ML110550139
| ML110550139 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 02/18/2011 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-293-LR, ASLBP 06-848-02-LR, RAS J-333, NRC-744 | |
| Download: ML110550139 (32) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Pre-Hearing Conference: DOCKETED Pilgrim Nuclear February 23, 2011 (11:00 a.m.)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Docket Number: 50-293-LR Location: Telecoriference Date: February 18, 2011 Work Order No.: NRC-744 Pages 754-783 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 7Ls-os
754 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5
6 PRE-HEARING CONFERENCE 7 --------------------- x 8 IN THE MATTER OF:
9 ENTERGY NUCLEAR GENERATION Docket No. 50-293-LR 10 COMPANY AND ENTERGY ASLBP No. 06-848-02-LR 11 NUCLEAR OPERATIONS, INC.
12 (Pilgrim Nuclear Power 13 Station) 14 ---------------------x 15 Friday, February 18, 2011 16 17 The above-entitled prehearing conference 18 convened telephonically, pursuant to notice, at 3:00 19 p.m.
20 21 BEFORE:
22 ANN MARSHALL YOUNG Administrative Judge 23 PAUL B. ABRAMSON Administrative Judge 24 RICHARD F. COLE Administrative Judge 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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755 1 APPEARANCES:
2 On Behalf of ASLBP:
3 SUSAN L. UTTAL, ESQ.
4 of: Office of the General Counsel 5 Mail Stop 15 D21 6 U.S. Nuclear Regulatory Commission 7 Washington, DC 20555-0001 8
9 On Behalf of Entergy:
10 DAVID R. LEWIS, ESQ.
11 PAUL GAUKLER, ESQ.
12 of: Pillsbury Winthrop Shaw Pittman LLP 13 2300 N Street N.W.
14 Washington, DC 20037 15 (202) 663-8000 16 17 On Behalf of Pilgrim Watch:
18 MARY LAMPERT 19 Pilgrim Watch 20 148 Washington Street 21 Duxbury, MA 02332 22 (781) 934-0389 23 24 On Behalf of the Town of Plymouth:
25 SHEILA SLOCUM HOLLIS, ESQ.
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756 1 JENNIFER COOK, ESQ.
2 Duane Morris, LLP 3 505 9th Street NW 4 Suite 1000 5 Washington, DC 20004 6 (202) 776-7800 7
8 ALSO PRESENT:
9 KATHERINE TUCKER, ESQ., Law Clerk, ASLBP 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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757 1 PROCE E D I NG S 2 (2:58:30 p.m.)
3 CHAIRMAN YOUNG: Okay. So, I'm Ann 4 Marshall Young. I'm the Chair of the Board, and with 5 me I have Judge Richard --
6 JUDGE COLE: Richard F. Cole, C-O-L-E.
7 CHAIRMAN YOUNG: And our law clerk, Katie 8 Tucker. And Judge Abramson.
9 JUDGE ABRAMSON: Yes, I'm here.
10 CHAIRMAN YOUNG: Judge Paul Abramson is at 11 another location, so if at any point we need to 12 confer, we're going to have to put you on mute, and 13 then call each other on another phone.
14 Let's start with Entergy. Why don't you 15 introduce yourself, and anyone else who's with you, 16 Mr. Lewis.
17 MR. LEWIS: Thank you, Judge Young. This 18 is David Lewis from the law firm Pillsbury Winthrop 19 Shaw Pittman representing Entergy. With me is Mr.
20 Paul Gaukler.
21 CHAIRMAN YOUNG: All right. And for the 22 Staff?
23 MS. UTTAL: This is Susan Uttal 24 representing the Staff, and I'm all alone.
25 CHAIRMAN YOUNG: Oh. And, Ms. Lampert, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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758 1 are you all alone, also?
2 MS. LAMPERT: No, I have a Labrador 3 Retriever with me.
4 (Laughter.)
5 JUDGE COLE: What's his name, her name?
6 MS. LAMPERT: Zoe.
7 JUDGE ABRAMSON: We won't comment on the 8 quality of the company you have compared to the rest 9 of us.
10 (Laughter.)
11 CHAIRMAN YOUNG: That could be taken a 12 number of ways. Anyway, Ms. Hollis.
13 MS. HOLLIS: Yes. I'm here with Jen Cook.
14 Sheila Hollis on behalf of the Town of Plymouth, and 15 Jennifer Cook. We're both with the firm of Duane 16 Morris.
17 CHAIRMAN YOUNG: Thank you. Did I miss 18 anyone? All right. Great. Well, thank you for 19 making yourselves available at such short notice.
20 We received your joint motion, and we 21 think it's overall a good idea. I guess we have a 22 couple of concerns, and the main one being that -- and 23 this may apply more to me, because I'm the non-24 technical lawyer/judge. Well, Judge Abramson is a 25 lawyer, and a technical person. But, in any event, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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759 1 there's, obviously, a lot of evidence, and some of 2 it's quite technical. So, we would like to provide 3 for a way for us to ask any questions.
4 Now, under 10 CFR 212.08(c) we can do 5 written questions. And if we find that we need to ask 6 any of the witnesses any questions, we are fine with 7 doing it in that manner. However, what we would like 8 to do is, on March 9 th in addition to holding oral 9 argument on the new contentions, which would consist 10 pretty much of just us asking each of you questions; 11 in addition to that, that we would hold an oral 12 argument on the issue, the threshold issue that's 13 before us at this time with regard to Contention 3..
14 Now, in order to make that meaningful, we 15 feel that it would be appropriate to have you file 16 proposed Findings of Fact and Conclusions of Law in 17 advance of that date, so that by doing that you can 18 sort of get us to focus on those parts of the evidence 19 that you find to be the most important, and that you 20 would like us to direct our attention to.
21 So, we are going to ask you to file 22 proposed Findings of Fact and Conclusions of Law by 23 March 4 th, which would then give us the weekend and 24 the days before March 9th to read those, and become 25 familiar with those, and then be prepared to ask you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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760 1 questions about any of the issues that you address in 2 those.
3 This would save you the expense of 4 bringing your witnesses with you. And, obviously, 5 counsel and Ms. Lampert for Pilgrim Watch could not 6 say anything that would be evidence, but you might be 7 able to point us to particular parts of the evidence, 8 or particular aspects of it that you think are 9 important. And we think that that would be very 10 helpful to us in reaching a decision on the issue 11 before us on the basis of quite a large amount of 12 evidence. So, in addition to that, at the oral 13 argument we would permit each party to have 10 minutes 14 of closing argument, verbal closing argument.
15 One of the things that you mentioned in 16 the joint motion is the motion in limine that was 17 previously filed by Entergy. And, at this point, our 18 ruling on that will be that we will exclude as 19 evidence the Pilgrim Watch prefiled testimony, but 20 that we are going to, at this point, admit all of the 21 exhibits of Pilgrim Watch, and all of the parties into 22 the record, but we will in our deliberations accord 23 each of them only the weight to which they are 24 entitled, based on the extent to which they are 25 relevant, material, and reliable, the standard defined NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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761 1 at 10 CFR 2.337(a), and to the extent they are 2 persuasive on the threshold issue, which we have 3 previously stated, and which you quote in your joint 4 motion.
5 Let's see. Since -- if after the oral 6 argument, which will center on the questions about 7 your proposed Findings of Fact and Conclusions of Law, 8 if we then have any specific questions for any of the 9 witnesses, we would issue those in writing.
10 I guess one thing, I want to allow all of 11 you to ask any questions or raise anything that you 12 think we may have overlooked, but with regard to the 13 proposed Findings of Fact and Conclusions of Law, I 14 know that 212.08 refers to a -- let's see. Including 15 statements of position, we would like you to file 16 proposed Findings and Conclusions, because we think 17 that they will better focus your attention, and our 18 *attention on specific facts.
19 So, Ms. Lampert here, I don't recall what 20 your proposed Findings looked like on Contention 1, 21 but to the extent -- I need to refresh that.
22 Basically, the proposed Findings of Fact would be 23 separate numbered paragraphs, none of them too long 24 stating specific facts. And then at the end of each 25 one, providing a specific reference to a specific NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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762 1 exhibit, or more than one specific exhibits, giving 2 page numbers, so that we can go directly to the part 3 that you want us to look at.
4 Then after the hearing, if anyone feels 5 the need to file responses to each other's proposed 6 Findings and Conclusions, then we would be willing to 7 permit that. On the Conclusions of Law, for the 8 standard, it's a legal standard. You might look back 9 to the initial decision in the Contention 1 hearing.
10 Judge Abramson, Judge Cole, have I left 11 out anything that we have talked about?
12 JUDGE COLE: No, I don't think so. I'm a 13 little bit concerned that nobody said anything so far.
14 JUDGE ABRAMSON: Because nobody can get a 15 word in edgewise.
16 (Laughter.)
17 CHAIRMAN YOUNG: Judge Abramson, is there 18 anything else that we should mention that I may have 19 overlooked?
20 JUDGE ABRAMSON: I think you've got it.
21 CHAIRMAN YOUNG: Do the parties have any 22 questions? We think that this might pretty much take 23 care of what you would like to do in your joint 24 motion, but feel free to raise any questions. Did Mr.
25 Lewis start to say something there?
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763 1 MR. LEWIS: Yes, Judge, one observation.
2 We have proposed this procedure as a way of 3 simplifying the remaining procedure, and putting the 4 existing evidence before the Board for a decision. If 5 there is a need for -- if the Board has its own 6 questions it wants to ask the witnesses, I guess my
.7 preference would be to go ahead and bring the 8 witnesses there on March 9 th.
9 It was not my intent in proposing this 10 procedure to actually extend the hearing, so I am 11 concerned that there would be some extensive post 12 March 9 th series of submissions, and questions and 13 answers, and replies, that was not my intent. And, 14 therefore, I would suggest if there is a need for our 15 witnesses to answer any questions, my strong 16 preference would be to go ahead and bring them on 17 March 9 th.
18 CHAIRMAN YOUNG: What do the other parties 19 think about that idea?
20 MS. LAMPERT: I'd go even further. I think 21 the joint motion, the intent was to dispense with the 22 hearing, and simply have it -- your decision be based 23 on written materials before you.
24 COURT REPORTER:
- This is the court 25 reporter. Who was just speaking?
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764 1 MS. LAMPERT: That was Mary Lampert 2 speaking.
3 MR. LEWIS: And this is David Lewis. That 4 was, indeed, the intent of the motion.
5 CHAIRMAN YOUNG: Right. And we, again, we 6 think that -- we appreciate the intent behind the 7 motion, and we think it's a good idea to simplify 8 things as much as possible. However, we, obviously, 9 want to give due consideration to the evidence you 10 presented, and so we think that it would be helpful 11 for you to help focus us on any issues that you think 12 warrant our special attention. And that's why we 13 would ask for the proposed Findings of Fact and 14 Conclusions of Law. And then, perhaps, have questions 15 for you after oral argument.
16 What do the other parties think about the 17 idea of bringing witnesses on March 9 'h?
18 MS. LAMPERT: Mary Lampert. I feel it's 19 unnecessary. And, also, I would feel compelled then 20 to drop Minnie Moore Isiason (ph) and request that I 21 could bring Bruce Eagan as, it wouldn't be a late 22 filed witness. That's like you'd be in a box, but be 23 able to bring him. And I thought, at least from the 24 Petitioner's point of view, our position was laid out 25 pretty clearly on December 2 nd. There's a memo to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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765 1 Board.
2 CHAIRMAN YOUNG: What about the Staff and 3 Ms. Hollis for the Town?
4 MS. UTTAL: Judge, this is Susan Uttal for 5 the Staff. If witnesses are brought in then -- if 6 Pilgrim Watch does not bring Dr. Eagan in, then the 7 Staff would object to his testimony being accepted as 8 written testimony into the record, because I believe 9 that if the licensee and the Staff have to produce 10 their witnesses, then the Intervener should have to 11 produce their witness, also, for questioning by the 12 Board.
13 CHAIRMAN YOUNG: Well, I think our idea of 14 having the oral argument, and just have the counsel 15 and representatives speak to the proposed Findings, 16 was pretty much for the purpose of avoiding opening 17 this up in the way that you sort of anticipated, and 18 wanted to guard against in your joint motion. So, it 19 may be that after we hear from all of you, we will 20 need to put you on mute, and take a little break to 21 talk with each other.
22 Ms. Hollis, do you have a viewpoint one 23 way or the other?
24 MS. HOLLIS: We were not requested to join 25 in the motion, so we're one step removed. Obviously, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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766 1 we want the issues to be covered appropriately, and it 2 is -- some of it is technical. I leave it in the 3 hands of the parties that are most active to determine 4 what is the best way to achieve that coverage of the 5 issues in a thoughtful and appropriate way pursuant to 6 the NRC's regulations and its precedent.
7 CHAIRMAN YOUNG: Okay. Judge Cole.
8 JUDGE COLE: Yes, this is Judge Cole. If 9 the proposed Findings of Fact and Conclusions of Law 10 are what I think they're going to be, I do not 11 personally anticipate a large number of questions, at 12 least from me. I thought you ought to know that.
13 CHAIRMAN YOUNG: Did we gain or lose 14 someone just now?
15 (Off the record comment.)
16 CHAIRMAN YOUNG: And I don't think that we 17 -- I guess one concern I would have about bringing the 18 witnesses is that we construed your motion to be an 19 attempt to simplify things. And we're planning to give 20 one day to this, so if the witnesses were there, there 21 would be the possibility for extending that time.
22 I'm not sure that that would be necessary 23 at this point, and that we could, alternatively, issue 24 any written questions, if we feel the need to, which 25 we may not. It sounds as though two of the three
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767 1 parties involved in the joint motion would lean in the 2 direction of not bringing witnesses.
3 Mr. Lewis, would you like us to confer, or 4 do you want to -- do you maintain a desire to bring 5 your witnesses? What's your perspective at this 6 point?
7 MR. LEWIS: My perspective is simply to 8 avoid multiple submissions after March 9', if it's 9 unnecessary. I do have my witnesses available on 10 those dates. Of course, they reserved them, so they 11 are available. If you have some simple questions, I 12 could have them there, and even have them there on 13 short notice, if you want to make that decision after 14 you see the proposed Findings of Fact and Conclusions 15 of Law.
16 I do appreciate the NRC Staff's concern 17 with the process. I would not object if you only have 18 questions for Entergy's witnesses to having them 19 there, and letting you ask the questions. And I do 20 appreciate the Staff's concerns with the process.
21 Entergy does not have any questions for Dr. Eagan, 22 based on his testimony, and, therefore, for that 23 reason alone, we would not object to his testimony 24 coming in as-is, even if we have our witnesses there.
25 JUDGE ABRAMSON: This is Judge Abramson.
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768 1 Let me ask a question, because it seems to me the 2 Staff is the one that's primarily throwing a monkey 3 wrench in the proposal.
4 Staff, do you agree that if we don't take 5 testimony from any experts, that Dr. Eagan's exhibit 6 testimony is admissible at this point? Isn't that 7 what you said in your petition?
8 MS. UTTAL: That's absolutely true. If 9 the Board grants the motion, then the Staff would not 10 object, because none of the witnesses will be there.
11 JUDGE ABRAMSON: All right. So, let me 12 suggest that there's a possible way to deal with your 13 concern. Would you be comfortable with Applicant and 14 Staff bringing their witnesses in case we have 15 questions of them, and should we have questions of Dr.
16 Eagan based on what was in the record, that we deal 17 with those in writing?
18 MS. UTTAL: No, in terms of fundamental 19 fairness, I would have a problem.
20 JUDGE ABRAMSON: Well, wait a minute.
21 Let's talk about fundamental fairness. The purpose of 22 this is for us to ask questions, not for you to ask 23 questions, so what's unfair about it?
24 MS. UTTAL: I guess there's a whole lot of 25 things.
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769 1 JUDGE ABRAMSON: Judge Young, are you 2 still on?
3 CHAIRMAN YOUNG: I'm here.
4 -JUDGE COLE: We're here.
5 JUDGE ABRAMSON: You're the expert on 6 fundamental fairness. I'll let you address this one.
7 CHAIRMAN YOUNG: Well, let's see what Ms.
8 Uttal has to say.
9 MS. UTTAL: Well, I originally agreed to 10 this motion because it got rid of the process problem, 11 and got rid of the, what would be inequity between the 12 parties, and would not be consistent with prior 13 practice, and prior law, because we had this thing 14 happen in the Vermont Yankee case, where the Staff 15 could not produce its witness. And we withdrew our 16 testimony, and what the Board did was just accept his 17 -- on their own decided to accept his testimony as an 18 exhibit, but not as testimony. That was not at the 19 Staff's bequest. We didn't ask for that.
20 JUDGE ABRAMSON: And would you explain to 21 me how you view the difference of that, since the 22 Board always weighs testimony or exhibits for their 23 value as they contribute to the record?
24 MS. UTTAL: There were -- well, I guess 25 it's not just a matter of form, but whether it's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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770 1 introduced as testimony, or introduced as an exhibit.
2 I have no idea what use the Board in that case put to 3 the testimony that was withdrawn. I don't remember 4 whether they cited it in the case at all. I wasn't 5 really my case.
6 CHAIRMAN YOUNG: Let me just ask, if we, 7 alternatively, held open the possibility of asking 8 written questions, then what would really be the 9 difference in terms of what's, ultimately, produced, 10 and allowing those parties, namely, Entergy and the 11 Staff, if it wishes to bring their witnesses, but 12 allowing Ms. Lampert not to, the cross could be 13 prohibitive. And then if we have any other questions 14 we could, of course, do questions in writing. But to 15 the extent that having them there just in case, if a 16 party wants to, would simplify things, and move things 17 along. What would really be the difference between 18 having it done in writing, and us just asking the 19 witnesses questions right there?
20 MS. UTTAL: Well, there's a difference 21 between sitting down in front of a piece of paper and 22 writing out a question, and editing it, and changing 23 it, and speaking live. So, there is a difference.
24 CHAIRMAN YOUNG: Right. But we're going 25 to be the ones who are going to be asking the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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771 1 questions, so that would be sort of on us.
2 MS. UTTAL: I don't know what to say, 3 Judge. I think I've expressed what my position is. If 4 Mr. Lewis wants to bring his witnesses, and the Board 5 is going to allow that, I don't know if the Staff will 6 bring their witnesses. In the face of Mr. Lewis 7 bringing his witnesses, we might bring our witnesses.
8 I have to talk to other people about that, so I would 9 leave it in the Board's hands at this point.
10 CHAIRMAN YOUNG: I'd like to explore just 11 a little bit more here. First, before I do that with 12 you, Ms. Uttal, Ms. Lampert.
13 MS. LAMPERT: Yes.
14 CHAIRMAN YOUNG: Do you have any objection 15 to, basically, letting any party who wants to have 16 their witnesses available, have them there, but not 17 requiring any party to bring their witnesses?
18 MS. LAMPERT: No, I don't have an 19 objection to that. As far as, my opinion, and granted 20 I'm pro se, I think Ms. Uttal's comments tend to be 21 more theoretical, and not practical. I think your 22 point, just asking -- being able to ask a question if 23 you had to in writing really doesn't make a 24 difference. This is a -- there's no cross-25 examination. This is a simple, straightforward NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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772 1 procedure.
2 In many ways, our joint motion recognized 3 the fact of where we were on this issue, and we were 4 looking for efficiency.
5 CHAIRMAN YOUNG: Thank you.
6 JUDGE ABRAMSON: Yes, as are we.
7 MS. LAMPERT: Despite the accusations that 8 we"re dragging this out, that certainly isn't the 9 case. What we're looking for is, and have been 10 looking for, is a reasonable decision on this, in the 11 hopes that we would get one mitigation. But, you 12 know, how I receive the orders today.
13 CHAIRMAN YOUNG: Let me go back to Ms.
14 Uttal, if I could. I want to make sure I understand 15 your issue with allowing some parties to bring 16 witnesses, but not others, if they don't want to.
17 What you said, if I recall correctly, is 18 that if anybody brought witnesses, then Mr. Eagan 19 should be there, and without him being there, then we 20 should not accept his testimony. But, I guess, what 21 I'm not understanding real clearly is what would be 22 the Staff's interest in Mr. Eagan being there, if you 23 don't want to cross-examine him, and we're not going 24 to have questions from anybody but us. And, really, 25 the only questions that I see any of us asking would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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773 1 be clarification questions.
2 JUDGE ABRAMSON: Yes, Judge Young, this is 3 Judge Abramson. Let me pick up on that point. What's 4 the difference between being willing to admit his 5 testimony, or his written testimony as an exhibit, and 6 having him there to answer a question, if he has no 7 questions to -- if there are no questions to posed to 8 him? I mean, why would it be objectionable to have 9 his testimony in as an exhibit, just because he's not 10 there?
11 MS. UTTAL: Well, normally, one would need 12 the witness' response to the testimony, and say that 13 testimony is still true, and that they have no 14 additions to make while they're under oath. That's how 15 the testimony is brought in. If nobody is there to 16 sponsor it in, then it's merely another exhibit.
17 CHAIRMAN YOUNG: Let me just interrupt for 18 a second. This is Judge Young. Let me interrupt for 19 just a second.
20 We would anticipate that all of the 21 exhibits of all of the parties would be admitted into 22 the record, basically, with an order that we would 23 intend to issue on Tuesday. And, actually, what I was 24 planning to do was to send out a courtesy copy of that 25 order, if we're able to get to that point this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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774 1 evening, indicating, or, basically, sharing with you 2 the order that would be issued first thing Tuesday 3 morning. And in that order, we would admit into 4 evidence, or admit into the record the -- well, the 5 same difference, all of the exhibits of all of the 6 parties. So, none of the parties would be sponsoring, 7 or giving any explanatory discussion about any 8 possible revisions. We would just accept them as they 9 are. And the only questions to any of the witnesses 10 would be, as I said, to explain something, just 11 explanatory, to clarify testimony.
12 As the non-technical member of the Board, 13 sometimes I feel a need to just ask a technical 14 witness well, could you tell me exactly what this 15 refers to? Could you give me a definition of this 16 term? So, I'm not sure that the need to sponsor 17 testimony would come up, because all of it would have 18 been admitted prior to March 9 th.
19 MS. LAMPERT: Could I say something? This 20 is Mary Lampert.
21 CHAIRMAN YOUNG: Go ahead.
22 MS. LAMPERT: Dr. Eagan's declaration was 23 signed under perjury, et cetera. He already attested 24 to the truth of it, so I don't understand what Ms.
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775 1 what is said in that statement that he swore to isn't 2 true.
3 JUDGE ABRAMSON: Ms. Lampert, let me just 4 explain --
5 MS. LAMPERT: Maybe I didn't get it. I'm 6 sorry.
7 JUDGE ABRAMSON: This is Judge Abramson.
8 Let me just explain. The normal process is that when 9 we go to hearings, a witness will have prefiled his 10 testimony, and we simply have the witness come on the 11 stand and swear that that was his testimony. We're 12 not planning to do this whether or not witnesses show 13 up at this hearing.
14 MS. LAMPERT: Oh, I get it. Thank you.
15 JUDGE ABRAMSON: So that, maybe for Ms.
16 Uttal, that's the point. We don't plan to do that in 17 this instance.
18 MS. UTTAL: So, basically, you've cut the 19 rug out from under me, or pulled the rug out from 20 under me.
21 MS. LAMPERT: Well, maybe I can pass the 22 cup to you. If you want to pay for him, he can come.
23 CHAIRMAN YOUNG: Ms. Uttal, did I just 24 hear you make a concession that you're withdrawing any 25 objection to our allowing parties to bring their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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776 1 witnesses?
2 MS. UTTAL: No, I'm not, but you, 3 basically, have --
4 CHAIRMAN YOUNG: It sounds like you don't 5 want to officially concede, but you're not going to 6 push it.
7 MS. UTTAL: I'm not going to drag you in 8 front of the Commission, if that's what you're asking.
9 CHAIRMAN YOUNG: Because I think we all 10 agree that, obviously, if we can proceed in a more 11 efficient fashion, then that would be good. And this 12 would -- it certainly does have the potential to move 13 us forward more quickly, while still allowing for 14 appropriate deliberations, and appropriate 15 clarification of the record, and of any evidence on 16 which we might have any questions.
17 So, I guess, did anyone else have any 18 other issues with what we've said? And then in a 19 moment, I'll go through what we're proposing to do.
20 JUDGE COLE: Do any of the parties have a 21 problem with the date proposed for the Findings of 22 Fact and Conclusions?
23 CHAIRMAN YOUNG: Hearing none, we'll 24 assume that there are no objections.
25 MS. LAMPERT: Well, I had one question.
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777 1 In regard to the request for hearing on the new 2 contentions, am I correct that you do not-want or nor 3 would you ask questions of any experts?
4 CHAIRMAN YOUNG: We were intending to ask 5 questions only of the lawyers and you. And I think 6 what does tend to happen sometimes in oral argument is 7 if a lawyer has their experts there, sometimes in the 8 lawyer responding to us, they may confer with their 9 expert. But we -- in oral argument, no. We would 10 not, normally, direct any questions to witnesses. And 11 I can tell you, we are, primarily, going to be looking 12 at the -- whether the criteria of 10 CFR 2.309 and 13 2.326 are met. So, it would be, primarily, legal 14 issues, although one of the standards there is -- add 15 it and read it to you, is that the motion must 16 demonstrate that a materially different result would 17 be, or would have been likely had the newly proffered 18 evidence been considered. Initially, the motion must 19 address a significant safety, environmental issue.
20 So, to some extent, I mean, obviously, we're going to 21 look to see how serious the issues are that you've 22 raised, but oral argument is generally with counsel, 23 in the same way that we have oral argument on 24 contentions, except that these standards on reopening, 25 we'd like to hear from the parties on. I know there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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778 1 may be still some argument about whether those would 2 be applicable, but I think our inclination is to think 3 that given that when the Commission remanded 4 Contention 3, it was pretty specific about what it was 5 remanding, so there's at least an argument to be made 6 that that did not, thereby, reopen the proceedings for 7 anything, any new contentions that might come along.
8 In any event, we'll hear all the argument 9 on that, that may be elicited by our questions. So, 10 there's nothing that you would need to prepare on the 11 contentions. What you would need to prepare, and we 12 set the date of March 4 th, which is two weeks from 13 today, would be the proposed Findings of Fact and 14 Conclusions of Law.
15 Okay. If there are no other concerns, 16 what we would do would be to issue an order, as I 17 said, if possible, first thing on Tuesday indicating 18 that we are granting the joint motion for good cause 19 shown, that we do grant the motion in limine to the 20 extent of excluding as evidence the Pilgrim Watch SAMA 21 remand prefiled testimony, that we will consider it as 22 argument in the nature of a Statement of Position, 23 that we will admit all of the exhibits of all of the 24 parties, but shall in our deliberations accord each of 25 them only the weight to which they are entitled based NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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779 1 on the extent to which they are relevant, material, 2 and reliable pursuant to 10 CFR 2.337(a), and 3 persuasive on the threshold issue that we've defined.
4 And we would like to have proposed Findings of Fact 5 and Conclusions of Law on that threshold issue by 6 March 4t' with specific references to specific 7 exhibits and pages, and identifying them sufficiently 8 so we can find what you're talking about; that we will 9 conduct oral argument on the new contentions in the 10 form of inquiries by us on whether the contentions 11 meet the relevant regulatory criteria at 10 CFR 2.309 12 and 2.326; that we will also hear arguments in the 13 nature of closing arguments on the threshold issue of 14 Contention 3 consisting, primarily, of Board questions 15 relating to the parties' proposed Findings of Fact and 16 Conclusions of Law; that each party shall be permitted 17 to make short closing arguments, which will be limited 18 to 10 minutes per party. Also, that any party may, if 19 they wish, bring witnesses just to answer any Board 20 clarification questions that might arise.
21 I'm just writing this down, so I make sure 22 I remember. Okay. And that then we would hope that we 23 would not need to ask any further questions in 24 writing, but that that would still remain a 25 possibility. And, obviously, we would try to do that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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780 1 in as expeditious fashion, as possible.
2 Now, just if I could have your attention 3 for one more minute. I want to just quickly go over 4 the exhibits that we have here. There's one joint 5 exhibit. Then Entergy has 14 exhibits, Pilgrim Watch 6 has 16 exhibits.
7 MS. LAMPERT: Excuse me. May I ask a 8 question?
9 CHAIRMAN YOUNG: Sure.
10 MS. LAMPERT: Or do you want to finish 11 that, then I'll get to my question.
12 CHAIRMAN YOUNG: Okay. I'm almost --
13 MS. LAMPERT: Oh, I'm sorry, Judge.
14 CHAIRMAN YOUNG: That Pilgrim Watch has 16 15 exhibits, the 1 6 th of which is the -- I guess that's 16 the January 3 0 th, is the declaration of Bruce Eagan, 17 and the NRC Staff also has 16 exhibits. Are those 18 correct? Are those numbers correct? I took those 19 from your witness list, and I think I got the updated 20 ones in all cases.
21 MS. LAMPERT: May I ask a question now?
22 CHAIRMAN YOUNG: Yes, go ahead.
23 MS. LAMPERT: Yes. In regard to Dr.
24 Eagan's January 3 0 th declaration, that has not been 25 formally submitted as an exhibit. I requested in, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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781 1 this gets really confusing when dealing with pro ses.
2 I had requested in that response that it be part of --
3 that it be an exhibit. And then I asked both Entergy 4 and NRC if they would object to a motion to the effect 5 that it be accepted as an exhibit. That is what led to 6 Entergy's offer and suggestion of the joint motion 7 requesting resolution that was submitted yesterday.
8 So, my question being, should I properly after we hang 9 up submit the motion to accept it, or is that just 10 foolish, more paper?
11 CHAIRMAN YOUNG: You don't need to do 12 that.
13 MS. LAMPERT: Okay.
14 CHAIRMAN YOUNG: We will be accepting all 15 of the exhibits under the -- with the proviso, as I 16 said before.
17 MS. LAMPERT: Okay. I'm sorry, but I 18 didn't want to mess up on it.
19 CHAIRMAN YOUNG: No, no, that's fine, 20 always ask. It's always better to ask. So, 21 basically, that would be it, and we would see you on 22 March 9 th starting at 9:00. And we would, also, issue 23 a revised Notice of Hearing, which will be put up on 24 the NRC website. Anything else?
25 MS. HOLLIS: I had a quick question. This NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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782 1 is Ms. Hollis.
2 CHAIRMAN YOUNG: Go ahead.
3 MS. HOLLIS: Is it your -- is it the 4 panel's understanding and plan that this would be a 5 one-day hearing?
6 CHAIRMAN YOUNG: Yes. I would imagine that 7 we would try to break this up into the morning for the 8 contentions, and the afternoon for the closing 9 argument. So, I don't think we'll need you any more 10 than one day. And if we need to stay a little bit 11 late, the room in the hotel will be available.
12 MS. HOLLIS: Thank you so much.
13 CHAIRMAN YOUNG: Well, thank you all.
14 Again, I'm assuming -- let me give you one more 15 chance. Does anyone have anything else that you 16 anticipate that we might need to look at?
17 MR. LEWIS: No, Judge Young.
18 MS. UTTAL: Nothing from the Staff.
19 MS. LAMPERT: Now I'm fine. Thank you.
20 CHAIRMAN YOUNG: All right. Well, thank 21 you all. We appreciate it, and I will try to get a 22 courtesy copy of Tuesday's order out to you before I 23 leave this evening, and I think that should take care 24 of it. Thank you all very much.
25 Does the court reporter have any questions NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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783 1 about names, et cetera?
2 COURT REPORTER: I just have -- we can 3 go off the record.
4 CHAIRMAN YOUNG: Okay. That would 5 conclude this conference.
6 (Whereupon, the proceedings went off the 7 record at 3:41:06 p.m.)
8 9
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: Pilgrim Nuclear Plant Name of Proceeding: Pre-hearing Conference Docket Number: 50-293-LR ASLBP Number: 06-848-02-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.
James Corýes
. Official Reporter Neal R. Gross & Co., Inc.
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(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com