ML071090482
| ML071090482 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 04/11/2007 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-0219-LR, ASLBP 06-844-01-LR, NRC-1533, RAS 13522 | |
| Download: ML071090482 (53) | |
Text
Official Transcript of Proceedings
- NUCLEAR REGULATORY COMMISSION
Title:
Oyster Creek Nuclear Generating Station Docket Number: 50-0219-LR DOCKETED USNRC April 19, 2007 (9:03am)
Location: (conference call)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Date: Wednesday, April 11, 2007 Work Order No.: NRC-1533 Pages 32-82 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
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32 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5
6 PRE-HEARING CONFERENCE 7 ----------------------------x 8 IN THE MATTER OF:
9 AMERGEN ENERGY COMPANY, LLC : Docket No. 50-0219-LR 10 (Oyster Creek Nuclear 11 Generating Station) 12 ----------------------------x 13 Wednesday, April 11, 2007 14 3:30 p.m.
15 16 BEFORE:
17 E. ROY HAWKENS Chair 18 PAUL B. ABRAMSON Administrative Judge 19 ANTHONY J. BARATTA Administrative Judge 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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33 1 APPEARANCES:
2 On Behalf of AmerGen Energy Co., LLC:
3 ALEX POLONSKY, ESQ.
4 DONALD J. SILVERMAN, ESQ.
5 RAY KUYLER, ESQ.
6 of: Morgan, Lewis, & Bokius LLP 7 1111 Pennsylvania Avenue, N.W.
8 Washington, DC 20004 9
10 On Behalf of the Nuclear Information and 11 Resource Service:
12 RICHARD WEBSTER, ESQ.
13 Rutgers Environmental Law Clinic 14 123 Washington Street 15 Newark, NJ 07102-0394*
16 17 On Behalf of the State of New Jersey:
18 JOHN A. COVINO, ESQ.
19 Deputy Attorney General 20 Division of Law 21 Environmental Permitting and Counseling 22 Section 23 Hughes Justice Complex 24 Trenton, New Jersey 08625 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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34 1 On Behalf of the Nuclear Regulatory 2 Commission:
3 MITZI YOUNG, ESQ.
4 MARY BATY, ESQ.
5 Office of the General Counsel 6 Mail Stop - 0-15 D21 7 Washington, DC 20555 8
9 ALSO PRESENT:
10 BRAD FEWELL 11 PAUL GUNTER 12 LIBBY PERCH 13 DEBRA WOLF 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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35 1 PROCEEDINGS 2 (3:26 p.m.)
3 JUDGE HAWKENS: We're conducting a 4 conference call on Docket No. 50-0219-LR. We're 5 discussing matters relating to the final scheduling 6 order.
7 My name again is Roy Hawkens. I am 8 Chairman of this Board. I'm joined on the Board by 9 Dr. Paul Abramson and Dr. Tony Baratta. And I'm also 10 joined here in our chambers by our Law Clerk, Ms.
11 Debra Wolf and by our Administrative Assistant, Ms.
12 Libby Perch.
13 Will the Counsels who will be speaking 14 today on behalf of the parties identify themselves and 15 any persons associated with them who are the line 16 please.
17 MS. YOUNG: This is Mitzi Young for the 18 NRC staff, M-I-T-Z-I Y-O-U-N-G. Also with me is my 19 Co-Counsel, Mary Baty, B-A-T-Y.
20 MR. WEBSTER: Okay, I am Richard Webster, 21 W-E-B-S-T-E-R on behalf of the citizens groups. Paul 22 Gunter is also on the line. He is one of the clients 23 from Nuclear Information Resource Service.
24 MR. POLONSKY: This is Alex Polonsky on 25 behalf of AmerGen. My last name is spelled P-O-L-O-N-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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36 1 S-K-Y. Also on the call from AmerGen are Don 2 Silverman, Ray Kuyler. His last name is spelled K-U-3 Y-L-E-R. And our client Brad Fewell, last name 4 spelled F-E-W-E-L-L.
5 MR. COVINO: From the State of New Jersey, 6 Deputy Attorney General John Covino, C-O-V-I-N-O.
7 JUDGE HAWKENS: Thank you. Do we have 8 anybody else on the line or listening in?
9 MR. GUNTER:. Richard Webster already 10 mentioned by name, Paul Gunter, Nuclear Information 11 and Resource Service.
12 JUDGE HAWKENS: Thank you, Mr. Gunter, 13 yes.
14 In the Board's email -- or, excuse, me, our 15 order of March 30th, we indicated specific items that 16 we wanted to discuss today. And I want to go through 17 those items as they are listed in the order. And 18 following that, I want to discuss some proposed dates 19 for major events which we had circulated to the 20 parties yesterday afternoon by email.
21 And let's start off with item number one 22 from the March 30th order, which is the status of the 23 mandatory disclosure process. Are the parties 24 experiencing any difficulties or do they anticipate 25 experiencing any difficulties here?
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37 1 MR. WEBSTER: Well, Judge, I think 2 generally -- this is Richard Webster speaking here --
3 I think generally the mandatory disclosure process has 4 been going quite well. A lot of documents have been 5 exchanged so far. We anticipate that quite a few more 6 documents will be exchanged before the end of May.
7 There is one issue that I think may cause 8 some difficulty which concerns the extent to which the 9 documents about the acceptance criteria need to be 10 disclosed. We, from citizens, believe that the 11 acceptance criteria while they are not directly at 12 issue and the derivation of those criteria are not 13 - directly at issue in the contention, it is necessary 14 for us in order to litigate the contention to know 15 what those acceptance criteria are.
16 I think that is illustrated by the nature 17 of AmerGen's summary disposition motion which actually 18 directly states various acceptance -- takes one 19 particular acceptance criteria and accuses us of 20 making an error with regard to that criterion.
21 AmerGen has said that they are -- have 22 confirmed to me this afternoon actually, they are 23 holding back some documents. And I think it will be 24 helpful for us all if the Board could provide some 25 guidance on when documents that concern acceptance NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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38 1 criteria would fall within the scope of mandatory 2 disclosure.
3 JUDGE HAWKENS: Now, Ms. Young, I'd like 4 to hear from you on that request please.
5 MS. YOUNG: This is Ms. Young. For the 6 staff we're not under the same constraints as the 7 parties in the proceeding. We're not limited to 8 disclosures on the admitted issues. Our disclosures 9 basically pertain to the review we're doing for 10 license renewal.
11 My understanding is that Counsel for 12 citizens believes there have been some documents that 13 reveal possible confusion or multiple acceptance 14 criteria. So to the extent the citizens are just 15 trying to find out what AmerGen planned on using for 16 future drywall inspections, the staff doesn't have any 17 objection to that information being disclosed in 18 discovery.
19 But to the extent citizens are trying to 20 challenge the adequacy of acceptance criteria being 21 used, that we believe the Board has clearly ruled is 22 outside the scope of the proceeding.
23 JUDGE HAWKENS: All right. Thank you.
24 Mr. Polonsky, are you, in your discussions 25 with Mr. Webster, has he identified any specific NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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39 1 documents that he would like access to that you are 2 unwilling to provide?
3 MR. POLONSKY: Well, he has identified the 4 broad category of documents that relate to the 5 acceptance criteria. And particularly the derivation 6 of those acceptance criteria. And we have taken the 7 position that those documents are outside the scope of 8 this proceeding and aren't relevant to the admitted 9 contention, which is limited to the UT frequency. And 10 how those acceptance criteria were derived just is not 11 relevant to that.
12 JUDGE HAWKENS: To the extent Ms. Young 13 said there may be information out there which is not 14 entirely consistent regarding the acceptance criteria 15 and that the NRC would have no objection in that 16 material being revealed, to your knowledge has that 17 material been revealed? Or are there documents that 18 Mr. Webster is seeking that you are not revealing?
19 MR. POLONSKY: I'm sure Richard will 20 correct me if I'm wrong but this afternoon we only 21 discussed one particular document though I can't 22 recall if we've had other discussions where he 23 identified others. But there was one we discussed 24 this afternoon.
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40 1 recall the content of that document. But I don't even 2 think that document would clarify the issue that Mr.
3 Webster is concerned about. He is confused about what 4 the acceptance criteria are. They are part of the 5 current licensing basis. They don't change from year 6 to year. And he seems to think that they do.
7 So I think he's just looking at a red 8 herring or worse, trying to get discovery where I 9 think the Board has said no discovery is allowed.
10 MR. WEBSTER: Well, if I may comment, all 11 I can see is what is disclosed to me in the documents.
12 And what I see from the documents is that different 13 criteria have been applied at different times. So I 14 think the.statement that they don't change is hard for 15 me to understand based on the current documents that 16 I have.
17 JUDGE ABRAMSON: Mr. Webster, this is 18 Judge Abramson. If, in fact, the documents advise you 19 that different criteria have been applied at different 20 times, why don't you prepare a short like one-page 21 memorandum to all the parties, including to us, 22 indicating what document sets out what criteria.
23 MR. WEBSTER: Okay.
24 JUDGE ABRAMSON: And let's see if it is 25 resolvable by a short simple from somebody or if, in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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41 1 fact, there is something that needs to be resolved.
2 MR. WEBSTER: Okay, that's fine. Thank 3 you.
4 MR. POLONSKY: AmerGen --
5 JUDGE HAWKENS: I agree. One page.
6 MR. POLONSKY: AmerGen also, you know, 7 would just like to make sure everyone is aware that, 8 you know, they could always file a motion to compel 9 and that would be the best way to have a full airing 10 on these particular views.
11 But what I don't want to be doing .is 12 having a mini litigation on the summary disposition 13 motion before citizens have filed their answer.
14 JUDGE HAWKENS: All right. I agree with 15 you on that, Mr. Polonsky. And I'm sure that Mr.
16 Webster is aware of the availability of a motion to 17 compel. We, as a Board, of course would prefer, to 18 the extent the parties are able, for them to work out 19 these evidentiary issues on their own without 20 involving us.
21 MR. POLONSKY: We do our best.
22 JUDGE HAWKENS: Thank you, sir, I know you 23 do.
24 Let's move into item number two, which is 25 what plans, if any, citizens have for filing a new or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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42 1 amended contention based on the recently-issued FSER?
2 MR. WEBSTER: I can -- that's pretty 3 simple. We don't currently have any plans for filing 4 a new or an amended contention. I don't want to 5 formally commit to not filing anything. But we don't 6 have plans currently.
7 JUDGE HAWKENS: No current plans, all 8 right. Thank you, sir.
9 The third item was what plans, if any, the 10 parties have for filing a summary disposition motion?
11 We do have AmerGen's motion pending with answers due 12 by the staff and by Mr. Webster pursuant to an 13 unopposed motion for extension of time. It's now due 14 on April 26th.
15 So let's move to item number four, the 16 parties' estimate regarding length of time necessary 17 for an evidentiary hearing on the presently-admitted 18 motion. Can we hear from Mr. Webster first?
19 MR. WEBSTER: On the admitted contention, 20 we think -- we have discussed this amongst ourselves 21 and we have agreed that there should be -- which I 22 think goes later on to quite a few issues that we can 23 stipulate to. And given that situation, we believe 24 that two-and-a-half days should be adequate.
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43 1 that with the other parties, Mr. Webster? They are on 2 board with that estimate as well?
3 MR. WEBSTER: I believe they are, yes.
4 JUDGE HAWKENS: All right. Thank you.
5 JUDGE ABRAMSON:- Gentlemen, Judge 6 Abramson. Again, you are aware that in this 7 proceeding the principle questioning of witnesses will 8 be done by the Boards and that we should have all of 9 your testimony in writing, including prefiled 10 rebuttal. Do you still think it takes two-and-a-half 11 days to sort this out?
12 MR. POLONSKY: This is Mr. Polonsky. The 13 schedule that we have talked about -- and this is all 14 the parties and we did this after we got your email of 15 yesterday -- has a maximum of two-and-a-half days for 16 a hearing. We just wanted to leave ourselves that 17 amount of time. AmerGen doesn't think it will take 18 that long for sure. But we wanted to have an upper 19 bound on it.
20 JUDGE HAWKENS: That's fair enough. And 21 that is what we were looking for.
22 MS. YOUNG: In addition -- this is Mitzi 23 Young for the NRC staff -- we're mindful of the Jewish 24 holidays that fall in September. So we were also 25 including in our discussion consideration of what days NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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44 1 we could not continue in the later afternoon. And 2 that is in part of our estimates also.
3 So we spoke both before the email we 4 received from Debra Wolf and after that email to try 5 to agree on the time period of this proceeding. And 6 we've all committed to the extent we can to stipulate 7 facts and issues.
8 JUDGE HAWKENS: Thank you, Ms. Young. And 9 the Board will be mindful also of any religious 10 holidays that may occur. And we will seek to 11 accommodate the parties to the maximum extent we can.
12 Moving on to item number five, whether the 13 parties anticipate any portion of the hearing will be 14 closed due to a discussion of proprietary information.
15 Mr. Polonsky, can you address that please?
16 MR. POLONSKY: At this time, Your Honor, 17 AmerGen can present its case without the need to 18 discuss or submit proprietary information. I think 19 that is pretty evident by our summary disposition 20 motion.
21 The type of proprietary information that 22 we have that we will be producing to citizens under 23 the protective order we don't think is the type of 24 proprietary information that goes to the heart of the 25 issue.
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45 1 And I'm sure once we produce those 2 documents, we can work with Richard if there are any 3 specific documents that he does want to use or in that 4 small subset, you know, maybe we can redact those 5 small portions if he agrees with us that they are, in 6 fact, not relevant to the issue.
7 JUDGE HAWKENS: All right. Good. Thank 8 you.
9 MS. YOUNG: Judge Hawkens?
10 JUDGE HAWKENS: Yes?
11 MS. YOUNG: This is Ms. Young.
12 JUDGE HAWKENS: Yes, Ms. Young?
13 MS. YOUNG: In addition, you know, 14 documents that are proprietary are submitted to the 15 NRC have to be submitted in both the proprietary and 16 nonproprietary version. And to the extent we can, the 17 staff would expect to use the nonproprietary version 18 of those documents.
19 JUDGE HAWKENS: Terrific.
20 MR. WEBSTER: I'd like to reserve comment 21 at this point, Judge, since I haven't actually seen 22 the documents. But there is certainly a wealth of 23 nonproprietary documents. So we will do our best to 24 avoid the use of proprietary information where 25 possible.
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46 1 JUDGE HAWKENS: All right.
2 Item number six addresses New Jersey's 3 intention -- or whether it has any intention to 4 participate as an interested state. Mr. Covino, would 5 you address that please?
6 MR. COVINO: Yes, Your Honor, we do not 7 have plans to participate as an interested state on 8 the contention that has been admitted. And that's 9 without prejudice to a decision if it turns out that 10 way to appeal from the NEPA issue that the Commission 11 ruled upon in February.
12 JUDGE HAWKENS: All right. Thank you.
13 Let me -- in light of that, if you do 14 change your mind, Mr. Covino, and would like to 15 participate as an interested state in the presently-16 admitted contention, we'd request that you request to 17 do so with seven days in writing.
18 And, of course, if you don't change your 19 mind, no need not. But if you are going to, if you 20 would let us know in writing within seven days please.
21 MR. COVINO: If that happens, Your Honor, 22 we certainly will. And thank you for the advice as to 23 the procedure.
24 JUDGE HAWKENS: Thank you.
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47 1 together. Seven is whether settlement is feasible.
2 And eight is if it is not feasible whether there are 3 any issues the parties anticipate they may be able to 4 agree upon.
5 And let's start with seven. And, Mr.
6 Webster, can you address whether you think at this 7 time settlement may be feasible?
8 MR. WEBSTER: Well, I think we have had 9 some preliminary discussions about settlement. At 10 this time, I think the issue with the acceptance 11 criteria means it is hard for us to have very 12 meaningful discussions on settlement.
13 I think if we can resolve that issue 14 between ourselves, which I think certainly it should 15 be possible, then we should be able to. I mean in 16 concept, it is certainly possible.
17 JUDGE HAWKENS: Mr. Polonsky? Do you 18 agree? What are your thoughts on the feasibility of 19 settlement at this point?
20 MR. POLONSKY: Not at this time. But I 21 would echo that we have had informal negotiations on 22 several occasions. And none, obviously, have borne 23 fruit. And if the opportunity arises in the future, 24 we would certainly be open to it. But I guess I'm 25 less rosy than Mr. Webster on that.
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48 1 JUDGE HAWKENS: All right.
2 MR. POLONSKY: I certainly don't think 3 we'll be having additional discussions until after the 4 summary disposition briefing.
5 JUDGE HAWKENS: All right.
6 Moving on to No. 8 then.
7 MS. YOUNG: Judge Hawkens, this is Ms.
8 Young.
9 JUDGE HAWKENS: I'm sorry. I don't mean 10 to neglect you, Ms. Young. I'm glad you are piping 11 in. How can I help you?
12 MS. YOUNG: Oh, no problem. Just for the 13 record, I wanted the Board to aware the staff has 14 encouraged both parties to discuss these issues and, 15 to the extent they can, to resolve them without the 16 need for a hearing.
17 JUDGE HAWKENS: Terrific. If you can 18 continue lighting the fire under them, Ms. Young, we'd 19 be grateful for any successful efforts on your part.
20 Number either, are there -- and I don't 21 know whether the parties are prepared to commit to any 22 particular issues that they may be able to agree upon 23 but certainly to the extent they are in advance of an 24 evidentiary hearing, that would promote judicial 25 economy as well as the assets of the parties.
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49 1 So let me start of f with Mr. Webster. Do 2 you foresee that there issues that you will be able to 3 agree upon?
4 MR. WEBSTER: Oh, absolutely. I think 5 there should be quite a number of issues that we 6 should be able to agree upon. I haven't really 7 prepared a detailed list of issues that we think we 8 will be prepared to stipulate to but certainly where 9 the record is clear and there are no questions about 10 the record, then we would be very happy to stipulate 11 to those issues.
12 JUDGE HAWKENS: Okay. Well, we will in 13 our final schedule order, we will be raising that as 14 an event and, as I say, we do encourage the parties --
15 just as we encourage them to negotiate settlements to 16 the extent we're able, we're happy to see them 17 stipulate to any factual or legal issues that may be 18 material to resolving the case.
19 And I just want to go back also to item 20 seven regarding settlement, if the parties ever think 21 it would be helpful to appoint somebody to assist them 22 in the ADR process, we'd be happy to do that.
23 Judge Abramson says if you jointly request 24 it, yes, we'd be happy to appoint somebody to assist 25 in the ADR process.
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50 1 Item number nine is matters that may 2 impact the scheduling order. And to that end, I'm 3 going to turn now to the email that Ms. Wolf sent out 4 last evening. And I do appreciate the fact that all 5 the parties did take a look at it. And to the extent 6 they have considered it, we're grateful. We know it 7 has been short notice. But let's review some of the 8 items on there.
9 And to the extent the proposed schedule 10 does pose a problem, let's discuss it now. The first 11 item would be submission of new or amended 12 contentions. And I believe that Mr. Webster said he 13 had no present intent.
14 MR. WEBSTER: That's right. Ms. Young 15 actually did point out though that the SER actually 16 came out on April 2nd.
17 JUDGE HAWKENS: Yes.
18 MR. WEBSTER: And so we would like until 19 May 2nd if possible to make a final decision.
20 JUDGE HAWKENS: Do you need -- hang on one 21 second. Do either Mr. Polonsky or Ms. Young have any 22 problem with May 2nd as the time for any new or 23 amended contentions.
24 MS. YOUNG: No objection. The document 25 was not available in ADAMS until that Monday. So 30 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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51 1 days from the Monday would be May 2nd.
2 MR. POLONSKY: This is Mr. Polonsky.
3 AmerGen has no objection.
4 JUDGE HAWKENS: Very well, Mr. Webster.
5 To the extent you do wish. to file a new or amended 6 contention, it will be due no later than May 2nd.
7 MR. WEBSTER: Thank you, Judge.
8 JUDGE HAWKENS: Moving to the next item, 9 the limited appearance section, we tentatively 10 intended to convene a limited appearance session on 11 Thursday, May 31st. And we would contemplate having 12 two sessions, one if the afternoon and one in the 13 early evening so we can accommodate as many members of 14 the public as possible.
15 MS. YOUNG: And that session would be held 16 in New Jersey, Judge Hawkens?
17 JUDGE HAWKENS: That is correct.
18 MS. YOUNG: Can we back up for a moment?
19 The parties have proposed changes to the dates for 20 answering new contentions or filing replies.
21 JUDGE HAWKENS: Okay. What is your 22 proposed date for the answer?
23 MS. YOUNG: I believe the parties agreed 24 to Monday, May 21st.
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52 1 May 21st, Ms. Young?
2 MS. YOUNG: Yes.
3 JUDGE HAWKENS: All right. And how about 4 the reply?
5 MS. YOUNG: I believe it is Tuesday, May 6 29th.
7 JUDGE HAWKENS: May 29th -- all the 8 parties agree to May 29th for any reply brief?
9 MR. WEBSTER: Yes.
i0 JUDGE HAWKENS: All right. We will so 11 indicate that. But May 2nd for the petition, May 21st 12 for the answer, and May 29th for the reply.
13 MS. YOUNG: Thank you.
14 MR. WEBSTER: Thank you.
15 JUDGE HAWKENS: All right.
16 The Board had proposed Friday, July 20th 17 for the parties submitting their initial written 18 statements and written testimony. Is that a date that 19 the parties can live with?
20 MR. WEBSTER: Yes.
21 MR. POLONSKY: Yes.
22 MS. YOUNG: For the staff yes.
23 JUDGE HAWKENS: Okay. Good.
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53 1 responses and rebuttal testimony. Can the parties 2 comply with that date?
3 MR. POLONSKY: The parties had agreed on 4 a later date of I believe it is Friday, August 17th, 5 to accommodate the vacation schedules of proposed 6 experts.
7 JUDGE HAWKENS: And would moving it back 8 a week have an impact on the ultimate proposed hearing 9 date?
10 MR. POLONSKY: It would not.
11 JUDGE HAWKENS: All right.
12 MS. YOUNG: Because -- Judge Hawkens, this 13 is Ms. Young. The parties propose that there is not 14 need for sur rebuttal testimony.
15 JUDGE ABRAMSON: But the Board would like 16 it.
17 JUDGE HAWKENS: That was Judge Abramson 18 expressing his very strong view. Before getting to 19 that, Ms. Young, I just want to say that August 17th -
20 - Friday, August 17th is fine for the written response 21 and rebuttal testimony to accommodate the schedules of 22 your experts.
23 Moving to sur rebuttal --
24 JUDGE ABRAMSON: this is Judge Abramson.
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54 1 you have nothing to say in sur rebuttal, you can so 2 simply so sur rebut. If you have something to say, we 3 want to hear it.
4 What we're trying to do is to get before 5 us in writing all the potential arguments. And some 6 of those may require rebuttal of the rebuttal.
7 MR. WEBSTER: This is Richard Webster 8 here, Judge. Perhaps I could explain the issue here 9 which is that I think AmerGen's expert is going to be 10 away in the early part of August or the late part of 11 July. My expert wants to go away at the end of August 12 and then come back in the first couple of weeks in 13 September.
14 So if we push the written response and 15 rebuttal to August 17th, the problem is my expert is 16 not going to be available to me for sur rebuttal.
17 MS. YOUNG: In addition, Judge Abramson, 18 it is not something contemplated in Subpart L so that 19 was why the parties were amenable to delete that 20 opportunity.
21 JUDGE ABRAMSON: Well, let me put it this 22 way, we'll wind up having a longer hearing as a result 23 because we're going to ferret out those questions. As 24 far as I -- yes, and our Law Clerk points out to us 25 that the date is really up to us.
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55 1 And as far as -- Mr. Webster, what would 2 be a date by which you could have your sur rebuttal 3 submitted if that is what is holding this up here?
4 MR. WEBSTER: Well, I think the problem is 5 that because we've pushed the written response and 6 rebuttal testimony -- my main expert is anticipating 7 to leave something around -- well, he's a little bit 8 flexible but something around August 20th.
9 JUDGE ABRAMSON: And when would he be 10 back?
11 MR. WEBSTER: He'd be back around 12 September 7th.
13 JUDGE HAWKENS: Can he get it in by the 14 14th?
15 JUDGE ABRAMSON: Yes, can he get it in in 16 a week?
17 MR. WEBSTER: Yes, he could get it in in 18 a week, yes.
19 JUDGE ABRAMSON: So if we said sur 20 rebuttal is due on the 14th of September, that gives 21 you an opportunity to have your expert involved?
22 MR. WEBSTER: On the 14th of September?
23 JUDGE ABRAMSON: Yes.
24 MR. WEBSTER: I think that should work, 25 yes.
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56 1 JUDGE HAWKENS: What day is that? Do you 2 have a calendar?
3 JUDGE ABRAMSON: Friday. So let's simply 4 move it to September 14th. I honestly think it will 5 make the record much easier for us to deal with.
6 JUDGE HAWKENS: This is Judge Hawkens 7 again. And as Judge Abramson said, if a party 8 determines that he has nothing new to say in sur 9 rebuttal, you can simply so indicate. But this does -
10 - the opportunity to file a reply is often useful to 11 a party and can be equally useful to the members of 12 the Board.
13 The next item is proposed questions for 14 the Board regarding the initial rebuttal and sur 15 rebuttal testimony. Now this does run into problems 16 here if we push the sur rebuttal testimony out until 17 September 14th.
18 Let me move to the -- skip those two items 19 -- the proposed questions and the request to conduct 20 cross examination. And let me move to the hearing 21 date.
22 Have the parties been amendable to a 23 Monday, September 24th start for the hearing date?
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57 1 essentially at noon on that Wednesday. AmerGen would 2 not be able to support it if it goes beyond two-and-a-3 half days.
4 JUDGE HAWKENS: In other words -- but if 5 it were not finished at that time, we'd have a recess.
6 When would the parties contemplate returning?
7 MS. YOUNG: Judge Hawkens, this is Ms.
8 Young. The problem is the Jewish holiday that falls 9 there.
10 JUDGE HAWKENS: I understand, I 11 understand.
12 MS. YOUNG: It effects one of the Counsels 13 in the proceeding.
14 JUDGE HAWKENS: And I'm happy to 15 accommodate that. I am just -- I mean am I hearing 16 that there will be assurance by the counsel that they 17 will be willing to start early and go late to ensure 18 that it is done by that time? Or would they be more 19 inclined to seek a recess at noon on Wednesday and 20 come back afterwards?
21 MR. POLONSKY: This is Mr. Polonsky.
22 Rather start early end late than reconvene, Your 23 Honor.
24 JUDGE HAWKENS: So would the Board, Mr.
25 Polonsky.
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58 1 Let me hear from Ms. Young and Mr. Webster 2 as well.
3 MR. WEBSTER: That would be totally fine 4 for us, Judge.
5 JUDGE HAWKENS: All right.
6 MS. YOUNG: Yes, the staff has no 7 objection. We've done that in a number of 8 proceedings. You know travel arrangements often end 9 up conflicting with other responsibilities at the 10 office. So it would probably be a good idea, to the 11 extent we can, to accomplish this all during that time 12 beginning on September 24th.
13 JUDGE HAWKENS: Terrific. We're all in 14 full agreement on that.
15 Let's now talk about the two items I 16 skipped over which I had -- we had initially proposed 17 Thursday, August 23rd for proposed questions regarding 18 testimony and any requests, if there is any, to 19 conduct cross examination and submission of cross 20 examination plans.
21 Now one solution may just be that there 22 would be no proposed questions on the sur rebuttal but 23 simply on those dates submit them for the initial and 24 rebuttal testimony. What are the parties' thoughts on 25 that?
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59 1 MS. YOUNG: This is Ms. Young for the 2 staff. The staff has no objection but I believe the 3 parties agreed to shift that date by one day to 4 Friday, August 24th.
5 -JUDGE HAWKENS: All right. And that's --
6 all the parties agreed on Friday, August 24th?
7 MR. POLONSKY: This is Mr. Plonosky for 8 AmerGen. Yes, Your Honor, I think we had no objection 9 to limiting it to initial and rebuttal. And yes, we 10 agreed to Friday, August 24th.
11 JUDGE HAWKENS: Thank you, Mr. Polonsky.
12 Mr. Webster?
13 MR. WEBSTER: Yes, sir, I'm just trying to 14 understand if we had questions on cross or sur 15 rebuttal or questions for the Board on sur rebuttal, 16 would there be an opportunity to submit those at some 17 point?
18 JUDGE HAWKENS: Yes, I think we could. We 19 could accommodate that. We do have some time and we 20 would address that in our final scheduling order.
21 MR. WEBSTER: Okay.
22 Well, on that then, that sounds fine.
23 MR. POLONSKY: Your Honor, this is Mr.
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60 1 an answer under, I guess, it is 1204(b). It phrases 2 it as a motion to request. So we assumed there would 3 be the right to file an answer.
4 JUDGE HAWKENS: One second please. We're 5 going to go offline for a couple of seconds. We'll be 6 back online in one moment.
7 (Whereupon, the foregoing 8 matter went off the record at 9 3:58 p.m. and went back on the 10 record at 4:01 p.m.)
11 JUDGE HAWKENS: This is Judge Hawkens.
12 We're back online.
13 Ms. Young, I read 2.1204. And' I'd be 14 interested in your views regard the opportunity that 15 should be accorded to a party to respond to such a 16 motion.
17 MS. YOUNG: Yes, the staff has no 18 objection to that. The parties had agreed on actually 19 a date of Friday, August 31st to accomplish that.
20 JUDGE ABRAMSON: Perhaps, Ms. Young, this 21 is Judge Abramson, perhaps you can tell us what you 22 think would be contained in such a reply to a motion.
23 MS. YOUNG: Well, at least the opportunity 24 to ask for cross examination is an explanation that is 25 going to lead to the development of the record. It's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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61 1 kind of their request to incorporate Subpart G 2 procedures or a subset of Subpart G procedures in a 3 Subpart L proceeding.
4 JUDGE HAWKENS: Right. As I read 5 21204(b), you move for cross examination. I 6 anticipate the motion would say much other than we 7 request permission to engage in cross examination.
8 And we submit the following cross examination plan.
9 JUDGE ABRAMSON: Which must remain 10 confidential. So what on earth would somebody reply 11 to such a motion? No, we don't want you to have the 12 right to cross examine?
13 MR. POLONSKY: But, Judge Abramson, this 14 is Mr. Polonsky. We think there is a standard 15 inherent in 21204 which says that the cross 16 examination has to be necessary to ensure the 17 development of an adequate record for decision. And 18 the reference in 1204(a) to Section 2..323 to us 19 suggests that there is a right to file an answer.
20 You know there may be things -- I would 21 hope that the motion says more than just we'd like the 22 right to cross examine. You have to prove your case 23 and meet the standard in the rule. That would then 24 allow us to file a reply.
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62 1 are even going to request cross examination.
2 JUDGE HAWKENS: All right. This is Judge 3 Hawkens and what date have the parties proposed for 4 filing an answer to any such motion?
5 MR. POLONSKY: We were going to expedite 6 it, Judge Hawkens. Although the rule allows ten days 7 under 323, we were going to just do it within a week.
8 So whatever date was picked for the request to conduct 9 cross examination as filing a motion. The parties 10 would file it one week later. So Friday, August 31st, 11 under the dates we proposed.
12 JUDGE HAWKENS: One second please. We're 13 going offline.
14 (Whereupon, the foregoing 15 matter went off the record at 16 4:03 p.m. and went back on the 17 record at 4:05 p.m.)
18 JUDGE HAWKENS: This is Judge Hawkens.
19 We're back on the line.
20 I'd like to ask the parties, starting with 21 Ms. Young please, their view on the notice that should 22 be -- when the notice by the Board should be provided 23 to the parties regarding the granting of any such 24 motion requesting the right to cross examine?
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63 1 would let the parties know whether it could wait until 2 the first day of the hearing? Or in some prehearing 3 order before then?
4 JUDGE HAWKENS: Yes. Do the rules -- they 5 don't seem to address the timing for that.
6 MS. YOUNG: No, there's not even a timing 7 for when you raise these motions. You are absolutely 8 correct. So I think the Board has the discretion to 9 do whatever seems feasible to, you know, provide for 10 efficiency in the proceeding.
11 JUDGE HAWKENS: All right.
12 Mr. PolOnsky or Mr. Webster, do you have 13 any disagreement with Ms. Young's view?
14 MR. WEBSTER: I certainly don't, Mr.
15 Webster here.
16 MR. POLONSKY: Mr. Polonsky, no. No 17 different view.
18 JUDGE HAWKENS: All right. We're going 19 off the line one more time. We'll return shortly.
20 Thank you.
21 (Whereupon, the foregoing 22 matter went off the record at 23 4:06 p.m. and went back on the 24 record at 4:07 p.m.)
25 JUDGE HAWKENS: This is Judge Hawkens.
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64 1 I'm back online.
2 The parties may reply to any request to 3 engage in cross examination. And consistent with 4 their agreed proposed date, any reply will be due on 5 Friday, August 31st.
6 The Board reminds the parties that it 7 views Section 2.1204 as setting a high hurdle for a 8 party to engage in cross examination. And when the 9 parties do submit any such motion requesting to engage 10 in cross examination, we encourage them to be mindful 11 of the specifics of the written rule in crafting an.y 12 such motion and its plan as well.
13 JUDGE ABRAMSON: Yes. And this is Judge 14 Abramson. Let me just emphasize my personal view that 15 this is an exercise in futility and that when we come 16 to the hearing, the Judges will be examining the 17 witnesses. And we will certain, at that point I 18 expect, ask Counsel whether they think we've covered 19 everything which ought to address this problem.
20 MR. WEBSTER: Can I just Judges for 21 clarification on the motion? If we made such a motion 22 would it be the very brief motion that had been 23 outlined previously? or would it be a rather longer 24 exercise, as Mr. Polonsky appears to contemplate?
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65 1 it. Well, we -- go ahead, Judge.
2 JUDGE HAWKENS: This is Judge Hawkens.
3 Mr. Webster, it sounds like you have been working with 4 Ms. Young and Mr. Polonsky to date in working these 5 out. And rather than the Board, at this juncture, 6 telling the parties how to proceed, I suggest the 7 parties seek to work that out and seek to comply with 8 the regulation as it is written.
9 MR. WEBSTER: Okay, thank you.
10 MS. YOUNG: Judge Hawkens, this is Ms.
11 Young.
12 In addition, I might point Mr. Webster to 13 the statement of considerations for the new Part 2 14 that talked about instances where cross examination 15 might be beneficial to the development of a record.
16 So I think that information is available.
17 JUDGE HAWKENS: All right. Thank you, Ms.
18 Young.
19 One second please. We're going offline.
20 (Whereupon, the foregoing 21 matter went off the record at 22 4:09 p.m. and went back on the 23 record at 4:12 p.m.)
24 JUDGE HAWKENS: The Board is back online.
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66 1 this email of proposed schedule we sent out yesterday 2 motions in limine that a party may wish to submit 3 seeking to exclude certain evidentiary material.
4 And the Board proposes the following 5 schedule, giving the parties the opportunity to object 6 either the initial written statements and testimony 7 due Friday, July 2nd, or the written response in 8 rebuttal testimony due Friday, August 17th.
9 To that end, the Board would require any 10 motions in limine or motions to exclude evidence for 11 the.initial written statements be due on Wednesday, 12 July 25th. And any answer to such motion be due on 13 Monday, July 30th.
14 For any motion in limine in response to 15 the written response in rebuttal testimony, the Board 16 proposes that the motion in limine be due Wednesday, 17 August 22nd. And that any answer be due Monday, 18 August 27th.
19 Do the parties have any questions with 20 that? Or anticipate any problems complying with that?
21 MR. POLONSKY: Your Honor, this is Mr.
22 Polonsky. If we could just have a couple of minutes 23 to look through our calendars?
24 JUDGE HAWKENS: Sure.
25 MS. YOUNG: Judge Hawkens, this is Ms.
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67 1 Young. May I ask a question?
2 JUDGE HAWKENS: Yes, Ms. Young.
3 MS. YOUNG: I'm trying to understand the 4 Board's rationale for the expedited treatment of these 5 motions. Is there some ruling the Board thinks it 6 needs to make well in advance of the scheduled hearing 7 that these time periods are so abbreviated? Because 8 motions we normally get ten days.
9 JUDGE ABRAMSON: Yes, Ms. Young, this is 10 Judge Abramson. Our rationale is this. In other 11 proceedings, we have had motions in limine to strike 12 large portions of testimony which the Boards had 13 already excluded as not relevant to the proceedings.
14 Should that happen here, we don't want to 15 be beleaguered with rebuttal testimony addressing 16 things that were included in prefiled direct. And we 17 want it to be perfectly clear by the time you are 18 preparing your rebuttal testimony what you are 19 rebutting.
20 MS. YOUNG: But couldn't the filing 21 deadline just be simultaneous with when the rebuttal 22 is due? Because you would know.
23 JUDGE ABRAMSON: We have to make a 24 decision. We have to decide whether to grant or not 25 grant a motion in limine. Therefore, we have to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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68 1 decide what, if any, portions of prefiled direct or 2 prefiled rebuttal are going to be stricken. And we 3 want that decision to be issued timely enough to 4 enable the parties to proper comply with they file 5 rebuttal.
6 MS. YOUNG: I guess I understand that 7 concern. My concern is that this issue is extremely 8 narrow even though it seems like it has been broad, 9 you know, in terms of the attempts for additional 10 contentions. And there has got to be more a little 11 more latitude for the parties to be able to frame 12 these issues -- these motions to make them meaningful.
13 And my concern is that with the staff I 14 have available, I'm not -- staff won't be able to turn 15 that around quite as quickly as you propose.
16 JUDGE HAWKENS: This is Judge Hawkens. We 17 are open. If you have some conflict, Ms. Young, we're 18 certainly open to seeking to accommodate your 19 schedule.
20 MR. POLONSKY: Judge Hawkens, this is Mr.
21 Polonsky.
22 One the first set of dates, we do have a 23 conflict. And they are wondering if we could have 24 until Friday, July 27th, just an additional two days.
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69 1 Wednesday, August 1st.
2 JUDGE HAWKENS: Would that satisfy you, 3 Ms. Young?
4 MS. YOUNG: Seven days is definitely 5 preferable to five days.
6 MR. POLONSKY: The other concern, Judge 7 Hawkens, is I don't know how long the testimony is 8 going to be.
9 JUDGE HAWKENS: Correct.
10 MR. POLONSKY: And, you know, it could be 11 that there are, you know, 200 pages of testimony or 12 more. And I'm just concerned that we won't have 13 enough time to digest, get our experts to digest, and 14 craft a meaningful response for you in that amount of 15 time.
16 JUDGE ABRAMSON: Well it seems -- this is 17 Judge Abramson, Mr. Polonsky, what we're worried about 18 is -- and what I would expect to see in a motion in 19 limine is certain testimony has already been precluded 20 by this Board, addresses topics that the Board has 21 already decided to leave out.
22 If the parties exercise restraint, 23 reasonableness in preparing their prefiled direct 24 shouldn't be an issue. If, however, the parties do 25 include things that the Board has already decided are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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70 1 not to be addressed or are outside the scope should be
- 2 obvious to you as you read. And you shouldn't need an 3 expert to tell you it is obvious.
4 MS. YOUNG: This is Ms. Young for the 5 staff. My expectation is that hopefully the parties 6 will have narrowed the issues that are even included 7 in direct testimony through stipulations and possibly 8 whatever comes as the result of the motion for sumtmary 9 disposition, that we probably should not be faced with 10 testimony that is all over the place and not focused 11 on the admitted issue.
12 But I think the seven-day time period is 13 something we're much better equipped to handle in this 14 time frame.
15 JUDGE HAWKENS: This is, again, these were 16 dates which we were simply throwing out there. We 17 want to have something that is meaningful from the 18 parties when they submit their motions. Now we have 19 before us a proposal for Friday, July 27th and 20 Wednesday August 1st.
21 If Ms. Young or Mr. Polonsky or Mr.
- 2. Webster, do you think you would need additional time 23 to provide something meaningful to the Board, we want 24 to hear your views now.
25 JUDGE ABRAMSON: This is Judge Abramson.
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71 1 Let me supplement this by saying since nobody knows 2 how long these filings are going to be when you get 3 them, we certainly would not reject out of hand a 4 motion at the time of an unusually long or unexpected 5 filing to ask for more time at that point. Or in 6 other exigent circumstances.
7 MS. YOUNG: This is Ms. Young, we are 8 assuming simultaneous initial filings and simultaneous 9 rebuttal, correct?
10 JUDGE HAWKENS: That's correct.
11 MS. YOUNG: I believe the staff can 12 support the seven-day schedule for these motions in 13 limine.
14 JUDGE HAWKENS: All right. And Mr.
15 Webster, if I've heard from you already on that, I'm 16 sorry. I don't recall anything.
17 MR. WEBSTER: No, actually, sorry, Judge, 18 I should have piped up before. I think we can 19 accommodate that schedule, yes.
20 JUDGE HAWKENS: All right. And how about 21 the motion in limine for the written responses in 22 rebuttal testimony. We had suggested Wednesday, 23 August 22nd, and Monday, August 27th. How do those --
24 and we're willing to hear suggested alternatives from 25 the parties on that.
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72 1 MS. YOUNG: The staff would recommend that 2 that also slip to the 29th of August.
3 MR. WEBSTER: Yes, I guess that I'm 4 conscious that the proposed questions regarding the 5 testimony is on the 24th. And so the motion in limine 6 on the 22nd might create a bit of a jam there.
7 JUDGE HAWKENS: Well, we have on the table 8 August 29th for the motion. An I correct, Ms. Young?
9 MS. YOUNG: That's correct.
10 JUDGE HAWKENS: Mr. Polonsky?
11 MR. POLONSKY: The 29th works here, Your 12 Honor.
13 MR. WEBSTER: Yes, for the motion or for 14 the answer? Sorry, Judge.
15 JUDGE HAWKENS: That would be for the 16 motion.
17 MR. WEBSTER: Okay, that's fine.
18 JUDGE HAWKENS: And, Ms. Young, what would 19 you propose for any response?
20 MS. YOUNG: I believe we were talking 21 Wednesday, August 22nd for the motion and --
22 JUDGE HAWKENS: Well, I'm sorry.
23 MS. YOUNG: -- Wednesday, August 29th for 24 the response. But I'm totally lost at this point.
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73 1 misunderstood you. I thought you were saying August 2 29th for the motion. And I thought Mr. Webster 3 favored that because it wouldn't conflict with the 4 August 24th date for the proposed questions.
5 MR. WEBSTER: Well, certainly in that part 6 of the statement the Judge is correct.
7 JUDGE HAWKENS: So, Ms. Young, if we had 8 the motions due on August 29th when would the staff 9 and, as well, Mr. Polonsky and Mr. Webster, when would 10 you be prepared to file any necessary responses?
11 MS. YOUNG: Are we talking Thursday, 12 September 6th since there is a holiday in there?
13 JUDGE HAWKENS: We have Thursday, 14- September 6th on the table. Mr. Polonsky and Mr.
15 Webster, is that acceptable to you?
16 MR. POLONSKY: Your Honor, I think AmerGen 17 is now understanding why Judge Abramson was pushing 18 for the very early days because we would then be 19 essentially preparing, you know, sur rebuttal. And it 20 might not be necessary.
21 JUDGE HAWKENS: Correct.
22 MR. POLONSKY: So we're -- AmerGen is in 23 favor of keeping it closer to the August time frame.
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74 1 possible to file these and/or respond to these and 2 prepare for post-questions at the same time especially 3 since the initials questions you will already have 4 that time to have done that. It will just be 5 questions on-the rebuttal.
6 So I don't know what Friday, August 24th, 7 which is just two more days onto the Board's proposed 8 date wouldn't be feasible for the filing of motions in 9 limine on the rebuttal testimony.
10 JUDGE HAWKENS: Mr. Webster, can you 11 respond?
12 MR. WEBSTER: Well, it would help me a 13 little bit to give me a couple of days extra. So 14 maybe we can go to maybe a couple of days afer those 15 questions, which would be -- let me see, the 24th is 16 a Friday. Could we do the -- on the 27th I guess, 17 which is giving an extra day?
18 JUDGE HAWKENS: Going offline one minute.
19 (Whereupon, the foregoing 20 matter went off the record at 21 4:26 p.m. and went back on the 22 record at 4:27 p.m.)
23 JUDGE HAWKENS: This is Judge Hawkens.
24 I'm back online. I apologize for the delay.
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75 1 Monday, the 27th. Any response will be due the 31st.
2 MR. WEBSTER: Thank you, Judge.
3 JUDGE HAWKENS: It is my hope that as it 4 appears the parties have been working closely
..5 together, they will.continue to do that so the need 6 for any motions in limine hopefully will not arise.
7 But to the extent the parties do need additional time 8 and can show good cause, we'll entertain such motions.
9 I think that exhausts the events in 10 schedule which we had included in our email. Are 11 there any other matters?
12 MS. YOUNG: Yes, Judge Hawkens. This is 13 Ms. Young. In looking at the Board's schedule the 14 staff is mindful of the Commission's 30-day calendar 15 for a Commission decision on license renewal. And in 16 discussing this with the parties, we were trying to 17 estimate on what dates certain things had to happen in 18 order for the Commission to have adequate time to 19 review a decision in this proceeding.
20 JUDGE HAWKENS: And?
21 MS. YOUNG: In looking at 10 CFR 212.12, 22 which points the Board back to 341, we need to reserve 23 at least 40 or 55 days, depending on whether there is 24 a petition for review, from the time the Board would 25 decide to give the Commission time to review the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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76 1 Board's decision.
2 JUDGE BARATTA: What has that got to do 3 with us? What's your point? This is Judge Baratta.
4 I don't understand your point.
5 MS. YOUNG: Oh, the point is the 6 Commission has a schedule for license renewal. There 7 is a 22-month schedule when there is no contested 8 proceedings. There is a 30-month schedule for a 9 Commission, not a Board decision, a Commission 10 decision.
11 JUDGE BARATTA: Well so?
12 JUDGE HAWKENS: And what are you 13 suggesting? Are we not finishing early enough? Are 14 we finishing too early? What is your point?
15 MS. YOUNG: No, no, no. We were taking 16 the dates out further from the hearing beginning on 17 September 24th, looking at findings of fact being due 18 within a more abbreviated time period than the time 19 period allowed in the rules, looking at October 15th.
20 And that the Board would need to issue its decision by 21 November 28th in order the allow the Commission review 22 period.
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77 1 I think it's the end of the discussion.-
2 MS. YOUNG: There have been numerous 3 orders in license renewal proceedings where the 4 Commission has set this time period out. I'm just 5 making the Board aware.
6 JUDGE HAWKENS: No, I'm grateful for that, 7 Ms. Young. So are you suggesting you have additional 8 events like for the parties to submit proposed 9 findings of fact and conclusions of law?
10 MS. YOUNG: Correct. Of October 15th.
11 JUDGE HAWKENS: Okay. Hang on one second.
12 MS. YOUNG: And that's what the parties 13 agreed on.
14 JUDGE HAWKENS: All right. Hang on. Bear 15 with me. Proposed findings of fact and conclusions of 16 law, the parties agree they would be able to submit 17 them by what date again, Ms. Young?
18 MS. YOUNG: Monday, October 15th.
19 JUDGE BARATTA: That's three weeks after 20 the hearing basically?
21 MS. YOUNG: Yes, we did a more abbreviated 22 schedule than the rules allow.
23 JUDGE BARATTA: That's good. Thank you.
24 JUDGE HAWKENS: All right. And was there 25 anything else?
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78 1 MS. YOUNG: And we estimated the Board 2 would need to issue its decision by November 28th in 3 order to allow the Commission a review period if a 4 petition for review were filed by one of the parties.
5 JUDGE BARATTA: Thank you very much for 6 the thought. We will not put a deadline for our 7 ruling. We are mindful of the Commission's guidance.
8 JUDGE ABRAMSON: Yes, we are, provided the 9 SER came out.
10 JUDGE HAWKENS: All right. I think we 11 have the input necessary for the schedule. Are there 12 any other matters that we haven't discussed? Ms.
13 Young?
14 MS. YOUNG: Nothing else from the staff.
15 JUDGE HAWKENS: All right.
16 Mr. Polonsky?
17 MR. POLONSKY: Yes, Your Honor, just two 18 issues. The first deals with just some administrative 19 clean up on the notices of appearances, some of which 20 we think are stale. Addresses have changed, people 21 are no longer assigned to the case. And we just urge 22 all the parties to review their certificates --
23 notices of appearance, and to update them accordingly.
24 That's issue number one.
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79 1 know that the parties have agreed to complete the 2 mandatory disclosures with the May monthly update.
3 And to provide all documents to the parties by June 4 1st in order to allow essentially two months for July 5 20th initial written statements, the position of 6 written testimony. That's all.
7 JUDGE HAWKENS: So I'm just copying this 8 down, Mr. Polonsky, so I can include it. Parties 9 should be updating the notice of appearance to the 10 extent any information in the originally submitted 11 notices were stale.
12 And that secondly the May monthly update 13 will be the final part of the mandatory disclosure.
14 Is that correct?
15 MR. POLONSKY: Correct.
16 JUDGE HAWKENS: So by June 1 --
17 MR. POLONSKY: Correct. To provide all 18 physical documents by June 1.
19 JUDGE HAWKENS: All physical documents.
20 All right?
21 MR. POLONSKY: That's right.
22 JUDGE HAWKENS: This is Judge Hawkens.
23 We're going to go offline one minute.
24 MS. YOUNG: Judge Hawkens, this is Ms.
25 Young.
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80 1 JUDGE HAWKENS: I'm sorry, Ms. Young, go 2 ahead.
3 MS. YOUNG: In my case, I forget this 4 issue that Mr. Polonsky has raised. The parties also 5 have the understanding that the Board notification 6 obligation would continue in lieu of disclosures.
7 Should information be made available that meets that 8 standard.
9 JUDGE HAWKENS: Yes, thank you. We will 10 include that as well.
11 We'll go offline one minute.
12 (Whereupon, the foregoing 13 matter went off the record at 14 4:33 p.m. and went back on the 15 record at 4:34 p.m.)
16 JUDGE HAWKENS: This is Judge Hawkens.
17 We're back online and I was just reminded by a 18 colleague to ensure that the parties, when they do 19 conclude with the mandatory disclosure ensure that 20 their witness list is up to date.
21 MR. WEBSTER: Could I just clarify that 22 part, Judge? Mr. Webster here. We have identified 23 one witness. I assume we should provide disclosures 24 with regard to witnessers as soon as we identify those 25 witnesses. Is that correct.
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81 1 MR. WEBSTER: Thank you.
2 MS. YOUNG: Judge Hawkens, this is Ms.
3 Young. Could I ask Mr. Polonsky to address 4 specifically what part of the Service List he thinks 5 is in error in terms of appearances?
6 JUDGE HAWKENS: Why don't you do that 7 among yourselves?
8 MS. YOUNG: Okay. Well, the question is 9 do we continue to serve the State of New Jersey?
10 Because they're not a party in the proceeding and they 11 haven't decided to participate as an interested state.
12 JUDGE HAWKENS: You may do so out of 13 convenience if you wish. But there is no obligation 14 to serve them if they are not a part and not an 15 interested state.
16 MS. YOUNG: Thank you.
17 JUDGE HAWKENS: And with that, the Board 18 is prepared to call this a wrap. I'm going to give --
19 Mr. Covino, do you have anything further?
20 MR. COVINO: No, I do appreciate the 21 courtesy of receiving the documents. And if the 22 parties can continue to do this, that's fine. But I 23 certainly understand we'd save a few trees here and 24 there. So I understand that they are not obligated to 25 do so.
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82 1 JUDGE HAWKENS: All right. Thank you.
2 Mr. Webster, anything further?
3 MR. WEBSTER: No, Judge, thank you.
4 JUDGE HAWKENS: Mr. Polonsky?.
5 MR. POLONSKY: No, thank you very much.
6 JUDGE HAWKENS: Ms. Young?
7 MS. YOUNG: Nothing from the staff. Thank 8 you.
9 JUDGE HAWKENS: Thank you. And goodbye.
10 Court reporter, do you have everything 11 that you need?
12 COURT REPORTER: Yes, Your Honor.
13 JUDGE HAWKENS: All right. Thank you 14 everybody.
15 (Whereupon, the above-entitled pre-trial 16 scheduling meeting was concluded at 4:36 p.m.)
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in thematter of:
Name of Proceeding: Oyster Creek Nuclear Generating Station Docket Number: 50-0219-LR Location: (Telephone conference) were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.
tToby Wa/t r Official Reporter Neal R. Gross & Co., Inc.
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