ML061290078
| ML061290078 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 05/03/2006 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, NRC-1035, RAS 11619 | |
| Download: ML061290078 (51) | |
Text
-66 1wq script of Proceedings LATORY COMMISSION
Title:
y Nuclear Vermont Yankee dearing Conference
- 1 Docket Number: ASLBP No. 04-832-02-O LA I!
DOCKETED Location: ie conference) USNRC May 8, 2006 (3:31pm)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Date: May 3, 2006 Work Order No.' 1035 Pages 910-958 GROSS AND CO., INC.
porters and Transcribers ode Island Avenue, N.W.
hington, D.C. 20005 (202) 234-4433 r.Ii; ll00al~tc-5E<Y-D3L L 516cy- 09.
910 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + . . . .
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 PRE-HEARING CONFERENCE CALL 6
7 8 IN THE MATTER OF: Docket No. 50-271-OLA 9 ENTERGY NUCLEAR VERMONT ASLBP No. 04-832-02-OLA 10 YANKEE L.L.C. and ENTERGY 11 NUCLEAR OPERATIONS, INC.
12 (Vermont Yankee Nuclear 13 Power Station) 14 15 Wednesday, 16 May 3, 2006 17 Teleconference 18 19 The above-entitled matter came on for 20 hearing, pursuant to notice, at 1:30 p.m.
21 BEFORE:
22 ALEX S. KARLIN, Administrative Law Judge 23 ANTHONY J. BARATTA, Administrative Judge 24 LESTER S. RUBENSTEIN, Administrative Judge
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911 1 APPEARANCES:
2 On Behalf of the Licensee:
3 MATIAS E. TRAVIESO-DIAZ, ESQ.
4 JAY E. SILBERG, ESQ.
5- of: Pillsbury Winthrop Shaw Pittman, LLP 6 2300 N Street, NW 7 Washington, D.C. 20037 8 (202) 663-8142 9
10 On Behalf of the State of Vermont, Department of 11 Public Service:
12 ANTHONY Z. ROISMAN, ESQ.
13 of: Hershenson, Carter, Scott & McGee, P.C.
14 P.O. Box 909 15 Norwich, Vermont 05055 16 (802) 295-2800 17 18 SARAH HOFMANN, ESQ.
19 of: Counsel for the Department of Public Service 20 Special Counsel 21 112 State Street - Drawer 20 22 Montpelier, Vermont 05620 23 (802) 828-3088 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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912 1 On Behalf of the Intervener, New England 2 Coalition:
3 RAYMOND SHADIS, ESQ.
4 JORAM HOPENFELD 5 of: New England Coalition 6 P.O. Box 98 7 Edgecomb, Maine 04556 8 (202) 882-7801 9
10 On Behalf of the Nuclear Regulatory Commission:
11 SHERWIN E. TURK, ESQ.
12 of: Office of the General Counsel 13 U.S. Nuclear Regulatory Commission 14 Washington, D.C. 20555-0001 15 (301) 415-1533 16 17 ALSO PRESENT:
18 JIM DEVINCENTIS 19 DAVE MCELWEE 20 CRAIG NICHOLS 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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913 1 P-R-O-C-E-E-D-I-N-G-S
% 2 (1:37 p.m.)
3 ADMIN. JUDGE KARLIN: This is Alex Karlin, 4 Chairman of the Atomic Safety and Licensing Board.
5 This matter, which is the Entergy Nuclear Vermont 6 Yankee, LLC, and Energy Nuclear Operations, Inc.,
7 application for an uprate for their Vermont Yankee 8 Nuclear Power Station, and it is ASLBP Number 9 04832020LA is the proceeding.
10 First, I would introduce -- I want 11 everyone to introduce themselves on this call. Here, 12 in Rockville, we have with us Karen Valloch, 13 administrative assistant, Judge Baratta sitting here 14 with me, as well as two of our lawyers, law clerks 15 Marcia Carpentier and Jonathan Rund.
16 Out in Tucson, Judge Rubenstein will 17 introduce himself.
18 ADMIN. JUDGE RUBENSTEIN: This is Judge 19 Rubenstein.
20 ADMIN. JUDGE KARLIN: Okay, good. So the 21 board is here, and if we could ask each person to go 22 around the room, as it were, and introduce themselves 23 and all the people who are with them on the call, 24 starting with, let's say, Entergy, please.
25 MR. SILBERG: This is Jay Silberg at NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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914 1 Pillsbury Winthrop Shaw Pittman, counsel for Entergy.
2 MR. TRAVIESO-DIAZ: I am Matias Travieso-3 Diaz, also counsel for Entergy.
4 ADMIN. JUDGE KARLIN: Anyone else from 5 Entergy on the line?
6 MR. SILBERG: We have several of the 7 technical people and company people calling in from 8 Vermont. I don't anticipate they would be 9 participating on the call, but they are on the call, 10 and if you would identify yourselves.
11 MR. DeVINCENTIS: This is Jim DeVincentis, 12 the licensing manager at Vermont Yankee.
13 MR. McELWEE: And Dave McElwee, senior 14 liaison engineer.
15 MR. NICHOLS: This is Craig Nichols, 16 project manager for the power uprate.
17 ADMIN. JUDGE KARLIN: Great, and welcome.
18 MR. NICHOLS: Thank you, sir.
19 ADMIN. JUDGE KARLIN: Anyone else?
20 MR. SILBERG: I believe that's it for the 21 applicants.
22 ADMIN. JUDGE KARLIN: Okay. Mr. Turk, 23 perhaps you could introduce the staff people?
24 MR. TURK: Thank you, Your Honor. This is 25 Sherwin Turk. With me is Steven Hamrich, and our NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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915 1 project manager, Richard Ennis.
2 ADMIN. JUDGE KARLIN: Welcome. Welcome.
3 Let's see, the state, I guess?
4 MS. HOFMANN: Sarah Hofmann for the 5 Department of Public Service in the State of Vermont.
6 With me here at this site is William Sherman, the 7 State Nuclear Engineer.
8 ADMIN. JUDGE KARLIN: Okay.
9 MR. ROISMAN: And this is Anthony Roisman 10 at a remote site.
11 ADMIN. JUDGE KARLIN: Okay, Mr. Roisman.
12 And Mr. Shadis? Are you and Dr. Hopenfeld on the 13 line?
14 MR. SHADIS: That's correct, Your Honor.
15 Raymond Shadis for New England Coalition, and with me 16 on a separate line is Dr. Joram Hopenfeld.
17 MR. HOPENFELD: Yes, this is Joram 18 Hopenfeld. I'm here in Rockville, Maryland.
19 ADMIN. JUDGE KARLIN: Welcome, welcome.
20 Now, is anyone else on the line?
21 (No answer.)
22 ADMIN. JUDGE KARLIN: Okay, then we won't 23 do our normal spiel about members of the public 24 welcome to listen in. I appreciate everyone 25 participating in this call on such short notice. I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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916 1 think it should be a relatively short call, and we 2 really wanted to react to and talk briefly about the 3 proposed notice of withdrawal, I guess, is how you 4 captioned it and request for dismissal of the 5 contention.
6 That's really the only topic subject we 7 have in mind for this impromptu call. As the court 8 reporter has indicated, could each of you, as you 9 speak, and we will try to do the same, introduce or 10 say our names before we start.
11 We -- the board has talked briefly amongst 12 ourselves about the notice of withdrawal by the state, 13 and Entergy, I guess, participating in the agreement 14 in MOU. We welcome the staff -- I'm sorry.
15 The commission encourages settlement of 16 matters, and so we welcome this proposed settlement in 17 that vein, but we have some regulations we have to 18 grapple with and deal with, and those include, as I 19 believe Ms. Carpentier has already mentioned to each 20 of you when we were convening this call, 10 CFR 2.338, 21 and that includes in it a provision that deals with 22 the form of settlements, certain regulations that are 23 -- certain content requirements for settlements, and 24 certain approval requirements for settlement.
- (>-
,25 We note that the document in question is NEAL R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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917 1 not entitled a settlement agreement but does, indeed, 2 appear to be an agreement, a quid pro quo, between two 3 of the parties, part of which would then involve the 4 withdrawal or dismissal, with prejudice, of the 5 state's claims.
6 Did -- may I ask of the state and of 7 Entergy, were you aware of 2.338 when you drafted 8 this, and if so, how -- what is your thinking about 9 that?
10 MR. SILBERG: This is Mr. Silberg. Yes, 11 we are aware of 2.338, although we were not, to my 12 knowledge, notified about the board's interest in that 13 before this call, but that provision has two parts.
14 First is the introductory paragraph, which 15 is, as you said, the commission's encouragement of 16 settlement of parties. The second part, and in fact 17 the specifics of that provision, really go to 18 alternative dispute resolution, and the opportunity 19 for the parties to invite the participation on some or 20 all issues, a settlement of some or all issues by the 21 commission or a presiding officer.
22 We are not operating under that mechanism.
23 We have not -- we are fortunately not in need of 24 assistance by the presiding officer of the board or 25 the commission in order to reach a settlement, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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918 1 therefore, we did not request participation or seek to 2 comply with those provisions, which we do not see as 3 applicable to a settlement privately reached by the 4 parties.
5 Those provisions, I think, rightly 6 encourage the board and the parties to cooperate where 7 necessary to reach a settlement, but in this case, the 8 parties were able to reach that settlement and reach 9 that agreement without participation of the board.
10 ADMIN. JUDGE KARLIN: And so, you are 11 thinking that the requirement of 2.338(h), as to 12 content of settlement agreements -- well, why don't we 13 start with (g). (G) says form. A settlement must be 14 in the form of -- and then it goes on to address that, 15 and then it spoke to the content of the settlement 16 agreement. You are suggesting it's not applicable 17 because this settlement was reached without the 18 assistance of a third-party neutral?
19 MR. SILBERG: That's correct, and 20 certainly, we have had, over the years,: many cases in 21 which the parties have reached settlements without the 22 intercession of the board. There have been other 23 cases where the board did participate, but certainly 24 in those cases where the parties reached settlement on
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919 1 to be necessary, and boards have dismissed contentions 2 and, in some cases where the intervener was the only 3 party, have dismissed proceedings without compliance 4 with these particular formalities, which is our --
5 item, do not believe are applicable.
6 ADMIN. JUDGE KARLIN: Okay.
7 ADMIN. JUDGE BARATTA: And your beliefs --
8 this is Judge Baratta. Your belief is based upon the 9 fact that it really wasn't done under an ADR type of 10 format?
11 MR. SILBERG: That's correct.
12 ADMIN. JUDGE KARLIN: Okay. Any other 13 questions? Judge Rubenstein? What I thought we would 4 14 do is ask them, the state, to address this issue, and 15 then the staff, and Mr. Shadis.
16 MS. HOFMANN: Thank you very much. This 17 is Sarah Hofmann from the State of Vermont. I have to 18 regret, Your Honor, that I was not aware of 2.338, and 19 the -- your law clerk did not tell us that that's what 20 it was about.
21 However, I believe when Mr. Roisman, when 22 we were trying to figure it out, we were looking 23 through it and noticed this section. We can somewhat 24 agree with Mr. Silberg's painting of the situation, 25 and we think this is not so much a settlement -- by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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920 1 the state that we don't need to continue to pursue 2 this claim rather than a quid pro quo for dropping a 3 contention.
4 We don't think this compromises safety.
5 We are at the point of just believing that through all 6 the processes that are mentioned at the beginning of 7 our notice of withdrawal, and I believe also in the 8 MOU that we are willing to -- we believe that our 9 contention has been resolved.
10 ADMIN. JUDGE KARLIN: Okay. Mr. Turk, 11 from the staff?
12 MR. TURK: Thank you, Your Honor --
13 ADMIN. JUDGE KARLIN: I -- to add. I 14 understand this is all short notice, but the reason 15 for having this call was to avoid, I think one of the 16 reasons, to avoid having people have to file briefs 17 and motions and objections or concerns. I degenerate, 18 if we could just talk about this quickly, we might 19 resolve some of the -- begin to resolve some of the 20 potential questions. So go ahead, Mr. Turk.
21 MR. TURK: Thank you, Your Honor. I look 22 at the regulation in the same manner as Mr. Silberg.
-23 As I see it, section 2.338 provides one mechanism by 24 which parties may reach settlement and the party may
~.;~ t- 3:. 25 tender its withdrawal from the proceeding.
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921 1 It does not exclude the possibility that 2 a party would withdraw unilaterally or that it might 3 reach its own agreement with another party and thereby 4 decide to withdraw from the proceeding. The 5 regulation appears to apply only if parties seek the 6 intervention of the licensing board, and then it 7 provides the procedural steps and the content of 8 agreements, which would then -- you would then look 9 for if the board was involved or if a settlement judge 10 was involved.
11 So it's non-exclusive. It's not being 12 followed here. It does not apply.
13 ADMIN. JUDGE KARLIN: Mr. Shadis, do you 14 have any thoughts on this?
15 MR. SHADIS: Yes, I do, Your Honor, thank 16 you. We've been scrambling to look at the regulation 17 and at applicable case law, and we're looking at a 18 Sequoyah Fuels case. Basically, it states that it's 19 appropriate when a party requests to withdraw with a 20 petition pursuant to settlement that the licensing 21 board review the settlement to determine whether it is 22 in the public interest.
23 There is a series of cases in which that 24 point is made that there is a responsibility here for 25 the ASLB to be reviewing this to determine whether or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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922 1 not the settlement is in the public interest. And I 2 might also point out here that, at one point, New 3 England Coalition attempted to adopt this particular 4 contention. However, our attempt was untimely.
5 Nonetheless, we believe that we 6 established overlapping areas of interest with respect 7 to this particular contention. So, you know, we're 8 sharply focused now on the question of whether or not 9 the technical issues, safety issues, raised in the 10 state's contention are satisfied by the MOU, and we 11 believe that that is something that the board needs to 12 formally consider and potentially with the assistance 13 of the parties.
14 ADMIN. JUDGE KARLIN: Okay. Thank you 15 very much. Well, I can't speak for the full board.
16 You know, we haven't fought this thing through or 17 analyzed it. Certainly, it hasn't been briefed, but 18 I think I have some concerns about the positions I 19 just heard articulated.
20 First, as I think all of you would note --
21 know, this regulation is almost promulgated in January 22 of 2004. The statement of considerations at that time 23 indicated it was essentially the same as several prior 24 regs, which require approvals of the board in (1) and
, .:. 25 in (g)-type proceedings.
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923 1 But the requirements of (g) and (h) did 2 not appear in any prior regulatory requirement that I 3 am aware of, and they are new, and they do impose both 4 form and content of settlement agreement requirements 5 that may be -- that appear to be new.
6 So, I'm not sure what the prior case law 7 will tell us about the interpretation of these 8 regulations. Second, I'm not sure there is case 9 support or whether the case support is convincing for 10 the proposition that this reg only deals with 11 settlements that are achieved by virtue of the 12 assistance of a third-party neutral.
13 I don't really see that as any part of the 14 literal language of the regulatory provisions we are 15 looking at -- (g), (h), and (I). Approval of 16 settlement agreement. You know, I think we have an 17 obligation to approve settlement agreements, whatever 18 they are, whether it's achieved via a third-party 19 neutral or not.
20 Is this a settlement agreement? This 21 issue may need to be confronted as well. You may call 22 it a withdrawal, you may call it Limburger cheese, but 23 whatever you call it, we need to look at, I guess, 24 what it really is. And it appears to be -- or seems -
25 - for us to look at an agreement between the parties.
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924 1 An agreement where there is a quid pro quo going on.
2 Party A is giving up something or giving 3 something, and Party B is going the same. If the 4 state just came in here and filed a unilateral 5 withdrawal with no attachment of an agreement to it 6 and no further conditions, we might not have much to 7 say about it. But you submit a proposed agreement to 8 us, and it looks a lot like a settlement agreement to 9 us, whether you call it that way or not.
10 And I wonder if we should be in the 11 business of allowing the label placed at the top of a 12 pleading to determine what our duties are under 13 2.338(g), (h), and (I). I think we should not let the 14 label control what we are obliged to do or not obliged 15 to do under these regs.
16 So, I think we will have to just sort of 17 take this under advisement or, you know, I mean --
18 hold on a second. We're going to go on mute here for 19 a moment. Hold on if you would.
20 MR. TURK: Your Honor, after you come 21 back, I'd like the chance to address your comments, if 22 possible. This is Sherwin Turk.
23 MR. SILBERG: As would I. This is Mr.
24 Silberg.
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925 go ahead and hear from you now. Mr. Turk, let's start 2 with you.
3 MR. TURK: Thank you. I would note, first 4 of all, that it has been the policy of the commission, 5 and it is very. well enunciated that the commission 6 encourages settlement.
7 ADMIN. JUDGE KARLIN: So let me just add, 8 I do also note that Louisiana Energy Services, there 9 is a model for you all to study. Perhaps you are 10 aware of it. Of June, July of 2005, where the party, 11 the state, and LES came in with a settlement agreement 12 that was achieved I might note not through the aid of 13 any third-party neutral. It was just something they 14 worked out together in private -- hey, that's great.
15 We encourage that.
16 And they came and requested approval of 17 the settlement agreement by the board. The staff 18 objected for several concerns. The parties worked it 19 out further, and a settlement agreement was submitted 20 and approved, and I believe that was pursuant to this 21 regulation, and so that may be our first model under 22 this regulation. So go ahead, Mr. Turk.
23 MR. TURK: Thank you. I appreciate your 24 giving us the reference for the case. We had not had ci;$¢ 25 a chance to research the issue before the phone call.
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926 1 But it is the commission's policy to encourage 2 settlement. The -- in past practice, before the 3 current regulation was adopted in 2004, it was 4 established commission precedent that agreements would 5 be approved subject to any conditions that the board 6 would deem to be appropriate.
7 So the board did have the opportunity 8 previously to determine that there was some condition 9 that might apply to withdraw of a contention. For 10 instance, if the settlement agreement required certain 11 things which put a burden on the staff, the staff 12 might want to object, and perhaps the board would 13 accept the settlement agreement subject to the
) /14 provision that the staff is not obliged to do certain 15 things as the other parties had agreed that the staff 16 would do without the staff's approval.
17 But to suggest that now, under the new 18 rule, it should be more difficult to withdraw 19 contentions and for a party to withdraw from a 20 proceeding than previously, would be contrary to what 21 the statement's consideration states for the adoption 22 of this rule, in which the commission says, 23 specifically, that the commission intends no change in 24 the bases for accepting a settlement under the new
.
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927 1 that Your Honor quoted back on January 14, 2004.
k~p) 2 ADMIN. JUDGE KARLIN: Let me interject 3 with that. They say that, but 2.338(h) is a change.
4 MR. TURK: But then if you look at 5 2.338(a), as in Alpha, you will see that it refers to 6 the further sections as the procedures adopted when 7 this section of the rules is being utilized. But that 8 section of the rules is not the only means by which 9 settlements can be agreed to by parties.
10 As I said before, it is a non-explicit 11 mechanism.
12 ADMIN. JUDGE KARLIN: Right, I just think 13 that (g) says a settlement must be in the form of a 14 proposed settlement agreement. It doesn't say a 15 settlement reached by a third-party neutral. (H) says 16 a settlement agreement must contain the following.
17 Now, that's new.
18 That's not something that you are just 19 reading from the statement of consideration. When it 20 says this is the same as the old rules, it's not the 21 same. That statement of consideration is flat out 22 incorrect because this is a new provision, and we are 23 -- we didn't invent this. We didn't write this. You 24 know, all I'm doing is reading the regs. So, I --
25 continue.
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928 1 MR. TURK: Thank you, Your Honor, I really 2 don't have anything to add except that if you go in 3 that direction, then you would be making litigation 4 the goal of the commission rather than settlement, and 5 that would be very contrary to the whole thrust of the 6 commission's current practice of encouraging 7 settlement.
8 ADMIN. JUDGE KARLIN: I didn't make this 9 regulation. The commission did. And the commission 10 just says there are four provisions that need to be in 11 the settlement agreement. If this is a settlement 12 agreement, I think those four provisions need to be in 13 there. Now, it might be more profitable to talk about 14 is there any objection to anybody putting the four 15 provisions in there.
16 It could be a very simple matter. If you 17 look at what they did back in LES, it was a very 18 simple matter.
19 MR. TURK: Your statement, Your Honor, is 20 an interpretation of the rule that I don't agree with.
21 The rule does not state that all settlements must 22 contain these terminologies. The rule is, as I see it 23 to be read in conjunction with parts (a) and (b) of 24 the rule, which talk about settlement conducted 25 pursuant to this regulation.
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929 1 If settlement is achieved outside of this 2 regulation, then there is no reason to have to go down 3 to the fine details of subsection (h) that you would 4 apparently think apply to any settlement that has ever 5 reached -- in an NRC proceeding, and I don't think 6 that was ever the commission's intent.
7 ADMIN. JUDGE KARLIN: So the board has no 8 authority or responsibility under Sequoyah or anything 9 else. Let's say a settlement is reached outside of 10 the context of ADR, the third-party neutral. Then it 11 can be any form, any substance, and the board has no 12 approval authority? Because this reg does not deal 13 with that. Is that what you are suggesting?
14 MR. TURK: I'm suggesting that when a 15 party files a motion to withdraw from the proceeding, 16 it is up to the boards to approve that withdraw.
17 ADMIN. JUDGE KARLIN: If they wanted to 18 withdraw, they could withdraw, but they withdrew with 19 a long -- it was an agreement. It wasn't just we 20 withdraw, we're out of here. They said they wanted to 21 file with this board a settlement agreement. They 22 called it an MOU, but it was a settlement agreement, 23 and why in the world did they do that? They could 24 just withdraw.
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930 1 prerogative, Your Honor, to look at the settlement 2 agreement and to determine whether or not to approve 3 the withdrawal that is based upon that settlement 4 agreement.
5 You may, as in past practice, decide that 6 it is appropriate to insert some condition or some 7 requirement or to deny the request, but to suggest 8 that you have to follow the procedures specified in 9 2.338 is incorrect.
10 ADMIN. JUDGE KARLIN: All right. Mr.
11 Silberg, I guess?
12 MR. SILBERG: Yes, first, I respectfully 13 submit, Your Honor, that I think you are 14 misinterpreting the regulation. If you look at the 15 statement of considerations, and specifically at page 16 2217 of the federal register of January 14, where it 17 gives the cross-reference between the old sections and 18 the new sections, it specifically says, with respect 19 to section 2.338, that this is, *new section on 20 alternative dispute resolution (ADR)."
21 And I think if you look at the detailed 22 description of that section, at pages 2209 and ten, 23 and I unfortunately didn't have the opportunity to 24 review that in detail before this call, I think you 25 will see that this is an ADR section.
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931 1 Commission has gone to some lengths to 2 encourage the use of ADR, and I think they have been 3 one of the lead agencies in the federal government in 4 that connection, but I think you are vastly expanding 5 the intent of the commission if you say that- the ADR 6 provisions, which the commission has now adopted, must 7 necessarily apply to every notice of withdrawal and 8 every agreement between parties.
9 I think that's just flat incorrect. The 10 party certainly has a right to withdraw. I don't 11 think anything the commission or the board or the 12 staff or we can stand in the way of a party that 13 wishes to withdraw.
14 The fact that, for whatever reasons, and 15 I think the state can, if they wish, explain, they 16 chose to attach to the notice of withdrawal the 17 memorandum of understanding does not, in any way, 18 change the nature of the actions that they have taken, 19 and that which they have requested of you.
20 It is still a notice that they are 21 withdrawing and a request that the board dismiss the 22 contentions. I think there is adequate commission 23 case law already applied in this -- I'm sorry, already 24 applied in many cases on the dismissal of contentions
(>7. 25 on the withdrawal of a party.
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932 1 I don't think that's implicated at all in 2 section 2.338. What I think 2.338 does is a specific 3 way of applying the ADR provisions, and that says --
4 that's included right in the introductory paragraph of 5 2.338. So I think the board is, frankly, applying 6 procedures intended for one purpose to a totally 7 different purpose, and I would think that would be 8 inconsistent with the commission's encouragement of 9 the parties to settle, to reach agreements amongst 10 themselves and would be, as Mr. Turk said, I think 11 counter-productive.
12 ADMIN. JUDGE KARLIN: Okay. Any questions 13 from the board at this point before we take a break?
14 MS. HOFMANN: Judge Karlin, this is Sarah 15 Hofmann from the Department of Public Service. This 16 may be naive, but, you know, we did file it as a 17 package. We believe it was a resolution of our 18 concerns that the board would want to see. However, 19 if it is creating a problem, we could withdraw the 20 pleading and then just file a very simple withdrawal 21 from the case.
22 ADMIN. JUDGE KARLIN: My initial take is 23 that that would not -- that might be -- that would 24 might be different and more acceptable, but I haven't
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933 withdrawal is one thing, but a withdrawal with an 2 agreement attached to it is a -- is something 3 different. It sounds like a settlement to me. It 4 smells like a settlement, it walks like a settlement.
5 If you are asking us to look at that or 6 put that in the record in some way, it sounds like a 7 settlement to me. If you withdraw with nothing more, 8 nothing less, I'm not sure we have a whole lot we can 9 say about it.
10 ADMIN. JUDGE BARATTA: This is Judge 11 Baratta. I think the quandary that we are in is that 12 these are somewhat new regulations, and it does appear 13 that despite what the -- considerations refer to, if 14 you go back and you look at the fact that there was no 15 comparable section in the old part to, per se, that 16 dealt with ADR.
17 Also, correct me if I'm wrong, but I 18 thought there was a government-wide effort to adopt 19 ADR as alternative to complex adjudication and that 20 this was the agency's response to this, so these are 21 somewhat new, and we are trying to feel our way. It's 22 not -- we don't want to be leave you with the 23 impression that we don't encourage this.
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934 1 questions as to how we are proceeding, and what is the 2 requirement that applies, so we are looking at some 3 thoughts from that.
4 Of course, we do have Mr. Shadis' 5 statement that we do have to be attentive to what is 6 the public interest, of course, and making sure that 7 whatever we do is consistent with that as well, so, 8 with that, I just, you know, want to make sure nobody 9 is left with the impression that we are trying to 10 force this -- for something more.
11 We're looking for thoughts on does it 12 apply, and if so, how do we proceed, so.
13 MR. TURK: Judge Baratta, this is Sherwin 14 Turk. If I might just say one more thing in response 15 to your comment. I've been litigating for 25 years.
16 Personally, I hate litigation. It's what I do, but I 17 think it's very wasteful of resources and time, and I 18 believe in alternative resolution of disputes. But 19 ADR is not intended to preclude parties from settling 20 litigation on their own.
21 The whole concept of ADR is that where 22 parties are deeply embroiled in litigation and there 23 is no other means to settle that appears reasonable or 24 to resolve the dispute in some efficient manner, then 25 parties are encouraged to go to this alternative means NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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935 1 of resolution, which is ADR.
2 It does not substitute for parties who 3 find that they are able to agree on resolving 4 litigation on their own -- it does not preclude them 5 from doing that. It simply provides a mechanism where 6 parties are unable to do that on their own.
7 So if you were to say no, we must follow 8 ADR here, then you would really be defying the whole 9 purpose of ADR, which is to encourage resolution of 10 disputes. Where parties have done that voluntarily on 11 their own, I don't see any basis to say, no, you can't 12 do that, you must be forced into the structures of 13 this regulation that would impose ADR upon you.
14 ADMIN. JUDGE KARLIN: Well, this is Alex 15 Karlin. You know, as a former mediator in 16 environmental disputes, I will not be outdone in my 17 great praise for ADR and its value. I also, having 18 litigated some cases, think that settlement, with or 19 without ADR is to be encouraged, and that is flat out, 20 obviously, what our regulation says in its very first 21 sentence.
22 Fair and reasonable settlement is 23 encouraged. The beginning of this reg deals with 24 settlement of issues. It talks about settlement. It 25 doesn't get into ADR until a bit later, and nor does NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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936 1 any of the literal wording of the latter part of this 2 regulation, where it does say that the board has to 3 approve settlements and that settlements have to have 4 certain form and certain content -- I mean, we are 5 certainly not trying to discourage settlements, but I 6 don't see that that is triggered only when the 7 settlement is ADR.
8 The beginning of the reg deals with 9 settlements, the end of the reg deals with 10 settlements. It doesn't say settlements achieved via 11 ADR. So, we have, you know, I mean, we didn't write 12 this reg, and I'm not even sure why it was -- these 13 provisions were added. The statement of consideration 14 gives us no indicia of why these content requirements 15 were added, but there they are.
16 We are -- you know, and maybe Ms. Hofmann 17 has suggested a possible solution, which is simply a 18 unilateral, clean, one-sentence virtually withdrawal.
19 Another solution is to put those four -- let me ask.
20 Is there something, Ms. Hofmann, about those four 21 content requirements that would be problematic that 22 you think of?
23 MS. HOFMANIN: No, we actually don't 24 believe they would be problematic. We actually did 25 not intend -- it's my own inexperience practicing in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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937 1 front of you to invoke 2.338.
2 ADMIN. JUDGE KARLIN: No, I didn't think 3 anybody really intended to invoke it or not invoke it, 4 it just was -- might have been overlooked in some 5 sense, and --
6 MS. HOFMANN: Unfortunately, it was 7 overlooked on my part, but we would be willing to 8 withdraw it.
9 ADMIN. JUDGE KARLIN: Take a look at --
10 what I would urge is for you all to just take a look 11 at it.
12 MS. HOFMANN: Oh, we looked at (h) now, 13 since we've been on this phone call. Obviously, we 14 would also need the people who settled with that to 15 agree to that. We believe that doing the (h) 16 provision is possible, but we did not intend that the 17 ASLB had to approve our settlement. It was attached 18 for a lot of public information reasons.
19 MR. SILBERG: Judge Karlin, this is Mr.
20 Silberg. I assume what you were saying before is that 21 if the state decided to refile a notice that did not 22 attach the MOU that that would obviate your belief 23 that we need to include the four items in (h). Am I 24 reading that correctly?
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938 1 impression, yes, because it would not be a -- it would 2 not be an agreement reflecting a quid pro quo that was 3 filed with this board on the record.
4 MR. SILBERG: Okay. I would, though, 5 encourage the board, if you haven't, and I suspect you 6 have, but during the call, I have been looking in more 7 detail at the fairly detailed statement of 8 considerations that starts on page 2209 and continues 9 over on page 2210 of the federal register, and that is 10 really a very good explanation of why the commission 11 did what it did in section 228.
12 It was implementing ADR, and it explained, 13 you know, that this is all part of the ADR process 14 that the NRC has been working on, and I think if you 15 read 2238, particularly bearing in mind what the 16 commission has said that is its intent, that these are 17 ADR provisions, and I think that would resolve a lot 18 of your concerns.
19 But it may well be that the easy way out, 20 if the state is willing, is to simply refile the 21 notice of withdrawal and not attach the MOU.
22 ADMIN. JUDGE KARLIN: Okay. We are going 23 to go offline for a moment.
24 MR. SHADIS: Your Honor, I'm sorry to 25 interrupt. This is Ray Shadis. I was hoping to get NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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939 1 an opportunity to comment before the panel took this 2 under consideration.
3 ADMIN. JUDGE KARLIN: We're really not 4 done yet, but we will give you a minute, here, Mr.
5 Shadis. What can you say?
6 MR. SHADIS: Well, only that individual 7 initiatives for settlement appear to us on plain 8 reading here to be encompassed by alternative dispute 9 resolution, that it is part and parcel of it, and if 10 you look at the second paragraph, (a) availability, it 11 reads, "the party shall have an opportunity to submit 12 proposed settlement of some or all issues to the 13 commission and presiding officer."
14 And that presumes that they've done some 15 work on their own in advance. Further, if the state 16 is now permitted to simply file a withdrawal without 17 the attached MOU, then it is a withdrawal under 18 subterfuge. There is a dishonesty build in because we 19 do know that their withdrawal is based on a memorandum 20 of understanding for settlement.
21 MR. ROISMAN: Mr. Chairman, this is Mr.
22 Roisman. Would you indulge me for one minute, because 23 I'm concerned about a couple of things that have 24 happened, and I would like to speak to them, if that's 25 okay.
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940 1 ADMIN. JUDGE KARLIN: Well, Mr. Roisman, 2 in light of your ancient lineage --
3 (Laughter.)
4 MR. ROISMAN: Right, and having never 5 participated in any settlement in a nuclear power case 6 ever in my life -- two things, really. Number one, 7 Sequoyah. Sequoyah is a case that involves an 8 applicant withdrawing an application. That is covered 9 by a special provision of the regulations, 2.207(a),
10 and there are plenty of good reasons why and there are 11 a whole bunch of rules that are laid out there as to 12 how an applicant can withdraw an application, whether 13 the commission still has to reach decisions on the 14 issues that were raised by the application, et cetera, 15 et cetera.
16 It has no bearing here. The cases that do 17 have bearing are those cases where there is a 18 withdrawal by someone other than the applicant, and it 19 seems to me, and I would note you were one of the 20 members of the board in the matter of inspection 21 services, which is at 60 NRC 663, and decided in 2004, 22 and the withdrawal of a request for a hearing through 23 the authorized representative of the party who had 24 requested that was granted apparently without any 25 procedure going on.
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941 1 And, in this case, there have already been 2 settlements. They didn't involve the state, they 3 involved NEC and the applicant, or the staff, with 4 regard to scope of contentions. There were some 5 issues that they worked out. In fact, you encouraged 6 them to do that. See if you can work these things 7 out.
8 No one suggested that 2.338 would be 9 applicable, and I think the reason for that is that 10 the real motivation behind all of those provisions in 11 2.338 is that if somebody were to reach a settlement 12 with the applicant or the staff in which somebody was 13 agreeing to do something either not required by the P ~14 law, on the one hand, or prohibited by the law, on the 15 other, the commission would obviously have an interest 16 in making sure that something wasn't going on that 17 violated its obligations to protect the public health 18 and safety.
19 In this case, as the board can see from 20 looking at the MOU, there is no such-thinggDoinglon.
21 The applicant has not agreed to do anything that the 22 law doesn't -- that prohibits it from doing or refuse 23 to do something that the law requires it to do. And 24 I think that what we have is a situation in which the
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942 1 would be interested in knowing what's gone on.
2 And if this other approach, that is the 3 approach that we withdraw it and then just file the 4 withdraw, which, by the way, involved absolutely no 5 dishonesty, and I'm disappointed to hear Mr. Shadis 6 use that term with regard to the state, it could 7 hardly be called dishonest since it is already well 8 known just a matter of meeting procedure requirement.
9 But that process would discourage parties 10 from letting the board know something that they may, 11 at a minimum, be curious about. Gee, what went on?
12 ADMIN. JUDGE KARLIN: Okay. I think 13 that's very valuable. We will now take a ten-minute 14 break, if you all will stay on the line, we are going 15 to try to consult with Judge Rubenstein. We will call 16 your cell phone. Okay? Thank you, everyone.
17 (Whereupon, the matter went of f the record 18 briefly.)
19 ADMIN. JUDGE KARLIN: Okay, great, thank 20 you for your indulgence in giving us a few minutes to 21 talk about this within the board. This has all come 22 up rather quick - quickly, and we don't have firm 23 conclusions for anyone today, and you may have been 24 hit sort of without a lot of warning on some of the 25 questions we have here.
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943 1 And my board members will, I'm sure --
2 colleagues will correct me immediately if I mistake 3 this, but I think what we would like you to do is we 4 are going to give you seven days from today to submit 5 to us either a revised submission, I will call it, or 6 briefs that would address for us some questions we 7 have -- well, the questions we've asked today.
8 The briefs or the questions we have I 9 think would include, what I have, is I would like you 10 to address is this a settlement agreement. Is what 11 was submitted, the notice of withdrawal with the 12 attached MOU, a settlement agreement? In general.
13 And then, is it subject to 2.338 or not, particularly 14 our question would be are settlement agreements that 15 are not achieved -- or that are achieved without the 16 assistance of a third-party neutral subject to the 17 provisions of 2.338?
18 We would like you to flat out address that 19 question, yes or no. And if the answer is no, that 20 the settlements agreements achieved without the 21 assistance of a third-party neutral are not subject to 22 any of the provisions of 2.338, then does this board 23 or any board have authority over approving or 24 disapproving such settlement agreements, and if so, 25 what is the source of that authority?
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944 1 Those are questions I am concerned with, 2 and I think that the alternate of submitting a 3 proposal to us would be a settlement agreement or an 4 agreement that would incorporate the provisions of 5 2.338(h).
6 ADMIN. JUDGE BARATTA: This would not be 7 precedent-setting.
8 ADMIN. JUDGE KARLIN: We do not have to 9 set a precedent, but, you know, that -- yes, right.
10 What -- our contemplation is not in seven days to 11 receive a unilateral, one-line withdrawal in lieu of 12 all of the above. We want this issue addressed one 13 way or the other.
14 And if you assert, in your briefs as you 15 have said today, that none of this regulation should 16 apply, it may very well be that at that point, we will 17 be able to deal with this, and maybe a one-liner will 18 suffice. But this board is not convinced that a one-19 liner will suffice, and so we are not -- we are 20 abjuring you not -- that is not what we are expecting 21 or requiring.
22 This will allow us all to think about it 23 a little bit more and to put it out and writing, and 24 let's limit these to ten pages. It might not even 25 approach that length.
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945 1 ADMIN. JUDGE BARATTA: This is Judge 2 Baratta. I really want to reiterate that the idea of 3 a one-liner -- I just don't think that that is in the 4 spirit of what we are trying to do with these hearing 5 processes, which is basically provide an opportunity 6 for the public to participate and also to appraise --
7 on what basis the decision or the outcome which would 8 occur.
9 So, it would be better if we could somehow 10 find a vehicle that would allow us to get this 11 agreement on the record, of ficially and in such a 12 manner that is consistent with past practice, so I'd 13 really encourage people to take this seriously. And 14 we're looking for guidance on this.
15 ADMIN. JUDGE KARLIN: Yes.
16 ADMIN. JUDGE BARATTA: This is a new part, 17 too, and we're the first application of it or one of 18 the first applications.
19 ADMIN. JUDGE KARLIN: Absolutely. We are 20 glad to see the settlement, proposed settlement, here, 21 you know. Without addressing the merits of it in any 22 way, shape, or form, it's great that the parties have 23 been working on this kind of thing, and we want to 24 encourage that.
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946 1 the regs and to see how they apply, and they are new, 2 and we don't -- I'm relatively new in this 3 administrative proceeding, ASLBP, less than two years, 4 so we're all just trying to do it right, and 5 hopefully, it may very well be that the content 6 specifications are of no never mind to anybody at this 7 point, or they may be important to you all and may be 8 a reason to -- but it would be good to have this 9 sorted out, and that's what we're going to try to do.
10 MR. ROISMAN: Mr. Chairman, this is Mr.
11 Roisman. I just want to make sure I understand the 12 options. In -- behind door A is a brief in which the 13 parties who choose that route provide to you what J 14 their interpretation is of what the document that is 15 now on file with the board is and whether it does or 16 does not need to meet the requirements of 2.338 and 17 particularly subpart (h).
18 And behind door two is file a new 19 document, essentially withdraw the current one, and 20 comply with the requirements of 2.338(h) and don't 21 brief anything?
22 ADMIN. JUDGE BARATTA: This is Judge 23 Baratta. I think in this -- behind door A, there was 24 a third point dealing with if this is not covered 25 under 2.338(h) or 2.338, where is the authority for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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947 1 the board to act on this in either the new part or 2 prior practice.
3 ADMIN. JUDGE KARLIN: Right.
4 MR. ROISMAN: Okay. All right.
5 ADMIN. JUDGE KARLIN: And I think you have 6 characterized it generally correct. I would add this 7 caveat, I guess, is that the first question is whether 8 what's been filed is a settlement agreement.
9 MR. ROISMAN: Correct.
10 ADMIN. JUDGE KARLIN: You may very well 11 say no. That's not the end of what I would like to 12 have. If you say no, then none of the later 13 discussions are presumably relevant. You just 14 dismissed them. But I want you to say what if it is 15 a settlement agreement?
16 Assuming it is a settlement agreement, is 17 it subject to 2.338, or more particularly, are 18 settlement agreements that are not achieved through 19 the assistance of an ADR or third-party neutral not 20 subject to 338. I mean, does 338 just deal with ones 21 that are achieved through ADR.
22 MR. ROISMAN: But all that analysis is 23 only if the two parties, Entergy and the state, don't 24 choose instead to, without waiving any positions they 25 may have on it, if they choose instead to just file NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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948 1 something that complies with (h), then providing 2 analysis is not required?
3 ADMIN. JUDGE KARLIN: Right.
4 MR. ROISMAN: Right.
5 ADMIN. JUDGE BARATTA: And that, of 6 course, would not result into order -- we just talked 7 about preference.
8 ADMIN. JUDGE KARLIN: What would happen, 9 presumably, is there would be an order, and it would 10 just simply say -- it would probably say approved.
11 Settlement agreement or notice of withdrawal, whatever 12 it is, approved, but you know, we are not going to 13 establish any precedent that we would say, oh, you 14 know -- we are not going to address that one way or 15 the other.
16 MR. SILBERG: Mr. Silberg. The one point 17 I would like to leave with you is -- and this is an 18 analogy to something that we talked about in a 19 proceeding with respect to a license, where we said 20 what we are receiving is a license to operate, not a 21 sentence to operate.
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949 1 thinking that, somehow, it can compel interveners, or 2 applicants for that matter, to participate when they 3 choose, for whatever reason, to withdraw from a 4 proceeding.
5 ADMIN. JUDGE KARLIN: I agree. We have 6 some question about what our sanctions might be to 7 force someone -- I mean, yes, we understand that. My 8 point is, there's a reg. There's a reg that says 9 settlement agreements must contain the following four 10 elements.
11 We didn't write this reg. We don't even 12 know why it's there. If you can help us figure it 13 out, that would be great.
J 14 ADMIN. JUDGE BARATTA: We're trying to 15 find the procedure under which you withdraw in this 16 case, and what is the applicable process to accomplish 17 what, you know, you want to do, assuming it is --
18 MS. HOFMANN: Well, from the state's 19 perspective, we are having some resource difficulties.
20 It felt like it was very hard to get into this case, 21 and now it feels like it's very hard to get out.
22 (Laughter.)
23 MS. HOFMANN: That said --
24 ADMIN. JUDGE KARLIN: Well, would you 25 prefer to submit your initial testimony on May 17?
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950 1 MS. HOFMANN: Thank you, Judge Karlin, but 2 we'll pass on that.
3 (Laughter.)
4 MS. HOFMANN: What I would suggest is --
5 so you really don't like the idea of just withdrawing 6 the pleading and leaving this issue to another day 7 when you have a truly contentious settlement of some 8 kind?
9 ADMIN. JUDGE KARLIN: Yes, correct. We 10 would either like to see -- you know, the two options, 11 the two doors. Please brief us and help us think this 12 issue through. If you want to stand whatever ground 13 you have here, or if you feel that it's a no, never J 14 mind, anyway, then we would suggest that you just come 15 up with an agreement that incorporates three to four 16 provisions that, you know, that -- you might look at 17 the LES settlement agreement of July of 2005.
18 You see it seems to be relatively 19 innocuous, and it does seem to be required, or at 20 least some of us think that. So seven days from 21 today, please submit those. Either some sort of 22 option one or option two.
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951 1 relatively short order.
2 MR. TURK: Just for clarification, Your 3 Honor, this is Sherwin Turk. I assume you are 4 allowing all parties to file in response to your 5 questions, not just the people who have -- the parties 6 who have signed the settlement agreement?
7 ADMIN. JUDGE KARLIN: That's right, Mr.
8 Turk, although I suspect that if the state and Entergy 9 say that they are just going to, you know, incorporate 10 the two or three provisions in there with no 11 precedent, then hopefully, they would tell you that so 12 you would be -- avoid the necessity of filing briefs.
13 MR. TURK: I thank you. And by the way, 14 when I look at the provisions you mentioned in 15 2.338(h), they seem fairly innocuous, fairly simple to 16 agree upon, and perhaps that is just the easy way to 17 find ourselves out of the box.
18 ADMIN. JUDGE KARLIN: Yes. Perhaps so.
19 I hope so.
20 MR. TURK: I certainly am not a party to 21 the agreement, and I would leave it to those parties 22 to decide whether that is something that they could 23 agree upon. I would ask that just as a fallback 24 position --
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952 1 out.)
2 ADMIN. JUDGE KARLIN: Yes, hello?
3 MR. ROISMAN: I think he fell way back.
4 (Laughter.)
5 ADMIN. JUDGE KARLIN: Yes.
6 MR. ROISMAN: He may have been kicked 7 under the table.
8 (Laughter.)
9 MR. SHADIS: Your Honor, this is Ray 10 Shadis.
11 ADMIN. JUDGE KARLIN: Well, wait a second, 12 Mr. Shadis, let's see if Mr. Turk -- Marcia, could you 13 go try to call him and let him know he seems to have 14 fallen off the call?
15 MS. CARPENTIER: Okay. Check one more 16 time to make sure he's off?
17 ADMIN. JUDGE KARLIN: Mr. Turk?
18 (No response.)
19 ADMIN. JUDGE KARLIN: Okay, yes, please 20 give him a call. So we are going to try to get him 21 back online. Go ahead, Mr. Shadis.
22 MR. SHADIS: I'm just a little confused as 23 to what role New England Coalition might play in 24 working through the issues here, and I am wondering if 25 it might be acceptable if we, rather than to file a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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953 1 brief, if we were to file a simple memorandum with our 2 take on what the, you know, applicable case law an 3 regulation might be.
4 ADMIN. JUDGE KARLIN: I think that's 5 probably all right. We're not concerned about the 6 title of what it would be. I mean --
7 MR. SHADIS: Sure.
8 ADMIN. JUDGE KARLIN: -- quite frankly, if 9 you don't want to file anything, I don't think you are 10 obliged to.
11 MR. SILBERG: Well, it seems to me -- this 12 is Mr. Silberg. If, and I don't know whether this 13 will be the case, if Entergy and the state simply file 14 a document that includes the four items, then there 15 are no briefs, and at that point, I think -- well, I 16 guess any seat can file anything it would like, the 17 other parties presumably wouldn't file anything, and 18 the board wouldn't be looking at it because it 19 wouldn't need to.
20 ADMIN. JUDGE KARLIN: I think that's 21 right. So I would --
22 MR. TURK: Hello?
23 ADMIN. JUDGE KARLIN: Mr. Turk?
24 MR. TURK: Now I know what it feels like 25 to have someone's microphone turned off when they are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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954 1 mid-sentence.
2 ADMIN. JUDGE KARLIN: Oh, okay, good.
3 You're --
4 MR. TURK: Yes, I apologize. My phone 5 became disconnected.
6 ADMIN. JUDGE KARLIN: All right, fine. I 7 know you were speaking, but let us finish up with --
8 I was just --
9 MR. TURK: The only thought I had, Your 10 Honor, was that I hope that you will allow those two 11 parties, if they determine that the other way they 12 would like to proceed is to risk filing a simple 13 withdrawal and then leaving it to your discretion 14 whether to grant the motion for withdrawal or not that 15 that's the one option that they would have, if they 16 choose that.
17 MR. SHADIS: I think the board told us 18 that they didn't like that option.
19 MR. TURK: I know that.
20 ADMIN. JUDGE KARLIN: Yes, and no. I 21 think that is not one of the options that we are 22 putting out on the table. Meanwhile,,while you were 23 gone, Mr. Silberg was just speaking that if the 24 Entergy and state find it within taeir1 hearts to 25 adjust their agreement to incorporate the four NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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955 1 provisions that seem to be required by or may be 2 required by 2.338(h), then that moots out and makes 3 it, I think, irrelevant and unnecessary for briefs to 4 be filed by the staff or Mr. Shadis for NEC, and so I 5 would ask -- I am answering, I think, your question, 6 Mr. Silberg, in the affirmative and am then going to 7 ask you and the state to notify everyone else, or the 8 staff and Mr. Shadis, six days from now. Could you do 9 that?
10 MR. TURK: Okay, we will try to do that 11 before.
12 ADMIN. JUDGE KARLIN: Yes, I mean, if you 13 have got some -- if you've got to work it out, and you 14 think you've got it worked out, please let them know 15 as soon as possible, and, you know, no later than, 16 presumably, the prior day, and hopefully earlier than 17 that, if that is your conceptual agreement.
18 MR. SHADIS: Your Honor, this is Ray 19 Shadis, and we have this concern. The issues raised 20 in the state's contention have significant safety 21 implications, and our reading of this is that the 22 board, if this settlement is submitted for the board's 23 approval, must review it with those public interests.
24 In other words, the safety implications, 25 in mind. And we've -- at the onset of this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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956 1 conference, we heard the other parties in a sense 2 brush away those safety considerations, or at least to 3 indicate that they had, you know, been dealt with in 4 the settlement.
5 ADMIN. JUDGE KARLIN: No, I don't think 6 so. I don't -- my colleagues will correct me, but I 7 think our take is right now we are focusing on, 8 essentially, a procedural issue, not the substantive 9 validity -- you know, whether or not the settlement is 10 in the public interest or not.
11 MR. SHADIS: I see.
12 ADMIN. JUDGE KARLIN: That's a different 13 issue. We are troubled, simply, by the fact or what 14 initially troubled me was this regulatory requirement 15 that seems to say that you've got to have these four 16 clauses in a settlement, and if they are willing to 17 put those four clauses in the settlement agreement or 18 whatever they want to call it, agreement, essentially, 19 that's great.
20 That'll moot out the procedural questions 21 and concerns we have. That doesn't mean anything 22 good, bad, or indifferent in terms of any substantive 23 approval or disapproval of the agreement.
24 MR. SHADIS: I understand, Your Honor.
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957 1 there will be any opportunity for New England 2 Coalition to address the quality of the memorandum of 3 understanding or the settlements.
4 ADMIN. JUDGE RUBENSTEIN: Excuse me, this 5 is Judge Rubenstein. On February 16 of last year, we 6 promulgated a memorandum in order dealing with the 7 subject of your ability to incorporate the DPS 8 contentions, and I think it speaks with great clarity, 9 and I refer you to it, and I suggest you read it.
10 ADMIN. JUDGE KARLIN: Yes, I think that 11 does address one issue. All we are looking for now is 12 seven days from now, either they submit a revised 13 settlement agreement or agreement, whatever they want 14 to call it, with those four clauses, or everybody 15 submits briefs on the issues we have identified.
16 At that point, we go on as if it was any 17 other settlement agreement that was submitted for 18 approval or not.
19 MS. HOFMANN: Judge Karlin, this is Sarah 20 Hofmann from the state, and I need' to get off this 21 phone call because I have to go to another meeting, 22 but Mr. Roisman will maintain the state's position.
23 ADMIN. JUDGE KARLIN: I think we're done.
24 I think that is all we need to cover at this point.
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958 1 very short notice. The call has gone longer than we 2 expected. I apologize for that.
3 MS. HOFMANN: Thank you very much.
4 ADMIN. JUDGE KARLIN: Thank you for that, 5 and we will look forward to submissions in a week, or 6 seven days from today.
7 (Whereupon, at 2:55 p.m., the foregoing 8 matter was adjourned.)
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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.
Lidey Barnes Official Reporter Neal R. Gross & Co., Inc.
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com