ML20031D855
| ML20031D855 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 10/09/1981 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OLA, NUDOCS 8110140311 | |
| Download: ML20031D855 (55) | |
Text
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NCF'? M REGU_'ATORY CC E SSICN D
O BEFORE THE ATOMIC SAFETY AND LICENSING BOARD O
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WISCONSIN ELECTRIC POWER COMPA!IY POINT BEACH NUCLEAR PLANT DOCKET NOS. 50-266-OLA 50-301-OLA UNITS 1 AND 2 O
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79 1
MR. BARTH:
Mr. Chairman.
2 CHAIRMAN BLOCH:
Mr. Barth.
3 MR. BARTHs We sent the brief Wednesday to the O
4 Licensing Board regarding contentions 3 through 7.
5 CHAIRMAN BLOCH4 We received it this morning, and 6 I assure you that it will receive full consideration, and 7 that this Order will reflect our caref ul deliberations on 8 your arguments.
9 MR. CHURCHILL Judge Bloch, on that preliminary 10 matter, may I ask staff if any contentions were acceptable?
11 CHAIRMAN BLOCH4 We obviously have decided that a t 12 least one is acceptable, or we would not have admitted 13 Decade.
I prefer not to discuss in detail which 14 contentions, or how they will be admitted in the proceeding 15 since the Board does not have f ull agreement on that issue.
16 MR. BARTH:
Thank you.
17 CHAIRMAN BLCCH:
I wish to express appreciation 18 for the cooperation of the parties, both of whom have agreed 19 with minor qualification that the Board's Show Cause 20 Procedure on the resolution of Decade's concern about the 21 confidentiality of the Westinghouse Report.
22 I wish to make a new modification in the agenda 23 that was mailed to the parties on October 7.
First are O
- 2. there eny partiee thet ere not in receipt of that agenda 2 25 (No response.)
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1 In that case, I wish to strike I on the oroInd 2 that we do have Wisconsin Electric's response to Decade's
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3 particulariration of contentions, renumber II to be I, add a 4 II to number II concerning the acceptability of a five-day 5 response which Applicant has asked for in response to 6 Decade's filing concerning good cause for blocking the 7 demonstration pt Jram.
8 I also wish to add a number V concerning whether 9 or not the Board needs to prepar'4 at this time a Federal 10 Register notice giving notice that there will be a hearing 11 subject to subsequent cancellation depending on the 12 developments in this case.
13 I am now open to motions from the parties O
14 concerning f urther modification of the agenda.
15
- 55. FALK:
Mr. Hearing Examiner, could I ask you 16 to repeat your new number II?
17 CHAIRMAN BLOCH:
Sure.
We received this morning, 18 Ms. Falk, a filing by Wisconsin Power Company requesting 19 that it have five days to respond to whatever cause might be 20 shown by Decade after Wisconsin Power Company has filed its 21 response to the Board's question.
That is what I would add 22 to the agenda.
We will not decide the merits of that right 23 no w.
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24 MS. FALK:
Thank you for repeating this.
25 CHAIRMAN BLOCH:
Are there any other motions to e
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1 modify or add to the agenda?
2 3R. CHURCHILL:
Yes, I have a list of items I 3 thought might be necessary, if I can scan them real quick.
4 I want to talk a little bit more about the overall 5 schedule, not just the schedule for the sleeving 6 demonstration.
7 CHAIRMAN BLOCH:
If there is no objection, we can 8 add that.
I suppose we should introduce that before my new 9 number Y since it may be involved in that new number V.
We 10 will make my new number V VI.
11 ER. CHURCHILL:
I would also like to explain to 12 the Board and the other parties about a Motion for Summary 13 Disposition that Licensee filed yesterday and is being 14 hand-delivered to the Board and the other parties today.
15 CHAIRMAN BLOCH:
I am in receipt of that motion.
16 I guess I am reluctant to discuss it today, unless Ms. Falk 17 and the staf f feel tha t it ought to be discussed today.
18 MS. FALK As I no notice of what it says, or what 19 it will concern, I would object discussing it at this time.
20 CHAIRMAN BLOCH:
I chink, then, I need not hear 21 f rom sta ff.
I think that is appropriate since it was just l
22 filed today.
23 ER. CHURCHILL:
I did not mean to argue it'or
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24 discuss it.
I just wanted to inform the parties that it was 25 on its way in case any of the parties had not yet received Dd ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202; 554 2345
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1 it.
2 CHAIRMAN BLOCHs That is entirely appropriate.
3 Do you have other items to add, Mr. Churchill?
4 HR. CHURCHILLs I don't think so, but 5 miscellaneous items may pop up as we go through.
I will let 6 you know if I think of any.
7 CHAIRMAN BLOCHs I appreciate that.
If any 8 subjects we raise raise important issues that need to be 9 resolved, I would encourage any of the parties to suggest at 10 that time that it be added to the agenda.
11 The first item on the agenda involves Wisconsin 12 Electric 's schedule for responding to the Board's request 13 for information, and other matters.
Mr. Churchill, would
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14 you like to address th a t first?
15 MR. CHURCHILL Yes.
We are hopeful of filing 16 today the answer to the 19 questions that the Board 17 propounded in its Order of October 1,
I believe.
In fact, I i
18 hope to be able to hand-deliver those today.
They are not 19 quite ready, but depending on how much time we have this 20 af ternoon, we will be able to accomplish that.
21 CHAIRMAN BLOCHs The remainder of the agenda 22 ite m ?
23 MR. CHURCHILLs This morning I talked at sdme
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24 length with the people in Milwaukee about that.
We have 25 been saying in our motion, on or about November 11 is the O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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83 1 date that we need.
It turns out that that is exactly the
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2 date that we will need some kind of an authorization.
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The plant went down at 1:23 this morninc for (J
4 ref ueling, exactly as scheduled.
The steam generator work 5 actually starts, including opening up the manway, the S contamination, and so forth, on October 27.
Everything for 7 the sleeving program is scheduled to begin on November 11, 8 at which time the pressure test will take place.
9 At that time, if we do not yet have resolution of 10 this motion, we will have replug those six or fewer tubes 11 that we sleeved that also had exceeded the plugging limit 12 because we will then have to close up the steam generator, 13 replug the reactor cavity f or the hydrostatic testing, and 14 so on, a nd fuel loading.
15 So November 11, according to the schedule is the te last day that we have to avoid replugging the sleeved 17 tubes.
18 CHAIRMAN BLOCHs Does Decade wish to respond to 19 this rather narrow issue?
20 MS. FALKs Not at this time.
21 CHAIRMAN BLOCH:
Staff.
22 MR. BARTH:
I am not sure what the issue is to 23 respond to.
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24 CHAIRMAN BLOCH:
If you had any problems with the 25 representation concerning the feasibility of waiting until O
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1 November 11, or anything else that Applicant has just 2 stated.
3 MR. BARIH One moment, Your Honor.
4 MR. CHURCHILLs Judge Bloch, if I may add one 5 thing.
It would be convenient, extraordina rily convenient 6 to know by November 2 because that might save unplugging the 7 cold end of those tubes.
If we did not know by November 2, a probably what we would do is simply not unplug the cold end 9 of the tube, and let that wait until November 11, and then 10 o n November 11, after we have done anything, maybe take an 11 extra da y to go in a nd unplug the cold end of the tube.
12 Tha t is because we don 't want to unplug those, and then have 13 to plug them up again.
That just takes additional exposure O( /
14 and time.
15 That is not a matter of great urgency.
It is a 16 matter of convenience.
It would be nice if we could do 17 that.
I still remain with my November 11 date as the 18 cut-off date on the project.
19 CHAIRMAN BLOCH:
I trust, incidentally, that you 20 will file as soon as possible all the information you 21 anticipate needing to file, so that it may be possible for 22 you to waive a five-day response if we should decide that 23 you are entitled to one.
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24 MR. CHURCHILL Yes.
I would, if need be, waive 25 tha t five-day, but I might have to wait and see what the O
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85 1 other parties filed in their Show Cause filings first.
I 2 don 't, at this time, think we have any information 3 outstandinc, other than the 19 questions that the Board has tO 4 asked.
5 CHAIRMAN BLOCH:
Mr. Barth.
6 MR. BARTH:
Mr. Bloch, may I respond to the 7 previous comment of the Applicant?
8 The Applicant, I understood, proposed that if by 9 November 11 t her y ild not have authorization to sleeve tubes, 10 they would ping the tubes that had been sleeved and go back 11 up to po wer.
It is my understanding that to plug tubes up 12 *.o 18 perceitt of the toEal number of tubes is now 13 authorized, and we have no objection to going back up to 14 power on November 11 with plugged tubes.
15 CHAIRMAN BLOCH:
You said one thing that I did not 18 und erstand.
In Wisconsin Electric stated that there are 17 tubes which it sleeved and then plugged; I did not 18 understand that?
19 MR. CHURCHILL:
Yes, the tubes will definitely be 1
20 sleeved.
The question is whether or not we then would have 21 to plug the slee7ed tubes in order to come up to power.
22 CHAIRMAN BLOCH:
All right.
Staff is in agreement l
23 that the plugging of a sleeved tube is in compliance 'with I
24 the technical specification.
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25 MR. BARTH:
Yes, Your Honor.
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CHAIBMAN BLOCH:
Thank you.
b 2
The next item on the agenda is the acceptability 3 of the five-day response which Wisconsin Electric has asked 4 f or.
5 Ms. Falk?
6
'MS. FALKs At this point, Your Honor, I cannot say 7 that we are willing to agree to that, not that I don't think 8 the company should have opportunities to inform the 9 Commission of its position, but because of the trade secret 10 problem that is hanging over us, I am finding this 11 discussion of time schedules premature entirely because the 12 chances of us being able to meet them a ra very slim.
13 CHAIREAN BLOCH:
Ms. Falk, would you prefer that 14 we change the ordar of the agenda, and take that item up 15 next?
i 16 MS. FALK4 I think that it would make more sense, 17 Your Honor.
18 CHAIRHAN 3 LOCHS Is there any objection to our 19 doing that?
i 20 (No response.)
21 If there is no objection, I would like to ask for l
22 comments on agenda item number IV, which I do not believe I 23 need to read since it is in writing in front of each 'of
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24 you.
I would like Decade's response first, if I may.
25 MS. FALK On the Interlocutory Order?
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CHAIRMAN BLCCH:
No, item IV on the October 7 D*
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.s 2 agenda,semorandum states whether we should schedule a
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to discuss Decade's contentions concerning the 3 conference q
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'4 appropr,iateness of according confidential treatment to all
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5or part'of the Westinghoose report, and whether we should s3 6 devise a method for Decade to obtain access to the report 7 now for the purpose of arguing its contentioas now and in P preparing itr case in chief.
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9 MS. FALK I am not sure what memorandum you are s
x 10 reading' from.
Before when you asked if we all had a copy cf 1ENhe memorandum, I assumed it was your October 1st one.
k2 CHAIRMAN BLOCH:
No, I am sorry.
On October 7th,
'. K 13 I had sent to the parties a Memorandum and Order setting an O\\.
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13 agenda f or the October 9th conference call.
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MS. FALK I~am sorry I misunderstood that because 16 we have not-received that.
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17 CHAIRMAN BLOCHs I am also sorry.
1 18 What I would like you to comment on now, Ms. Falk, s'
19 is first whether you think it would be appropriate right now 20 to schedule 'a conf erence to discuss the issue of i'
21 confidentiality and, second, if in preparation f or that
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22 conference you don't think we should devise a method for you I' '
23 to immediately be able to see the report so that you'can O
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'ao r dout it= coa *1aeati 11*r-aa =o ** t the decision on con fidentiality, you can prepare
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25 pending w x k
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88 1 your arguments in this case.
2 MS. FALKs Is that presuming, M r. Hearing 3 Examiner, that there will not be a filing under the 4 procedures outlined in the NBC regulations by the company?
5 CHAIRMAN BLOCH Are you referring to the 6 requirement of sn affidsvit?
7 MS. FALK:
And arguments on why this document 8 meets the test outlined in those regula tion s.
9 CHAIRMAN BLOCH:
If I preempt Applicant's 10 opportunity, you have received, have you not, such an 11 affidavit?
12 MS. FALK:
I have not received such an affidavit.
13 CHAIRMAN BLOCHs The affidavit was received 14 clipped to the Point Beach Steam Generato' Sleeving Report.
15 If you will give me a moment, I can give you more 16 information about what that looks like, unless Mr. Churchill 17 can fill the gap.
18 MR. BARTH:
Mr. Chairman, the copy that the staff 19 received had an affidavit in front of the document which we 20 received from the Power Company.
They were attached to a 21 letter to Mr. Denton dated September 28.
So, at least, we 22 have the affidavit.
23 MR. CHURCHILL:
Mr. Bloch, it is my understanding, O
24 ve ia tructea t"= t the 1etter
=1a de etecaea t the 25 affidavit, and would be hand-delivered to Decade on lO ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W. WASHINGTON, D.C. 20024 (202) 554 2345
89 1 September 30th.
It was my understanding that it was, in 2 f ac t, hand-delivered, including the affidavit.
3 MS. FALK:
A WEPCO official handed me your C
4 cover-le tter, Mr. Churchill, but I did not receive an 5 affidavit.
6 CHAIRMAN BLOCH:
Would you examine the 7 cover-letter, Ms. Falk, to see whether it might'be 8 attached?
9 MS. FALK4 Surely, hang on ple a se.
10 (Pause.)
11 I do not see it a t this time, but I will continue 12 to look.
13 CHAIBMAN BLOCH4 The letter we have is dated n
su 14 September 29, attached to it is a letter to Mr. Denton from 15 C. W. Fay, and then a letter from Robert Weissman to Mr.
16 Denton, and then follows the text of the affidavit, which is 17 dated September 5, by Robert A. Weissman, Manager of 18 Regulatory and Legislative Affairs.
19 MS. FALK Obviously, Mr. Hearing Examiner, I 20 don 't know if we have this affidavit because of my filing, 21 as you indicate, we did not think we did.
I will once again i
22 check with our technical persons lo have been docketing 23 this information as it comes in, and verify whether dr not O
24 we heve this.
But to my xnow1 edge, we don t, otherwise I 25 would not have stated the things I said to you in our O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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2 I will recheck to make sure that our technical 3 persons do not have it.
4 MR. CHURCHILL:
Judge Bloch, may I simply point 5 out that on the cover letter, which WED I know did receive, 6 it does reference specifically the application pursuant to 7 Section 2.790, and says that it as well as the affidavit are 8 attached to the letter.
So even if by mischance they were 9 not attached, the letter did put WED on notice that they had to it.
But we have received no request from anybody for 11 missing copies.
12 CHAIRMAN BlOCHs Ms. Falk, my preliminary 13 examination of the affidavit suqqests that there may be 14 issues in it that you will wish to continue to press 15 concerning confidentiality.
.I 16 I realize that you have not seen it, but you could j
17 possibly comment knowledgeably about the discussion of the 18 Boa rd that that issue was a separate issue from whether or a19 not we can arrange for you to immediately examine it for 20 purposes of this case.
21 That is, we must decide whether or not that report 22 can be accorded confidential treatment, but it seems to me 23 that for purposes of preparation, it ought to be possible O
2 for ue to e1scuse the epecific terms of e protection order, 25 which of course would not prevent the Board from ordering O
V ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
91 1 the release of the inf ormation, if that is appropriate, or 2 possibly it be accepted in the case only the ground that it 3 he available f or public examination.
4 MS. FALK:
I understand what you are saying, Mr.
5 Hearing Examiner.
I think that would be a reasonable way to 6 proceed.
7 CHAIEEAN BLOCH:
In that case, have you specific 8 comments on the acceptability of the protective agreements 9 that have been submitted to you by Wisconsin Electric?
10 ME. FALK:
I would like to withhold comment on 11 that pending the Board's decision on what portions of the 12 document should or should not be disclosed.
13 CHAIREAN BLOCH:
Then you did not understand what 14 I just asked you.
15 In order for'you to be able to even argue 16 appropriately about what is confidential and what is not --
17 MS. FALK:
I think I understood your question or 18 you r sta tement.
What I am saying is, we would be willing to 19 agree to an order by yourself requiring to abide by a 20 confidentiality requirement pending resolution of the shared 21 sec ret issue..
22 CHAIRMAN BLOCH:
What I am asking, with the 23 und ersta nding that you are still reserving the righ t ' to move 24 for public disclosure, I really need to know whether the 25 protective agreement submitted to you by Applicant is O
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92 1 acceptable, or whether we need to fashion a protective order 2 that gives you some additional right, or has additional 3 requirements of some kind.
4 MS. FALK I believe, from my recollection of 5 those documents, that would be sufficient to protect us.
I 6 would like to review that once more, but at this time, if my 7 memory serves me correctly, it is sufficient.
8 CHAIRMAN BLOCH:
Unless you notif y me and the 9 other parties today, then I will expect tha t you will 10 execute that agreement today, and file it in thi,s case.
You 11 may, of course, include a cover letter explaining that it 12 will not waive any rights to challenge the appropriate 13 treatment of this document as confidential.
Is that 14 accepta b le, Ms. Falk?
15 MS. FALKr Certainly.
16 CHAIRMAN BLOCH:
Are there any comments f rom 17 Applicant?
18 MR. CHURCHILL 4 Judge Bloch, if I understand thi s,
19 this would indicate that I could today hand-deliver to Ms.
20 Falk this document, and she could then have it from now on 21 as it is needed f or the preparation of her case.
22 CHAIRMAN BLOCH4 That, of course, is providing 23 tha t she doesn't change her mind.
I think you should confer O
24 1tx her th1e efternoon ehout.hether she is in fect eigning 25 the agreement, and then I think that that is correct.
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MS. FALK:
I would suggest that we simultaneously 2 exchange documents, Mr. Churchill.
Is that agreeable to 3 you ?
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MR. CHURCHILL:
Yes, I would like to do that, and 5 I would like f.o do it this af ternoon.
I ha ve one minor 6 logistics problem on thic. though, and that is, you said, 7 Judge Bloch, that she might change her mind.
If she does, 8 then my alternative suggestion for at least being able to 9 get on with this part of the hearing wouldn't be made before 10 the conf erence call.
11 Mr. Falk, is it understood that we will, in fact, 12 exchange those docu men ts this afternoon, or is there a s
13 chance that you might not?
14 MS. FALK No, my understanding is that we will 15 exchange the documents.
The only hesitation tha t I have is 16 that I may be calling you earlier today to change some 17 wording in the agreement, which I don't think will be 18 necessary, but I wanted tc reserve that pending refreshing 19 my memory on exactly what the wording of that document is.
20 CHAIRMAN BLOCH:
Does that create problems, Mr.
21 Churchill?
22 MR. CHURCHILL:
Would you be available later, if 23 we happen to run into disagreement?
O 24 MS. FAtx:
Tes, if you ere te1xing to me.
25 MR. CHURCHILL:
I was talking to Judge Bloch.
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1 CHAIRMAN BLOCH:
You were talking to me.
2 I would he, I would like the reporter to be 3 identified f or the record, and then I would like to know if 4 it would be possible for the reporter, or someone else from 5 the reporting firm to be available at 3:30 this af ternoon if 6 we need to have another conference call.
7 THE REPORTER:
Yes, Judge Bloch, I will be 8 available at any time this afternoon.
9 CHAIRMAN BLOCH:
Your name please?
10 THE REPORTER:
Patricia Minson.
11 CHAIRMAN BLOCH:
Thank you.
I am sorry we did not 12 introduce you to the parties earlier.
13 Then we will proces.2 oc the basis that we expect 14 not to have a further call this afternoon.
Mrs. Minson, 15 unless we call, we won 't have one, but you will be standing 16 by at the number you are at now in case.
17 THE REPORTER:
I will.
18 CHAIRMAN BLOCH:
I appreciate tha t..
19 I would like to comment a bit on the 20 confidentiality issue.
I would like to ask if thethe staff 21 has comments on what has been arranged?
22 MR. BARTH:
It is agreeable to us, Mr. Chairman.
23 CHAIRMAN BLOCH4 I would like to comment briefly
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24 on the confidentiality issue.
My own examination of the 25 af fidavit finds tha t it is better than many that are O
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1 submitted for this purpose.
The controlling law seems to be V
2 A L." 3 3 -2 7, Wolf Creek Nuclear Generating Station Unit No.
1, 3 and the only issue that concerns me is that I think the 4 Board ought to have a little bit more information about two 5 matters af fecting possible confjdentialty.
One is the 6 extent to which the parts of this process a re unusual a nd, 7 therefora, specially valuable to Westinghouse; and second is 8 some representation as to the market which is affected by 9 the release of this information, that is how they would be to harmed by the release of some of this information.
11 In addition, I would like to know from Wisconsin 12 Electric whether there is some form of filing that they can 13 make, possibly a deleted filing, or a substitute public 14 filing that will make as much understandable as possible to 15 the public, so that our bases for our decision in this case 16 will be geared as much as possible to public scrutiny.
17 Does Applicant have comments on what I have just 18 remarked ?
19 MR. CHURCHILL On yo ur la tter point, we will 20 examine tha t question with Westinghouse.
I can't answer 21 that at the moment.
22 CHAIRMAN BLOCH:
I am sorry, but I don't 23 understand how it is not possible to have some degree to
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24 comment on the latter point.
You have indicated with 25 brackets the portions of the report which are confidential AU ALDERSON REPORTING COMPANY,INC, 40C VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-234*
96 1 for stated reasons.
It seems to me that at a minimum yoo 2 should release the document without brackets.
3 MR. CHURCHILL Yes, we definitely could rele.se 4 them without the brackets.
I just recall that there was a 5 fair amount of brackets.
6 CHAIRMAN BLCCHs Yes, there are.
Therefore, I did 7 ask you to go beyond that.
But it seems to me that at a 8 minimum you ought tc be able to satisfy that requirement.
9 Has a deleted copy been filed for the public 10 document room?
11 MR. CHURCHILL:
No, it has not.
12 CHAIRMAN BLOCH:
I think we should require at 13 least t' a t.
14 Are there any comments on the structure of the 15 conference on confidentiality.
Could I have some kind of a 16 com' ent on that?
17 MS. FALKs I have one further point.
18 CHAIRMAN BLOCH:
Sure.
19 MS. FALK If Mr. Churchill could also, when he 20 serves us this af ternoon, assuming that that is what 21 happens, which this copy of the report, if he could also 22 attach a copy of the affidavit that was apparently filed in 23 the event that our records still do not disclose that we O
24heve the t2 25 MR. CH'JRCHILL:
Certainly, I will be happy to.
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1 will do that in any event.
2 MS. FALK:
Thank you.
3 MR. BARTH:
Mr. Chairman, I hope you all 4 understa nd that the Commission, pursuant to 10 CFR 7.790, is 5 taking a look at the Westinghouse document to determine 6 itself whether or not this is information which proprietary, 7 and should be held proprietary.
8 That determination will be made within the r. ext Btwo weeks.
We are examining the document inch by inch to 10 determine what it says.
11 CHAIRMAN BLOCH:
Mr. Barth, do you interpret that 12 as concurrant jiirisdiction on this issue, or exclusive 13 jurisdiction?
14 HR. BARTH:
I. don 't think the Licensing Board has 15 any authority at this point to make that kind of a 16 determination, sir.
17 CHAIRMAN BLOCH:
I think we should probably have a 18 prehearing brief concerning that.
I think it is arguable 19 that it is incidental to the adjudicative authority of the 20 Boa rd.
If we schedule a conference for this purpose,, I 21 think we will need briefs to cover that point.
22 Ms. Falk.
23 MS. FALK4 It is apparent from th e filings ~ tha t
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24 they do dispute this question.
It is our position that the 25 Board does have this authority under the regulations, and O
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1 under its own authori.y, to preside over this matter.
"s 2 Certainly, if the Board wants brief s on this, we will 3 c mply.
4 CHAIRMAN ELOCH:
I also was asring for a 5 sug;estion of a convenient date for this subject.
Since it 6 is going to affect whether or not we are going to receive 7 these documents into th e record, I think there is some 8 urgency on this matter also.
9 MS. FALK:
I would agree with that.
10 CHAIRMAN BLOCH:
Would you like to suggest a date, 11 Ms. Falk ?
12 MS. FALK I am sorry, I did not hear your last 13 question.
14 CHAIRMAN BLOCHs I would like a date.
15 MS. FALKs I would propose ten days.
16 CHAIRMAN BLOCH:
You are suggesting that we have a 17 conference on the 19th, is that correct?
18 MS. F3LK:
Yes.
19 MR. BARTH:
Mr. Chairman, I am a bit lost as to 20 ten days for what, a conference on what, Your Honor?
21 CHAIRMAN BLOCH:
On the extent to which the Board 22 is willing to receive this document with the reservation of a; con fiden tiality that has been made by Wisconsin Electric.
(])
24 MR. BARTH:
My understandin was that Ms. Falk was 25 going to sign a paper from the Power Company this ALDERSON RE*ORTING COMPANY,INC.
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99 1 af ternoon.-
2 CHAIRMAN BLCCH:
She is going to do that for the 3 purpose of receiving and examining the document.
But she is 4 still contesting the right of Westinghouse to get 5 proprietary treatment for the document it this proceeding.
6 As I understand the Wolf Creek precendent, it is a right she 7 has.
8 Es. CHURCHILL:
Judge Bloch, as I understand where 9 we are now, she will be receiving this document so that we 10 can proceed with the various motions, and such, that are 11 before you, and so she can provide her answers under the 12 Show Cause filings, and whatever else is necessary.
f 13 I think, as I understand it again, Decade is 14 contesting whether or not this information should be 15 withheld from public exposure, but it does not, at least at 16 this moment, affect the proceedings of this hearing.
The 17 Board already has on file, and I think in the docket, the 18 proprie tary documen t.
It just has not been released to th e 19 public document room.
20 CHAIRMAN BLOCH:
Mr. Churchill, my concern is only 21 the following, and that is, that there may not be an exact 22 congruity between the right to release the document under 23 the Freedom of Information Act, and the standard govdrning O
24 nether oc aot aocu=eate =ust he = ae vun11c nea re11ea oa 25 in our proceedings.
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1 If you were willing to stipulate tha t we would be 2 able to release the document, if our balancing of the public 3 interest saggests that it should be released, or portions of 4 it should be released, then we would have no problem.
But 5 if there is a chance that the standards are in fact ddifferent, then we could have a problem in relying on a 7 document which we can't later release.
8 MR. CHURCHILL:
I think we could do that subject 9 to appeal.
10 CHAIRMAN BLOCH:
You would have that right, and I 11 would not order the document released until after appeal was 12 heard.
In fact, I think there is precedent "or such an 13 iss ue.
14 MR. BARTH Mr. Chairman, I am bothered b.
his.
15 There have been numerous occasions in which proprietary or 16 secret information has been the subject of a hearing, and 17 the hearing goes on, the decision is made, the company is 18 granted a license or not granted a license.
The security 19 issue in Diablo Canyon is one that comes to mind in which in 20 camera hea rings were held.
In camera.heatings have been 21 held in other places.
22 I think that the resolution by th e staf f, and 23 Licensing Board ultima tely, as to whether the Westinghouse O
24 accu = eat 1 oc is a e oroarieteer aoes aot errect the etter 25 tha t we are discussing today.
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I think under Section 2.718(e), the Licensing 2 Board, yourself and the members, have the authority to issue 3 an order requiring that the Westinghouse document not be 4 disposed of pending the resolution by the staff and the 5 Board as to whether or not it is proprietary.
6 This preserves the right of Wisconsin 7 Environmental Decade, it keeps the information from getting 8out in the public, and I think it provides for an orderly 9 procedure by which you could resolve this matter.
I don't 10 think we need to hold ar.ything up whether this is or is not 11 proprietary.
I think you can cover that with your authority 12 to regulate the conduct of the proceedings.
13 CHAIRMAN BLOCH:
I think the Applicant has agreed 14 to the Board 's indication that we can proceed, and decide 15 the other issues separately.
16 Ms. Falk, do you have a problem with that?
17 MS. FALK What other issues are you talking 18 about, M r.
Hearing Examiner?
19 CHAIRMAN BLOCH:
We are still talking about the l
20 confidentiality, and Mr. Barth has just addressed that.
21 MS. FALK:
I mean, what other issues?
22 CHAIRMAN BLOCH:
The merits of the case.
I 23 MS. FALK Is tha t what you had in mind wh4n you O
24 eia otner 1===e
- enet 1=
nere 1 co#1==ea-25 CHAIRMAN BLOCH:
Yes.
The issue of public relea se O
ALDERSoN REPORTING COMPANY,INC.
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102 1 of the dCcument is an important one the Board will have to 2 determine, but the resolution of that issue can proceed on a 3 separate basis from the resolution of the merits of the 4 case.
5 MS. FALK:
Presuming it is resolved in a' timely 6 manner.
7 CHAIRMAN BLOCH:
I would undertake to assure you 8 tha t we would do tha t.
9 The next matter on the agenda is staff schedule.
10 Staff has already responded to the particulariza tion of the 11 contentions, so we only need to know the schedule for the 12 W estinghouse report.
13 MR. BARTH:
Mr. Chairman, this involves six 14 branches of technical expertise in NRR.
The pec;1c have a 15 great deal of other work to do at the present time. We have 16 not been able to arrive at a time schedule by which this 17 could be resolved.
We cannot at this time provide you with 18 dates by which NRR will be through with their safety 19 evaluation f or a license amendment which is applied for.
20 CHAIRMAN BLOCH:
In light of that problem, Mr.
21 Barth, if it is not feasible for the demonstration to be 22 authorized, do you see any way of solving that problem?
23 MR. TREBYs One of the problems with this O
24 demonst=etion pro 3ect is tset the en1y epp11cetion pending 25 before the Commission staf oc this time is the sleeving of ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
103 O
1 a thousand, or however many, steam generato r tubes.
V, 2
Ihe demonstration project is a separate matter 3 where another application has to be filed with the staff, or Os 4 Applican t or Licensee needs to indicate to the staff that 5 they are willing to modify the application which is 6 presently pending before us.
7 MR. CHURCHILL:
Judge Bloch.
8 CHAIRMAN BLOCHs Mr. Churchill, I would 9 respectf ully disagree with that position.
All that we are 10 asking here for is a little, very limited piece of authority 11 that we have already asked for in our amendment request of 12 July 2nd.
13 It is no different and exactly analogous to a 14 Board in an operating license hearing authorizing and acting 15 on a motion for fuel loadingc or maybe low power testing, 16 because these are lesser included authorization in the 17 application that is pending before the Board.
It does not 18 require a new application to the NRC or an amendment of the 19 existing application to do that.
20 The Board has jurisdiction over the application 21 amendment that is now pending, and what we are asking the 22 Board for is some early authorization of a small piece of 23 that.
O 24 c"^ta"^" 8 toc"=
"r-churca111-I ^ ve ao acob1e=
25 with the Board proceeding on that basis.
My concern is that ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 all we will do is issue a directive that it is permissible 2 f or that demonstra tion prog ram to go forward, if it should 3 be appropriate to make that Grder.
Then I take it that the 4 actual license must be issued by the Director of NRR who may 5 feel that ha has to have a staf f report.
6 Do you see that as a problem, Mr. Churchill?
7 MR. CHURCHILL:
I agree wi th that exactly, that is 8 Correct.
9 CHAIRMAN BLOCH:
Mr. Treby, is it possible, given to the press of time, that the legal counsel for the Commission 11 could persuade staff that it is able to treat this 12 application as being, in fact, an application, first, for 13 interim relief of the nature which was discussed and, 14 second, for full relief.- Therefore, there could be 15 consideration of this demonstration program as a separate 16 matter?
17 MR. TREBY:
Staff counsel will consider that.
I 18 am not sure that we can give you an opinion right at this 19 moment.
20 CHAIRMAN BLOCH:
M r. Treby, I am afraid I don't 21 see the problem.
I think what you are suggesting is that 22 Applicant should take the papers that have already been 23 filed, and set up a separate paper that contains information h
24 that is already in our records.
25 Now if it is necessary f or the staff to process 0J ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554-2345
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1 it, I suggest that Wisconsin Electric would try to do that.
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2 But it doesn't seem to me that it would be necessary to do 3 tha t.
Do you have a comment on that?
4 MR. TRESY.
To put this in perspective, what we 5 have here is, we have a license which provides that there
- vill be no tubes sleeved, so that to operate with only one 7 tube sleeved requires s license.
The amendment before us is 8 f or all of them.
9 What they are saying is tha t they would like to do 10 on a demonstration basis a lesser number, such as six, or 11 whatever number the licensee has in mind.
12 MR. CHURCHILL:
Excuse me, maybe I could clarify 13 tha t.
14 That is not exactly what the amendment says.
The 15 amendment is really quite simple.
Where the tech spec now 16 says tha t if tube exceeds the pluqqing limit, it must be 17 plugged.
The amendment simply says that if the plugging 18 limit is exceeded, the tube should be plugged or repaired.
19 It doesn't say anything about how many tubes, or 20 all tubes, or anything like that.
It is just giving the 21 licensee the option to either repair by sleeving or plug a 22 degraded tube.
In that respect, the amendment itself just 23 does not define the scope of it.
t) 24 Ihe reason we called it a limited, lesser 25 authorization is because if the amendment as granted were O
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1 issued, or as requested were authorized, then we could go V}
2 ahead an' do some more.
What we are saying is that we don't 3 van t to do more at this time, we want to limit it to the 4 small amount in the demonstration for the purpose of being 5 able to obtain interim relief on a short-te rm basis.
6 CHAIRMAN BLOCH:
Mr. Treby, I would appreciate if 7 the staf f would file wi th the Board by the close of business 8 Tuesday a letter stating whether or not the staff is willing 9 to go ahead and process the application limited to the 10 demonstration program proposed by the a pplican t.
Would th a t 11 be acceptable, Mr. Treby?
12 MR. TREBYa Let me see if I understand wha t you 13 are asking for.
You are asking for a statement as to 14 whether or not the staff is willing to go forward with just 15 the demonstration program ?
18 CHAIRMAN BLOCH:
Yes.
17 MR. TREBY:
All right, we will su bmit something by 18 the close of business Tuesday.
19 CHAIRMAN BLOCH:
All right, and if you could have 20 tha t served on the parties by expeditious manner that would 21 be helpful.
22 MS. FALK:
Your Honor, does that presume that that 23 question would have been answered presuming that the' Board,
(])
24 af ter deciding the merits of the demonstration, gives its 25 approval?
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1 CHAI3HAN BLOCH:
You see, they have to make a 2 separate review.
3 MS. FALK I understand that.
gg G
4 CHAIRMAN BLOCH:
Whether or not we approve it, 5 their approval also would be necessary.
You can imagine 6 that if we reject it and they approve it, in which case 7 there would be no demonstration program; and if they reject 8 it and we approve it, in that case there would be no 9 demonstration program.
It wou'.d only occur if both agreed 10 tha t there ought to be a demonstration program.
11 MS. FALKs What I am saying is, which one of those 121s coming first in your mind, the board 's action or the 13 staff 's?
(~D) 14 MR. B ARTH:-
May I make a comment before the 15 Boa rd 's commits itself.
16 CHAIBMAN BLOCH:
Please do, Mr. Barth.
17 MR. BARTH:
If we assume for purposes of argument 18 here that the Licensing Board and 13R agree to perceive the 19 papers as the lesser within the greater, and proceed to 20 process a request to sleeve twelve tubes that are degraded, 21 that is wall thickness is less than 40 percent --
22 CHAIRMAN BLOCH:
I don't think that is quite 23 right, Mr. Barth.
I think that in fact only six of them
()
24 will have wall thickness of less than 30 pe rcen t, and the 25 others will not have reached that stage yet.
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MR. BARTHs An amendment for the six.
If we make
{)
2 assumptions, sir, and if we assume that the Licensing Board 3 will issue an order admitting one contention, at least one, 4 there is going to hava to be a hearing on that contention 5 bef ore anything is done to go back up to power.
6 You are coing to have to have some kind of a 7 saf ety analysis, and some kind of an environmental review, 8 the depth of which is not clear.
The Licen sing Board is 9 going to have to have some kind of a hearing prior to the 10 authorization to go back up to power.
11 So we understand that if the Licensing Board and 12 NRR agree to go ahead on the six as part of the entire 13 gro up, you are still going to have to have the hearing.
14 CHAIRMAN BLOCH:
I think you think we need a 15 hearing whether or not a decision is possible on the Order 16 to Show Cause, or on the Summary Judgment Motion that has 17 been filed?
18 MR. BARTH4 We can't have summary judgments of a 19 contention which is not in the case.
So, let us put that 20 aside for the moment.
21 My understar. ing was that the Licensing Board has 22 decided, although they 'ill not come out with which one, 23 t h a t one of these contentions is valid.
If that is so, that
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24 has to be resolved before a license amendme nt can be 25 issued.
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1 CHAIRMAN BLOCH:
But it could be resolved either 2 in a Show Cause Order that has been agreed to by both of the g-3 private parties, or it could be resolved in a Motion for V) 4 Summary Judgment, couldn't it?
5 Actually, I am exploring this issue because it is 6 directly related to the matter that I expressed some 7 uncertainty about by putting it on the agenda, which was 8 whether we shculd notice a hearing immediately.
9 Do you have a comment, Mr. Parth, on whether there 10 is strictly necessary a public hearing on this, or whether 11 other routes could possibly solve the mat ter without one?
12 MR. BARTH:
If Environmental Decade has a valid 10 con tentien, it is certainly entitled to a hearing on it i4 before the license amendment is issued.
15 CHAIRMAN BLOCH:
Does Wisconsin Electric have a 16 comment on tha t?
17 MR. CHURCHILLs Yes.
As far as the Motion for 18 Summary Disposition goes, that would go to any contentions 19 tha t were admitted.
With respect to the demonstration 20 program, and if in fact the Motion for Summary Disposition 21 were granted in Licensee's favor, that in itself takes care 22 of it.
There would not have to be any evidentiary 23 presenta tion because there would not be any material' facts
()
24 on which there is a real issue.
25 The other route being taken,- which is in fact in O
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110 1 parallel, is our Motion under which you have suggested a 2 Show Cause proceeding and which the other parties agreed 3 to.
4 ER. BARTH:
Staff has not agreed to it.
5 MS. FALK:
I have not even seen the Motion for 6 Summary Judgment yet.
7 CHAIRMAN BLOCH:
No, it was a Motion to Show 8 Cause, the suggestion that we have a Show Cause proceeding 9 that I believe Mr. Churchill was alluding to.
Ms. Falk, you 10 did agree to that, didn't you?
11 MS. FALK Right.
Mr. Hearing Examiner, I don't 12 mean to get off the track now, but I had originally asked 13 the question which got us on this track of which decision 14 comes first, the Board's or the staff's.
15 CHAIRMAN BLOCH4 I think the answer that it is 18 posaible that we would not have the staf f's decision at th e 17 time tha t we reach our decision, and I take it that it is a 18 problem for you?
19 MS. FALK Yes.
It doesn't make sense, and I 20 d on ' t think it is a rational way to proceed from anybody's 21 standpoint, not knowing where the decision-making lies, and 22 in which order we need to present our case.
23 CHAIRMAN BLOCH:
Ms. Falk, I don't understand Ov 24 that.
Why doesn't it make sense to have a simultaneous 25 decision by us based on both on the questions the Beard has O
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/"T 1 asked and on whatever discovery you ob tain, as well as the V
2 staff going forwar d independently in a parallel track?
l 3
Is there anything in our rules or regulations, or 4 cases that prevent us from doing it that way?
5 MS. FALK:
Because at this point the Decade has no 6 opportunity to present the staff its position.
We have 7 stated our position on why we think the interim relief 8 should not be granted to the Board, but we have not stated 9 so to the staff.
10 CHAIRMAN BLOCHs Mr. Barth, do you agree that 11 Decade has that right to present its position *to the staff?
12 MR. BARTHz Mr. Bloch, I am still bothered as to 13 where we are.
If you admit a contention, these people have C,'
14 a right to a hearing on the contention, and the Applicant 15 under the regulations has the burden of proof to prove the 16 case.
17 Once you admit the contention, you want to 18 consider the Power Company 's motion for Summary Disposition 19 and find that it is properly done.
Environmental Decade 20 cannot properly controvert it as required by the 21 regulations.
You can dismiss the contention, if the only 22 contention you find has no merit to it.
23 Then you authorize the Director of Nuclear'Eeactor
()
24 Regulation to go ahead and make the findings that are 25 required under the statute, and you do so in due time with ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554-2345
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1 the staff's review of the safety of this issue, then issue 2 technical spec amendment authorizing six tubes or the entire 3 tubes, depending on what the resolution is.
{/)
w 4
CHAIRMAN BLOCH:
Mr. Barth, that was not directly 5 responsive to the question.
6 Ms. Falk asked whether she hrd rights not only to 7 appear in our hearing and make her argument either in Show 8 Cause or Summary Judgment, and possibly even in an 9 evidentiary hearing, but whether she also has parsilel 10 rights to make some presentation to the staff
.n the course 11 of the staff determina tion.
12 MR. BARTH:
Every citizen in this country has the 13 authority to send a letter to the Nuclear Regulatory 14 Commission, which it will read or look at.
15 CHAIRMAN BLOCH:
Do they have an opportunity to 16 comment on the staff's report before Mr. Denton acts?
17 MR. BARTH:
They won't have a report until Mr.
18 Denton acts, because they will have a safety evaluation in 19 the absence of hear ' a.
The safety evaluation comes out 20 with the authorization to change the license.
21 CHAIRMAN BLOCH:
So that our normal procedure does 22 not give them the right to make any comment in that 23 proceeding before the Director of NRB; is that correct?
()
24 MR. BA3TH:
The normal procedure just does not 25 apply here, sir, because Environmental Decade is in this O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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113 1 very heavily.
Copies of documents issued by NRR are sent to 2 those people.
As Mr. Churchill commented in our last 3 telephone conversa tion, they are more conversant with steam 4 generator tubing than the rest of us are.
5 They are in this< thing.
They are not strangers to
/
6 wha t is going on, and they are certainly entitled to make
/
7 any kind of commen t, or raise any kind of issue that they 8 vant by sending letters to the staff.
9 CHAIRMAN BLOCH:. Is that a representation that in 10 the course of the preparation of the staff's document, 11 Decade will have an opportunity to make conments?'
d 12 MR. BARTH:
They will not be apprised of the 13 internal review of 'this applica tion b, the technical 14 specialists of the NRR staff.
15 CHAIRMAN BLOCH:
They have no right to do that, is 16 that your position?
17 MR. BARTH:
Certainly they have no right to 18 participate in that, correct.
/
19 CHAIRMAN BLOCH:,,I would like Applicant to comment 20 on these issues.
21 MR. CHURCHILL:
I think I would agree with Mr.
22 Barth on that.
Reviews by internal staff are not done with 23 the right of parties to a proceeding to comment on, snd 24 participate in them.
However, the results of those, the 25 saf ety a'nalysis evaluation, and so on, are made public and
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1 become part of the record.
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2 The rights of the public are to come in and ask 3 f or a hearing on the amendment request, and to examine the 4 evidence that is presented in that hearing.
j, 5
CHAIRHAN BLOCH:
Is that Mr. Charnoff now?
6 MR. CHURCHILL.
No, it is Mr. Churchill.
7 CHAIRMAN BLOCH:
The question is whether you feel 8 that Decade has a right in this proceeding to have the
/
9 opportunity to comment on the staff report before the Board 10 scts, or whether it would be consistent with Decade's rights 11 f or us to act even before the staff report is available to 12 u s.
i 13 MR. CHARN0FF:
Mr. Charnoff, Mr. Bloch, as I l' T
/=
14 understand it, if there is a contention admitted, it could 15 be disposed by Jay cF Summary Disposition, and that is what 16 we hope to accomplish by way of our filing.
If that is 17 true, then Decade doesn't have any further rights per se to 18 participate, in effect, on that particular contention in any 19 hearing.
If there are no other contentions, that is the end 20 o f it.
21 Secondly, in terms of the NRC 's safety evalua tion, 22 there has never been a situation where Applicants, 23 Intervenors, or anybody else, has a right to comment'on a
()
24 saf ety evaluation report before the staf f issues its 25 amendment or authorization, or call it what you will.
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CHAIRMAN BLOCH4 Mr. Charnoff, that was my 2 understa nd.
But I think the thing that is unusual about 3 this proceeding is that ordinarily, before there wo uld be a pd 4 Motion f or Summary Judgment or action by the Board on a 5 Motion f or Summary Judgment, or before there is an 6 evidentiary hearing, there would be an opportunity to see 7 the saf ety evaluation report.
That is just a matter of 8 custom.
9 MR. CHARN0FFs That is not always so.
The 10 Summation Disposition procedure can certainly take place and 11 has taken place prior to the issuance of safety evaluation 12 reports.
It also takes place afterwards if necessary, but 13 it has taken place before.
It seems to me there is no rule 14 precluding that from taking place.
15 Secondly, your suggestion, which was a creative s
16one, for an Order to Show Cause concept, in effect invites 17 the development of what might be called a paper record, but 18 nevertheless a record, with respect to this matter, which 19 allows ycu to decide in the alternative, other than just the 20 Summary Disposition route, as to whether there is a matter 21 that is worth hearing on this matter, or at least this 22 interim request could be authorized without proceeding 23 f urther.
O u
cn>1ania stocu>
1 at to 21ve==- r 1x ca ace 25 to comment as well.
I would like your comment, Mr.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554 2345
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116 1 Charnof f, on whether Motion f or Summary judgment adds 2 something potentially to the Show Cause proceeding, or 3 whether they are duplicative.
4 Es. F='k has not had a chance to see the motion, 5but I would like your comment on that.
9 MR. CHARN0FF It is something separate, and it is 7 cast in terms of the contention proposed, even though there 8 has been no ruling on them at this time, in the context of 9 these six tubes.
So that you have an alternate way of 10 proceeding.
11 I don't think you need either or both, but we 12 thought th a t it would be an alternate way for you to proceed 13 in the context of this particular case.
On the one hand,
]'
1 14 fou have your route, which the development of a record 15 insof ar as this particular specific request was made, and is the alterna te route is simply to dispose, we think we could 17 do that, of the contentions, even though theywere all 18 admitted, insof ar. as they might apply to the six tubes in 19 question.
20 CHAIRMAN BLOCH:
As far as Applicant is concerned, 21 is thera any harm in consolidating those two considerations, 22 and deciding them together?
23 MR. CHARN0FFs Not a t all, as a matter of fact it O
2 m1ght even he preferah1e.
25 CHAIRMAN BLOCH Ms.. Falk, I think you have waited ALDERSoN REPORTING COMPANY,INC, 400 VIRGCf! A AVE, S.W, WASHINGTON, D.C. 20024 (202) 554 2345
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1 patiently, and it is your opportunity to comment.
2 MS. FALKs Thank you, Your Honor.
As far as the 3 latter peint, the Summary Disposition point, it is certainly O
4 my understanding of the law that Summary Disposition only 5 goes to questions that are not factual in dispute.
Given 6 the consideration that I have not seen the document, I am 7 hard pressed to think of how this matter will be ripe for 8 that kind of resolution given the contentions which are all 9 of a factual nature in our petition.
10 Turning to the second point, which is the one that i
11 Mr. Barth was addressing on whether or not only the saf ety 12 report on the part of the staff is the issue that the staff 13 has yet to address bef ore it decides on wha t to do on a 14 limited demonstration project, that is not the case because 15 there is also the environmental impact statement law which 16 must be complied with.
17 Certainly there is ample precedent and provisions 18 in that law for Decade input to the staff on questions of 19 the environments';., social, and economic impact that muse be i
20 required to be looked at under that law.
i 21 CHAIRMAN BLOCHa Ms. Falk, under that law, is th a t 22 right to participate with respect to the environmental i
23 ass essment, or only if the assessment determines that there O
24=no=1a de a 1==
et = tete eat 2 25 MS. FALKs That is certainly a valid question, O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
118 1 Your Honor, because there a re a number of cases which 2 preclude citi:r s from raising environmental concerns at a 3 latter point if they have not notified an agency of those 4 concerns in the assessment process, and at that stage.
5 Vermont Yankee is a case that might indicate such a law.
6 CHAIRMAN BLOCH:
Cf course, you have notified tha t 7 you have environmental concerns, you have done that.
But 8 the question is, if all that is done is a negative 9 assessment, that there is no need for sn environmental 1
10 impact statement, do you have a right to comment before that 11 is issued?
12 MS. FALKs I certainly disagree with the holding
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13 o f the Vermont Yankee.
I think some persons could argue 14 that Vermont Yankee requires us to have made more specific 15 con tentions than just asserting an environmental interest.
16 MR. CHARN0FFs Kathy, this is Jerry Charnoff.
I 17 may be wrong, but my recollection of the Vermont Yankee case 18 was that that went to the ques +. ion as to whether the members 19 of the public participated in connection with the draf t 20 environmental impact statement, which later was converted 21 into a final environmental statement, and did not relate to 22 the pre-curser to that which would be an assessment as to 23 whether you needed an environmental impact statement 'at h
24 all.
25 CHAIRMAN BLOCHa Mr. Charnoff, I take it that you O
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1 agree with my reading of the regulations, that while an EIS 2 may not be req uired, an environmental assessment is 3 required ; is that correct?
4 MR. CHARN0FFs I think that that is probably 5right.
I think they do have to make a determination that 6there is no EIS required.
But whether that req uires s full 7 assessment or a determination that it is in one of those 8 exclusionary categories, the CEO is put out, is something 9 that I don't think I have looked at.
10 CHAIRMAN BLOCH:
I think tLa t it is either called 11 an assessment or a negative determination under our 12 regulations.
13 I do think that it is important that staff include O
14 in their letter we are to receive as of nex t Tuesday a 15 statement also about whether they are willing to prepare 16 either the assessment' or negative determination to determine 17 whether or not an environmental impact statement is 18 required.
19 MR. BARTH:
This is a matter we have under review 20 as to whether or not there will be an environmental impact 21 which needs to be assessed.
That is part of the entire 22 application.
23 CHAIRMAN BLOCH:
I know you are already
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24 considering that for the application, but could one be 25 submitted for the demonstration program?
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MR. BARTH:
Tes, sir, we can do that.
2 CHAIRMAN BLOCH:
I appreciate that.
3 Ms. Falk, could you continue?
4 MS. FALKs It is my understanding, Your Honor, 5 that the staff on Tuesday will be filing only its decision 6 as f ar as the environmental impact of a demonstration 7 program?
8 CHAIRMAN BLOCHs No.
What they a re going to file 9 on Tuesday is a representation about whether the staff is 10 prepared to analyze the demonstration program as if it were 11 a separa te filing, both with respect to its safety and with 12 respect to an assessment of its environmental concerning 13 whether or not an environmental impact statement should be 14 prepared.
15 MS. FALKs Fine.
16 CHAIRMAN BLOCH:
Is that your understanding, Ms.
l 17 Falk?
18 MS. FALK Presuming that the staff's decision by 19 Tuesday is not going to the merits of either of the issues, 20 correct?
21 CHAIRMAN BLOCH:
They obviously could not go to 22 the merits by then.
23 MS. FALK That is my understanding of what they O
24 ce aota ree-25 CHAIRMAN BLOCH:
Is tnat also staff's O
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2 MR. BARTH:
Yes, Mr. Chairman.
3 CHAIRMAN BLOCH:
Ms. Falk, do you have further 4 comments with respect to this issue?
5 MS. FALK:
Not on that issue.
6 I would like to get further clarification from 7 Your Honor on the Summary Disposition Motion question.
8 MR. BARTH Could we go back for just one brief 1
9 moment to the Show Cause, Your Honor?
I would like to make 1
10 one small comment.
11 CHAIRMAN BLOCHs Let me try to respond to Ms. Falk 12 first.
13 Ms. Falk, what would you like me to tell you about 14 the summary disposition?
15 MS. FALK:
Nothing, and that is the point I am i
16 trying to make.
Ihis conference has nothing to do with that 17 motion, correct, and we are not scheduling any procedures as l
18 f ar as that motion?
19 CHAIEMAN BLOCH:
Absolutely.
We have decided 20 nothing on Summary Judgment at this conference.
We should 21 ge t a representation from Applicant that it would be 22 acceptable to consolida te that motion with the Show Cause 23 proceeding.
Of course, you have not had an opportunity to 24 consider whether you would accept th a t.
That is correct, 25 Ms. Falk, isn't it?
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MS. FALK:
That is my understan'.ing, yes.
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2 CHAIRMAN BLOCH:
Staff.
3 MR. BARTH4 Mr. Chairman, in regard to the show 7-U 4 cause matter, which appears on page 9 of your Order dated 5 October 1,
1931, it must be clearly understood that 5 USC 6 550(c) requires the proponent of an amendment, such as the 7 power company's case, carries the burden of proof, and the 8 agency's regulations codif y that.
The burden of proof to 9 comply with the agency's reculations to show that is no 10 saf ety jroblem lies with Wisconsin Environmer tal Decade, and 11 that is whether we use a Show Cause Order or a hearing.
12 CHAIRMAN BLOCH4 I am sorry, you say the burden of 13 proof lies with whom?
14 MR. BARTH:
The Power Company, I have been 15 corrected by my partner.
So regardless of whether we use a 16 Show Cause proceeding or a hearing, th e power company 17 Carries the burden of proving that it Complies with the 18 regulations, and that there are no safety or environmental 19 adverse ef fects resulting from their proposed amendment.
20 CHAIRMAN BLOCH:
Mr. Barth, I agree completely 21 with the burden of persuasion, but I do think it is the 22 responsiblity of the person who is supporting a contention 23 to come forward with a prima f acie case that includes a
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24 basis f or that contention; is that correct?
25 MR. BARTH:
I assume that they have a basis prior O
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123 1 to your admitting the contention.
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2 CHAIRMAN BLOCH:
G ene rally they would, but 3 depending on how discovery goes, the grounds for that basis 4 may disappear, and there may no longer be a genuine issue of 5 fact, the basis may shift because a new basis is discovered 6 in the course of discovery.
7 MR. BARTH:
I have no problem with what you are 8 saying, Your Honor.
9 CHAIRMAN BLOCH:
Okay.
10 Es. Falk, do you have further comments on any 11 matter that is now pending?
12 MS. FALK:
N o, Your Honor.
13 CHAIRMAN BLOCH:
Does Applicant have any comments 14 on any matter still pending?
15 MR. CHURCHILL:
I would like to discuss just for a 16 moment the f act that we have both a Show Cause procedure and 17 a Motion for Summary judgment, and your suggestion to 18 combining them.
19 It turns out tha t when the responses are due, they 20 both end at about the same time, one case is October 29th, 21 and one case is October 30th, and it might be a good idea to 22 set one date for the end point in responding.
23 As far as actually combining them, that might
(])
24 require a little more thought because they really are two 25 different things.
Either one of them alone without the O
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1 o th er co uld support the demonstration program.
O 2
CHAIRMAN BLCCH:
I was only suggesting 3 consolidation for the purpose of argument on this issue.
O 4
MR. CHURCHILL:
The.t is fine.
5 MS. FALK4 Mr. Hearing Examiner, is it Your 6 appraisal, then, that there may be a conference call in 7 several weeks on those motions, or on the Order to Show 8 Cause question?
9 CHAIRMAN BLOCH4 There might be a conference 10 call.
I also raised the question of whether there might be 11 a need for Federal Register notice for the purposes of 12 preparing for the possibility of a public hearing, which 13 would ha ve to be held, as I understand it, at the earliest 14 November 9th, at this point, because we need to give 30 days 15 notice.
Is that your understanding, Ms. Falk?
16 MS. FALKs That is my understanding.
17 CHAIRMAN BLOCH:
Would Applicant also like to 18 comment on the need for a schedule conference call at this 19 point, or perhaps for the Federal Register notice of a 20 public hearing?
21 MR. CHURCHILL:
In view of the fact that you have 22 admitted WED or the Decade as a party, or that it is 23 provisional, there could be a notice of hearing published, h
24 and if it
- urns out that that particular hearing is not 25 needed, it could always be cancelled.
It probably would be O
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1 a good idea to go ahead with such a notice.
2 MR. BARTH:
Staf f concurs, Your HCoor.
3 CHAIRMAN BLOCH:
Good.
g-)
\\./
4 Does Applicant have any further comments at this 5 point?
6 MS. FALK:
Mr. Hearing Examiner, I have one 7 f urther comment.
8 CHAIRMAN BLOCH:
Please.
9 MS. FALK:
Presuming that you do proceed and issue 10 a notice of a hearing, I think that at this y, int it would 11 be prema ture given that you don't know, presumably, whether t
12 the hearing will include the interim order, or only the 13 latter, which is the main application of the company.
I 14 query what you are going to notice.
15 CHAIRMAN BLOCH:
Ms. Falk, I take it that we would 16 not be ripe for a public hearing on t!e ertire program, but 17 only on the demonatration program, which is what I would 18 notice.
19 Does anyone want to comment on that?
20 MR. CHARNOFF:
It would be entirely appropriate to 21 pu t cut the notice now and indicate tha t the only issue for 22 tha t particular hearing, if it is held, would be this 23 request of ours for the interim authorization.
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24 CHAIRMAN BLOCH:
Does staff concur?
25 MR. BARTH4 Yes, we have no problem with that, O
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Your Honor.
5 2
CHAIRMAN BLOCH:
Do any of the parties have 3 further comments?
4
- 55. FALK I do have another comment.
5 That is presuming, and staff please correct me if 6 I am wrong, that the safety report will be completed, and 7 the environmental assessment processed by that time?
8 CHAIRMAN BLOCH Staff may answer.
9 MR. TREBY:
The staff will have to talk with the 10 technical staf f to answer that question.
We will certainly 11 make every effort we can to be prepared for a hearing.
12 CHAIRMAN BLOCH:
Ms. Falk, that was the purpose of 13 our directing staf f te make a filing by next Tuesday.
You 14 will know a t the la test by Wednesday or Thursday more 15 specifically about that.
16 Are there any further comments by the parties?
17 MR. BARTH4 Yes, I would like to make one on 18 behalf of staf f, Your Honor.
19 We did not properly respond to your comment 20 requesting our comment on the Show C-se proceeding you 21 suggested within the five days.
I think our response now i
22 may cure that def ect.
I am sorry tLat we did not answer 23 earlier.
()
24 CHAIRMAN BLOCH:
Please go forward.
25 HR. BARTH:
Pardon, Your Honor, I did not hear O
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127 t
1 your last comment.
2 CSLIRMAN BLOCH:
I thought you said that you 3 wan ted te resspond now.
4 MR. BARTH:
We already did.
I said that we have 5 no problem with the Show Cause on the assumption, of course, 6 that we all understand that this does not change the burden 7 of proof that is required by 5 USC 556(d).
8 CHAIRMAN BLOCH4 We all understand tha t.
9 Are there any other comments by parties?
10 (No response.)
11 CHAIRMAN BLOCH:
There being no further comments, 12 ne further issues to be resolved, I would like to thank the 13 parties for their participation in this conference.
The 14 conference is adjourned.
The parties may stay on the line 15 to order transcripts.
16 (Whereupon, at 11:10 a.m.,
the conference was 17 adjourned.)
18 19 20 21 22 23 O
24 25 O
ALDERSCN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTCN, D.C. 20024 (202) 554-2345
- ~ _.
m NUCLEAR REGULATORY COMMISSION This is to certify : hat the attached proceedings before the BEFORE TIIE ATOMIC SAFETY AMD LICENSING BOARD in the =atter Of: Uisconsin Electric Power Company Point Beach Nuclear Plant Units 1 & 2 Date of Prcceeding:
Octobor 9.
1991 Decket ! lumber:
50-266-OLA & 50-301-OIA Place of ?receeding:
were held as herein appears, and that this is the c.riginal transcrip therecf for the file of the Cec =ission.
Patricia A. Minson Official Reporter (Typed) h 6%d p>
Official Repcrter (Signature)
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u"ttro St^t's or ^"ra1c^
2 NUCLEAR REGULATORY COMMISSION i
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x 4 In the Matter of Docket No. 50-266-OLA 5 WISCONSIN ELECTRIC POWER COMPANY 50-301-OLA 6 POINT BEACH NUCLEAR PLANT 4
7 Units 1 and 2 8------
x 9
In The Offices of Alderson Reporting Company 10 400 Virginia Avenue, S.
W.
Washington, D.
C.
11 Friday, October 9, 1981 12 A telephone conference in the above-entitled 13 matter was convened, pursuant to notice, at 10:00 a.m.
BEFORE:
15 PETER B.. BLOCK Chairman 16 Atomic Safety and Licensing Board 17 HUGH C.
PAXTON, Ph.D, Member Atomic Safety and Licensing Board 18 APPEARANCES:
19 On behalf of Wisconsin Power Company 20 BRUCE CHURCHILL, Esq.
21 GERALD CHARNOFF, Esq.
Shaw, Pittman, Potts & Trowbridge 22 1800 M Street, N. W.
Washington, D. C.
20036 23 O
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1 On behalf of Wisconsin's Environmental Decade 2
KATHLEEN M.
FALK, Esq.
I 11u Lewis Ca rroll Street 3
Madison, Wisconsin 53703 4
On behalf of the Nuclear Requit. tory Commission 5
CHARLES A. BARTH, Esq.
l STUAEI IREEY, Esq.
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1 E E 9.C 5 5 D L E 9 5 2
CHAIRMAN BLOCHs This is Judge Peter Bloch, 3 Chairman of the Licensing Board for Point Beach Nuclear 4 Plant Un its 1 and 2, Docket Numbers 50-266-OLA and 550-301-OLA.
6 This is an on the record special prehearing 7 conference in this case.
The transcripts may be ordered at 8 the close of the f orma1 conference f rom the reporter, whom I 9 wil1 ask to remain on the 1ine.
Because this is a telephone 10 conf erence, I wou1d urge that we not have unnecessary 11 interruptions, and unless a person is identified for the 12 record by being called on, that they please preface their 13 remarks by identifying themselves each time that ther O
14 s pe a k.
15 I believe we have on the line with us Judge Hugh 16Paxton.
17 JUDGE PAXTON:
Yes.
18 CHAIRMAN BLOCH:
Jerry K11ne regrets that he is 19 unable to be us today.
20 The staff is represented, is that correct?
21 MR. BARTH:
Yes, Mr. Chairman.
I am Charles 22 Barth, I represent the staff, and with me is M.r. Stuart 23 Treby.
There are so many issues here that we will handle O
24 them together, so we wi11 1dentify which one of us is 25 spe aking.
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1 CHAIRMAN BLOCHs I appreciate tha t.
2 Protestant, Environnental Decade is represented, 3 is that correct?
4 MS. FALK.
Yes, sir, by Kathleen Falk, F-a-1-k.
5 CHAIRMAN BLOCH4 In addition Applicant is 6 represen ted, is that correct?
7 MR. CHURCHILL:
Yes, sir.
This is Bruce 8 Churchill, and I have with me Gerald Charnoff.
9 CHAIRMAN BLOCH:
As a preliminary matter, I want 10 to inquire as to whether it is acceptable to the parties if 11 we establish a Board library for this case in the Offices of 12 Wisconsin Environmental Decade.
The parties will have 13 access to copies of the trae. script at the Office of O
14 Wisconsin Environmental Decade.
15 There being no objection, the library will be so 16 est ablished.
I would direct the reporter to send the copy 17 that is designated for Judge Kline to Wisconsin's 18 Environmental Decade instead.
19 MR. BARTHs Mr. Chairman.
20 CHAIRMAN BLOCH:
Excuse me.
21 MR. BARTH:
I think we do have a problem.
There 22 is a policy on locating local public document rooms.
As we 23 discussed in the other matter, I don't think that thd
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24 agency 's local document room is amenable to' change at the 25 direction of the Licensing Board a t the mom en t.
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CHAIRMAN BLOCHs Mr. Barth, we are not directing a 2 new document room.
W9 are directing the establishment of a 3 special f acility for the convenience of all parties at the 4 sit e.
I understand tha t tha t is authorized by the 5 Commission at this timo, providing a facility tnat is 6 availabla to all parties at the site.
7 Do you have further comments, Mr. Barth?
8 ER. BARTH:
The transcripts, as I understand, are 9 under the control of the Licensing Board, and I have no 10 objection to that.
But I am not sure that I can get NRR to 11 change the routing of correspondence to a place than the 12 local public document room.
13 CHAIRMAN BLOCH:
I understand tha t.
The major 14 purpose is to make the transcripts available to all parties 15 a t the site.
16 MR. BARTH:
I have no problem with that, sir.
17 CHAIRMAN BLOCH4 I have two preliminary 18 announcements.
We have not yet received the staff's brief 19on the admission of the contention s, with positional bases, 20 tha t Decade has provided.
However, subject to 21 reconsideration on receipt of staff's brief, the Board has 22 tentatively agreed to accept Decade as a party.
A draft 23 Order is being mailed by express service to Judge Paiton O
24 this or 1ao eae e lor 1 oraer sno=ta de 1===ea eer1r aext 25 week.
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