ML060740044
| ML060740044 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 03/10/2006 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 483202OLA, NRC-912, RAS 11360 | |
| Download: ML060740044 (122) | |
Text
-R415 II3bo Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION Entergy Nuclear Vermont Yankee Title Docket Number:-
50-271-OLA; ASLBP No.: 4832020LA Location:
(telephone conference)
DOCKETED USNRC -
March 14, 200 (11:17am)
Date:
Friday, March 10, 2006 OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Work Order No.:
NRC-912 Pages 769-888 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
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NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD PANEL
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PRE-HEARING CONFERENCE In the Matter of:
ENTERGY NUCLEAR VERMONT YANKEE L.L.C.,
ENTERGY NUCLER OPERATIONS INC.,
Applicant.
11 11 11 ASLBP No. 4832020LA Docket No. 50-271-OLA 11 11 II Friday, March 10, 2006 The above-entitled conference was convened, pursuant to notice, at 11:00 a.m.
BEFORE:
ALEX KARLIN, Administrative Judge ANTHONY BARATTA, Administrative Judge LESTER RUBENSTEIN, Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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APPEARANCES:
2 On Behalf of the Applicant:
3 JAY SILBERG, ESQ.; and 4
MATT DIAZ, ESQ.
5 of:
Pillsbury Winthrop Shaw Pittman 6
2300 N Street, N.W.
7 Washington, D.C.
20037 8
(202) 663-8063 9
10 On Behalf of the Intervenors:
11 State of Vermont:
12 ANTHONY ROYCEMAN, ESQ.;
13 SARAH HOFMANN, ESQ.; and 14 BILL SHERMAN 15 Department of Public Service 16 112 State Street, Drawer 20 17 Montpelier, Vermont 05260-2601 18 19 New England Coalition:
20 RAYMOND SHADIS 21 New England Coalition 22 P.O. Box 545 23 Brattleboro, Vermont 05302 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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APPEARANCES (Continued):
2 On Behalf of the Nuclear Regulatory Commission:
3 SHERWIN E. TURK, ESQ.; and 4
STEVEN C. HAMRICK, ESQ.
5 U.S. Nuclear Regulatory.Commission 6
Mail Stop O-15D21 7
Washington, D.C.
20555 8
(301) 415-1533 9
10 Nuclear Regulatory Commission Staff Present:
11 RICK B. ENNIS 12 DARRELL J. ROBERTS 13 NEIL A. SHEEHAN 14 15 ALSO PRESENT:
16 JONATHAN M. RUND, ESQ., ASLBP Law Clerk 17 KAREN S. VALLOCH, ASLBP Administrative 18 Assistant 19 CRAIG NICHOLS, Project Manager, Uprate 20 Project 21 22 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 P-R-O-C-E-E-D-I-N-G-S (11:09 a.m.)
JUDGE KARLIN:
This is Alex Karlin, a judge of the ASLBP. This is March 10th. We're having a pre-hearing conference call in the matter of Entergy Nuclear Vermont Yankee L.L.C.,
Entergy Nuclear Operations, Inc. regarding the Vermont Yankee Nuclear Power Station in --
MR. TURK:
Hello.
MR. ROYCEMAN:
Hello.
This is Tony --
MR. TURK:
Hello.
JUDGE KARLIN: Hello?
MR. ROYCEMAN:
Tony Royceman.
MR. TURK:
Hi, Tony.
Sherwin Turk with company.
JUDGE KARLIN:
Thank you, gentlemen, for joining us late.
We've already started.
MR. ROYCEMAN:
Your Honor, I apologize.
Our phone was not working.
We repeatedly were switching phones, trying to get through on the line.
So I would apologize.
And when you're ready, I'll introduce the people I have with me.
JUDGE KARLIN:
Thank you.
We'll get to that in a moment.
Thank you.
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MR. TURK:
All right.
And my apology 2
also, Your Honor.
3 JUDGE KARLIN:
We are at docket number 4
50-271, ASLBP number 4832020LA, the pre-hearing 5
conference call for purposes of trying to schedule and 6
establish some deadlines for the hearing, evidentiary 7
hearing, in this matter.
8 Could we now ask everyone to go around the 9
table, as it were, and identify themselves?
I will 10 start with our offices here in Rockville. We have Dr.
11 Baratta is here with us as well as Jonathan Rund, law 12 clerk and lawyer, with the Board; and Karen Valloch, 13 administrative assistant.
At his location out West 14 Judge Rubenstein is here with us, correct?
Judge 15 Rubenstein?
16 JUDGE RUBENSTEIN:
Yes.
I'm here.
17 JUDGE KARLIN:
He's on the line.
- Now, 18 state, could you please identify yourselves?
19 MR. ROYCEMAN:
This is Anthony Royceman.
20 I am one of the attorneys for the state. And I am in 21 a separate location from Sarah Hofmann and Bill 22 Sherman, who will now identify themselves from their 23 location in Montpelier.
24 MS. HOFMANN:
Sarah Hofmann.
25 MR. SHERMAN:
And Bill Sherman.
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JUDGE KARLIN:
Welcome.
NEC, please?
2 MR. SHADIS:
Yes. This is Raymond Shadis 3
representing New England Coalition.
4 JUDGE KARLIN:
Good morning, Mr. Shadis.
5 MR. SHADIS:
Good morning to you all.
6 JUDGE KARLIN:
Perhaps Entergy, then, 7
could tell us who you all have on line, Mr. Silberg.
8 MR. SILBERG: Yes. This is Jay Silberg at 9
Pillsbury Winthrop Shaw Pittman.
With me in our 10 offices here is Matt Diaz.
On the phone from the 11 Vermont Yankee plant is Craig Nichols, the project 12 manager for the uprate project.
13 JUDGE KARLIN:
Great.
Thank you.
- And, 14 Mr. Turk, from the staff participants?
15 MR. TURK:
Good morning, Your Honor.
16 Sherwin Turk.
With me is Steven Hamrick, who is an 17 attorney who has just filed a notice of appearance for 18 this proceeding. And also with me in this room is Mr.
19 Darrell Roberts, who is branch chief of the section 20 involved in the EPU amendment.
21 On a separate line, I believe, Rick Ennis 22 has dialed in.
He is the NRC project manager.
For 23 the recorder's purposes, I will ask him to identify 24 himself.
25 MR. ENNIS:
Yes.
This is Rick Ennis NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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dialing in from home.
2 JUDGE KARLIN: Welcome. Welcome. Anyone 3
else, Mr. Turk?
4 MR. TURK: That's all for the staff, Your 5
Honor.
6 MR. SHEEHAN:
Neil Sheehan from Region I 7
Public Affairs is also on, Your Honor.
8 JUDGE KARLIN:
Right. Very good.
I was 9
going to get to that.
I appreciate that.
10 Is there anyone else on the line?
11 (No response.)
12 JUDGE KARLIN: Okay. Hearing none, we'll 13 proceed. I guess I will just recite the basic ground 14 rules.
Obviously, the public and the press are 15 welcome to participate or listen in on these 16 proceedings.
They're not here.
So we don't need to 17 worry about that.
18 This matter
- will, of
- course, be 19 transcribed. And the transcription will be available, 20 I guess, on ADAMS in about ten days.
As a general 21 rule, if everyone could try to identify themselves as 22 they begin to speak by name and party, if possible, 23 this would help us because we're on a conference call, 24 not here in the same room together.
25 The main purpose of this call, as set NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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forth in the order, I think, of February 2nd of '06 is 2
to try to firm up a briefing schedule and so that we 3
can set dates for an evidentiary hearing in this 4
matter and also for a limited appearance statement 5
session or sessions.
6 And with that in mind, I will articulate 7
our agenda, as it were, or basic items we think we're 8
going to try to cover here today. And when I'm done, 9
I'm going to ask if anyone has any other items that 10 they think need to be covered.
11 Okay. The overview of the agenda that we 12 want to cover today.
I think there are five main 13 matters. One is some preliminary matters dealing with 14 witness lists, new contentions, motion to modify 15 schedule.
16 Two is the scope of NEC contention 4.
17 Three is pre-hearing briefing schedule 18 issues associated with the initial scheduling order.
19 Fourth are the dates and conduct of 20 hearing or hearings, including limited appearance 21 statement proceedings, evidentiary hearing location, 22 length of evidentiary hearing, and dates for 23 evidentiary hearing.
24 And the final item I think we would want 25 to cover is to talk about scheduling the next NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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pre-hearing conference call.
2 Are there any other burning issues or 3
suggestions or requests?
4 MR. SILBERG: One other item that I think 5
I would like to raise is the scope of NEC 3, which we 6
had some discussions about on the prior conference 7
call.
8 JUDGE KARLIN:
Okay.
We'll try to put 9
that in.
What is the scope question there?
10 MR. SILBERG:
Scope has to do with which 11 transients NEC believed needed to be tested.
12 JUDGE KARLIN:
Oh, right.
Okay.
Yes.
13 MR. SILBERG:
NEC I believe was supposed 14 to have submitted a position on that, which has never 15 appeared.
16 JUDGE KARLIN: All right. Fine. I think 17 that's a reasonable request.
And we'll try to add 18 that in.
19 Anything else? Other suggestions?
20 (No response.)
21 JUDGE KARLIN:
Okay.
With that, let's 22 proceed to what I called sort of the first item, some 23 preliminary matters.
We note that the staff issued 24 the final SER on March 2nd. And the trigger date, as 25 we were calling it in the last call, is then March NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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3rd, the trigger date from most of the deadlines under 2
our initial scheduling order.
3 So under that, what we see are several 4
activities that are required.
- First, the new 5
contentions based upon the final SER would need to be 6
filed within 30 days.
That by my calculation is 7
April.
8 Third, I would like to ask right now if 9
Mr. Shadis, NEC, or the state contemplate at this time 10 filing any new or amended contentions or late 11 contentions or whatever you want to call them based 12 upon the final SER.
13 MR. ROYCEMAN:
Mr. Chairman, this is Mr.
14 Royceman.
On behalf of the state, we do not 15 anticipate filing any amended or additional 16 contentions based upon the issuance of the final SER.
17 JUDGE KARLIN: All right.
Let me expand 18 that question a little bit.
Do you have any other 19 new, amended, or late contentions that you know of or 20 you're contemplating at the moment?
21 MR. ROYCEMAN:
No, we do not.
22 JUDGE KARLIN:
Thank you.
23 Okay.
Mr. Shadis?
24 MR. SHADIS:
Yes.
Thank you.
This is 25 Raymond Shadis, New England Coalition. We have just NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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now received the 900-page final SER.
And we are 2
reviewing it with respect to whether or not our 3
contention is latent in it.
4 In addition to that, we do have three 5
additional contentions that we are contemplating. The 6
problem that we're having in presenting them 7
immediately is procedural. That is, we are reviewing 8
the available documents to try to conform to the 9
requirement that we are in dispute with the licensee.
10 So we are reviewing oral licensing documents and also 11 recent issuances from NRC.
12 JUDGE KARLIN: All right. And let me ask 13 on that. The staff, I believe, represented that they 14 sent this out on the 2nd for arrival on the 3rd of 15 March. Did you not receive it on the 3rd of March?
16 MR. SHADIS:
I picked up the SER at the 17 post office yesterday.
18 JUDGE KARLIN: And, Mr. Turk, I guess may 19 I ask you? You all sent it out to him on the 2nd for 20 arrival on the 3rd?
21 MR. TURK:
We did, Your Honor.
We have 22 certified proof that the package was sent overnight 23 mail to his post office box by U.S. Postal Service 24 overnight mail.
I don't know why Mr. Shadis pick it 25 up until yesterday.
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You may recall also that when I sent out 2
the SER, I provided information as to how the SER 3
could be found on the ADAMS system.
So that Mr.
4 Shadis had it available to him on ADAMS almost 5
immediately starting March 3rd.
6 JUDGE KARLIN:
Okay.
That's enough.
I 7
appreciate that information.
So that does indicate 8
the U.S. certified mail receipt, return receipt, 9
indicating arrival on the 3rd of March.
10 MR. TURK: It's not certified mail return 11 receipt, Your Honor.
It was U.S. Postal Service 12 overnight mail.
And we have documentation of that.
13 JUDGE KARLIN:
Okay.
All right.
That 14 question has been
- answered, new contentions 15 contemplated. We have an answer from the state. And 16 the NEC is I guess not able to answer, but you're not 17 required to. I just want to get a good handle on your 18 best estimate.
19 The next deadline that triggers from the 20 filing of the SER is motions to modify the schedule, 21 which originally would have been due before this 22 conference call, but because of a week delay in the 23 final NER, those are now due on Monday, the 13th, 24 motions to modify the schedule in contemplation of new 25 contentions or any other reason that you might think NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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a change in the schedule is needed?
2 Does the state have any contemplation or 3
plan to file such a motion? Mr. Royceman?
4 MR. ROYCEMAN: Yes. This is Mr. Royceman.
5 Yes, Mr. Chairman, we do and, frankly, had hoped maybe 6
that we would actually just discuss that here today on 7
the phone. But, of course, we will also file, if that 8
is appropriate, by Monday a formal request to modify 9
the schedule.
10 And, if you like, I can discuss that now 11 or we can discuss it. It seemed to me there were some 12 places in your outline of issues where you wanted that 13 discussed.
14 JUDGE KARLIN:
Okay.
Well, perhaps you 15 can just tell us, if you could, the topic or the 16 events that you are seeking some changes to.
And 17 maybe we have already got it covered in our outline.
18 MR. ROYCEMAN:
Oh, okay.
All right.
19 Well, basically it begins from the premise that now 20 that the schedule for the hearing has made clear that 21 the first dates that we could hold a hearing are in 22 September. And, inasmuch as the facility has already 23 been issued the license under what we have to admit 24 appears to be the somewhat dubious theory that there 25 was no significant hazard involved in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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consideration of that, there is the pressure to 2
maintain the kind of schedule that was originally set, 3
which was set at a time when it was thought that until 4
this hearing was over, there couldn't be any uprate 5
seems to us to be unnecessary. And it does now begin 6
to turn out that because everything has already been 7
pushed out to this point, that some of these dates are 8
we think unreasonably short.
9 JUDGE KARLIN:
Okay.
I think that is 10 plenty.
I get the gist of it.
11 MR. ROYCEMAN:
Okay.
12 JUDGE KARLIN:
You're suggesting because 13 what appears to you that the earliest hearing date 14 would be September, that perhaps some of the other 15 intermediate dates can be relaxed.
16 MR. ROYCEMAN:
Yes, without interfering 17 with the, if you will, so-called critical path.
18 JUDGE KARLIN:
Yes.
Okay.
That's 19 helpful.
I'm not sure whether we accept your premise 20 that the earliest date is September.
We intend to 21 probe everyone and ask about some of these, your 22 vacation plans, I guess, and whether or not they can 23 be adjusted. But, that said, that is useful to know.
24 Let's talk about that as we get to that issue later.
25 I think we will get to that.
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All right. So you plan to file some sort 2
of motion to modify the schedule. Mr. Shadis, do you 3
plan to file anything on the 13th?
The deadline is 4
the 13th.
5 MR. SHADIS: At this point, the answer is 6
yes.
This is Ray Shadis, the New England Coalition.
7 JUDGE KARLIN:
Thank you.
And could you 8
briefly summarize what your concerns are, what you 9
want to do to modify the schedule?
10 MR. SHADIS: Well, I think this is a rare 11 moment when we concur with the state. Again, this is 12 Ray Shadis.
13 JUDGE KARLIN:
So am I hearing from both 14 intervenors that you think the earliest that we can 15 have this hearing is in September?
16 MR. ROYCEMAN: This is Mr. Royceman. Yes, 17 we believe that is correct.
18 JUDGE KARLIN:
Mr. Shadis?
19 MR. SHADIS:
Yes. This is Ray Shadis. I 20 did my very best to review the potential dates given 21 the dates that the other parties had signaled for 22 exclusion.
23 And I will say I have been unable to 24 connection with my primary expert on contention 3, Dr.
25 Happenfeld, who is currently in Australia.
But, that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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aside, I reviewed my own schedule. And we have made 2
reservations for extensive travel through July and 3
August.
So I could not find where I could reconcile 4
any of the dates for July and August.
5 JUDGE KARLIN:
All right.
Thank you.
6 Well, let's move on.
Another item in the preliminary 7
item area is I guess the witness list issue.
We 8
raised this in our last conference call.
I guess the 9
parties raised this in the last conference call.
And 10 since that time, you have filed a stipulation and 11 waiver, I guess we would call it, all parties assigned 12 that.
13 And so we agree.
The Board was just 14 orally going to tell you now that you are not obliged 15 to meet the requirement of the initial scheduling 16 order, which is to file your final list of witnesses 17 on the 13th of March, on Monday. That is going to be 18 deleted from the scheduling order.
19 Obviously you will be filing your 20 witnesses when you file your testimony, currently set 21 for 60 days from the final SER.
So we're granting 22 that, essentially, request to delete that requirement.
23 And I hope that will help somewhat because I 24 understood that NEC, in particular, was having some 25 difficulty on establishing all of its lists of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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witnesses by that early date.
2 Okay.
I think now we can turn to the 3
scope of NEC contention 4.
4 MR. TURK:
Your Honor, this is Sherwin 5
Turk. Can I address the question of the schedule for 6
a moment?
7 JUDGE KARLIN:
Yes, certainly.
8 MR. TURK:
Thank you.
I don't share the 9
premise that hearings are not possible before 10 September.
Yesterday I sent out an e-mail to the 11 Board and parties with a calendar showing which dates 12 may be available for hearing on some but not all 13 contentions.
14 There are numerous dates in July and 15 August when we could go to hearing on the DPS 16 contentions. Unless the state has more information to 17 give us in terms of availability, I saw many dates 18 when we could go to hearing on DPS contentions.
19 JUDGE KARLIN: Yes. That's a good point.
20 I apologize for not going fully around the table and 21 asking your thoughts on those issues.
And that's 22 useful input. And I think we are not operating on the 23 assumption yet that, you know, July and August are 24 unavailable.
25 MR. TURK:
All right.
And I would note NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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that on the schedule that I have, the dates of July 2
10th through the 12th are available for DPS 3
contentions on containment overpressure as well as the 4
week of August 7th.
And then we would have to wait 5
until September for other dates that are clear for DPS 6
contentions.
7 JUDGE KARLIN: Right. I see that. And we 8
will get to that when we talk more specifically about 9
dates for the hearing.
10 MR. TURK: And I would also note that the 11 schedule does not reflect any input from Mr. Shadis 12 because until this conference call, I had not received 13 any information from him and I imagine nor had the 14 Board in terms of his availability.
15 JUDGE KARLIN:
That's correct.
We have 16 not received anything from Mr. Shadis.
We will ask 17 him that question when we get to this point.
18 MR. SHADIS:
May I just interject, Your 19 Honor? This is Ray Shadis.
20 JUDGE KARLIN:
No, no.
We'll proceed.
21 And we'll get to that at some later point.
22 MR. SHADIS: Thank you, sir.
23 JUDGE KARLIN: So now we're turning to the 24 let me ask the applicant, Entergy. Any thoughts in 25 terms of motions to modify the schedule?
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 787 MR. SILBERG:
No.
We're not planning to file any.
JUDGE KARLIN:
Do you posit that the hearing must wait until September?
MR. SILBERG:
No.
I agree with Mr. Turk that there are dates in July and August when certainly hearings on the DPS contentions should take place.
We did receive from Mr.
Shadis this morning an e-mail which generally stated he was unavailable in July and August because of foreign travel, contractual commitments, and other matters, but it was not specific.
It just said, "I'm unavailable in July and August."
So I don't know if that's true for every date or --
JUDGE KARLIN: All right. We'll now turn to the scope of NEC contention C-4. We believe there are two parts to that question or issue.
Roughly we could say one of them is the factual scope.
And the other is more of the legal standard scope, the factual scope being the one that was briefed in February, I guess, as to whether or not the contention is limited to the alternate cooling system towers and cells or whether it covers the entire system.
That has been briefed.
We appreciate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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those briefs. And we will be ruling on that soon, but 2
we don't have a ruling for you today. I think we will 3
hope to get something out to you in the next two 4
weeks, as early as possible.
5 The second issue was one we discussed last 6
conference call as well, which is what I would call 7
the legal standard for contention 4. The contention 8
reads, in part, that the application is onot in 9
conformance with the plant-specific licensing basis 10 and/or 10 CFR Part 50, Appendix S, paragraph 1.A 11 and/or 10 CFR Part 100, Appendix A."
12 And our question last time was which one 13 is it because we're now getting down to brass tacks, 14 I guess, in terms of trying to have a hearing. And we 15 kind of would like to know against what legal standard 16 must compliance or inadequacy of compliance be 17 measured.
18 Have the parties had a chance to talk 19 about this any further or try to seek any stipulations 20 or clarifications? Mr. Shadis?
21 MR. SHADIS:
To my best recollection, 22 since our last conference, we have not discussed that 23 with Entergy.
24 JUDGE KARLIN:
Okay.
All right.
That 25 creates a problem.
I think that sends some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND A"E., N.W.
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stipulation or agreement we want to establish a 2
schedule for you all to address that issue and so we 3
can get clarification and ruling on it.
And so we 4
will be setting a briefing schedule for that.
5 We want the schedule to be such that it 6
gives us or gives you a ruling before May 3rd, May 3rd 7
being the date when you are obliged to submit your 8
initial round of testimony.
And we want you to be 9
able to have the testimony focus on the right issues.
10 So the briefing schedule will be a 11 one-week, two-week, three-week type of situation. And 12 we'll issue that in the next week or so as well.
13 MR. SILBERG:
Mr. Chairman?
14 JUDGE KARLIN: Yes?
15 MR. SILBERG: Jay Silberg, if I might. In 16 setting that briefing schedule, I would request that 17 you recognize that this is the contention of the 18 coalition.
So I would hope that they would go first 19 and say what it is that they think the contention is 20 about since it is theirs.
21 For us to respond without knowing their 22 position I think would put us in a very difficult 23 position because we don't know what their contention 24 is about.
25 JUDGE KARLIN: Well, we heard some of this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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last call.
And I appreciate that concern.
And Mr.
2 Shadis also addressed it.
But let me tell you this.
3 I think there is some merit to what you say, but we 4
need to understand, I guess, what deficiencies NEC is 5
concerned about and is alleging exist.
And they 6
presumably can tell us against which standard they 7
think it applies. We will then require the staff and 8
Entergy to agree or disagree as to which standard 9
applies.
10 What we don't want to happen is for us to 11 get to a hearing and have NEC prove that in some way 12 the application fails to conform to legal requirement 13 A and for the staff and Entergy to say, Ah, but 14 that's the wrong legal requirement.
It should have 15 been B."
Before the hearing, we want to know whether 16 it's A, B, or C. And then we can all work towards 17 that end.
18 MR.
SILBERG:
I certainly would not 19 disagree with that.
It's just a question of who goes 20 first so we can respond to what NEC believes their 21 contention is saying.
22 MR. SHADIS:
This is Ray Shadis, New 23 England Coalition.
That's no problem for us.
And I 24 would now commit to getting a statement or a brief in 25 on this legal question by next Friday, I guess it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would be, March the 17th.
JUDGE KARLIN:
Mare MR. SHADIS:
- Yes, looking at the right month?
JUDGE KARLIN:
Yes.
- h 17th?
, Your Honor.
Am I That's one week from today, St.
Patrick's Day.
MR. SHADIS:
Yes.
JUDGE KARLIN:
All right.
That would be useful.
And so, Mr. Shadis, NEC could file its initial brief on this issue on the 17th.
The staff and Entergy would have one week, I guess, to reply.
Well, I'm getting all of the signals here. Why don't we make it four days.
MR. SILBERG: Yes. If you could have that on Monday, March 27th, that would probably --
JUDGE KARLIN:
Oh, no, no, no, no.
I think we're going to say the 24th of March, one week.
And then, Mr. Shadis, we'll give you a chance to reply on the 31st.
Okay?
And we're talking briefs ten pages and five pages for the reply.
MR. SHADIS: Thank you, Your Honor.
JUDGE KARLIN:
Thank you.
That would be helpful.
brief needs And what I want to make clear is that the to address, Mr. Shadis and Mr. Silberg, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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- first, Mr.
- Shadis, you need to tell us what 2
deficiencies you are alleging and against which 3
standards they might apply.
For example, as I 4
understand it, you have identified several 5
deficiencies.
A, B, and C let's call them.
6 Deficiency A may be measured against regulation or 7
standard X.
Alleged deficiency B may be measured 8
against a different one.
I don't know.
You have to 9
tell me what you think.
10 MR. SHADIS: Thank you, Your Honor. Ray 11 Shadis again.
Thank you.
We will.
12 JUDGE KARLIN:
Okay.
That will be 13 helpful.
The 17th, 24th, and 31st of March, initial 14 brief, answer, and reply, 10, 10, and 5 pages. Great.
15 That's good.
16 Pre-hearing briefing schedule is the next 17 sort of item I wanted to cover, whether there are any 18 other adjustments or activities we could do or should 19 do to adjust this. You know, maybe this will be other 20 items in the motion.
21
- First, I note that the
- state, Mr.
22 Royceman, you were indicating last time that there was 23 an issue with regard to orthodox Easter being on April 24 23rd and you wanted an additional week of time for Mr.
25 Sherman. But, as I see it from the one-week delay in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the final SER, that is no longer a problem.
And so 2
we're okay there.
3 MR. ROYCEMAN: Yes, Mr. Chairman. That's 4
correct.
5 JUDGE KARLIN: Okay. Next I want to raise 6
an issue of the schedule.
Hopefully you have the 7
initial scheduling order nearby or at hand.
It has a 8
requirement at article 2, item 10.
This is the 9
deadline for filing motions in limine.
10 Let me back it up a little bit.
There's 11 obviously the direct testimony submitted.
The 12 rebuttal testimony is submitted.
Fifteen days 13 afterwards, after that, the rebuttal testimony, 14 parties have the opportunity to pose questions that 15 the Board should ask the witnesses.
16 At the same time, the parties have the 17 opportunity to submit motions to conduct their own 18 cross-examination of specific witnesses. And then 15 19 days after those submissions, we have set forth the 20 deadline for motions in limine.
21 I
an contemplating accelerating the 22 motions in limine date up to the same date as for 23 filing of the direct examination questions and the 24 cross-examination questions. And the reason for that 25 is that my thought is that the parties are not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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required to share with the other parties the direct 2
examination or the cross-examination plans.
- And, 3
therefore, I don't see any reason to wait until the 4
submission of the direct examination or the 5
cross-examination proposals for anyone to file a 6
motion in limine.
7 So discussion?
8 MR. ROYCEMAN:
Mr. Chairman, this is Mr.
9 Royceman.
10 JUDGE KARLIN:
Yes?
11 MR. ROYCEMAN:
I think that the logic of 12 what you just said is impeccable but that it doesn't 13 take into account --
and this will go to what we'll 14 have in our motion that we file on Monday, but it goes 15 to the problem of trying to get all of the things that 16 are now due dealing with cross-examination questions 17 and requesting an opportunity to do the 18 cross-examination directly, rather than from the 19 Board.
20 Now you would also add on that same 21 deadline all to be done within that same short 15-day 22 period motions in limine. That happens to be a topic 23 on which I have some experience.
And if one were to 24 do a motion in limine and do it properly, you're 25 talking about a very substantial amount of work in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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briefing and involvement of your own expert in 2
preparing that motion.
3 So that I think that would be an overload 4
on what is on the schedule. If nothing is changed on 5
the present schedule, you're talking about all of that 6
happening on June the 6th.
7 So I think that that would be too much of 8
a load to place on that date, particularly if the time 9
periods that precede that for the preparation of 10 direct, the preparation of rebuttal testimony, and 11 then the time for doing questions are all kept at 12 exactly the current numbers, as they are under the 13 current schedule.
14 JUDGE KARLIN:
Okay. All right.
I think 15 I understand that point.
Mr. Silberg, your thoughts 16 on that issue?
17 MR.
SILBERG:
I would agree with Mr.
18 Royceman.
I think to move it up so it's coincident 19 with the filing of cross-examination plans and the 20 rest --
and, by the way, the date that we have 21 calculated for that is June 8th --
I think would be 22 putting a burden.
23 I could conceive moving it up a week 24 perhaps, but I think moving it up, you know, the 25 amount of time that you're contemplating probably is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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not a wise thing to do from my standpoint.
2 JUDGE KARLIN:
Do you agree with the 3
proposition that since most parties, if not everyone, 4
will be filing any motion for direct examination by 5
the Board or cross-examination by the parties, that 6
both of those sets of materials will be filed in a 7
confidential way so that it's not an event that will 8
help or affect someone's motion in limine?
9 MR. SILBERG: I think that's correct. And 10 I think that has been the practice in prior cases.
11 JUDGE KARLIN:
Yes.
Okay.
Both of you 12 are speaking to generally just an overload problem for 13 moving it up.
14 MR. SILBERG:
Correct.
15 JUDGE KARLIN: Mr. Shadis, any thoughts on 16 this, moving this up two weeks?
17 MR. SHADIS:
The only thing I can say, 18 Your Honor, is that we are represented pro se.
And 19 this entire process is something of an unknown forest 20 to us.
I mean, if Mr. Royceman believes that this 21 will be a load to him and to the state with their 22 experience and resources, it certainly would be to us.
23 JUDGE KARLIN:
All right.
I can 24 appreciate that.
Mr. Turk, any thoughts from the 25 staff on this one?
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 797 MR. TURK:
I agree with the overload concern, but I have another concern that we have not addressed yet.
JUDGE KARLIN:
All right.
MR. TURK: Under the current schedule, the initial testimony is due in May 2nd. And parties have to respond to that 20 days later. But if we're going to respond to testimony that raises issues that are outside the proper scope of the contention, it seems like we really should not have to do that.
- And, rather than address matters in rebuttal that are outside the scope, we should be able to file a motion in limine to make sure that it's clear that those matters raised in the initial testimony which are objectionable did not have to be addressed in rebuttal testimony.
JUDGE KARLIN:
Yes.
That's an alternate approach that we're aware of and have thought about.
It's a question of extending and delaying the schedule, I think.
MR. TURK:
I don't think it would delay the schedule.
I think if there's something that's improper and beyond the scope, we should file an objection to that promptly at the same time perhaps that we file our rebuttal testimony.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 798 MR. SILBERG:
Mr. Chairman, if I might, this is Jay Silberg.
I don't see that there is any bar to doing that.
The deadline for the motions in limine is a deadline.
I think you could file that at any point in the process once you have the testimony.
JUDGE KARLIN:
I think that's correct.
It's certainly not a bar. And I think Mr. Turk would recognize and acknowledge that.
He is raising a reasonable point. There is not a bar. If you want to file a motion in limine at an earlier point, fine.
If, for example, if in May, --
we all have this calculated, May 3rd --
the direct testimony is filed by everyone 60 days or whatever and someone has an objection to one of those witnesses or some of that testimony, they can and should file their motions in limine appropriately.
Then there is an answer that needs to be briefed.
That will take another.
So we've got ten days from the 13th. That's from the 3rd. And there's an answer filed.
And then the Board presumably will have to look at it and rule on it.
I don't think we're going to be in a position to have a ruling for you by the 23rd.
Nor are we going to postpone the 23rd, which is the date for rebuttal testimony, merely because a motion is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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pending.
That's not our contemplation at this point 2
in any event.
3 So what would happen is the parties would 4
put through a little bit extra effort to provide 5
rebuttal testimony, even to those portions of the 6
direct testimony they might think need to be deleted 7
or excluded.
I see your point, Mr. Turk.
8 MR. TURK: There's a very strong practical 9
problem here. Even though Mr. Silberg is correct that 10 we could file a motion in limine sooner, --
11 JUDGE KARLIN:
Yes.
12 MR. TURK:
if hypothetically a party 13 submits testimony which raises improper matters, until 14 we get a ruling on the proper scope of that testimony, 15 we don't know if we need to address it in our rebuttal 16 or not.
17 And, for instance, if hypothetically an 18 intervenor in some case, perhaps not this one, raised 19 additional matters in their testimony that we believe 20 are outside the scope of the admitted contention, it 21 would be wrong for us to have to devote resources to 22 responding to it and would take additional time to 23 respond to it when it would have been simpler simply 24 to file a motion in limine and say, That matter is 25 beyond the scope, and we do not need to respond to it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AE., N.W.
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in our rebuttal."
2 JUDGE KARLIN:
While I understand the 3
logic of that, it would make your job perhaps easier, 4
it would delay the schedule, and we think it might be 5
easier for us to deal with it, all those motions, at 6
a later point.
7 Let me say that my current read is that if 8
you file a motion in limine in response to the initial 9
testimony and are seeking to have certain initial 10 testimony excluded and you don't have a ruling by the 11 20th day, you had better file some testimony to rebut 12 it. Do not operate on the assumption that your motion 13 will be successful.
14 MR. SILBERG:
This is Mr. Silberg again, 15 if I might.
There is another possibility.
And that 16 is to speed up the briefing process, we are allowed to 17 file oral motions.
We can certainly have oral 18 responses. And I suspect one possibility is to have 19 a status conference, pre-hearing conference, at which 20 these things could be argued orally and presumably a 21 ruling made promptly thereafter.
22 JUDGE KARLIN:
That has a possibility.
23 And I think we do --
well, I can't speak entirely for 24 all of my comrades, but I think we, the Board, will be 25 having other conferences, pre-hearing conferences, 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 25 801 between now and the hearing.
And there may be opportunities for that, yes.
MR. ROYCEMAN:
Mr. Chairman, this is Mr.
Royceman.
Mr. Turk raises I think a point which we could make probably at a number of. stages in the schedule.
And it goes back to the point that I was making earlier and that I will make later.
If there is a good reason to squeeze the schedule to the point where we create these inefficiencies, then obviously the inefficiencies have to be endured.
But clearly the inefficiency of any party having to prepare testimony on issues which are ultimately ruled out of the proceeding wouldn't be worth it if there was nothing to be gained, if we didn't gain anything.
And it's difficult for me to see why we would do that.
Now, is there something that would lead us to believe that there are substantial inefficiencies?
We already know that there is an ongoing battle between NEC, on the one hand, and Entergy and I guess the staff, on the other, about the scope of what NEC can say and what its contentions have to say.
And I imagine that, regardless of the rulings that the Board is going to make on some of that in the next couple of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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weeks, that is going to continue.
2 In addition, there are issues regarding 3
the scope of the appropriate testimony from the staff 4
and the applicant since it appears from the SER that 5
they have dramatically changed the justification for 6
using containment overpressure from what they 7
originally proposed.
Certainly we have not made a 8
decision on
- this, but there is certainly the 9
possibility that the state will take the view that 10 they may not offer PRA evidence, that that is outside 11 the scope of the contention that we raised, which was 12 based upon the license application as it was presented 13 at the time of the notice of hearing.
14 All that is to say that this is a case in 15 which the scope of contentions could be a major 16 question, not easily dealt with in some oral hearing, 17 but requiring a
fair amount of briefing and 18 consideration by the Board and counter-briefing and so 19 forth.
20 On top of that, we have the question about 21 whether or not expert witnesses will be excluded, 22 which is one of the other ways in which in limine 23 motions are used.
And those are inherently complex 24 motions.
Again, if a whole area of testimony of a 25 party is going to be excluded on the basis that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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witness who is offering it is not going to be allowed 2
to testify, it dramatically will change what the 3
rebuttal testimony is going to look like.
4 All of that would suggest that if, instead 5
. of contracting, we expanded a little on the periods of 6
time that are now in the schedule, we could gain the 7
efficiencies that everybody seems to think are 8
worthwhile at no cost.
9 And I would note since there has been some 10 discussion about it, that the suggestion that we could 11 actually start the hearing on the week of July the 12 10th, on which there are, at most, three available 13 hearing days, disregards that one or more of those 14 days are probably going to be used for limited 15 appearances and that it would certainly not be 16 efficient to take an issue as complex as the one that 17 the state is raising and try to split that between one 18 or one and a half hearing days during the week of the 19 10th of July and then have it go over to some other 20 time.
21 If that is true, then we are really 22 talking about hearings that are not realistically 23 available until sometime in September, at least on the 24 DPS issues.
25 All of that is to say I think we have the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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time to have a more efficient hearing process. And I 2
don't see a good reason why we shouldn't take 3
advantage of it.
4 JUDGE BARATTA:
Mr. Royceman, this is 5
Judge Baratta.
I'm a little confused by some of the 6
underlying philosophy.
I mean, you have put forth 7
what you believe to be significant safety issues that 8
have a special impact on the state and community.
9 Yet, I keep hearing that while the license has been 10 granted and the plant is operating, et cetera, that 11 seems to be completely inconsistent.
12 If these are serious safety issues, are 13 you now saying that maybe they're not as serious?
14 MR. ROYCEMAN:
No, not at all, Judge.
15 What we're saying is that the amount of time that 16 we're talking about during which the plant --
first of 17 all, the plant, as you may know, has not gone up to 18 full 20 percent. And most of the safety concerns that 19 we had are more likely to be triggered at those higher 20 levels.
21 But we're also talking here about the fact 22 that we're talking about a few months when the plant 23 might be running versus an inadequate consideration of 24 the merits of our concerns by the Board.
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were not running and we weren't under that kind of 2
gun, but the reality is that we would rather get a 3
full and fair airing of these issues in front of a 4
board with this expertise than we would be to rush to 5
hearing and rush to judgment and have this not 6
adequately considered.
7 If we are wrong and the Board mistakenly 8
agrees with us, the applicant and the people in the 9
State of Vermont have a great deal at stake also.
So 10 it works both ways. And to our way of thinking, it's 11 better to let the process be due, even if the plant is 12 now already powering up, than it would be to 13 unnecessarily rush it.
14 And I think that under the current 15 circumstances, we have the time and that it would be 16 to the benefit of everyone to take advantage of it.
17 JUDGE KARLIN:
All right.
Any other --
18 Judge Rubenstein, do you have any questions or points 19 you want to make?
20 JUDGE RUBENSTEIN: No. I think I followed 21 it rather well. I've sort of agreed that we ought to 22 go in a deliberate way and make sure we cover all of 23 the issues.
24 JUDGE KARLIN:
Okay.
Good.
All right.
25 Well, I think that covers generally the pre-hearing 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 25 806 briefing schedule adjustments we were thinking through and thinking about.
MR. SHADIS:
Judge Karlin, this is Ray Shadis, New England Coalition.
I do have a question with respect to something that was discussed here.
And I didn't get a chance to get a word in on it.
JUDGE KARLIN:
All right.
MR.
SHADIS:
Mr.
Silberg raised the proposition of oral argument on objections during pre-hearing conferences or teleconferences such as we're having.
I would like to comment that this weights very heavily against the intervenor, in part, because we have to be awful fast on our feet to answer the legal arguments that would be presented in such objections.
And then, secondly, it is to the advantage of the objector if they raise those objections without pre-notice that they can prepare to defend the objection.
And the party against whom they are objecting has no preparation time and simply has to operate extemporaneously.
I think that if the Board thinks it wise to entertain oral argument on objections, that there ought to be some provision for notice so that we can't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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be surprised in these hearings by the objections.
2 JUDGE KARLIN: All right. Okay. We hear 3
that concern. And we'll take that into consideration.
4 We understand that some of the issues with regard to 5
scope, motions in limine that would deal with the 6
scope and the use of various experts, might be pretty 7
important and should not certainly be done in an 8
impromptu or casual way.
And everyone will have an 9
opportunity to address the issue when it comes up if 10 they come up.
11 JUDGE RUBENSTEIN:
This is Judge 12 Rubenstein.
13 JUDGE KARLIN:
Yes?
14 JUDGE RUBENSTEIN: Mr. Royceman, this will 15 come up later, I'm sure, under schedule.
But it was 16 coupling the limited appearance process with some of 17 the DPS testimony.
And you may want to address that 18 now that we were contemplating decoupling those 19 periods and perhaps having that maybe limited 20 appearances and that we would want to hear opinions on 21 that.
22 JUDGE KARLIN:
Okay.
Good.
Now, can we 23 hold that off just for a moment? I think that will be 24 pretty quick, but there is one other thing I think we 25 might cover first.
And then we will get to that.
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That is a good point that we are contemplating the 2
limited appearance statement proceeding to be at some 3
earlier date and not necessarily have to wait until 4
the evidentiary hearing begins.
We will talk about 5
that in a moment.
6 Before we do, I think this might be a 7
reasonable time to ask, I guess --
is it Mr. Silberg?
8 Did you raise the NEC contention number 3, scope 9
question?
10 I mean, this is something that came up 11 last time.
And perhaps I would like to ask you to 12 confront that or address that right now.
13 MR.
SILBERG:
Yes.
We did have a 14 discussion on that last time.
And, as I recall the 15 discussion, --
and Mr. Diaz can correct me if I am 16 wrong -- we had attempted to reach a stipulation with 17 Mr. Shadis on the scope of the contention.
18 There are two transients which we 19 understood the contention to be addressed at that 20 testing was needed for. And Mr. Shadis had suggested 21 that maybe there were others, although I don't believe 22 he had ever formally stated that in any pleading, but 23 he was going to think about that and I think file 24 something with the Board, suggesting, at least setting 25 forth, what he thought the scope of the contention NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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-1 L--- ~
25 809 was. And we've heard nothing back from Mr. Shadis on that topic.
Again, it's something I don't want to have sitting around until the last minute and then suddenly we find that we have testimony that we are not prepared to address with witnesses that we haven't identified.
That's why we raised it a month or more ago.
And we've had no progress in resolving that.
And my recollection was that Mr. Shadis was going to address that in a filing either, you know, informally to us or to the Board. And then we were going to respond.
I think Mr. Shadis was going to put a pleading in to the Board saying, "Here is what I think the scope of that contention is.m JUDGE KARLIN:
All right.
Well, we all remember that conversation the last session.
And I, quite frankly -- maybe I missed it, but I thought Mr.
Shadis had filed something acknowledging that there were two specific large transient tests that NEC had in mind that they thought needed to be done and weren't being done, but perhaps I've got that wrong.
Mr. Shadis?
MR. SHADIS:
One of the defenses, if you will, in our filing of our initial contention was that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the General Electric template and their capital letter 2
report required full transient testing on two systems.
3 Thereafter, arguments went to the general proposition 4
that there should be full transient testing.
5 And in reviewing the licensee applicant 6
materials and NRC filings since, the single additional 7
full transient test for station blackout came up.
8 And, anyhow, I think that at this point we 9
were still trying to sort out whether or not that was 10 included in our general proposition that full 11 transient testing was necessary.
12 MR. SILBERG:
Well, it seems to me, Mr.
13 Chairman, that we need to resolve this now.
I was 14 really surprised that we didn't get something from Mr.
15 Shadis so we could have the Board address that in 16 ample time to know prior to filing of our testimony 17 what the scope was.
18 We thought it was quite clear. And it was 19 really at the last minute that Mr. Shadis suggested 20 that there might be other transients that needed to be 21 looked at.
And I would urge the Board to set a firm 22 schedule for Mr. Shadis to put that pleading in so we 23 can address it.
24 JUDGE KARLIN:
Yes.
I think we have a 25 situation, as everyone I think knows, where the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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initial written testimony is filed at a certain date.
2 The 60th day we have it.
And then the rebuttal 3
testimony is filed 20 days thereafter, I guess we have 4
it.
And these are, as I see it, two fuselage that 5
occur at the same time.
6 It's not sequential. Each side files its 7
initial written testimony.
This expedites the 8
proceeding. That's what the rules say.
It may not be 9
the most efficient, but I think the parties need to 10 have some understanding of what the issue is so that, 11 Mr. Shadis, you can obviously file your initial 12 testimony appropriately and the Entergy can file its 13 initial testimony. They're responding in the dark, as 14 it were, if they don't know what your complaints are, 15 what you're concerned about.
16 So I think we will take that under 17 advisement.
And I think we do need to ask you or 18 direct you, Mr. Shadis, to help us be more --
to 19 understand what your concerns are and what large 20 transient tests you think need to be done.
And then 21 we can all focus on that as to whether they need to be 22 done or not and a briefing schedule.
I think we'll 23 probably have to set a briefing schedule for that as 24 well.
25 I'm not sure whether you want to agree to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the 17th, 24th, and 31st on that issue as well.
2 MR.
SHADIS:
Your Honor, one of the 3
holdups here is that our principal witness on this, 4
Dr. Happenfeld, left on the 28th of February, I 5
believe, for an extended trip out to Australia.
6 I have not been able to confer with him on 7
this. And he is scheduled back the 28th of March. So 8
it would be helpful if we had a week or ten days 9
beyond that.
10 And this was something I was going to 11 address in the filing on Monday with respect to 12 schedule amendment.
We simply --
and I have been 13 unable to plan in such a way as to keep our experts on 14 tap and ready to go without understanding, you know, 15 where we were in the scheduling process.
16 So, in any case, we are somewhat hampered.
17 I would make this commitment that I will, with Mr.
18 Silberg's agreement, contact Entergy this week; that 19 is, this week coming, and try to come to terms on 20 this. And if that's not able, we will file a brief at 21 the very earliest possible time.
22 MR. SILBERG:
We tried to do that after 23 the last call.
And we sent Mr. Shadis a detailed 24 analysis of why we thought the scope of the contention 25 was limited to the two transients.
We have never NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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gotten a response back to that, to my knowledge.
2 If we wait until the 28th of March and 3
then start a briefing process, we're really, I think, 4
being unfairly penalized in terms of the deadlines of 5
trying to get testimony put together.
6 We thought the contention was fairly 7
straightforward. And, actually, we thought that this 8
was a no never mind to get an agreement.
Contention 9
by definition has to be specific.
As at this late 10 date, we're struggling to understand the scope of the 11 contention, then I think there's something amiss.
12 We were always --
and I think everything 13 that we have filed in this case shows that there are 14 two transients, all the documents that we have made 15 available.
We have gotten nothing in response from 16 NEC that would suggest anything to the contrary.
17 JUDGE KARLIN:
Mr. Silberg, can I ask, 18 when did you send? You said you sent something to Mr.
19 Shadis and me.
When did you send that?
20 MR. SILBERG: Let's see.
I have it in my 21 computer.
I had it a minute ago.
22 JUDGE KARLIN:
Okay.
23 MR. SILBERG:
It was in February. Let's 24 see.
I have an e-mail from Mr. Diaz addressed to Mr.
25 Shadis, Mr. Turk dated February 2nd.
I believe there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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is another one dated February 1st.
So, I mean, it 2
goes back over a month.
3 JUDGE KARLIN:
Okay.
And, Mr. Shadis, 4
when did Dr.
Happenfeld or whatever leave for 5
Australia?
6 MR. SHADIS: Not until late in February.
7 And my recollection is February 28th, but I can't be 8
sure about that. I will say --
and I am again caught 9
at some small disadvantage here trying to go back 10 through my computer files and find what they sent.
11 My recollection of it was that, number 12 one, it was not extensive; number two, that it was 13 argumentative and repetitive of what we had already 14 gone through in our conversation.
I did not believe 15 that it needed to have a response.
16 MR. SILBERG:
Well, Mr.
- Shadis, the 17 February 2nd e-mail says, "I look forward to receiving 18 your signed stipulation on hearing procedures."
And 19 we sent you a stipulation that I believe said what the 20 scope of this contention was all about.
It was dated 21 February 3rd.
It was in form ready to be signed.
22 It was not argumentative.
It was a 23 stipulation as to what the scope was.
24 JUDGE KARLIN:
Okay.
Well, we want to 25 have oral argument on this right now.
We will not.
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But I think we do need to nail this down and 2
understand what the hearing is going to cover, what 3
your concerns are, what NEC's concerns are so we can 4
focus on that.
5 So I will ask Mr. Shadis or direct you to 6
respond.
We have two options, I guess.
Let me see.
7 Let me think about this.
I'm going to go offline for 8
a minute here. Mr. Rubenstein, if you would just hold 9
for a minute? I don't think we're going to call you, 10 but let me break here.
11 JUDGE RUBENSTEIN:
Okay.
12 MR. TURK:
Before you go off, may I 13 express some thoughts?
This is Sherwin Turk.
14 JUDGE KARLIN:
Yes, Mr. Turk?
15 MR. TURK: I'm new to this proceeding. So 16 I am not familiar intimately with the transcript of 17 previous oral arguments that were held before I 18 stepped into the case last summer.
19 JUDGE KARLIN:
Yes.
20 MR. TURK:
But I'm looking at your 21 decision of November 22, 2004, in which you ruled on 22 the admissibility of this contention.
And you were 23 very clear in pointing out that the contention is 24 premised upon the lack of two transient tests, which 25 Entergy had sought an exception from having to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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perform. And those were the main steam line isolation 2
valve closure, a rejection, generator rejection, of 3
loads.
There were two tests only.
Your decision 4
specifically said that is the basis for the 5
contention.
6 In today's telephone conference call, I 7
hear Mr.
Shadis saying he's now contemplating or he 8
has to decide whether the scope of his original 9
contention included station blackout testing. Well, 10 it's too late for him to tell you now that 00h, I 11 meant to include something else or I thought I was 12 including something else when the contention was 13 clearly written and it was premised only on the 14 Entergy request for an exception to having to perform 15 those two tests.
16 That was the basis for the contention.
17 That was the basis for the hearing.
And that's why 18 we're going forward on this contention. Although it's 19 interesting for the parties to submit briefs, the 20 issue was decided long ago.
21 And I don't understand why we would not 22 only have to brief the issue but why we would even put 23 more time into the schedule and delay hearings to 24 allow a new issue to be raised as part of a contention 25 that was filed and was required to be specific back NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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12 3
4 5
6 7
8 9
10 11 12 13 14 I-15 16 17 18 19 20 21 22 23 24 I
- "25 when it was filed.
MR. ROYCEMAN:
Mr. Chairman, this is Mr.
Royceman. I was under the impression you just said we weren't going to have oral argument.
JUDGE KARLIN:
Yes.
MR. ROYCEMAN:
And the call has already gone an hour and 15 minutes.
If possible, I would like us not to have to argue these issues if the Board is telling us that we're not supposed to argument them.
JUDGE KARLIN:
Right.
I appreciate comments.
I think it was worth reminding us but not arguing on the issue.
And the fact that two tests were the original basis for the contention and the primary focus of it --
and that is true --
I'm not sure is entirely dispositive here.
We're going to go offline for a moment.
Mr. Rubenstein, we probably won't call you at the moment but just hold on.
JUDGE RUBENSTEIN: I can pick it up on my cell if it's important.
JUDGE KARLIN:
Okay. Hold on, please.
(Whereupon, the foregoing matter went off the record at 12:13 p.m. and went back on the record at 12:15 p.m.)
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JUDGE KARLIN:
We're back on the record 2
here. This is Judge Karlin.
I think what we want to 3
do is to take a brief recess if you all will stay on 4
the line I think maybe ten minutes maximum, where we 5
would call Judge Rubenstein on a separate line if 6
that's okay with Judge Rubenstein.
7 JUDGE RUBENSTEIN:
Fine.
8 JUDGE KARLIN:
Okay.
9 JUDGE RUBENSTEIN:
Do you have my cell 10 number?
11 JUDGE KARLIN:
Yes.
Yes, we do.
And I 12 think we will just have to call you on that separate 13 line. Court reporter, we'll go off the record at the 14 moment.
We will reconvene.
It should be now 12:12.
15 We'll reconvene around 12:22 or something like that 16 and try to give a ruling on this or how we want to 17 approach it.
All right?
18 Thank you.
We are currently off the 19 record and temporarily adjourned.
20 (Whereupon, the foregoing matter went off 21 the record at 12:22 p.m. and went back on the record 22 at 12:27 p.m.)
23 JUDGE KARLIN: We are now reconvening the 24 pre-hearing conference call about 12:27 on March 10th.
25 And we think we can focus on two issues.
One, let's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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talk about the NEC contention 3 that was just being 2
discussed.
3 We think it's an important issue.
We 4
expect you to focus on that. There has been a letter 5
received from Mr. Silberg on the record or it was 6
filed to Mr. Shadis on this point, but we think it's 7
of enough relevance and importance for us to ask the 8
parties to address this in briefs, short briefs, ten 9
pages each.
10 But, Mr. Shadis, we're going to give you 11 ten days from today's date to file a brief on the 12 issue of the scope of contention C-3.
And we'll give 13 the staff and Entergy seven days within which to 14 respond to that.
And we want to focus on 15 JUDGE BARATTA: This is Judge Baratta. In 16 light of Mr. Silberg's letter, I think we want to 17 focus on why or why not the two transients, namely the 18 MSIV closure and the load-rejected transients, do not 19 bound the safety concerns, particularly with respect 20 to those points that Mr. Gunderson pointed out, which 21 dealt with the rapid shutdown capability.
22 JUDGE KARLIN: Yes. And if there is some 23 other transient test that you have a concern about or 24 think needs to be raised, we need to hear it then.
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with a total page limit of ten pages.
So hopefully 2
that will help us understand what issue you have there 3
and make sure it's properly --
I won't say briefed, 4
but the testimony is submitted that is on point and 5
relevant to your concerns, Mr. Shadis.
6 Next, with regard to a matter that we 7
talked about earlier, the NEC contention number 4, we 8
appreciate the fact that the parties have volunteered, 9
Mr. Shadis has volunteered, to brief this issue, the 10 legal issue, as we have characterized it, but we think 11 and we discussed that in order to do that, you 12 probably need to know or get our ruling or a feel for 13 our ruling on what we have been calling the factual 14 issues so that you can scope and understand your legal 15 issue questions.
16 And we have talked, and we will put this 17 in writing, But you may not see the written order 18 before next Friday, Mr. Shadis. And your brief is due 19 next Friday, but our ruling will be that the 20 contention C-4, any C contention C-4, does indeed 21 focus on and is limited to issues about the adequacy 22 or inadequacy of the ABS report, the cooling tower, 23 the associated two safety cells, and limited to those 24 specific issues that were raised by --
was it Dr.
25 Lanzman?
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And so that is our ruling on the scope, 2
the factual scope, we'll call it, of that issue. And, 3
therefore, you can brief the legal, relevant legal, 4
standards on that basis.
Okay.
5 MR. SHADIS:
Your Honor, I really need 6
some clarification and some direction.
Your 7
description just now leaves me at a loss, frankly, --
8 this is Ray Shadis again speaking --
because Dr.
9 Lanzman referred to a lack or an omission in the ABS 10 report on structural supports and all the rest of it.
11 And yes, I am honestly at a loss as to 12 where we draw the line on what provides support for 13 the dedicated cooling tower cell.
14 JUDGE RUBENSTEIN:
This is Judge 15 Rubenstein.
Of course, we'll provide more detail in 16 our written order, but we're talking now to the 17 seismic analysis for the alternate cooling system 18 cooling tower, the safety-related cells.
19 And, in particular, Dr. Lanzman pointed 20 out five, I think it is, deficiencies in the ABS 21 report regarding aging mechanisms, moisture, chemicals 22 on the ACIS, these types of things. And this is what 23 we believe the scope to be limited to.
24 MR. SHADIS: Yes, Your Honor. And please 25 understand I am not trying to be argumentative here, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE. N.W.
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but, in fact, contentions are admitted, in part, 2
supported by experts and also, in part, supported by 3
the factual assertions or material assertions of the 4
intervenor.
And I for the life of me cannot 5
understand why when these issues were raised in the 6
contention and the contention was accepted by the 7
Board we are now being limited only to that aspect of 8
the contention which is supported by an expert.
9 JUDGE RUBENSTEIN:
We record you needing 10 our order.
11 JUDGE KARLIN:
Yes.
We've had the issue 12 briefed.
That was by the parties.
And we are going 13 to rule as best as we just described. And we thought 14 that you needed to know that for purposes of your 15 briefing of the legal issues.
16 I believe the issue raised in the briefs 17 was whether the contention is limited to the tower and 18 the associated safety cells. And I think what you're 19 hearing is the answer is we're ruling yes.
It does 20 appear that we are ruling that that is what it is 21 limited to.
22 MR.
SHADIS:
Thank you, Your Honor.
23 Objection and reservation. Thank you.
24 JUDGE KARLIN:
All right.
Now we 25 hopefully can proceed to some other items. I guess we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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are now in a position to move to dates and conduct of 2
the hearings.
3 MR. TURK:
Your Honor, this is Sherwin 4
Turk. I need to give you some additional information.
5 JUDGE KARLIN:
All right.
6 MR. TURK:
After hearing that Mr. Shadis 7
had not received the documents until recently, the 8
SER, I asked for my secretary to go down and not only 9
get a copy of the certification, which is actually a 10 tracking and confirmation document issued by the post 11 office. And it shows that the SER was not delivered 12 to Edgecomb, Maine until March 6th.
And notice was 13 left for Mr. Shadis on March 6th.
That would be 14 Monday, rather than the Friday, when I had expected it 15 would have been delivered.
16 So, although we did also provide notice to 17 him that it would be available on ADAMS, I understand 18 that he and Mr.
Ennis spoke about that and he 19 indicated that he would be able to download it through 20 his wife's office when it arrived on March 3rd or when 21 it was available on March 3rd, the actual document was 22 not delivered to the post office box, which Mr. Shadis 23 had given us as his address, until March 6th.
24 JUDGE KARLIN:
All right.
Thank you.
25 That's helpful.
I think what that translates to per NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 824 our prior discussion is that what we have been calling the trigger date for everything in the initial scheduling order is now March 6th, as opposed to March 3rd, assuming that delivery to Mr. Shadis' post office was the latest of them and that presumably the state got it on the 6th or earlier.
MR. SHADIS: May I interject again? This is Ray Shadis.
JUDGE KARLIN:
Yes.
MR. SHADIS:
Please understand that post office box delivery is a matter of the post office leaving a note in the post office box. So that if one picks up one's mail on the date that it is delivered to the post office before they put the note in the box, it is the next day, not that day.
JUDGE KARLIN:
All right.
Okay.
All right.
Moving to the date and conduct of the hearings, we are now going to first talk about limited appearance statements.
This is a point Judge Rubenstein mentioned earlier, and finally we're getting to it here. Thank you.
We think, this Board thinks, that it would be valuable, such a limited appearance statement.
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through and prepare for the evidentiary hearing.
2 As we all know, this is going to be the 3
first subpart L evidentiary hearing or at least 4
currently unless it's delayed beyond all expectation.
5 And the Board is going to formulate most, if not all, 6
of the questions that have to be asked.
7 And perhaps the noted appearance statement 8
session should precede our actual evidentiary hearing, 9
by some weeks at least, so that we can have time to 10 think about it and digest and see if there are any 11 good questions we can glean or develop from that. On 12 that basis, we were looking at a limited appearance 13 statement session in the Brattleboro area sometime 14 perhaps in June or even May.
15 So what I would like to do is ask the 16 parties to tell us your availability.
And we're 17 talking essentially one day during the workday and one 18 evening, perhaps from 7:00 until whenever, when people 19 can make their oral limited appearance statements, so 20 a day and a half, two-day type of time frame total.
21 And we sort of addressed I guess blackout 22 dates.
Week of June 12th.
Let me just ask.
- Well, 23 let's just go June 12th, the 19th, and June 26th, each 24 of those.
25 JUDGE RUBENSTEIN:
I would hope you would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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start in May, Alex.
This is Judge Rubenstein.
2 JUDGE KARLIN:
Okay.
Well, we'll get to 3
that, too, but let's
-- well, we'll start with May.
4 Week of May 22nd.
Week of June 12th, 19th, and 26th.
5 We're going to go around the table.
And we would like 6
to ask each of you to tell us what your blackout dates 7
are when you would not be available.
8 MR.
SILBERG:
Could you give us those 9
dates again, Your Honor?
10 JUDGE KARLIN:
Weeks of May 22nd.
11 MR.
SILBERG:
Twenty-second.
12 JUDGE KARLIN:
June 12th.
13 MR.
SILBERG:
Right.
14 JUDGE KARLIN:
June 19th and June 26th, 15 looking for blackout.
Remember, you presumably may 16 not be making any limited appearance statements at 17 that point.
You're not obliged to.
You certainly 18 will have your right to do all of your evidentiary 19 hearings' presentations at the appropriate time.
20 MR.
SILBERG:
- Now, we just need to make 21 sure that appropriate representatives of the applicant 22 and certainly the staff on their part are available.
23 JUDGE KARLIN:
Right.
So why don't we 24 start with you?
Mr. Silberg, perhaps you could help 25 us first with this.
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MR. SILBERG: I would also ask Mr. Nichols 2
to chime in if he is still there with his calendar.
3 JUDGE KARLIN:
That would be great, yes.
4 MR. SILBERG:
We need someone from the 5
project.
The week of May 22nd looks to be fine. The 6
week of June 12th looks to be fine, although starting 7
first thing -- well, we probably wouldn't start first 8
thing Monday morning.
So that would be okay.
The 9
week of the 19th appears to be fine.
Let me just 10 check. Yes, 19th.
And the week of the 26th, I think 11 we can support that as well.
12 Craig?
13 MR. NICHOLS: I see no conflict with those 14 dates.
15 MR. SILBERG:
Okay.
16 JUDGE KARLIN:
Okay.
Great.
State.
17 Perhaps we turn to Mr. Royceman.
18 MR. ROYCEMAN:
All right.
And we will 19 have to do this in two parts because I would like to 20 have Ms. Hofmann and Mr. Sherman also chime in.
But 21 I want to know whether this is the appropriate moment 22 or not to raise the question of whether or not it's 23 appropriate to have the limited appearances before the 24 evidence.
I don't mean before the live hearing.
I 25 mean before the prefiled evidence.
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JUDGE KARLIN:
I don't see a necessary 2
relationship there.
So we're not assuming that that 3
is required.
4 MR. ROYCEMAN:
No, I wasn't going to 5
suggest that, but I believe from the perspective of 6
the State of Vermont, as you know from prior 7
experience, there is an enormous amount of interest 8
and knowledge among our residents.
9 It will limit their ability to provide 10 intelligent input to the Board if they do not have the 11 benefit of the evidence that the parties are 12 submitting on these contentions to inform them when 13 they make their limited appearances.
14 And if the intent is that after any 15 limited appearance comment is made --
and I confess I 16 haven't done this in several decades, so procedures 17 may be different today --
is to have either the staff 18 or the applicant make any kind of comment.
19 To the extent that those comments will be 20 based upon information that the public would not have 21 previously seen, I candidly don't think that would be 22 well-received.
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829 1
that the prefiled testimony, both direct and rebuttal, 2
will be essential for them to do that effectively.
3 And it may in many cases allay concerns. And it could 4
raise concerns that wouldn't otherwise be able to be 5
mentioned.
6 JUDGE KARLIN:
All right.
Well, we'll 7
take that into consideration. Certainly we don't want 8
the limited appearance statements to be simply a 9
vehicle for repeating what has already been presented 10 by the state or that is yet to be presented by the 11 state.
We're hoping there will be some valuable 12 additional input that comes from this.
13 And, as it currently is set, all of the 14 dates we're talking about are after the submission of 15 the testimony.
16 MR. ROYCEMAN:
Of prefiled direct you 17 mean?
18 JUDGE KARLIN:
Direct.
And the 23rd of 19 May for the rebuttal.
20 MR. ROYCEMAN:
Right.
That said, with 21 regard to the weeks that you have identified, I 22 believe that I have no conflict with any of those 23 weeks.
But I have a second calendar not currently 24 available to me, which is any kind of engagements that 25 my wife and I have made independent of work.
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And while you go through the others, I can 2
walk to where that calendar is. And if I have to make 3
an amendment, I will let you know that before you 4
finish with everyone if that is okay.
5 JUDGE KARLIN:
I have been watching some 6
recent overt versions of "Rumpold of the Bailey." So 7
I have some appreciation of the fact that --
8 MR. ROYCEMAN:
She is the one who must be 9
obeyed, yes.
10 JUDGE KARLIN:
Okay.
11 MR.
ROYCEMAN:
Thank you for that 12 consideration.
13 JUDGE KARLIN:
Ms.
Hofmann and Mr.
14 Sherman?
15 MS. HOFMANN: Thank you very much.
Sarah 16 Hofmann, Director of Public Advocacy in the State of 17 Vermont.
We would just iterate Mr.
Royceman's 18 comments about the public's need to see the testimony 19 first.
20 In terms of the scheduling itself, the 21 week of May 22nd, we're not available May 23rd.
And 22 for the week of June 12th, we're not available the 23 12th, 13th, or 14th.
And the other dates are fine 24 that week, as they are for June 19th and June 26th.
25 JUDGE KARLIN: And what is the nature of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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your conflict on June 12th, 13th, and 14th?
2 MS. HOFMANN:
That would be the NASUCA 3
conference, which is the National Association of State 4
Utility Consumer Advocates.
I could forego it if 5
necessary.
6 JUDGE KARLIN: All right.
Thank you.
7 MR. ROYCEMAN:
And this is Mr. Royceman 8
again.
All of those dates are okay except June the 9
16th.
10 JUDGE KARLIN: Okay. Sixteenth. We will 11 go to Mr. Turk, I guess.
12 MR. TURK: Thank you, Your Honor. Looking 13 at our calendars, I would ask that we not have to 14 travel on the 22nd or 23rd because we will have been 15 busy with the testimony that we will be filing.
And 16 on the 26th, I will be out of town.
I will be out on 17 the West Coast on the 26th of May.
18 JUDGE KARLIN:
Okay.
19 MR. TURK:
Mr. Ennis is a person who it 20 would be important to have with us.
He will be out 21 the entire week of June 19th.
But he is a project 22 manager. And I think if anyone from the staff would 23 have something to contribute to the staff's presence 24 that week, it would be Mr. Ennis. So I would ask that 25 we not do it the week of June 19th.
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2 4
5 6
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 previously scheduled trip coming up.
JUDGE KARLIN: Well, is Mr. Ennis going to be making some limited appearance statement?
MR. TURK: Your Honor, if anyone is there who can understand what the comments are that are raised and who can help the staff assess them, it would be Mr. Ennis.
If there is one person whom the staff would want there, it would be him.
JUDGE KARLIN: I know. I appreciate he's an important project manager here.
I contemplate we would have this transcribed. He could have access to the transcription. And I assume he's not going to be making a limited appearance statement.
Okay.
But I appreciate that information.
MR. TURK:
The way these things work, based on my experience, is members of the public want to address somebody in the staff, not just the Licensing Board, but they want to talk to somebody.
So I imagine they want to talk to Mr. Ennis, if anyone, because he is the only person who really could respond to them.
We're at your disposal, Your Honor.
If you decide to hold the limited appearances that week, we'll do without Mr. Ennis.
JUDGE RUBENSTEIN:
This is Judge I
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Rubenstein.
2 JUDGE KARLIN:
Sure.
3 JUDGE RUBENSTEIN:
The project manager 4
historically has been very important to the success of 5
limited appearances.
6 JUDGE KARLIN:
All right.
Well, we 7
appreciate Mr. Ennis is not available for that week.
8 Thank you for the information.
And it's the week of 9
the 26th of June?
10 MR. TURK:
We're clear on the 26th.
11 JUDGE KARLIN:
Okay.
12 MR. TURK:
One other date that I have a 13 problem with is June 16th, Friday.
14 JUDGE KARLIN:
Okay.
That looks like a 15 couple of people have some problem with that one. I'm 16 not sure why. All right. But the week of the 26th is 17 okay.
Is that the staff's sort of reaction? Anyone 18 else on the staff need to speak up at this point, Mr.
19 Turk?
20 MR. TURK:
No, Your Honor.
21 JUDGE KARLIN: Okay. Mr. Shadis? What is 22 your availability for these weeks or what is your 23 non-availability? Any dates you're not available?
24 MR. SHADIS: Thank you, Your Honor. I am 25 very uncertain about the last two weeks of June NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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because that may be the beginning of our scheduled 2
travel. I don't have the documentation in front of me 3
now.
4 The month of May, as far as I know, 5
following our filings is open, but I want to ask some 6
point of information here or clarification from the 7
Board. I have only attended two sessions where there 8
was an opportunity for limited oral appearance at 9
Millstone and at Yankee Rowe. And in both instances, 10 it appeared that the Board was there to take comment 11 from the public. And in both instances, there was no 12 role for NRC staff to play.
13 And I am wondering if this meeting is 14 going to be a free-for-all or if it is going to be 15 structured as a formal opportunity for the Board to 16 take comment from the public.
17 That is my first question. The second is 18 whether the comment from the public is going to be 19 limited to the accepted contentions or if the Board is 20 going to be willing to hear additional comment and/or 21 evidence from the public that might stimulate the 22 Board to sua sponte introduce new issues into the 23 proceeding.
24 JUDGE KARLIN: All right. First, the take 25 comments from the public is indeed the purpose of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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this.
The Board is receiving these comments, these 2
statements. We will not be responding to them, but we 3
will be listening and taking note of the concerns.
4 This is not a place for the staff to 5
provide responses.
The staff can make comments if 6
they want.
They can provide a limited appearance 7
statement if they choose, nor do the parties. Neither 8
the parties or the staff are obliged to make limited 9
appearance statements. You are already parties here.
10 You are already going to present evidence on the 11 limited contentions.
12 So this is for the public to give comments 13 to us. And my impression is that they are not limited 14 to the scope of the contentions.
15 JUDGE BARATTA:
This is Judge Baratta.
16 Just one thing that has nothing to do with the 17 hearing, with limited appearances, but at least at one 18 case after the limited appearance session was over, 19 one of the questions that was raised by one of the 20 people in the public was discussed offline.
I don't 21 even know what the resolution was.
22 So there is a valid reason for the staff 23 to be there.
They may be able to address someone's 24 concern offline independent of this proceeding.
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Mr. Royceman and I have sat through many, many of 2
these sessions over decades. And I think the comment 3
is correct. These are the opportunities for people to 4
address their concerns to the Board.
They're not 5
limited to contentions.
6 But there does tend to be a fair amount of 7
interaction outside in the hallways, if you will, 8
where people can ask questions of the staff and get 9
those questions answered.
I think it would be a 10 disservice to the process if the project manager 11 weren't there, although, as you say, it's not the 12 applicant or the staff's role to make limited 13 appearance statements. And, in fact, under the rules, 14 no party can make a limited appearance statement.
15 It's really specifically intended for non-parties.
16 JUDGE KARLIN:
Yes.
I think that's all 17 helpful.
Let me say that, you know, if the staff and 18 the public can have productive interactions in the 19 hallway or in association with the limited appearance 20 statement hearings, that's great, but that's not what 21 we're having this for. And that's not our purpose.
22 Our purpose is for us to hear from the 23 public.
And the staff and the public can make 24 whatever other arrangements they want. Further, with 25 regard to Mr. Shadis' question about the scope, it's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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837 1
not limited to the contentions.
And it is really 2
relatively open, and we want to hear.
But if people 3
start talking about renewal or something that is 4
entirely unrelated to the uprate, that might be out of 5
bounds and inappropriate in this thing.
6 We're really dealing with anything to with 7
the uprate.
That's the focus of this Board and what 8
our concerns are.
There are many other things in the 9
world we can't do anything about.
It's not our 10 jurisdiction or scope at this point.
11 Okay. I think that gives us a pretty good 12 handle. Mr. Shadis, let me ask you. You say the last 13 two weeks of June are problematic. "Uncertain I think 14 was your word because of what?
15 MR. SHADIS: Because I'm not sure when our 16 foreign travel has been scheduled.
17 JUDGE KARLIN:
What foreign travel?
18 MR. SHADIS:
Pardon me?
19 JUDGE KARLIN:
You say nour foreign 20 travel."
21 MR. SHADIS: My wife and I are scheduled 22 to join our family in Italy at some point through a 23 good portion of July.
And I'm not sure if that 24 doesn't fall back into the first week or ten days of 25 June.
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JUDGE KARLIN:
Well, we are going to ask 2
you to submit, if you would, in writing a date of your 3
unavailability for July through October, which we 4
haven't received yet.
And let's just cover June on 5
that as well.
If you've got specific travel plans, 6
you know, let us know.
7 MR. SHADIS:
Thank you.
I appreciate 8
that.
And, at the least, you will see my e-mail from 9
this morning.
It was copied to the parties and the 10 Board.
11 JUDGE KARLIN:
I checked my e-mail ten 12 minutes before this hearing began.
We received no 13 such e-mail.
14 MR. SILBERG: We did, Your Honor. This is 15 Jay Silberg.
16 JUDGE KARLIN: But I think you had better 17 send it again because it was not received in my e-mail 18 box or --
19 JUDGE RUBENSTEIN:
This is Judge 20 Rubenstein.
21 JUDGE KARLIN: You got it?
22 JUDGE RUBENSTEIN:
I received it and 23 forwarded it to you during the hearing.
24 JUDGE KARLIN: Right.
I understand. You 25 got it.
Judge Baratta did not get it.
I didn't get 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 V.:.25 839 it.
Jonathan Rund didn't get it.
So please send it again.
MR. SHADIS:
Thank you.
I will.
And I will flesh it out and see if I cannot be more specific on --
JUDGE KARLIN: Because it looks like given the concerns raised in terms of timing and others, that the last two weeks of June might be with some exceptions, like the 16th, an opportunity to do this.
And you're the only one who would create a problem.
So it's important if you've got a clear exclusion or reservation on an airplane or something to Italy, then please let us know.
MR. SHADIS: Your Honor, Ray Shadis again.
Let me say that with respect to the limited oral appearances, if it is a matter that I cannot be there, I don't think it will prejudice our case again, and I wouldn't claim that.
So I think that if it happens that I cannot be there, some other representative of the New England Coalition would be. And I think, please, from our point of view feel free to schedule in late June if that is the case.
JUDGE KARLIN:
Okay.
I appreciate that.
And that's a good point. That is to say, there is no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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requirement that any of you be there.
So that is 2
quite a good point.
And there are multiple 3
representatives of some of the parties.
4 Okay. I think what we would like to do is 5
to tell you at the moment to block out the week of the 6
19th and 26th, just hold for a little bit until we get 7
back to you.
The 26th is the week just prior to the 8
Fourth of July weekend.
Perhaps we could hold 9
something at the early part of that week.
So please 10 block that week out at least, June 26th week.
11 MR. SILBERG:
I'm sorry?
Both weeks or 12 just the week of the 26th?
13 JUDGE KARLIN:
Just the 26th.
14 MR. SILBERG:
Okay.
Thank you.
15 JUDGE KARLIN: Okay. Moving on, now we're 16 talking about the evidentiary hearings that I would 17 like to address or ask you to help us think through 18 the locational issues associated with that.
19 Location breaks down into two components.
20 One is within the State of Vermont, we have asked you 21 for specific ideas about particular venues.
And you 22 have answered that and given us some information:
23 Quality Inn; the Latches Theatre, I think it's called; 24 and some other places.
That's helpful.
25 But the other issue that we have on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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location issues is whether or not the contention 2
involves substantially or entirely proprietary 3
information us such that the proceeding would have to 4
be closed to the public anyway.
5 Have you all thought about that issue?
6 Mr. Silberg, perhaps you could help us with this.
7 MR. SILBERG:
I'll let Mr. Diaz address 8
that.
9 JUDGE KARLIN:
Okay.
10 MR. DIAZ:
I believe that DPS 2 may 11 involve proprietary information.
I'm not sure about 12 DPS 1, but DPS 2 may because it would involve 13 information developed by General Electric Company.
14 NEC 3 for the very same reason may involve proprietary 15 information, both of General Electric and some other 16 parties. I'm not sure with NEC 4. But at least those 17 two contentions and possibly three may involve 18 proprietary information.
19 JUDGE BARATTA:
This is Judge Baratta.
20 Could I ask you why you don't think NEC 1 would?
21 Because it seems to me NEC 1 and then NEC 2 --
I'm 22 sorry.
I apologize.
DPS 1 and DPS 2 were very 23 closely related to the topic.
And I don't quite 24 understand why one would and one wouldn't or --
25 MR. DIAZ:
Well, as we understand the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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contentions, DPS 1 --
and Mr. Royceman I'm sure will 2
correct me if I am wrong --
deals with an issue as 3
under the regulations whether it is permissible to 4
take credit for containment overpressure. That's, if 5
you will, a legal question.
6 DPS 2 deals with an issue of fact, whether 7
even if you assume you can take credit for containment 8
overpressure, it is achievable on the state of the 9
equipment that it's on.
10 So we see the two contentions, one being 11 more legal, if you will, regulatory, DPS 1 and DPS 2 12 being fact-based.
And the facts to discuss that may 13 involve requiring looking at GE calculations and all 14 the materials that --
15 JUDGE BARATTA:
Okay.
That is helpful.
16 And when you say DPS and I guess what I like to refer 17 to as the state --
18 MR. DIAZ:
State, yes.
19 JUDGE BARATTA: State's contention number 20
- 2. It may involve proprietary information.
21 MR. DIAZ:
Yes.
For example, one of the 22 issues that is raised in state contention 2 has to do 23 with the performance of the pumps.
And there may be 24 proprietary information with a pump vendor.
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the potential is there.
2 JUDGE BARATTA:
Right.
And I guess with 3
regard to NEC contention number 3, again, it may 4
involve proprietary.
5 PARTICIPANT: Could you be specific as to 6
what material you are concerned about in NEC 3 that 7
might be proprietary?
8 MR. DIAZ:
Yes.
Well, for example, the 9
four months of reactors that have undergone testing 10 similar to the one that is causing the NEC 3, the 11 reports that contain that information are General 12 Electric reports, which are proprietary.
So there 13 will be some aspects of the evidence that we've 14 presented that will be proprietary.
15 JUDGE RUBENSTEIN:
This is Judge 16 Rubenstein.
Could you give us a sense of the 17 predominance of the amount of proprietary --
18 MR. DIAZ:
Well, with respect to --
19 JUDGE RUBENSTEIN:
In other words, is it 20 to the point of being in Washington or in Vermont?
21 JUDGE BARATTA: Well, I don't think we're 22 talking about safeguards information, in which case we 23 might well have to talk about having the hearing in 24 Washington.
I think since it's proprietary 25 information as long as there are provisions for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 10 11 12 13 K...'
14 15 16 17 18 19 20 21 22 23 24 25 844 closing the room and excluding others, we don't need to go to the levels of isolation that the safeguards hearings require.
JUDGE RUBENSTEIN: That wasn't my thought.
My thought was that if the predominance was going to be a closed hearing on an issue --
JUDGE BARATTA:
I see.
JUDGE RUBENSTEIN:
it might be more efficacious to have it in Washington.
JUDGE BARATTA:
Yes.
I understand.
MR. DIAZ:
Well, as to NEC 3, the predominance would be non-proprietary information. I suspect that as to state 2, it would be hard to tell.
MR. SHADIS:
I'm sorry.
This is Ray Shadis. I didn't understand that last representation with respect to NEC 3.
MR. DIAZ:
I'll say it again.
MR. SHADIS:
Yes, sir.
MR. DIAZ: Our understanding standing here today is that for NEC 3, most of the information that would be presented is already available in the public and would not be proprietary.
There would be some aspects that would be.
As I said, for example, information of one of the actors would probably be proprietary.
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JUDGE BARATTA: I would also note in that 2
connection that we may require an order from the Board 3
establishing a protective order.
We had offered to 4
Mr. Shadis or perhaps to Mr. Block before him a 5
proprietary agreement so that they could have access 6
to commercial proprietary information. And they have 7
never accepted that offer.
8 So if, in fact, we have proprietary 9
information in one of the issues that is covered that 10 is one of the coalition's contentions, we will 11 probably need the Board to issue an order unless Mr.
12 Shadis decides to execute a proprietary agreement.
13 JUDGE KARLIN:
- Well, we do have a 14 protective order issued on March 1st of '05.
Doesn't 15 that address at least some of the concerns or is 16 something wrong with that one, Mr. Silberg?
17 MR. DIAZ: Well, it's not the order. The 18 order has an attachment, which is an agreement that 19 has to be signed by the people who want to have access 20 to the information.
21 JUDGE KARLIN:
Yes.
22 MR. DIAZ: The state, for example, signed 23 that agreement way back shortly after the order was 24 issued.
They have been reviewing and receiving 25 proprietary information on their contentions.
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JUDGE KARLIN:
Right.
2 MR.
DIAZ:
NEC has not signed an 3
agreement.
- And, therefore, even though the 4
opportunity for them to receive information is there, 5
they have not signed the agreement that would enable 6
them to receive it.
7 JUDGE KARLIN:
Well, okay.
Thank you.
I 8
mean, that clarifies it. I mean, if NEC does not want 9
to sign it, then they don't get the proprietary 10 information.
11 JUDGE BARATTA:
That's been the case so 12 far.
13 JUDGE KARLIN:
That's been the end of the 14 contention to the extent it involves proprietary 15 information.
So, Mr. Shadis, I suggest you either 16 sign it or submit some sort of a motion why you won't 17 sign it and you need some other relief.
Otherwise 18 your contention will necessarily fail.
19 MR. SHADIS: Your Honor, the only specific 20 question that Entergy raised here is on the question 21 of the experience of foreign reactors, specifically 22 Swiss reactors.
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847 1
testing or that they had full transient testing by 2
inadvertence, however it goes. We do not need to see 3
their calculations.
4 And I guess the deal is that, you know, we 5
would be willing to take a look at EntergyIs brief and 6
see if there is anything indicated there that we feel 7
we would need to defend.
8 JUDGE KARLIN:
Okay.
Well, I think that 9
that is helpful.
If you don't intend on depending on 10 any proprietary information, that's fine.
- Note, 11 however, that if NEC's brief refers to proprietary 12 information, then I think we're going to need you 13 under some obligation to honor the proprietariness of 14 that information in order to see the brief.
15 JUDGE BARATTA:
This is Judge Baratta 16 here.
With respect to other material I thought that 17 Entergy might consider proprietary, I thought the 18 original issue relative to or one of the original 19 issues relative to NEC 3 dealt with the adequacy of 20 the analysis that was performed by Entergy and in 21 addition to the relevance of the foreign reactor 22 experience.
23 Are you
- certain, then, that the 24 information, for example, on the ODIN code, the models I
(
25 used, validation for that code, its applicability to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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this type of analyses, et cetera, is non-proprietary?
2 MR.
SILBERG:
Yes.
I've just been 3
informed in a side conversation from Mr. Nichols that, 4
in fact, there is other information that could be 5
relevant in litigating that contention that involves 6
domestic reactors, for instance and the transient 7
analyses?
8 MR. DIAZ:
I was referring to the foreign 9
reactor by example. There may be topical reports that 10 are proprietary and that have not been given 11 distribution to the public. And those will be covered 12 as well.
13 JUDGE BARATTA:
And I guess the other 14 point I want to make --
I'm not a lawyer.
So the 15 lawyer types will have to help me on this, but --
16 PARTICIPANT:
Stop bragging, Judge.
17 JUDGE BARATTA: -- I thought the burden of 18 proof was on the applicant at this point.
- And, 19 therefore, if you felt it necessary in your testimony 20 to put forth information that was of a proprietary 21 nature to the Board, who is judge, jury, and I guess 22 excuse me but executioner, that was your prerogative.
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which would require divulging or referring to 2
proprietary information, that
- that, too, was 3
appropriate and that in those cases, anybody who has 4
not signed the proprietary agreement, then they would 5
be excluded, even though they were apart from the 6
testimony at that point.
7 MR. DIAZ: That is correct. And, in fact, 8
it may come up also in the testimony, where in order 9
to respond to some of the issues raised by the direct 10 testimony of other parties, you need to bring in 11 information that you perhaps were not thinking of 12 using but that may be proprietary.
13 JUDGE KARLIN:
Right.
Okay.
I think 14 that's well-said.
And one of our non-lawyer judges 15 has brought us all back to reality and to legality.
16 So this is helpful.
17 MR. ROYCEMAN:
Mr. Chairman, this is Mr.
18 Royceman.
The state is concerned about this issue, 19 partly because, wherever possible, we think these 20 issues should be heard in the public.
And we are 21 concerned that it is certainly possible that this 22 proprietary information issue is going to 23 substantially interfere with that occurring.
24
- Now, as the Board knows, under the l
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able to challenge an alleged proprietary status of any 2
document. At this point, there is no reason and there 3
would be no reason why the state would raise any of 4
those because so far what we have seen that is 5
proprietary/not proprietary, nothing is happening with 6
it.
7 But we're going to start putting this in 8
as testimony. And the testimony is going to be either 9
based on proprietary or not based on proprietary. And 10 there there is ample basis, although not currently in 11 the schedule ample room, to raise the question of 12 whether or not documentation that is alleged to be 13 proprietary should be treated that way.
14 It seems to me that since we feel that the 15 issue should be as narrow as possible, that it is 16 difficult at this stage to know how this is going to 17 play out until we see what the testimony is that the 18 parties submit and what the rebuttal testimony is and 19 what they are going to rely upon.
20 Obviously we cannot control in any 21 possible way that the Board would ask a question that 22 would then cause a witness to have to make a reference 23 to proprietary information or believe that that 24 witness had to.
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made clear at the outset that it was not encouraging 2
witnesses to have to talk about proprietary 3
information in order to answer questions because hat 4
would force, say, a party that hasn't signed the 5
proprietary agreement and the entire audience to have 6
to leave the room every time a question got asked that 7
the witness felt he had to talk about proprietary 8
information.
9 All of that goes to say that I think this 10 is a mare's nest.
And I don't know that we have in 11 place a procedure that is going to make it feasible.
12 But I would suggest that maybe we should revisit this 13 issue after the parties file their prefiled direct 14 testimony and see at that point whether it appears 15 that there is going to be a substantial amount of 16 proprietary information in play that will either 17 provoke someone asking that it not be considered for 18 proprietary or, conversely, that will require the 19 Board to set aside days, days in the hearing when all 20 the proprietary information will be discussed and then 21 other days when it will be open.
22 JUDGE KARLIN: Okay. Well, thank you. We 23 don't really need to have a long oral argument on 24 this. We agree that these hearings should be held in 25 public to the maximum extent possible.
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our approach, and we try to do it that way.
2 And we want to hold them also in the 3
location where the facility of concern is being 4
licensed or seeking an application or amendment.
5 That's the Commission's approach.
We are following 6
that.
7 Yet, if there is proprietary information, 8
we need to deal with that and we need to manage that.
9 We also have a situation where we are going to be 10 asking the questions. And if we want to get into an 11 area or investigate in order to make a ruling here, 12 we're going to ask some questions. And if it involves 13 proprietary information, it involves proprietary 14 information.
We're not out to maximize that 15 proprietary information, but we're out to get the 16 answers to what we need.
17 Finally, I would note that in the initial 18 March 1, '05 protective order governing this amount of 19 material, we did set deadlines for people to raise 20 issues with regard to disputes about whether something 21 is really proprietary or not.
22 I would suggest everyone dust that off 23 because article II, section 3 says that people have no 24 later than 60 days after the issuance of the final SER 25 within which to raise certain issues except for good NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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cause if there is some good cause of why you haven't 2
raised it before.
3 So everybody had better take a look at 4
that as we are concerned. We want to resolve issues.
5 If you think there is something that is claimed to be 6
proprietary that isn't, I guess we'll have to sort it 7
out, but we don't want people waiting until the last 8
minute to raise this issue. We want to sort it out as 9
early as possible.
10 MR. SHADIS: Your Honor, excuse me. This 11 is Ray Shadis again.
How will we know --
12 JUDGE KARLIN: Well, if you've waived your 13 right or refused to participate, then I think you've 14 got a problem.
15 MR. SHADIS: No, I didn't waive our right 16 to participate.
I declined to give a blanket 17 exemption --
18 JUDGE KARLIN:
Right.
19 MR. SHADIS: --
for anything that Entergy 20 would designate as proprietary. If there is anything 21 proprietary that we would want to look at, it would 22 only be those things that are relevant to our 23 contentions.
As it stands --
24 JUDGE KARLIN:
All right.
Well, let me 25 answer that question. Then we'll move on. The answer NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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I think --
I haven't consulted my colleagues --
is as 2
follows.
If Entergy put a certain document forward 3
and said it was proprietary --
let's say they did that 4
on June 1st of '05 --
and any party who had filed 5
under the protective order the agreement in question 6
could see it promptly and you consciously declined to 7
sign that agreement until June of '06, we don't think 8
that your refusal to sign the agreement should give 9
you a year's extension in terms of the duty to raise 10 an objection.
11 MR. SHADIS:
I understand that, Your 12 Honor. And please excuse me.
I'm not trying to beat 13 this horse any more than necessary, but we have no way 14 of knowing what documents Entergy intends to rely on 15 in filing its brief.
So how can we choose whether or 16 not to sign a proprietary agreement or object until we 17 see what it is they are going to include in their 18 briefs?
19 MR. DIAZ:
Mr. Chairman, if I may add to 20 that because I have been partly responsible --
21 JUDGE KARLIN:
No.
Wait a second.
I 22 think that is enough on that issue at this point. Our 23 issue is not here to discuss how we work the 24 proprietary issues. Everyone should consult the March 25 1st, '05 protective order.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with it
- needed, request 855 or think there's an adjustment or modification you can file a motion to that effect or some adjustment or relief.
Other than that, all we want to know today
- her.some of these contentions involving is whet proprietary --
PARTICIPANT:
Put it could."
JUDGE KARLIN:
could involve proprietary information so that we can think about the location of how we're going to manage the hearing, the time, the location, that sort of thing, because it sometimes takes a longer amount of time to manage a contention if we've got to ask people to step out of the room and then reconvene.
So there's both a locational aspect to it and a length of evidentiary hearing aspect to the additional burdens involved in proprietary information.
So that's all we need to know on that one, I think.
Well, let me just ask the staff.
Do you have any perspective, staff, and I suspect or anything to add vis-a-vis whether or not these contentions involve from your perspective, necessarily or probably, proprietary information?
MR.
TURK: We really have nothing to add, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Your Honor.
The information is possessed by the 2
applicant or its supplier. And they really would have 3
to make the call on the proprietary, the need for that 4
information to continue to be protected as 5
proprietary.
6 JUDGE KARLIN:
Okay.
With that, let's 7
move on to the next part of the dates and conduct for 8
the evidentiary hearings.
The length of the 9
evidentiary hearings we're going to focus on for a 10 moment.
I'm not sure how much we can say.
11 And then we're going to turn to the 12 calendar and dates through when, what the availability 13 is.
But the length of the evidentiary hearing, we've 14 got four contentions.
15 We understand that there is no direct 16 evidence presented by the parties during the oral 17 hearing.
There is no cross-examination presented by 18 the parties during the oral hearing except to the 19 extent that we, the Board, rules it's needed and 20 appropriate under the proper standards under CAN under 21 the regulations.
22 So the bulk of the hearing, if not the 23 entirety of the hearing, essentially consists of the 24 Board asking questions of the witnesses as we see fit.
25 We'll probably also have opening statements from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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857 1
parties and possibly some closing statements, but 2
that's not evidence.
3 All that said, the length of the hearing 4
is essentially determined by the number of questions 5
the Board may ask.
And that's up to us, not to you.
6 But that said, perhaps we could solicit 7
the thoughts and wisdom, short statement. If you have 8
any suggestion as to what you think of the length of 9
the hearing and that approach.
10 We also say that I think we're going to 11 have another chance in another pre-hearing conference 12 to talk a little bit more specifically about how the 13 oral hearing will go and what it will entail, but as 14 a preliminary matter, Mr. Silberg, any thoughts on the 15 length of the hearing?
16 MR. SILBERG: I'll ask Mr. Diaz to address 17 that.
18 MR. DIAZ:
Well, it is very hard at this 19 point to give you a forecast.
But, comparatively 20 speaking, issues such as the state wanted to have less 21 of a factual underpinning should be able to be 22 disposed of or have the testimony given and the 23 questions asked faster than, say, on state contention 24 2, which is fact-based.
25 As to the two contentions propounded by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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858 1
NEC, both of them, particularly the NEC 4, have a rich 2
factual underpinning that the Board will have to 3
probe.
4 I don't know if this is helpful, but I 5
would suspect that, at least to all of the NEC 6
contentions, one of the DPS, one of the state 7
contentions is the hearing would take more time than 8
if it was just an interpretation.
9 JUDGE KARLIN:
That's a useful way to 10 think about it, I guess, whether it's more factual or 11 more legal.
Mr. Royceman, your thoughts on this 12 subject, length of hearing?
13 MR. ROYCEMAN:
Candidly, I think it's 14 impossible because, as you aptly pointed out, the 15 control of that is in the hands of you and the two 16 other judges.
I think that we will be submitting a 17 substantial number of questions that we believe the 18 Board should ask, but we have no way of knowing how 19 many of those the Board will consider wanting to ask 20 and how many that we don't think of the Board will 21 itself decide to ask.
22 And, of course, this all assumes --
and 23 that is what I am assuming --
that the Board does not 24 grant permission for any party to do their own 25 cross-examination.
That's far down the road before NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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we'll know the answer to that.
2 So I think it's very hard to answer.
I 3
think both Mr. Silberg and I could give you some 4
numbers that would stun you if we told you how long 5
this would have lasted if we were under subpart G.
6 But that's not useful.
7 So I don't know.
I certainly think that 8
the state contentions --
I can't imagine that they 9
could be addressed in less than two days, but who 10 knows.
I'm sorry.
I wish I could be more helpful.
11 JUDGE KARLIN:
All right.
No.
It's 12 difficult to analyze.
I mean, it essentially is in 13 our court, as it were, to assess how long the hearing 14 will be, how many questions we think need to be asked.
15 And we are not really in a good position to make that 16 determination or think that through until we have 17 received from you the direct testimony, the rebuttal 18 testimony, and the proposed questions that you think 19 would be appropriate. Once we have seen that, we can 20 roll up our sleeves and we can figure it out.
We'll 21 have a much better idea.
22 At this point, we think we will only be 23 able to in a very rough way rough out some time and 24 hopefully adjust from there. We also want to note and 25 remind you that with regard to the four contentions, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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(
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.11 a
860 our concurring interpretation and assessment is if we find on a given contention that we are happy with the documents that have been filed, the testimony, we may not ask any questions. And there may be nothing. No witnesses will even need to show up.
MR. ROYCEMAN: No. I understood that. I just wanted to add one other thing. I don't think we agree with Mr. Diaz's distinction between the two contentions.
Our view of contention 1 is that it is at least as factual as contention 2. And, moreover, I don't think we will necessarily present our testimony neatly divided into contentions as much as we'll present it divided into technical issues.
JUDGE KARLIN:
That may be problematic.
I don't know that we can address it right now.
But I think our contemplation would be it would be by contentions.
MR. ROYCEMAN:
Well, if that's what the Board prefers, we could do that.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 861 to the contentions. The amount of meat that is there is much greater now that we have seen a larger body of data.
And I think our thought was that we would try to let this be driven more by our experts than by our lawyers, which means let the experts talk about this as experts would talk about it, not in the contention cubbyholes that the Commission's regulations require that you talk about in order to get a matter considered, but if the Board wants us to present by contention, we'll do that.
JUDGE KARLIN:
Okay.
Well, our initial thinking was it will be by contention. That's the way we are going to have to rule, by contention. It would be helpful to us I think to receive information in testimony in that way.
Let me move on to Mr. Turk. And then I'll ask Mr. Shadis in terms of length of the evidentiary hearing. Anything to add? Anything you can help us scope this out, Mr. Turk?
MR. TURK:
Yes.
I'm willing to put my canoe in the water today, Your Honor.
JUDGE KARLIN:
Okay.
MR. TURK: I look at the NEC contention 4 on seismic issues to raise more separate issues than NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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11 II
862 1
the other contentions.
So I look at that one as 2
taking more hearing time because more factual issues 3
are raised than either the large transient testing or 4
the containment overpressure issue.
5 I would hazard a guess --
and I guess 6
these are relative numbers. I'm willing to state that 7
I very well could be wrong. But my rough guess would 8
be on containment pressure credit, roughly two days; 9
large transient testing, two days, maybe a little bit 10 less; and seismic, approximately four days.
And 11 that's just hazarding a guess now.
We really would 12 have to wait to see the test when it comes in before 13 you can firm that up.
14 JUDGE KARLIN:
Large transient testing, 15 two; seismic, four.
And what's the other?
16 MR. TURK:
The two state contentions on 17 containment pressure.
18 JUDGE KARLIN:
Oh, both of the state 19 containment pressure in two?
20 MR. TURK:
In two.
21 JUDGE KARLIN:
All right.
Well, that's 22 for whatever. Mr. Shadis, anything you might add here 23 on the length of the evidentiary hearing, not 24 necessarily dates or --
25 MR. SHADIS:
Yes, quite.
I understand, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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863 1
Your Honor.
Thank you.
2 I think I would tend to agree with Mr.
3 Turk's assessment. And that would be very likely the 4
outside. That is to say two days and four days would 5
be the most extreme on that.
6 We really must understand we are really 7
reaching here. We don't have the information in front 8
of us to make any kind of accurate prediction.
9 JUDGE KARLIN:
Okay.
10 MR.
SILBERG:
Mr.
- Chairman, there's 11 another way you might get some data which could help 12 you, and that is to have the parties, if they know, 13 state how many individual witnesses they would plan to 14 put forward on each contention because sometimes just 15 the number of witnesses generates enough questions so 16 that you could make some estimate as to the time it 17 might take.
It's certainly not the only relevant 18 criterion, but it might be one of interest.
19 JUDGE KARLIN:
All right.
Well, without 20 wanting to prolong this call any further, how about, 21 Mr. Silberg, what is your answer to that question?
22 MR. SILBERG:
Numbers of witnesses?
23 JUDGE KARLIN:
Yes.
24 MR. DIAZ: Well, this is based on memory, 25 but I would say that for DPS, for the state contention 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 25 864 1, we could have two witnesses. For state contention 2, we have four.
For NEC contention 3, we have two.
And for NEC contention 4, we have four.
JUDGE KARLIN:
All right.
Mr. Royceman, what are your numbers?
MR. ROYCEMAN: You know how lawyers are, Your Honor. We always wait as long as we can.
- Well, we have identified two witnesses. And it is possible that by the deadline, we will have three. But I don't think that there will be more than that.
JUDGE KARLIN: Then they would both speak to both issues?
MS. HOFMANN:
Yes.
MR. ROYCEMAN:
All right.
JUDGE KARLIN:
Okay.
MS. HOFMANN:
Sarah Hofmann from the Department of Public Services.
JUDGE KARLIN:
Thank you, Ms. Hofmann.
Yes.
MR. ROYCEMAN: Ms. Hofmann has our expert witness with her.
JUDGE KARLIN:
Good.
Mr. Shadis, your thoughts in terms of witnesses for your two contentions, number of witnesses for each?
MR. SHADIS: We don't know at this point, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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865 1
Your Honor.
It looks like two witnesses for each 2
contention, but we are not certain.
3 JUDGE KARLIN:
All right. And Mr. Turk?
4 MR. TURK:
We have a panel of witnesses 5
who previously provided an affidavit on the 6
containment pressure issue.
And we probably would 7
present those same four people as witnesses on those 8
issues.
Those are the DPS 1 and 2.
For large 9
transient testing --
I'm sorry.
That was on large 10 transient testing, which is NEC 3.
11 JUDGE KARLIN:
Okay.
12 MR. TURK:
So that's four for NEC 3.
13 JUDGE KARLIN:
All right. And the others?
14 MR. TURK: Containment pressure, two; and 15 the seismic issue, two.
16 JUDGE KARLIN:
Okay. Two, two, four, two.
17 Okay.
Thank you.
That may be somewhat helpful in 18 terms of scoping this thing out.
19 All right.
I guess now we turn to the 20 actual dates for the hearing.
I appreciate the fact 21 at least that we have received three of the parties to 22 give us a schedule, a calendar, availability.
23 But before we turn to that, let's just 24 turn to Mr.
Shadis and ask.
We want you to file 25 something in writing, Mr. Shadis, if you haven't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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already. But, in the meantime, tell us, if you could, 2
what your availability is through the months of July 3
through October, what your blackout dates really are.
4 When are you not available?
5 MR. SHADIS:
Yes, sir.
Thank you very 6
much.
There are no blackout dates at this point in 7
September or October.
The New England Coalition the 8
best we can tell would be ready to go the beginning of 9
September without any problems whatsoever.
10 Our calendar for July and August was so 11 shot through and variegated that I could not pick any 12 dates that were open in July or August.
13 JUDGE KARLIN:
I think we need to be a 14 little bit more specific than that, Mr. Shadis.
You 15 have got every day in July and August totally 16 unavailable?
You have to explain that a little 17 better.
18 MR. SHADIS:
Well, the only thing I can 19 say is that there are a few days in July or August, 20 but they are single days that I have picked out that 21 are available.
Friday, the --
22 JUDGE KARLIN: Let me just stop you right 23 there. Let's go to the week of July 30th, July 30th.
24 Why are you not available that week?
What is your 25 conflict?
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867 1
MR. SHADIS: I am sorry I don't have that 2
calendar in front of me.
My --
3 JUDGE KARLIN:
That's what we have this 4
call for.
You have failed to submit anything in 5
advance of the call.
So I was at least expecting you 6
would be able to tell us during the call what your 7
availability is and why you're not available.
And 8
you're telling me you don't have that available?
9 MR. SHADIS:
That's right.
10 JUDGE KARLIN:
What's your availability 11 the week of August 6th? What's your problem with that 12 week? Do you have vacation? Are you in Europe, in 13 Italy?
14 MR.
SHADIS:
- Sorry, Your Honor.
I 15 understand your question.
16 JUDGE KARLIN:
Do you have a witness who 17 is not available that week so we can't have that 18 contention but we could have another contention?
19 MR. SHADIS: The week of August the 6th is 20 Sunday, August the 6th. We are scheduled for a family 21 reunion in West Virginia.
We would be leaving on 22 August the 4th, Friday, August the 4th.
We would be 23 returning on August the 8th.
So the remainder of that 24 week could be available except that I was taking into 25 account a kind of jet lag so that August the 9th was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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August the 10th and the 11th would be doable.
JUDGE KARLIN: All right. Now, what's the problem with the week of August 13th-14th?
MR. SHADIS:
I didn't assume that any of those dates that were blacked in where the NRC staff-was not available were even under consideration.
So I did not go there.
In other words, we, New England Coalition, might be available ton the week of the 13th through the 19th except that we did note that the NRC staff was not available. And we presumed there would be no hearings unless they were available.
JUDGE KARLIN: Well, we intend to ask, our plan was to ask the NRC staff why they aren't available that week.
MR. SHADIS:
I see.
JUDGE KARLIN:
And, you see, if we all just agree that some one person has got a problem, then we all have a problem. Our approach is to try to have this hearing as expeditiously as possible within the time and the frame available and making sure it's fair and everyone gets their fair shot.
I further understood that I thought the NEC and the state were anxious to have this hearing as promptly as possible.
I think they are.
I think we all are.
But we want it to be fair.
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Now, with that in mind, we're trying to 2
probe why people can't have this hearing at some 3
earlier date.
4 MR. SHADIS: Yes. Thank you, Your Honor.
5 JUDGE KARLIN:
So you are available the 6
week of the 13th of August?
7 MR. SHADIS:
Yes.
8 JUDGE KARLIN:
The week of the 21st of 9
August, what is your availability?
10 MR. SHADIS: The 20th of August, likewise, 11 we would be available. We presumed that there would 12 be no hearings because the staff would not be 13 available.
14 JUDGE KARLIN:
Okay.
Good.
The week of 15 the 28th of August?
16 MR. SHADIS:
The 28th of August I have 17 marked in that we are traveling August the 30th, 18 extending over the Labor Day weekend, to --
wait a 19 minute -- August 30th, yes -- extending over the Labor 20 Day weekend through the 5th of September.
21 JUDGE KARLIN: Okay. So you're available 22 the 28th and 29th?
23 MR. SHADIS:
That's correct.
24 JUDGE KARLIN:
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available?
2 MR. SHADIS: Well, I need to correct that.
3 September, available after September 7th. It would be 4
returning from West Virginia on the 5th.
So I just 5
was trying to. cut one day of slack there.
But we 6
would be available from September 7th forward. And I 7
have nothing else scheduled in September.
8 JUDGE KARLIN:
Okay.
September and 9
October.
All right.
Let us turn to the applicant, 10 Mr. Silberg.
Let's go through the same drill. What 11 is your problem with the week of July 31st?
12 MR. SILBERG:
I think that's a witness 13 availability for that particular contention.
14 JUDGE KARLIN:
How many witnesses do you 15 have on that one?
16 MR. DIAZ:
We have two witnesses.
And I 17 don't recall whether just one or both were not 18 available that week, but at least one is not.
19 JUDGE KARLIN:
And what is the basis of 20 their non-availability?
21 MR. DIAZ: They have a prior commitment to 22 appear someplace else.
23 JUDGE KARLIN:
Okay.
But you are 24 available for other things that week. Week of August 25 7th?
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MR. DIAZ:
It's the same situation.
2 JUDGE KARLIN:
The same individual?
3 MR.
DIAZ:
The same individual or 4
individuals.
There are two of them.
I don't recall 5
which is particularly one week or the other.
6 JUDGE KARLIN:
And you are available on 7
the week of the 14th?
8 MR. DIAZ:
Yes.
9 JUDGE KARLIN:
And the week of the 21st?
10 MR. DIAZ:
Yes.
11 JUDGE KARLIN:
Week of the 23rd you're 12 also available?
13 MR. DIAZ:
Yes.
14 JUDGE KARLIN:
All right.
That's good.
15 MR. SILBERG: By the week of the 28th?
16 JUDGE KARLIN: I'm sorry. The 28th? Yes, 17 the 28th. And we like your color-coded charts, very, 18 very colorful, I guess.
19 MR. SILBERG: I think that is the staff's 20 doing.
21 JUDGE KARLIN: The staff? Well, Mr. Turk 22 is to be commended.
That is good.
23 September you seem to be available the 24 first week, the second week.
The third week, the 25 18th, you have a problem.
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MR. SILBERG:
I have a trial in Court of 2
Federal Claims.
3 JUDGE KARLIN:
Okay.
That's the week of 4
September 18th?
5 MR. SILBERG:
Yes.
6 JUDGE KARLIN: A trial. I can appreciate 7
that. Week of the 25th, you have one day of problem.
8 MR. SILBERG:
That's Rosh Hashanah.
9 JUDGE KARLIN:
Oh, yes.
That's right.
10 Okay.
The week of the 10th of October, Yom Kippur.
11 MR. SILBERG:
That's the week of the 2nd 12 is Yom Kippur.
13 JUDGE KARLIN: Yes. I'm sorry. I thought 14 I said that, October 2nd, but available later in the 15 week, the 10th of October.
Okay.
And you have some 16 problems at the end of October.
Is that right?
17 MR. SILBERG: That's another trial in the 18 Court of Federal Claims here in D.C.
19 JUDGE KARLIN:
Okay.
So those are two 20 trial dates that have previously been set?
21 MR. SILBERG:
Yes.
22 JUDGE KARLIN:
Okay.
Let's see.
Where 23 are we? State.
Why don't we turn to the state, Mr.
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\\1 873 here?
Let's start with July 30th.
Let's see.
Not available.
MR. ROYCEMAN:
I think you need Ms.
Hofmann and Mr. Sherman to speak to that.
JUDGE KARLIN:
Yes.
MS. HOFMANN:
Okay.
Thank you.
Sarah Hofmann for the Department of Public Service. I will be returning from my vacation on the 30th.
The 31st I suppose we're available, but then we're going to an NRC meeting on the 1st and 2nd.
Is that NRC, Bill?
MR. SHERMAN:
Yes.
MS. HOFMANN: It's a state liaison meeting that we're going to be gone August 1st and 2nd.
We will be back on the 3rd.
I suppose, once again, the 3rd we could be available.
We can get back on the night of the 2nd.
JUDGE KARLIN:
And what is this NRC meeting you are going to?
MR. SHERMAN:
The NRC holds once every three years a meeting for state liaison officers in states.
And I am intimately involved in that.
JUDGE KARLIN:
We have Mr. Royceman and Ms. Hofmann who might be able to carry the ball.
MS. HOFMANN:
I will be attending the meeting as well for the state as the Director for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Public Advocacy.
2 JUDGE KARLIN:
Then we have Mr. Royceman 3
who might be able to carry the ball.
4 MS. HOFMANN: We don't let Mr. Royceman go 5
anywhere without us.
No.
Possibly.
6 MR. ROYCEMAN:
Mr. Chairman, let me say 7
that although the Board has already indicated that 8
assuming that our request to do examination is not 9
allowed, that the Board will be asking the questions.
10 My understanding of the procedure that would be used 11 in such a case is that parties in the room will be 12 permitted to submit to the Board proposed questions 13 based upon answers that were given to the Board to 14 their questions.
15 Assuming that that process is allowed, Mr.
16 Sherman being there would be essential. My presence 17 there, I really would be a potted plant.
18 JUDGE KARLIN:
Okay.
I am not sure that 19 assumption is correct.
I think we are going to be 20 talking about that at a later pre-hearing conference 21 call.
But don't assume that you can add questions 22 impromptu as we go along.
23 JUDGE BARATTA: Mr. Royceman, just for my 24 edification as a non-lawyer, what was that assumption 25 based on? Can you give it to me in ten words or less?
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 set out by 875 MR. ROYCEMAN: That the procedure that is the Commission doesn't prohibit it.
JUDGE BARATTA:
Thank you.
JUDGE KARLIN:
Yes.
The procedure does require written motions for cross-examination ahead of time, although I guess that's not a cross-examination.
So now let's see.
So the state is available August the 3rd and 4th.
Is that right?
MS. HOFMANN: Yes. We could come back the night of the 2nd from our NRC meeting and be available the 3rd and the 4th and --
August 7th?
JUDGE KARLIN:
How about the week of I guess you are available that week.
MS. HOFMANN: We are available that week.
JUDGE KARLIN:
August 14th, what is your problem that week?
MS. HOFMANN: August 14th, Mr. Sherman is actually on vacation that week.
JUDGE KARLIN: Okay. August 21st, you are available?
MS. HOFMANN:
That's correct.
JUDGE KARLIN:
August 28th, you are available? September, first week, not available.
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is not available that week.
2 JUDGE KARLIN: All right. The 11th we're 3
off. The 18th you have no problem. The 25th, you're 4
not available all that week.
Why?
5 MS. HOFMANN:
That's, I believe, Mr.
6 Royceman.
7 MR. ROYCEMAN: I'mlookingatmycalendar.
8 JUDGE KARLIN:
I have Rosh Hashanah on 9
Monday, but the rest of the week?
10 MR.
ROYCEMAN:
We're looking now at 11 September?
12 JUDGE KARLIN:
Twenty-fifth, yes.
13 MR. ROYCEMAN:
In looking here at my 14 calendar, I don't see anything that would indicate why 15 that week other than Monday would create a problem, 16 Mr. Chairman.
So if that is on our schedule and I am 17 the one who put it there, I apologize.
18 JUDGE KARLIN: Okay. Great. I appreciate 19 that clarification.
20 The week of October 9th, again, you have 21 a problem that whole week?
22 MS. HOFMANN: That week of October 9th is 23 another week that Mr. Lochbaum is not available.
24 JUDGE KARLIN:
What is Mr. Lochbaum's 25 problem?
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25 I1 877 MS.
HOFMANN:
I actually do not know if he has another engagement or has a vacation.
JUDGE KARLIN:
Okay.
Is he speaking to both contentions?
MS.
HOFMANN:.
Yes, he is.
JUDGE KARLIN:
Okay.
All right.
That's about as far as we need to go with that.
I guess we're left with Mr.
- Turk, your availability/non-availability.
And then we'll be pretty much close to the end.
This call will be ending about 2:00 o'clock or so.
So we've got about 10 minutes, 15 minutes max.
August.
Mr. Turk, could you turn to July 30th? Let's see.
That week you're okay.
August 6th, you're okay.
Right?
MR.
TURK:
Correct.
JUDGE KARLIN:
August 13th, staff has got a problem.
MR. TURK:
The two-week period from August 13th to the 25th, --
JUDGE KARLIN:
Yes.
MR.
TURK:
I've blocked it out for a vacation time.
I have a son who is studying medicine abroad.
He comes in the prior week.
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starts his second year of high school August 28th. So 2
we have a two-week period available for family 3
vacation.
So I have blocked that off as my summer 4
vacation time.
5 JUDGE KARLIN: Okay. Let's see. The week 6
of the 28th, staff is not available for containment 7
pressure credit, but otherwise you are available?
8 MR. TURK: Correct. And that is a witness 9
scheduling problem. As you can imagine, it's summer.
10 And we have a few witnesses who are planning vacation 11 as well. And that's the time period for either one or 12 two witnesses to be taking vacation.
13 JUDGE KARLIN: August in Washington is a 14 prime time to get things done.
Nobody is here.
15 MR. TURK:
Sorry.
16 JUDGE KARLIN:
September.
It looks like 17 you're pretty much available. Staff is not available, 18 I guess, the week of October 9th.
And that's your 19 first non-availability, I guess, other than Rosh 20 Hashanah and Yom Kippur?
21 MR. TURK:
That's correct.
And that is 22 tentative at this point.
Again, that's a problem in 23 my scheduling.
That same son who is coming in from 24 overseas is going back overseas that week.
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tentative today.
2 JUDGE KARLIN:
Okay.
- Well, I guess 3
everyone had better -- Mr. Shadis, we want you to file 4
something, you
- know, in writing as to your 5
availability and non-availability, more particularly, 6
on all of these dates.
7 MR. SHADIS: Thank you, Your Honor. Would 8
Monday be soon enough?
9 JUDGE KARLIN: Yes. That would be great.
10 And I doubt if we are in a position to establish any 11 particular date right now, but it does appear clearly 12 that the week of September 11th is a primo date and 13 everybody had better block that out.
I would also 14 block out October 16th, week of October 16th.
15 Hold those dates until we get back to you.
16 And we'll try to get back in some short order.
We 17 might even try to see if there is an opportunity to 18 break this into pieces and have some of the 19 contentions heard earlier, maybe in August possibly.
20 Maybe it doesn't look like that will work. But we'll 21 see what we can do.
We want to get this done in a 22 proper way.
23 We also recognize the point Mr. Royceman 24 has made, which is to say that he thinks there may be 25 some additional time needed.
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pushed off a little bit here, we might be able to 2
relax some of the intermediate deadlines in the 3
initial scheduling order so that everyone can get 4
their filings in.
5 We want to have enough time, however, to 6
get the filings, to get all motions in limine filed, 7
answers to the motions from us.
8 Is everyone still there?
9 MR. SILBERG:
The applicants are still 10 here.
11 MR. TURK:
Staff is here.
12 JUDGE KARLIN: We're getting a little buzz 13 here, I guess telling us how much time we've got.
14 Okay.
So we'll have to rule on that later.
15 MR. SILBERG:
Mr. Chairman, one point on 16 the schedule request of Mr. Shadis.
I think it's 17 important that he provide information on his 18 witnesses' schedules because even though he may be 19 available, if his witnesses are not, that could pose 20 a problem.
21 JUDGE KARLIN:
Absolutely.
That was 22 expressed before in our earlier direction to the 23 parties.
When you're telling us you're available, 24 you're telling us you're available and your witnesses 25 are available or not available.
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881 available, please tell us why or you'd better have a good reason why, you know.
Okay.
We're kind of at the end here.
I think, members of the Board, we have talked briefly beforehand.
And we think that there will be a need for another pre-hearing conference call sometime before the filing of the initial written testimony, which is now set for early May.
We will probably have a new pre-hearing conference call.
And I guess we will have Jonathan Rund contact you.
Well, let's just ask right now.
What are people's availability for the week of --
and I haven't checked with my Board members either --
April 10th?
MR. ROYCEMAN:
Mr. Chairman, this is Mr.
Royceman.
The 10th and 11th I am in trial.
I have client meetings on the 12th.
I am available on the 13th.
And I am not available on the 14th.
JUDGE KARLIN:
Well, that pretty much shoots that week.
We're focusing on the week of the 17th, 10th, week of the 10th, week of the 17th.
How about the week of the 17th?
MR. ROYCEMAN: This is Mr. Royceman again.
That same trial which seems to take up Mondays and Tuesdays is also taking place on the 17th and the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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18th.
I can't be confident that we will still be in 2
trial then, but it involves the Millstone Nuclear 3
Power Plant and a lot of property taxes.
So it looks 4
like it will go on.
5 But the rest of that week, the 19th, the 6
20th, and the 21st, I am okay.
7 JUDGE KARLIN: All right. Mr. Turk, what 8
do you look like on the 19th, 20th, and the 21st of 9
April?
10 MR. TURK:
At this time I think it's all 11 right with me, Your Honor.
12 MR. SILBERG:
Mr. Chairman?
13 JUDGE KARLIN:
Great.
Yes?
14 MR. SILBERG:
Mr. Chairman, this is Mr.
15 Silberg. I will be out of the country those days, but 16 Mr. Diaz will be available.
That is the latter two 17 days of Passover.
And I don't know whether anyone 18 would be unavailable for those reasons.
19 JUDGE KARLIN:
Right.
Okay.
Thanks for 20 reminding us of that.
If anyone does have a problem 21 with that, please pipe up. But you're saying that Mr.
22 Diaz could proceed on the --
23 MR. SILBERG:
Mr. Diaz tells me --
24 MR. DIAZ:
I wasn't aware of those dates.
25 I probably would not be available at that time either.
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JUDGE KARLIN:
You're not available the 2
19th, 20th, and 21st?
3 MR.
DIAZ:
Oh, no, no, no, no.
The 21st 4
I will not be available.
Earlier in the week I will 5
be.
6 JUDGE KARLIN:
Okay.
The 19th and 20th 7
are okay with you?
8 MR.
DIAZ:
Yes.
9 JUDGE KARLIN:
All right. Let's see.
Mr.
10 Shadis?
11 MR. SHADIS:
Yes.
12 JUDGE KARLIN: Nineteenth and 20th, April?
13 MR. SHADIS:
Nineteenth and 20th, there 14 are no problems, sir.
15 JUDGE KARLIN:
Okay.
All right.
Let's 16 see here.
Is there anyone we haven't checked with?
17 MR. ROYCEMAN: Yes. Ms. Hofmann is going 18 to be on the call.
19 MS. HOFMANN:
Yes.
We will be on the 20 call, and we have no problem with those dates.
21 JUDGE KARLIN: Okay. Well, now I'd better 22 ask my colleagues who are on the Board.
Judge 23 Rubenstein, what do you think of these two dates?
24 Will they work, any of them work, for you?
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calendar in front of me.
I'm in the other room. But 2
tentatively the week of the 17th works.
3 JUDGE KARLIN:
And the 19th or 20th?
4 JUDGE RUBENSTEIN:
The week of the 17th.
5 JUDGE KARLIN:
Okay.
Any time during 6
that.
So that's good.
7 JUDGE BARATTA: This is Judge Baratta. I 8
think the 19th or the 20th would work.
9 JUDGE KARLIN:
Okay.
Well, then let's 10 pick one of those.
Let's do the 20th.
We'll 11 schedule.
And we'll issue an order out on those for 12 a conference call on the 20th of April at what, 11:00 13 a.m.
We have to recognize that Judge Rubenstein 14 participates from Tucson, Arizona.
So 11:00 a.m. is 15 about as early as we want to do this.
16 JUDGE BARATTA: We could go out there.
17 JUDGE KARLIN:
Yes.
That sounds good to 18 me.
19 JUDGE BARATTA:
I like that.
20 JUDGE KARLIN: Okay. We've got to wrap --
21 JUDGE RUBENSTEIN:
Hold it. Hold it. On 22 the 19th, I have a doctor's appointment.
23 JUDGE KARLIN:
We're talking the 20th.
24 JUDGE RUBENSTEIN:
The 20th is good.
25 JUDGE KARLIN:
Twentieth at 11:00 a.m.,
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the next pre-hearing conference call.
In the 2
meantime, we will be issuing some orders that reflect 3
this.
But what we did hear, we may be able to issue 4
initial scheduling order or revised scheduling order 5
before that date, taking into account all of the 6
information you have given us here today.
7 I appreciate everyone' s time and patience.
8 Is there anything else anyone thinks is a burning 9
issue that needs to be mentioned at this point?
10 PARTICIPANT: Mr. Chairman, I just want to 11 be clear that in light of what has transpired with 12 regard to when the final SER was issued, that we will 13 have until March the 17th to file our request to 14 modify the schedule, not that we'll take that long, 15 but I just want to make sure that we all calculated 16 things correctly.
And if not, I would appreciate 17 knowing that.
18 JUDGE KARLIN:
I think that's correct.
19 The trigger date is the 6th of March.
So ten days 20 from that date, whatever that is, is the deadline for 21 submitting --
22 PARTICIPANT:
The 16th, Your Honor.
23 PARTICIPANT:
That's a Sunday.
So it 24 carries over to Monday, the 17th.
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Okay.
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over. I don't have that part of the calendar in front 2
of me.
3 PARTICIPANT: Actually, no.
The delivery 4
date was Monday, the 6th.
5 JUDGE KARLIN:
Yes?
6 MR. SILBERG:
So the ten days from there 7
becomes Thursday, the 16th.
Are you looking at a 8
ten-day filing date or the --
9 JUDGE KARLIN:
Ten days.
Ten days.
10 PARTICIPANT: Thursday, the 16th would be 11 correct on that.
12 JUDGE KARLIN:
The trigger date is March 13 6th.
Ten days from that is the 16th, it appears to 14 me.
That is the date for filing of motions, for 15 adjusting the schedule.
Obviously three days after 16 the 6th of March is the date for filing new 17 contentions based on the final SER.
And everything 18 else flows from there.
19 We may be adjusting that schedule based on 20 what we have heard here today.
But that's the 21 schedule for now.
22 MR. SHADIS: I'm sorry, Your Honor. This 23 is Ray Shadis.
Could you please repeat that last 24 sentence? I was unable to hear that on the --
25 JUDGE KARLIN: Well, I'm not sure --
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MR. SHADIS: With respect to the last date 2
in terms of filing contentions on the SER.
3 JUDGE KARLIN: Well, I think you should go 4
look at the initial scheduling order that we issued a 5
year ago.
There are dates.
All trigger from the 6
final SER.
The final SER trigger date is March 6th.
7 So every deadline in the initial scheduling order or 8
most of them will trigger from March 6.
9 MR. SHADIS:
Thank you, sir.
10 JUDGE KARLIN:
Take a look at that.
You 11 then have the obligation, Mr. Shadis, of giving us 12 something on the 10th with regard to the scope of the 13 legal scope of contention 4.
14 There will be an answer on the 17th.
15 There will be a reply for you on the 24th.
You also 16 have the opportunity to submit something in ten days 17 from today with regard to the scope of contention --
18 no. I'm sorry. The 17th, yes. The 17th is when your 19 brief is due, Mr. Shadis, one week from today, St.
20 Patrick's Day, on the scope of contention C-4.
21 And you also have ten days from this date, 22 today's date, to submit something with regard to 23 contention C-3.
24 MR. SHADIS:
Thank you.
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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 888 of this available.
I think we're over. We've got one minute left on this call. Therefore, I appreciate everyone's effort.
We're going to adjourn this call and go off the record at this time.
Thank you, everyone, for your patience and for your help.
(Whereupon, the foregoing matter was concluded at 2:03 p.m.)
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name of Proceeding: Entergy Nuclear Vermont
- Yankee, LLC and Entergy Nuclear Operations, Inc.
Pre-hearing Conference Docket Number:
50-271-OLA and ASLBP No.04-832-02-OLA Location:
via teleconference were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
Tobias Walter Official Reporter Neal R. Gross & Co., Inc.
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