ML12125A124
| ML12125A124 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 04/26/2012 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01, NRC-1579, RAS DDD-2 | |
| Download: ML12125A124 (50) | |
Text
p£S Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Limerick Generating Station Docket Number: 50-352-LR and 50-353-LR DOCKETED May 2, 2012 (12:30 p.m.)
OFFICE OF SECRETARY ASLBP Number: 12-916-04-LR-BDO1 RULEMAKINGS AND ADJUDICATIONS STAFF Location: (telephone conference)
Date: Thursday, April 26, 2012 Work Order No.: NRC-1579 Pages 270-317 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 TC-KP[-k7- ~- 9O) --p S b:-ý
270 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5
6 TELEPHONIC INITIAL SCHEDULING CONFERENCE 7 ---- ---------------------- x 8 In the Matter of: : Docket No.
9 EXELON GENERATION COMPANY, : 50-352-LR, 10 LLC : 50-353-LR 11 (Limerick Generating ASLBP No.
12 Station, Units 1 and 2 : 12-916-04-LR-BDO1 13 ----------------------- x 14 Thursday, April 26, 2012 15 16 17 The above-entitled matter was convened 18 telephonically, pursuant to notice, at 1:30 p.m.
19 20 21 BEFORE:
22 WILLIAM J. FROEHLICH, Chairman 23 MICHAEL F. KENNEDY, Administrative Judge 24 WILLIAM E. KASTENBERG, Administrative Judge 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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271 1 APPEARANCES:
2 On Behalf of Exelon Generation Company, LLC:
3 ANNA JONES, ESQ.
4 ALEX POLONSKY, ESQ.
5 KATHRYN SUTTON, ESQ.
6 of: Morgan, Lewis & Bockius LLP 7 1111 Pennsylvania Avenue, N.W.
8 Washington, DC 20004 9 (202) 739-3000 10 (202) 739-3001 (Fax) 11 12 On Behalf of the Nuclear Regulatory Commission:
13 MAXWELL SMITH, ESQ.
14 CATHERINE KANATAS, ESQ.
15 of: Office of the General Counsel 16 Mail Stop 15 D21 17 U.S. Nuclear Regulatory Commission 18 Washington, D.C. 20555-0001 19 (301) 415-1246 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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272 1 On Behalf of the Natural Resources Defense 2 Council:
3 ANTHONY Z. ROISMAN, ESQ.
4 of: National Legal Scholars Law Firm, PC 5 241 Poverty Lane - Unit 1 6 Lebanon, NH 03766 7 (603) 443-4162 8 (603.) 443-4175 (Fax) 9 10 Also Present:
11 MATTHEW FLYNTZ, Law Clerk, NRC 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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273 1 P RO C E E D I NG S 2 1:32 p.m.
3 JUDGE FROEHLICH: Good afternoon, all.
4 This is Judge Froehlich. I take it that we have our 5 Court Reporter and all the parties to the proceeding 6 on the line, is that correct?
7 COURT REPORTER: This is the reporter. I'm 8 here.
9 JUDGE FROEHLICH: The most important is on 10 line. Thank you, sir.
11 And staff, the Applicant and Intervenor 12 are all on the line?
13 MR. ROISMAN: The Intervenor's here.
14 JUDGE FROEHLICH: Thank you.
15 MS. JONES: The Applicant is here.
16 JUDGE FROEHLICH: Okay. And the NRC 17 staff?
18 MR. SMITH: The NRC staff is here as well, 19 Judge.
20 JUDGE FROEHLICH: Thank you.
21 This is the first telephone conference in 22 this proceedings involving the license renewal 23 application for the Limerick Generating Station, Units 24 1 and 2, NRC Docket Nos. 50-352-License Renewal and 25 50-353-License Renewal.
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274 1 The ASLBP No. is 12-916-04-LR-BDO1.
2 This is Judge William Froehlich. With me 3 in Washington is Judge Kennedy and our Law Clerk 4 Matthew Flyntz.
5 Judge Kastenberg, are you with us on line?
6 JUDGE KASTENBERG: I am, indeed.
7 JUDGE FROEHLICH: Okay. At this point I'd 8 like to take the introductions from the parties.
9 Please state your name, who you represent and any 10 other persons who might be with you who will be 11 participating in today's conference.
12 We can begin with the Applicant.
13 MR. SMITH: This is Anna Jones with the 14 law firm of Morgan, Lewis. I'm representing the 15 Applicant Exelon Generation Company, LLC.
16 And also on the phone is Alex Polonsky and 17 I believe Kathryn Sutton.
18 JUDGE FROEHLICH: Thank you, Ms. Jones.
19 And for the Intervenor, the NRDC?
20 MR. ROISMAN: This is Anthony Roisman, and 21 I'm presenting Natural Resources Defense Council, 22 JUDGE FROEHLICH: Thanks.
23 And for the NRC staff?
24 MR. SMITH: This is Max Smith representing 25 the NRC staff. And I'm joined today by Catherine NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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275 1 Kanatas.
2 JUDGE FROEHLICH: Thank you, Mr. Smith.
3 The purpose of today's conference is to 4 discuss the issues related to the schedule for and the 5 management of this proceeding. This is governed by 6 the NRC regulations at 10 CFR 2.332 which requires 7 this Board to develop a scheduling govern to schedule 8 this proceeding.
9 As a little bit of a background, the NRDC 10 submitted a petition to interview in this proceeding 11 in November of 2011. This Board admitted two portions 12 of one of the contention, Contention 1-E in our 13 decision LBP12-08 on April 4th of this year.
14 Exelon and the NRC staff both filed 15 appeals of our decision with the Commission on April 16 16th.
17 Also on that date, we issued a notice of 18 this telephone conference and requested that the 19 parties discuss a number of the issues and try to 20 reach agreements prior to today's call. They did so; 21 this Board is grateful for that. And Exelon filed a 22 letter with the Board on April 25th explaining the 23 areas where the parties agreed and those areas where 24 there's still some disagreements.
25 Throughout this call we'll refer to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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276 1 letter that was submitted to the Board on April 25th 2 which parallels and is numbered as our notice of this 3 call.
4 And unless there are any preliminary 5 matters that any one of the parties or Judge 6 Kastenberg wants to raise, we'll go through that, I 7 would purpose, seriatim. Are there any issues that 8 anyone wishes to raise prior to us going through that?
9 I do note that there is pending before the 10 Board an unopposed motion to defer initial disclosures 11 and we'll take that up as part of our private session 12 as we get into the enumerated items in detail. I know 13 a number a number of the members of the Board have a 14 series of questions related to that pleading, the 15 pleading of April 19th. Okay.
16 That said, let's move first to the time 17 frame for updating mandatory disclosures under 10 CFR 18 2.336(d), and the updating of the required hearing 19 file under 10 CFR 2.1203(c).
20 I note that the parties to agree to the 21 general timing of this. I want the parties to be 22 aware that even though the initial disclosures would 23 be due under our Regs. I think on the 3rd of May, 24 until there's an order issued, your excused from the 25 mandatory disclosures.
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277 1 Okay. The first question that I guess 2 that I had is that in the unopposed motion to defer 3 the initial disclosures and where it discusses, I 4 guess, on the bottom of the second page and the top of 5 the third page, I was a little bit confused about the 6 30 days -- let me rephrase it.
7 The example given on page 3 "If the 8 Commission denies the appeal on August ist," that's 9 just a hypothetical date, "resulting in an initial 10 mandatory disclosures being exchanged on September 11 1st, i.e. 30 days, constituting a four month deferral 12 period, then NRDC may file a motion to extend the time 13 for actions to be taken after the trigger date by four 14 months."
15 I wonder if Mr. Mr. Roisman or a spokesman 16 for the unopposed motion can sort of explain that to 17 me? I'm not quite sure I understand the important of 18 what's in that paragraph.
19 MR. ROISMAN: Okay. Thank you, Mr.
20 Chairman. This is Mr. Roisman.
21 If we didn't do the deferral and barring 22 a stay of the Licensing Board order, as you pointed 23 out the beginning of the mandatory disclosures would 24 be starting next. week. We will in this hypothetical, 25 four months during which we would not have the benefit NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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278 1 of those disclosures will have past, but there are a 2 variety of things most significantly the staff 3 continues to work on as the draft impact statement and 4 its SER. And those items will become milestones in 5 the case management order, as you'll see from the 6 proposed letter and was as routinely done in those 7 proceedings. We don't want to be put at a 8 disadvantage having lost four months during which we 9 would reviewing a fairly large volume of material, 10 that initial disclosure is usually quite large, by 11 having agreed to the deferral of when that would 12 start. So what we're suggesting here, and the parties 13 have agreed is, that we would be able to file a 14 request to have that four months tacked onto any 15 deadlines that were built into a case management order 16 and that the Applicant and the staff would not oppose 17 the request.
18 We're not suggesting in this that the 19 Board has agreed to that and even that we would ask 20 for it. But that we would have the right to do that 21 and to the extent that our request was based upon the 22 four month deferral of the mandatory disclosures, 23 there would be no opposition.
24 JUDGE FROEHLICH: I see. And Mr.Roisman, 25 for example, if the FEIS were to issue and the Board NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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279 1 were, I guess, in the normal course to set a date and 2 I believe as the parties proposed here, a 30 day 3 deadline for new contentions is the tenor of this 4 paragraph saying that you want 30 day plus in the 5 example four months to come up with a new contention?
6 MR. ROISMAN: That we would have the right 7 seek that and that the other parties wouldn't oppose 8 that. In the hypothetical that you give, it may quite 9 well be that there would no reason for us to ask for 10 that and we would still have to convince the Board, 11 you would still have to believe that something about 12 this new contention that we wanted to file or about 13 something that was in the FSEIS would relate back to 14 the four month deferral time period, and that all 15 those prior documents would in some way or another 16 have some bearing on this. And realistically I think, 17 probably the date that's more likely to come into play 18 would be the DSEIS and that's now anticipated by the 19 staff, I think they said in the recent filing in 20 either January or February of next year.
21 JUDGE FROEHLICH: All right. Now, Mr.
22 Roisman, like me ask you if this provision, the 23 deferral period or the request for it, if the Board 24 were to reject that concept, that idea and set, let's 25 just say for example as was proposed, a 30 day NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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280 1 deadline for the filing of any new contentions after 2 the DEIS was a trigger or the FEIS as a trigger, would 3 you still be in support of the motion to defer the 4 initial disclosures?
5 MR. ROISMAN: No, we would not. See, the 6 deferral is a prejudice to us. The staff and the 7 Applicant have had literally years to get ready for 8 this application that we submitted. We had a very 9 short period of time to prepare and file contentions.
10 Documents that are going to be produced in the first 11 instance in the initial disclosure are usually 12 voluminous and full of very useful information.
13 Digesting those, if that disclosure starts to come at 14 the time of something else critical happening when we 15 have other pressures in the case, would to us be a 16 real disadvantage.
17 So, no, we would not be supportive of a 18 deferral and we would say that the Applicant and the 19 staff should have to file a motion for a stay, which 20 we would oppose.,
21 JUDGE FROEHLICH: All right.
22 MR. 'POLONSKY: Your Honor?
23 JUDGE FROEHLICH: Yes, please 24 MR. POLONSKY: This is Alex Polonsky if I 25 could seek some clarification of my own.
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281 1 JUDGE FROEHLICH: Sure.
2 MR. POLONSKY: Tony, would you be amenable 3 if the Board were to accept the last paragraph or last 4 condition and the actions after the trigger date that 5 would be extended or that you would be requesting an 6 extension of time for would be limited to things like 7 testimony and other filings with the exception of a 8 motion to amend or submit a new contention with 9 respect to the FSEIS?
10 MR. SMITH: Well, this is Max Smith with 11 the NRC staff. We were disconnected for about five to 12 ten minutes there.
13 JUDGE FROEHLICH: Oh, boy.
14 MR. SMITH: Sorry for the inconvenience.
15 The phone came unplugged and we were headed in the 16 same situation Anna was in, sort of in the 17 indeterminate holding pattern.
18 JUDGE FROEHLICH: Oh? If I may, to recap 19 for you, I was questioning Mr. Roisman and now Mr.
20 Polonsky is responding to the effect of the last 21 paragraph in the unopposed motion to defer initial 22 disclosure. And as I understood where it stands, and 23 Mr. Roisman correct me if I'm wrong, that the 24 Intervenors would not be supportive of what was filed 25 as an unopposed motion if the Board were to disallow NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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282 1 the deferral period tack on to a firm deadline for 2 filing, let's say, new contentions.
3 And Mr. Roisman, do you want to elaborate 4 or clarify for Mr. Smith our discussion? And then 5 we'll hear from Mr. Polonsky.
6 MR. ROISMAN: Oh no. I think what Alex is 7 raising will probably bring Max up to speed fairly 8 quick.
9 JUDGE FROEHLICH: Okay. Mr. Polonsky, up 10 to you.
11 MR. POLONSKY: Okay. Thank you. So, this 12 is Mr. Polonsky for the Court Reporter's sake.
13 Tell' me, the question I have is would NRDC 14 be amenable to if the Board were to say that for 15 amended contentions related to -- or all new or 16 amended contentions including those related to the 17 FSEIS or FSER and whichever would be the trigger date, 18 that those would need to be filed within 30 days or 19 whatever about of time the Board specifies for filing 20 amended or new contentions? But that this provision 21 here, the last provision, would apply for all other 22 triggers, all other actions that would need to be 23 taken after the trigger date like filing testimonies?
24 MR. ROISMAN: I would have to think about 25 that, Alex. I mean, I see the distinction that you're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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283 1 making and I understand that in the usual case it's 2 something in the DSEIS or the FSEIS which triggers the 3 right to file a new or an amended contention, and that 4 in theory all these other documents are irrelevant to 5 that. But, I mean at least hypothetically I can 6 imagine situations in which something that the staff 7 is saying in the DSEIS relates to documents that were 8 part of the initial disclosure, the very contention 9 that we're talking about. The staff has in other 10 cases resorted to consultations with Sandia on issues 11 related to Severe Accident Mitigation Alternatives and 12 their impacts. As a result of that, I have no way of 13 knowing until the initial disclosures are made whether 14 or not there's a history of the staff already dealing 15 with Sandia or some other consultant or, in house, 16 with that issue. So what we see in the DSEIS might 17 conceivably be something significantly different from 18 what the Applicant has in the SER on this issue, which 19 is the admitted issue at this point, namely the 20 updating of Severe Accident Mitigation Alternatives 21 Analysis.
22 Those documents are going to be very 23 relevant to that and it's not just enough to know from 24 the DSEIS oh, that's changed. But it also then will 25 be incumbent upon us to have integrated in any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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284 1 documents that would produce that need disclosures, 2 the mandatory disclosures prior to that time. If 3 there's a lot of them, if the deadline for when the 4 DSEIS is published and the date on which the deferred 5 disclosures are made is relatively close together, we 6 will be squeezed. And, frankly, I see no reason for us 7 -- I mean, I think it's a disadvantage to Interveners 8 that staff and Applicant have all this time to put 9 their case together and we have very short time to do 10 our work. I don't want to make that problem worse.
11 So my first reaction would be no, I 12 wouldn't agree to that. But I think that the Applicant 13 and the staff wrote into this, and I understood what 14 they were writing into it, if you will, an escape 15 clause. And that is at the end we will still have to 16 convince the Board that there's a good reason why we 17 should get in this hypothetical four months, or it 18 might be that we'll say we just need two of those four 19 months, whatever, in order to make our case. We did 20 not insist that there be an automatic deferral of 21 those dates and that the Board wouldn't have the 22 responsibility to decide if what we asked for is 23 reasonable.
24 So, I'm more inclined to trust the Board 25 to make a decision and, frankly, I hope that everyone NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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285 1 will trust us to not try to abuse this just because we 2 say we have that right.
3 JUDGE FROEHLICH: Staff, do you wish to be 4 heard on this particular issue?
5 MR. SMITH: The staff has nothing to add, 6 Judge Froehlich.,
7 JUDGE FROEHLICH: Okay. Then I will ask 8 that the Proponents of the motion, the six month 9 deferral, why six months? Was that triggered to, 10 like, the Commission's record on dealing with appeals 11 or on dates currently projected by the staff for the 12 DEIS and the FSEIS, the final statement?
13 MR. POLONSKY: This is Mr. Polonsky.
14 JUDGE FROEHLICH: Okay.
15 MR. POLONSKY: It is based on a number of 16 factors. The first is that the date of the FSEIS as 17 currently published by the staff is in February 2013, 18 and we thought six months would give plenty of time 19 for the parties to review their respective documents 20 before that document was issued, especially since we 21 have only an admitted NEPA contention and we assumed, 22 although we don't know, but assumed that the Board 23 would use the FSEIS as the trigger date.
24 The other is the Commission in ruling on, 25 legal questions like this typically have taken a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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286 1 shorter period of time. Clearly after Fukushima for 2 the Seabrook and Davis-Besse appeals, the Commission 3 took about a year but those contentions had very 4 factual components to them and we view the appeal here 5 as being a legal-based appeal, and as I mentioned, the 6 Commission's history there is somewhere in the four to 7 six month time frame. So, there were a couple of 8 considerations.
9 JUDGE FROEHLICH: Yes. Okay. Thank you.
10 I appreciate that clarification.
11 The next issue related to this is the 12 termination of the obligation for disclosure. And I 13 noticed that this was one of the elements that the 14 parties were not able to agree on.
15 My initial reaction was why shouldn't 16 initial disclosure continue up until the date of the 17 hearing. Could I hear the arguments in favor of 18 cutting it off earlier and then a response from NRDC?
19 MS. JONES: Your Honor, this is Anne 20 Jones.
21 JUDGE FROEHLICH: Okay.
22 MS. JONES: Our experience has been that 23 terminating the' mandatory disclosures at a date 24 certain in advance of the testimony allows us to focus 25 our resources on comparing complete and comprehensive NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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287 1 testimony. And felt that then our experience that 2 there's little to be disclosed during that time frame 3 that would not be excluded under a privileged 4 information or under other exclusions that we've 5 proposed here, such as drafts and so on. Therefore, 6 that the substantive matters to be disclosed are very 7 few and don't outweigh the costs of spending time and 8 resources on that effort.
9 JUDGE FROEHLICH: All right. So, Ms.
10 Jones, from your perspective there probably isn't a 11 large volume of material in that period between the 12 testimony and the hearing, but that it would detract 13 from the preparation for a hearing, is that what I 14 understood?
15 MS. JONES: That's accurate. And the 16 volume that was generate would be on the order of 17 draft privileged materials.
18 JUDGE FROEHLICH: Okay. Mr. Roisman, 19 hearing that what is the necessity or the need, do you 20 anticipate that there are documents that will would be 21 disclosed on the eve of trial that would prejudice you 22 if you didn't have them or what are the arguments 23 going towards taking this up to, let's say the close 24 of the evidentiary hearing as I understand your 25 position?
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288 1 MR. ROISMAN: Okay. Well, first, 2 obviously I come from having markedly different 3 experience in both the Vermont Yankee license renewal 4 proceeding and ongoing Indian Point licensing renewal 5 proceeding. Applicant and staff have been engaged in 6 an interactive process in which documents are being 7 produced continuously. We already filed -- profiled 8 direct testimony at Indian Point and major documents 9 are coming out from the Applicant and the staff after 10 we profiled that relate to issues' that we profiled on.
11 JUDGE FROEHLICH: Yes.
12 MR. ROISMAN: And so while there's nothing 13 that we're proposing here that would force them to 14 produce the document earlier if it didn't come into 15 existence earlier, the idea that those documents we 16 wouldn't see them --
17 JUDGE FROEHLICH: Yes.
18 MR. ROISMAN: -- and they wouldn't be part 19 of the mandatory disclosure seems to me to be 20 completely wrong. That's number one.
21 Number two: And my experience in more 22 general litigation is that the disclosure obligations, 23 the continuing disclosure obligations which are 24 contained in the Federal Rules of Civil Procedure 25 normally have no such cut-off. They continue NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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289 1 continuously, even during the course of trial if 2 there's a relevant document.
3 And third: As if Ms. Jones has suggested, 4 there aren't very many that are going to come up, then 5 I don't see that it's much of a burden. My experience 6 is that the good stuff tends to come up at the end.
7 And the idea that we would have it stopped 30 days 8 before the first submittal of direct testimony seems 9 to me to be a huge problem. And I'm not sure that it 10 could be done given the staff's obligation with regard 11 to the staff itself.
12 JUDGE FROEHLICH: Okay. Mr. Smith, I note 13 in the file saying you took no position on this 14 matter. Have you after hearing the arguments, the 15 perspectives from each side, care to comment on this 16 issue?
17 MR. SMITH: Judge, as the document 18 indicates, the staff's only concern is that there be 19 a clearly demarcated date where the hearing file 20 obligation ends. Beyond that, the staff doesn't have 21 a view one way or another.
22 JUDGE FROEHLICH: Okay. So you would 23 continue to submit and update the hearing file up 24 until the date where it's ordered that it stop. And 25 it's really even to you whether that's 30 days before NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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290 1 they submit direct testimony or at the end of the 2 hearing, is that correct?
3 MR. SMITH: The staff is fine with either 4 approach.
5 JUDGE FROEHLICH: Okay. All right.
6 Do any of the parties want to be heard 7 further on this issue or can we move to the second 8 item in the enumerated list? Okay.
9 Okay. The second item deals with 10 electronically stored information. And I commend the 11 parties and appreciate the fact that there were 12 discussions and that there is agreement among the 13 parties.
14 The Board has one question, I guess, and 15 that deals with things like external drives. Are they 16 contemplated to be included amongst the computer 17 shared and network drives, removable drives, and I 18 note you said such as thumb drives. Would that 19 include also external drives?
20 MS. JONES: Your Honor, this is Anne 21 Jones.
22 Yes, the Applicant understood that removal 23 drives would encompass external drives.
24 JUDGE FROEHLICH: Okay. Thank you.
25 MR. ROISMAN: And so did NRDC.
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291 1 JUDGE FROEHLICH: All right. Thank you.
2 1 think that the Board will certainly accept the 3 proposal as it was written and perhaps add in such as 4 thumb drives and external drives just to be clear.
5 And I note on the third item parties have 6 agreement. And, let's see -- okay. The parties seem 7 to agree on everything.
8 Is there anything that there's 9 disagreement on the third item? Hearing none -- yes?
10 MS. 'JONES: No. No, Your Honor.
11 JUDGE FROEHLICH: There's no -- all right.
12 Okay.
13 That brings us to the fourth item having 14 to do with privileged and protected information. And 15 here again we have a difference of opinion among the 16 parties, as I understand it.
17 From the Applicant's perspective the party 18 gets a protected document and if they're going to 19 challenge the designation that it is protected, they 20 have to do so wi'thin ten days, is that correct?
21 MS. JONES: That's correct.
22 JUDGE FROEHLICH: Okay. And the NRDC, as 23 understand it, will get this document that has been 24 marked protected and they would have, if they prevail 25 in this argument, they would have until 14 days prior NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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292 1 to using it as part of their testimony or a pleading 2 to raise the issue. Is that your position, Mr.
3 Roisman?
4 MR. ROISMAN: Yes. Yes, it is, Your Honor.
5 JUDGE FROEHLICH: Okay. And based on, I 6 guess on your experience, how does this work in your 7 life? I mean, how big an issue is this and please, I 8 guess, just elaborate on your positions with the 9 reasons for either the short amount of time to 10 identify or why from Mr. Roisman's perspective having 11 it and then only if he's going to use it, raise the 12 objection.
13 Perhaps, Ms. Jones, you could start.
14 MS. JONES: No problem.
15 It's the Applicant's position that setting 16 the structure so that any challenges are raised within 17 ten days of receiving the documents builds in some 18 certainty to the process and allows the parties to 19 move ahead. It doesn't involve the possible confusion 20 that could result from the NRDC's proposal, namely 21 were such a challenge not to be resolved by the time 22 of the submittal, there could be some confusion about 23 the deadlines or with the form of the disclosure.
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293 1 on and propose to the Board would build into it 2 provisions for including protected information and 3 filing via the electronic information exchange. And so 4 the logistical aspects of including that information 5 would be covered procedurally by the protective order.
6 JUDGE FROEHLICH: I can imagine the 7 problems that a intervenor would have not knowing, you 8 know ten days after receipt of the document how that 9 might be used months down the road when testimony is 10 being prepared, perhaps. I mean, the significance of 11 it may not be apparent until further disclosures have 12 been made, you know as the months leading up to 13 hearing. Could you address that?
14 MS. JONES: Yes, Your Honor.
15 You know, I would anticipate that this is 16 not a frequent dilemma, certainly not speaking for 17 NRDC but I would not expect that that they would see 18 a whole lot of protected documents that they thought 19 a challenge was appropriate. So, I see this being a 20 rare circumstance and one that would be more clearly 21 evident at the time of receipt of the document.
22 JUDGE FROEHLICH: Okay. Mr. Roisman, 23 would you speak to this issue?
24 MR. ROISMAN: Yes. Thank you.
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294 1 was going to be relevant, we'd have no incentive to 2 not want to raise that as soon as we become aware of 3 it. So this 14 days prior to inclusion is not the 4 earliest date on which we could do it: It's the 5 latest date on which we could do it. And because of 6 all the things that Ms. Jones said, which is that if 7 you don't have it resolved and you're getting ready to 8 file the document, you're forced into using whatever 9 the procedure is for dealing with a proprietary 10 document and a filing. We would have every incentive 11 once we know that the document is going to have some 12 bearing to say "Hey, we don't think that's entitled to 13 proprietary status." So, that's the first point.
14 The second point is that just what the 15 question from the Board raised, which is: How could 16 we know in advance, particularly when we're talking 17 about a fairly large volume of documents being 18 produced that you would get at least in the initial 19 disclosures, but sometimes you get them even on the 20 monthly disclosures? To go through all of those, to 21 decide which ones in the proprietary group that have 22 been produced to you are going to be important to your 23 case and to have consulted and then filed the motion 24 all within that ten day period, it just seems to me to 25 be totally unrealistic.
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295 1 And finally, I think that it's in the 2 interest of the Board and the Commission has certainly 3 indicated that openness is the key, one of the key 4 principles on which the Commission operates to have an 5 open hearing in which the minimum number of sealed 6 documents and closed hearings take place. We don't 7 want to unnecessarily have to have the Board delve 8 into hundreds of documents whose proprietary status we 9 think is questionable if it turns out there are only 10 five. But we do want to make sure that if there are 11 five, we can focus on those, the Board can focus on 12 those. And if! the proprietary designation was 13 inappropriate, the document could be released and we 14 can use it publicly.
15 JUDGE FROEHLICH: All right. And one last 16 question, I guess for Ms. Jones. The protective order 17 how would that' effect either of those proposed 18 deadlines or would it have no effect other than to 19 acknowledge the adopted deadline?
20 MS. JONES: I'm not certain that my answer 21 is going to be responsive to your question. But I 22 anticipate that the protective order will provide a 23 means for NRDC to gain access to protected 24 information, first and foremost. And secondly, to 25 provide a mechanism for their use of that information NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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296 1 in the proceeding. I had not previously anticipated 2 including information about deadlines for challenging 3 in that protective order, but we could do that.
4 JUDGE FROEHLICH: Okay. So the protective 5 order is focused, perhaps, as you view it right now on 6 the access to the information. And then once the 7 Intervenor had access to it, then whatever trigger --
8 whatever deadline is proposed, whichever one is 9 ordered by the Board, would come into play, right?
10 It's sort of two stages, two separate stages?
11 MS. JONES: That's correct.
12 JUDGE FROEHLICH: Okay. And I cut you 13 off, I believe. What were you going to add?
14 MS. JONES: The only thing I would add is 15 that, you know in the interest of facilitating a 16 proceeding it's the Applicant's perspective that 17 challenging the protection of a document shortly 18 before filing of a pleading or a testimony diverts 19 resources on a rather ancillary issue away from the 20 more substantive effort of developing the issues for 21 hearing.
22 And we'd also add that the timeline we've 23 proposed is consistent with CFR 2.323 in that it 24 allows ten days for a challenge.
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297 1 there anything further that any party wishes to raise 2 on point four?
3 MR. ROISMAN: Mr. Chairman, this is 4 Roisman.
5 JUDGE FROEHLICH: Yes.
6 MR. ROISMAN: Should the Board find and 7 think the ten days is unreasonable but think the 14 8 days is also unreasonable, NRDC could certainly live 9 with the 30 days before if that would help facilitate 10 the resolution of the issue before the actual filing 11 in which the document was to be used or attached, as 12 the case may be, were to occur. Most of the time, 13 although not the only time, it's the profiled 14 testimony that talks about proprietary material or 15 wants to include or attach or include proprietary 16 documents. And that work is done, you know with 30 17 days in advance and it's probably liveable. When it's 18 just a motion during the course of the proceeding, for 19 instance a response to a summary disposition motion, 20 it's more complicated. But if they compromise -- if 21 the Board feels like it needs to compromise between 22 the two positions, we would be willing to change the 23 14 days to 30 days.
24 JUDGE FROEHLICH: But I take it, Mr.
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298 1 change the ten days to 30 days, am I correct?
2 MR. ROISMAN: That is correct.
3 JUDGE FROEHLICH: Thank you.
4 All right. Item five on our list is the 5 time limits for designation of a timely filing and the 6 finding nontimely as listed in 10 CFR 2.309(c).
7 Thirty days is the agreed to amount of 8 time from all parties. And I think that will be 9 workable. The fact that the movement is uncertain 10 would solve pursuant to both sections is also 11 appropriate.
12 Okay. Is there anything that needs to be 13 added or discussed concerning item five?
14 Then moving to six, there is some 15 disagreement among the parties on this element and 16 we're trying to reconcile a number of different 17 Commission regulations having to do with contentions.
18 Give me a moment.
19 And this has to do solely with the reply.
20 And I would ask Mr. Roisman why the Commission 21 standard seven day response period in 2.309(h) (2) 22 would not be appropriate in this proceeding?
23 MR. ROISMAN: Only from my personal 24 experience that that's an unrealistically short time 25 period often to respond to as much as 50 pages of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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299 1 opposition; half from the Applicant, half from the 2 staff.
3 JUDGE FROEHLICH: Okay.
4 MR. ROISMAN: To digest all of that, to 5 file and answer and to get it done in seven days when 6 the Commission makes no allowances for holidays, no 7 allowances for weekends it just seems to me that it is 8 unreasonably short.
9 And I agree that ultimately what should 10 happen, and if I'didn't have to do hearings I might do 11 this, is to file with the Commission a motion to amend 12 that rule. But ýgiven that the Board has at least 13 invited us to consider alternatives to just following 14 the rule, I felt, that 14 days was at least a minimum 15 more reasonable time frame given that when Intervenors 16 file these motions, they're almost always opposed by 17 both parties and two separate briefs are filed.
18 JUDGE FROEHLICH: Thank you.
19 Anyone else wish to be heard on item six?
20 Okay.
21 Parties have agreed on element seven 22 having to do with a settlement judge. And also, I 23 believe on item eight having to do with the filing of 24 potentially witnesses.
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300 1 parties don't believe that a site visit would be 2 helpful and agree at this stage given the nature of 3 the contention that has been admitted. Okay.
4 Takes us to item ten, and this deals with 5 summary disposition motion and their effect on the 6 time lines set forward in the Commission's 7 regulations.
8 Before we discuss this, could I just 9 inquire of the staff whether the dates that are 10 currently on the web for the publication of the SER --
11 well, I guess mostly we're more concerned with the 12 Draft FEIS and the Final FEIS are still accurate, 13 thereby the draft Environmental Impact Statement --
14 MR. SMITH: Judge, this is Max Smith from 15 the NRC staff.
16 We've spoken with our Project Managers and 17 they confirmed for us that the dates that are on the 18 website for the Final EIS and the Draft EIS as well as 19 the SER schedule are all accurate.
20 JUDGE FROEHLICH: And that would be the 21 Draft SEIS would be August 2012 and the Final SEIS in 22 February 2013?
23 MR. SMITH: That's correct, Your Honor.
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301 1 the other parties in this proceeding.
2 JUDGE FROEHLICH: Okay. All right. The 3 parties agree that dispositive motions shall be filed 4 no later than 30 days after the staff publishes the 5 FSEIS, and then there's 20 days to file an answer.
6 And that's certainly acceptable. To the extent that 7 this talks about an ultimate deadline for filing 8 dispositive motions, the Board was interested in 9 hearing the perspectives on the triggering date. From 10 the filing here I note that there seems to be 11 agreement that ten days is probably the ten days 12 specified in 10 CFR 2.323 (c) probably should not apply 13 to summary disposition motions. But I would like to 14 hear proposals from the parties as to a trigger date 15 for when these dispositive motions could be filed.
16 MR. POLONSKY: Your Honor, this is Mr.
17 Polonsky.
18 JUDGE FROEHLICH: Yes.
19 MR. POLONSKY: Our resolve was that there 20 would be no trigger date. We have never viewed the 21 rule as having a trigger date, that it is simply a 22 date after which the Board would not entertain such 23 motions because they encroached upon the consideration 24 of testimony, and that makes sense.
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302 1 requirement in the Federal Rules of Civil Procedure 2 related to summary judgment motions, nor do we think 3 that a trigger date is needed.
4 So there would simply be a date no later 5 than which such motions could be filed. And, clearly, 6 it's to the advantage to the parties to file as soon 7 as they can anyway so that knowing that the Board will 8 take some time to rule and that there are a number of 9 days after theý filing of that that answers are 10 allowed. So, there's no advantage to filing early 11 anyway. There's ,no incentive to wait.
12 JUDGE FROEHLICH: All right. Does the 13 staff or the Intervenor care to speak to this issue?
14 MR. ,ROISMAN: This is Mr. Roisman.
15 I have unsuccessfully argued to the 16 Licensing Board, in Indian Point that the 2.323(c) 17 trigger date should apply to summary disposition 18 motions. And they ruled in that case, probably in an 19 unpublished order, that the confluence of 2.1205 and 20 2.710 and 2.323 suggests that there is no trigger date 21 for summary disposition motions.
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303 1 with two bases. In a case like Indian Point where 2 we've got close to 20 contentions with most the bases, 3 we were concerned that summary disposition motions 4 could be used strategically to interfere with party's 5 preparation time on other matters. I don't see the 6 opportunity for 'that, at least at this stage of the 7 proceeding. So, ,I personally didn't see any reason to 8 make an argument for a trigger date.
9 with that said, I think that if the 10 summary disposition motions were based upon documents, 11 all of which were in someone's hands in January and 12 they didn't file the summary disposition motion until 13 November, still within the time limits' of this 14 proposal, that that would be at least objectionable 15 even if not legally attackable.
16 JUDGE FROEHLICH: Staff counsel, do you 17 care to be heard?
18 MR. SMITH: The staff has no position on 19 this issue.
20 JUDGE FROEHLICH: All right.
21 We'll take this under advisement.
22 Move to item eleven. Yes, any hearing 23 that would be held in this case we would endeavor to 24 have at a venue near the Limerick facility. All 25 right.
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304 1 It brings us to item twelve, item twelve 2 having to do with the order in which testimony is 3 filed and the timing of it. It appears that the 4 Applicant would have a 45 day/45 day/20 day response 5 with the Applicant going first. Whereas, the NRDC 6 proposes sequential filing of 60 day/60 days and 30 7 days.
8 I wonder if the Applicant could speak to 9 both the amount of time that has been proposed and 10 also the order in which the Applicant is filing in the 11 first instance?
12 MS. ,JONES: Yes, Your Honor.
13 We've had good experience in other 14 proceedings with this proposed order. We've found that 15 this approach allows us to provide a lot of 16 information at the outset and then narrow and mute 17 some issues along the way so that when the time for 18 hearing comes there's really a more focused target 19 area for everyone and for the Board's efforts as well.
20 As far as the time frame, we propose 45/45 21 and 20 because in light of the model milestones for 22 the proceedingi we're just trying to assist in 23 resolution of the matter in a timely form. And adding 24 60/60 and 30 adds at least another month to month and 25 ten days on to the entire proceeding.
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305 1 JUDGE FROEHLICH: Does the order in which 2 the testimony is filed bear any relation to your 3 perception of burden of proof or anything like that 4 MS. JONES: No, Your Honor. This is just 5 an approach that has been useful in the past.
6 JUDGE FROEHLICH: Okay. Mr. Roisman, 7 would you please address both the Applicant's proposal 8 and speak to your proposal, both?
9 MR. ROISMAN: Okay. Let me take the easy 10 one first, just the time difference. Intervenors are 11 always operating for substantially less resources, 12 therefore anytime limits are short stresses us and 13 makes it more difficult for us to produce our best 14 product. So that's why we've proposed the 60/60 and 30 15 as opposed to the 45/45 and 20.
16 In my experiences the cases that I've been 17 in, which admittedly have had more contentions in 18 them, the time limits have been 90/90 and 60. So I 19 thought given the breadth of the contentions here that 20 60/60 and 30 was a reasonable number.
21 With regard to the order of things I think 22 my view is that because of the unusual nature of the 23 discovery process in front of the NRC in which there 24 are no depositions, there are no document production 25 requests, there are no interrogatories, there's no NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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306 1 request for admission the two parties whose positions 2 are best understood are the Applicant's and the 3 staff's because they have obligations to produce 4 certain documents, like the application, the responses 5 to RAIs that come from the staff, of course the Draft 6 and Final Impact Statement, the SER, et cetera, et 7 cetera. So the party who is best equipped to lay out 8 their position in light of what the other parties have 9 to say is the Intervenor.
10 So, 'I would suggest that we start; that 11 way the Applicahnts and the staff know with precision 12 that they cannot get from just the mandatory 13 disclosures exactly where we're going and what we're 14 trying to do.
15 Now some applicants use the summary 16 disposition motion as discovery. I think that's an 17 abuse of that process, but I understand their 18 frustration and why they might use it. But even that 19 does not substitute for real discovery as you would 20 have in a federal case.
21 So, it make sense for us to go first.
22 That's the first time that anybody really gets the 23 full flavor of all the things that we're saying and 24 the bases of the, supporting evidence for the bases of 25 our position.
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307 1 The second thing is that then Applicant 2 and staff files, at the same time simultaneously so 3 that all of that information is available, and then we 4 file a reply to the extent that one is warranted. And 5 I'm supportive of the idea that our reply obviously 6 has to be a reply: It has to respond to things that 7 are said in the testimony of the Applicant and the 8 staff. Not new things that we wish we had said in our 9 original direct.
10 I think that just makes more sense given 11 the reality of how information is exchanged in the NRC 12 proceedings.
13 JUDGE FROEHLICH: And, Mr. Smith?
14 MR. SMITH: Yes, Judge. The NRC staff is 15 very troubled by the proposal submitted by the 16 Applicant. At the stage of the proceeding where you'd 17 having a hearing', the EIS would be published and that 18 would be the operative document at that point, and it 19 would be the staff's obligation to suspend it.
20 Under the Applicant's proposal, we 21 certainly hope that our EIS will address NRDC's 22 concerns and there won't be a need for a hearing at 23 that point. But if there is a hearing, it'll be the 24 case that NRDC is still challenging what's in the EIS.
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308 1 in a position of filing blind at the same time as NRDC 2 is trying to get to any subsequent claims that they 3 might make, that any chance to reply to them, and at 4 the same time NRDC would be in the exact same 5 position. They would be challenging the EIS without 6 any real chance to respond to the staff's arguments in 7 support of the EIS.
8 So, I think that the Applicant's approach, 9 while it might have been successful in other cases, 10 will not be successful in this case with environmental 11 intentions.
12 JUDGE FROEHLICH: Okay. Anything further 13 on item twelve?
14 MS. JONES: Your Honor, I would add only 15 that the staff's -- or excuse me. It's the Applicant's 16 opinion that simultaneous filings often results in the 17 parties passing like ships in the night and often 18 makes it harder to distil the discreet issues for 19 hearing. So, it's our preference to do sequential 20 filings.
21 JUDGE FROEHLICH: Sequential filing?
22 Yes, but I guess there's an issue that 23 staff counsel just alluded to about the problem with 24 the simultaneous filing when they're filing at the 25 same time as the Intervenor. Isn't that your concern, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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309 1 Mr. Smith?
2 MR. SMITH: That's right, Your Honor. And 3 in a normal simultaneous filing instance we get a 4 chance to file cross simultaneous briefs. So both us 5 and NRDC would get a chance to respond to Applicant's 6 arguments. Under the Applicant's somewhat unique 7 proposal, we would have to file simultaneously but 8 never get a chance to reply to the other's testimony, 9 at least in writing. We'd have to wait for the 10 hearing, and an oral hearing can be an uncertain 11 process. So, the staff would really like to have a 12 chance to file written testimony in response to what 13 NRDC produces, and I'm sure NRDC would like to have 14 the same.
15 JUDGE FROEHLICH: Okay. Anything further 16 on this item? All right.
17 Motions for filing whether it's timeless 18 or motions for examination, and this is just a matter 19 that I guess, Mr. Roisman, that the seven days 20 provided in the Regs. is somewhat constraining for the 21 Intervenor or in this case you think you'll need more 22 time than is generally accorded?
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310 1 focused as much on these documents in preparation for 2 this phone call today. But my recollection is that 3 there is two different deadlines that we're basically 4 proposing be combined into one.
5 There's a deadline for when the parties 6 submit to the Board questions that we believe the 7 Board should ask of the other witnesses. And then 8 there's a separate deadline for when the parties 9 should ask the Board for leave to conduct cross-10 examination directly themselves.
11 What NRDC is proposing here is that those 12 two be combined at the 21 day number. And I think that 13 the 21 days I don't think there's a disagreement among 14 the parties that 21 days from the conclusion of the 15 filing of all of the profiled testimony for filing 16 parties' proposed examination plans is a good number.
17 I'm just suggesting that that be the same time that we 18 file, if we are filing, if any party is filing the 19 right to cross-examine witnesses themselves. And I 20 think in part that's because until you really have 21 written out what you think the issues are and how the 22 Board you believe should ask questions, it's hard to 23 make the argument to the Board as to why some subset 24 of those questions are more appropriate asked by the 25 Intervenor.
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311 1 Now, some of that probably prescinds from 2 a disagreement between NRDC and the other parties on 3 what the standard is that the Board would apply under 4 1204(b) (3). We believe it's the standard that's 5 written in the Regulation, which is, if necessary, to 6 fully develop the record. I believe that Applicant 7 and staff may believe this is the standard that's 8 applicable under 2.310 to when you get a subpart G 9 hearing, namely 'that the credibility of a witness is 10 involved. I think it's broader than that.
11 JUDGE FROEHLICH: Okay. Thank you.
12 Anyone else care to be heard on this item?
13 All right.
14 Moving to fourteen, the parties have 15 agreement and not necessary at this point.
16 Stipulations? Okay.
17 Nothing we need to do with fifteen at this 18 point?
19 I note that item sixteen the parties have 20 reached agreement on the bulleted items below and the 21 additional proposals that have been made by the 22 parties. And the Board will take these under 23 advisement.
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312 1 there any other items that should be discussed or 2 raised at this time where we're altogether on the 3 phone and connected?
4 Judge Kastenberg, I'll start with you. Do 5 you have anything you'd like to ask or add at this 6 stage?
7 JUDGE KASTENBERG: No, not at this time.
8 Thank you.
9 JUDGE FROEHLICH: Thank you.
10 And Judge Kennedy?
11 JUDGE KENNEDY: No, have nothing to add.
12 JUDGE FROEHLICH: All right. Any of the 13 parties have anything they wish to add or say for the 14 record at this juncture?
15 MR. POLONSKY: This is Mr. Polonsky.
16 MR. ROISMAN: Oh, I'm sorry. Go ahead, 17 Alex.
18 MR. POLONSKY: Oh, go ahead, Tony.
19 MR. ROISMAN: Actually, I was going to ask 20 you a question. I had written back a question about 21 that there had been something in here before about 22 what would trigger the ten day period under 2.323, in 23 other words when was a party aware of the document.
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313 1 this that went in. Did you take out of this any 2 discussion of that particular point and just leave it 3 for us to argue about when and if the issue arises?
4 MR. POLONSKY: My recollection is that you 5 had proposed a couple of words and that we had --
6 MR. ROISMAN: I proposed that you word it 7 "reasonable.
8 MR. POLONSKY: Yes. And we adopted that, 9 I believe and we inserted it. Yes, to the extent that 10 there's --
11 MR. ROISMAN: Can you just tell me where 12 that appears?
13 MS. JONES: It's on page 3 at the bottom 14 paragraph.
15 MR. ROISMAN: Thank you. I apologize for 16 my lack of preparation with just nobody to blame but 17 yourself. If you hadn't file the appeal, I would have 18 been better prepared.
19 In which paragraph, Ms. Jones?
20 MS. JONES: Paragraph 5 at the bottom of 21 page 3 of the letter.
22 MR. ROISMAN: Okay.
23 MR. POLONSKY: "Reasonably available."
24 MR. ROISMAN: Oh, yes, I see. Okay. Yes.
25 Okay. Thank you. I'm sorry. I missed that.
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314 1 Other than that, no, I didn't have 2 anything else.
3 JUDGE FROEHLICH: Okay. Mr. Polonsky, 4 did you have anything you wanted to raise at this 5 stage?
6 MR. POLONSKY: Just a question if the 7 Board would entertain it?
8 JUDGE FROEHLICH: Sure.
9 MR. POLONSKY: When the Board believes 10 that it will issue a schedule, particularly because 11 many of the bullet points at the end of the joint 12 proposal relate to what will be disclosed next week.
13 And, obviously, the unopposed motion to defer would 14 effect activities this week and next week. So if you 15 have a sense of when you might issue your order, we'd 16 be all ears.
17 JUDGE FROEHLICH: I'm glad to respond to 18 that question and it's perfectly appropriate.
19 At the present time the May 3rd, I guess, 20 date that it would be required under the rules for 21 both the staff to put forward their hearing file and 22 for initial disclosures to begin will be suspended 23 until the Board 'issues its order. And I would expect 24 that it would probably take us three weeks or so to 25 get a scheduling order out in this docket.
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315 1 Is that helpful to you for your planning 2 purposes.
3 MR. POLONSKY: Yes, thank you. So we do 4 not need to exchange or disclose documents? We'll 5 await an order?
6 JUDGE FROEHLICH: Right. You may await an 7 order and during the pendency of the time while we're 8 working on our order here there is no hearing file 9 requirement on the staff, nor is there the initial 10 disclosures for any of the parties. So we'll just 11 wait and address that in our order, and we'll take it 12 from that month, you know following the issuance of 13 the order.
14 MR. POLONSKY: Okay. Thank you very much.
15 MR. ROISMAN: This is Mr. Roisman. And I 16 guess I have a question for Alex and Max.
17 What is your position on whether or not 18 the immediate disclosure in the newly generated 19 documents is going to begin immediately even if the 20 Board has not signed the deferral on mandatory 21 disclosure order? I'm concerned that the staff is 22 still on schedule for an August DSEIS, that we really 23 are going to get in a bind if we're not even seeing 24 the current documents that are being exchanged, and 25 not being alerted to them. So, I'd like to know what NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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316 1 your position is going to be and if it's anything 2 other than, yes, we're going to disclose them anyway, 3 then I would ask that the Board please rule on the 4 deferral motion much more quickly than three weeks.
5 MR. POLONSKY: Tony, I can make sure that 6 communications as provided in paragraph number one of 7 the unopposed motion to defer initial disclosures from 8 Exelon to the NRC staff will be made in the interim.
9 MR. ROISMAN: And, Max, what about from 10 the staff?
11 MR. SMITH: One minute, please.
12 I'll direct the NRC staff to, again, 13 making a way to provide the correspondence mentioned 14 in the deferral motion to NRDC. I might contact you, 15 Tony, and talk about what would be the easiest way for 16 us to do that.
17 MR. ROISMAN: Okay. That's great.
18 And, Alex, are you saying the same as Max 19 or were you suggesting a narrower disclosure; that is 20 are you going to go ahead and do item number one fully 21 or only the portion of it that involves the direct 22 communication from the Applicant itself to the staff?
23 MR. POLONSKY: Tony, if I in anyway 24 mischaracterized paragraph one, I should have simply 25 said whatever paragraph one says, that's what we will NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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317 1 promise to do until the Board issues its order 2 MR. ROISMAN: Okay. Thank you, both. I 3 appreciate that courtesy.
4 JUDGE FROEHLICH: And, Mr. Roisman, with 5 both assurances you've received from staff and the 6 Applicant is our three week timetable acceptable to 7 you?
8 MR. ROISMAN: Absolutely. I assume that 9 you all are going to Los Vegas to hold your meeting to 10 decide these things, and I wouldn't want to rush that.
11 JUDGE FROEHLICH: Okay. Thank you.
12 Well, if there's nothing further at this 13 stage, and I assuming there is nothing further at this 14 stage, I will adjourn this session and the Board will 15 endeavor to have its initial scheduling order out 16 within three weeks. In the interim the parties are 17 relieved of their obligations that arise from the 18 regulations but subject to the agreements that they've 19 reached among themselves.
20 With that, we stand adjourned.
21 (Whereupon, at 2:37 p.m. the Scheduling 22 Conference was adjourned.)
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission Proceeding: Limerick Generating Station Scheduling Conference Docket Number: 50-352-LR and 50-353-LR ASLBP Number: 12-916-04-LR-BDO1 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 and thereafter reduced to typewriting under my direction and that said transcript is a true and accurate record of the proceedings.
ZA Official Reporter Neal R. Gross & Co., Inc.
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