ML20024A902
| ML20024A902 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 06/29/1983 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-CP, NUDOCS 8307010159 | |
| Download: ML20024A902 (59) | |
Text
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ORIGINAL UNITED STATES OF AMERICA (n)
NUCLEAR REGULATORY COMMISSION In the matter of:
UNITED STATES DEPARTMENT OF ENERGY PROJECT MANAGEMENT CORPORATION Docket No. 50-537 CP TENNESSEE VALLEY AUTHORITY (Clinch River Breeder Reactor Plant)
Conference With Counsel Location: Bethesda, Md Pages:
7298-7354 Date: Wednesday, June 29, 1983 k
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TAYLOE ASSOCIATES Court Reportm 1625 I Street, N.W. Suite 1004 8307010159 830629 wuMnc n,
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7298 barb 1
' UNITED STATES OF AMERICA
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2 NUCLEAR REGULATORY COMMISSION
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3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
CONFERENCE WITH COUNSEL 5
6
-X 7
In the Matter of:
8 UNITED STATES DEPARTMENT OF ENERGY 9
PROJECT MANAGEMENT CORPORATION Docket No. 50-537 10 TENNESSEE VALLEY AUTHORITY 11 (Clinch River Breeder Reactor Plant 12
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13 Nuclear Regulatory Commission s_,/
Fifth Floor Hearing Room 14 4350 East-West Highway Bethesda, Maryland 15 Wednesday, 29 June 1983 16 17 The conference with counsel in the above-18 entitled matter was convened, pursuant to notice, at 19 10:00 a.m.
20 BEFORE:
21 MARSHALL E. MILLER, Chairman Administrative Law Judge 22 GUSTAVE A.
LINENBERGER n
Administrative Judge 24
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7299 barb 1
APPEARANCES:
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2 On Behalf of the Applicants:
3 GEORGE L. EDGAR, Esq.
1800 M Street, N.W.
Washington, D. C.
20036 5
Representing Project Management Corporation 6
EDWARD J. VIGLUCCI, Esq.
Tennessee Valley Authority 7
400 Commerce Avenue Knoxville, Tennessee 37902 8
PETER J.
GROSS 9
Assistant Director for Public Safety U.S.
Department of Energy 10 CRBRP Project Office Post Office Box U 11 Oak Ridge, Tennessee 37830 12 WILLIAM LUCK, Esq.
Department of Energy 13 Washington, D.
C.
.,a 14 On behalf of Intervenors:
15 BARBARA A. FINAMORE, Esq.
Natural Resources Defense Council, Inc.
16 1725 I Street, N.W.
Suite 600 17 Washington, D.
C.
20006 Representing NRDCI and Sierra Club 18 THOMAS B. COCHRAN 19 Senior Staff Scientist Natural Resources Defense Council, Inc.
20 1725 I Street, N.W.
Suite 600 21 Washington, D. C.
20006 22 23 24 x_ -
2s
7299-A 1
On Behalf of the Nuclear Regulatory Commission
()
2 SHERWIN E. TURK, Esq.and GEARY MIZUNO,Esq.
Office of the' Executive.: Legal Director 3
U.
Sc Nuclear Regulatory Commission Washington, D.
C.
20555 4
RICHARD STARK 5
Project Manager Clinch River Project 6
U.
S.
Nuclear Regulatory Commission Washington, D.
C.
20555 7
8 9
10 11 12 14 5
16 17 J
18 19 4
21 22 23 24 O)
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PROCEEDINGS 2
JUDGE MILLER:
We will call the meeting to order, 3
please.
4 This is a conference with counsel and parties 5
pursuant to oral notification, to take up pending motions and 6
other matters that have arisen since last we met.
7 The record will show that we are commencing with 8
page number 7298 inasmuch as in this proceeding we are having 9
continuously and consecutively numbered pages for all hearings,
10 motions, conferences and the like rather than having segmented 11 portions thereof.
12 Will counsel identify themselves and their associate s,
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13 please.
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14 MR. EDGAR:
I am George Edgar, counsel for 15 Project Management Corporation.
Seated to my left is Mr.
16 Edward Viglucci., attorney for the Tennessee Valley Authority.
17 To my immediate right is Mr. Peter Gross, Assistant Director, 18 Public Safety, Clinch River Breeder Reactor Froject Office.
19 On my far right is Mr. William Luck, attorney for the Depart-20 ment of Energy.
21 I will be speaking as lead counsel for the Appli-22 cants today.
M MS. FINAMORE:
My name is Barbara Finamore, an 24 attorney with Natural Resources Defense Council, and with me M
is Dr. Thomas Cochran, Senior Staff Scientist at Natural
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Resources Defense Council.
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JUDGE MILLER: Staff?
3 MR. TURK:
I am Sherwin Turk, attorney with the 4
Office of the Executive Legal Director and the Nuclear Regula-5 tory Commission.
I am representing the Staff today.
At my 6
left is the project manager for the Clinch River Breeder 7
Reactor, Mr. Richard Stark.
At my right is another attorney 8
with the NRC, Geary, G-e-a-r-y, Mizuno.
9 JUDGE MILLER:
Thank you.
10 Anyone else who is here either in a representative 11 or other fashion that should be identified for the record?
12
('No response)
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13 JUDGE MILLER:
All right.
L..
14 We will take up first of all the motions for summary 15 disposition which have been filed by the Applicants.
The firs :
16 motion that I have is that filed, or at least dated May 19, 17 1983, denominated " Applicant's Motion for Summary Disposition 18 on Intervenor's Contention 9(g)." That motion was accompanied 19 by a statement of material fact as to which there is no 20 genuine issue to be heard.
21
.In accordance with the requirements of 10 CFR Sectio i 22 2.749, sub paragraph (e), on June 8, 1983 it was filed by 23 the Staff, the NRC Staff's answer in support of Applicant's 24-f\\
motion.for summary disposition on Intervenor's Contention
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26 9(g),
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On May 23, 1983 was filed Applicant's Motion for n
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2 Partial Summary Disposition on Intervenor's Contentions 9(c) 3 and 9 ( f), accompanied by Applicant's Statement of Material 4
Facts as to which there is no genuine issue to be heard, and 5
on June 13, 1983 there was filed NRC Staff's Answer in Support 6
--of~ Applicant's Motion for Partial Summary Disposition on 7
Intervenor's Contentions :9 (c) and (f).
8 No filings within the 20-day period in response to.
9 these summary disposition motions were filed by Intervenors 10 or anyone else.
11 Taking up first now these two motions for summary 12 disposition, we have read the recently filed materials by
{""]s 13 both Applicants and Intervenors in connection with a motion u
14 to withdraw which we will take up following the disposition 15 of the summary disposition motions.
However, we want to give 16
~ counsel and parties an opportunity to be heard if there is 17 anything further that they wish to say at this time in regard 18 to the summary disposition motions that we have just described 19 Does anybody have anything to say?
Mr. Edgar?
20 MR. EDGAR: I won't recount the substance of both 21 motions. I believe they speak for themselves.
There are 22 several points of emphasis which we would like to call to the 23 Board's attention.
24 Both motions, the May 19 and the May 23rd motions, 25 were accompanied by statements of material facts as to which i
A 7303 bwljoy4 1
there is no dispute pursuant to 10 CFR 2.749. The Intervenors ev k) 2 have filed no response to those motions within the time limit 3
specified by 10 CFR 2.749.
Further, they have filed no 4
answer and they have filed no statement in response to the 5
statement gf material facts as. to which there is no dispute.
6 Consequently, under 10 CFR 2.749(e), the Board 7
should grant summary-disposition under the express terms of i-8 that regulation.
9 JUDGE MILLER:
Intervenors.
10 MS. FINAMORE:
Your Honor, the Applicants did file 11 a response to Applicant's Motion for Summary Disposition on 12 Intervenor's Contention 9(g) and for Partial Summary Disposi-(T 13 tion on Intervenor's Contentions 9(c) and 9 (f) on June 21, Q,)
- 14 1983.
In the Board's Constru ction Permit Scheduling Order 15 of March 29, 1983, June 21, 1983 was set as the date for 16 responses to summary disposition motions.
17 Ne submit that our response was within the time 18 period set out in the Board's Construction Permit Scheduling 19 Order.
In that response, Intervenors referred to another 20 motion filed on that date in which they moved to withdraw 21 entire Contention 9 as well as Contentions 1 and 3, and 22 therefore submitted that the Board should deny as moot 23 Applicant's Motion for Summary Disposition on Intervenor's 24 Contention 9(g), a motion for partial summary disposition
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25 on Intervenor's Contentions 9(c) and 9 (f).
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JUDGE MILLER:
Staff?
(v) 2 MR. TURK:
We will rest on our pleading.
I would 3
like to respond briefly to one comment made by Ms. Finamore 4
for NRDC.
5 I read the March scheduling order quite differently 6
than she does. I read the June 21st date as being the last 7
day for filing responses to motions for summary disposition, 8
and I saw that date as being clearly tied to the June 1st g
date, which was set for the last day to file summary disposition 10 motions.
That is the normal 20-day period permitted in the 11 rule for filing responses to summary disposition motions.
12 My interpretation of the scheduling order was that
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.s' 14 then responses would still be due within the normal 20-day 15 Period required by the rules.
I did not see the scheduling 16 order as granting in any way, explicitly or implicitly, an 17 extension of time beyond that permitted in the. rules.
18 MR. EDGAR:
We would emphasize the fact that,whateve r 19 one might attach as a characterization to Intervenor's respons e 20 to the summary disposition motion, that response did not 21 address and did not respond to the statement of materi'al 22 facts as to which there is no dispute.
On the basis of the 23 pleadings, Intervenors have clearly accepted and have de-24 faulted on the motion for summary judgment.
Their response
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95 in arguing,mootness is nothing more than a last-minute attempt
ljoy6' 7305 1
to avoid the clear legal effect of the grant of summary
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2 disposition.
O JUDGE MILLER: Anything further?
4 MS. FINAMORE:
Yes, Your Honor.
5 Intervenors submit that if the Board does grant 6
our motion to withdraw Contentions 1, 3 and 9, it did not even 7
reach the issue of summary disposition and that the correct 8
response would be to simply deny those motions as moot.
9 JUDGE MILLER:
Anything further?
10 MR. TURK:
Nothing for the Staff.
11 (Board conferring) p 12 JUDGE MILLER:
The Board will rule.
()
13 First of all, as far as the timeliness is concerned, Q..l 14 the response of the Intervenors is not timely.
The order 15 scheduling the time for filing various matters was intended 16 by the Board to establish the last date for the filing of 17 motion for summary disposition and the last date for responses 18 to such motions that were filed on the last date.
It was 19 not any attempt to extend the time in which to respond if they J
20 were filed earlier.
In fact, I believe there was some 21 discussion at the time that the Board met with counsel'in 22 which we indicated if there were earlier motions, then we 23 encourage early filing-of all motions; that the rules would 24 provide the time period.-
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.So we would hold that the motions for summary
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disposition described were not responded to in a timely
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fashion by the Intervenors or anyone else; and there being 3
no sufficient response within 20 days, that under Section 4
2.749, that material facts that were not controverted were 5
thereby admitted.
6 The Board further holds that the Applicants l
7 are entitled to a disposition on the merits of the summary 8
disposition motions.
The Board has examined both the motions 9
and the accompanying statement of material facts as to which 10 there was allegedly no genuine issue to'be heard, 11 and it believes, in accordance with Section 2.749, that the 12 motions for summary disposition should be and-hereby are
('T 13 granted.
In accordance therewith, the' motion for summary l
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14 disposition of Contention 9(g) is granted, and the Applicant's 15 motion for partial summary disposition of Contentions.9(c) 16
-and (f) are granted.
17 Now, the next matter, then, which was partly alluded 18 to by counsel, is the Intervenor's motion to withdraw 19 Contentions 1, 3 and 9(c), (f) and (g) for consideration at 20 the July 1983 CRBR Construction Permit evidentiary hearing 21 and request for permission to submit a written statement filed 22 June 21, 1983, and the same date that was filed Intervenor's 23 response to Applicant's Motion for Summary Disposition on 24 Contention 9(g) and partially as to 9(c) and (f), on which I,..
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25 we have already ruled, and on June 22, 1983, the Applicant's
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7307 i
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.1 response to Intervenor's Motion to Withdraw Contentions 1,
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2 3 and 9(c), (f) and (g) from consideration at the July hearing,
3 et ce Mra.
This would be the Intervenor's motion, so Intervenor 4
.may go first, if you like.
5 MS. FINAMORE:
As was stated in our motion, accord-6 ing to the Board's May 17, 1983 order following May 13th 7
conference with parties, Intervenor's Contentions 1, 3 and 8
9(c), (f) and (g) are the only contentions raised by g
Intervenors that remain to be resolved at the July 1983 10 Construction Permit evidentiary hearing.
That hearing will 11 also cover evidence on Board Questions 1 through 17 and other 12 matters mandated by the NRC regulations.
(N 13 Intervenors have requested withdrawal of Contentions L) 14 1, 3 and 9(c), (f) and (g) because their limited resources 15 Prohibit their continued full participation in the constructio t 16 Permit proceedings.
17 We do not, however, request withdrawal as parties 18 from the CRBR proceedings since we intend to continue to 19 press our appeal of the February 28, 1983 partial initial 20 decision of the Board. That not only authorized the issuance 21 of a limited work authorization but also made all of the 22 environmental findings required by 10 CPR 51.52(b) and (c) 23 to be made prior to. the issuance of the CRBR construction 24 permit.
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25 Consequently,_our appeal involves two related issues
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first, whether the Board made'all of the findings and suffi-I j.
2 ciently resolved all of the issues necessary for granting of 3
.an LWA, particularly in respect to Contentions 1, 2 and 3; 4 -
and second, whether the Board's environmental findings are 5
supported in the record.
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7 END 1 i
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The first issue, the adecuacv of the Board's resolution at the O\\-sl LWA stage of Contentions 1, 2, and 3 is unaffected by the 3
extent of Intervenors participation at the July 1983 CP 4
hearing.
5 The second issue, the adequacy of the partial 6
initial decision environmental findings could affect the 7
validity of both the LWA and the CP.'
8 If the Appeal Board orders further proceedings on 9
either of these issues, Intervenors intend to participate 10 fully.
11 Intervenors also request permission to submit a 12 I
written statement concerning the issues raised in the
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proceeding for consideration by the Board to the extent deemed 14 proper.
15 JUDGE MILLER:
Applicant.
16 MR. EDGAR:
We filed our response on June 22nd.
I 17 will not reiterate that response at this time.
We think it 18 is fairly straightforward.
19 We think that the Board should dismiss the con-20 tentions and grant the motion to the extent of dismissing the 21 contentions.
22 Secondly, we think the Board should dismiss 23 Intervenors as a party to all future proceedings.
Intervenors 24
N have no contentions.
They have no basis to participate.
A' 25 Furthermore, Intervenors rights, whatever they may
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I be, as to prior proceedings would be unaffected by dismissal i
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as to future proceedings.
s, 3
Next, we would express a concern that there be a 4
clear understanding as to the status of Intervenors' state-5 ment.
If Intervenors have no contentions, if Intervenors, 6
therefore, are not entitled to party status, then that state-7 ment cannot have evidentiary-status.
8 Rather, the Board has the right and the discretion, 8
under the Rules of Practice, to allow Intervenors to file a 10 written statement by way of limited appearance.
11 We have no objection to the Board's exercise of 12 discretion to allow the filing of a written limited appearance
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statement.
However, we think that discretion should be
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guided by the recognition that we have been at these 15 proceedings for a long time, that we have been working 16 through a set of milestones in a schedule established by the 17
- Board, all parties have geared themselves to that schedule, 18 and that Intervenors ' written statement, therefore, should be 19 filed on July 5th, the date which was established for filing 20 testimony.
21 We think that is reasonable under the circumstances.
It grant Intervenors the relief requested.
And furthermore, 23 it' gives the Doard an opportunity to review the statement to determine whether there are any matters therein that the
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25 Board wishes to raise, and it would give the Applicants and
7311 jl 2:3 Staff the opportunity to prepare to meet any Board items and,
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2 in addition, to respond to the statement.
3 Therefore, we request and reiterate our request 4
that the Board grant those requests which we made in our 5
June 22nd response.
6 (Board conferring.)
7 MR. TURK:
The Staff has not filed a written 8
response to the Intervenors' motion of June 21st.
The 9
Applicants did file a written response on June 22nd, and 10 therein they noted that discussions had been held between 11 Applicants and Staff concerning the content of Applicants '
12 response.
()
And at page 6 of the Applicants' response, they 14 note that all matters and positions which had been expressed 15 by the Applicants are supported by the Staff.
16 We don't intend to add anything at this time to 17 the statements made by Applicants' counsel.
We think that 18 the positions are sound ones and should be adopted by the 19 Board.
20 '
(Board conferring.)
21 JUDGE MILLER:
Judge Linenberger has a question.
22 JUDGE LINENBERGER:
Ms. Finamore, referring to the 23 last paragraph on page 3 of Intervenors' June 21, 1983
()
submittal, with respect to Intervenors' request for permission
\\2 25 to submit a written statement, that request is modified or
7312 jl 2:4 1
characterized by the phrase "concerning the issues raised in 2
that proceeding."
And the "that" would seem to, in the 3
context of that one-sentence. paragraph, refer to the July 1983 4
proceeding -- all this by way of long-winded prologue to my 5
question.
6 Is it Intervenors' desire to comment upon the 7
posture of that proceeding as it perceives it before the 8
proceeding begins?
Or is it Intervenors' posture that this g
written statement might come sometime later, after the --
10 after some progress has been made in the proceeding?
11 It is not clear from what I read here what 12 Intervenors' desire is.
13 MS. FINAMORE:
When I mentioned the issues raised 14 in that proceeding, I was referring primarily to the issues 15 raised by the Board in its May 17th order, which was the 16 17 Board questions, as well as the several issues that the 17 Board raised in its partial initial decision as matters that 1
18 would be gone into in the construction permit hearings.
19 We realize that the May 17th order also listed 20 three of our contentions which we are now withdrawing.
21 However, in light of the fact that the Board, in its February 22 partial initial decision indicated that some of the matters
-23 raised in those contentions would be gone into at the CP stage. Me would like to subnit,our. statement on those issues, or.imrily
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the issue of whether a core disruotive accident should be a design basis Aj accident.
E He intended to file such 'a'statenent before the July proceedings so that they would be given full consideration by the Board and the carties
7313 jl 2:5 1
We have no objection to filing, the same day, the (Q_,/
2 other testimony, namely July 5th.
And the Board and the 3
parties can give the matters raised in that statement full 4
consideration.
5 JUDGE LINENBERGER:
Thank you.
6 JUDGE MILLER:
Do you care to say anything further 7
in response to anything that was said by opposing counsel?
8 MS. FINAMORE:
Yes, I would.
9 JUDGE MILLER:
Go ahead.
10 MS. FINAMORE :
Given the peculiar nature of the 11 limited work authorization, it is not a completely separate 12 proceeding from the ones that are presently on-going.
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I 13 As you noted, it was labeled a partial initial v
i 14 decision, meaning that the issues raised there, particularly 15 the environmental contentions, were also full findings that 16 had to be made before a construction permit was decided upon.
17 And for that reason,the environmental contentions 18 raised by Intervenors also go to the issue of whether a 19 construction permit should be granted.
20 And I don't think it is completely correct to 21 totally separate'the two proceedings and dismiss us as i'
22 parties from the construction permit proceeding when several i
l 23 of the contentions that we have already raised directly 24 f-g concern the validity of a construction permit proceeding.
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8 For that reason, we submit, as we mentioned in our
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motion, that we not be dismissed as parties from the C)
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2 construction permit proceeding.
That is the reason why I did 3
not characterize the written statement as a limited appearance 4
statement, because-that only applies to persons not parties.
5 JUDGE MILLER:
Mr. Edgar, anything further?
MR. EDGAR:
Yes.
We, Your Honor, accept Intervenors ' representation 8
that they would file a statement on July 5th.
We think that 9
is reasonable and appropriate.
10 However, there are two items that are raised in Ms. Finamore's response which we think the Board should 12 consider very seriously.
()
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The first is that whatever rights Intervenors may have 14 vis-a-vis the LWA proceeding and the Board's decision exists 15 and they are not affected by what the Board may do at this 16 time, the Intervenors have, the Intervenors have no issues to 17 raise.
18 And absent any issues to raise, one cannot satisfy 19 the requirements of 10 CFR 2.714 for gaining party status.
20 Intervenors are simply not entitled to party status.
21 The second point is that Intervenors want to have 22 it both ways.
They want to remain parties as to future proceedings in which they have no issues to raise.
They do 24
(N not want to have their statement regarded as a limited e
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25 appearance statement.
7315 (
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If they are parties and' their statement goes in, (O) 2 what, tnen, is the evidentiary status of that statement?
3 If they are not parties and it goes in as a limited 4
appearance statement, then there is no real problem inasmuch 5
as the Board, in its discretion, can raise issues from that 6
s tatement.
7 That is well-settled case law.
And Applicants and 8
Staf f can respond.
9 If, on the other hand, the statement has some l
10 evidentiary status and Applicants and Staff have no opportunity 11 to respond or confront that evidence by way of cross-examina-12 tion, one then develops a quandry.
("N) 13 It seems to us that the logical and straightforward
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14 thing to do is to take Intervenors rights as they appear, 15 which are:
16 A,
they are not entitled.to party status in future 17 proceedings; and 18 B,
the Board may exercise its discretion to allow 19 a written statement, grant Intervenors ' written statement 20 request by way of limited appearance.
21 JUDGE MILLER:
Staff?
22 MR. TURK:
I think it is obvious that there is a 23 little bit of a procedural quandary here.
24 JUDGE MILLER:
Procedural what?
-O 25 MR. TURK: -Quandary.
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The Intervenors do appear, to me, to want to have
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,3 it both ways.
They want to be able to continue with.part of t$e CP proceeding, but not another part.
And the position 3
4 they take raises a few practical considerations.
5 Mr. Edgar alluded to the problem of how you treat 6
'the written statement they would be filing.
That is the first 7
Problem.
Is it evidence, or is it limited appearance 8
s tatement?
9 A second problem that will occur or which may arise 10 af ter the next hearing is held is will the Intervenors seek-11 to file findings of fact and, after that, will they seek to 0
12 appeal from'whatever may be the next partial initial decision 13 of the Board?
14 And the last problem that I see is in the event that 15 the Appeal Board reverses the first partial initial decision, 16 '
will the Intervenors then seek to litigate whether or not a 17 CP may be issued?
18 It seems to me that is really what they'-want tb do.
i 19 They want to block the CP in the event that the Appeal Board 20 reve'rses the first partial initial decision.
s 21 The Staff's position is ithat we certainly do not/ f
U 22 want them to'be prejudiced from prosecuting the appeal which
'M they have already filed incthe first PID.
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M And in, the event that the first PID is reversed and y
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further evidence must be taken as to whether environmenta1
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i matters have been adequately considered, then we would not Ch Q
2 oppose their participation as to those matters.
But we would 3
oppose their participation with respect to the hearing coming 4
up in July and with respect to filing any'$1ndings or appeal 1
5 from whatever may be the next phase of the CP proceeding.
6 JUDGE MILLER:
Anything further?
qr 7
MS. FINAMORE:
Yes.
4 8
Your Honor, we are not requesting that our written 9
statement be treated as evidentiary..That is why we said it 10 can be given whatever effect the Board deems proper.
We are s
11 not seeking to file findings of fact on our written statement 12 or on any of the matters raised at tha' July construction
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13 permit hearing or to appeal.
O 14 For that reason, we don't think it is a quandary; to s
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15 allow us to file a written statement that would aid the Board is and the parties in discussing and resolving those particular, 17 issues.
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However, all I was pointing l outels that to term it 18 3
4.
1 19 a limited appearance statement, it is not the,. correct-term if.
20 we are still considered parties.
". Q 21 JUDGE MILLER:
That's the whole' question.
In what 3-22 way would such a statement, if filed -- and'we would certainly i
23 be disposed to grant leave to file,under t'e4 cms we will discuss 24 in a moment -- in what way could that be anything possibly,
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' \\J 25 other than a limited appearance statement' of a non-party?i Y' t
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7318 ji 2:10
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MS. FINAMORE :
As I stated before, I believe that 2
since we have raised environmental issues that are, in fact,
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3 matters tliat ust-be resolved before a construction permit can i
be granted'and.that we have appealed those environmental 4
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5 issues, we are still parties as to those issues that we have j
a raised.
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7 JUDGE MILLER:
You are a party as to whatever you a
may have raised or done upon appeal.
I think there is no k
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controversy as to that.
e 10 But above and,beyond that which'is pending now h
before the Appeal Board and which it has jurisdiction, this
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. Board does not' have any jilrisdiction of matters that pass to i-
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'1 13 ' J,, the.ppeal Board.
14 What is there before this Licensing Board now and
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16 A, give you a status other than a limited appearance 17 participdnt and a non-party?
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_ 18 (Counsel conferring.)
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7319 BW jl 3:1 1
JUDGE MILLER:
This colloquy reminds me of some-r-
(,N) 2 thing else, not that the Board does not pay any attention to 3
what is said or done on. appeal.
However, in this matter, I 4
seem to recall that the Intervenors -- I think NRDC gratui-5 tously pointed out that certain rulings were made in the 6
Comanche Peak proceeding and pointed out that the Chairman 7
there was the same person as the Chairman in this proceeding, 8
namely myself.
9 I think the record should clearly establish what 10 happened.
And in the Comanche Peak matter, the Board did rule 11 and did mention the rule being followed in the Clinch River 12 proceeding.
As a result of several unusual factors, I do not
(}
13 wish to characterize it.
And therefore, at this time, I am V
14 asking the reporter to incorporate as part of this record, 15 and to number continuously, with transcript numbers, the 16 following transcript pages from the Comanche Peak proceeding, 17 which I am handing to the reporter, which will be pages 18 number 3599 through page 3607 of the Comanche Peak proceeding.
19 And I am handing copies and making copies available So to the parties.
We will stop for a moment so this may be 21 done.
22 (Pause.)
23 24 p)
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3033 4
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2 MS. ELLIS:
True.
3 JUDGE MILLER:
Yes.
We do wish to move along, 4
as we told you, expeditiously, consistent with the develop-5 ment of a sound record, Ms. Ellis.
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MS. ELLIS:
All right.
There is one other a
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7 motion which has to do with -- directly with this matter,
.f8 which has to do with our motion to strike the prefiled J
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testimony of Mr. Schepple.
That was filed September 8th.
$j 10 JUDGE MILLER:
We've seen it.
2 3
11 Let me explain that situation, Ms. Ellis.
You 2
j 12 referred to the Clinch River -- where I am Chairman of that r-}3 Soard, and I know the matter you're referring to.
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MS. ELLIS:
Yes, sir.
2 E
15 JUDGE MILLER:
That Board ruled -- and other N
f 16 Boards have similarly ruled -- that an expert witness, A
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17 apart from certain minor exceptions, is not going to be I;
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as a witness pursuing further -- having two shots at the i
20 issues.
I 21 We just don't deem it to be fair.
It's con-i i
22 sistent with case law and with some cases, at least, in 23 the NRC practice.
That was the basis upon which we ruled
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7321 1
in the prohoaring conforonceo, arguments, motions, as well
-9 as the rest of it -- was required to make an election 3
whether he wanted to go forward with extensive prefiled 4
testimony, both individually and as a member of a board, 5
or to examine.
We let him have the choice.
He chose to j
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testify; and, therefore, the examination -- the interroga-N the cross-examination was conducted by -- they had 1
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So we indicated the rule whh:h we generally 10 folicw, that it can't be done both ways.
4 II Now -- is it Mr. Schepple 3
12 2
MR. SCHEi?LE:
Yes.
testified before.
Ncw we
-!W 3 JUDGE MILLER:
7 i
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were aware when leave was asked -- and leave has to be j"
for him to cross-examine.
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that his 16 D
the Board's belief -- we discussed it A
participation had, up to that point, been as a member of a
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5 18 panel; that he didn't present the preponderance, at any e
g rate, of the testimony given by that panel.
He was one of E
19 and he hadn't loomed 20 four or five -- whatever it was 21 j
that significantly.
-- was the 22 And, secondly -- equally important 23 i fact that the testimony of the witness, which had been
( 3 24 on rather -- I won't say suddenly necessarily -- but i,/
put without much notice, for reasons that we all understand --
25 ALDERSON REPORTING COMPANY,INC.
for Applicants and the a time when counsel 1
occurred at and hadn't had an opportunity
()
Staff did not know in advance It was technical testimony.
to prepare examination.
3 to Mr. Schepple We, therefore, granted leave 4
We asked 5
to conduct the technical cross-examination.
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fairly
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6 jhim, and he conducted, in our judgment
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That was the reason that i
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And that was consistent,
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f subsequent to that, apparently Mr.
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a member of a four-or five-z d
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significant, N
I7 man panel of substantial, II other issues here.
is the Board's belief, therefore, that Mr.
19 It now be permitted to testify 20 liSchepple probably should not the election of which way to go was made 21 further; that at the time that 22 I without the Board being a part of it
- arranged, cross-examination was 23 ' extensive,. even overnight, l ("h l
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I 24 l
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ALDERSON REPORTING COMP ANY, INC.
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now, having been the examiner, should remain in that
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the in formation available from the balance of the panel, l
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to adequately cover the point.
7
- But, (a), we're not certain, we're not trying to 8
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rule.
And, secondly, there should be an opportunity for i
k 10 lMr. Reynolds to review the matter and either -- if he con-E_
5 11 curs in their belief, we would delete that testimony, or if
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12 he wishes to either add another panel member or have someone z
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. 14 should have that choice, just as we gave the Clinch River 0
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ALDERSON REPORTING COMPANY, INC.
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1i MS. ELLIS:
One thing that had concerned us 2
and the primary reason for us filing the motica was that i
( )3 we had hoped that Mr. Walsh would be able to cross-examine 3
and we feel really in the panel regarding his rebuttal, 4
that probably the record would be better s
5 both instances n
6 served by having both Mr. Scheppele testify and Mr. Walsh
-7 cross-examine.
8 JUDGE MILLER:
Now wait a minute.
Aren't you 5
changing something on me a little bit?
G 10 MS. ELLIS:
Let me explain a little further.
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Y JUDGE MILLER:
Let me see if I understand you e.
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before you explain to me.
O.:
13 MS. ELLIS:
All righ t.
?-~I 3Lul4 JUDGE MILLER:
First of all, you move to u
15 the testimony of Mr. Scheppele on the grounds th at 2
strike
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I have just gone over.
17 talking that you had rather have d
Now you are
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18 Mr. Walsh cross-examine Mr. Scheppele?
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19 Cross-examine the entire panel.
5 MS. ELLIS:
JUDGE MILLER:
With Mr. Scheppele on the panel?
20 21 MS. ELLIS:
Yes, sir.
JUDGE MILLER:
Doesn't that seem a little 22 inconsistent to you?
How is he going to cross-examine if 23 24
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you succeed in your.. motion?
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testifying witness, first of all.
25 '
He is now a ALDERSON REPORTING COMPANY, INC.
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That's an obvious dif ficulty righ t there.
MS. ELLIS:
What we wanted to be sure was
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that there was consistency in the policy, if this indeed is 4
the policy.
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JUDGE MILLER:
Well, which policy do you want?
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6 I've given you the Clinch River policy th at you alluded R
7 to, and I've told you where that leads you.
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8 Then you spun me around.
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9 MR. REYNOLDS:
Your Honor, may I be heard?
10 JUDGE MILLER:
You may be heard.
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II MR. REYNOLDS :
Obviously, the Intervenor was 3
Y I2 looking for a ruling contrary to what the 3 card gave it
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I4 JUDGE MILLER:
Either that or it didn't trust
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Well, I doubt that, but I think a
1 17 it was a mousetrap that was laid and it sprung, and i
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i JUDGE MILLER:
Let's not go into personalities 19 n
20 now.
l 21 MR. REYNOL DS :
We would abide by the ruling l
22 l
of the Board either way, just so long as it's co ns is te nt l
23 l' and applied equally to Mr. Scheppele and Mr. Walsh.
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I think that has to be, yes.
0 25 MS. ELLIS:
This is our concern, too.
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0600 7326 1$
JUDGE MILLER:
We can't either have crosc-
[V'T 2 examination by one or the other under circumstances where 3
they are both witness and counsel, which we don't really 4
care much for.
We did permit it because of the circum-3 5
stances, the nature, before.
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Now let me confer with my Board members and j
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see which way they want to go.
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(.3ench conference.)
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JUDGE MILLER:
Does S taff have any position z-l c
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s II MS. ROTHS CRI LD :
No, we don't.
3 12 JUDGE MILLER:
In any event, the thing has now d
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exception has been enveloped by the major principle.
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M te s ti fying, so in that state of the record rather than 16
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put a nice point upon it, we'll deny your motion to strike 6
17 az Mr. Scheppele's testimony, which we otherwise would have 18
--w 19 but he then will be permitted to continue to testify.
j
- done, I don' t say anything about him continuing to 20 examine.
At least, he's going to have to get leave, and 21 there he's had a pretty good shot at it, but that's in the 22 23 future.
l I N -) 24 At any rate, he may continue to testify, l
25 '
prefiled testimony, and Mr. Walsh, if you want -- you are ALDERSON REPORTING COMPANY. INC.
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3606 1 l asking leave for Mr.
7327 Walsh to cross-examine the panel?
2 MS. ELLIS:
Yes, sir.
3 JUDGE MILLER:
It will probably be gran te d.
4 We would rather wait until they tes tify, but that will e
5 probably be granted.
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everybody.
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5 10 l MR. REYNOL DS :
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Would the Board so rule even if 5
II the Applicant supported CASE's motion?
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JUDGE MILLER:
Now wait a minute.
Whi ch 5
I f'-)13 C.tSE motion are you going to support?
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You j us t denied their motion.
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a JUDGE MILLER:
Yes.
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16 MR. REYNOL DS :
Would you deny it, even if we a
'l.j" 17 supported it?
in 18 JUDGE MILLER:
1 The motion to strike, probably.
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We think we're at a point now, had you asked leave of the O
Board on that position, that would have been denied.
21 We would have said, "Get some other examiner. "
22 Then we would have had the straight normal rule.
23 Since that didn't happen and the deposition is I~h
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ALDERSON REPORTING COMPANY. INC.
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7328 these testifying lawyors or lawyering 1l finish off with to look at it, and let's
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get on with it.
4 MS. ELLIS:
One further --
We will let everybody understand 5
JUDGE MILLER:
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We want these questions to be reasonable, focused, n
6 7l and in accordance with the rules of evidence and practice.
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9 MS. ELLIS:
Yes, sir.
One further thing for d
2 10 the record, I'd like to clarify --
II MS. ROTHS CHILD :
Mr. Chairman, before Ms. Ellis!
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N I2 continues, we need a set of those pictures that were 13 handed out with --
E I4 JUDGE MILLER:
You can borrow --
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15 MR. REYNOLDS :
Your set is not complete, sir.
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I0 MS. ELLIS:
The court reporter has w
set of all of them.
m 18 MR. REY NOLDS :
We can't take the court
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reporter's set.
20 MS. ELLIS:
We have copies of the pictures I'm sure they are 21 are attached to the testimony.
that not as good as the pictures, but they are the best copies 22 23 '
we could get.
ps
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Well, Counsel has a right to 4
25 l see the originals if they request, and they seem to be i
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ALDERSON REPORTING COMP ANY. INC.
4
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JUDGE MILLER:
What I was pointing out -- what you
()
2 were discussing, Ms. Finamore -- was the matters other than 3
those appealed matters which are pertaining and within the 4
exclusive jurisdiction at the moment of the Appeal Board, 5
certainly not anything within the jurisdiction of this Board.
I 6
The question now is if the contentions, remaining 7
contentions, of the Intervenors are withdrawn, there would 8
appear, then, to be no further contentions in this and future 9
aspects of the construction permit proceeding to which there 10 are contentions and as to which the Intervenors would remai.n 11 as parties.
They would seem to have the status of non-parties 12 before this Board.
('N 13 I am not sure if you had an opportunity fully to 14 answer that.
If you have, fine.
If you have anything further 15 that you wish to say, you may do so.
16 MS. FINAMORE:
I do not wish to repeat myself.
17 The only point I wanted to make is the one I have made 18 already.
19 JUDGE MILLER:
All right.
M (Board conferring.)
21 JUDGE MILLER:
The Board will rule, first of all, 22 that it will grant leave to the Intervenors in accordance 23 with their motion of June 21, 1983,to withdraw Contentions 1, 24 3, and 9 (c), 9 (f), and 9(g) from consideration at the July
-s 25 1983 construction permit evidentiary hearing or any future
jl 3:3 7330 1
in this construction permit proceeding.
That motion having been granted and the described
)
2 3
contentions having been dismissed, it would appear to the B ard, then, that the Intervenors no longer are parties to 4
5 this proceeding, to this construction permit proceeding, and 6
that the Intervenors will be dismissed as parties to the 7
construction permit proceeding.
8 The Intervenors' request to file a written statement,
9 in view of the fact that they have participated and have spent 10 considerable time and energy, is a matter that the Board both 11 appreciates and thinks should be both reflected in the record 12 and that a written statement would be helpful to the Board.
13 And leave is therefor granted to the Intervenors 14 to file such a written statement.
15 It does appear reasonable, and it has, I think, 16 been agreed to by counsel that it should be filed by July 5, 17 1983, which is the date for the filing of prefiled written 18 testimony, in order that there be no surprise or disadvantage 19 by any of the remaining parties.
4 20 So, leave is granted to file the written statement.
21 As to the nature of the statement, it will be construed as a 22 limited appearance statement, because we believe there is no 23 other method whereby such statements could be received and 24 accepted from a non-party and that the rules regarding parties 4
\\/
and limited appearance statements, whether oral or written, 25
ji 3:4 7331 1
are quite clear.
But they can be filed by non-parties, or one fm
( )
2 can become a party by filing only viable and admitted 3
contentions.
But there is no intermediate status.
4 However, as to the effect to be given -- again, 5
from our own regulations -- written limited appearance
??
6 statements or oral written limited appearance statements are 7
not evidence and are not to be treated as evidence.
Neverthe-8 less, they may well raise matters, questions, issues, if you 9
will, in that sense which the Board could request Applicants 10 and the Staff to consider,and also such matters could be 11 considered and addressed by the remaining parties of their 12 own volition.
(~
13 Considering the nature of the matters that are 14 brought to our attention because we are conducting a full 15 evidentiary hearing on a construction permit proceeding, 16 whereby it is not necessary to have the contention issue 17 method in lieu of pleadings filed in order for questions and 18 material matters of fact and even of law to be considered by 19 the Board.-- in fact, it is in that light that the Board has 20 indicated 17 areas of interest to it, and there could well 21
- be more in the future.
The occasion seems appropriate.
22 There are also, I think, two -- whatever the 23 number -- several question which the Board alluded to in its
[
24 partial initial decision as being appropriate for further l
,l.h l
25 delineation and consideration in the construction permit I
i i
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7332 ji 3:5 P ase of the proceeding, which is now what we are addressing.
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2 Those matters, likewise, may be addressed if the 3
Intervenors wish or any other matters that they wish to 4
present in the limited appearance statement.
5 The effect will be a matter that the Board will 6
give initial consideration to and would solicit the views of 7
both Applicants and Staff as to the addressing of whatever 8
matters may be raised by the Intervenors in the written 9
statements, given leave to file the written statement, which 10 will be treated as a limited appearance statement, but will be 11 Permitted fully to raise whatever material and relevant 12 matters it deems to be of concern.
f'}
13 And the date of July 5 for the filing will be G
14 imposed.
15 If there be any substantial and significant good 16 cause for extension, the Board would consider it.
i 17 We would, however, trust that the Intervenors, 18 having participated so fully, would be able to meet that date 19 so that we would not have any disadvantage to either the 20 parties or the Board in the upcoming July evidentiary 21 hearings.
22 There is one other matter that has been alluded to.
23 That is whether our order dismissing Intervenors as parties 24 to this or future construction permit proceedings should be
-)
t 25 without~ prejudice.
[
7333 jl 3:6 1
Let me say simply that the Board does not intend O
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2 to rule upon that matter.
We don't wish to speculate as to 3
what might or might not happen on the matters upon appeal.
4 Therefore, this ruling at this time is neither 5
with prejudice or without prejudice.
We will abide by what-6 ever is done by the Appeal Board in whatever decisions it 7
might make or this Board might make in the future'.
8 So, the dismissal as a' party of the Intervenors is 9
neither with prejudice nor without prejudice.
10 Now, before we get into the matters of the issues 11 and procedure to be followed at the July hearings, is there 12 anything further?
[h 13 These hearings start July the 18th; is that
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14 correct?
15 MR. EDGAR:
Yes.
16 JUDGE MILLER:
At Oak Ridge.
17 Before we get into the matters that we will be 18 taking up at that time, is there anything further with regard 19 to pending motions or matters that any of the parties wish to 20 bring the Board's attention?
21 We are about to go into the things that are set 22 forth in pages 4, et cetera, of the Applicants' response, 23 which goes into issues and Board questions, presentation of 24 witnesses, f~y
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ji 3:7 7334 1
probably the final matter to be considered.
O) iA/
2 Is there anything else that anyone wishes to bring s
4 3
up?
4 MR. EDGAR:
We have nothing.
5 MS. FINAMORE:
No, Your Honor.
6 MR. TURK:
Nothing.
7 JUDGE MILLER:
Is there any reason why we should 8
not proceed directly?
~
9 Do you need a recess for that, Mr. Edgar?
10 MR. EDGAR:
Not I, Your Honor.
11 JUDGE MILLER:
Anyone?
12
'(No response.)
(~')
13 JUDGE MILLER:
You may proceed.
\\,_/
14 MR. EDGAR:
I have two classes of things to 15 discuss.
16 I have some points concerning the subject matter.
17 And then, I have some rather mundane logistics questions 18 where I need some direction, or I would like to get direction 19 from the Board.
I will hold those until the last, if 20 possible.
21 As we have defined it, on page 4 and 5 of the 22 June 22nd response, our intention was to move forward, file 23 testimony which addresses the 17 Board questions and, in 24 addition, two major issues that were.noted in the partial
-w
's /.
25 initial decision and in which the Board has expressed interest r
ji 3:8 7335 1
in prior prehearing meetings.
,)
2 Those two issues are the question of whether y
3 hypothetical core disruptive accidents should be design basis 4
accidents.
And the second one is whether the HCDA analyses 5
for Clinch River are adequate.
6 We have integrated the responses to Board questions 7
into the logic of those two larger issues.
In other words, s
the Board questions are specific subsets of the larger issues.
9 We think it is clearly discernible and identifiable, 10 but those questions are part of a bigger picture.
11 We would intend to give the Board the full story, 12 if you will, on both of those major issues and explicitly
(^'T 13 address the -- explicitly address and identify the responses V
14 to the Board questions.
15 That is our proposal.
We would propose to present to witness panels sponsoring those pieces of testimony.
17 And our proposal on sequence, we have not discussed 18 with the Board.
But our thought was that the question of 19 whether an HCDA should be a DBA would be the first topic, 20 and then HCDA second, and then Board areas of interest relatinc 21 to emergency planning,1f you will, which are basically Board 22 Questions 7, 9, and then, finally, quality assurance, which is l
23 Board Questions 5 and 6.
24 Now, the first piece or element of testimony
/
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25 concerning whether the HCDA should be a DBA would also include I
7as6 jl 3:9 g
responses to Board Questions 2, 3,
4, 8,
13, 14, and 15.
()
The testimony on HCDA would cover, as well, Board 2
3 Questions 8, 11, 16, and 17.
4 Now, before Judge Linenberger does a count and 5
calls me for a missing number, you will see that that is not 6
the complete set of 17, but some of these are explicitly 7
addressed to the Staff.
8 In addition, however, some of these that I have g
identified are addressed only to the Staff.
But we think we 10 have something worthy of presentation on the subject, if you 11 will excuse the gratuitous addition of our position on the end 3 12 subject, we think we have got something worth saying.
("'S 13
, L) 14 15 16
' 17 4
2 18 19 20 21 22 23 24 O
(--)
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1 7337 4joyl 1
JUDGE MILLER:
Intervenors?
I realize your position
()
2 may be a little tenuous, but courtesy indicates that I should 3
call upon you.
4 (Laughter) 5 MS. FINAMORE:
We have nothing to add to the 6
statement of Applicant's counsel.
7 JUDGE MILLER: Staff?
8 MR. TURK:
I think the Staff is in agreement with I.
g the Applicant as to the issues that need to be addressed.
10 JUDGE MILLER:
The ones to be taken up by the Staff, 11 with the presentation or point of view by the Applicants as 12 indicated by Mr. Edgar.
Do you have those numbers at hand?
/h 13 Board questions, that is?
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14 MR. TURK:
Yes.
Just'one moment.
15 (Pause) 4 j
16 MR. TURK:
We don't really have a position yet as 17 to which Board questions should be addressed.first.
I think l
18 the Applicants are at a slight advantage here because they hav.
e 19 already integrated their Board questions into their pieces 30 of testimony.
The Staff will be presenting some Board 21 questions as part of the CDA and the DBA testimony.
Other 22 Board-questions will be responded to in separate pieces of M
testimony.
So I really cannot comment yet on the Applicant's i
24
_ proposed grouping of Board questions and testimony.
C)
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35 JUDGE MILLER:
When do you propose to do that?
4
7338 4
4 joy 2 g
MR. TURK : By the time we file our testimony, the
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P cture will be clear to us as to which issue should be i
2 3
addressed at which time.
4 JUDGE MILLER:
July 5, in other words.
5 MR. TURK:
That's right.
6 JUDGE MTLLER:
Anything further?
7 MR. TURK :
It is possible that the Applicants and 8
Staff may be able to discuss the matter about the time the 9
testimony is being filed, and perhaps then we can come to 10 the Board with a joint proposal as to the order of procedure.
11 JUDGE MILLER:
You do not have a lot of time from 12 the time that the proposed written testimony is filed and
~')
13 the Board starts reviewing it.
We will not have a lot of
[G 14 time to be meeting with you unless there would be something 16 unusual or highly significant.
Now, do I understand that you j
16 are indicating that that is necessary?
17 MR. TURK:
If the Board does wish an agreement as 18 to order of procedure, perhaps a brief ten-minute recess would 19 help the parties to discuss it and come to a joint-position.
20 JUDGE MILLER:
We do not require it at this time.
21 It could be. presented to the Board and the parties in written 22 form at some convenient time.
We are simply looking now at 23 the practicalities.
24 MR. EDGAR:
The only thing -- I think if Mr. Turk f3 i
).
25 and I got together, we could come up with a sequence that
7339 1
4 joy 3 g
made some logical sense to us, and the only thing that we woul i
)
want to be sure of when we present that to the Board, and it 2
3 is certainly not pressing us now, but if we know the sequence, 4
then we can schedule our witnesses' travel, you know, within 5
a day, and it is really not paining us at this point, so I 6
think we can come up with something fairly soon.
7 JUDGE MILLER:
All right.
We suggest, then, you 8
do that in writing because now we are simply trying to con-g serve resources, time, money and traveliand the like.
10 (Board conferring) 11 JUDGE MILLER:
Judge Linenberger has several 12 questions which aight have some impact upon your written
T 13 suggestions, so I will ask him now to make any suggestions (D
14 that would be helpful.
15 JUDGE LINENBERGER:
First off, Part 2 of the 16 Commission's regulations mandates certain topical areas which 17 respect to which a Board must make findings at the CP stage, 18 and it is not clear to me from what I have heard Mr. Turk say 19 or what I have read in Applicant's submittal of June 22 that t'
20 the umbrella of their proposed prefiled material covers all 21 of those matters.
22 If either of you have comments on that at this time, 23 I would. appreciate hearing them.
Let me go on and touch on 24 a couple of other points, though, before you speak to this.
'l
)
^'/
3 Relevant to that. point, Mr. Turk, there is your
7340 4 joy 4 1
letter of 3 June of this year to the Board transmitting a copy
)
2 of Applicant's analysis of seismic qualification of small 3
piping, and your letter indicates that the Staff review of 4
Applicant's analysis will be provided to the Board upon its 5
completion.
4 6
Now, that raises a question in the Board's mind.
7 Is that a topic that the Staff intends to address in its 8
prefiled material or to address without benefit of prefiling 9
during the hearing?
How do you propose to handle that one?
10 And then let me mention a third one here. I will 11 get them all on the table and then stop talking.
12 There is a concern that the Board has, and perhaps
()
13 it should have been or perhaps it should be included in the V
14 list of Board concerns, but let me tell you what it is because 15 I personally intend to probe this matter a bit at the hearing.
16 It has been represented by the Staff --.and if I 17 mischaracterize this, Mr. Turk, correct me -- that Applicant's 18 complete probabilistic risk assessment' analyses will in essenc e 19 not be ready for full Staff review and assessment probably 20 until sometime after the CP hearing has, as currently 21 envisioned, has concluded.
That leaves the Board with the 22 uneasy concern that it is just possible-that the results of 2
the probabilistic risk assessment might somehow place a cloud 24 over whatever conclusions Applicant and Staff might reach at
,a 25 this forthcoming' hearing with respect to core disruptive i
i
7341 4 joy 5 1
accidents.
I say it might be possible.
I just don't know.
(
)
2 So we could find ourselves in the position of 3
looking at incomplete information that in effect blesses 4
the prospect of excluding CDAs from consideration within the 5
DBA envelope, and lo and behold, sometime later the probabil-6 istic risk assessment cloud might wash some things out.
7 I lay this on the table as a concern of the Board 8
lest bringing it up at the hearing would in any way surprise 9
you.
There is no reason for surprise. I want you to be as 10 well-prepared as possible. So I will stop there and label it 11 as a concern and have it to Applicant and Staf f as to how they 12 wish to handle it.
You ca.n anticipate that if you do not
(
13 voluntarily get into it at the hearing, I will -- I may.
s 14 MR. EDGAR:
Judge Linenberger, I can respond to 15 several of the points you raised.
One one of them, my response, 16 really the Staff has to take the lead on that.
But taking 17 them in inverse order, the question of the timing of the PRA 18 and the possible effect of that on conclusions, we are 19 addressing that explicitly, that very question, in our testi-N many, and our people will be prepared to render their 21 opinions and judgments on that subject.
So I will advise 22 them that they are going to be probed and that that is a matte r 23 of interest and concern to the Board.
24 As for the seismic analysis of small piping, we M
the Applicants had not included that in our prefiled testimony
I 7342 4 joy 6 1
That has not been part of what we had perceived as matters of r%
(,),
2 interest. Certainly we have the people that can address it, 3
but we cannot speak for the Staf f on that question or the 4
status of the Staff review.
5 The final point, the consideration of topical areas l
6 as defined by the regulations.
Perhaps one thing that may 7
help here in ascribing the complete picture of what we intend 8
to identify for prefiling, we intend to have testimony 4
9 addressing the subject matter described at pages 4 and 5.
10 In addition, however, we intend to furnish with that an 11 exhibit list which provides our basis for the application and 12 the supporting information.
13 We will be ready to provide any witnesses that the 14 Board may feel would be necessary to answer questions.
If 15 the Board should have.something very specific in mind, 16 perhaps I could give them more specific responses. I want to 17 make sure I am responsive to the point.
But if there is some 18 particular thing in mind, we can be prepared to mobilize and 19 to address it.
20 MR. TURK :
Judge Linenberger, if I may, I would 21 like to respond also.
As the Applicants have done, let me 22 take your questions in reverse order.
The.first issue, then, 28 is whether the PRA will be completed before the CP hearing M
such that it could affect a decision as to whether.or not a O) 25 CP should be issued.
4 7343 Judge Linenberger is correct in restating my belief 4 joy 7 g
p(,)
that the PRA is not going to be finished on that kind of a time 2
frame.
It is not due for completion for some time, probably 3
4 a year or two, possibly after the CP is issued, if one is 5
issued.
That would be consistent with the regulations, which 6
require a PRA within two years of issuance of a CP.
7 We are prepared to address it in testimony, the 8
impact that the PRA might be expected-to have upon our g
determinations with respect to CDA analyses and the DBA 10 spectrum.
So we will address it in testimony.
And again, it 11 is our position as a matter of law that the PRA need not be 12 completed at this time.
N 13 The second issue is the seismic analysis of small (d
14 bore piping.
We have forwarded to the Board already the 15 Applicant's analysis.
The Staff has had a consultant looking 16 at it, at the question, and we have now received a consult-17 ant's report as of a day or two ago and we are capable of gg preparing testimony on the subject if the Board wishes to 19 have testimony to address the issue; otherwise, we would 20 simply submit our study or our conclusions in writing, and if 21 the Board wishes, we can then have it admitted as an exhibit a
to the proceeding.
Either way, we are prepared to have the 28 answers for the Board by the time the hearing commences.
24 The third question, then, _is the findings required 7s I'~')
25 by Commission regulation as a precondition to issuance of the
7344 fa E.4joySt l'
construction permit.
We do not intend to submit testimony N
2 on each and every matter which might conceivably be raised 3
by regulation.
We will introduce the SER into evidence,and i
4 the SER as an exhibit in the record could provide the eviden-5 tiary basis for whatever findings the Board needs to make on 6
the construction permit issuance.
7 The testimony that we would be prepared to file,
~
s then, vill only address the two big questions concerning 9
DBAs and CDAs, and the other Board questions which have been 10 specifically enumerated by the Board.
END 4 11 12 13
~
i 1
1 14 i
15 16 17 18 19 20
'21 22 23 84 gs 25
3 BWS,cyl 1
JUDGE LINENBERGER:
If I understood you correctly, O
2 then, the Staff's analysis of the -- en seismiA gualifications (j-3 will be available by the time the hearing commences.
Did,I 4
understand you correctly on that?
5 MR. TURK:
That is my expectation, yes.
6 JUDGE LINENBERGER:
If it is agreeable with the 7
Chairman, I should like to request that the Staff offer that 8
as an exhibit in the hearing.
~ '
9 JUDGE MILLER:
The Staff'would be prepared' to do 10 -
that, I take it?
11 MR. TURK:
Yes, we will.
,x 12 JUDGE MILLER:
Thank you'.
(
'/O 13 JUDGE LINENBERGER:
Mr. Edgar, with respect to D'
14 your comments about exhibits that?the Applicant might offer 15 that would cover the gamut of items relevant to the CP 16 decision, I think this is f.ine.
I should like, however, to 6
17 express the more than just a fond ' hope that these exhibit.s ;
L 2
18 will not say well, for our QA program. See the PSAR.
Or, 19 for meteorology, read the PSAR, c9 fo. whatever, read the PSAR.
20 I would hope thitt tie ex.t.u.ts or the listing df s
4.,
21
_ exhibits would somehow key specific areas of the exhibit to 22 specific issues.
N 23 Now, true, the Board can go to the'PSAR and the 24 Table of Contents and try to' find.what it is\\ looking for.
I.
(V
)
~
26 would like.to see things a little* nore exolicitly orcanized a'nd cross ;i s
referenced.
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.(
I
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i
o W5,sy2 7346 s
i 1
'MR. EDIAR: I think I have been on that train of thought for 2
t 2
awhile. I haven't oursued it cuite to that lengthc but that is a. legitimate 3
thing that we ought to do anyway, whether or not the Board reauests it. So ty,
's 4
I think we can develoo a cross referencing schene. He hwe already under-0.
b i.45, 5
taken that in regard to the soecific Board questions.
I'm not acologizing d
u 6
for it.
I am stating that the testimony we are going to file is cuite ccm-3 7
prehensive.
'Ib find the Hoard questions in there requires a. sort. We are 8
going to orovide ytdwith a cover sheet transmitting it that.says, Board 1
A
.' s J
9 question X corresconds to Q & A, X through Z. We also intend to give defin-
~
ition of..our exhibits. list and final group of witnesses so that if
- s-,
- 10 l1 it there were any items that would fall out of that, we would 12 be apprised.
O 13 The other thing that I would like to raise, and i
t 14 it's getting'down in the grass on logistics, but we do have 15 in the prior record of the LWA proceedings, there are a number 16 of exhibits in that prior record that are basic documents 17 that have a relationship to the testimony, and the best 18 example that comes to my mind now is the Ward 0085 document,
~
19 which is the pipe break report, which was an exhibit.
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F f'
We intend to offer that report, and I guess I 1
21 would like,to get the Board's advice.
My proposed approach t%
G 22 was gesing,to be to incorporate selected exhibits into this
,c 23 recordthy reference, and if that can be a matter of inconven-1&
4
\\l ri 4
34 ience, we' can bring the new document into this record n-
~
25 separately if the--Board wishes, but I would like to have some t
3
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r 9
w w
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BW5,sy3 7347 1
advice as to whether you want separate introductions and a
2 authentication in admission of documents which would be 3
common to the prior record and relevant to this testimony.
4 (Board conferring.)
5 JUDGE MILLER:
Let me suggest this.
There would 6
not be any. problem, as the Board sees it, with foundation 7
proof, sponsored witnesses and the like for exhibits which 8
had been previously admitted in the LWA-1 or 2 phase of the 8
proceedings.
10 However, this Board -- and I am sure, the appeal 11
. board -- do not like to have to chase around when you incor-12 porate by reference. So we would request that it would be I
(O.
13 similar-to taking official notice or judicial notice.
We V
14 will take it appropriately and then you have to show the 15 exhibit.
But you have to show us what we are taking notice 16 of for the record.
17 MR. EDGAR:
We will do that.
18 JUDGE MILLER:
All right.
If we get into something 1
19 extremely bulky, then we could make some kind of a simplified M
ruling.
21 MR. TURK:
May I comment onthe last question of 22
.Mr.
Edgar's?
We don't intend to refile as exhibits certain 23 documents which are already in the record such as the Final 24 Environmental Statement,and the Final Environmental Statement f, ni 26 Supplement.
They are in the record, as the Board is' aware.
7348 BW5,3y4 1
The.LWA-1 proceeding was part of the overall CP proceeding,
,q f
A.,/
2 and it's our position that there is no need to refile documents ;
3 which have already been admitted before the Board.
4 JUDGE MILLER:
I'm not sure we agree with you on 5
that.
We're willing to take such measures as will keep us 6
from having to spend unnecessary time and resources, but 7
nevertheless, this is a construction permit hearing.
You will
(
8 repall that the LWA portion is on appeal, so we are not going 9
to have incorporation by reference.
I tink you had better be i
10 prepared to hand out -- we might restrict the number of 1
11 copies or something like that, simply as a matter of exercisinc-12 discretion, but we do not anticipate counsel's offering m
[N J
]
13 Exhibits X, Y,
Z that were in the LWA and somebody says gee, 14 what is that, and nobody knows.
i 15 The rule of reason will apply, but it may be that 16 you can appropriately make one copy.
Everybody recognizes 17 it, and something like that.
We can give you ad hoc oppor-18 tunity, but generally speaking, this is an independent 19 proceeding and we expect to have the documents and exhibits 20 appropriately in hand.
21 MR. EDGAR:
I have one ot.ar point where I need 22 guidance.
As the Board well knows, the PSAR in this proceedinc l
23 is extremely voluminous.
My sympathies lie with people who p-are on travel and are given 30 volumes of material.
We intend 24
\\
l 25 to produce and offer, in accordance with the Rules of Practice,
~
=
7349 BWS,sy5 I
four sets.
If the Board were to.take four sets back, the b
\\d 2
plane would not get off the ground. There may be other 3
problems..
4 JUDGE MILLER:
What do you suggest?
5 MR. EDGAR:
My suggestion is what we will do is 8
bring four sets, get them marked and authenticated.
We would 4
propose that we leave one set in the hearing room with the 8
Board at all times for use in reference.
And then when the 8
hearing sessions are closed, we, the Applicants, would take 10 l
possession and accomplish the shipment for the Board back II to Bethesda of the four sets.
I JUDGE MILLER:
We would appreciate that.
13 MR. EDGAR:
I don't think we need four sets in l
%J I4 the hearing room on a daily basis.
5 JUDGE MILLER:
Your suggestion is fine and 16 appropriate.
JUDGE LINENBERGER:
One little bit of hopefully unnecessary fine-tuning on that, however, is that the Board 19 has run into situations similar to this where at the CP hearing, the PSAR consisted of 20-odd volumes in looseleaf 21 binders and an almost equivalent thickness of loose pages in 22 rubber b' ands.
That posed a problem.
MR. EDGAR:
I can assure you that there will be no i
8' rubber bands.
We understand that.
v y
One thing you should be' aware of that I.think is L
I I~
7350 BW5,sy6 1
going to be an aid to everybody is that before we introduce O
(,,/
2 it, what the Applicants are going to do is to pre-assign 3
Exhibit Number X and provide an exhibit list in advance with
~
4 good identification because I am very fearful of PSARs getting 5
out of order, so that at least we will know what the standard 6
form of reference is.
7 We will undertake that and try to get that to the 8
Board.
9 JUDGE MILLER:
We have noticed in the past, Mr.
10 Edgar, you have been very good about providing supplements, 11 which reduces considerably the size and bulk of lengthy i
12 exhibits, so we commend that practice.
(')'N 13 Before I forget, it might be a good idea also in 14 advance to get together a glossary of terms. We did find 15 that quite helpful before, and you may draw upon the glossary i
16 that is pre-existing and supplement it, if you like.
But it 17 would be helpful if all the parties could get together on 18 that and update perhaps.
i 19 MR. EDGAR:
We have that action underway.
We will 20 not have a-glossary by the 5th of July, but we will have it 21 there for the hearing.
3 22 JUDGE MILLER:
That's what I meant.
23 MR. TURK:
Mr. Edgar's comments about documents 34 raise a few extra questions in my mind, due to the fact that I 7,,s
( ')
25
_have personally not been involved in the prior phases of the
.v,,
7351 BW5,'sy7 1
proceeding.
My first question is how many copies of exhibits h
s_/
2 does the Board wish to have brought down to Oak Ridge, and how 3
many copies of testimony does the reporter like in this 4
proceeding?
5 JUDGE MILLER:
Mr. Edgar can give us a short 6
answer.
7 MR. EDGAR:
On exhibits, the reporter will need 8
four;on testimony, the reporter has accepted 10.
And then, 9
generally speaking, we bring a copy for everybody and cach 10 of the Board members, although if it is something like the
'11 PSAR, we do not bring 14 sets.
12 JUDGE MILLER:
That's right.
[ )g 13 MR. TURK:
One other question I have is whether 14 it might be possible for Applicants and Staff to stipulate to 15 admissibility of exhibits so there is no need to have authen-16 tication and sponsoring witnesses for them.
17 JUDGE MILLER:
As far as authentication is 18 concerned, sponsoring utnesses is probable, but the Board 19 must reserve the right to rule upon stipulations because 20 we do not want to stipulate away too much.- We will certainly 21 take into consideration the fact that there are stipulations, 22 and to the extent that they can conserve time and energey, M
fine, we encourage them.
But we reserve the right to rule.
24 Anything further?
-( s) 26 (No response.)
-BW5,sy8 7352 1
Since we are on an expedited schedule and M(_,/
2 approa'ching hearing, let me inquire first of all, is there 3
any objection from any party or counselto the Board causing s
4 to be requested to be served by all parties entitled to 5
receive copies of orders, a copy of the transcript of this 6
hearing in lieu of and to be considered as an order of the 7
Board, rather than to go through the matter of getting the 8
transcripts, writing orders and distributing it.
9 Is there any objection, irst of all, from anyone?
10 MR. EDGAR:
No objection.
11 MS. FINAMORE:
No objection.
12 JUDGE MILLER:
We would then request Applicants
(h 13 and the Staff to confer and obtain the procedures necessary Gl
'14 to see that all parties or persons entitled to receive copies 15 of orders are served with copies of the transcript of today.'s 16 proceeding, which will stand as the Board's order in regard 17 to the pend.ng motions and other matters covered by it.
18 We will request the reporter and the reporting 19 service to provide as many copics of the transcripts as may 20 be indicated by the Applicants and Staff counsel as being 21 requisite for this purpose of service.
22 MR. TURK:
Excuse me, Judge Miller, there's one u
other point I'd like to raice while we are here today.
24 JUDGE MILLER:
Go ahead.
25 MR. TURK:
As the Board might expect, the testimony W - e T
BW5,sy9 7353 1
we have prepared to date still addresses the contentions of r~s I
I
/
'b/
2 the Intervenors.
Those contentions have now been dismissed.
3 We will need to refocus the testimony to some degree to 4
eliminate references to contentions, to rephrase questions and 5
the like, and given the fact that testimony is now due to be 6
filed on Tuesday of next week, the Staff would appreciate 7
having an extra perhaps two days to permit it to restructure 8
the testimony a little bit.
9 JUDGE MILLER:
Any objection?
10 MS. PINAMORE:
We would request the same additional 11 time.
12 MR. TURK:
We would be more than willing to agree A
13 to that.
14 JUDGE MILLER:
We will extend -- we have an 18 intervening holiday. When is the Fourth, Monday?
16 MR. TURK:
Monday.
17 JUDGE MILLER:
Let's say, then, by Friday, which 18 will be the 8th of July, that all parties are requested --
19 given leave to extend the time in which to file their prefiled testimony to otherwise update the matter, in view of.the l
21 developments considering the withdrawal of contentions, and 22 that'the same time period is extended to the Intervenors to 23 make their written presentation.
24 rg Anything further?
! (
I 26 (No response.)
I
BW5,sy10 1
JUDGE ELLER:
And I take it the Applicants and
(~/
's
's, 2
the Staff would be caused to be served the transcript upon 3
the parties entitled to receive copies of Board orders.
4 MR. TURK:
Yes.
5 JUDGE MILLER:
Anything further?
6 Go ahead, Judge Linenberger.
7 JUDGE LINENBERGER:
My apologies, Mr. Chairman.
8
~
I had not anticipated this to'you, but I personally feel 8
it is appropriate to comment that the Board considers this 10 to be a very complex subject we are dealing with here with 11 respect to Clinch River.
The Board further considers that 12 the Intervenors to date have been served -- have served a very
[
')
13 valuable role certainly in stimulating the Board's thinking
%/
14 about many of the complexities of this proceeding.
And I 15 just wanted to make at least the personal observation that 16 this stimulation by Intervenors has been very much 17 appreciated.
18 JUDGE MLLER:
We all concur in that.
We know the 19 Intervenors, over a period of years, have made very valuable 20 contributions to this proceeding, and it is at come cost not 21 only in money but in energy and interest, and we thank you.
22 We will stand adjourned.
23 (Whereupon, at 10:49 a.m.,
the prehearing confer-24
,-g ence in the above-entitled matter was adjourned.)
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]
x_/
25 i
e
~
CERTIFICATE OF PROCEEDI':GS L.
2 Os V
This is to certify that the attached proceedings before the 3
NRC COMMISSION 4
In the matter of:
Conference with Counsel 3
Clinch River Breeder Reactor Plant Date of Proceeding:
Wednesday, 29 June 1983 Place of Proceeding:
Washington, D.C.
7 were held as herein appears, and that this is the original c
transcript for the file of the Commission.
9 10 Barbara Whitlock it Official Reporter - Typed 12
/
'13 P,
${
~
Officiad Reporter - Signature is 16 17 18 19 20 21 22 23 I
.k 23
\\
TAYLOE ASSOCIATES REGISTERED PROFESSIONAL -REPORTERS l
NORFOLK, VIRGINIA
-