ML082540094
| ML082540094 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 09/05/2008 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, NRC-2428, RAS H-62 | |
| Download: ML082540094 (30) | |
Text
PAS #-WOfficial v i Transcript of Proceedings NUCLEAR REGULATORY COMMISSION Title Oyster Creek Licensce Renewal Pre-hearing Conference Docket Number: 50-0219-LR: ASLBP No.: 06-844-01-LR Location: (telephone conference)
Date: Friday, September 5, 2008
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Work Order No.: NRC-2428 Pages 879-906 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 ptPL
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879 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOARD 5 TELECONFERENCE 6
7 IN THE MATTER OF: Docket Nos.
8 AmerGen Energy Company, LLC 50-0219-LR 9 (License Renewal for Oyster ASLBP No.
10 Creek Nuclear Generating 06-844-01-LR 11 Station) 12 13 14 Teleconference 15 16 Friday, 17 September 5, 2008 18 19 The above-entitled matter came on for a 20 teleconference, pursuant to notice, at 1:00 p.m.
21 22 BEFORE:
23 THE HONORABLE E. ROY HAWKENS, Chairman 24 THE HONORABLE PAUL B. ABRAMSON 25 THE HONORABLE ANTHONY J. BARATTA NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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880 1 APPEARANCES:
2 On Behalf of the Amergen Energy Company, LLC:
3 ALEX S. POLONSKY, ESQ.
4 KATHRYN M. SUTTON, ESQ.
5 RAPHAEL P. KUYLER, ESQ.
6 Of: Morgan Lewis & Bockius, LLP 7 1111 Pennsylvania Avenue, N.W.
8 Washington, D.C. 20004 9 (202) 739-5502 10 11 On Behalf of Exelon Corporation:
12 J. BRADLEY FEWELL, ESQ.
13 DON FERRARO, ESQ.
14 Of: Exelon Corporation 15 4300 Warrenville Road 16 Warrenville, IL 60555 17 E-mail: bradley.fewell@exeloncorp.com 18 On Behalf of the Nuclear Regulatory Commission:
19 MARY C. BATY, ESQ.
20 MARCIA SIMON, ESQ.
21 US Nuclear Regulatory Commission 22 Office of the General Counsel 23 Mail Stop 15 D21 24 Washington, DC 20555-0001 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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881 1 On Behalf of Citizens:
2 RICHARD WEBSTER, ESQ.
3 JULIA LeMENSE, ESQ.
4 Eastern Environmental Law Center 5 744 Broad Street, Suite 1525 6 Newark, New Jersey 07102 7 (973) 353-5695 8 On Behalf of the New Jersey Department of 9 Environmental Protection:
10 JILL LIPOTI, Director 11 NJ Dept. Of Environmental Protection 12 Div. of Environmental Safety and Health 13 P.O. Box 424 14 Trenton, NJ 08625-0424 15 Tel: 609-633-7964 16 On Behalf of the Nuclear Policy Research 17 Institute:
18 PAUL GUNTER 19 Beyond Nuclear 20 Nuclear Policy Research Institute 21 6930 Carroll Avenue, Suite 400 22 Takoma Park, MD 20912 23 Tel: 301-270-2209 24 Fax: 301-270-4000 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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882 1 ALSO PRESENT:
2 HANN ASHAR 3 MICHAEL GALLAGHER, Exelon 4 EMILY KRAUSE, paralegal, NRC, OGC 5
6 7
8 9
10 11 12 13 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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883 1 P RO C E E D I NG S 2 1:02 P.M.
3 JUDGE HAWKENS: Let's go on the record.
4 We're conducting a telephone conference call in the 5 AmerGen case Docket No. 50-219-LR.
6 My name is Roy Hawkens. I'm chairman of 7 this Board and I'm joined on the Board by Dr. Paul 8 Abramson, a legal and technical Judge, and Dr. Anthony 9 Baratta, a technical Judge.
10 I should note that Dr. Abramson and Dr.
11 Baratta are not with me in the Rockville office, but 12 they're participating remotely by telephone: I 13 believe Dr. Abramson in New York, Dr. Baratta in 14 Pennsylvania.
15 I am joined here in the Rockville office 16 by two other Panel Members: my law clerk, Ms. Emily 17 Krause, and the administrative assistant, Ms. Karen 18 Volech.
19 Would counsel who will be speaking on 20 behalf of the parties please identify themselves and 21 any other colleagues who are joining them today.
22 Let's start with Citizens, please.
23 MR. WEBSTER: It's Richard Webster here, 24 calling in from Portland, Oregon, actually. I'm 25 joined by my colleague Julia LeMense.
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884 1 MR. GUNTER: Paul Gunter on behalf of 2 Nuclear Information Resource Center.
3 JUDGE HAWKENS: All right, thank you.
4 AmerGen?
5 MR. POLONSKY: This is Alex Polonsky with 6 Morgan, Lewis, and Bockius. I have with me Kathryn 7 Sutton, and Ray Kuyler. Also counsel for AmerGen who 8 are participating via phone are Brad Fewell, and Don 9 Ferraro. We also have a non-lawyer participating, 10 Vice President of License Renewal for Exelon, Mr.
11 Michael Gallagher.
12 JUDGE HAWKENS: Thank you. The NRC staff?
13 MS. BATY: This is Mary Baty and I'm 14 joined by Marcia Simon and then we have one staff 15 member listening in with us this afternoon, Hann 16 Ashar.
17 JUDGE HAWKENS: All right, thank you. And 18 I note we're also joined on the line by not a 19 participant, but an entity who has been a keen 20 observer throughout the proceedings, the New Jersey 21 Department of Environmental Protection, who is that?
22 MS. LIPOTI: Jill Lipoti.
23 JUDGE HAWKENS: All right, thank you very 24 much.
25 I'd like to remind counsel that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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885 1 conference call is being transcribed and the court 2 reporter would be grateful when we're talking counsel 3 would identify themselves.
4 MS. SCRENCI: Judge Hawkens, this is Diane 5 Screnci and Neil Sheehan. We're listening from Region 6 1 just for information purposes.
7 JUDGE HAWKENS: Thank you very much and 8 for purposes of the record, you all are NRC staff 9 Public Affairs Office?
10 MS. SCRENCI: That's correct.
11 JUDGE HAWKENS: Thank you. As indicated 12 in our order of September 2, the Board is 13 contemplating holding an oral argument relating to the 14 issue the Commission referred to us in its order of 15 August 21st.
16 Our law clerk, Ms. Krause provided the 17 parties with an outline of today's discussion points 18 and let's turn to those points now.
19 First establishing an argument date. The 20 week, I know Citizens are unavailable the week of the 21 8th because they are preparing for two oral arguments 22 at the end of the week, Federal Court arguments and we 23 will respect that request.
24 MR. WEBSTER: Thank you, Judge Abramson.
25 JUDGE HAWKENS: So let's talk about the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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886 1 possibility of having it the week of August 15th, 2 excuse me, September 15th. Citizens have indicated 3 that they're available the entire week. The 16th is 4 not a possibility because we have Board Members who 5 will not be available for that. But that would be 6 from Citizens' standpoint leave four days, Monday, 7 Wednesday, Thursday, or Friday. I know the NRC staff, 8 in its initial response had indicated that it could be 9 available on Thursday or Friday. That would be the 10 18th or 19th.
11 So let's turn to AmerGen and ask them 12 whether they could make themselves available on either 13 of those dates?
14 MR. POLONSKY: Your Honor, this is Alex 15 Polonsky. It would be very difficult for AmerGen to 16 participate in oral argument on the week of the 15th.
17 We have three people who we have conflicts for: Mr.
18 O'Rourke who supported the affidavit that AmerGen 19 submitted on this issue has a scheduled vacation; Mr.
20 Tamburro who is knowledgeable on the subject will be 21 on medical leave and I am supposed to be on the West 22 Coast, the same way Mr. Webster is today.
23 So we were hoping to revisit whether 24 September 8th, 9th, or 10th could be used. We would 25 recognize that there is oral argument that Citizens NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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887 1 have, but it's oral argument, it's not a trial and we 2 were hoping to have the parties consider the 9th or 3 the 8th and leave the 10th for Citizens to prepare for 4 their oral argument. And we would be willing to 5 assist with whatever venue the parties needed, 6 considering that it's Friday afternoon and we're 7 talking about next Monday and Tuesday.
8 I'm not saying that we couldn't 9 necessarily rearrange our schedules the week of the 10 15th and pull Mr. O'Rourke from vacation, but 11 considering those burdens on us, we would like the 12 parties to reconsider whether the 8th or 9th are 13 possible. Can we start there?
14 JUDGE ABRAMSON: Judge Abramson. First, 15 let me just comment that I'm unavailable the morning 16 of the 8th, the morning of the 9th and all day the 17 10th.
18 So if you want to have this oral argument 19 I can participate by telephone conference on the 20 afternoon of the 8th or the afternoon of the 9th.
21 JUDGE BARATTA: This is Judge Baratta. I 22 would be available all day on the 8th, 9th, whatever.
23 JUDGE HAWKENS: All right, well, let's 24 hear from Mr. Webster.
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888 1 already interrupted my vacation to participate in this 2 conference call. When I get back, I intend to put an 3 injunction motion on the Thursday and it's a Second 4 Circuit argument on the Friday. I have scheduled 5 moots on those on Tuesday and Wednesday. So I really 6 think it's not possible for me to prepare for this 7 oral argument in addition to those other oral 8 arguments.
9 Since it is quite possible to participate 10 by phone, I'd suggest to AmerGen that they consider 11 that as an option for the 15th.
12 MS. BATY: Your Honor, this is Mary Baty 13 for the staff. We are -- our availability of the week 14 of the 15th is as stated in our email. We can't 15 change, we have no room to change that at this point.
16 I might also add that until we're clear on 17 what subjects are going to be discussed, I'm not 100 18 percent sure which experts I'm going to need. And so 19 I've checked with the experts I anticipated needing, 20 but depending on what issues arise I may have to find 21 -- check the availability of an additional person. We 22 need to be careful about what subjects we need to 23 discuss.
24 MR. WEBSTER: Could I just pick up from 25 Ms. Baty's point that I did also check with Dr.
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889 1 Hausler on his availability and he's not available 2 until the 15th either.
3 JUDGE HAWKENS: All right, thank you. I 4 have concluded based on what Citizens has said that 5 the 8th, the week of the 8th should be eliminated as 6 a possibility. And let's focus now on the 15th and 7 because Citizens will have -- sounds like the greatest 8 difficulty in accommodating, let me hear what their 9 preference would be.
10 MR. WEBSTER: Well, Judge, towards the end 11 of the week of the 15th will be fine for us.
12 JUDGE HAWKENS: Right, I'm sorry. I 13 didn't mean Citizens. I mean AmerGen for Mr.
14 Polonsky.
15 MR. POLONSKY: I think we have a consensus 16 that Thursday, the 18th is the preferred date and if 17 I might jump ahead to venue, if we're going to be 18 pulling Mr. O'Rourke back from his vacation, his 19 vacation is to the south of Washington, D.C., we would 20 rather have it in Rockville to inconvenience him the 21 least.
22 And we will just have to do without Mr.
23 Tamburro.
24 JUDGE HAWKENS: All right. As I am 25 looking at the responses provided by the NRC staff, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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890 1 the NRC staff said it would be available on the 18th.
2 Is that correct, Ms. Baty?
3 MS. BATY: Yes, that's correct. We 4 anticipate we are available as one of us -- counsel 5 and Mr. Ashar, we are available on the 18th in 6 Rockville.
7 JUDGE HAWKENS: And Mr. Webster, I just 8 want to confirm Thursday, the 18th, with your 9 representation and your response, you would be 10 available then as well?
11 MR. WEBSTER: Yes, Judge. Could we 12 address venue separately, please?
13 JUDGE HAWKENS: Let's launch into venue 14 right. It seems to me that AmerGen requests giving 15 the impact on the people who will be attending seem 16 significant, their request to have it in Rockville is 17 a reasonable one and let me hear from you in response 18 to that, Mr. Webster.
19 MR. WEBSTER: Well, obviously, we 20 recognize that some of the witnesses were close to the 21 plant and some of them were down elsewhere. I think 22 Exelon's headquarters is actually in Pennsylvania. So 23 it shouldn't too much of an inconvenience, I don't 24 think, for the parties. But I think perhaps more 25 importantly the public here really -- the most intense NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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891 1 public interest is obviously in the area of the plant.
2 The public have already had the opportunity to observe 3 the hearing in September and many members of the 4 public partook of that opportunity and I think found 5 it very informative. Because this is a matter of 6 intense public interest in the area and because part 7 of this hearing process is precisely to allow the 8 public some kind of window into these regulation 9 processes, I really think it appropriate to prioritize 10 the interests of the public over some minor 11 inconvenience of the parties.
12 MS. BATY: Your Honor, might I suggest the 13 Board is working on a webstreaming capability and a 14 hearing was recently webstreamed.
15 JUDGE HAWKENS: Ms. Baty --
16 MS. BATY: Especially if people have to 17 travel at this point and this is an oral argument on 18 a very narrow issue, so webstreaming or perhaps we 19 don't even need to gather all of us and maybe a 20 telephone conference is more appropriate.
21 MR. WEBSTER: Could I just respond to Ms.
22 Baty? I mean Citizens is going to have to travel to 23 some point. I really don't see making one party 24 travel and all the other parties not travel is really 25 striking a balance of interest.
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892 1 JUDGE HAWKENS: All right, I think I've 2 heard enough on this.
3 Ms. Baty, responding to your observation 4 about the possibility of webstreaming, although we 5 have done webstreaming from two remote sites, we 6 currently don't have the lines installed in the 7 Rockville hearing room to webstream, so that's not 8 currently a possibility. We're working on that, but 9 they're not yet installed.
10 The Board will take the issue of venue 11 under advisement. WE'll be issuing a scheduling order 12 very early next week. One of the issues would be 13 availability of a facility in the Toms River area and 14 we're going to look into that as well. We're going to 15 keep in mind the considerations about convenience and 16 economies for AmerGen as well, so thank you for the 17 input from the parties. We will advise you where 18 venue will be in our scheduling order to be issued 19 early next week.
20 MR. WEBSTER: Thank you.
21 JUDGE HAWKENS: Let's move into the next 22 issue which is the oral argument procedures and in 23 particular the rule of the experts, if any, who will 24 be attending.
25 Let me emphasize this is an oral argument.
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893 1 Counsel will be representing the party. They will be 2 presenting the arguments. They'll be given the 3 opportunity to present affirmatively the points they 4 want to make. We will be questioning counsel and 5 giving them the opportunity to respond and clarify or 6 expand upon points that are in the brief.
7 Prior to the argument, the Board will 8 provide counsel with areas that we feel will be the 9 focus of questions and we will likely include 10 illustrative questions as well that we will be posing 11 to the counsel. Given that information, the counsel 12 may feel that there's no need to be accompanied by 13 experts. That's their choice.
14 We did suggest, however, that you may wish 15 to consider having an expert present in the event that 16 you're faced with a question and you feel you may wish 17 to consult with an expert before answering the 18 question. Again, that is the counsel's choice.
19 But I'd like to emphasize this is not an 20 evidentiary hearing. The Board will not be examining 21 experts, rather we will be hearing from the counsel.
22 MR. WEBSTER: Judge, this is Richard 23 Webster here. I assume in responding to the questions 24 these are purely arguments of counsel. They won't be 25 regarded as -- counsel won't be allowed to say my NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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894 1 expert has told me X and testify to the expert in 2 terms of hearsay?
3 JUDGE HAWKENS: No, you'll be answering 4 our questions to the best of your ability and those 5 answers may be informed by information by the expert.
6 That will be representations by counsel, however.
7 They will not be representations by the expert.
8 MR. WEBSTER: Right.
9 JUDGE HAWKENS: And let me say this as 10 well though there may be the possibility of the 11 submission by counsel of supplemental briefs after the 12 argument if counsel feel that would be beneficial to 13 them or to their interest. But that's something we 14 can discuss at the end of argument.
15 JUDGE ABRAMSON: Judge Hawkens, Judge 16 Abramson. Let me just make sure I understand the 17 boundaries of this oral argument.
18 Is it correct to say that this is confined 19 to the technical information provided in the 20 affidavits and the briefs and that counsel will not be 21 permitted or expected to go outside that information?
22 JUDGE HAWKENS: That's fair to say. I 23 mean there's a fine line when clarifying points made 24 in the brief, whether they're bringing in new 25 information or whether that's clarification of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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895 1 information already presented.
2 JUDGE BARATTA: This is Judge Baratta 3 here. I think we can't rule out the possibility that 4 the information is already in the record would also be 5 needed.
6 JUDGE HAWKENS: That's correct. That's 7 correct. If there's information in the record that 8 will inform our judgment in answering the issue posed 9 by the Commission, then we made to need to discuss 10 that. I believe the type of illustrative questions 11 that we will be providing counsel with in advance and 12 the areas of interest to the Board will be adequate to 13 put counsel on notice of that type of information.
14 Do counsel have any questions?
15 MR. POLONSKY: Yes, Your Honor. This is 16 Mr. Polonsky. The email that we got from the Board's 17 clerk had on question number three the substantive 18 area that will be the focus of oral argument. What 19 you just went through saying then we won't be 20 discussing that on this call and that will be the 21 subject of a later issuance from you?
22 JUDGE HAWKENS: Yes, that is correct. I 23 mean the substantive area, it will be the issue posed 24 by the Commission, but we will be providing counsel 25 with areas substantive, technical areas that we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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896 1 believe will be the focus of the oral argument.
2 MR. POLONSKY: Okay, and a follow-up 3 question which I guess we had at the beginning of this 4 call is the Board's notice to us about this was that 5 they were considering holding oral argument and we're 6 wondering if the Board could clarify why it appears to 7 be on the fence about considering oral argument 8 because AmerGen used the pleadings, both initial 9 briefs and reply briefs, submitted in response to the 10 Commission's order of CLI-0810 as sufficient to 11 document the parties' positions here and we're curious 12 why the Board thinks that oral argument is even needed 13 here, especially if experts are playing a very, very 14 limited role?
15 JUDGE HAWKENS: Well, I guess the answer 16 to that is you were resolving the issue for the 17 Commission you could do it on the briefs, Mr.
18 Polonsky. The technical members of this Board have 19 issues, they believe, require further information for 20 them.
21 And so let me make this clear now. Yes, 22 we did characterize at the outset and in our early 23 transmission to you, we were considering, I thought by 24 our discussion to this point now, we've gone beyond 25 that. We will be holding an oral argument.
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897 1 MR. POLONSKY: Thank you for the 2 clarification, Your Honor.
3 JUDGE ABRAMSON: Judge Hawkens, this is 4 Judge Abramson. Let me ask that it would be -- let me 5 propose that at least for me, it would be very useful 6 to have counsel for each of the parties and for the 7 staff to spend five minutes at the outset of our oral 8 argument explaining to us what they believe the 9 boundaries are of the Commission's charter to us with 10 this what I would characterize as a request for an 11 advisory opinion.
12 JUDGE HAWKENS: All right, in the 13 scheduling order and when we provide them with the 14 areas we want to focus, we can include that type of 15 information. We will do that, Judge Abramson.
16 Citizens, do you have any questions up to 17 this point?
18 MR. WEBSTER: No more questions. Thank 19 you, Judge.
20 JUDGE HAWKENS: Mr. Polonsky?
21 MR. POLONSKY: None that I've -- no, Your 22 Honor.
23 JUDGE HAWKENS: Ms. Baty?
24 MS. BATY: No, Your Honor.
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898 1 fourth talking point where AmerGen requested the 2 opportunity to discuss the nature and the scope of the 3 Board's planned disposition of the issue referred by 4 the Commission. And it wasn't clear to me what 5 AmerGen wanted to discuss so I will put the ball in 6 AmerGen's court and give Mr. Polonsky the opportunity 7 to express his view.
8 MR. POLONSKY: Thank you, Your Honor. We 9 were curious what the Board planned to do with the 10 directive from the Commission, and we frankly thought 11 it could be responded to in a letter format or 12 advisory opinion as Judge Abramson just suggested.
13 And so we are very mindful that this has taken a long 14 time, through no fault of the Board, to come to 15 finality. And we've waited eight months for the 16 Commission to issue something to this Board, to look 17 through a very narrow question and in essence we 18 thought that if the Board could answer it (a) without 19 oral argument which I've already articulated and could 20 also do so without creating a new round of pleadings 21 and so that's why we raised the question.
22 We may have already addressed it, Your 23 Honor.
24 JUDGE HAWKENS: I think we have. The 25 Board feels a need to have oral argument. We're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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899 1 grateful that AmerGen is willing to accommodate 2 scheduling that oral argument for the week of the 15th 3 and after we have that argument we'll see whether the 4 parties think supplemental briefing which would be 5 done within a week and would be limited in scope and 6 in pages, if they think that would be helpful or if 7 the Board thinks that would be helpful.
8 And then once that's completed, Mr.
9 Polonsky, we would consistent, with the Commission's 10 request, endeavor to resolve the issue as soon as 11 practical.
12 JUDGE ABRAMSON: Mr. Polonsky, Judge 13 Abramson again, and also for Mr. Webster and Ms. Baty, 14 as AmerGen suggests, this is a very odd request from 15 the Commission. It's not a remand. It's not a 16 reversal. In my view it's at best a request for an 17 advisory opinion. I would appreciate if in your 18 discussion at the oral argument you would each give us 19 briefly your view of how this fits into our 20 regulations and what it actually is.
21 JUDGE HAWKENS: Mr. Polonsky, is there 22 anything further you want to discuss on that talking 23 point?
24 MR. POLONSKY: No, Your Honor.
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900 1 express any view on that?
2 MR. WEBSTER: Well, Judge, I think perhaps 3 Citizens' view is that the order of the Commission is 4 very ambiguous. It's not clear what the Commission 5 believes, in the absence of this adequate modeling 6 there would not be reasonable assurance, or whether 7 the Commission is asking for an advisory opinion. I'm 8 not quite sure how we will be able to address that 9 question. The words of the order are what the words 10 of the order are. I'm not sure we can bring more 11 insight into what the Commission means than Judge 12 Abramson or other members of the panel can.
13 JUDGE HAWKENS: I understand. Ms. Baty, 14 anything else to add?
15 MS. BATY: Your Honor, I would like to 16 echo what Mr. Webster said --
17 JUDGE HAWKENS: Ms. Baty, can you speak 18 into the phone, we can't hear you very well.
19 MS. BATY: I'm sorry. I believe that we 20 would have to echo what Mr. Webster said that it's not 21 clear what the Commission had in mind other than that 22 they felt, I guess, since this question was raised was 23 raised by Judge Baratta's additional statement that 24 they felt that the Board needed to address the new 25 material that was submitted in response to their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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901 1 question. And so we -- I don't know that we can 2 clarify for the Board the Commission's thoughts any 3 better than we could clarify Judge Baratta's thoughts 4 from the Commission.
5 JUDGE HAWKENS: Ms. Baty, we're not asking 6 you to speak for the Commission. I'm asking you to 7 explain to us how you see this fitting in the context 8 of the procedural operations of the Commission and the 9 Board.
10 MR. WEBSTER: Well, Judge, perhaps I could 11 say it really depends on the interpretation of the 12 order. If it isn't a request for advisory opinion 13 that's one set of briefing, whereas if it is an 14 implicit finding that there's a lack of reasonable 15 assurance in the absence of this modeling, that's a 16 separate set of briefing.
17 I guess I'm not quite sure how we would 18 decide which set of briefing to provide or whether you 19 would like both.
20 JUDGE HAWKENS: I'm not asking for 21 briefings, I'm asking for you to discuss the topic at 22 our oral argument. And let's bear in mind that an 23 oral argument, we're only discussing what's already 24 been submitted to the Commission by you and the other 25 parties in the briefs:
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902 1 MR. WEBSTER: Right.
2 JUDGE HAWKENS: I assume that's the 3 confine -- you submitted briefs to the Commission on 4 this topic. The Commission said well, we better ask 5 the Board about it and I'd like to know how you see 6 that being in the context of your appeal to the 7 Commission of our order.
8 MR. WEBSTER: Well, Judge, I mean if you 9 want I can respond to that now if you want to or we 10 could wait.
11 JUDGE HAWKENS: Let's wait on that. I 12 think we all understand and agree that there's 13 ambiguity there. We may not be able to give any final 14 resolution to it. We may not need to give any final 15 resolution to it, but we would like to hear during the 16 oral argument at the outset just the views of each 17 counsel.
18 Let's go to the final issue where AmerGen 19 requested the opportunity to discuss the anticipated 20 schedule for deciding the issue. I may have already 21 answered that by saying we would endeavor to comply 22 with the Commission's request to resolve it as soon as 23 practicable, but I'll let -- if AmerGen has anything 24 further to say on that matter.
25 MR. POLONSKY: This is Mr. Polonsky. Your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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903 1 Honor, I think we've adequately covered that.
2 JUDGE HAWKENS: All right, does Citizens 3 or Ms. Baty have anything to add to that?
4 MR. WEBSTER: Nothing to add from my end, 5 Judge. Thank you.
6 MS. BATY: Nothing for the staff, Your 7 Honor.
8 JUDGE HAWKENS: All right, then that 9 exhausts the issues, the talking points that Ms.
10 Krause had provided to counsel.
11 Is there anything else before we wrap this 12 up that counsel would like to discuss?
13 Let's start with Mr. Webster.
14 MR. WEBSTER: Nothing, sir.
15 JUDGE HAWKENS: Mr. Polonsky?
16 MR. POLONSKY: Your Honor, just on the 17 issue of venue, Mr. Webster stated that there are 18 already people at the plant and therefore New Jersey 19 is convenient for AmerGen. In fact, Mr. Tamburro 20 would be the only person from the plant. He will be 21 on medical leave and unable to participate, even if 22 it's in Toms River, so that's not a concern for us.
23 Everyone from our party is outside of New Jersey.
24 MR. WEBSTER: Mr. Gallagher will be coming 25 from Pennsylvania, is that right?
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904 1 MR. POLONSKY: Yes, outside of New Jersey.
2 JUDGE HAWKENS: All right. Thank you, Mr.
3 Polonsky.
4 Ms. Baty, anything to add?
5 MS. BATY: Your Honor, I just might ask 6 that in your scheduling order, depending upon what 7 venue is selected and we have to make plans, but you 8 indicated how long you anticipate the argument lasting 9 so that we know how many days of accommodations we 10 might need.
11 JUDGE HAWKENS: Certainly, we can do that, 12 Ms. Baty.
13 As I indicated earlier, Judge Abramson and 14 Baratta are not here, so let me talk into the phone 15 and give them the opportunity to say anything which 16 they may wish before we close this up.
17 Judge Baratta?
18 JUDGE BARATTA: I don't have anything 19 additional to add. I just want to thank the parties 20 for their time.
21 JUDGE HAWKENS: Thank you.. Judge 22 Abramson?
23 JUDGE ABRAMSON: Can the three of us go 24 off line for a moment and discuss something among 25 ourselves?
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905 1 JUDGE HAWKENS: Any reason to keep counsel 2 and the parties on line while we do that, Judge 3 Abramson?
4 JUDGE ABRAMSON: Yes, please.
5 JUDGE HAWKENS: All right, we're going to 6 go off the record and put the parties on mute for a 7 few moments.
8 (Off the record.)
9 JUDGE HAWKENS: All right, I went off line 10 with Judge Abramson and Judge Baratta and we're ready 11 to close, if the parties have nothing more.
12 One more time, Citizens?
13 MR. WEBSTER: Thank you, Your Honor.
14 Nothing more.
15 JUDGE HAWKENS: AmerGen?
16 MR. POLONSKY: This is Mr. Polonsky.
17 Nothing more, Your Honor.
18 JUDGE HAWKENS: Ms. Baty?
19 MS. BATY: Nothing more, Your Honor.
20 JUDGE HAWKENS: All right, court reporter, 21 Mr. Jackson, do you need to have the parties remain 22 online to clarify anything?
23 COURT REPORTER: Yes.
24 JUDGE HAWKENS: All right, the Board is 25 going to go offline. Thank you very much and we will NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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906 1 issue the scheduling order early next week.
2 Thank you.
3 (Whereupon, at 1:35 p.m. , the 4 teleconference was concluded.)
5 6
7 8
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: Oyster Creek License Renewal Name of Proceeding: Pre-Hearing Conference Docket Number: 50-0219-LR:
ASLBP No. 06-844-01-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.
Chad J, kson Officid Reporter Neal R. Gross & Co., Inc.
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