ML062050202
| ML062050202 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 07/18/2006 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, NRC-1151, RAS 12001 | |
| Download: ML062050202 (35) | |
Text
RA S 14aOoI Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Vermont Yankee Nuclear Power Station Docket Number: 50-271 -OLA; ASLBP No. 04-832-02-OLA Location: (telephone conference)
DOCKETED USNRC July 21, 2006 (11:21am)
Date: OFFICE OF SECRETARY Tuesday, July 18, 2006 RULEMAKINGS AND ADJUDICATIONS STAFF Work Order No.: NRC-1 151 Pages 1020-1052 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
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1020 1 UNITED STATES OF AMERICA
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2 3 NUCLEAR REGULATORY COMMISSION
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4 5 ATOMIC SAFETY AND LICENSING BOARD PANEL 6 + + + + +
PRE-HEARING CONFERENCE CALL 7
8 9 In the Matter of:
II 10 ENTERGY NUCLEAR VERMONT Docket No. 50-271-OLA I,
11 YANKEE L.L.C. and ASLBP No. 04-832-02-OLA 12 NUCLEAR OPERATIONS INC., II 13 (Vermont Yankee Nuclear II 14 Power Station) II 15 .1 16 Tuesday, July 18, 2006 17 The above-entitled conference was 18 convened, pursuant to notice, at 11:00 a.m.
19 BEFORE:
20 ALEX S. KARLIN, Administrative Law Judge 21 ANTHONY J. BARATTA, Administrative Judge 22 LESTER S. RUBENSTEIN, Administrative Judge 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1021 1 APPEARANCES:
2 On Behalf of the Licensee:
3 MATIAS E. TRAVIESO-DIAZ, ESQ.
4 of: Pillsbury Winthrop Shaw Pittman 5 2300 N Street, N.W.
6 Washington, D.C. 20037 7 (202) 663-8142 8 On Behalf of Intervenor New England Coalition:
9 RAYMOND SHADIS, ESQ.
10 New England Coalition 11 P.O. Box 98 12 Edgecomb, Maine 04556 13 (202) 882-7801 14 On Behalf of the Nuclear Regulatory Commission:
15 SHERWIN E. TURK, ESQ.
16 of: Office of the General Counsel 17 U.S. Nuclear Regulatory Commission 18 Mail Stop O-15D21 19 Washington, D.C. 20555 20 (301) 415-1533 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1022 1 On Behalf of Intervenor State of Vermont:
2 ANTHONY Z. ROISMAN, ESQ.
3 of: Hershenson, Carter, Scott & McGee, P.C.
4 P.O. Box 909 5 Norwich, Vermont 05055 6 (802) 295-2800 7 and 8 STEVEN HAMRICK, ESQ.
9 of: Office of the General Counsel 10 U.S. Nuclear Regulatory Commission 11 Washington, D.C. 20555-0001 12 (301) 415-4106 13 14 ALSO PRESENT:
15 MARCIA CARPENTIER, ESQ., ASLBP Staff 16 RICK ENNIS, Project Manager, NRC 17 CRAIG NICHOLS, Project Manager, Entergy 18 JONATHAN RUND, ESQ., ASLBP Staff 19 KAREN VALLOCH, ASLBP Staff 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N.W.
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1023 1 P-R-O-C-E-E-D-I-N-G-S 2 (11:03 a.m.)
3 JUDGE KARLIN: This is Judge Karlin. We 4 are now commencing a pre-hearing conference call on 5 July 18th in the matter of Entergy Nuclear Vermont 6 Yankee, LLC. Our docket number ASLBP docket number 7 04-832-02-OLA and docket number 50-271. This 8 conference call is being held pursuant to our revised 9 scheduling order issued on April 13th of 2006.
10 Before we start, I would like to ask 11 everyone to go around the table and introduce 12 themselves. For the Board I will say that here in 13 Rockville, Maryland participating are myself, Alex 14 Karlin; Judge Tony Baratta; Jonathan Rund and Marcia 15 Carpentier, who are our law clerks and lawyers who 16 support the Board; and Karen Valloch, who is our 17 administrative assistant.
18 And next we also have Judge Rubenstein 19 participating from the West Coast. Judge Rubenstein, 20 anything you want to say?
21 JUDGE RUBENSTEIN: No. I'm here.
22 JUDGE KARLIN: Very good. Very good.
23 For NEC, Mr. Shadis?
24 MR. SHADIS: Yes. Raymond Shadis here.
25 JUDGE KARLIN: Okay. Thank you. Good NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1024 1 morning.
2 MR. SHADIS: Good morning.
3 JUDGE KARLIN: For Entergy, Mr.
4 Travieso-Diaz?
5 MR. TRAVIESO-DIAZ: That is correct. I'm 6 here.
7 JUDGE KARLIN: And Mr. Nichols?
8 MR. NICHOLS: That is correct. Good 9 morning.
10 JUDGE KARLIN: Good morning.
11 And for the staff, Mr. Turk, please 12 introduce your people for the record.
13 MR. TURK: Thank you. Good morning, Your 14 Honor. I'm Sherwin Turk, counsel for NRC staff. With 15 me is Steven Hamrick, co-counsel; and Rick Ennis, 16 project manager for the NRC staff.
17 JUDGE KARLIN: Okay. Thank you. Good 18 morning, everyone. And thank you for participating.
19 I won't go through the ground rules -- I 20 think everyone knows them -- except simply to just 21 add, if you would, if we would all try to say our name 22 as we begin speaking so that the court reporter can 23 more accurately transcribe this conversation or this 24 conference call.
25 The main purpose of the call, really, is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N.W.
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1025 1 our monthly status report to prepare for the 2 evidentiary hearing scheduled for September. I will 3 suggest some topics that we might cover here today and 4 then ask if there's anything else that urgently needs 5 to be added to this brief agenda.
6 First, we will talk about the motion in 7 limine filed by NEC and give a ruling on that.
8 Second, we want to talk briefly about the 9 Board wants to conduct a site visit of the Vermont 10 Yankee facility in conjunction with the evidentiary 11 hearing or prior to the evidentiary hearing, really.
12 And, third, we'll talk about the 13 evidentiary hearing itself, the logistics, the 14 schedule, the protocol. And this will include, I 15 think, the two items that Mr. Turk mentioned in his 16 e-mail about the length of time we currently estimate 17 each contention will take and the sequence we want we 18 would like to have them presented.
19 So motion in limine, site visit, and 20 evidentiary hearing issues. Are there any other 21 urgent items that need to be added to the agenda?
22 MR. TRAVIESO-DIAZ: Mr. Chairman, this is 23 Mr. Travieso-Diaz.
24 If I may suggest, if it is convenient, 25 that we talk briefly, get more guidance from the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N.W.
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1026 1 Board, if any is needed, on the proposed questions for 2 the Board that will be filed on August 4.
3 JUDGE KARLIN: All right. Well, I think 4 that is fine. I had contemplated having a very brief 5 statement on that to cover it.
6 MR. TRAVIESO-DIAZ: Okay.
7 JUDGE KARLIN: Anything else?
8 (No response.)
9 JUDGE KARLIN: Okay. We will add, 10 incorporate, I think, a guidance regarding the 11 questions due on August 4th in this discussion. And 12 now we'll just proceed.
13 On the motion in limine filed by New 14 England Coalition, it covered three areas, three 15 components. The first was to exclude the testimony or 16 portions of the testimony of Mr. Craig Nichols that 17 had been submitted, as I understand it, to exclude all 18 areas, essentially, except in the arena of electrical 19 engineering, which I understand is his degree from his 20 curriculum vitae, and also in the management of 21 nuclear plant technical personnel, power plant 22 personnel.
23 On that, we have consulted prior 24 Commission case law in the area of admission of 25 testimony and, in particular, what we would call NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1027 1 expert testimony. We have certainly looked at the 2 Federal rules of Evidence 702, which is guidance for 3 us in these matters. And on that basis, we have 4 concluded that we will deny this motion.
5 We.believe that Mr. Nichols' testimony can 6 be accepted. And we can weigh its value and its 7 worth. And we understand its strengths and its 8 possible weaknesses. And so we feel we will admit it 9 for what it is worth. The motion is denied.
10 Second part of the motion is proprietary 11 information. And it was, as I understand it, a 12 request to require prior to the evidentiary hearing 13 redaction of all documents, in fact, that Entergy has 14 presented.
15 We have looked at the schedule and the 16 history of this issue here and are concerned that this 17 issue arose, you know, more than a year ago, in March 18 1st of '05, when we issued the protective order and 19 opportunity for parties to sign the nondisclosure 20 agreement to have access to any of the proprietary 21 information.
22 We again visited this issue back in the 23 spring, in what, April or May, at which point we 24 thought there was going to be a signing by Mr. Shadis 25 and his experts.
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1028 1 They apparently balked, Mr. Shadis 2 reported. They balked at signing it for reasons I 3 don't fully understand, but, in any event, they didn't 4 sign it and nor did he.
5 This also arose in the context of our 6 request for supplemental documents, essentially, as I 7 understand it and as Entergy presents. They did not 8 initially intend for these to be exhibits or pieces of 9 evidence in their case.
10 We, the Board, in order to examine and 11 cross-examine, as it were, the witnesses asked for 12 these documents. And they were delivered. And we may 13 end up using them for examining or questioning the 14 witnesses, but they were not initially proffered as 15 exhibits by Entergy.
16 For all these reasons, we deny this motion 17 as well. We find that they have provided a summary, 18 that a redaction would probably not produce anything 19 that would be of greater, significantly greater, 20 assistance. And at the late date that this is 21 presented, it would end up a significant delay in the 22 proceeding if we were to try to accommodate this. So, 23 for all those reasons, that is denied.
24 And we further deny the request to extend 25 the schedule. This has come up to allow for the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1029 1 submission of additional information. This has come 2 up several times. And, you know, at this point, if we 3 granted that, again, it would end up with a cascading 4 effect that would require rebuttal and then require 5 additional time for submission of questions and 6 motions for cross-examination and would simply just be 7 significant delay. So that is denied.
8 Now we turn to the next item, which is a 9 site visit. The Board has consulted internally about 10 this, and we would like to conduct a site visit, visit 11 the facility on the first day, Monday, September 11th.
12 In lieu of starting our evidentiary 13 hearing on that day up in Newfane, we would like to 14 have a brief, probably three hours or so, half-day, 15 three-hour session to visit the site and have a brief 16 site visit.
17 That would not be part of the formal 18 record of the proceeding or the evidence of the 19 proceeding, but it would allow us to look at the 20 facility and would essentially cover, as I understand 21 it, -- and my colleagues can correct me or amplify on 22 this -- the cooling towers and structures, associated 23 structures, and sort of the balance of the plant and 24 a brief overview of the balance of the plant.
25 Is that basically what we're covering?
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1030 1 JUDGE RUBENSTEIN: This is Judge 2 Rubenstein.
3 That is correct.
4 JUDGE KARLIN: Okay.
5 JUDGE RUBENSTEIN: To the degree that the 6 plant is operating, we would look at the balance of 7 the plant. If it is not operating, we would see a 8 little more in the balance. But the primary focus is 9 on the cooling towers.
10 JUDGE KARLIN: Right. And in preparation 11 for today, yesterday Ms. Carpentier contacted counsel 12 for Entergy to see if the facility would be available.
13 And apparently it is.
14 Mr. Travieso-Diaz, perhaps you can report 15 on that.
16 MR. TRAVIESO-DIAZ: Yes. As I explained 17 to Ms. Carpentier -- and Mr. Nichols was on the line 18 and might elaborate on this if he has any additional 19 information -- the way in which such a visit could be 20 arranged is by working with Region I and talking 21 directly through Region I with a resident inspector 22 from Vermont Yankee. And she may be able to work with 23 you on the logistics of the site access.
24 We welcome, of course, the Board to the 25 site.
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1031 1 JUDGE KARLIN: Okay. Fine.
2 MR. TRAVIESO-DIAZ: And if there are any 3 questions, Ms. Carpentier can contact me. And I'll 4 try to resolve it.
5 JUDGE KARLIN: Does anyone else have any 6 questions or concerns or suggestions vis-a-vis site 7 visit?
8 MR. SHADIS: This is Ray Shadis with a 9 question, Your Honor.
10 JUDGE KARLIN: Yes?
11 MR. SHADIS: Would this site visit be open 12 to the other parties?
13 JUDGE KARLIN: Absolutely.
14 MR. SHADIS: Thank you.
15 JUDGE KARLIN: Yes. It would not be open 16 to the public, but certainly representatives from each 17 of the parties, well, from NEC and from the staff. We 18 want you to be present.
19 MR. TRAVIESO-DIAZ: Excuse me. This is 20 Mr. Travieso-Diaz.
21 I think we would need to know in advance 22 who will be coming for each of the parties so proper 23 security access and arrangements can be made, but 24 that's just a question of getting information.
25 JUDGE KARLIN: Yes, yes. We will. What NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1032 1 I would plan is we would issue a brief order that 2 would lay out, among other things, our site visit plan 3 and would ask and instruct people to designate who, 4 you know, Mr. Shadis, you know, who you want to 5 attend.
6 I suspect -- I don't know how many spaces 7 would be available for this visit but perhaps two from 8 NEC, two or three from the staff, two or three from 9 Entergy itself, representatives would accompany the 10 Board and the law clerks of the Board if that wouldn't 11 be too large of a group.
12 We will issue an order in any event, and 13 we would instruct people to submit appropriate 14 information to your office, Mr. Travieso-Diaz.
15 MR. TRAVIESO-DIAZ: Thank you.
16 MR. TURK: This is Sherwin Turk for the 17 staff.
18 JUDGE KARLIN: Yes?
19 MR. TURK: I wasn't sure I understood what 20 Mr. Travieso-Diaz was suggesting in terms of the role 21 of NRC Region I inspectors at the plant. Is the 22 suggestion that the staff regional inspector arrange 23 for the site visit or what exactly is the task that 24 the staff is being asked to perform?
25 MR. TRAVIESO-DIAZ: Well, as I understand NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1033 1 it, -- again, Mr. Nichols can elaborate -- in previous 2 site visits, the resident inspector has been helpful 3 in making some of the arrangements as to people who 4 might be able to escort from the NRC staff, who might 5 be able to escort on the site and site access and 6 other issues. I'm sure that Entergy can help as well, 7 but --
8 MR. TURK: As we see it, we will be 9 working mostly directly with Entergy and not with the 10 staff's regional or site inspector, but if he wants to 11 come along and the staff so designates, that's fine 12 with us. If the staff feels that he should be one of 13 their designated participants for the site visit, 14 great.
15 JUDGE BARATTA: This is Judge Baratta.
16 I think what might be the issue with the 17 security concerns, you're limited to what, Mr. Diaz?
18 An escort for every five people? Is that correct?
19 MR. TRAVIESO-DIAZ: On that I think I need 20 to ask Mr. Nichols. Is that right?
21 MR. NICHOLS: That depends on the areas we 22 go to, what we do there. And, if I can elaborate on 23 that, what has happened in the past is, if the Judges 24 remember, they sent someone up from their staff to 25 look at the cooling towers previously.
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1034 1 JUDGE BARATTA: Right. David Jeng.
2 MR. NICHOLS: Right. And his visit was 3 handled via the resident, who dealt with all the NRC 4 rules and stuff like that. Entergy would certainly 5 offer to do the logistics...
6 We only offered that since it is the 7 independent ASLB coming that if they preferred, they 8 could do it through the resident staff to make their 9 logistics. We could do it either way.
10 JUDGE KARLIN: Okay. I think our 11 contemplation was, first off, this Board never sent 12 anyone up to the facility. So I am not familiar, but 13 certainly over the years, I'm sure there are people 14 who have visited from the various boards that might 15 have dealt with various issue.
16 Our approach, I think, is to deal with 17 Entergy and not work through the staff.
18 MR. TRAVIESO-DIAZ: We would be happy to 19 provide what logistic support you need.
20 JUDGE KARLIN: Right. Great. That might 21 be a minivan or a bus or a couple of vehicles 22 depending on what you would allow us to bring on site 23 or what you would provide to just go to whatever 24 location.
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1035 1 would be fine, too.
2 MR. TURK: Thank you for the 3 clarification. This is Sherwin Turk.
4 Now I understand that Entergy was 5 referring to the visit by one of the staff's witnesses 6 earlier this year. And that was just a single NRC 7 staff member, and he did work with the NRC staff 8 resident inspector in order to get access to the 9 facility.
10 I agree with the Board. I think it is 11 more appropriate that Entergy be contacted to arrange 12 for the tour of the parties and the Board.
13 JUDGE BARATTA: This is Judge Baratta.
14 In regards to that, Mr. Diaz, is it okay 15 if Ms. Carpentier contacts you and gets the specifics 16 of what information you need?
17 MR. TRAVIESO-DIAZ: I'm sorry. Is that 18 directed to me?
19 JUDGE BARATTA: Yes.
20 MR. TRAVIESO-DIAZ: I'm sorry. Yes. I 21 think that that is probably the most expeditious way 22 to proceed. We will be happy to accommodate.
23 JUDGE BARATTA: And you can also confirm 24 the number that you can accommodate so that -- it is 25 probably beyond Judge Karlin's --
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1036 1 MR. TRAVIESO-DIAZ: This is Mr.
2 Travieso-Diaz.
3 Am I correct in understanding that the 4 Board is not interested in visiting any of the 5 safety-related areas of the plant, such as the reactor 6 or so?
7 JUDGE BARATTA: I was assuming that the 8 reactor itself would be in operation so that we at 9 this time -- you wouldn't be out for your outage, 10 right, I mean, at this time?
11 MR. NICHOLS: That's correct. This is Mr.
12 Nichols.
13 We expect that the plant will be fully 14 operating at that period.
15 JUDGE RUBENSTEIN: This is Judge 16 Rubenstein.
17 That gives a certain very limited 18 opportunity to look at the balance of the plant and 19 the cooling tower complex.
20 JUDGE KARLIN: But that is what we -- that 21 would be fine. That is what we are talking about.
22 JUDGE RUBENSTEIN: Yes.
23 JUDGE KARLIN: Yes. We understand we are 24 not going to be able to get into the reactor facility 25 itself. We understand that.
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1037 1 So yes. We will ask Marcia Carpentier to 2 talk with Entergy and Mr. Travieso-Diaz just on the 3 logistics of this. And then we'll issue an order that 4 will lay it out for everyone.
5 And we would plan to do it on the l1th.
6 I would contemplate sometime in the morning, 7 reasonable time in the morning, 9:00 o'clock, that 8 sort of thing, 9:30, if that would work. And maybe 9 that takes three hours or so.
10 JUDGE RUBENSTEIN: This is Judge 11 Rubenstein.
12 If in your training facility you have like 13 a mock-up of an isolation valve which is germane to 14 NEC 3, one or two things like that, we would spend a 15 limited amount of time just looking at that for the 16 general information of everyone.
17 JUDGE KARLIN: Okay. Great. So we'll 18 move on. I think that covers the site visit. I 19 appreciate that the facility will be available on that 20 and might be helpful to us to see.
21 Third, then, we'll turn to the evidentiary 22 hearing: schedule, logistics, protocol, all those 23 sorts of things. Schedule. We would plan to take the 24 remainder of the week of September llth, the first day 25 being the site visit. Although we might be completed NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1038 1 with that by noon or midday, it seems unfeasible, 2 really, for us to commence a formal hearing that 3 afternoon.
4 We'll all be wearing casual clothes, 5 obviously, to see the site. And then the hearing 6 itself will start the next morning, on the morning of 7 the 12th.
8 We would like to have the hearing be 9 extended to the 15th. So we will go for the full week 10 until Friday afternoon or evening as necessary. And 11 we think we can get the entire hearing done and the 12 two remaining contentions in that time frame.
13 However, certainly obviously we haven't 14 seen the questions that the parties are going to 15 submit on August 4th, either what we would call the 16 directions or the motions for cross-examination that 17 you might file. And those are going to be 18 significant, we think.
19 And we will inform our thoughts in terms 20 of how much time we're going to have to take. So 21 everything is a bit tentative at this point, but we do 22 think we can get it done in the week of September 1lth 23 through the 15th inclusive.
24 Thus, turning to the week of October 16th, 25 what we would like to do is say, at most, right now we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N.W.
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1039 1 think it would only take two days additional. And, 2 therefore, we would reserve the October 17th and 18th, 3 Tuesday and Wednesday, for any further completion of 4 the hearings that we need to have.
5 So the other days we are releasing at this 6 point, I guess. And if you have other things you can 7 profitably be doing during that time frame, you know, 8 go right ahead. Hopefully that is of some help.
9 Our current plan is that we would like to 10 hear contention 4 first. I think that will take a 11 shorter amount of time. We think it will be a maximum 12 of one day and hopefully even less than that for 13 contention 4.
14 For contention 3 -- I'm sorry?
15 JUDGE BARATTA: Judge Baratta.
16 In the event that --
17 JUDGE KARLIN: Oh, yes. I was going to 18 say that.
19 JUDGE BARATTA: Okay.
20 JUDGE KARLIN: Good point. Go ahead, I 21 mean.
22 JUDGE BARATTA: In the event that -- you 23 should actually be prepared, though, with contention 24 4 to continue on Wednesday just in case --
25 THE REPORTER: Excuse me. Judge Baratta?
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1040 1 JUDGE BARATTA: Yes?
2 THE REPORTER: I'm having a little trouble 3 hearing you.
4 JUDGE BARATTA: This is Judge Baratta 5 here. Is that better?
6 PARTICIPANT: Yes, it is.
7 JUDGE BARATTA: Okay. With respect to the 8 contention 4, I would suggest that you plan on 9 continuing on Wednesday just in case we run over and 10 not just simply plan on having it on Tuesday, right?
11 JUDGE KARLIN: Right. So that we 12 contemplate that it will get done on Tuesday, but 13 don't send all the witnesses home from contention 4 on 14 Tuesday evening, the 12th unless we tell you at the 15 end of the day that we're done. And we will say at 16 the end of the day. If we're done, we will tell you 17 we're done. Otherwise, put some flexibility in there 18 and ask all those witnesses to be available on the 19 13th as well.
20 As we contemplate, we will want to have 21 all of the witnesses who have been proffered in the 22 testimony that has been presented to be there.
23 All three parties have presented witnesses 24 or one witness in the case of NEC. And we need all of 25 them to be there on the 12th and possibly the 13th for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1041 1
2 JUDGE RUBENSTEIN: This is Judge 3 Rubenstein.
4 Is it my understanding that Entergy will 5 operate with a panel on both contentions?
6 MR. TRAVIESO-DIAZ: That is correct.
7 JUDGE RUBENSTEIN: So, then, all your L
8 parties to the panel would be there pretty much 9 throughout the hearing?
10 MR. TRAVIESO-DIAZ: That is our plan.
11 JUDGE RUBENSTEIN: Thank you.
12 MR. TRAVIESO-DIAZ: May I ask a question 13 of the Board?
14 JUDGE KARLIN: Yes.
15 MR. TRAVIESO-DIAZ: Have you reached a 16 decision as to the order of witness presentation; in 17 other words, which party will go first and so on?
18 JUDGE KARLIN: No, I don't know we have.
19 We haven't done that, but we have reached a conclusion 20 that we want all of the witnesses by each of the 21 parties to be there for both of the contentions.
22 And we won't get to the contention 3 23 panels until the second day of the evidentiary 24 hearing, which is now going to be Wednesday, I guess, 25 the 13th. So they don't need to come in. They don't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N.W.
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1042 1 need to sit there all day on the first day if you 2 don't want them to. We will not get to them.
3 If we are finished with contention 4 at 4 3:00 p.m. on Tuesday, we will adjourn, rather than 5 bringing witnesses on.at that point if that is of any 6 help.
7 MR. TRAVIESO-DIAZ: Yes.
8 JUDGE KARLIN: We don't have it figured 9 out yet. And we are going to have another conference 10 call, obviously, on the 22nd of August. So we will 11 hopefully have more specifics at that point.
12 So okay. Contention 4 is on the first day 13 of the hearings, Tuesday. Contention 3 is on the 14 second and third days of the hearings. And we may be 15 done at that point. If we aren't, we will go until 16 Friday with contention 3.
17 And we will reserve the October 17th and 18 18th for continuation of the presentation or 19 questioning of those witnesses if it's necessary. And 20 we really don't think it will be necessary.
21 Let's talk a little bit about some 22 protocol questions. First, we would urge everyone to 23 consult once again the regulations, particularly 24 2.12-04(b) and 12-06(b). Those are our guidances in 25 terms of conducting these oral hearings motions.
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1043 1 Obviously the 12-04(b) deals with filing 2 of motions for cross-examination, requests for 3 cross-examination. The 12-06 has provisions for 4 filing of direct, proposed direct, questions that we 5 would ask.
6 We would note that the regs allow and 7 probably we would encourage that any such motions or 8 questions, which are to be filed on August 4th, are in 9 a sense ex parte.
10 You do not need to send copies of those to 11 the other parties. You just send them to the Board.
12 And they will ultimately be put on the record at the 13 end of the proceeding, but at this point it will be 14 submitted only to the Board unless you affirmatively 15 choose otherwise and want to share it with the other 16 party.
17 MR. SHADIS: For clarification, Your 18 Honor, -- this is Ray Shadis -- is that both proposed 19 cross-examination questions and proposed direct 20 questions?
21 JUDGE KARLIN: Yes, sir. That's, I 22 believe, what the regs say in both cases.
23 MR. SHADIS: Thank you. We'll consult the 24 regs.
25 JUDGE KARLIN: Take a look at the regs and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1044 1 be aware of that because it may make a difference in 2 how you pose your questions. The questions are for us 3 to consider and perhaps ask within our discretion. We 4 don't have to ask them if we don't want to if we don't 5 think they're pertinent or we don't think they'll help 6 us resolve issues.
7 Look at the oral hearing procedures in 8 12-07(b), oral hearing procedures. We will try to 9 follow those as closely as possible. Note in 10 12-07(b) (6) that participants and witnesses will be 11 questioned orally or in writing only by the presiding 12 officer or the presiding officer's designee.
13 So the general proposition, we're the only 14 ones who are going to be asking questions of any of 15 the witnesses unless we grant motions for 16 cross-examination. So you may want to submit those if 17 you have any desire to ask any questions here.
18 Let's see here. With regard to motions 19 for cross-examination, we are going to deal with them 20 as we stated in our December 16th, '04 decision, the 21 early portion of this case.
22 There were questions raised with regard to 23 how a CAN decision came down in the First Circuit.
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1045 1 for looking at cross-examination, motions for 2 cross-examination.
3 With regard to the hearing protocol, there 4 may be some -- we see no proprietary information with 5 regard to contention 4. So that should not be an 6 issue.
7 With contention 3, there was some 8 proprietary information, at least with regard to some 9 of our questions we may need to be asking. And, 10 therefore, if that comes up, we will have to exclude 11 the public and all NEC representatives who have not 12 signed a nondisclosure agreement. That would include 13 you, Mr. Shadis.
14 MR. SHADIS: Yes, sir.
15 JUDGE KARLIN: There would be no NEC 16 representative there. But we would probe the question 17 as we saw fit based upon those proprietary documents.
18 And it would be in the proprietary portion of the 19 record. And we would be able to make a decision based 20 upon that one way or the other.
21 JUDGE BARATTA: Mr. Shadis, this is Judge 22 Baratta.
23 I want to emphasize that based upon my 24 review of the testimony, it is extremely likely. In 25 fact, I would say it's almost definite that we will be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE, N.W.
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1046 1 dealing with proprietary issues.
2 JUDGE KARLIN: Yes. And we need to do 3 that. And we will try to segment the contention 3 4 proceeding so that you can participate or be there for 5 as much of it as you can be there for, but there will 6 be times when we are going to have to get into 7 proprietary. So we'll break and then clear the 8 courtroom and then proceed with the proprietary 9 section.
10 MR. SHADIS: Thank you, Your Honors.
11 JUDGE KARLIN: Okay. Anything else?
12 JUDGE BARATTA: No. That's all.
13 JUDGE KARLIN: Okay. I think that's all 14 we have. Mr. Travieso-Diaz, did we give you the 15 guidance you were looking for with regard to the 16 August 4th submissions?
17 MR. TRAVIESO-DIAZ: Yes, you did. hank 18 you.
19 JUDGE KARLIN: Okay. All right. Fine.
20 I guess, finally, the courtroom we're 21 going to be using in Newfane is small, beautiful, 22 simple, and somewhat spartan. It's not got a large 23 area for members of the public. We wish it were 24 bigger, but I think it will accommodate about 70, 60 25 to 70, people on some hard benches back there.
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1047 1 I think it is the best we can do, and it 2 is actually a very beautiful little courtroom we were 3 able to visit when we were up there before for the 4 limited appearance statement.
5 So I look forward to the hearing. We look 6 forward to your submissions on August 4th. And unless 7 anyone has anything else, is there anything else to be 8 covered at this point?
9 MR. SHADIS: Your Honor, this is Ray 10 Shadis again.
11 I do have a question.
12 JUDGE KARLIN: Okay.
13 MR. SHADIS: I am not sure how to handle 14 information that is recently produced or now coming 15 forward in terms of submitting it as evidence, whether 16 that possibility is still open or not.
17 What I am referring to here now is that 18 there is a proceeding opened in the State of Vermont.
19 The state nuclear engineer, who was a witness to 20 ascension power testing and to component, individual 21 component, testing, is now providing information. And 22 it is particularly relevant to contention 3.
23 I'm just at a loss as to how to handle 24 that or whether or not we can introduce that 25 information.
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1048 1 JUDGE KARLIN: Okay. Does counsel for 2 Entergy want to address that at all?
3 MR. TRAVIESO-DIAZ: Well, I would question 4 first the relevance of the information. The 5 contention 3 is very narrow in its scope. It is 6 whether the defined large transient testing needs to 7 be conducted or not.
8 And, therefore, I think that information 9 that may be produced thirdhand or secondhand in a 10 different proceeding having to do with different 11 issues by somebody is not going to be testifying I 12 think is not going to be either relevant or truly 13 probative. So I would think that on the basis of 14 that, it should not be considered.
15 In addition, I think that we had 16 opportunities, all the parties, to submit direct and 17 rebuttal testimony that presented our viewpoints and 18 our positions on the issues. I don't think 19 supplementing the record at this late stage, 20 particularly since the other parties would not be in 21 a position to address it, is either going to be 22 feasible or it is going to be fair.
23 I think at this point in time we have a 24 record going into a hearing in which all the evidence 25 that we said is relevant is before the Board. We are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVENUE. N.W.
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1049 1 going to be addressing the types of questions to the 2 witnesses based on that evidence. And anything else 3 that is afterwards I don't think should be admissible.
4 JUDGE KARLIN: All right. Thank you. We 5 don't need a full argument, but I get the gist of it.
6 Mr. Turk, do you have any thoughts on 7 this? I'm not trying to provide or have oral argument 8 on this at this moment, just a preliminary brief 9 reaction.
10 MR. TURK: Your Honor, Sherwin Turk.
11 I would address it simply procedurally.
12 The Board has previously established a schedule for 13 submission of testimony and evidence. If Mr. Shadis 14 wishes to introduce anything that he has not filed in 15 accordance with the existing schedule, I think his 16 remedy is to file a motion for leave to do, attach the 17 information that he wishes to file.
18 If he does file, of course, it could 19 affect the hearing schedule. Other parties should be 20 able to respond to his motion. And the Board could 21 rule on it.
22 I'm not sure, by the way, what evidence 23 he's referring to. We did see some of Mr. Sherman's 24 testimony filed in connection with another motion Mr.
25 Shadis had filed.
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1050 1 I don't know if it the same evidence that 2 he wishes now to submit again but make it relevant to 3 this contention, rather than to the proposed steam 4 dryer contention, which the Board has rejected. But, 5 in any event, if he wishes to introduce it here, I 6 think his recourse is to file a motion.
7 JUDGE KARLIN: Okay. Thank you. I think 8 to try to respond to your question, Mr. Shadis, you 9 know, we have set up a schedule here for submission of 10 direct and rebuttal testimony. We need to adhere to 11 that.
12 If subsequent to those dates and that 13 schedule something startling and new arises and you 14 think it needs to be presented in reference to a 15 particular one of the existing contentions, you can 16 file a motion. And the parties will have the 17 opportunity to respond.
18 Some of that same information and issues 19 came up in, I believe it was, the supplement with 20 regard to contention 8, proposed new contention 8, 21 where you had attached some material for Mr. Sherman, 22 I think it was.
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1051 1 something that developed later and is really critical 2 because it would necessitate -- and we're loathe to do 3 that -- delaying, it would seem, the evidentiary 4 hearing because if you file something, then there has 5 to be a rebuttal and then there have to be some more 6 opportunities for people to propound questions. And 7 their cascading effect would be significant. So 8 that's our response.
9 JUDGE RUBENSTEIN: This is Judge 10 Rubenstein.
11 I am going to crack the door about an inch 12 open in the respect that if new information is 13 specific and within the confines of the way we have 14 defined the scope of the two contentions and it's new 15 information which bears directly, for example, in NEC 16 4 under seven issues, subissues, before the Board, 17 which comprise contention 4 and the information is 18 specific in that sense, then you could probably pose 19 questions for the Board's examination. And the Board 20 at our discretion would look at these questions and if 21 they were to remain would consider looking for answers 22 but only in that very narrow and specific sense, which 23 we have defined the contentions as they stand.
24 JUDGE KARLIN: Okay.
25 MR. SHADIS: Thank you, Your Honor.
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1052 1 JUDGE KARLIN: Okay. All right. With 2 that, I appreciate everyone's participation and 3 patience. We look forward to your submissions on 4 August 4th. And we'll have another conference call on 5 August 22nd. I hope you enjoy some of your summer 6 here, ladies and gentlemen. And we'll talk to you on 7 the 22nd of August.
8 JUDGE RUBENSTEIN: This is Judge 9 Rubenstein.
10 Off the record for the court reporter.
11 (Whereupon, the foregoing matter was 12 concluded at 11:43 a.m.)
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'1
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.
KatheriAe Sykora Official Reporter Neal R. Gross & Co., Inc.
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com