ML081830074

Transcript of Entergy Nuclear Vermont Yankee Pre-Hearing Conference, Tuesday, June 24, 2008, Pages 644-693

ML081830074
Person / Time
Site:	Vermont Yankee
Issue date:	06/24/2008
From:	Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, NRC-2285, RAS M-104
Download: ML081830074 (52)

Text

Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION

Title:

Entergy Nuclear Vermont Yankee Pre-hearing Conference Docket Number: 50-271-LR; ASLBP No.: 06-849-03-LR DOCKETED USNRC Location: (telephone conference) June 30, 2008 (10:00am)

OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Date: Tuesday, June 24, 2008 Work Order No.: NRC-2285 Pages 644-693 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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644 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + +. +

4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 TELECONFERENCE 6

7 In the Matter of:

8 ENTERGY NUCLEAR 9 VERMONT YANKEE, LLC ASLBP Docket No.

10 and 06-849-03-LR 11 ENTERGY NUCLEAR Docket No. 50-271-LR 12 OPERATIONS, INC.

13 (Vermont Yankee 14 Nuclear Power Station) 15 16 Tuesday, June 24, 2008 17 2:00 p.m.

18 BEFORE:

19 ALEX S. KARLIN, Administrative Judge, Chair 20 RICHARD E. WARDWELL, Administrative Judge 21 WILLIAM H. REED, Administrative Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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645 1 T-A-B-L-E 0-F C-O-N-T-E-N-T-S 2 Page 3 Welcome and Introductions 646 4 Judge Karlin 5 Status of Joint Stipulations 652 6 Status of FSER as Exhibit 659 7 Instructions Regarding Handling Exhibits 661 8 Review of Basic Rules For Evidentiary Hearing 666 9 Advance Notice of Several Issues 673 10 (Briefing of Legal Issues) 11 Logistics to Evidentiary Hearing 685 12 in Newfane Courtroom 13 Interested States Roles 687 14 Decorum in Courtroom 688 15 Submission of PDF Searchable Documents 688 16 Adjourn 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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646 1 P-R-O-C-E-E-D-I-N-G-S 2 2:04 p.m.

3 JUDGE KARLIN: Mr. Court Reporter, please 4 let's go on the record. We are now on the record in 5 a pre-hearing conference call on June 24, 20G8 in the 6 Matter of Vermont Yankee License Renewal Application 7 ASLBP Docket No. 06-849-03LR and then Docket No. 50-8 271. This pre-hearing conference call is being held 9 pursuant to an email that was sent out by one of our 10 law clerks, Lauren Bregman on May 15, 2008.

11 At this point what I'd like to do is to go 12 around the table and ask each party to identify 13 themselves and we'll start here in Rockville, 14 Maryland, the ASLBP. I'm here. This is Alex Karlin.

15 I'm one of the judges. Dr. Wardwell is here, also one 16 of the judges. Marsha Carpentier, one of the law 17 clerks, is here. And Karen Valloch, our assistant, is 18 here as well in this room.

19 Perhaps we could then ask NEC to go on the 20 record and identify everyone who is here on the call 21 for NEC.

22 MS. TYLER: NEC's counsel, Karen Tyler and 23 Andrew Raubvogel, are here and Raymond Shadis of NEC 24 is also on the line.

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647 1 want to confirm that you're on the line?

2 JUDGE REED: Yes, this is William Reed.

3 JUDGE KARLIN: Thank you. Entergy.

4 Mr. Lewis, could you introduce your team 5 please?

6 MR. LEWIS: Yes, this is David Lewis from 7 the law firm Pillsbury Winthrop Shaw Pittman 8 representing Entergy and with me and my partners 9 Matias Travieso-Diaz and Blake Nelson. There are some 10 Entergy personnel listening in remotely and won't 11 participate. I did hear Mike Matell. I don't know 12 who else is on another line.

13 MS. BRIDGES: Dave, this is Kim Bridges 14 also of Entergy.

15 MR. COX: And Alan Cox with Entergy.

16 JUDGE KARLIN: All right. Thank you.

17 State of Vermont please.

18 MS. HOFMANN: This is Sarah Hofmann for 19 the Department of Public Service in Vermont. On a 20 separate line, Mr. Roisman, are you there?

21 MR. ROISMAN: Yes.

22 JUDGE KARLIN: Greetings. Welcome.

23 NRC staff, Ms. Baty.

24 MS. BATY: Yes. Mary Baty and co-counsel 25 of Susan Utall, Lloyd Subin and Jessica Bielecki and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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648 1 then also with us in the room as one of our witnesses, 2 John Fair.

3 JUDGE KARLIN: All right. Great. Thank 4 you.

5 - Let's see. Is there anyone else on the 6 call?

7 (No verbal response.)

8 Okay. Thank you.

9 I note that the State of"New Hampshire and 10 the State of Massachusetts Attorney Generals, both of 11 them I believe indicated to Marsha Carpentier, our law 12 clerk, that they would not be participating and indeed 13 they are not. So that's fine.

14 Ground rules for the call, please just if 15 you could try to identify yourselves when you begin 16 speaking and speak up. We have no nonparty listeners.

17 So I don't need to address that issue.

18 The purpose of this call -- Thank you all 19 for joining us and participating. The purpose of this 20 call is to discuss the evidentiary hearing that's 21 coming up starting on July 2 1S" in Newfane, Vermont 22 and to provide some instructions about how we plan to 23 conduct that. This pre-hearing conference call is not 24 for purposes of grueling on any of the many motions 25 that are pending before us and not for hearing oral NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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649 1 arguments on any of those motions either but more just 2 the presentation and the preparation for the 3 evidentiary hearing.

4 What I'm going to do is I have about nine 5 items that we want to sort of cover on this agenda 6 that we thought we'd probably talk about and at the 7 end of that list I will ask you all if you have any 8 other items that you think need to be covered in this 9 pre-hearing conference call. But with that, here are 10 the nine items that we think we will want to cover.

11 First is status of the joint stipulations; 12 second, status of the PSER as an exhibit; third, 13 instructions regarding how to handle exhibits; fourth-,

14 a review of some of the basic rules regarding how we 15 will be conducting the evidentiary hearing; fifth, 16 advance notice of several issues that we will be 17 focusing on on the evidentiary hearing and possibly 18 even in some briefing of legal issues; sixth, some 19 logistics related to the evidentiary hearing in the 20 Newfane courtroom; seventh, just a few words about the 21 interested state's role, although they're not here, 22 we're going to put it on the record and hopefully 23 they'll read the transcript; eighth, decorum, we just 24 want to cover something regarding decorum; and then 25 ninth, we have a request regarding the submission of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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650 1 PDE searchable documents.

2 With that, do any of the parties have any 3 other agenda items that you think we ought to cover or 4 need to cover here today?

-5Ms. HOFMANNI: Judge Karlin, this is Sarah 6 Hofmann from the State of Vermont. I have a few, but 7 1 think they all follow into your logistics and 8 instructions. So I think we'll get to them 9 eventually.

10 JUDGE KARLIN: okay. Well, perhaps you 11 could tell me what they are and we can see if we're 12 going to get to them.

13 MS. HOFMANNM: Yes. The first one is the 14 questioning process that will be used at the hearing.

15 1 did attend those hearing that you did and there was 16 a break after at least one of the witness panels for 17 people to submit supplemental questioning. I didn't 18 know if you were going to do that again in this 19 hearing.

20 JUDGE KARLIN: All right. That's a good 21 topic.

22 MS. HOFMANN: Before the hearings start, 23 are we going to have any point where we have to 24 determine the admissibility of documents so we aren't 25 doing that during the hearings? It's done either the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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651 day before or somehow by email.

2 JUDGE KARLIN: Yes, we'll cover that also.

3 Good. okay.,

4 MS. *HOFMANNJ: And if the Board is going to 5 allow any opening or closing statements.

6 JUDGE KARLIN: All right. We're going to.

7 try to cover that, too.

8 MS. HOFMAN: Okay. Thank you very much.

9 JUDGE KARLIN: All. right. Thank you.

10 MS. TYLER: This is Karen Tyler. I also 11 had just a couple things that I'm sure you would cover 12 anyway. But I wanted to confirm that you will be 13 taking testimony from all three of NEC's witnesses, 14 although, I'm not requesting obviously a ruling on the 15 motion to exclude Mr. Witte's testimony in asking for 16 that discussion and then the second thing I wanted to 17 talk about was the order in which the contentions will 18 be considered.

19 ,JUDGE KARLIN: Okay. We're going to 20 cover, I think, both of those.

21 Any other concerns or agenda items? Ms.

22 Baty or Mr. Lewis?

23 MR. LEWIS: This is David Lewis. The only 24 item I have which I think is covered by your agenda is 25 will it be feasible to expedite the admission of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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652 1 exhibits by trying to facilitate the process in 2 advance?

3 JUDGE KARLIN: Okay. And we'll talk about 4 that.

5 Okay. Then with that, why don't we 6 proceed with the first item.which is status of joint 7 stipulations. As you will remember in our December 8 13, 2007 order, we asked the parties to confer 9 regarding preparation and submission of joint 10 stipulations and to submit them. By my calculation, 11 you probably already should have conferred.

12 Could someone give me a report on the 13 progress or status of that effort? Maybe I could 14 start with Mr. Lewis.

15 MR. LEWIS: Yes, sir. This is David 16 Lewis. We transmitted proposed stipulations to the 17 other parties on June 9 th. We have been waiting to 18 hear back. I suspect that everybody's been sort of 19 deluged with testimony and questions and I've not 20 heard back from the other parties on whether there is 21 willingness to accept the stipulations.

22 JUDGE KARLIN: Okay. What's the deadline 23 for submitting the joint stipulations by your 24 calculation?

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653 1 30 *. It -is June 3 0th 2 JUDGE KARLIN: June 3 0 th, okay. Well, 3 NEC, perhaps you could speak to this. What's the 4 situation?

5 MS. TYLER: Well, as received and Mr.

6 Lewis referred to proposed joint stipulation, Entergy 7 has ci-rculated a. copy of the initial statement of 8 positions and of the statements of finding and fact 9 that -- on its motions for summary dispositions and 10 has basically asked NEC what of that material it could 11 agree to. We've been occupied with responding to the

.12 motions in limine and putting together the direct 13 examinations plans and haven't turned to that as yet 14 but hope to do so within the next couple days.

15 JUDGE KARLIN: Okay. Has the staff 16 participated in this, Ms. Baty?

17 MS. VALLOCH: Well, -- Ms. Baty and I 18 spoke with Ms. Tyler about what we received from 19 Entergy and I told her and I think the staff's 20 position is that we don't really need to be involved.

21 I mean, this is really between Entergy and NEC as far 22 as coming up with the joint stipulations.

23 JUDGE KARLIN: Well, all I would say is I 24 think we have asked the parties including the staff to 25 work on joint stipulations. I think there is a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.

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654 1 foundation for that and'motion for summary disposition that have occurred here wherein certain facts were 3 stated and some of them were admitted and that would 4 seem to be a basic core of agreed-upon facts and it 5 would promote this proceeding, I think, if the parties 6 could turn to that and submit a joint effort on some 7 of the basics. It would help us clear some of the 8 underbrush out and would allow us to focus on the key 9 issues *a little better.

10 So we all, I think, strongly encourage you 11 to submit those. I'm not sure what the calculation is 12 in terms of the deadline and my date was the 2 7th of 13 June actually. But there may be service of process 14 issues that have interceded to make that a little 15 different.

16 I would ask the parties, particularly NEC 17 and Entergy, to confer to try to come up with some 18 joint stipulations of fact as called for in our order 19 of December 1 3 th and, if you can't do that, then we 20 ask for you to submit if someone has something and 21 someone else disagrees, you could submit an objection 22 *to that. But please focus on that.

23 We're going to turn to the next item 24 unless there's discussion. Dr. Reed.

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655 1 on, if I could take a moment to ask Mr. Lewis.. Mr.

2 Lewis, do you think that we need an extension of that 3 deadline or can we do it?

4 COURT REPORTER: I'm sorry. Who is 5 speaking?

6 MS. TYLER: This is Karen Tyler.

7 COURT REPORTER: Thank you.

8 MS. TYLER: I had actually thought that 9 the deadline to file the stipulations was Friday of 10 this week, the 2 9 1h So I have to get a third 11 interpretation. Mr. Lewis, do you think that we 12 actually could hope to put something together by 13 Friday or should we ask the Board at this point. to 14 extend that deadline?

15 MR. LEWIS: Friday is the 27"~. So your 16 date is the same as Judge Karlin.

17 MS. TYLER: I guess I agree with Judge 18 Karlin.

19 MR. LEWIS: I suspect I was one day off 20 counting on my fingers and toes.

21 MS. TYLER: Okay.

22 MR. LEWIS: I think I came up with the 23 2 8 1h and bumped it to the 3Q01. I do agree that if we 24 just tried to finalize that list now the 2 7 1h is 25 probably an overly optimistic date for reaching an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W-(202) 234-4433 WASHINGTON, D.C. 20005-3701 wvvw.nealrgross.com

656 1 agreement.

2 MS. TYLER: I think it makes sense to put 3 some real effort into those. How much time do you 4 think we need?

5 -MR. LEWIS: I wish I knew. I haven't 6 heard her first bounce-back on whether we're close or 7 not.

8 MS. TYLER: Yes. Should we ask for an 9 additional week?

10 MR. LEWIS: I'm amenable to that.

11 MS. TYLER: Okay.

12 MR. LEWIS: We'd like to try and make this 13 work now.

14 MS. TYLER: But my co-counsel has just 15 pointed out that that would actually make it right 16 before the holiday weekend, the Fourth of July.

17 JUDGE KARLIN: Right.

18 MS. TYLER: Perhaps we could request to 19 file after that?

20 JUDGE KARLIN: Yes, I think -- I don't 21 know that this is on the critical path to any other 22 . particular activity. So, yes, I think we -- That 23 extension makes sense and why don't we say July --

24 (off the record comment.)

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657 1 Tuesday after the holiday weekend.

2 COURT REPORTER: I'm sorry. Is this Mr.

3 Lewis?

4 JUDGE KARLIN: This is Alex Karlin, one of 5 the judges.

6 So if we could -- With agreement of my 7 colleagues, we will extend that date and ask for your 8 submission and instructed the submission, of whatever 9 you have in terms of joint stipulations on July 8 th.

10 Okay?

11 (No verbal response.)

12 Not hearing anything, we will proceed.

13 MS. HOFMANN: Judge Karlin, I'm sorry.

14 This is Sarah Hofmann. We will consult with NEC since 15 we're adoptors (phonetic) of their contention. But I 16 assume if any parties remain quiet and we agree on the 17 stipulation then we are then bound to those 18 stipulations. Is that correct?

19 JUDGE KARLIN: Well, that's right. If the 20 State of Vermont is an adoptor of the NEC's contention 21 and so, in that circumstance, you must pick a lead 22 counsel, a lead entity, for that contention or any of 23 the contentions. The three contentions are NEC 24 contentions primarily and the State of Vermont is an 25 adoptor of those contentions. So you're a second NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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658 1 chair and do not have an independent status other thanr 2 -- So whatever you want to get you'd better work with 3 Ms. Tyler because what Ms. Tyler says is going to bind 4 vis A vis those stipulations.

5 MS. HOFMANN: Absolutely, I totally agree 6 with that. But I was wondering by the same token the 7 staff earlier indicated that they were going to leave 8 the stipulations to between Entergy and NEC. So I 9 would assume then they would be bound also by the 10 stipulations.

11 JUDGE KARLIN: That's correct.

12 MS. BATY: Your Honor, if I may. This is 13 Mary Baty. We feel that we wouldn't take a lead role 14 in it, but we would like to have an opportunity and I 15 will be in touch with Entergy and NEC. We would like 16 to see this --

17 (Off the record comment.)

18 MS. BATY: -- see the stipulations and see 19 whether we have any frustrations.

20 COURT REPORTER: I apologize. This is the 21 Court Reporter. I didn't catch your name.

22 MS. BATY: Mary Baty.

23 COURT REPORTER: Thank you.

24 JUDGE KARLIN: Yes. Correct, Ms. Baty.

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65.9 i would be part and parcel of any joint stipulations and 2 be bound by that and therefore get your oar in the 3 water and get involved and, if you have some problem, 4 you'd better let us know on July 8 h what your problem 5 is if they have some joint stipulations. So, yes, 6 please participate actively as you see fit.

7 Anything else on joint stipulations?

8 (No verbal response.)

9 The second item, status of the FSER. In 10 our April 3, 2008 order in paragraph six, we, I think, 11 asked that the staff submit the FSER as an exhibit so 12 that we could avoid partial sort of piecemeal 13 submission of the FSER. I notice that the staff's 14 initial submission gave only part of the FSER. I 15 believe it was Staff Exhibit No. 1. I'm not sure 16 whether that covers the waterfront and covers and what 17 we need. What was your reasoning, Ms. Baty? Why did 18 you submit the entire FSER as what I thought we had 19 suggested>

20 MS. BATY: Well, Your Honor, I apologize.

21 We weren't clear from the order whether you wanted the 22 whole thing or whether the Board wanted just a portion 23 and our reasoning at the time was just that it's such 24 a massive document that we had a lot of trouble 25 emailing all the documents for the initial position.

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660 1 So we chose to submit the critical portions of the 2 FSER. But we have no problem with if the Board wants 3 the whole thing for hearing changing Exhibit No. 1 and 4 making it the entire FSER.

5 Also I noticed that we last minute didn't 6 include as a separate exhibit the ACRS report and I 7 know that in Oyster Creek the Board wanted that as a 8 separate exhibit and we can do that as well if that's 9 what the Board would want.

10 JUDGE KARLIN: Yes, let's stick to the 11 FSER for the moment and did any of the other parties 12 look at the staff's submission and think that it was 13 missing anything or -- Well, I think, Ms. Baty, we 14 would just an abundance of caution ask you please to 15 insert the entire FSER as an exhibit here. Okay/

16 MS. BATY: Your Honor, we will do that.

17 JUDGE KARLIN: Thank you, Ms. Baty.

18 Now any concerns or objections of that?

19 I assume not.

20 MR. LEWIS: No, Judge Karlin.

21 JUDGE KARLIN: Okay. Now with regard to 22 the ACRS report, I believe that's a --

23 (Off the record discussion.)

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661 1 2.337(j) (2) (I) . So, yes, I think you, the staff, 2 needs to and we'll a'k you to submit any reports 3 submitted by the ACRS in the proceeding in compliance 4 with Section 182(b) of the Act.

5 MS. BATY: Judge Karlin, can I ask for a 6 clarification? Right now, the FSER is a bound copy 7 that we sent in the mail. The ACRS report is part of 8 the FSAR. So I guess my question is if you want to 9 include it in the FSER or as a separate exhibit.

10 (Off the record discussion.)

11 JUDGE KARLIN: I think if it's in the FSER 12 that's sufficient.

13 MS. BATY: Okay. Well, that's what we'll 14 do.

15 JUDGE KARLIN: Yes, that's fine. Okay.

16 Thank you for that.

17 No. 3 on the agenda, instructions relating 18 to exhibits and exhibits include both documentary 19 exhibits and testimony and affidavit that's been 20 submitted in writing, you know, the initial testimony 21 and the rebuttal testimony.

22 We have to cover a few things here. As a 23 background matter and I think a couple of you have 24 raised this as a concern, we need to get all of the 25 exhibits properly marked and stamped and I think three NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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662 I coplies need to be submitted to SECY for the record.

2 They Deed one and others. There is certain protocol 3 here. And we go through the protocol of being 4 proffered and then any objections and an admission of 5 the documents.

6 In the past, what we've done, we did it 7 before, the Vermont Yankee on the uprate as was 8 alluded to earlier, was go through each exhibit from 9 each party and proffer it and object and admit and 10 this becomes a little tedious and so we're going to 11 try and expedite that if we can with the following 12 approach.

13 The evidentiary hearing starts on the 21S' 14 of July, Monday. We're going to start it at 1:00 p.m.

15 But at 10:00 a.m. that morning, all parties who are 16 proffering exhibits need to arrive at the courtroom 17 crisply at 10:00 a.m. or before to meet with our law 18 clerks, Marsha Carpentier and Lauren Bregman, to make 19 sure that all the exhibits are properly marked and 20 that the proper number of copies are available for all 21 of -- each and every one of your exhibits and just to 22 go through the boxes and piles of materials that need 23 to be submitted and make sure it's right.

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663 1 how to do that, what you need to do, how many copies 2 and proper marking. We'll send out those stamps 3 because you need a stamp for the marking and you can 4 be in communication with Ms. Carpentier on that or Ms.

5 Bregman. Ms. Bregman isn't here right now. She's out 6 for the week, but to follow inquiries about that. But 7 why don't you wait until we issue some instructions 8 and then you can follow up with some questions.

9 Once you meet at 10:00 a.m. with the law 10 clerks, make sure all the documents are duly together 11 and submitted, then what we will do is ask each party 12 to proffer the submission of all of their exhibits at 13 one moment in mass and then we will hear -- there will 14 be no objections, I presume, except those objections 15 which have already been filed vis A vis the motions in 16 limine which will be ruled on either at that time or 17 prior to that time, hopefully prior to that time, and 18 then they will be admitted subject to the motions in 19 limine that have been filed in mass and we can do this 20 in five minutes instead of 45 minutes at the starting 21 of 1:00 p.m.

22 One of the things we want to say is when 23 you submit these exhibits, three stacks of exhibits, 24 for SECY and the record, you need to keep the 25 numbering and labels that you've used the same. We NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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664 1 have been studying your materials trying to digest 2 them and to develop questions we might have about them 3 and our questions are correlated obviously with the 4 exhibit numbers that you have given us to date. So 5 don't change-those numbers.

6 If there are duplications, i.e., the staff 7 and the Applicant and Entergy are all submitting the 8 same document as an exhibit, you may have different 9 exhibit numbers, you know, Entergy Exhibit 15, NEC 10 Exhibit 23, Staff Exhibit 14. Keep those number, but

11. only one copy of the document needs to be submitted 12 and shlepped up to Newfane and what we would say is if 13 -- Let's start with Entergy. If Entergy has a 14 document that it's submitting as an exhibit, that will 15 be the one document that we want submitted. The other 16 two parties don't need to duplicate the physical 17 submission. Next is the staff. If the staff has 18 something, then the other two -- then NEC doesn't need 19 to. We'll give written instructions on that.

20 But the key point is we'll give written 21 instructions and there will be a meeting at 10:00 a.m.

22 in Newfane with the law clerks for the review of them 23 and make sure that all the documents are really there 24 before they're admitted in mass starting at 1:00 p.m.

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665 1 questions on that?

2 MS. HOFMANN: Judge Karlin, this is Sarah 3 Hofmann from the State of Vermont and I just wondered 4 will the written instructions also cover

5. proprietary/nonproprietary treatment?

6 JUDGE KARLIN: We are going to talk about 7 that a little bit. Yes, we can address that. What 8 particularly do you have in mind?

9 MS. HOFMANN: I just wanted to smooth the 10 process to make sure everybody knows how we're 11 supposed to handle the proprietary documents versus 12 the nonproprietary. Is there anything special you 13 want us to do?

14 JUDGE KARLIN: Okay. We'll probably want 15 them labeled with put a P at the end of it or some 16 sort of a denominator that's proprietary. That's one 17 thing. There may be two versions of a document, a 18 redacted version which is nonproprietary and a 19 unredacted version which proprietary. And if we end 20 up having, I was going to talk about this a little 21 later, an evidentiary hearing session where we need to 22 ask questions about proprietary documents or if we 23 stray over into questions about proprietary documents, 24 we want you to point that out to us. But if we decide 25 we need to ask some questions about proprietary NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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666 1 documents, we will have to have a closed session for 2 a short period of time in which only the counsel and 3 the parties, the people who have signed the non-4 disclosure agreement, can sit in the courtroom at that 5 point.

6 MS. HOFMANN~: Thank you. That was all 7 very helpful.

8 JUDGE KARLIN: Okay. That's good. Good 9 question. Anything el1se on exhibits at this point?

10 Okay. Next, basic rules of conduct at the 11 evidentiary hearing. Kind of just the obvious. We're 12 going to start on July 21"t at 1:00 p.m. We will go 13 all day. We're hoping to finish up by Friday 14 afternoon. We'll start either at 8:30 a.m. or 9:00 15 a.m. and we'll go to 5: 00 p. m. or 6: 00 p. m. We may be 16 able to hit one contention per day for awhile. We're 17 not sure. They're going to vary.

18 Second, I remind you of the initial 19 scheduling order, page 12, where we said that every 20 party needs to bring all the witnesses for whom 21 they've submitted initial -- who submitted testimony, 22 written testimony, either initial or rebuttal. You're 23 responsible for bringing those witnesses with you and 24 having them at the hearing so that we can call upon 25 them and ask questions.

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667 i1 If someone, for example, you know, if we 2 decide at some point that some witness doesn't need to 3 be there, we will try to tell you in advance. If we 4 decide or if it's ruled that a witness is not 5 appropriate, the motion regarding Mr. Witte for 6 example, obviously we'll try to rule on that in 7 advance and that may excuse him. It may or may not.

8 But a general rule, everyone needs to be there. All 9 the witnesses need to be there.

10 I think -- We do plan, I think, to ask 11 each party, each of the three primary parties, to give 12 a brief opening statement regarding their case on all 13 three contentions. Then we will go one contention at 14 a time probably in sequence, two, three and four, in 15 that order. is there any objection/problem, witness 16 difficulty which would cause -- Does anybody need a 17 change in that sequence?

18 MS. TYLER: This is Karen Tyler for NEC.

19 JUDGE KARLIN: Yes.

20 MS. TYLER: I don't know if this is 21 possible in light of other witnesses' schedules, but 22 NEC, Ulrich Witte and Rudolph Hausler, would only 23 testify on Contention 4. So if it were possible, NEC 24 would prefer that the Board consider Contention 4 25 first so that Mr. Witte and Mr. Hausler could leave NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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668 1 -aftier testifying.

2 JUDGE KARLIN: We might be able to set. up 3 a system where we would assure you that they don't --

4 we won't start Contention 4 until, you know, I don't 5 know, Thursday morning or Wednesday morning so that 6 they wouldn't have to be there Monday/Tuesday, but 7 they could be there Wednesday and Thursday.

8 MS. TYLER: I think that could work, too.

9 Mr. Hausler is flying in from Texas and needs to buy 10 plane tickets within the next few days. When co uld 11 you let us know that for sure?

12 JUDGE KARLIN: We could probably after I -

13 - First I want to hear from the other parties. Is 14 there any other witness issues? I mean, I understand 15 your issue of wanting to have it first so they could 16 leave quickly.

17 MS. TYLER: Yes.

18 JUDGE KARLIN: I suspect the same may be 19 true for others who say, "I would like to get mine 20 first so I can leave quickly."' But does anybody have 21 an incontrovertible sort of problem that a witness 22 just can't be available on Monday or Tuesday?

23 MR. LEWIS: This is David Lewis. We don't 24 have that sort of problem. We were hoping that the 25 order would be two, three and four and we do have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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669 1 witnesses, one coming from Colorado and one coming 2 from California, and therefore it would be helpful to 3 know the order now and know the earliest date on each, 4 two, three, four.

5 JUDGE KARLIN: Okay. I think what we can 6 do is confer amongst ourselves and let you know by the 7 end of the week via informal means anyway from Ms.

8 Carpentier about the basic sequence and I think we can 9 probably agree to, my colleagues, to say we probably 10 won't start four until at least, you know, the 11 witnesses for four don't need to be there until,.say, 12 Wednesday morning at the earliest. We probably 13 wouldn't get to four until Wednesday morning. And if 14 we finish early on two and three, we could take 15 Tuesday afternoon off and then we would start on 16 Wednesday morning. I don't know, something like that 17 and maybe it's even Thursday morning.

18 MS. UTALL: Excuse me. Judge Karlin.

19 JUDGE KARLIN: Yes.

20 MS. UTALL: This is Susan Utall from the 21 staff. So does this apply to the staff also? We 22 don't have to have our witnesses for Contention 4 23 until the Board is going to be ready to hear 24 Contention 4 and the same for Contentions 2 and 3?

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670 I witnesses need to be there the whole week. What we're 2 goingr to try to do is- come up with a mechanism where 3 we can say the people for Contention 4 don't need to 4 be -- show up until X date, X time.

5 MS. UTALL: Okay.

6 JUDGE KARLIN: We're going to try to 7 accommodate that. I mean, that's logical. We'll try 8 to do that. That's fair enough. We don't know how 9 fast or slow this is going to go. We're not sure at 10 any rate. We had just started going through your 11 proposed questions. So, yes, right now, everybody 12 needs to be there the whole week, but we'll try to get 13 back to you by the end of this week. We will get back 14 to you by the end of this week after I confer with Dr.

15 Reed and Dr. Wardwell and see if we can come up with 16 some dates to help a little bit on that front.

17 Okay. With regard to each contention, 18 what we are planning to do is impanel all of the 19 witnesses from all three parties in mass. They'll 20 probably sit over in the witness box if you've been 21 there before and then we will question them, sometimes 22 together, sometimes separately, but they'll all be 23 impaneled at the same time. So they'll be sitting 24 there together.

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671 1 pursuant to the regs. under Subpart L and, as I said 2 before, if we have a proprietary session we'll clear 3 the courtroom except for people who have signed a non-4 disclosure agreement.

5 The pre-hearing orders that we issue may 6 ask that specific witnesses or parties provide us with 7 a short summary or presentation on a given subject if 8 we think that would be helpful. I mean, we are 9 reading and have read your materials. So you should 10 have gotten your basics in and everything else in in 11 those written materials. But we may ask for a 12 specific witness provide us a short summary or 13 presentation on specific subjects.

14 At the end of the questioning of the 15 witnesses on any given panel, we'll probably follow 16 the same procedure that we did in the license uprate 17 which is we will ask the parties if you have any other 18 questions that you think we need to ask of the 19 witnesses. What we'll probably do is take a 15 minute 20 break and then allow the parties to submit to us in 21 writing or orally in open court, your choice, but 22 you're only going to have a short amount of time any 23 additional questions you think we should ask or things 24 we missed or follow up type of items.

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672

1. reiterate all of your questions that you've already 2 suggested to us in your direct examination plans. We 3 will have read those questions and presumable if we 4 ask them we thought they were good and relevant to our 5 concerns and- if we didn't ask them it's because we 6 didn't think they were going to be helpful to our 7 decision. But generally it's not a time to reiterate 8 all your previously submitted questions. But at the 9 end, we'll give you an opportunity to tell us if 10 there's something additional we need to ask.

11 You probably need to be able to -- If you 12 want to do this writing, sort of ex parte, you have to 13 be able to do it pretty quick. But presumably as we 14 go along during the day, your ideas will come and 15 you'll be able to -- either handwritten if it has to 16 be. That would be sufficient. But that's our basic 17 approach for the evidentiary hearing.

18 Any questions or things we didn't cover 19 that you need answered?

20 (No verbal response.)

21 Okay. Hearing none, we'll move on to the 22 next agenda item which is kind of an advanced notice 23 of several issues of troubled us or are of concern to 24 us that we probably will cover.

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673 1 say that we noticed a tendency of thestaff and the 2 Applicant to, I think, misconstrue perhaps what the 3 issues are in this case and we just wanted to without 4 much ado reference-you perhaps to Entergy's initial 5 statement of positions of May 13, 2008 on page five.

6 This is just an example. Staff makes what I think is 7 the same misstatement. They're talking about steam 8 dryer. I don't know whether you can return to that 9 page, but with regard to the steam dryer, there is a 10 discussion on page five, "Compliance with this 11 regulatory requirement is demonstrated by meeting the 12 guidance in NUREG 1800 and NUREG 1801, the GALL 13 report." It goes on to say at the end of that 14 paragraph, "The issue with respect to the steam dryer 15 therefore is whether the aging management program for 16 the dryer developed at Vermont Yankee satisfies this 17 guidance."

18 That is not the issue that we see because 19 as I think everyone will posit NUREGs and staff 20 guidance are guidance. They are not law. They are 21 not statutes. They are not case law. They do not 22 bind this Board. So the issue for us is not whether 23 something satisfies a NUREG. The issue for us is 24 whether it satisfies the regulatory requirement. So 25 do not expect witnesses to testify to us that that is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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674 1 the end of the inquiry. That. is an interesting fact.

2 The staff feels that it meets their guidance. That's 3 worth knowing-but is not dispositive.

4 Likewise, in that same paragraph, it says,

5. "The issue then is whether the FAC control program and 6 energy intense implemented at Vermont Yankee after 7 license renewal is consistent with the guidance in 8 that section of the GALL report." Again, hopefully 9 you see for reasons I just explained that that is not 10 the issue as far as this Board is concerned. Please 11 be aware of that. We are not bound by the staff 12 guidance pro or con and we're looking at different 13 criterion than that.

14 Second, advance notice of issues, NUREG 15 CR-6909, Entergy's initial statement at page 15, for 16 example, this comes up in a number of places. I think 17 this is a factual question we may want to probe, we 18 are going to probe, at the evidentiary hearing. What 19 is entitled in complying with NUREG 6909? What is the 20 difference between 6909 and the other methodologies 21 that are prescribed in other NUREGs?

22 The staff and the Applicant seem to have 23 simply responded that that's not the one that the 24 NUREGs call for and therefore we don't have to worry 25 about it and further that there's some discussion NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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675

1. about whether it's more conservative or less 2 conservative. I'm just suggesting that we're going to 3 want to know from the.staff and from the Applicant as 4 well as from the Intervenor a considerable more about 5 that NUREG and how it compares to the other NUREGs 6 that the staff is using here.

7 Third, with regard to the cumulative use 8 factors environmentally adjusted, otherwise known as 9 CUFENs, we have some factual questions regarding the 10 CUFENs for the core spray nozzle and the recirculation 11 outlet nozzle. First, as a legal matter, we may ask 12 for briefing regarding whether it's permissible to 13 postpone doing the CUFENs for those until after the 14 license renewal is issued and, second, as a factual 15 matter, what is entailed in doing the CUFENs for those 16 two nozzles and we're just curious of what seems to be 17 the difficulty and what's entailed in doing that?

18 Fourth issues we might point out is 19 Contention 2. As we see it, Contention 2 has morphed 20 and evolved from initially a contention of an 21 inadequate aging management plan, that was the 22 allegation, into a CUFEN analysis or reanalysis which 23 would seem to or arguably show CUFEN's lesson one and 24 that was contested in 2(A) and then 2(B) contested the 25 one specific CUFEN reanalysis and now it seems to me NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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676 1 that it's almost evolved back to a position that was 2 a suggestion that by doing CUFENS I-Pter that 3 constitutes an adequate aging management plan.

4 The point I think we're making is that we 5 see this -- All three parts of Contention 2 seem to be 6 on the table, 2, 2 (A) and 2 (B). And, so we'll be 7 probing, I think, asking questions, related to all 8 three of those potential aspects of Contention 2.

9 Fifth, just a point regarding factual 10 issues, some of the factual issues I just named and 11 maybe others, we may call for a submission prior to 12 the evidentiary hearing and say, "Look. Why don't you 13 give us something in writing on this, " and might 14 direct it at a particular party, the Applicant, Staff, 15 the Intervenor. Many of the other issues and some of 16 them I just mentioned obviously we'll ask at the 17 evidentiary hearing itself.

18 .Next as to legal issues, however, our 19 current intent is because obviously at an evidentiary 20 hearing the witnesses do not testify as to what the 21 law is. They're not there -- There are no experts are 22 going to testify on the law. We may ask for a legal 23 briefing on a couple of issues in advance of the 24 evidentiary hearing and our current thinking is we get 25 something out to you within a week or two, by the end NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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677 I of next week and maybe call for briefs sometime during 2 the week of July 7 th and responses the following week 3 of July 1 4 t" I guess it is, answers.

4 Any additions, Judge Wardwell?

5 JUDGE WARDWELL: No, I think -- Just one 6 I'll mention as one that may come up that we ask for 7 and that is a summary presentation on how CHECWORKS 8 actually works. I know it's the heart of much of 9 Contention 4 and being a proprietary software would 10 like or considering asking for a brief 15 minute 11 presentation on just the nuts and bolts of how that 12 works, the input parameters, mathematical analog, 13 outputs and what types of calibration, verification or 14 tracking, whatever you call it, is involved with that.

15 Probably requested of the Applicant's expert on that 16 and i-t's to be just the heart of how it works with no 17 editorial comments in regards to tension issues, but 18 mostly to get everyone up to speed on seeing the very 19 basics of how that actually functions.

20 JUDGE KARLIN: Okay. Dr. Reed, anything 21 you wanted to add on those advance notice of issues 22 that we might be asking questions about?

23 JUDGE REED: No, I have nothing additional 24 to add.

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678 1 that?

2 MS. TYLER: Yes. This is Karen Tyler. I 3 need a little clarification about your instruction 4 that we're to be litigating Contention 2 as well as 5 Contentions 2(A) and 2(B) . Contention 2, . if I 6 understood it, CUFEN orders is held in abeyance at the 7 moment and we were to be litigating only Contentions 8 2(A) and 2(B) at this hearing and, as I understood it, 9 we were to litigate Contention 2 which went to the 10 sufficiency of Entergy's aging management plan only in 11 the event that the Board ruled in NEC's favor on 12 Contentions 2(A) and 2(B) which concern exclusively 13 the sufficiency of the CUFEN analysis. And I think 14 that the issue of whether that CUFEN analysis can be 15 corrected or completed as a component of the aging 16 management plan, that's really an issue of -- a legal 17 issue. I think that's an issue of the interpretation 18 of Rule 54.21(c) (I).

19 So basically, NEC has not briefed its 20 position on Contention 2 and is not prepared to 21 litigate the sufficiency of any aging management 22 program for metal fatigue in July.

23 JUDGE KARLIN: We were -- Our take is that 24 you have raised that issue by virtue of what we see a 25 challenge in questioning of the postponement of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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679 1 conduct of the CUFENs for the core spray nozzle and 2 the recirculation outlet nozzle. As I understand part 3 of your challenge, it's a legal challenge, yes. But 4 that's not permissible.

5 As I understand, -the staff took a position 6 with regard to 54.21(c) (3) (ii) versus (I) and so 7 there's a legal issue in there as to whether that's 8 permissible and then the second issue would be if 9 they, and you have addressed that as I see it in your 10 materials, that is the plan that they have, let's 11 assume that's legally permissible to postpone conduct 12 of CUFEN reanalysis until after the license renewal is 13 issued.

14 The question then evolves into maybe is 15 the proposal by Entergy to conduct such CUFEN 16 reanalysis on those two nozzles adequately elaborated 17 so that it's an adequate management plan. And I think 18 you've talked about that and it's a simple matter to 19 address which is to say if it is indeed an aging 20 management plan and it is a legitimate thing to do 21 under (iii), then is it just some vague statement or 22 is it relatively specific in terms of what's entailed 23 and we're going to ask the staff and the Applicant 24 perhaps what is entailed, as I've said, in doing that.

25 We see this as to Entergy and NEC part of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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680 1 their contention and I understand it's in abeyance.

2 But it's clear from the initial statement and rebuttal 3 statements that --

4 (Off the record comments.)

5 It's clear from the initial statements and 6 the rebuttal statements that this is an issue to us.

7 MS. TYLER: This is Karen Tyler again. I 8 think that this is a little convoluted to me right 9 now. Basically, as I've understood it, our original 10 Contention 2 was about the sufficiency of Entergy's 11 aging management program for metal fatigue which in 12 the license renewal application basically was not 13 presented. What was presented was an intention to 14 develop that type of program later.

15 That contention was stayed when we 16 submitted Contentions 2(A) and 2(B) which have to do 17 with the refinement of the fatigue analysis. And as 18 I understood it, the refinement of the fatigue 19 analysis was to substitute for the development of the 20 aging management program. That is, if Entergy could 21 demonstrate it through refinement of the fatigue 22 analysis that, in fact, it didn't have an issue with 23 environmentally assisted metal fatigue, then it would 24 avoid the obligation to develop an aging management 25 program. Okay. So that's what I thought we were NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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681 I litigating under Contentions 2(A) and 2(B) is the 2 sufficiency of that reanalysis.

3 Now the issue of whether they can continue 4 to work on this reanalysis as an aging management 5 program, we've briefed that solely as a legal issue.

6 It's our position that under 54.21(c) (1) they have to 7 submit that TLAA analysis that's part of the license 8 renewal application and it's only if they can't extend 9 that TLAA to the end of the license renewal period 10 that they then are required to develop an aging 11 management program under 54.21(c) (1) (iii).

12 So again, we briefed that issue which goes 13 purely to the timing of when Entergy has to finish 14 this TLAA. We've briefed that purely as of the 15 interpretation of the regulations and it's our 16 understanding that if the Board were to rule in NEC's 17 favor and find that the TLAA analysis is either 18 invalid or is incomplete and on the question of laws 19 that Entergy is required to submit an analysis that is 20 valid and complete as part of the license renewal 21 application, if the Board were to agree with us on all 22 of those points, then it would rule in NEC's favor on 23 Contentions 2(A) and 2(B) and we would then, Entergy 24 would then, be required to develop an aging management 25 program for metal fatigue, that we would have the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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682 1 opportunity to review and litigate under NEC's 2 Contention 2. So I'm not prepared or comfortable with 3 litigating NEC's Contention 2 in July.

4 JUDGE KARLIN: Let me perhaps clarify a 5 little bit; Your Contentions 2(A) and 2(B) challenge, 6 for example, 2(A) as I understand it challenges some 7 of the CUFEN reanalyses that were done by Entergy, 8 that they weren't done properly or adequately or 9 whatever. There- are difficulties. There are 10 uncertainties. There are other problems with the 11 CUFEN reanalysis that they did for 2(A).

12 If we were to agree with you ultimately 13 that those CUFENs were not done properly, then I think 14 that NEC, I'm sorry, Entergy would have -- Then we 15 would have a different ball game and Entergy would 16 have the option of either proposing an aging 17 management plan to deal with those problems or 18 correcting its calculations in some way that would get 19 its CUFEN to be under one. I agree with that. So 20 you're not prepared to litigate the aging management 21 plan or not vis A vis the CUFEN problems that are 22 raised in Contention 2(A).

23 But if we were to agree with Entergy and 24 say, "No, it looks like, Entergy, you did those CUFENs 25 right. We're happy with that. We think you satisfy NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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683.

1 the regulatory requirement on the CUFENs that you've 2 done, but then there's this legal issue of whether you 3 can postpone doing CUFENs with regard to the other 4 nozzles" -- And so we agree with Entergy that they've 5 done the CUFENs to the extent they've done any 6 correctly. But then we agree with NEC on the 7 proposition.

8 But those two that haven't been done, you 9 know, the question is can it legally be postponed 10 until later. And let's say we rule that, yes, it can 11 be legally postponed and we rule that way on the legal 12 issue, then there becomes a factual issue having 13 acknowledged that it can be legally postponed. Is 14 what they propose to do with regard to those two 15 nozzles an adequate aging management plan? And they 16 have asserted in these pleadings that it is and I 17 believe you have asserted that it is not, not just for 18 the legal issue, but for it's not an adequate aging 19 management plan, legally and factually.

20 So I think we would propose to go with 21 that now and if this becomes a problem, we may provide 22 an opportunity for additional submission. But that's 23 our current approach to this thing.

24 It seems a little convoluted. I think it 25 will become a little clearer when we submit some of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW.

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684 1 our requests for briefing. I mean, obviously- no one 2 has submitted briefs yet. What's been submitted is 3 initial statements of position, initial testimony, 4 initial exhibits. And so it's a little convoluted and 5 we just want to forewarn people that we see this issue 6 with regard to the two nozzles as going back. Even if 7 everything else were okay, those two nozzles going 8 back actually are at an adequate aging management plan 9 setting aside the legal issue.

10 MS. TYLER: This is Karen Tyler. I don't 11 want to beat a dead horse. This is the last thing 12 that I'll say about this, but I feel that NEC has 13 dealt with this issue solely as a legal issue whether 14 Entergy can complete or postpone the TLAA as an aging 15 management plan and we really have not briefed the 16 issue as a factual matter, whether that would 17 constitute a sufficient plan.

18 JUDGE KARLIN: Okay. All right. Anyone 19 else have anything? Question or issues here?

20 (No verbal response.)

21 All right. Let's move onto the next item 22 which is evidentiary hearing logistics. Hopefully, 23 many of you, all of you, have already seen the 24 courtroom up there. It's pretty close quarters. The 25 seating arrangement, we have primary parties in this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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685 1 case as we see it, the Applicant, NEC and the NRC 2 staff. They have submitted the initial testimony and

3. statements, etc. We have three secondary parties 4 initially, Vermont which is an adoptor of NRC's 5 contentions, New Hampshire which is an interested 6 state and Massachusetts which is an interested state.

7 I think our approach would be to have 8 three tables across the front of the room, one for 9 each of the primary parties and there may be a table 10 behind them for the secondary parties to sit. It's 11 going to be crowded and cramped. But that's kind of 12 one of the logistical things.

13 The second point is if you have any 14 equipment such as audio-visual equipment or other 15 computer things that you need to have, make sure you 16 sort it out with the clerk of the court up there. I 17 believe his name is Mr. Robinson and maybe coordinate 18 with Marsha Carpentier or Karen Valloch. It's a 19 pretty simple place up there.

20 I mean, audio-visual, it's unlikely that 21 any of your witnesses will be doing any audio-visual 22 because they're going to be responding to our 23 questions. So they won't really know what to do an 24 audio-visual on with the exception of if we ask for a 25 presentation for 15 minutes or 10 minutes on some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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686 1 topic. Then there could be some sort of slides or 2 Pn-,erPoint or something that would help. If any of 3 those happen, those will have be exhibits as well.

4 It's not air conditioned, I don't think.

5 But I think hopefully we'll be all right in Vermont at 6 that time of year. I don't know.

7 MS. HOFMNNA": Judge Karlin, this is Sarah 8 Hofmann from the State of Vermont and we'd just ask 9 that -- I have no problem with the description of the 10 layout of the courthouse. But we would like to have 11 a table, if ours could behind NEC's or near it in some 12 way because we will be consulting with them as an 13 adoptor.

14 JUDGE KARLIN: Yes. Okay.

15 MS. HOFMANN: Thank you.

16 JUDGE KARLIN: I think that's logical.

17 And you will have to work out the lead on any given 18 item obviously. Okay.

19 MS. HOFMANNTh: I believe we've claimed they 20 are the lead.

21 JUDGE KARLIN: Yes.

22 MS. HOFMANN: Thank you.

23 JUDGE KARLIN: Next is interested state 24 issues. Well, the two interested states in this 25 proceeding are New Hampshire and the State of Vermont, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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687 1 i'm sorry, the State of Massachusetts. Vermont is an 2 adoptor of the contention and is therefore technically 3 not an interested state, although I'm sure you're very 4 interested in this.

5 And the interested states, their rights to 6 produce documents and evidence, they didn't really 7 submit anything. Their right to cross examination is 8 a function of there's a right of the parties to cross 9 examination and no one has asked for cross examination 10 and so I don't know that there's a role, what role 11 they will play, but they certainly can be here and 12 they're welcome to be there.

13 An ultimate item, decorum in the court 14 room, hearing room, the last time we were up there for 15 an evidentiary hearing we had a couple of disruptions.

16 I know that's probably not within anyone's complete 17 control. But if you each could inform or get the word 18 out to your employees and to your members the nature 19 of this proceeding is judicial. It's not an 20 opportunity for people to talk or ask questions from 21 the audience and therefore if we can encourage -- so 22 they can have an accurate expectation of what this 23 process is.

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688 1 proceeding or even move it down to Rockville. I mean, 2 the last thing it seems to me that the people of 3 Vermont would want is to have this whole thing removed 4 to Rockville because one or two people stand up and 5 try to filibuster and cause problems. I know you 6 can't prevent that, but I please ask you to encourage 7 people and inform people to the extent you can to help 8 us get through this and do it right because we're 9 going to try to do a fair and good job on it.

10 Finally, PDF searchable submissions, Judge 11 Reed, in particular, would appreciate it -- He's a 12 cutting edge electronic guy on this team and he's 13 trying to follow things electronically. So I believe 14 NEC is maybe the difficulty. Is it possible for you 15 to submit what I understand to be PDF searchable 16 statements, the initial statement of your position and 17 witness testimony? I know the exhibits themselves get 18 photocopied in. But, Judge Reed, perhaps you could 19 address that.

20 JUDGE REED: Yes. Thank you.

21 What I'd like to be able to do is to be 22 able to select the text and cut and paste and search 23 within the text and the way the NEC documents have 24 been filed the PDF files are simply images of the.

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689 i cases where you have prepared the documents 2 yourselves, I would hope that you would be able to 3 prepare and submit PDF files where we can search the 4 text and use cut and paste functions.

5 Is that clear?

6 JUDGE KARLIN: Would that be possible?

7 MS. TYLER: This is Karen Tyler. We can 8 submit document in that format if we created the 9 document.

10 JUDGE REED: Yes, that's all we're asking 11 for. We're not asking for all of your exhibits but 12 certainly your initial statement of position and the 13 testimony of witnesses and things, the documents that 14 you yourself have created. If you could submit them 15 in a form where we can search them, it would be very 16 helpful to the Board.

17 JUDGE KARLIN: Yes, and I think what we 18 would say we would exclude all exhibits except for 19 testimony of your witnesses. If you could do that, 20 we'd appreciate it.

21 Does any party have any objection to that?

22 (No verbal response.)

23 Okay. And I don't, Ms. Tyler, could you 24 check with your technical people and see if we could 25 have that done and have it submitted in a way that is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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690 1 copied to the other parties as well, i guess, or -- I 2 mean, I don't want to get into an ex parte or separate 3 document that somehow is differently paginated or 4 something else. It just would be the same one that 5 you submitted, just electronically searchable.

6 MS. TYLER: This is Karen Tyler. I don't 7 think that that would be a problem.

8 JUDGE KARLIN: All right. Great. I 9 appreciate that and perhaps you can work with Marsha 10 Carpentier if there are any questions to make sure we 11 get this through.

12 MR. ROISMAN: Mr. Chairman, this is Mr.

13 Roisman. Just one point on the PDF documents, I'm 14 assuming that you all are using the Acrobat 15 Professional format and I've used that to convert on 16 a page-by-page basis documents that have arrived that 17 are non-searchable into a searchable page, to do just 18 what Dr. Reed has proposed which is to cut and paste 19 material from them and most of the time you get the 20 document exactly right. If there's a lot of drawings 21 on the page, that won't happen.

22 JUDGE KARLIN: Okay. Well, that may be --

23 it sounds like a page-by-page effort.

24 MR. ROISMAN: Yes. If you have Adobe 25 Acrobat Professional 7.0 or higher, and I don't know NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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691 1 it may be too on earlier ones, there's a link at the 2 top that says "Document" and if you click that it 3 opens a window and one of them says, "Convert to OCR" 4 and you can just press that. It will convert one page 5 at a time. It won't convert the whole document.

6 JUDGE REED: Well, that would be very 7 inconvenient to do it one page at a time in these 8 documents that are hundreds of pages long.

9 MR. ROISMAN: Right. I was just thinking 10 to deal with the question of the cut and pasting.

11 JUDGE REED: It's really more a question 12 of searching your documents.

13 MR. ROISMAN: Okay.

14 JUDGE REED: For particular references.

15 It would just be a whole lot more convenient to all of 16 us if these documents could be submitted in a way 17 where the text itself is visible to us other than just 18 as an image file.

19 MR. ROISMAN: Right. And I agree. That 20 is easier.

21 JUDGE KARLIN: Okay. Thanks for the 22 suggestion, Mr. Roisman. I won't pursue -- I mean, 23 we'll assume that Ms. Tyler is going to be able to 24 come up with some transmission that will achieve Dr.

25 Reed's results. So we'll work with Marsha. Ms.

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692 1 Tyler, if you could work with Ms. -Carpentier about 2 that, that would be great. I appreciate your 3, indulgence on that.

4 Okay. I think we've covered all the 5 topics that we set out to cover and I appreciate your 6 participation. We will be issuing several or at least 7 one order perhaps regarding the evidentiary hearing 8 and perhaps calling for briefs. There may be more 9 than one. I'm not sure whether we'll try to do this 10 all in one document or a couple of shorter ones.

11 We do not at this point plan to hold 12 another pre-hearing conference call before the 13 evidentiary hearing. It's possible that something may 14 arise, a hanging moose, standby. We'll let you know 15 and try to give as much notice as possible if indeed 16 something like that is needed. For example, if we 17 decide we want oral argument on some aspect of a 18 motion that would be helpful to us, we might ask for 19 a quick thing sort of a week or two after Fourth of 20 July.

21 But otherwise we will see you all in 22 Vermont on July 2 1 ". Thank you for your patience.

23 We will terminate the call at this point and go off 24 the record. Court Reporter, please stay on the line 25 so that the Court Reporter can get spellings of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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693 1 names of anybody she doesn't have. But with that, off 2 the record.

3 (Whereupon, at 3:11 p.m., the above-4 entitled matter was concluded.)

5 6

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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: Entergy Nuclear Vermont Yankee Name of Proceeding: Pre-hearing Conference Docket Number: 50-271-LR; ASLBP No:06-849-03-LR Location: (teleconference) were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.

Official Reporter Neal R. Gross & Co., Inc.

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