ML13224A331
| ML13224A331 | |
| Person / Time | |
|---|---|
| Site: | Sequoyah  |
| Issue date: | 08/08/2013 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 24913, 50-327-LR, 50-328-LR, ASLBP 13-927-01-LR-BD01, NRC-126 | |
| Download: ML13224A331 (53) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Sequoyah Nuclear Plant Units 1 and 2 Docket Number: 50-327-LR and 50-328-LR ASLBP Number: 13-927-01-LR-BD01 Location: (teleconference)
Date: Thursday, August 8, 2013 Work Order No.: NRC-126 Pages 1-52 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
1 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5 + + + + +
6 SCHEDULING TELECONFERENCE 7
8 -----------------------x 9 In the Matter of: : Docket No.
10 TENNESSEE VALLEY : 50-327-LR 11 AUTHORITY : 50-328-LR 12 SEQUOYAH NUCLEAR PLANT : ASLBP No.
13 UNITS 1 AND 2 (License : 13-927-01-LR-BD01 14 Renewal) :
15 -----------------------x 16 Thursday, August 8, 2013 17 18 Teleconference 19 20 BEFORE:
21 ALEX S. KARLIN, Chairman 22 DR. PAUL B. ABRAMSON, Administrative Judge 23 DR. GARY S. ARNOLD, Administrative Judge 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 1 APPEARANCES:
2 Counsel for the Applicant:
3 DAVID LEWIS, ESQ.
4 of: Pillsbury, Winthrop, Shaw, Pittman, LLP 5 2300 N Street, N.W.
6 Washington, D.C. 20037 7 (202) 663-8474 8
9 On Behalf of the Nuclear Regulatory Commission:
10 BETH MIZUNO, ESQ.
11 BRIAN HARRIS, ESQ.
12 of: U.S. Nuclear Regulatory Commission 13 Office of the General Counsel 14 Mail Stop O-15D21 15 Washington, D.C. 20555-0001 16 (301) 415-4126 17 18 On Behalf of Blue Ridge Environmental Defense 19 League:
20 LOUIS A. ZELLER, pro se 21 P.O. Box 88 22 Glendale Springs, North Carolina 28629 23 (336) 982-2691 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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3 1 P-R-O-C-E-E-D-I-N-G-S 2 (9:00 a.m.)
3 CHAIRMAN KARLIN: Good morning. This is 4 Alex Karlin. I'm one of the judges on the Atomic 5 Safety and Licensing Board for the Sequoyah matter.
6 We are going to start this prehearing conference call 7 now.
8 In a moment, I'll ask the parties to 9 introduce themselves. But, Mr. Court Reporter, please 10 put us on the record.
11 The party lines are open for people who 12 are speaking, and there should be a public line 13 available for members of the public and media who can 14 listen in on this prehearing conference.
15 So just let me go through a few things at 16 the outset, and then we can proceed.
17 For the record, I want to recite that this 18 is in the matter of the Tennessee Valley Authority 19 application for license renewal for Sequoyah Nuclear 20 Power Plant Units 1 and 2. These are located 21 approximately 18 miles northeast of Chattanooga, 22 Tennessee.
23 The Docket Numbers for this adjudicatory 24 proceeding are 50-327-LR and 50-328-LR, LR standing 25 for license renewal.
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4 1 The ASLBP Number, the Atomic Safety 2 Licensing Board Panel Number, is 13-027-01-BD01.
3 This prehearing conference call is being 4 held pursuant to an order that this Board issued on 5 July 12, 2013. And today's date is August 8, 2013.
6 This prehearing conference is being 7 conducted telephonically, and so we have -- everyone 8 who is participating is participating via telephone.
9 Let us go through the introductions for a 10 moment. On the Atomic Safety and Licensing Board on 11 this matter, there are three judges -- myself, Alex 12 Karlin. I am the Chair of this Board because I come 13 in with the -- to handle the procedural issues.
14 Dr. Gary Arnold is here with me. He is one of the 15 other judges on the Board, and we are in Rockville in 16 a conference room. Dr. Paul Abramson is also on the 17 Board as a judge, and he is participating via 18 telephone, I believe from New York.
19 Judge Abramson, you're on the line, sir?
20 ADMIN. JUDGE ABRAMSON: I am, indeed.
21 CHAIRMAN KARLIN: Very good. Let's put 22 these a little closer, put the sound volume up a 23 little higher, so we can make sure he is heard well.
24 And Matt Flyntz, lawyer and law clerk, I 25 believe will be on the telephone line as well. Mr.
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5 1 Flyntz, are you there?
2 MR. FLYNTZ: I'm here.
3 CHAIRMAN KARLIN: Very good. And Twana 4 Ellis is our administrative assistant, and she is here 5 in the room with us in Rockville.
6 So let us now ask the parties to introduce 7 themselves. Why don't I start with the Blue Ridge 8 Environmental Defense League. Mr. Zeller, please 9 introduce yourself and any other of your colleagues 10 from BREDL who are with you or on the line.
11 MR. ZELLER: Good morning, Judge Karlin.
12 Thank you very much. I appreciate it. My name is 13 Louis A. Zeller, and I am Executive Director of the 14 Blue Ridge Environmental Defense League, with chapters 15 in several southeastern states.
16 We are a nonprofit organization 17 representing our members in the area of the Sequoyah 18 Nuclear Plant; that is, southeast Tennessee, northeast 19 Alabama, and actually parts of Georgia and North 20 Carolina as well.
21 We are the ones that initiated the 22 petition for a request for hearing, and we appreciate 23 the opportunity to talk to you today.
24 CHAIRMAN KARLIN: All right. Thank you.
25 Welcome, Mr. Zeller.
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6 1 For Tennessee Valley Authority, the 2 applicant for the license renewal is here. Mr. Lewis, 3 do you want to introduce your team and the in-house 4 counsel from TVA?
5 MR. LEWIS: Yes. Thank you, Judge Karlin.
6 I am David Lewis from the law firm Pillsbury, 7 Winthrop, Shaw, Pittman, representing TVA. Also on 8 the line representing TVA is Edward Vigilucci, the 9 Associate General Counsel Nuclear Licensing, as well 10 as Scott Vance and Blake Nelson, also with the TVA 11 Office of General Counsel.
12 CHAIRMAN KARLIN: Okay. And will you be 13 the spokesman for TVA in this call?
14 MR. LEWIS: Yes, Judge Karlin.
15 CHAIRMAN KARLIN: Okay. Thank you.
16 For the NRC staff, Ms. Mizuno, could you 17 introduce your team, please?
18 MS. MIZUNO: Yes, Your Honor. Beth Mizuno 19 with Office of General Counsel. With me today is 20 Brian Harris, also with the Office of General Counsel.
21 We are accompanied by staff members Emmanuel Sayoc and 22 Tam Tran.
23 CHAIRMAN KARLIN: Okay. Great. And will 24 you be the spokesman for the NRC staff today?
25 MS. MIZUNO: Yes, sir.
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7 1 CHAIRMAN KARLIN: Great. Okay. So let me 2 just give a little bit of the background, this sort of 3 thing. But before I even say that, I want to mention 4 to everyone on the line, please take notes of this 5 call, because we -- I really don't intend, unless my 6 colleagues, you know, disagree at some point, to issue 7 a synopsis of this prehearing conference call after 8 the call. Some boards do that in some proceedings; I 9 generally think it's unnecessary and inappropriate, 10 and we're just going to talk.
11 We're going to -- and you need to listen 12 carefully and take notes, or you can -- and I would 13 recommend this -- get a copy of the transcript for 14 free when it is posted on the electronic hearing 15 docket in about a week. But we don't intend to issue 16 a little summary or synopsis of this thing a couple of 17 days from now. You just have to take your notes.
18 We do intend, however, and the purpose of 19 this call, is to issue an initial scheduling order, as 20 required by the regs, probably the end of this month.
21 Okay. With that, the recent background of 22 this thing is that BREDL -- I will refer to it as 23 BREDL, Blue Ridge Environmental Defense League --
24 filed a petition to intervene on May 6th of 2013. In 25 May and June, the parties filed briefs, and on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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8 1 July 5th we issued a decision on this matter, ruling 2 that BREDL had standing and the other two entities did 3 not.
4 We denied seven of the contentions 5 proposed by BREDL, and we took the eighth contention 6 and put it in abeyance, neither admitting it nor 7 denying it.
8 Then, on July 12th we issued an order 9 scheduling this initial scheduling conference, and on 10 July 31st the staff filed a letter, as we had 11 instructed them to do, albeit a day late, where they 12 provided us their estimated schedule for this license 13 renewal proceeding.
14 That schedule indicated that the staff 15 expected in their best estimate -- and it's just an 16 estimate -- that they would issue the final 17 supplemental environmental impact statement and the 18 final safety evaluation report in October of 2014. So 19 that was helpful, and we appreciate that input from 20 the staff.
21 Meanwhile, on July 30th, the Tennessee 22 Valley Authority and BREDL both filed interlocutory 23 appeals challenging various aspects of the decision 24 that this Board issued on July 5th. And the 25 Commissioners will take those appeals into NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 1 consideration, briefs will be filed, and they will do 2 whatever they deem appropriate with regard to our 3 decision.
4 So the purpose of this call today is sort 5 of dictated by the regulations. The regulation 10 CFR 6 2.332(a) specifies that the boards are required to 7 hold an initial scheduling conference and to issue an 8 initial scheduling order as soon as possible.
9 The model milestones say that should be 10 within 55 days of the July 5th order. That would make 11 it August 29th. We are going to try to meet that 12 date, and it shouldn't be a problem.
13 And the regs go on to specify, you know, 14 the objectives of an initial scheduling order, and 15 basically they are to set up a mechanism whereby we 16 can manage this case and conduct this case, this 17 adjudication, fairly and efficiently and with a 18 minimum of unnecessary litigation or, you know, waste 19 of resources or time, et cetera.
20 This is not a time to revisit the 21 admissibility of the contentions. This is not a time 22 to talk about the merits of the contentions. And it 23 is certainly not a situation where you argue the 24 merits of your appeal. So we are going to try to work 25 towards issuing an initial scheduling order.
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10 1 Now, this is a little unusual case. As we 2 noted in our July 12th order, because we don't have 3 any admitted contentions, and we have one that is in 4 abeyance. Normally, an initial scheduling order will 5 set out or clarify issues associated with mandatory 6 disclosures, and we may talk about the timing of 7 filings associated with the merits hearing on the 8 admitted contentions.
9 But we don't have that here. We only have 10 one contention, which is pending, not admitted, nor 11 denied. And that -- our ruling was based upon the 12 Calvert Cliffs -- the Commission's decision in Calvert 13 Cliffs, which I will refer to as CLI 12-16.
14 So in our July 12th order, we listed seven 15 items that we thought we would cover. Well, really 16 six, and then the seventh, which was any other things 17 that the Board thought of that we might want to talk 18 about. And we have a couple of them.
19 But does anyone else have any other items 20 proposed for this agenda? Do any of the parties -- or 21 my colleagues if they want, you know, we have already 22 talked with -- do the parties have any other proposed 23 items for the agenda? Okay.
24 MR. LEWIS: This is Mr. Lewis. Not here.
25 CHAIRMAN KARLIN: Okay. Thank you.
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11 1 Okay. Well, then, we will just proceed 2 with that. Now, may I ask, did the parties confer as 3 we instructed in our July 12th order?
4 MR. ZELLER: Judge Karlin, there was a 5 conference --
6 CHAIRMAN KARLIN: I'm sorry. Could you 7 identify who is speaking here?
8 MR. ZELLER: Yes, sir. This is Lou Zeller 9 for Blue Ridge Environmental Defense League. There 10 was a request to have such a conference between TVA's 11 attorneys and NRC staff. Unfortunately, I was not 12 able to be reached. I think it was partly because of 13 relatively short notice I believe that they met and 14 discussed some items on Monday of this week, which was 15 just a couple of days ago. So, but I was not present 16 at any of that -- for any of that discussion.
17 CHAIRMAN KARLIN: But you were invited and 18 given the opportunity to be present.
19 MR. ZELLER: I saw the notice after the 20 meeting happened.
21 CHAIRMAN KARLIN: Okay.
22 MS. MIZUNO: Your Honor, this is Beth 23 Mizuno with the staff. I've just been joined by Mitzi 24 Young, also with the Office of General Counsel. And 25 I wanted to pointed out that we set up this telephone NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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12 1 consultation for Monday, but Wednesday, the week 2 before on Wednesday, Ms. Young sent an email to Mr.
3 Zeller, you know, alerting him as to the consultation, 4 asking if he would be available. And she tried to 5 reach him by phone on Monday morning, and I sent him 6 an email also Monday morning.
7 MR. LEWIS: Judge Karlin, I also tried to 8 call Mr. Zeller on Monday morning, and following --
9 when he was not able to join our call, the staff and 10 TVA proceeded to discuss your points. I then prepared 11 a summary of what we discussed and emailed that to 12 Mr. Zeller on Monday. We have not heard his views.
13 CHAIRMAN KARLIN: All right. Okay. So 14 there was a bit of -- so did a call occur between the 15 staff and the applicant?
16 MR. LEWIS: Yes, Judge Karlin, on Monday.
17 CHAIRMAN KARLIN: Okay. As I see it, 18 there is nothing inappropriate for that, for parties 19 to talk with each other from time to time. But is 20 there anything you have to report to us as a result of 21 that, or do you just want to proceed?
22 MR. LEWIS: We went down through all seven 23 points and discussed our positions, and at least 24 between the staff and TVA, you know, reached I think 25 a consensus position. I have not reported anything NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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13 1 because we had -- as I said, I transmitted those 2 proposed positions to Mr. Zeller, and I do not know 3 what his -- whether he had any reactions to what we 4 were suggesting as to --
5 MS. MIZUNO: Your Honor, this is Beth 6 Mizuno. We haven't heard anything from Mr. Zeller at 7 all since we tried to reach him last week, Wednesday, 8 and we haven't heard anything back from him with 9 respect to the email synopsis that Mr. Lewis provided 10 on Monday afternoon.
11 CHAIRMAN KARLIN: Okay. Well, unless 12 anyone wants to say anything more about that, we're 13 just going to proceed through the items on the 14 July 12th list of discussion items.
15 Okay. I'm looking at page 2 of that 16 July 12th order, and the first item we listed was the 17 value and need to obtain regular reports from the 18 staff as to its projected schedule for completion of 19 the EIS and the safety evaluations. Let me just start 20 with the -- Ms. Mizuno from the staff, your thoughts 21 on that?
22 MS. MIZUNO: Well, Your Honor, I have 23 members of the staff for the safety and environmental 24 side here, and we have been working on making sure 25 that the NRC website information is accurate and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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14 1 current. And given the fact that the review schedule 2 for the environmental and the safety side reviews are 3 on the website, we would respectfully submit that no 4 report is necessary.
5 We are, of course, more than happy to 6 notify the Board and the participants when our 7 documents, either draft or final, are published. But, 8 you know, the publication schedule, the estimated 9 dates, are on the website. When they actually come 10 out, we will be happy to notify you, and the parties 11 of course.
12 CHAIRMAN KARLIN: Mr. Zeller, your 13 thoughts?
14 MR. ZELLER: Yes. Judge Karlin, this is 15 Lou Zeller. I believe that reports from the staff 16 should be published on a regular basis, and official 17 notice sent to the parties in this case by normal 18 email notice using hearingdocket@nrc.gov and posted to 19 the NRC Electronic Information Exchange.
20 The earlier discussion about whether 21 notice was provided for the conference between TVA and 22 NRC, and an email from I guess someone named Young, 23 was missed by us. And we do check things. For 24 example, the hearing docket email is a normal route of 25 communication. And so we would request that this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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15 1 procedure be followed from the staff on a regular 2 basis, perhaps monthly, and official notice sent via 3 that hearing docket at nrc.gov and posted to the 4 Information Exchange electronically.
5 CHAIRMAN KARLIN: And Mr. Lewis?
6 MR. LEWIS: Yes, Judge Karlin. This is 7 David Lewis. We were in agreement with the NRC 8 staff's position that the main purpose of the reports 9 in typical proceedings is so that the parties can 10 observe upcoming trigger dates for filing of testimony 11 or summary disposition motions, and that's just, you 12 know, currently absent here.
13 What is probably more significant are the 14 NRC staff review documents that might trigger 15 opportunity for further contentions. And NRC staff 16 indicated they are amenable to notifying the Board and 17 parties when those documents are issued. Beyond that, 18 I think at this juncture, the website is probably 19 perfectly adequate to keep the parties apprised of 20 just the general status of the proceeding.
21 CHAIRMAN KARLIN: Okay. Well, thank you 22 for those comments. We will take that under 23 consideration.
24 I will make my observation, however, that 25 often I think the website is not up to date, doesn't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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16 1 seem to have information and is a little slow.
2 Inertia is a factor. A monthly report is required 3 from counsel. Then, the counsel has to contact the 4 relevant staff individuals and find -- get an 5 affirmative answer what is changed or what isn't.
6 Absent such a requirement, you have to --
7 the counsel has to wait for someone on the staff to 8 contact them and tell them that something has changed, 9 and often busy people forget -- seem to forget to do 10 that. Other boards have tried the more laissez faire 11 approach and have had difficulties in getting prompt 12 information from the staff as to changes in its 13 schedule.
14 So I think there are merits on both sides, 15 and we will just take that under consideration.
16 Unless Judge Abramson or Judge Arnold want to say 17 anything more, we will move to the next item.
18 MS. MIZUNO: Judge Karlin, this is Beth 19 Mizuno for the staff. And I wanted to just point out, 20 if I could, we are in August of 2013. The draft 21 supplemental environmental impact statement is not 22 estimated to be published until February of 2014. And 23 that is the earliest of all of the publications that 24 we are talking about.
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17 1 submission, we gave you some of those dates. So 2 February 2014 is the first date that is going to be 3 coming up. If we are putting in monthly reports, the 4 ones for August, September, October, November, 5 December are going to be pretty thin on new 6 information.
7 If the panel has determined that regular 8 monthly reports are necessary, the staff would submit 9 that it might make more sense to have those monthly 10 reports substantially closer to the date of the 11 expected publication. And if such reports are 12 necessary, the staff would submit that it might be 13 appropriate to hold off on them until December of this 14 year.
15 CHAIRMAN KARLIN: Okay. We can take that 16 into consideration. I would note that in all of the 17 cases I have ever handled we have required monthly 18 reports, and it has been a very valuable thing in my 19 opinion. And I have seen cases where people have not 20 required that and it has gotten them into trouble. It 21 seems like very modest, mature thing to do.
22 Let's move to the next item, which is 23 grappling with the -- and I will just read it from the 24 advisability of requiring notification if a party 25 believes that a commission has issued an order or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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18 1 taken any action that affects the "abeyance status of 2 Contention B."
3 We are keying off of the Commission's 4 ruling in CLI 12-16, which states, "In the view of the 5 special circumstances of this case, as an exercise of 6 our inherent supervisory authority over adjudications, 7 we direct that these contentions and any related 8 contentions that may be filed in the near term be held 9 in abeyance pending our further order."
10 Now, it may seem that all we are waiting 11 for is an order, some further CLI that will be clear 12 as a bell and we will all know the exact moment when 13 that event has occurred. It may alternately be that 14 the parties here will disagree as to what is the event 15 or circumstance that undoes the abeyance status of 16 this thing.
17 Indeed, I see the appeals that have been 18 filed. I have grappled in part with -- that Mr. Lewis 19 seems to be arguing, among other things, that the 20 triggering events have already occurred.
21 So the question would be, would it be 22 appropriate to require an affirmative notification 23 from either the staff or all parties of when they 24 think that triggering event has occurred? We 25 understand that there is a Commission policy out there NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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19 1 dated September 13, 1984 -- and, Mr. Zeller, you may 2 want to write this down. It's in the Federal Register 3 at 49 Federal Register 36032.
4 And it states, "All parties in NRC 5 adjudicatory proceedings, including the NRC staff, 6 have a duty to disclose to the boards and other 7 parties all new information they require -- they 8 acquire which is considered material and relevant to 9 any issue in controversy in the proceeding."
10 That policy seems to be -- still have some 11 validity, because the staff filed something in one of 12 my other cases two days ago on August 6, 2013, in the 13 SONGS case citing that policy.
14 So may I hear from the parties -- let's 15 start with Mr. Lewis -- as to your thoughts on how we 16 should grapple with the -- should there be a 17 notification? Who should give it? How should we 18 handle that?
19 MR. LEWIS: Yes, Judge Karlin. This is 20 Mr. Lewis. Both TVA and the staff, in our 21 discussions, agree that we already have an obligation 22 to advise the Board of any material developments 23 pursue to that policy and longstanding NRC case law.
24 There is I believe a decision in McGuire that goes 25 back many years requiring the parties to have that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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20 1 obligation.
2 And so we would do so upon learning of any 3 Commission order/action affecting the abeyance status 4 of Contention B. Because we view that obligation as 5 already existing, putting it in the initial scheduling 6 order probably isn't strictly necessary, but it is an 7 obligation we recognize.
8 CHAIRMAN KARLIN: Okay. And the staff, 9 Ms. Mizuno, do you concur with that?
10 MS. MIZUNO: Yes, Your Honor.
11 CHAIRMAN KARLIN: Okay. Let me ask for a 12 clarification on this, and I'll get to you in a 13 moment, Mr. Zeller. A clarification on this, you will 14 submit notifications when you think that the 15 triggering event has occurred. So there could be a 16 challenge or a contest of whether indeed that 17 triggering event has occurred by the other parties.
18 That's one possibility.
19 And the whole value of getting that notice 20 or this is not -- at that moment we have an event 21 which tells us we either proceed with this 22 Contention B and file appropriate filings in support 23 thereof, or we I guess terminate Contention B or do 24 something else with it.
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21 1 motions to amend the contention, motions that follow 2 from that event, taking it out of abeyance. And we 3 need to -- have you thought about that, Mr. Lewis?
4 MR. LEWIS: No, Judge Karlin. I think it 5 depends on what the action or order is. I mean, if 6 the Commission issued an order saying, "Oh, these 7 contentions that have been held in abeyance should be 8 dismissed," I don't think there is much room or need 9 for motions. If it was something more subtle, then 10 perhaps. But I don't think that we've thought through 11 all the possibilities.
12 CHAIRMAN KARLIN: Is it your position that 13 the triggering event or the unabeyance -- I mean, 14 assuming that we were -- that it applies to this case, 15 which I know you are challenging, but assuming it does 16 apply to this case, are you also arguing that it 17 should be taken out of abeyance already due to the 18 actions that the Commission has taken?
19 MR. LEWIS: Judge Karlin, that's our 20 position on appeal. You know, the Commission will 21 decide that. Until the Commission does, your ruling 22 stands.
23 CHAIRMAN KARLIN: So should you send us a 24 notice that you think the event has already occurred?
25 I mean, I don't know. I mean --
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22 1 MR. LEWIS: I don't know if that covers 2 this. I though, Judge Karlin, your point was asking, 3 you know, if there is something further --
4 CHAIRMAN KARLIN: Okay.
5 MR. LEWIS: -- subsequent to this, where 6 we are right now.
7 CHAIRMAN KARLIN: Okay. Mr. Zeller, your 8 thoughts on this issue, if any?
9 MR. ZELLER: Yes. Thank you, Judge 10 Karlin. I think it should be required that a 11 participant's obligation to advise the Board is a 12 accompanied by notice to the parties. And as I stated 13 earlier, in normal notice on hearingdocket@nrc.gov and 14 posted to the Electronic Information Exchange, that's 15 one thing we would request in order to keep things 16 orderly and so that we not miss anything.
17 CHAIRMAN KARLIN: All right. Yeah, I 18 think everyone sounds like they are in agreement on 19 that portion.
20 MS. MIZUNO: Well, Your Honor, this is 21 Beth Mizuno for the staff. While we agree that we of 22 course have an obligation to advise the staff, at 23 least advise the Board and the parties as to any 24 material development, you know, I recognize that there 25 could be some disagreement as to what actually is NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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23 1 material.
2 And I think our view is that what would be 3 most useful here would be if and when the Commission 4 actually takes final action, the final action that it 5 was proposing in CLI 12-16 that all of the litigants 6 in 12-16 are waiting for, when it does that, the staff 7 can of course notify the Board and the parties.
8 And seeing as counsel for the staff is 9 also counsel for the staff in those CLI cases --
10 notably, oh, Grand Gulf, Callaway, license renewals, 11 we will know when the Commission acts because we will 12 be served, and then we can make sure that we inform 13 everyone else.
14 CHAIRMAN KARLIN: I think that's right.
15 I think that -- but, you know, that when -- when the 16 Commission takes action on this, everyone will know it 17 and it will be clear, quite clear. There may be some 18 of you out there that think more subtle events may 19 qualify, but my impression would be the Commission is 20 going to speak pretty clearly when it addresses that 21 issue, and we will all know.
22 Okay. So I think that's a useful 23 discussion, and, you know, we may -- we will take that 24 under advisement in drafting or developing a 25 scheduling order, initial scheduling order.
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24 1 Third item on the agenda -- value of 2 setting time limits for the filing of timely motions 3 for leave to file new or amended contentions under 4 2.309(c)(1)(iii).
5 Now, Mr. Zeller, I will suggest to you 6 that you familiarize yourself, if you haven't already, 7 with the changes in the regulations that were enacted 8 on August 3rd of last year. And there are some 9 changes in those regs. Many of the concepts are 10 familiar.
11 But, okay, normally a board will set a 12 timeframe for filing of motions for new contentions, 13 30 days, 60 days, and I suspect we will probably want 14 to do something like that. Are there any -- so maybe 15 it doesn't require a lot of discussion, but any 16 thoughts on that, Mr. Lewis?
17 MR. LEWIS: Yes, Judge Karlin. This is 18 Mr. Lewis. TVA suggests a 30-day period. We 19 discussed that with the staff, and the staff was in 20 agreement. That was sort of the normal timeframe and 21 acceptable to them.
22 Currently, since there is nothing else 23 going on in this proceeding that is imposing burdens 24 on the party, a 30-day clock seems very reasonable.
25 CHAIRMAN KARLIN: Ms. Mizuno, anything on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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25 1 that?
2 MS. MIZUNO: No, Your Honor. Nothing 3 further.
4 CHAIRMAN KARLIN: Mr. Zeller?
5 MR. ZELLER: Yes, thank you, Judge Karlin.
6 The limit or the stipulation for timeliness of motions 7 for leave to file new or amended contentions under 8 2.309, as you cited, is predicated upon the 9 availability of the new information.
10 If the date of availability of information 11 is unclear, disputes about timeliness are inevitable.
12 Therefore, we do think that the -- that notice be 13 provided, and that if that is done that we have the --
14 that would make it clear as to when new information is 15 available, the stipulations that we would have are 16 that information is posted by the normal 17 hearingdocket@nrc.gov and posted to Electronic 18 Information Exchange, and that we -- that that 19 establish when availability is made, for example.
20 An alternative means might be through the 21 Federal Register, which is outlined also in 2.309, 22 under which a 60-day limit is granted from the 23 publication in the Federal Register. So I think if 24 there is notice, and it is done through the Electronic 25 Information Exchange, through the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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26 1 hearingdocket@nrc.gov, then I believe 60 days would 2 not be necessary.
3 Of course, we would prefer to have longer 4 than 30 days, but I would leave it up to the judges to 5 decide if 30 or 60 days is a proper amount of time.
6 Our principal concern is that it be clear 7 as to when information is available, so -- to reduce 8 the amount of potential disputes regarding timeliness.
9 CHAIRMAN KARLIN: Okay. Do either of the 10 others care to speak on that or --
11 MR. LEWIS: Judge Karlin, this is Mr.
12 Lewis. The 30-day period under the rules would start 13 from when new or different information becomes 14 available to BREDL. I don't think it's possible for 15 us to provide notices or post information on the 16 Electronic Information Exchange because, you know, 17 these are the new contentions. And we would have no 18 indication what topics BREDL intends to raise.
19 There could be, you know, many different 20 types of occurrences that could give rise to new 21 information, such as, you know, public meetings or 22 responses to RAIs or, you know, new documents.
23 Obviously, that can't all be posted. I think this is 24 the normal process is that it is BREDL's obligation to 25 stay abreast of the docket, and their obligation to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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27 1 file new contention, you know, doesn't arise until 30 2 days after that information, you know, becomes 3 available to them.
4 CHAIRMAN KARLIN: Okay. We will take that 5 under advisement. I mean, I might speak to the fact 6 that, yes, the requirement is that the way the regs 7 talk about the -- well, let me get the reg out. If 8 information comes out that was not previously 9 available, and that is material, then the motion for 10 the new contention should be filed in a timely manner.
11 That's what the reg says.
12 And we often, and generally, undertake to 13 specify what we interpret "timely manner" to mean, 14 i.e. 30 days, 60 days, or whatever. But it's 30 days 15 or 60 days from the moment when the information became 16 available.
17 And there is a whole bunch of case law on 18 this, as you may be aware, Mr. Zeller, dealing with 19 the duty of the parties, the intervenor, to pay 20 attention and to monitor what's going on. And if you 21 think something -- some new information, some new 22 event has occurred which can be the basis of a new 23 contention, I think the words they use is the iron-24 clad obligation of the intervenor to "monitor" the 25 information and file a contention within 30 days or 60 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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28 1 days thereafter.
2 And many events occur which are outside of 3 the control of either the staff or the applicant, 4 which may, in intervenor's eyes, constitute such new 5 information. So requiring them to notify every time 6 any potential new information comes out is I believe a 7 very unusual situation.
8 But it certainly is 30 days or 60 days 9 after the information becomes available, and the 10 typical case law is, you know, sort of as a reasonable 11 person standard, when did you know or when should you 12 have known? When should a reasonable person have 13 known that this information was available? The 14 objective standard that even if you actually didn't 15 know you need to be reasonably conversant with what is 16 going on. So we will take that under consideration.
17 MR. LEWIS: Judge Karlin, if I might?
18 CHAIRMAN KARLIN: Yes.
19 MR. LEWIS: I did not mean to imply that, 20 you know, any -- the global universe of new 21 information would need to be supplied by the parties.
22 My request had to do with the questions that you 23 outlined in the July 12 order, questions number 1 and 24 2, and then upcoming is question number 6 about 25 discovery. So, in other words, things that they know NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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29 1 about which are the reports, the filing updates, and 2 things like that.
3 CHAIRMAN KARLIN: Right. I mean, if they 4 make their normal filings, generate documents, put 5 them into ADAMS, put them into -- you know, I guess 6 you need to monitor ADAMS, because if they put it onto 7 ADAMS as some relevant document here, well, that may 8 be the beginning of the timeframe for you to file a 9 new contention if you think it's appropriate based 10 upon whatever was posted in ADAMS.
11 If they posted it on ADAMS, you know, five 12 weeks late, well, the availability of it may be five 13 weeks late. I don't know, unless you have actual 14 knowledge of it in some other way. But, okay, let us 15 move, if we may, to the dispositive motions.
16 Item Number 4, the value of setting rules 17 and time limits for the filing of dispositive motions 18 such as motion for summary disposition. Well, we 19 don't have any admitted contentions at the moment, so 20 maybe this is not going to come up. But once the 21 triggering event occurs at the Commission level, 22 someone may want to file a motion for summary 23 disposition.
24 I would ask the staff and the applicant 25 and Mr. Zeller also to recognize the regs have NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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30 1 changed, and the regs now say all motions must be 2 filed within 10 days of the event or circumstance from 3 which they arise. And that includes motions for 4 summary disposition. It does not include motions for 5 new contentions, because the regs specifically exclude 6 that.
7 So the rule is a motion for summary 8 disposition must be filed within 10 days of the event 9 from which it arises. One of the questions is whether 10 we want to modify that and extend it to make it 30 11 days as well, or something like that.
12 Mr. Lewis, your thoughts?
13 MR. LEWIS: Yes, Judge Karlin. This is 14 Mr. Lewis. The discussion that TVA and the staff had, 15 our conclusion was it was probably premature at this 16 time to be establishing those rules in the absence of 17 any admitted contentions. We would basically be 18 suggesting a procedure in a void, and that it would 19 make more sense to revisit this if and when a 20 contention is admitted.
21 I do agree with you that if a contention 22 were admitted, it would be worthwhile in light of some 23 recent cases on timeliness of summary disposition 24 motions, to obtain some agreement on the parties on, 25 you know, whether there is in fact a specific date on NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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31 1 which a summary disposition motion has to be filed or 2 whether there is some range in which it may be filed, 3 which to me is more practicable. But at this point, 4 if we were to do that, we would be doing it in a void.
5 CHAIRMAN KARLIN: Well, here is the 6 situation. We have a Contention B. It is neither 7 admitted nor denied. It is in abeyance, and we are 8 waiting for the Commission to do something. And once 9 it does something, it may be that you will want to, I 10 don't know. If you think that the Commission's action 11 has -- requires the dismissal of this contention, I 12 could think that you might file a motion for summary 13 disposition or some motion for dismissal of 14 Contention B.
15 MR. LEWIS: We would --
16 CHAIRMAN KARLIN: In that circumstance or 17 scenario, you would have to file within 10 days of 18 that event, the motion for --
19 MR. LEWIS: Yes, Judge Karlin, I agree 20 with you. I think a motion to dismiss should be filed 21 within 10 days. I don't think it would be a motion 22 for a summary disposition, which is a merits 23 determination. I do think it would be a motion to 24 dismiss, and I do agree that the normal provision that 25 a motion should be filed within 10 days of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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32 1 triggering occurrence --
2 CHAIRMAN KARLIN: Okay.
3 MR. LEWIS: -- would be applicable.
4 MS. MIZUNO: Your Honor, this is Beth 5 Mizuno. I would like to refer the Board and the 6 parties to the regulation at 10 CFR 2.1205 that 7 specifically discusses summary disposition. And it 8 talks about motions for summary disposition being 9 submitted no later than 45 days before the 10 commencement of the hearing.
11 Well, as we all recognize, we don't have 12 a date for commencement of the hearing, so we can't 13 count 45 days from there. The regulation at 1205 also 14 talks about allowing parties an opportunity to file 15 their answers within 20 days after service of such a 16 summary disposition motion.
17 And so, you know, given that the response 18 time is 20 days, I think requiring a motion within 10 19 days of any action is a little bit on the short side.
20 CHAIRMAN KARLIN: Well, let me address 21 that. First, there is a distinction in all my --
22 between promptness and ultimate deadlines. The 23 ultimate deadline set forth in the reg, subject to 24 modification by the presiding officer, the ultimate 25 deadline for motions for summary disposition in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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33 1 Subpart L proceedings is 45 days before the 2 commencement of the hearing.
3 That deadline is very difficult, is the 4 best thing I can say about it, because 45 days before 5 the commencement of the hearing the motion is filed.
6 Twenty days later the answers are filed. The ruling 7 has to be issued at least 15 days before the hearing 8 begins.
9 That gives the Board a 10-day window to 10 rule on the motion for summary disposition. Forty-11 five days plus twenty, now you're down to how many 12 days? Twenty-five days before the hearing, now you've 13 got an issue with between 25 and 15 days. That 14 doesn't work. It never has worked, and it isn't going 15 to work here.
16 So point one is that deadline, that's an 17 ultimate deadline for motion for summary disposition.
18 It's not a promptness deadline. The promptness 19 deadline still applies.
20 I don't want parties sitting on motions 21 for summary disposition until 45 days before the 22 hearing is going to start when you could have filed it 23 a year or two earlier. Okay? So that doesn't apply.
24 There is a 10-day deadline.
25 Let me -- so that's option 1. Option 2 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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34 1 is, we are not under a Subpart L. No contention has 2 been admitted. We are not under L, we're not under G, 3 we don't know what we're under. So that reg doesn't 4 even apply. So, okay, we will take it under 5 consideration.
6 Mr. Zeller, did you have any thoughts on 7 this one?
8 MR. ZELLER: We are satisfied with the 9 regulation as you stated it, Judge Karlin, at the 10 beginning.
11 CHAIRMAN KARLIN: Okay.
12 MR. LEWIS: Judge Karlin, this is Mr.
13 Lewis. Again, I suggest that not knowing what section 14 of the rules we're under, again, makes setting rules 15 probably premature at this point in time. If you were 16 to set rules, my preferred practice has always been to 17 file summary disposition motions after the NRC staff 18 has taken a position on the issue, which means either 19 after the draft EIS of an environmental contention or 20 after an initial SER that addresses the issue. And my 21 practice has always been to try and file the motion 22 for summary disposition promptly after those dates.
23 CHAIRMAN KARLIN: Right.
24 MR. LEWIS: The hearing is typically 25 triggered by the final documents. You know, that then NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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35 1 provides sufficient time for the parties to respond 2 and the Board to rule. But for the final trigger date 3 -- and if you were inclined to set such dates -- I 4 think that would be a more reasonable procedure.
5 And I agree, actually, that 10 days after 6 those -- a draft EIS or the initial SER is a short 7 amount of time, because if there is something in such 8 documents that a party who has been preparing a 9 summary disposition motion has not anticipated, it is 10 a short time to get back with its experts and tailor 11 its motion.
12 CHAIRMAN KARLIN: Right. Well, there is 13 no confusion that we are currently under 2.323. That 14 does apply, and that does say 10 days. And so -- and 15 that is a promptness deadline, which applies to all 16 motions, and it made very in the changes of August 3, 17 2012, that "all motions" means all motions, and that 18 includes motions to dismiss or motions for summary 19 disposition.
20 And whether under L or G, we are certainly 21 under C. And so we need to grapple with that one way 22 or the other. And maybe it is reasonable to have a 23 little more timeframe for dispositive motions.
24 I might add that I am generally not very 25 -- I don't think they are a very productive thing to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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36 1 do in most of these proceedings, but okay.
2 Let's go to number 6, which is whether 3 it's necessary or appropriate for the staff to file 4 and update its hearing file at this time. I'm not 5 even sure whether this reg applies from what I just 6 said, which is that we are not under Subpart L at this 7 point.
8 But perhaps you all will discuss that and 9 have some feeling. Perhaps I would start with Ms.
10 Mizuno on this one.
11 MS. MIZUNO: Well, yes, Your Honor. Given 12 your pointing out that we are not necessarily under 13 Subpart L, then the regulations there, the 1200 14 series, wouldn't apply. You know, when you look at 15 1203(a)(1), which talks about hearing files and gives 16 the requirements for hearing files, it is predicated 17 on an order granting a request for hearing.
18 The trigger point is a memorandum and 19 order, a decision and order that grants a hearing 20 request. No hearing --
21 CHAIRMAN KARLIN: Oh, that's right.
22 That's right.
23 MS. MIZUNO: -- has been granted in this 24 case. And, accordingly, the staff would submit that 25 no hearing file is required.
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37 1 CHAIRMAN KARLIN: Yes. Okay. Mr. Lewis, 2 I assume you are neutral or concur with that?
3 MR. LEWIS: I concur with that. And, 4 similarly, the obligation on disclosures apply to 5 admitted contentions. So even if you were looking at 6 the disclosure rules in 2.336, those are obligations 7 that only apply when there are admitted contentions.
8 And to the extent there are, I think in both cases, 9 the hearing file and disclosure obligations don't 10 apply at this juncture.
11 CHAIRMAN KARLIN: Okay. That we did --
12 let me hear from Mr. Zeller first. Anything, Mr.
13 Zeller?
14 MR. ZELLER: Judge Karlin, we disagree.
15 I think it's necessary and appropriate for the staff 16 to file an update hearing information. Reading 10 CFR 17 2.12013, paragraph A governs only the timing and the 18 availability of the hearing file, not a basis for it.
19 As stated in the July 12th order, the 20 posture of this case is unusual. And then further 21 down in 2.1203, in paragraph D, it flatly prohibits 22 all other means of discovery. That is, a party may 23 not seek discovery from any other party, either the 24 NRC or its personnel, unless under Subpart C.
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38 1 compelling discovery. Therefore, it is necessary and 2 appropriate for the staff to file and update its 3 hearing file, we believe.
4 CHAIRMAN KARLIN: Okay. Well, a couple of 5 thoughts, and we will -- 2.1203 is a Subpart L 6 regulation. We are not determined that we are in 7 Subpart L, so this is an initial issue or difficulty 8 that I sought to raise by asking this question.
9 As Ms. Mizuno has pointed out as well, the 10 reg says in A(1), "Within days of the issuance of the 11 order granting requests for hearing, and admitting 12 contentions, the NRC staff shall file in the docket,"
13 you know, et cetera, et cetera, make a hearing file 14 available. And so we have not admitted any 15 contentions. We are not in Subpart L, as yet. We are 16 in a strange posture.
17 And I would also agree with I think -- and 18 this is my personal opinion -- with Mr. Lewis, to the 19 extent that we -- 2.336, which are the mandatory 20 disclosure requirements, are not triggered here 21 because they all tee off of the contentions that have 22 been admitted, and the documents that are relevant to 23 those contentions, et cetera.
24 And since we have no admitted contentions, 25 they are not triggered. So what we have I guess is a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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39 1 bit of a limbo, and staff certainly has a duty, as 2 they acknowledged in our discussion of Item Number 2, 3 there is a general duty on all parties to disclose 4 relevant information as set forth in the policy 5 statement in 1984, which everyone has said, "Yes, 6 that's valid, and it should apply." But I do not see 7 the mandatory disclosure provisions of 2.336 applying.
8 And my real question is for the staff, 9 okay, if we assume that this 2.1203 duty -- hearing 10 file duty doesn't apply, what would you be filing in 11 any event? Will you file anything? Probably in 12 ADAMS? Will you file in the EH -- in the Electronic 13 Hearing Docket? Are you just going to file -- neither 14 of the above?
15 MS. MIZUNO: Your Honor, Beth Mizuno for 16 the staff. The answer would be neither of the above.
17 And in doing so, we would be consistent with the 18 practice that has been ordered in similarly situated 19 cases, as in Grand Gulf, which has a contention on 20 waste confidence -- rather, involves a contention of 21 waste confidence -- that is being held in abeyance.
22 There is no hearing file requirement. I would know.
23 I would have to be filing them.
24 Similarly, in Callaway, if there were --
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40 1 being held in abeyance, there is no disclosure, no 2 discovery. There are no filing obligations on the 3 part of the staff.
4 Similarly, although I am not on that case, 5 I just checked. South Texas license renewal, there is 6 also no hearing file requirements, because the staff 7 is not filing any. And it is my understanding that in 8 the Prairie Island ISFSI proceeding where there is --
9 where there are admitted contentions, but there is 10 also a waste confidence contention that is being held 11 in abeyance, they have admitted contentions and the 12 waste confidence contention that is being held in 13 abeyance.
14 In Prairie Island ISFSI, in that 15 proceeding, there is no discovery obligation with 16 respect to the waste confidence decision contention, 17 because it's held in abeyance.
18 CHAIRMAN KARLIN: Right.
19 MS. MIZUNO: So if we make no filings, we 20 will actually be consistent with the practice in other 21 similar cases.
22 CHAIRMAN KARLIN: Okay. Other -- you may 23 be surprised to know that some of the judges around 24 here do not always agree on all of the ways to 25 approach the case management. But in any event, none NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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41 1 of those things are binding, but it is good to know 2 that other -- what other people are doing. And I do 3 know that.
4 But there is a duty at least, as you have 5 all agreed, to notify, as the Commission policy says 6 "All parties and NRC adjudicatory proceedings, 7 including the NRC staff have a duty to disclose to the 8 boards, and other parties, all new information they 9 acquire which is considered material and relevant to 10 any issue and controversy in the proceeding." That is 11 the '84 policy.
12 Now, so there is a duty to disclose. The 13 question will be whether it's relevant to an issue in 14 controversy, Contention B being the pending, 15 unadmitted, undenied contention. So there is a duty 16 there as far as it goes.
17 Okay. I think that covers it, except for 18 a couple of additional items that I want to talk 19 about. And those are ex parte communications, 20 identification of parties, and duty of candor.
21 Ex parte communications, Mr. Zeller, this 22 is mostly for your benefit, which is to say on 23 July 24th one of the officers or directors of the Blue 24 Ridge Environmental Defense League sent me an email 25 that discussed, in some modest respect, the merits of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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42 1 the decision.
2 They asked for -- she asked, this lady --
3 I have her name here somewhere. Ms. Dunigan, the 4 development director at BREDL, asked me to take some 5 actions, asked the Board to take some actions with 6 regard to this case. That wasn't prohibited -- that 7 was a prohibited ex parte communication under 2.347.
8 I would like you to read that reg and just 9 make sure you understand that, because we're not -- no 10 one is supposed to provide those to us, and if we get 11 them we have to put them on the record. And, in any 12 event, we don't really want to proceed in that way.
13 MR. ZELLER: Judge Karlin, I hear you loud 14 and clear. And I apologize, we have a new staffer and 15 I have already corrected that.
16 CHAIRMAN KARLIN: Oh, okay.
17 MR. ZELLER: Thank you.
18 CHAIRMAN KARLIN: Fine. I would note --
19 and this may seem a little confusing to you, Mr.
20 Zeller -- that there is a separate regulation, which 21 is 2.315(a), which allows for non-parties to submit 22 limited appearance statements in writing. And we have 23 received several letters, emails, from people who do 24 not seem to be associated with any party, individuals 25 who have expressed concerns on various items. And as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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43 1 we get those, we put them in the record, and those are 2 not prohibited ex parte communications, because they 3 are not from a party.
4 If they indicate they are from a party, it 5 is prohibited and not supposed to happen. But if 6 they're not from a party, then it is not prohibited, 7 I guess is the best I can say.
8 Second item is parties. Please note, Mr.
9 Zeller, and this is for you, that when we ruled on 10 standing the only entity which was granted standing 11 was the Blue Ridge Environmental Defense League. And 12 you have several other entities, such as the 13 Bellafonte Efficiency and Sustainability Team and the 14 mothers Against Tennessee River Radiation, and they 15 were not granted standing.
16 Now, I note in your appeal of July 30, 17 2013, your caption of the case included both of those 18 entities in the caption of the case, and you put a 19 footnote down there, Footnote 1, that you prefer to 20 style your petition to include best and major.
21 Now, they are not parties in our 22 proceeding. You may want to get away with that up at 23 the appeal level. But I suggest that when you file 24 things in this proceeding the caption should be Blue 25 Ridge Environmental Defense League, period. Okay?
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44 1 MR. ZELLER: Judge Karlin, it is a 2 difference without a distinction. And so, I mean, I 3 appreciate your citing, you know, some of the 4 background on this, but the League is incorporated, 5 and its chapters. I mean, the name Blue Ridge 6 Environmental Defense League, in this case "league" 7 means all of the chapters, which stretch from Virginia 8 to Alabama and Georgia. So --
9 CHAIRMAN KARLIN: Well, Mr. Zeller, we 10 have already ruled on this. We don't -- and only 11 parties are entitled to make filings in this 12 proceeding. And if a non-party files something, it is 13 subject to being stricken. And I would suggest that 14 you don't want that to happen, so it is -- it makes a 15 difference to us, because if you wanted either of 16 those other entities to be admitted as a party all you 17 would have had to do is present an affidavit from 18 someone saying they're a member of that party.
19 And you didn't do that, and we had to rule 20 accordingly, and we did rule accordingly, and I hope 21 you will follow that. And we don't want your 22 pleadings to be stricken for naming people who are not 23 parties.
24 ADMIN. JUDGE ABRAMSON: This is Judge 25 Abramson. Let me just pick up something here, okay?
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45 1 CHAIRMAN KARLIN: Yes.
2 ADMIN. JUDGE ABRAMSON: Mr. Zeller, the 3 point is that these are chapters of your organization, 4 I gather, and you don't see a distinction but we do.
5 As chapters, they are probably also members of your 6 organization. So whatever they want to file, they can 7 file through BREDL. Just don't have them try to do it 8 on their own because they're not parties here.
9 CHAIRMAN KARLIN: Okay. Right.
10 Now, the final item that I have, and my 11 colleagues may have something else, is what I'm going 12 to call a duty of candor with the tribunal. There are 13 a number of regs and rules, I'll call them, that 14 apply.
15 In Footnote 25 of our July 5th decision, 16 we cited 2.304(d), which requires the parties --
17 person, when they're signing a pleading, to be 18 attesting or supporting, believe in, the truthfulness 19 of what they are saying. 2.323(d) speaks to the 20 accuracy of the pleading. And, again, when people 21 file something, they should believe that it's truthful 22 and accurate, and that's fine.
23 And there is another requirement that 24 applies to lawyers. That would not be you, Mr.
25 Zeller, but it might be -- and this is the lawyers.
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46 1 And Model Rule 3.3(a)(3) of the ABA Code of Ethics for 2 Lawyers says, "A lawyer shall not knowingly fail to 3 disclose to the tribunal legal authority in the 4 controlling jurisdiction known to the lawyer to be 5 directly adverse to the position of the client, and 6 not disclosed by opposing counsel."
7 And the purpose of that rule is to allow 8 the tribunal, this Board, to make the best decision 9 and best-informed decision we can. So I would say to 10 the lawyers, if you know of a precedent or a case that 11 is adverse to your position, I think what you need to 12 do is to inform us of that case or decision, and to 13 help distinguish it or explain it or help us 14 understand how it's not applicable.
15 Because if we issue a decision that 16 totally misses a significant case that is out there, 17 we look foolish and we are subject to appeal and 18 reversal, and I think we'd like to think it through.
19 In this context, I would suggest, Mr.
20 Lewis, that I was very surprised that your brief, with 21 regard to Contention B, did not ever once mention the 22 Commission's decision in Calvert Cliffs, CLI 12-16.
23 I have to believe, with the experienced litigator you 24 are, and your colleagues, that you are aware of that 25 decision. And I found that a very difficult -- we had NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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47 1 to confront that decision. In fact, that was the 2 basis of our decision on Contention B.
3 So I would think that it's especially --
4 the duty of candor is especially important when there 5 are experienced litigators on one side and there is a 6 pro se party on the other side, because it's -- we can 7 -- we have less ability to depend on the pro se party 8 to come forward with the opposing citations. So if 9 everyone --
10 MR. ZELLER: I apologize for that. I was 11 aware of the case. I had thought about including 12 discussion. I had reached the conclusion that the 13 case was inapplicable, and I actually thought at that 14 point, because I think you had indicated that there 15 would be a pre-hearing conference, that there would be 16 a further opportunity for -- to have that discussion, 17 and made the judgment to leave that for the prehearing 18 conference, and then the prehearing conference went 19 away. So that was a bad call on my part, and I 20 apologize.
21 CHAIRMAN KARLIN: Okay. Thank you.
22 Because, you know, sometimes we have prehearing 23 conferences, but we need all the help we can get to 24 issue the best decisions we can. And, you know, you 25 need to inform us in your briefs of what -- you know, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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48 1 of those kind of decisions.
2 Even if it's a close call, please put it 3 in there and explain to us why you don't think it's 4 relevant or appropriate.
5 So with that, are there any other items 6 Judge Arnold or Judge Abramson want to talk about?
7 This has gone a little longer than I expected. I'm 8 sorry for that, but --
9 JUDGE ARNOLD: This is Judge Arnold. I 10 just have one concern about dates on draft 11 environmental impact statement final. I recently, in 12 another case, had noticed that the final environmental 13 impact statement was now available, and that notice 14 gave an ML number. And I went to ADAMS and I inserted 15 that ML number, and it came up with no hits.
16 The next day, no hits. It was some time 17 next week that it actually turned up in ADAMS. So the 18 date from which -- that was the trigger point was 19 unknown. We know when we got the notice, and we know 20 when I finally got hold of it. But we don't really 21 know when it really first became available. And I 22 just want parties be aware that this type of thing can 23 happen, where the actual insertion into ADAMS takes 24 longer than expected.
25 CHAIRMAN KARLIN: Yeah. Good point.
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49 1 Judge Abramson?
2 ADMIN. JUDGE ABRAMSON: Yeah. No, I don't 3 have anything on this case, although Mr. Silverman has 4 another case where the Board is looking for something 5 from you. So we hope you will find it.
6 CHAIRMAN KARLIN: Could you repeat that?
7 I think some of your words cut off. Who were you 8 addressing that to, Mr. --
9 ADMIN. JUDGE ABRAMSON: Mr. Silverman.
10 CHAIRMAN KARLIN: Silverman? He's not on 11 this call, I don't think.
12 ADMIN. JUDGE ABRAMSON: Sorry.
13 CHAIRMAN KARLIN: Yeah, yeah, yeah.
14 Okay. Sorry. All right. Is there 15 anything else from any of the parties at this point?
16 MS. MIZUNO: Sorry. This is Beth Mizuno 17 with the NRC -- representing the NRC staff. We have 18 had some difficulty reaching Mr. Zeller by telephone.
19 And I was just hoping to confirm his telephone number.
20 And if you think it's inappropriate to do it on the 21 record, that's fine, I'll take it offline. But it 22 would be helpful if we knew -- if we could confirm the 23 number that we should be using to reach him.
24 CHAIRMAN KARLIN: Yes. Mr. Zeller, I have 25 to say that we have had a significant difficulty in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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50 1 reaching you as well. I'm not sure whether there is 2 some personal or -- whatever is going on there, but 3 our law clerk tried to call you repeatedly when we 4 were attempting to schedule this conference call, and 5 you did not return any of those calls.
6 In fact, before this conference call, we 7 had to call you yesterday. You were supposed to call 8 in several days ago to get your number and you did not 9 do so. You filed this case; this is your case.
10 Presumably, you should be paying attention and 11 responding when one of my law clerks or Ms. Ellis 12 attempts to contact you, and the same with the other 13 parties.
14 You can't sit on your hands and say that 15 you didn't get to participate in the conference call 16 if you don't respond and pay attention. So what's the 17 best number to call you at?
18 MR. ZELLER: I appreciate that, Your 19 Honor. Our number is (336) 982-2691. That will also 20 refer you to -- for immediate -- anything that is 21 urgent, also to a secondary number, which you will 22 gain access to by dialing that.
23 I would say that we did have a -- I did 24 have a family emergency this week, so I was tied up.
25 And I don't expect that to happen again.
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51 1 CHAIRMAN KARLIN: All right. Anything 2 else that you want to say, Mr. Zeller, at closing? We 3 are going to close this now.
4 MR. ZELLER: No, Judge Karlin. I 5 appreciate the opportunity to present our views on 6 this request for intervention. I do hope -- and I do 7 look forward to -- discussing the merits of the case 8 sooner rather than later.
9 CHAIRMAN KARLIN: All right. And, Mr.
10 Lewis, you get the last word.
11 MR. LEWIS: Judge Karlin, this is Mr.
12 Lewis. I don't have anything further.
13 CHAIRMAN KARLIN: Okay. Thank you.
14 ADMIN. JUDGE ABRAMSON: Judge Karlin?
15 CHAIRMAN KARLIN: Yes.
16 ADMIN. JUDGE ABRAMSON: Before we close, 17 would you just spend 30 seconds summarizing what the 18 status is, what we're going to do?
19 CHAIRMAN KARLIN: Okay. Let me try that.
20 ADMIN. JUDGE ABRAMSON: Thirty seconds.
21 (Laughter.)
22 CHAIRMAN KARLIN: Judge Abramson keeps me 23 on a short leash. Well, thirty seconds. We are going 24 to issue an initial scheduling order on or before 25 August 29, 2013, laying out, you know, what things NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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52 1 need to -- what we can do to help manage this case 2 fairly and efficiently as it goes forward, recognizing 3 it's an unusual situation.
4 Other than that, I don't think we have any 5 action items. And we're not going to issue a synopsis 6 of this prehearing conference. If people -- hopefully 7 you took notes. You can check the transcript. It 8 will be posted, hopefully, in a week.
9 Does that cover it, Judge Abramson, or is 10 there anything else that --
11 ADMIN. JUDGE ABRAMSON: That's good. And 12 you almost made it in 30 seconds.
13 (Laughter.)
14 CHAIRMAN KARLIN: Okay. All right. I 15 want to thank everyone for sitting in on the call and 16 for talking some of these issues through. And we'll 17 endeavor to issue a scheduling order before the end of 18 the month. So the matter is now adjourned.
19 Thank you.
20 (Whereupon, at 10:12 a.m., the 21 proceedings in the foregoing matter were 22 adjourned.)
23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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