addressed previously, at least to my knowledge.
4 ADMIN. JUDGE FARRAR: But isn't every one 5
of these situations unique in its own way? The people 6
up in Ossining and north of there will say there are 7
too many people near Indian Point. And the people in 8
Massachusetts will say in the summer you can't get 9
away.
10 I mean every reactor is surrounded by 11 some, you know, population and some geography that you 12 could say well this is unique.
There's none other 13 like it.
But they all are common in the sense that 14 you may have an evacuation problem.
15 So, you know, what's unique about your 16 situation that's --
17 MS. KOHN:
Well, I think we have more 18 factors that are unique here and they are more severe.
19 In terms of the alternatives for evacuating, there 20 certainly aren't a lot of alternatives available. In 21 terms of the geography, that really is different from 22 somebody who is up in Ossining or somebody who is on 23 the Massachusetts coastline.
24 ADMIN. JUDGE ROSENTHAL: Are you talking 25 about Fishers Island?
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73 MS. KOHN: You know I feel that there are a lot of factors here that are unique to Suffolk County.
ADMIN. JUDGE ROSENTHAL:
Are you talking about Fishers Island? I take it you're talking about Fishers Island?
MS. KOHN:
Fishers Island, Plum Island, and the North Fork which is, you know, within the 50-mile zone and it's only 11 miles.
The 10-mile guideline that the NRC regulations provide is only a guideline.
It says it is supposed to take into account local factors such as tomography and topography. And we feel that hasn't been done here.
Yes, and, you know, we have experiences --
our citizens have concerns that may have been effected by our history here.
That, you know, and concerns that haven't been addressed.
So I think that we do have unique factors.
Another criteria to consider in whether to grant a waiver is whether the rule serves the purpose for which it was promulgated. And in this instance, I don't believe that the rule does.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 74 can and will be taken in the event of an emergency.
And in this particular case, I feel that it almost sets up a presumption that we've rebutted.
I don't feel that there is that kind of reasonable assurance that would give the residents and citizens comfort here.
And in terms, again, of the uniqueness of the factors, Southold Town is surrounded by water.
The only exit is to go west.
Fishers Island, Plum Island, and Shelter Island are only accessible by ferry.
We also have a very large number of farms in this area that would be effected by an emergency.
We have tourists, which it's true that other areas do have tourists.
But we really have an unusual number of unique factors.
ADMIN. JUDGE FARRAR: So you're saying it is the number? For example, Judge Rosenthal, back in the days when we were both on the Appeal Board, he and I sat on San Onofre where you had a beach right next to the reactors.
That was an unusual factor but you would say okay, that was just one factor.
And worry about those people somehow and you don't have all the other problems you're talking about?
MS. KOHN:
Yes, that's true.
And I also believe that the citizens here have concerns because NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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10 11 12 13 14 15 16 17 18 19 20 of the history.
ADMIN.
JUDGE FARRAR:
This history?
Forgive my --
the history where they defeated another reactor?
MS. KOHN:
You know, that is part of the history.
You know we learned something from that.
You know the fact is that to say that these issues were addressed in 1991, even if they had been addressed adequately, which we don't believe they were, it's kind of weak because the world has changed.
The population has changed.
The congestion has changed.
You know the possible circumstances have changed.
And the fact is that there is no evacuation plan in place for most of these areas that I've referenced.
I believe the plan does talk about part of Fishers Island. They say that they could walk to the other side of the island and then they'd be outside the 10-mile zone.
I don't think that would give the --
i, 21 ADMIN. JUDGE FARRAR:
Wait.
Didn't they 22 have a special plan for Fishers Island where they'd 23 ferry the people off to Connecticut or Rhode Island?
24 MS. KOHN: Connecticut.
In the direction 25 of the contamination I would think.
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1 6 1 7 1 8 1 9 2 0 2 1 2 2 23 2 4 25 76 ADMIN. JUDGE FARRAR:
No, I thought they were going to take it --
I thought that was going to be well east of New London.
MS. KOHN:
Well, I'm not that conversant with the details. I have been informed that the Plum Island evacuees would come through Suffolk County.
And there's no plan in place for those.
There's no plan in place for the North Fork for Southold Town.
So, you know, there really are factors here that need to be addressed.
And the county is serious about addressing them.
You know our Shoreham experience taught us a lot about what communities should be aware of and, you know, and the degree of comfort that people have with nuclear power generation and possible emergency circumstances. And I think that because of that, we have a special interest in having those concerns addressed.
ADMIN. JUDGE FARRAR: Let me ask you this.
Let me make sure we understand your position. You're looking to be a part, a bigger part than you have been of the emergency planning.
You don't --
you're not using this just to try to keep the facility from getting its license renewal.
Your real interest here is having all NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 77 these factors taken into account and coming up with an evacuation plan that the county could go back to its citizens and say we've done right by you. We've taken care of these concerns that we know you have. Is that or am I --
MS. KOHN:
Yes.
Our position is that we're looking to protect the health and safety of the people in the county and the visitors to the county.
And, you know, we're not -- what happens after that I can't really speak to, you know.
But right now we really would just like to see these concerns addressed.
ADMIN. JUDGE ROSENTHAL:
All right.
In light of that, I would like to ask Ms. Poole a question.
And this is I want to get some information.
I expressed a while ago my skepticism about 2.206 as a viable remedy.
I assume, however, and you can correct me if I'm wrong, that the staff has an ongoing responsibility to be monitoring emergency planning concerns, problems with respect to reactors.
And that, therefore, if a sovereign unit, in this instance a county, comes to it informally, doesn't file a 2.206, but comes to the state --
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 78 staff rather, as a governmental body with concerns coming to another governmental body that has regulatory responsibilities and says look it, these are our concerns.
We're not in an adjudicatory context.
We're not in a 2.206.
We're just government body coming to another government body informally and saying we've got these concerns and all of this.
Is the staff prepared, on an ongoing basis, whenever it might be, this year, next year, the year after, as part of an ongoing regulatory responsibility, prepared to entertain those concerns seriously?
Now I raise that because you heard the county's lawyer say that in terms of the licensee, once this proceeding is over, the licensee has no ongoing reason to deal with the county.
That may or may not be the case.
I mean I would hope certainly that this licensee would act in good faith in working with the county.
But now I'm focusing on the staff.
And that's my question.
Is can this county count on at any time, five years, ten years, 15 years, if it sees a problem, can it count not on 2.206, not a formal request for a Director's opinion, but is it free to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 79 come to the appropriate officials in NRR or wherever they are who deal with emergency planning, lay on the table their concerns, and get not only a sympathetic audience but get a cooperative environment in which to resolve those problems?
MS. POOLE: Your Honor, I feel confident -
and this is Brooke Poole --
I feel confident in saying that any government entity or, in fact, any letter that we get, any phone call that we get, we will respond to and they will have not only a sympathetic ear but a cooperative --
ADMIN. JUDGE ROSENTHAL: Well, I know, I'm not talking about --
look it --
excuse me a second.
I'm not interested in what you guys do with citizens' mail.
MS. POOLE:
No, no, no.
ADMIN. JUDGE ROSENTHAL: I'm sure you get a lot of it and it probably just --
I'm talking now if a governmental body --
we're not talking about some local organization that tend, I think more often than not, not to be taken that seriously.
But I'm talking about when a governmental body such as Suffolk County comes in, is there then the feeling okay, these are two governmental bodies.
One of the bodies has a concern.
And we have a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 80 responsibility to really seriously working with them.
MS. POOLE: Yes. Staff will work with any government, including the county, that comes to us with concerns.
And also, where applicable, we also will coordinate with FEMA because some of these concerns that are raised, you know, fall into the egis of FEMA's responsibilities as well.
ADMIN. JUDGE ROSENTHAL:
So they don't need to file a 2.206 to get to you?
MS. POOLE:
No, not at all.
ADMIN. JUDGE ROSENTHAL: Thank you. That is all.
ADMIN. JUDGE FARRAR: Let me ask if, as I
- said, this was not --
we wanted to gather some information here not precisely in the nature of a formal oral argument.
I think that we're satisfied that we've gathered the information we need.
But do any counsel want a last minute chance to address something?
Judge Lam has a question.
ADMIN. JUDGE LAM:
I had a question for Ms. Kohn.
Earlier the staff counsel was saying this waiver request was improperly raised in your reply.
So it was somewhat a procedural deficiency.
I'd like to hear your response to that.
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MS. KOHN: I think that the argument that 2
the regulation should be --
was not protecting the 3
public safety was raised in the initial papers. It's 4
true that I didn't cite the regulation for the waiver 5
until the reply.
6 ADMIN. JUDGE LAM:
So what you're saying 7
is --
8 MS. KOHN:
But the argument was raised --
9 I do believe that the substance of the argument was 10 raised earlier.
11 ADMIN. JUDGE LAM:
I see.
Thank you.
12 ADMIN. JUDGE FARRAR:
Do any of the 13 counsel --
we'll give the county the last word since 14 it is their motion.
15 Mr. Travieso-Diaz, is there anything.
16 MR. TRAVIESO-DIAZ:
In a minute and a 17 half, I think I will be able to raise the two points 18 I want to make.
19 ADMIN. JUDGE FARRAR: All right.
20 MR. TRAVIESO-DIAZ: My first is I think we 21 didn't properly focus on the facts.
Now on the 22 2.335 (b), the sole grounds for the petition for waiver 23 exception is that there are special circumstances with 24 respect to the subject matter or the proceedings so 25 that the application with the rule would not serve the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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purposes for which the rule was adopted.
V 2
Two things on this.
First, the Rule 3
50.47(a)(1) was written specifically to exclude 4
emergency response for license renewal. It is working 5
beautifully here.
That's exactly what it does.
So 6
the rule is achieving its intended purpose.
7 Second, on that very same line, it talks 8
about the subject matter of the proceeding. It is not 9
the subject matter of the concerns that the county may 10 have. This proceeding is about license renewal. It's 11 about aging of equipment.
12 It has nothing to do with the concerns 13 that they are raising which, by the way, were exactly K>
14 the same things, demographic, growing population, 15 immigration, and so on that the NRC considered in 16 adopting the rule and rejected.
17 The second point that I want to make, and 18 I'm not going to spend any time on this, is that in 19 order to be able to be admitted as a party, a 20 petitioner has to meet all the six subparts of 21 2.309(f) (1) with respect to their contentions. I only 22 talked about three but they, in fact, have not met any 23 of them.
24 And rather than prolonging this 25 conversation, I refer you to pages 14 to 17 of our NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 83 February 28th filing which shows why even if emergency response was a proper subject and even if they had overcome the burden of the lateness, they still haven't come up with a contention that is admissible.
Therefore, they cannot be made a party in this proceedings.
ADMIN.
JUDGE FARRAR:
All right.
Hold on one second.
I want to confer with my colleagues here so we'll go off the record.
We'll be back in just a minute.
(Whereupon, the foregoing matter went off the record at 3:45 p.m. and went back on the record at 3:46 p.m.)
ADMIN.
JUDGE FARRAR:
We're back on the record.
Thank you, Mr. Travieso-Diaz.
Ms. Poole, do you have anything to add?
MS.
POOLE:
Nothing further.
Thank you.
ADMIN.
JUDGE FARRAR:
All right.
Ms.
Kohn?
MS.
KOHN:
I have just a few comments and then I'm going to let the Chief Deputy County Executive Sabatino would like to put in a comment.
First of all, just going back for the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 84 moment to your question about the waiver, I'd like to say that all the parties at this point have had a chance to address the argument so that there was no prejudice by when it was brought.
Both Dominion and the staff have addressed the issues.
Also, with respect to --
and we certainly appreciate Ms. Poole's representation that the staff will provide a cooperative environment when Suffolk County comes calling to discuss its concerns, I just would like to --
I hope that that environment is extended to us although we are not within the ten --
most of Suffolk County is not within the ten-mile zone because that's the whole issue that we're raising here.
And if the reception is going to be that we're only --
that we're not entitled to participate in the planning because we're beyond the ten miles, then it's not really going to resolve the issues.
ADMIN. JUDGE FARRAR:
Let me ask Ms.
Poole.
Do you do beyond ten miles in Connecticut?
MS. POOLE:
I'm sorry?
ADMIN. JUDGE FARRAR: Ms. Poole, do you do beyond ten miles in Connecticut?
MS. POOLE:
Oh, one moment please.
I'm not sure.
I think so.
But hold on one moment.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 85 ADMIN. JUDGE FARRAR: Because it seems to be whatever you do in Connecticut, you ought to be doing on Long Island. And I know there are Commission rules which I haven't been involved in in some time, probably since Seabrook, about the different sizes of different zones and different degrees of planning.
But seems --
it would seem fairly obvious that that whatever circles you draw shouldn't stop at Long Island Sound.
MS. POOLE:
We have evacuation plans to ten miles.
ADMIN. JUDGE FARRAR:
Well, that's all right.
If there is not a ready answer, that's okay.
MS. POOLE:
It doesn't change my answer that we are going to provide a welcoming environment to the county when we hear from them.
ADMIN. JUDGE FARRAR:
All right.
Ms.
Kohn, go ahead.
MS. KOHN:
Okay.
Well, I thank you for that. And I also would just like to --
I'm not going to go into them now but we did, as part of our papers, attach comments that the County Executive had --
the Suffolk County Executive had raised regarding the EIS, such as the effects of an aging plant and so forth.
And I won't repeat those but they are addressed in our NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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papers.
2 And now II'd like to move the phone over to 3
Chief Deputy County Executive Sabatino.
4 ADMIN. JUDGE FARRAR: All right. We'll be 5
happy to hear from him.
6 MR. SABATINO: Just a few closing comments 7
if you permit.
8 Number one, I've heard a lot of emphasis 9
placed on this issue of why the county was late.
It 10 may sound somewhat mundane but the f act that a new 11 administration from a different political party 12 replaced an entire administration and we have a county 13 legislature that'Is run by a dif ferent political party 14 does result in a more difficult transition period in 1s terms of putting a government together and trying to 16 address the issues.
17 There are a lot more personnel changes, a 18 lot more policy changes that occur when you go from 19 one political party to another political party and you 20 have divided government.
I think that should weigh 21 heavily in your consideration of why there was delay 22 in terms of the filing.
23 Number
- two, with this issue of a
24 willingness to sit down and talk and discuss and 25 dialogue and be cooperative,
- again, I
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 87 point that you have to be in a position of strength, though. We need to be able to deal with these parties as co-equals. We're only get to that status if we are in a situation where the other party is going to have the incentive that our counsel mentioned before to take us seriously.
Number three, in Suffolk County we have a million and a half people.
We bring resources and expertise and countywide perspective to the issue which a small group or a smaller organization that may have made some of the presentations in the past wouldn't have the capability or the perspective to bring to the table.
Another point is even in terms of this idea of working together in cooperation, remember Suffolk County is not only just a county, not the state.
But we're in an entirely different state.
So the kind of interaction you might have with the state in which you are a county isn't going to apply here because the State of Connecticut's interests may not be the same as the State of New York's interests let alone the County of Suffolk.
So the normal interaction that you would have as a county with your state elected officials and your Governor isn't going to be at play here.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 88 And then lastly, the comment that was made about the Shoreham situation wasn't meant to portray an unbending opposition to a nuclear power plant.
It was meant to put on the record that our circumstances are unique in many, many respects. Not just geography.
Not just the concerns that were raised by our counsel with regard to the body of water and the migration of the radiological, you know, plumes that may result.
But also the fact that we learned in the course of that 20-year experience a lot of things.
Some things we thought at the beginning turned out not to be true at the end.
But we understand how highly complex the issues are and how things can be a lot different as you progress along those proceedings than perhaps other communities would be aware of.
So I think in summary, those are a lot of powerful arguments that differentiate us from maybe the rest of the world in terms of other communities that have raised opposition in a similar circumstance.
ADMIN. JUDGE FARRAR:
All right, Mr.
Sabatino, we appreciate your remarks.
Rather than have anyone respond, this call was set for two hours. And we're getting close to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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end both in terms of when the operator will cut us off 2
but also in terms of plans people may have made.
3 Let's do this. And, Mr. Travieso-Diaz, I 4
will not ask you to tell us which of your clients you 5
love the most. But you are aware that in the Private 6
Fuel Storage case, Judge Lam and I have a motion for 7
reconsideration that was argued for seven hours the 8
other day from the State of Utah.
9 And that, without asking you, as I said, 10 to say where delay is more important, we are going to 11 be working on that case the next few weeks and not 12 turning to this case.
13 I mention that because that may set up a 14 happy confluence of circumstances. What my colleagues 15 and I, based on the discussion today, would like you 16 all to do is say in the next three weeks, by Friday, 17 May 6th, try to sit down amongst yourselves and see if 18 you can't work out some memorandum of understanding 19 that might say here is how we're going to work on the 20 issues today, the issues next week, and if the company 21 gets its license renewal, on the issues over the next 22 40 years.
23 Maybe we're wrong.
But it seems that's 24 the way to proceed, in a cooperative manner.
It 25 doesn't mean you're going to agree on everything as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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But you can --
I would think you could agree on how you're going to work together.
So that will not delay the outcome of this case.
We've got your papers.
We've got the arguments.
But Judge Lam and I are simply not going to be able to turn to this for some time until we get the Private Fuel Storage decision out.
MR. TRAVIESO-DIAZ:
Mr. Chairman, just a point of clarification. Are you asking for a report by the parties by May 6th?
ADMIN. JUDGE FARRAR:
Yes.
Now a couple of things, if you've got it done, you know, that's fine.
Or your report may be we've talked to each other and, you know, we're making no progress at all.
So please write a decision.
Or you may say we've talked to each other.
We're making a lot of progress.
We'd like some more time.
I do this under 10 CFR 2.338 where the Commission says --
it has said for a long time that the fair and reasonable settlement and resolution of issues proposed for litigation is encouraged. This I see not so much as a settlement where people have differing views and you try to find something on which NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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they may agree.
2 But the three of us think we've heard here 3
is you all --
there may be a lot of agreement. Maybe 4
we're wrong but we'd like you to explore that.
5 Now if you'd like, the Chief Judge 6
Bollwerk can appoint a settlement judge, which I think 7
is not so much a settlement judge in this case but 8
just a facilitator of, you know, you all getting 9
together and if there's problems on who calls whom and 10 what's the shape of the table, could help with that.
11 Is that something you'd like to ask for 12 now? Or do you think you all, having heard from us, 13 can proceed on your own?
K>
14 MR. TRAVIESO-DIAZ:
Mr. Chairman, I will 15 need to consult with my client as to whether that is 16 something that is beneficial under the circumstances.
17 So I don't think I'm prepared to answer you one way or 18 the other right now.
19 ADMIN. JUDGE FARRAR: All right. Let me -
20 since you're the -- Mr. Travieso-Diaz, sometimes in 21 these proceedings in settlement nothing happens 22 because as the County Executive said, you want to 23 proceed from a position of strength.
And whoever 24 picks up the phone, that may be seen as a sign of 25 weakness.
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Since you're the only counsel here that 2
I've had any dealings with, let me ask you to be the 3
person to pick up the phone.
After you talk to your 4
client, if you would be good enough to call the other 5
parties, see if you do want to file a joint motion 6
under 2.338(b) to have a settlement judge or 7
facilitator appointed.
8 But even if you don't, for you to take the 9
lead in setting up the discussions where you would see 10 whether you can reach --
I call it a memorandum of 11 understanding, you all can call it whatever you want.
12 But if you would be good enough to take 13 the lead, then the other parties are instructed not to 14 take that as a sign of weakness but a sign of carrying 15 out the Board's request.
16 MR. TRAVIESO-DIAZ:
Mr. Chairman, I will 17 be happy to do that. But I must say that this sounds 18 awfully familiar.
19 (Laughter.)
20 ADMIN. JUDGE FARRAR: Wait, what did I do 21 to you in the other case?
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TRAVIESO-DIAZ:
We had the same 23 circumstance arise in the BFS case in the middle of 24 the hearing.
And I was given the same assignment.
25 ADMIN. JUDGE FARRAR: Well, you must have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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(Laughter.)
ADMIN. JUDGE ROSENTHAL:
As Yogi Berra said, this is deja vu all over again.
(Laughter.)
MR. TRAVIESO-DIAZ:
I'm glad to hear that again.
ADMIN. JUDGE FARRAR:
And I won't hold against you that you absented yourself from our seven-hour party the other day.
MR. TRAVIESO-DIAZ:
I thought there was enough counsel representation that day.
ADMIN. JUDGE FARRAR:
All right.
Ms. Poole, do you have any objection to us proceeding in this fashion?
MS. POOLE:
No, no objection.
ADMIN. JUDGE FARRAR:
All right.
Ms. Kohn?
MS. KOHN:
The county would appreciate that if a judge were to be appointed.
ADMIN. JUDGE FARRAR:
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and the petition can be withdrawn, or that you're 2
making progress and need more time which, of course, 3
we would grant.
4 But let's move on this quickly. And since 5
we have someone who will take the initiative, company 6
counsel, we'll proceed on that basis.
7 Anything else we need to talk about for 8
the good of the order?
9 MS. KOHN:
On behalf of the county, we 10 really appreciate your time and your consideration of 11 these issues.
And thank you very much for holding 12 this call.
13 ADMIN. JUDGE FARRAR:
All right.
We 14 appreciate you having so many of the key department 15 heads involved in this so they can have a firsthand 16 feel of the situation.
17 Company counsel, anything else we need?
18 MR. TRAVIESO-DIAZ:
I only thank you for 19 your time and your attention.
20 ADMIN. JUDGE FARRAR:
All right.
Thank 21 you all.
22 MR. WILLIAMS:
Before you close, I just 23 want to make --
Dennie Williams from the Courant, I 24 just want to make sure of just two things because it 25 will take me time to get it otherwise. Mr. Travieso-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Diaz represents Dominion, is that correct?
MR. TRAVIESO-DIAZ:
That is correct.
MR. WILLIAMS:
Yes.
And the other thing is Brook Poole, is that B-R-O-O-K, Pool, P-O-O-L?
MS. POOLE:
Es on both, Brooke with an E, Poole with an E.
MR. WILLIAMS:
Okay.
And your position is?
MS. POOLE: NRC Staff Attorney.
MR. WILLIAMS:
Okay.
Thank you.
ADMIN. JUDGE FARRAR: As long as you asked that question, I didn't make the speech I usually make at the beginning.
That the NRC staff and we, the Licensing Board, are totally independent of each other. We, the Board Members, are appointed by the Commissioners.
And then we act independently.
They don't give us performance reviews.
They review our decisions just like a Court of Appeals or Supreme Court would.
But we have no contact with them other than through the public process.
And we have no contact with the NRC staff other than through their appearance in front of us.
We don't work for them.
They don't work for us.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 96 And I usually try to make that clear because that's not always clear to everybody.
Then we thank all counsel for the briefs that they filed and the elaboration on those briefs today and the answers to our questions.
And we will wait to hear from you.
Thank you all.
(Whereupon, the above-entitled pre-hearing teleconference was concluded at 4:01 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: Dominion Nuclear Millstone Plant Pre-Hearing Conference Docket Number:
50-336 and 50-423, ASLBP No:05-837-01-LR Location:
Telephone Conference were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
Eric Hendri on Official Reporter Neal R. Gross & Co., Inc.
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