ML063280126
| ML063280126 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 11/20/2006 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Giitter R | |
| References | |
| 50-293-LR, ASLBP 06-848-02-LR, RAS 12574 | |
| Download: ML063280126 (65) | |
Text
r~-~ Jd~3/?LJ Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Entergy Nuclear Operations, Inc.
Pre-Hearing Conference DOCKETED USNRC November 22, 2006 (11:20am)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Docket Number:
Location:
Date:
50-2930LR (telephone conference)
Monday, November 20, 2006 Work Order No.:
NRC-1314 Pages 494-556 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 Se-C%-(-05.)-
D
494 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5
PRE-HEARING CONFERENCE CALL 6
7----------------------------------- x 8
IN THE MATTER OF:
9 ENTERGY NUCLEAR OPERATIONS, 10 INC.
Docket No.
11 (Pilgrim Nuclear Power Station):
50-2930LR 12
x 13 Monday, November 20, 2006 14 Teleconference 15 16 The above-entitled matter came on for 17 hearing, pursuant to notice, at 1:00 p.m.
18 BEFORE:
19 THE HONORABLE ANN MARSHALL YOUNG, Chair, 20 Administrative Judge 21 THE HONORABLE RICHARD F. COLE, 22 Administrative Judge 23 THE HONORABLE PAUL B.
- ABRAMSON, 24 Administrative Judge 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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APPEARANCES:
2 On Behalf of the Licensee:
3 DAVID R. LEWIS, ESQ.
4 PAUL A.
- GAUKLER, ESQ.
5 of:
Pillsbury, Winthrop, Shaw, Pittman, LLP 6
2300 N Street, N.W.
7 Washington, D.C.
20037-1128 8
(202) 663-8063 9
10 On Behalf of the Intervener, the Town of 11 Duxbury:
12 KEVIN NORD, Fire Chief, 13 Town of Duxbury 14 668 Tremont Street 15
- Duxbury, MA 02332 16 (781) 934-5693 17 18 RICHARD MacDONALD, Town Manager 19 878 Tremont Street 20 Duxbury, MA 02332 21 (781) 934-1108 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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APPEARANCES (Continued):
2 On Behalf of the Intervener, the Town of 3
Plymouth:
4 MOLLY H. BARTLETT, ESQ.
5 52 Crooked Lane 6
- Duxbury, MA 02332 7
(781) 934-9473 8
9 SHEILA SLO CUMHOLLIS, ESQ.
10 Town of Plymouth MA 11 Duane Morris, LLP 12 1067 K Street, N.W.,
Suite 700 13 Washington, D.C. 20006 14 (202) 776-7800 15 16 On Behalf of the Nuclear Regulatory Commission:
17 SUSAN L.
- UTTAL, ESQ.
18 Office of the General Counsel 19 Mail Stop 15 D21 20 U.S. Nuclear Regulatory Commission 21 Washington, D.C.
20555-0001 22 (301) 415-1582 23 ALSO PRESENT:
24 NEIL SHEEHAN 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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PROCEEDINGS 2
(1:06 p.m) 3 JUDGE YOUNG:
Let's go on and go on the 4
record.
5 My name is Ann Marshall Young.
I'm the 6
Chair of the Licensing Board, and I have here with me 7
in Rockville Judge Paul Abramson, Judge Richard Cole, 8
and our law clerk Jared Lindsay.
9 I'd like to ask all of the parties to 10 identify yourselves starting with staff.
Spell your 11 names for the court reporter.
12
- And, Court Reporter, if you need any 13 additional spellings or spellings of our names, we can 14 also stay on at the end of the hearing to do that.
15 Let's start with the staff.
Indicate if 16 you have anyone with you who is with you.
17 MS.
UTTAL:
Yes, this is Susan Uttal, U-18 t-t-a-l.
I'm counsel for the staff.
I have quite a 19 few people with me from the Office of OGC.
I have 20 David Roth and Molly Markman, who is one of our honor 21 law grads, and then I have a lot of people from the 22 staff.
I'm not so sure that they all need to be 23 introduced.
I do have the two project managers, Perry 24 Buckberg and Alicia Williamson with me.
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- purposes, just to make sure that there's nothing 2
interfering with whatever schedule we set up.
3 JUDGE YOUNG:
Okay.
Let's see.
- Entergy, 4
Mr. Lewis.
5 MR.
LEWIS:
.-Judge Young, this is David 6
Lewis, and I have with me my partner, Paul Gaukler.
7 We're from the law firm Pillsbury, Winthrop,
- Shaw, 8
Pittman, representing Entergy.
9 JUDGE YOUNG:
10 MS.
BARTLETT:
Yes.
This is Molly 11 Bartlett, B-a-r-t-l-e-t-t, from Pilgrim Watch, and 12 it's just me today.
13 JUDGE YOUNG:
Okay.
Ms. Hollis, for the 14 Town of Plymouth.
15 MS.
HOLLIS:
Yes.
This is Sheila Hollis 16 from the Town of Plymouth and with the firm of Duane 17 Morris, and attending with me today are Helesa, H-e-l-18 e-s-a, Lahey, L-a-h-e-y, who is an associate, and Lee 19 Lontz, L-e-e L-o-n-t-z, who is the legal assistant.
20 JUDGE YOUNG:
The Town of Duxbury.
21 MR. NORD:
Yes.
It will be Kevin Nord of 22 the Sub Fire Chief Emergency Management Director, and 23 the last name is spelled N-o-r-d.
And I also have 24 Richard MacDonald, Town Manager, and his last name is 25 M-a-c in the spelling.
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JUDGE YOUNG:
Okay.
So with regard to any 2
reporters who are on the line at this time and Mr.
3
- Sheehan, the Public Affairs Office in Region I,
4 obviously you're welcome to listen, but I think all 5
parties should remember that this is a
legal 6
proceeding, and while in conferences judges and 7
parties may be somewhat less formal than in an actual 8
- hearing, it must be remembered that the general 9
expectations regarding appropriate decorum in legal 10 proceedings will apply.
11 I'm just going to go through a few things.
12 This is Judge Young again.
I forgot to identify 13 myself.
14 I'm just going to go through a few things 15 at the outset to address a few procedural matters and 16 then give you sort of an overview of what we expect to 17 do today.
18 First, as has been sort of indicated 19 informally already, but I want to indicate it more 20 formally now, to avoid confusion and to follow the 21 generally expected legal process, we will expect each 22 party to identify one lead lawyer or representative 23 who will speak for that party at all times and in all 24 instances, except when, for example, a witness may be 25 questioned by a different lawyer or when the lead NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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lawyer or representative is unavoidably unavailable 2
and has designated another person to act in his or her 3
place.
4 So that unless necessary and unavoidable, 5
when response or notification is needed from parties, 6
including on scheduling matters, this should be done 7
through the lead lawyer or representative only, who 8
will have already spoken with all of the other 9
participants in the process and ascertained their 10 availability so that all parties and the Board can 11 know when they're heard from that lead lawyer or 12 representative that what he or she has said represents 13 that party's position on whatever is at issue, whether 14 it be procedural, scheduling, substantive, or other.
15 I know there was a little confusion on 16 that before, but we do want to require that each party 17 designate one person for that purpose.
You can either 18 do it today at this time or by next Monday I think 19 would be a reasonable time to do that, which would be 20 November 27th.
21 MS.
HOLLIS:
Your Honor, this is Sheila 22 Hollis.
I have a quick question.
23 JUDGE YOUNG:
Yes.
24 MS.
HOLLIS:
If the lawyer has already 25 been identified previously, like in our case, do we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 need to submit again?
JUDGE YOUNG:
No, not if you just tell me today that you're still the lead lawyer.
That's fine.
- Actually, why don't I just go through all of the parties?
lawyer for Ms. Uttal, are you going to stay the lead this purpose or is Mr. Ross going to be?
MS.
UTTAL:
No, I'm the lead lawyer.
JUDGE YOUNG:
Okay, andMs. Bartlett, I'm the assuming you're the lead lawyer because you're only lawyer for Pilgrim Watch.
MS.
BARTLETT:
- Yes, I am.
JUDGE YOUNG:
Entergy, Mr. Lewis, are you the lead lawyer?
MR.
LEWIS:
That's correct, Judge Young.
JUDGE YOUNG:
And, Mr. Nord, I know that you're not --
- well, I'm assuming that you're not a lawyer.
Maybe I'm wrong.
MR.
NORD:
No, I
don't have that classification.
Thank you.
JUDGE YOUNG:
Okay.
Please, if you would
-- actually, let me just back up here.
Did you follow what I was saying before about the need to identify one person who would be the lead lawyer or representative?
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MR. NORD: Yes, and that will be myself as 2
far as being the lead representative for the Town of 3
Duxbury.
4 JUDGE YOUNG:
Okay.
So that's not only 5
for our purposes but for all other parties' purposes.
6 Whenever there's something that needs to be done by a 7
certain
- time, service on that lead lawyer or 8
representative or notice from that lead lawyer or 9
representative will be what we're going to be looking 10 to.
11 And sometimes people who aren't lawyers 12 don't understand all of the legal processes, and 13 that's normal.
Feel free to ask questions.
14 One of the rules that we'll follow is that 15 the party, each party will speak through their lead 16 attorney or representative at all times, and we won't 17 have more than one speaking f or a party to avoid 18 confusion unless as I say the lead lawyer or 19 representative designates the other or for some 20 particular reason there's a need to have the other 21 person, if there is another person, speak for them.
22 One other sort of procedural matter.
23 Since the Towns of Plymouth and Duxbury --
actually 24 let me stop there f or a minute.
It sounds like 25 someone is knocking on something, tapping on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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something.
2 MS. UTTAL:
It sounds the same on our end.
3 It's maybe a pen or something.
4 JUDGE YOUNG:
Maybe it's an electrical 5
thing.
Okay.
6 All right.
Then the next procedural 7
matter, the Towns of Plymouth and Duxbury do have the 8
right to participate in this proceeding under 10 CFR 9
Section 2.315, and under that section, they have the 10 right to introduce evidence, interrogate witnesses 11 where cross examination is permitted and provide 12 advice without requiring them to take a position, file 13 proposed findings of fact and conclusions of law.
14 What would go with the right
- well, 15
- first, since you do have that right, assuming no 16 objection, we will permit the Towns of Plymouth and 17 Duxbury to participate on both admitted contentions as 18 they have given notification that they do wish to 19 participate on both of the contentions.
20 Since you do have the rights that I just 21
- listed, what would go with that would be an 22 obligation, we think, to participate in discovery and 23 disclosure of witnesses and documents, other evidence 24 as set forth in 10 CFR 2.336.
But we did want to hear 25 from each of you as to what your expectation was with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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regard to presentation of evidence and hear from all 2
parties on the issue of discovery.
3 Now, we can hold off on that until we get 4
to discussing discovery issues more generally, but I 5
did want to let you know that we want to address that 6
today.
7 Another thing that we would like the 8
parties to think about and advise us later on in the 9
conference is when do you think it would be 10 appropriate to have additional limited appearance 11 statements?
We have had one session, and I guess 12 maybe I should not assume that you want to have more, 13 but if we have more, when would be an appropriate time 14 for that?
15 We will be going over a sort of tentative 16 schedule today that's based on the model milestones 17 and the information that's been provided by the staff.
18 We have --
is someone having a fire drill?
19 MR.
NORD:
-- was just going off.
Sorry 20 about that.
21 JUDGE YOUNG:
Oh, okay.
Let's see.
Where 22 was I?
23 PARTICIPANTS:
Milestones.
24 JUDGE YOUNG:
Right.
We have made a 25 tentative schedule that we want to discuss with you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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today based on the model milestones.
We assume that 2
all parties have familiarized themselves with the 3
model milestones, and the procedural rules that apply 4
to this proceedings.
5 Just to give you an overview, the main 6
thing, I guess, that we want to do today is go over 7
the tentative schedule with some tentative dates 8
plugged in there.
9 I know what I was going to say before, and 10 that is Entergy counsel has indicated that it might be 11 appropriate to have an earlier date for summary 12 disposition motions, which we think is a good idea.
13 If anyone disagrees with that, we want to hear your 14 positions on that.
15 The normal time that we have already 16 specified as the time period for submitting new 17 contentions would be 30 days after receipt of the new 18 information, and one of the reasons we went through 19 designating who would be lead counsel or lead 20 representative is as soon as whatever information is 21 at issue is delivered to and received by or received 22 at the office of, I should say, the lead counsel or 23 lead representative, that would be the date that that 24 30 days begins to run.
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disclosure issues that I mentioned before and also 2
that have been addressed by the parties' joint 3
stipulation and motions.
If there's any other 4
scheduling issues, for example, a site visit, to 5
address those.
6 And I guess before we go any further, let 7
me ask the parties do any of you have any additional 8
items that you'd like to add to the agenda.
9 (No response.)
10 JUDGE YOUNG:
Hearing none, I assume no 11 one has any additional items.
12 MR. LEWIS:
No, Judge.
This is David 13 Lewis.
No.
14 JUDGE YOUNG:
Before we go any further, 15 let me just ask.
I don't know if you've been 16 following the other case that Mr. Lewis is involved 17 with that Mass AG was involved with, the Vermont 18 Yankee license renewal case, but I believe they set up 19 summary disposition motion deadlines for this coming 20 June, which would be after the draft SEIS and SER have 21 been issued, but prior to the final SEIS and SER.
22 We were thinking about doing pretty much 23 the same thing.
Does any party wish to be heard on 24 that issue?
25 MR. LEWIS:
Judge Young, this is Mr.
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Lewis.
2 That was what I was thinking.
It would be 3
Entergy's proposal that summary disposition motions 4
would be due no later than 45 days before those final 5
documents, therefore any summary disposition motion on 6
Pilgrim Watch Contention 1, which is the safety issue, 7
would be due 45 days before the final SER or 45 days 8
before it looks like it's July 1st is the date for 9
that document.
10 And our proposal is on environmental 11 contentions any motion for summary disposition would 12 be due 45 days before the final SEIS is issued.
It 13 looks to me the date is 5/27.
It would be 45 days 14 before that.
15 And the rationale is once the final 16 documents are out, then you might as well go to 17 hearing.
At that point the motions for summary 18 disposition just add a month and half of delay.
So 19 the most efficient way is if there are summary 20 disposition motions due in before those final 21 documents.
22 That's our proposal.
23 JUDGE YOUNG:
I guess when we were 24 thinking about it, the one way that we were thinking 25 differently would be --
and I guess it's primarily NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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because even once the draft documents are out, we 2
don't know for sure exactly when the final documents 3
are going to be out.
4 And as matter of fact, let me sort of 5
backtrack here.
In coming up with a tentative 6
schedule, looking at the model milestones and then 7
looking at the procedural rules, we didn't really 8
intend to go in great detail into this.
9 But in going through that, I realized that 10 there were some places where procedural rules and 11 model milestones might not work with each other.
For 12
- example, I believe milestones require that a hearing 13 start, let's see, 175 days after issuance of the SER 14 and NEPA document, and then 20 days before that would 15 be the written direct testimony.
16
- However, in the rule, there's a 20-day 17 time period after submission of the direct testimony 18 for submitting rebuttal testimony, and there may be a 19 time for replies.
In any event, that would obviously 20 not work very well because 20 days for rebuttal 21 testimony would put you on the very first day of the 22 hearing, and it wouldn't give any of the parties any 23 time to read that, let alone the Judges, as Judge 24 Ambramson has just said.
25 So what we've done is we've tried to go NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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through and take into account the milestones, relevant 2
procedural rules, and come up with something that 3
seems to us to take into account all of the different 4
things that might occur.
5 We're going to go through it in a little 6
while. What we realized when we did this is that even 7
though it seems like everything is a bit off into the 8
future, that we really will have some party or the 9
judges will be doing something most every month, if 10 not every month, between now and the end of this 11 proceeding.
12 So with that said, and the revision to 13 what Mr. Lewis said of setting the deadline for 14 summary disposition motions starting from the issuance 15 of the draft documents rather than counting back from 16 the issuance of the final documents, does any other 17 part have anything that you'd like to say in agreement 18 or disagreement about the idea for doing summary 19 disposition motions earlier?
20 MS. BARTLETT:
Yes, Judge Young, I do.
21 this is Molly Bartlett, Pilgrim Watch.
22 You have to forgive me because I'm in a 23 little bit of a muddle over all of these dates. I've 24 started kind of going around in circles.
That is to 25 say some of them seem to be inconsistent.
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But if you could possibly go through your 2
tentative schedule before addressing this because I 3
can't quite see where everything is landing the way it 4
has been described.
5 JUDGE YOUNG:
Okay.
6 MS.
HOLLIS:
- And, Your Honor, this is 7
Sheila Hollis for Plymouth, and it would be helpful, 8
too, Your Honor, if you could just provide -- shed a 9
little light on the motion for summary disposition and 10 what would be subject to the summary disposition 11 motions, what subjects would be covered.
Is it the 12 two contentions that have been admitted?
13 JUDGE YOUNG:
Right.
14 MS.
HOLLIS:
Okay.
15 JUDGE YOUNG:
Right.
Yes, and before I go 16 through the schedule, does anybody else want to be 17 heard just on the general idea of doing summary 18 disposition motions earlier than the model milestones?
19 MS.
BARTLETT:
This is Molly Bartlett 20 again.
21 Just to finish the thought that I was 22 trying to express, I was going through these model 23 milestones assuming that they were referring to the 24 final SER an final EIS.
25 JUDGE YOUNG:
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same thing.
2 MS.
BARTLETT:
Okay, all right.
3 JUDGE ABRAMSON:
This is Judge Abramson.
4 Let me just say with respect to summary 5
disposition motions -- can you all hear me all right?
6 MS. UTTAL:
It sounds like an Edward Munch 7
painting come to life scream.
8 JUDGE ABRAMSON:
Ut-oh, I don't know if 9
that's good or bad.
10 (Laughter.)
11 JUDGE ABRAMSON:
With respect to summary 12 disposition, if you really think about this, what 13 you've got on the table in front of us now are two 14 contentions that are in many ways amenable to a cure, 15 and what we've often seen in proceedings like this is 16 that the applicant will come in with some sort of a 17 cure, and having cured the alleged fault, move for 18 summary disposition, and that could happen well before 19 even the drafts are out, we don't mean to preclude 20 that possibility by setting a deadline for the summary 21 disposition motions.
22 Now, once there is a cure, even if summary 23 disposition is granted, what can also happen at that 24 point is that the material that effectuates the cure 25 now is new material and can be the subject of an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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amended or a new contention.
2 So there's a very fluid process, and when 3
we talk about setting a
deadline for summary 4
disposition, we're really trying to get the last 5
summary disposition motions out of the way enough in 6
advance of a hearing so that it doesn't get in the way 7
of our review for the hearing.
8 MS.
UTTAL:
Judge Abramson, this is Susan 9
Uttal.
10 What about if the opposition, if summary 11 disposition is not granted and something comes out in 12 the final papers that would make a summary disposition 13 more viable?
14 JUDGE ABRAMSON:
The same thing, I think.
15 JUDGE YOUNG:
Yes, this is Judge Young 16 again.
17 Also, I agree.
I think the idea of having 18 the final deadline for summary disposition motions, 19 not precluding motions earlier, but precluding motions 20 later, is that if you wait until after the final 21 documents are issued, then you're really making it 22 very difficult, if not impossible, for the parties and 23 the Board to prepare adequately for a hearing through 24 the submission of written testimony, rebuttal 25 testimony, reading that, becoming familiar with it, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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putting a deadline in there for filing questions for 2
us to ask, for filing any request to cross examine.
3 So I think that the way we were thinking 4
about it was that it would be a final deadline for any 5
summary disposition motions, and those would be on any 6
admitted contention to date.
If any new information 7
of any sort came in, then that would start a 30-day 8
time period running for anyone to file any new 9
contentions.
Then there would be a response time and 10 a reply time, and there might be argument on whether 11 it's new or late filed or so forth, but if another 12 contention is
- admitted, then anything that was 13 admitted prior to the summary disposition motion 14 deadline -- and we're thinking in terms of one rather 15 than more than one -- then those could be subject to 16 the same type of motion.
17 MS.
HOLLIS:
Your Honor, it's Sheila 18 Hollis again, and with respect to the late contentions 19 that may be submitted, would these late contentions 20 have to be related to existing contentions or would 21 they be entirely new, separate, and apart as things 22 arise in the hearing?
23 JUDGE YOUNG:
They could be on anything.
24 It would not be limited to the ones that are currently 25 before us.
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I think another example of something 2
besides the draft documents that come out that 3
sometimes prompts a new contention would be RAI 4
responses.
Now, there is case law that says that you 5
can't rely on RAIs.
That's request for additional 6
information.
Excuse me.
That's an acronym there.
7 That a party cannot rely on RAIs to 8
support a contention, but if there's an RAI response 9
that provides new information, then that might be the 10 subject of a new contention, and then the parties 11 would argue over whether it's really new; if it's not 12 really new, is it timely, et cetera, et cetera.
13 So there's that standing 30-day time 14 period for that.
We're going to go through, as we go 15 through the tentative deadlines.
I think the general 16 approach to contentions would be that there would be 17 a
two to three day period after the original 18 contention for the responses, and then maybe a week 19 after that for replies, and then we would try to get 20 our ruling done within a month or so after that.
21 JUDGE ABRAMSON:
If I may, Judge Abramson 22 again.
23 Just for clarity for the intervenors and 24 the two towns, the way the process works is you're 25 expected at this point to have submitted all of your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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arguments based on the information you have, and so 2
you're allowed as new information comes in to 3
challenge whether something in that new information 4
leads to a flaw in the license application.
5 But only the new information.
So--
6 MS.
HOLLIS:
Does it have to be new and 7
significant?
8 JUDGE ABRAMSON:
Yes, of course, it has to 9
be significant.
Otherwise it's not significant.
10 MS.
HOLLIS:
Okay.
11 JUDGE ABRAMSON:
And you can read all 12 about that in the case law, but the point we're trying 13 to make here is that what we're thinking, what we're 14 going to establish is a 30-day window during which if 15 there is a challenge based on new and significant 16 information, we will find it timely, and we will be 17 focusing on whether or not it is new and significant.
18 MS.
HOLLIS:
Thank you.
19 Sheila Hollis.
Sorry.
I didn't identify 20 myself 21 JUDGE YOUNG:
Anything else on summary 22 disposition generally before we go into talking about 23 some actual tentative dates to start us moving?
24 MS.
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Molly Bartlett again.
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to me once you run through the dates.
I'm still 2
having trouble grappling with 12105 versus the model 3
milestones and all of those dates in between.
4 JUDGE YOUNG:
Okay.
5 MS.
BARTLETT:
So feel free.
6 JUDGE YOUNG:
Okay.
7 JUDGE ABRAMSON:
Just bear in mind that 8
the model milestones are just that.
They're models.
9 MS.
BARTLETT:
Yes.
10 JUDGE YOUNG:
I'm going to start on this 11 tentative schedule in just a moment.
There's just a 12 couple of other things I wanted to note first.
13 We assume that this is not the case, given 14
-- well, we assume that this is not the case that any 15 party would want to do a hearing on the safety 16 contentions earlier than the final SER.
That is an 17 option, I think, under the model milestones, but is 18 any party interested in that or do you think that 19 would be appropriate?
20 (No response.)
21 JUDGE YOUNG:
Hearing no response, we're 22 assuming that also, and we have not built that into 23 the schedule.
24
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counsel or representative hello?
Do we have
.2 everyone?
3 MR. LEWIS: Judge, this is Mr. Lewis. I'm 4
still here.
5 MS. HOLLIS:
Sheila Hollis here.
6 MS. BARTLETT: Molly Bartlett.
7 MR. NORD:
Still here.
8 JUDGE YOUNG:
Court reporter?
Court 9
reporter?
10 THE REPORTER:
You've got me.
11 JUDGE YOUNG:
Okay. Great.
12 The other thing that we wanted to indicate 13 is that we want the staff to update us on the first of 14 each month as to any anticipated changes in the 15 delivery dates of the draft and final documents.
16 Right now everyone has been notified of the dates for 17 those, and we're going to work off those in our 18 tentative schedule.
19 If they should change so that they move 20 these things forward, obviously make them later than 21 they would go forward by day for day unless there's 22 something that would move that a little further to 23 account for some holiday or whatever.
24 MR. LEWIS:
Judge Young?
25 JUDGE YOUNG:
Yes.
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MR.
LEWIS:
This is Mr. Lewis.
2 May I make a clarification just for the 3
benefit of the parties and interested states?
4 The initial safety evaluation report that 5
is issued and is scheduled for March
- 1st, my 6
understanding is it's not a draft.
It's the safety 7
evaluation.
It's the one that has open items on 8
certain issues.
9 JUDGE YOUNG:
Okay.
10 MR.
LEWIS:
Whatever issue is addressed 11 without an open item in that FTR is my understanding 12 that is the final deposition on that issue.
13 MS.
UTTAL:
This is Susan Uttal.
14 That's correct, Your Honor.
15 JUDGE ABRAMSON:
Do I understand correctly 16 then from the Applicant and staff that if the issues 17 that are subject to the contention are addressed in 18 those without open items, that that would be the end 19 of it, that it won't be modified going into the final?
20 JUDGE YOUNG:
And let me add a question to 21 that.
Obviously the most important thing for our 22 purposes at this point --
it might become broader 23 later --
is on the safety issue of the underground 24 pipes and tanks that we've admitted in Contention 1, 25 does the staff anticipate that that will be part of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the March 1st SER or the July 1st?
2 MS.
UTTAL:
Well, it will be in both, but 3
it could be that there are open items March ist.
4 JUDGE ABRAMSON:
That's the point.
5 JUDGE YOUNG:
My question is will there be 6
any open items left after March 1st.
7 MS.
UTTAL:
It's likely, but I don't know 8
for sure.
9 JUDGE YOUNG:
Do you want to take a 10 minute?
11 THE REPORTER:
Will people identify 12 themselves?
13 JUDGE YOUNG:
That was Susan Uttal, and 14 this is Judge Young and Judge Abramson also spoke for 15 just a minute.
16
- Well, I think we need to know that.
I 17 think that's fairly significant in terms of the 18 schedule.
So if you do have a predicted date on when 19 that subject is expected to be complete without any 20 open items, we would like for you to notify us as soon 21 as possible.
22 MS.
UTTAL:
Well, as of now, it will be 23 the July date.
If something changes, I'll let you 24 know.
25 JUDGE YOUNG:
Okay.
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MR. LEWIS:
And Judge Young, this is Mr.
2 Lewis.
3 I wasn't suggesting that we should start 4
the hearing after that initial SER.
A lot of times 5
you still wait for the final SER to come out simply 6
because the staff reviewers are working on multiple 7
issues, and it's generally the preference to allow 8
those reviewers to finish their work before you 9
require them to go to hearing, and they may be working 10 on other issues.
11 1 was simply pointing out though that that 12 initial SER isn't a draft.
13 JUDGE YOUNG: Consider our use of the word 14 "draft" sort of shorthand, incomplete, unfinished, 15 whatever you want to call it.
16 Anything else before we move into talking 17-about the actual schedule or the actual tentative 18 schedule? Pardon me.
19 (No response.)
20 JUDGE YOUNG:
Okay.
There's several 21 things that we have not included in this, and we will 22 want you to address.
So we'll go back up and talk 23 about these in a minute, and that is the site visit, 24 if any, staff declaration of position on contentions, 25 which I think was done in the Vermont Yankee case, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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which might be helpful to set a deadline for that, and 2
then also a deadline for a proposed protective order 3
and nondisclosure agreement regarding any privileged 4
issues in your disclosures.
5 If you haven't looked at the Vermont 6
Yankee order that was issued Friday, they set a 7
deadline for the submission of an agreed proposed 8
protective order and nondisclosure agreement, and then 9
if you can't agree, deadlines for submission of 10 alternate ones, and so forth.
11 We haven't addressed those.
We'll come 12 back to them, but just moving into what we're thinking 13 here in terms of tentative dates, based on the draft 14 SEIS being issued on December
- 8th, we would 15 tentatively set the deadline for new contentions on it 16 for January 8th, responses on January 22nd, replies on 17 January 29th, and then we would try to get our ruling 18 done within the next month.
19 The deadline to adopt any admitted 20 contention would be ten days after the ruling.
A 21 similar schedule, and I've tried to make these dates 22 fall not on weekends, the incomplete SER, the date 23 that we've been given is March 1st.
Any new 24 contentions based on it would be due April 2nd, 25 responses April 16th, replies April 23rd, a ruling NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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within the next month or so, the adoption deadline ten 2
days after the ruling.
3 Then to sort of take into account those 4
two sets of dates, the motion for summary disposition 5
deadline would be June 11th, and that would be on all 6
issues, on both contentions that have been admitted 7
and any others that may have been admitted to that 8
point.
9 Responses on June 29th, rulings a month 10 after that, and then that would take us to the 11 projected date for the final SER, which is July 1st.
12 Then any new contentions based on the 13 final SER would be July 31st, responses August 6th, 14 replies August 13th, the ruling within the next month 15 after that, month or so.
The final SEIS, July 27th.
16 New contentions, August 27th, responses September 17 10th, replies September 7th, a ruling within the next 18 month or so after that.
19 Final witness list, and obviously you're 20 going to be updating each other monthly, assuming we 21 approve your proposed stipulation and motion, and we 22 don't have any problem doing that.
- However, I think 23 it is a good idea to make those disclosures go back to 24 the 14-day required period in the rule after the 25 issuance of the final document and then have the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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actual final witness list be the end of October, 2
October 30th, unless for unavoidable reasons there are 3
supplementary responses that are filed after that 4
date.
5
- Now, the way we look at the duty to 6
supplement your disclosures is that that would 7
continue through the hearing until the record is 8
closed.
So that if any party learned of new 9
information that would have been disclosed earlier but 10 for the fact that you didn't know about it, you would 11 disclose that up until the record is closed, and if 12 any disclosure is made that would warrant calling a 13 new witness because it was unavoidable, because you 14 didn't know about the need for it earlier, and none of 15 your witnesses that you've listed can address that, 16 then that final date could be moved forward with 17 regard to that one witness or any that are necessary 18 to deal with any such information.
19 We don't expect that that kind of thing 20 would happen, but that would be the sort of safety 21 valve for that.
22 So after the final witness list on October 23
- 30th, then we were thinking of November 12th for 24 requests under 10 CFR 2.310(d), to address any part of 25 the hearing under Subpart G based on disclosure of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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524 1
eyewitness and/or issues of motive or intent, anything 2
that arose as a result of receiving those witness 3
lists.
4 Then December
- 3rd, 2007, for the 5
simultaneous filing of statements of position, written 6
direct testimony, and exhibits.
7 December 17th for simultaneous filing of 8
rebuttal statements, testimony and exhibits.
9 January 7th, 2008 for proposed questions 10 for the Judges to pose to witnesses under 10 CFR 11 2.1207.
12 On the same date, January 7th, motions to 13 allow cross examination under 10 CFR 2.1204, including 14 a cross examination plan as set out in that rule.
15 Any of these obviously can come in 16 earlier, but we're thinking about these as tentative 17 filing deadlines.
18 The same date, January 7th for any motions 19 in limine.
That's l-i-m-i-n-e, and Mr. Nord's motion 20 to exclude some evidence because it's not relevant or 21 shouldn't come in under whatever theory the party 22 might have based generally on the rules of evidence.
23 We don't follow the rules of evidence 24 formally, but that would be a deadline for those types 25 of motions.
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January 14th would be the deadline for 2
responses to any motions that were filed on January 3
7th or any proposed questions, et cetera.
4 We would try to get our ruling on those 5
out by early February.
I've got February 5th down 6
here tentatively.
7 Under the model milestones, we would have 8
been January 18th for the hearing, and some of these 9
other deadlines would have been later.
What we've 10 done is we've moved some of the other deadlines 11 backwards earlier, and we would try to start the 12 hearing on February 26th to give everyone time to 13 prepare, and as a weather fall-back because we were, 14 frankly, a little bit concerned about going up to 15 Plymouth in the middle of the winter, notwithstanding 16 that last night on TV the pilgrims were able to 17 weather the winter.
I think some of them died, but we 18 were --
19 JUDGE ABRAMSON:
We have the benefit of a 20 little better technology.
21 JUDGE YOUNG:
We do.
22 MS.
BARTLETT:
It's not so bad here.
23 MS.
HOLLIS:
We're hoping to give you a 24 little bit better reception than perhaps the poor 25 pilgrims experienced on their trip over.
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JUDGE YOUNG:
This is Judge Young again.
2 I don't know if anyone knows what I'm 3
talking about.
History Channel had a thing on about 4
what it was really like when the pilgrims came to 5
Plymouth, and actually it made me sort of nostalgic to 6
go up there again.
7 But we were a bit concerned about the 8
weather.
So we were thinking a tentative date to 9
start the hearing would be February 26th, but we 10 should probably put in a weather fall-back based on 11 prior experience going to cold parts of the country in 12 the winter, and so we were thinking March 11th for 13 that.
14 And then following the hearing there would 15 be deadlines for proposed findings of fact and 16 conclusions of law, responses, and so forth.
17 I have a few other things just to go over.
18
- One, discovery
- issues, motions, possibility of 19 settlement, and so forth, but having gone through that 20 list of tentative dates, does that change or, Ms.
21
- Bartlett, do you want to address the summary 22 disposition issue at this point based on that?
23 And we'd like to give all of you an 24 opportunity to give any responses or say anything 25 you'd like about this tentative schedule that we've NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVE., N.W.
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sort of 2
JUDGE ABRAMSON:
Conjured.
3 JUDGE YOUNG:
conjured here.
.4 Ms. Bartlett, why don't you go f irst if 5
you have anything?
6 MS. BARTLETT: Well, so I'm understanding 7
you have June 11th as the - -
and this is where you can 8
see my confusion --
this is the last date for the --
9 JUDGE YOUNG:
The last date for motions 10 for summary disposition, and the reason for that is 11 because that really gets us --
it's a little bit 12 sooner than Mr. Lewis had suggested, and obviously it 13 would be Mr. Lewis --
14 MR. LEWIS: Actually Judge, it'Is about the i5 same because if you counted back 45 days it would have 16 been June 15th.
So it's very close.
17 JUDGE YOUNG:
Right.
It's close.
And 18 this is really for our benefit primarily I guess I'd 19 have to say.
Usually it's only the applicant, 20 sometimes the staff who would be filing such motions.
21 What it would require of the intervenors for the two 22 towns would be to file responses and affidavits 23 responding to the assertions of fact, and then we 24 would rule on it following the general standard for 25 summary disposition motions.
We'd construe it in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 528 favor of the opponent of the motion.
And then once those rulings aremade, that have been set as a deadline, then we would go to hearing on anything that we did not grant summary judgment on, and we wouldn't slow down the process for anyone, not just us, but for the parties to prepare for the hearing, which can be interrupted and made much more difficult if you have motions for summary disposition coming much closer to the hearing date.
MS.
BARTLETT:
This is Molly Bartlett again.
So instead of the two 1205 things 45 days before the commencement of the hearing, we're now sort of six months?
JUDGE YOUNG:
Quite a bit, yes.
MS.
BARTLETT:
Yeah.
JUDGE YOUNG:
Yeah.
MS.
BARTLETT:
- Well, you've tried to explain.
I have to mull it over, but I can't --
JUDGE YOUNG:
I think it benefits --
MS. BARTLETT:
-- understand why the rules are the way they are.
JUDGE ABRAMSON:
Ms. Bartlett, generally this works it for your benefit.
JUDGE YOUNG:
Right.
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JUDGE ABRAMSON:
It would be unusual for 2
an intervenor to make a
motion for summary 3
disposition.
4 JUDGE YOUNG:
Right.
It's for your 5
benefit and it's for our benefit, and since Mr. Lewis 6
basically agrees to that, it seems reasonable to us.
7 MS.
BARTLETT:
Yes.
8 JUDGE YOUNG:
So unless there's some 9
strong expression of objection to that, then we'd 10 probably go in that direction.
11 MS.
UTTAL:
Judge.
12 JUDGE YOUNG:
Yes.
13 MS.
UTTAL:
I may have some problems with 14 this.
Can you give me a few minutes just to talk to 15 the staff, please?
16 JUDGE YOUNG:
All right.
Keep in mind 17 that we only have the conference line for a certain 18 amount of time, but let's give you three minutes right 19 now.
20 MS.
UTTAL:
Thank you.
21 JUDGE YOUNG:
We'll just put you on mute.
22 (Pause in proceedings.)
23 JUDGE YOUNG:
Okay.
Is the staff ready?
24 MS.
UTTAL:
- Yes, Judge.
I'm a little 25 worried about having the summary judgment motions so NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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early.
If the staff has not completed their analysis 2
or there are some differences between the draft and 3
the final, the staff may not be ready at that point to 4
make a summary judgment motion, may have to make it 5
after the final documents are filed.
So we'd like to 6
be able to have the opportunity after the documents 7
are filed to make any summary judgment motion.
8 JUDGE YOUNG:
We'll take your argument 9
under consideration.
- However, I
think given the 10 importance of the model milestones to the Commission, 11 I think we're going to have to probably give that 12 precedence, but we will take your arguments under 13 consideration.
14 MS.
UTTAL:
Okay, and one more thing.
I 15 have a problem with one date on this tentative 16 schedule, and that's for the draft SER and the late 17 contentions that may be filed after that for April 18 2nd.
I'm scheduled to be away until April 9th.
I 19 won't be back until April 10th, which since I'm the 20 lead attorney and the other attorneys that I have with 21 me here today are just basically temporary because 22 they're on a Loss Program (phonetic) and they rotate 23 between the different sections.
Basically it all 24 relies on me.
25 So that I won't be back until the 9th --
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until the 10th, and I won't have sufficient time to do 2
a response by the 16th.
3 JUDGE YOUNG:
What I think would be the 4
best thing would be to go ahead and have your 5
assistant counsel start drawing up the document.
As 6
we said, this is a tentative schedule.
If it turns 7
out that you still don't have time within the six days 8
or seven days between the -- six days between the 10th 9
and the 16th to edit the proposed draft response that 10 your assistant counsel produces in your absence, then 11 we can deal with that,b ut we want to try to avoid 12 doing things like that if possible, especially where 13 you do have another lawyer who can do draft documents 14 like that.
15 Anything else?
16 MS.
UTTAL:
Okay.
That's fine.
Thank 17 you, Judge.
18 JUDGE YOUNG:
Any other parties have 19 anything to add about the tentative schedule or any 20 things that we may have left out of it?
21 MR.
LEWIS:
Judge Young, this is David 22 Lewis.
23 Two observations.
One is the period for 24 filing new contentions after the final SER and final 25
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those final documents.
Typically if there are any, 2
it's usually based on the draft EIS or on the initial 3
SER with open items.
Usually that shows most of the 4
NRC staff's position.
5 JUDGE YOUNG:
Right.
It would only be the 6
things that were open and are no longer open and we 7
presume that something new has come out in the 8
interim.
9 MR.
LEWIS:
That's
- right, and my 10 suggestion then is because it is unusual and fairly 11 rare for new contentions to be proffered at that late 12 date, that perhaps the final witness list and the 13 subsequent milestones should be moved up, and if there 14 are new contentions filed they be handled in parallel 15 So I would suggest that perhaps all of the 16 milestones starting with the final witness list 17 should, you know, be moved up a month or six weeks.
18 JUDGE ABRAMSON:
Mr. Lewis, this is Judge 19 Abramson.
20 This is a
tentative schedule.
It 21 certainly will be modified as events take their normal 22
- course, and if in
- fact, there are no other 23 contentions, then this schedule should and will be 24 modified.
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comment that for any party who has difficulty meeting 2
a deadline when the events that have triggered those 3
deadlines have taken place, we will not look kindly on 4
hearing the day before the deadline or the day of the 5
deadline that a party can't meet it.
6 So, Ms.
- Uttal, if, in
- fact, you find 7
yourself in a position unable to meet a deadline, 8
please give us four or five business days' notice.
9 MS. UTTAL:
Certainly, Judge.
10 MR.
LEWIS:
This is Davis Lewis.
That 11 works too.
If there are no motions for new 12 contentions and the schedule be adjusted, then it 13 would save us waiting just another month for not much 14 reason.
15 My other observation was on the November 16 12th deadline for requesting to use subpart G
17 procedures.
Is it Entergy's position that the 18 election of subpart G procedures was required to be 19 done at the outset of the proceeding?
And I
20 understand different Boards have ruled differently in 21 other proceedings, but it's a
very considerable 22 disruption to switch procedures at a very late date.
23 And so I would just want to preserve our objection.
24 I don't want to --
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ability to object later on.
2 JUDGE YOUNG:
Let me just address a couple 3
of the things that you have raised here.
First of 4
all, on the last issue that you've raised, frankly, I 5
was assuming the same thing and then I became aware 6
that the Vermont Yankee Board was treating it 7
differently.
8 Now my understanding of that Board's 9
treatment of the issue and what made me include this 10 on the tentative list is that while the subpart G, the 11 request to do the subpart G procedures is actually to 12 be made or if you want anything other than the subpart 13 L, for a proceeding like this, that would need to be 14 made in the petition.
15
- However, as I understand, the Vermont 16 Yankee Board's reasoning and this is not based on 17 talking to anyone.
This is based on my own tentative 18 analysis, and that is if the general part of it
- goes, 19 the requirements goes, that you requested, has to be 20 done with the petition.
But the part that relates to 21 an eye witness couldn't be done at that point.
22 And therefore, if a witness gets named in 23 the final witness list that hasn't been named before 24 that, that a party has reason to believe with regard 25 to that witness alone or those witnesses that are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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named only at that point, that they can make a request 2
with regard to that contention only.
3 I think there is in the language of the 4
rule, it says that, "where the presiding officer finds 5
that resolution of the contention or contested matter 6
necessitates-resolution of issues of material facto, 7
etcetera.
8 So I think that that was the reasoning for 9
that. We would certainly welcome briefing on that and 10 if you want to submit a brief by next week with 10 11 pages maximum and response the week after, you are 12 welcome to do that.
13 That's in there.
I included that in our 14 tentative schedule in the event that that reading of 15 the rule is appropriate and since it does refer to eye 16 witnesses, it seems reasonable to assume that that 17 narrow aspect of requesting subpart G procedures not 18 for the whole proceeding but only for one part of it 19 might be appropriate. But if you want to file a brief 20 on that, you can do that let's say December 1st --
let 21 me see.
I'll get my calendar out.
22 How about December --
well, could you get 23 it by a week from today? About December 29th?
It's 24 just one small issue.
I mean November 29th. That's 25 a week from Wednesday. December 1st?
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MR. LEWIS:
If I'm silent, does it get 2
longer?
3 (Laughter.)
4 MR. LEWIS: I can live with December 1st, 5
Judge Young.
6 JUDGE YOUNG: December 1st. And then one 7
week after that, December 8 for responses. Okay, now 8
as to your other comments, obviously, there's a 9
possibility of there being new contentions filed.
10 Since there's that possibility, pardon my voice, I 11 don't think it would be appropriate to have these 12 other deadlines run parallel to those because the 13 final witness list and the filing of statements of 14 position, written direct testimony and so forth, if 15 there are new contentions admitted, you wouldn't be 16 able to have those deadlines during that same period 17 of time.
18 Now you could separate out the issues, but 19 since we're dealing with a fairly complex, tentative 20 schedule here anyway, I'm personally a little hesitant 21 to make it even more complex by having different 22 deadlines for different issues that would be virtually 23 impossible for everyone to keep up with very 24 reasonably.
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would be, as Judge Abramson suggested, if it turns out 2
there are no new contentions filed, at that point 3
either the Board on its own motion or on the motion of 4
a party, could move forward some of the other 5
deadlines, if it would help people to prepare more.
6 I think we're probably still of the 7
opinion that beginning a hearing right in the middle 8
of winter might --
at least not in the holidays --
9 might not be real appropriate, but certainly we'd be 10 open to motions to change those things.
11 And on the other side of that, if the 12 Staff finds out that these documents that either the 13 draft ones or the final ones are going to be issued 14 later and notify us of that and it'Is possible, then we 15 would move things forward. We're just going to have 16 to try to be reasonable and work with things as they 17 come.
18 Any other responses to the tentative 19 schedule that I've set out?
20 What about a site visit? Do the parties 21 think one would be appropriate?
And if so, is that 22 something that could be done early on in the process?
23 MR. LEWIS:
Judge Young, this is David 24 Lewis.
If the Board would like a site visit, we'd be 25 happy to make the arrangements.
It may be something NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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that --
it's already late in the year, so you may want 2
to do it in the spring.
3 MS.
BARTLETT:
Judge Young, it's Molly 4
Bartlett.
I'm just looking through the dates.
I 5
think we would want a site visit, but I'm trying to 6
figure out where that would fall. This would be after 7
the draft documents are in?
8 JUDGE YOUNG:
I think what we're thinking 9
is if you all can come up with a general time that you 10 all agree on and we'll try to work with you to do that 11 as soon as close to your proposed date as possible and 12 the only reason I suggested that be done sooner is 13 because there's not as much happening.
Although if 14 there are new contentions filed starting in January, 15 there might be some things happening soon, but we are 16 getting close to winter, so the spring might be better 17 as Mr. Lewis said.
18 That's really sort of --
I think we're 19 viewing it is if parties think that would be a good 20 thing to do, we're more or less flexible on that 21 issue.
22 JUDGE ABRAMSON:
This is Judge Abramson.
23 Let me just say that the purpose of a site visit from 24 my perspective would be to shed light on the issues in 25 front of us.
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of us concern underground tanks and pipes and the 2
potential pathways to the town and they can concern 3
the emergency evacuation procedures and the weather 4
and how the SAMA analysis would be done.
5 So if there is.-some value to us in making 6
a site visit to get a better grasp of that 7
information, fine. Otherwise, we're wasting our time.
8 I think that we need to talk about it among ourselves 9
and maybe the parties need to think about what value 10 there would be.
Of course, any site visits would be -
11
- we would expect all of the parties to be present.
12 JUDGE YOUNG:
Think about that, also think 13 about the question I raised about limited appearance 14 sessions.
If any parties are going to request or 15 think that it would be appropriate to allow further 16 limited appearance statements.
17 The other two things, we'd like to get the 18 Staff's position.
I don't think you've indicated your 19 position at this point on the contentions.
When do 20 you think the Staff could let us know what your 21 position is on the --
the two contentions we have 22 before us at the moment, or right now?
23 MS. UTTAL:
I don't understand what you're
.24 after, Judge Young.
This is Susan Uttal.
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in our pleadings.
Do you need something more than 2
that?
3 JUDGE YOUNG:
It may be just filing that 4
with your prefiled direct testimony is enough.
I 5
think I.-got that because the Vermont Yankee Board 6
either did or was considering requiring you to state 7
your position on the contentions earlier.
And I think 8
the thinking was that if in doing your analysis you 9
decided that you might support part of the contention 10 or oppose part of it, etcetera, that it would be good 11 to have that for all of us to know that earlier rather 12 than later.
13 So you know, if you were to change your 14 position, that would be helpful to know earlier and 15 you might include that in your disclosure, your 16 monthly disclosures.
17 MS.
UTTAL:
Okay, we'll think about the 18 best way to do it and if we do have a change of 19 position, we'll try to let you know at the earliest 20 possible date.
21 JUDGE YOUNG:
Okay.
And then on any 22 proposed protective order nondisclosure agreement, do 23 the parties anticipate that this will be something 24 that will arise in this proceeding or not?
25 (No response.)
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JUDGE YOUNG:
Can you tell and do we need 2
to set a deadline for it?
3 MS.
UTTAL:
From the Staff's point of 4
view, I don't think there are any safeguards involved 5
here.
I don't know.
I think proprietary information 6
or --
Mr.
Lewis?
7 MR. LEWIS: Entergy's proposal was that if 8
the other parties were interested in any of the 9
documents that we have logged as protective we would 10 be glad to discuss with them a
confidentiality 11 agreement.
And if we could work out the terms, then 12 we can make them available.
13 I promise you they're remarkably boring 14 documents, but --
15 JUDGE YOUNG:
Why don't you just keep us 16 posted and all of you keep in mind that once you 17 receive these disclosures and privilege logs and so 18 forth, that you need to go ahead and act on those as 19 soon as possible so that if this becomes something 20 that would be appropriate, that you do it sooner 21 rather than later.
Normally, I can't think of many, 22 if any, instances where the parties are not able to 23 work this out among themselves, but I did want to just 24 mention it.
25 All right, let's see.
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things.
Note that there is a limitation on schedule 2
changes under 2.334.
We have to make a finding of 3
good cause, whether the requesting party has exercised 4
due diligence to adhere to the schedule, whether the 5
requested change to the result of unavoidable 6
circumstances and so forth.
7 Please also keep in mind the requirement 8
with regard to motions.
Let's see.
And that is that 9
a motion under 2.323(b),
"a motion must be rejected" 10 is what the rule says "if it does not include a 11 certification by the attorney or representative.n 12 Mr. Nord, you're still with us, right?
13 Mr. Nord?
14 MR.
NORD:
Yes, ma'am.
I'm here.
15 JUDGE YOUNG:
- Okay, any motion that's 16 filed must include a certification by the attorney or 17 representative, that would be you, of the moving party 18 that the movant has made a sincere effort to contact 19 the other parties in the proceeding and resolve the 20 issues raised in the motion and that the movant's 21 efforts to resolve the issues have been unsuccessful.
22 So you need to contact each other and try 23 to work out things by agreement before making a motion 24 to us.
And you need to do that quickly so that you 25 can make your motions timely.
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Now this would also apply to any motions K
2 for extensions which as I said, there are limited 3
grounds for those, so keep those in mind.
Definitely, 4
any motions for extension have to be filed before the 5
deadline that you're asking to have extended and you 6
need to have appropriate reasons in there, unavoidable 7
circumstances and so forth.
8 So I think we would approve the joint 9
stipulation motion on discloses except that the 10 updates would go back to being either bi-weekly or we 11 could just say the first and fifteenth of every month 12 after the draft,
14 Now we --
15 MR. LEWIS:
Judge Young, did you mean the 16 initial documents or the final documents?
17 JUDGE YOUNG:
I think I meant the initial 18 documents.
19 Once you've got the initial documents 20 that, as you pointed out, pretty much defines where we 21 are except for any open items, so it might be 22 appropriate to provide more frequent updates since as 23 we're going through that tentative schedule, a lot is 24 going to start going on, once we get the draft 25 documents, so I think --
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MR. LEWIS:
I would have suggested that 2
the final documents, when you're getting ready for a 3
hearing, that you really want the updates every 14 4
days.
And in the other 5
JUDGE YOUNG: Well, if you all agree to 30 6
days up until the final documents. I don't think we 7
have a problem with that.
Does everyone agree with 8
that?
Is that I guess you do, since you --
9 actually, I should ask Plymouth and Duxbury, are you 10 going to be presenting evidence? If you are, we think 11 that you should participate in these disclosures and 12 we'll hold you to all the same requirements as other 13 parties.
14 At this point, do either of you know 15 whether you're going to be presenting any evidence or 16 whether you're just going to be I guess the only 17 remaining thing would be to submit proposed questions 18 to us to ask or request to cross examine that would 19 meet the standards of the rules and so forth.
20 Do either of you anticipate having your 21 own witnesses and submitting your own testimony?
22 MS. BARTLETT: Your Honor, at this time I 23 cannot answer that question. We have not crossed that 24 bridge yet.
25 MR. LEWIS:
Judge Young, this is Mr.
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Lewis.
I meant to come back to this issue at the 2
beginning.
I actually did not realize that with the 3
new rules, these disclosure requirements applied to 4
interested states.
The rules refer to parties, the 5
duty of parties to give other parties, to disclose 6
things to other parties.
7 As far as I know, I'm not aware of any 8
case law of this, so it's caught me a little bit by 9
surprise.
I don't believe, for example, we, have 10 provided that CDs we produced, we gave to Pilgrim 11 Watch and the NRC Staff. We didn't give them to the 12 two towns.
Duxbury at that time I don't think had 13 even provided us notice.
I wasn't aware of that.
14 JUDGE YOUNG:
Let's hear from all of you 15 on that.
I think that's a fairly significant 16 question.
In one sense, it's easier to look at it 17 from the standpoint of if either of the towns, either 18 or both of the towns decides that you're going to 19 submit evidence, then I think it would make sense for 20 you to start participating in the disclosure.
So 21 first address that, and then second, even assuming 22 that you're not planning to present evidence, do you 23 want to be included as recipients of the disclosures?
24 JUDGE ABRAMSON:
Judge Abramson, again.
25 If you think about what the regulations permit an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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interested state to do which is they're permitted to 2
submit evidence and to cross examine the witnesses, if 3
they intend to exercise either or both of those 4
rights, it would not be appropriate, it seems to me 5
for them not to have access to the information and 6
provide their information to the other players in the 7
field.
8 MR. LEWIS:
Judge Abramson, I understand 9
that and I agree.
If they're going to present a 10 witness, I think it's appropriate ahead of time to 11 disclose the witness and the bases and maybe for the 12 same reason it's also appropriate for the parties to 13 be providing disclosures to the interested states.
14 JUDGE YOUNG:
Did you have any objection 15 to doing that or had you just not thought of it?
16 MR. LEWIS:
I hadn't thought of it and I 17 hadn't read the regulations that way.
18 I'm glad to send them the same CDs.
I'M 19 sure we served, at least the town of Plymouth with a 20 copy of our pleading. I don't think again that --
we 21 served both towns with a copy of the pleadings?
22 I'll be happy to send them a copy of the 23 CDs, a set, and on a going-forward basis make sure 24 that any supplementation is provided them as well.
25 JUDGE YOUNG: It seems that that would be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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appropriate for all parties to include both towns in 2
your service list.
I have started including them in 3
our electronic service list and unless any party has 4
any strong objection to that, I think that would be an 5
appropriate thing to do.
6 And then I guess I would also like to ask 7
and this would be more directed at the towns 8
themselves, if you should decide at some point that 9
you would like to call a witness and present written 10 direct or rebuttal testimony, once you make that 11 determination or think that is likely to happen, would 12 you have any objection to starting to participate in 13 making disclosures of your own.
It would seem that 14 you would need to under basic rules of fair play.
If 15 you're going to present the evidence, you would need 16 to give disclosure on that.
17 MR.
LEWIS:
Judge Abramson, this is Mr.
18 Lewis.
If Entergy is being asked to provide the 19 disclosures to the interested states and the rules are 20 being read that
- way, I
think they have to be 21 reciprocal.
22 JUDGE YOUNG:
Do you have any problem with 23 that Ms. Hollis or Mr. Nord?
24 MR. NORD:
Duxbury doesn't have any issue 25 with that.
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MS.
BARTLETT:
Nor does Plymouth.
2 JUDGE YOUNG:
- Okay, then that resolves 3
that issue.
4 Hold on one second.
5 (Pause.)
6
- Okay, obviously, we're going to we 7
don't know whether the final dates will be the same, 8
but we're going to keep our --
in the schedule, a date 9
for the simultaneous filing of statements of position, 10 written direct testimony and exhibits and simultaneous 11 filing of rebuttal statements, testimony and exhibits, 12 followed by the proposed questions for the Judge's.
13 So we're thinking it might be appropriate 14 to set some deadline prior to that with the 15 understanding, of course, that if you should decide 16 earlier, either of the towns, if you should decide 17 earlier that you might want to call a witness, that 18 you would disclose that, but that it might also be 19 appropriate to set a deadline, telling us and the 20 other parties whether you will be calling a witness 21 and then I guess the exception to that would be 22 obviously if there are late disclosures.
I have that 23 caveat earlier.
If there are late disclosures, there 24 would be an exception to the final witness list.
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to make that deadline the deadline for final witness 2
list?
Could you live with that?
That makes sense.
3 MS.
UTTAL:
Could you reiterate the date 4
on that, Your Honor?
5 JUDGE YOUNG:
That would be October 30th.
6 MS.
UTTAL:
I think by then we would have 7
a sense of it.
Just from our standpoint, obviously, 8
our concern is resources and availability of 9
witnesses.
10 JUDGE YOUNG:
Right.
11 MS.
UTTAL:
Financial resources and the 12 physical resources of the town to participate to that 13 extent.
14 JUDGE YOUNG:
Okay, well, Mr. Nord, do you 15 think you can live with that, then?
That would be 16 October 30th?
17 MR.
NORD:
- Yes, I think that would be 18 fine.
19 JUDGE YOUNG:
Okay, very good.
Okay, I'm 20 just going through my list here again, before we come 21 to a conclusion.
22 Let's see.
I'm going to say something and 23 this is not directed at anyone in particular because 24 I haven't had this problem with any of you at all, but 25 I have with other lawyers in other cases and that is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W.
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and it's been stated by a lot of people all the way up 2
to Justice Sandra Day O'Cononr about the problems that 3
go with sort of game playing in discovery.
I'm sure 4
that none of you need to be told this, but I just want 5
to put it on the record.
Let's try to avoid any of 6
that kind of game playing, either on the sort of 7
saving your disclosures until the very last minute or 8
the dump truck idea is one of the Judges in Vermont 9
Yankee said. Just giving a party so much that it's 10 very difficult to find the kernels of relevant 11 information in that.
12 I think that if everyone can sort of 13 operate in good faith, be timely., provide information 14 as soon as possible, provide the relevant information, 15 don't withhold parts and just turn them over at the 16 last minute, I think all the lawyers anyway know about 17 the kinds of games that I'm talking about, and as I 18 said, it's probably unnecessary for me to say it, but 19 1 thought it's probably always a good thing just to be 20 cautious to say it in any event.
21 And again, there will remain a duty to 22 supplement your disclosure until the hearing is 23 concluded and the record is closed.
24 one other discovery issue, I noticed Mr.
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to allow depositions once it became obvious who the 2
main witnesses were going to be.
3 MR.
LEWIS:
No, ma'am.
4 JUDGE YOUNG:
Pardon?
5 MR.
LEWIS:
No, ma'am.
6 JUDGE YOUNG:
Didn't you do that?
I 7
thought you did.
8 MR.
LEWIS:
No, I think during the pre-9 hearing conference there was a discussion about the 10 selection of subpart G procedures.
And what I
11 suggested, rather than if there was an issue, rather 12 than going to subpart G proceedings on the eve of 13 hearing which would have then invoked disclosures and 14 these massive document searches and the whole nine 15 yards, that a much more appropriate resolution of that 16 kind of issue would be for the parties to talk and see 17 if they would voluntarily agree to depositions or 18 simply a motion to allow cross examination, that going 19 to subpart G procedures on the eve of the hearing was 20 the blunderbuss approach.
21 JUDGE YOUNG:
Actually, I think the main 22 thing there is the cross examination.
That's the main 23 aspect of it.
Pardon me if I misread you.
Obviously, 24 if all the parties want to voluntarily agree on 25 anything, we will generally go along with that.
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anything that comes up that you want our help on, if 2
any disputes arise, any challenges with regard to 3
privileges, etcetera, please bring those to our 4
attention as soon as possible.
5 Only two things remain on my list. one is 6
if at any point it looks as though there's a 7
possibility of settling any of the issues, simplifying 8
them, if at any point you think that you might benefit 9
from the appointment of a separate settlement Judge 10 who would not be communicating with us, but who would 11 be available to assist you in working out any 12 settlement of any of the issues, please let us know 13 and I will be glad to ask the Chief Judge to appoint 14 a settlement Judge.
15 Finally, Mr. Nord, I don't know if you 16 have seen the original scheduling order in this case.
17 1 think it's dated June 14th.
It has directions on 18 how to serve documents. I will try to repeat that in 19 our scheduling order which we are going to try to get 20 out by December 10th, if any of these briefs on the 21 subpart G issue pushes out a little bit, it won't be 22 long after that.
23 But in any event, basically, to summarize 24 very briefly, I think we all have --
the one person 25 who's email came back to me was the fire chief.
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you can give us his correct email, I think we'll all 2
have each other's email addresses and if you have 3
something to file, file it electronically through 4
email and by the other methods set out in our earlier 5
order and I'll repeat in this order and that's 6
basically by mail. It tells you how to do it, if you 7
want to do it by fax or by overnight or hand delivery.
8 There are different addresses here that apply for 9
regular mail and overnight or hand delivery.
Our 10 regular mail, the address is Washington, but we're 11 actually located in Rockville, Maryland, so the 12 overnight or hand delivery has to be to our Rockville 13 address which will be listed.
14 You can also go in ADAMS.
Mr. Nord, if 15 you haven't learned how to use NRC's ADAMS, I 16 recommend that you do because all the documents in 17 this proceeding will be put into the ADAMs system and 18 you can go there and look at documents in this or any 19 other proceedings 20 MR. NORD:
I wasn't aware of that, but I 21 will do that and I just looked at some of my papers 22 and I didn't get that June notice.
23 JUDGE YOUNG:
You wouldn't have at that 24 point, right.
25 MR. NORD:
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now I will certainly be able to give it to you at this 2
time or how would you like it?
3 JUDGE YOUNG:
Why don't you give us all --
4 his email address, because it did come back when I 5
sent it.
I'm trying to remember --
go ahead..-
6 MR.
NORD:
It's nord@oid.
7 JUDGE YOUNG:
We have yours.
8 MR. NORD:
Okay.
That would be the one to 9
send it to.
10 JUDGE YOUNG:
Oh, okay, I'm sorry, excuse 11 me.
I got you mixed up.
12 So tell us your email address.
I do need 13 it.
14 MR. NORD:
For the fire chef, Kevin Nord, 15 it's nord@town.duxbury.ma.us.
16 JUDGE YOUNG:
I think we may have made a 17 mistake by putting your first name in 18 nord@town.duxbury.ma.us?
19 MR.
NORD:
That's correct, ma'am.
20 MS. UTTAL:
Judge, this is Susan Uttal, we 21 had a lot of trouble serving anybody in Duxbury.
We 22 tried a couple of addresses and it all bounced back 23 and they --
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what we're sending from the NRC, that may be bouncing 2
it back.
3 I've been serving Duxbury by fax.
4 JUDGE YOUNG:
Okay.
Well, Mr. Nord, maybe 5
you can check on that since you know we've been having 6
trouble.
Has anybody else?
7 MS.
BARTLETT:
This is Molly Bartlett.
I 8
do know that many people switched over their service 9
from Adelphia to Comcast and for some it's been a 10 black hole for email in town.
So it may have just 11 been a temporary thing.
12 JUDGE YOUNG:
Okay.
13 MS.
HOLLIS:
And Your Honor, this is 14 Sheila Hollis, There's been this Adelphia switchover 15 has caused a lot of trouble for Plymouth as well.
The 16 town manager's office, among others, hasn't been 17 getting incoming email at all.
18 JUDGE YOUNG:
- Okay, until that is 19 resolved, then there may be problems and if they come 20 back.
I think we probably have everyone's fax numbers 21 on your notices of appearance.
22 Does any party have anything else or know 23 of anything that I've overlooked?
24 All right, then that would conclude this 25 conference.
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2 3
4 5
6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the court reporter, do you need any spellings?
COURT REPORTER:
I just have a couple of questions.
One moment.
(Whereupon, at teleconference was concluded.)
2:35 p.m.,
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Name of Proceeding: Entergy Nuclear Operations Pre-Hearing Conference Docket Number:
50-2930LR Location:
(Telephone conference) were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
Charles Morrison Official Reporter Neal R. Gross & Co.,
Inc.
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