ML11146A066

Transcript of First Energy Nuclear Operating Co., Davis-Besse Nuclear Power Station, Telephone Conference on Thursday, May 19, 2011, Pages 240-274

ML11146A066
Person / Time
Site:	Davis Besse
Issue date:	05/19/2011
From:	Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-346-LR, ASLBP 11-907-01-LR-BD01, NRC-899, AAA-2
Download: ML11146A066 (37)

Text

Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION

Title:

First Energy Nuclear Operating Co. DOCKETED Davis Besse Nulcear Power Station May 25, 2011 (8:30 a.m.)

OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF 50-346-LR Docket Number:

ASLBP Number: 11-907-01-LR-BDO1 Location: (telephone conference)

Date: Thursday, May 19, 2011 Work Order No.: NRC-899 Pages 240-274 NEAL R. GROSS AND CO., INC.

Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.

Washington, D.C. 20005 (202) 234-4433 P1sf~zf--69 OS63

240 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3

4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5

6 PRE-HEARING CONFERENCE 7 --------------------- x 8 IN THE MATTER OF: Docket No.

9 FIRSTENERGY NUCLEAR 50-346-LR 10 OPERATING COMPANY ASLB No.

11 (Davis-Besse Nuclear 11-907-01-LR-BDO1 12 Power Station, Unit 1) 13 --------------------- x 14 15 Thursday, May 19, 2011 16 17 The above-entitled matter came on for 18 pre-hearing conference, pursuant to notice, at 19 1:00 p.m Eastern Daylight Time, via teleconference.

20 BEFORE:

21 WILLIAM J. FROEHLICH, Chairman 22 DR. WILLIAM E. KASTENBERG, Administrative Judge 23 NICHOLAS G. TRIKOUROS, Administrative Judge 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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241 1 APPEARANCES:

2 On Behalf of NRC:

3 LLOYD B. SUBIN, ESQ.

4 of: Office of the General Counsel 5 Mail Stop - 0-15 D21 6 U.S. Nuclear Regulatory Commission 7 Washington, D.C. 20555-001 8

9 On Behalf of Dominion FirstEnergy Nuclear 10 Operating Company:

11 ALEX POLONSKY, ESQ.

12 KATHRYN SUTTON, ESQ.

13 of: Morgan, Lewis & Bockius 14 1111 Pennsylvania Avenue, N.W.

15 Washington, D.C. 20004-2541 16 (202) 739-5830 - Polonsky 17 (202) 739-5738 - Sutton 18 19 DAVID W. JENKINS, ESQ.

20 FirstEnergy Service Company 21 76 South Main Street 22 Akron, Ohio 44308 23 (330) 384-5037 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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242 1 On Behalf of the Intervenors, Citizens 2 Environment Alliance of Southwestern Ontario, Don't 3 Waste Michigan and Green Party of Ohio:

4 TERRY J. LODGE, ESQ.

5 316 North Michigan Street 6 Suite 520 7 Toledo, Ohio 43604-5627 8 (419) 255-7552 9

10 On Behalf of the Intervenor, Beyond Nuclear:

11 KEVIN KAMPS 12 Beyond Nuclear 13 6930 Carroll Avenue 14 Suite 400 15 Takoma Park, Maryland 20912 16 (301) 270-2209 17 18 19 ALSO PRESENT:

20 HILLARY CAIN, US NRC 21 RICHARD HARPER, US NRC 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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243 1 P-R-O-C-E-E-D-I-N-G-S 2 (1:04 p.m.)

3 CHAIRMAN FROEHLICH: Good afternoon, 4 parties. This is Judge Froehlich. Today we are 5 conducting the telephone pre-hearing conference in 6 Docket 50-346-LR, the FirstEnergy Nuclear Operating 7 Company case involving the Davis-Besse Power Station 8 Unit 1.

9 It is about five minutes after one here in 10 Rockville, Thursday, May 19th.

11 This is Judge Froehlich, and with me in 12 the room here in Rockville are Judge Trikouros and our 13 Law Clerk Hillary Cain. And by telephone we have with 14 us Judge Kastenberg.

15 Judge Kastenberg, are you with us?

16 JUDGE KASTENBERG: Yes, I am.

17 CHAIRMAN FROEHLICH: Thank you. For the 18 record, at this point, I wonder if the parties could 19 identify themselves and any of their colleagues who 20 are with them on the line today. Could I hear first 21 from the Applicant?

22 MR. POLONSKY: This is Alex Polonsky with 23 Morgan Lewis. On the line is David Jenkins from 24 FirstEnergy and Kathryn Sutton from Morgan Lewis.

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244 1 the Intervenors?

2 MR. LODGE: This is Terry Lodge for the 3 Intervenors, Your Honor. And with me in my office 4 here in Toledo is Kevin Kamps.

5 CHAIRMAN FROEHLICH: Thank you. And for 6 the NRC staff?

7 MR. SUBIN: For the staff it's Lloyd 8 Subin, and I have Richard Harper here with me.

9 CHAIRMAN FROEHLICH: Thank you. Then, let 10 us begin. This call is being transcribed by the Court 11 Reporter. Therefore, I would ask that when you speak 12 please identify yourself to assist in the preparation 13 of the transcript.

14 Members of the public and consultants to 15 the parties may listen to our proceedings, but only 16 counsel for the parties to the case, and, in the case 17 of Beyond Nuclear, Mr. Kamps, may speak.

18 The purpose of this call is to discuss the 19 matters related to the management and scheduling of 20 this case. The Commission's regulations, specifically 21 10 CFR Section 2.332, require the Board to develop a 22 scheduling order to govern this proceeding. And in 23 that regard, we issued a notice and order on May 10th, 24 which identified a number of specific items that we 25 should discuss today.

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245 1 We are certainly not limited to just those 2 items, but what I would suggest at this point is that 3 we go through the items listed in our May 10th order 4 and discuss them one after another to get our -- pull 5 together our schedules for this case.

6 In that order, the Board had suggested 7 that it would be helpful if the parties and the NRC 8 staff spoke among themselves prior to this conference 9 for the purpose of reaching agreement on some, or all 10 hopefully, of the issues listed. I would ask the 11 parties at this time, have you had such a meeting or 12 a discussion? And has a spokesperson been designated?

13 MR. POLONSKY: This is Mr. Polonsky. Yes, 14 the parties have all been able to speak on the phone.

15 We did so this -- earlier this week, on Tuesday 16 afternoon. And we did circulate amongst ourselves 17 what we thought was a consensus on input to the 18 scheduling order. I am happy to speak to that on 19 behalf of the parties and identify where there is any 20 disagreement.

21 CHAIRMAN FROEHLICH: Thank you, Mr.

22 Polonsky. I want to thank you, and I commend the 23 parties for discussing these matters beforehand. I 24 think it will help expedite the case and make it 25 easier on the Board to come up with an order NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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246 1 scheduling the upcoming events. And I am glad that 2 the parties have had an opportunity to discuss that 3 and, from the sound of it, have reached some agreement 4 on the date.

5 Why don't we work our way through the 6 enumerated list? And we'll take the items as they 7 came. And the first item on that is the FirstEnergy 8 unopposed motion to defer the initial disclosures, 9 which you filed on behalf of all the parties on 10 May 6th.

11 Could you clarify a little bit for me what 12 the intent was as to the duration of this deferral?

13 Is it open-ended? How did you plan to -- you know, to 14 pick it up to meet the dates spelled out in the 15 regulations and in the milestones, given that we have 16 really no idea when the Commission might act?

17 MR. POLONSKY: This is Mr. Polonsky. Yes, 18 Your Honor. The unopposed motion itself articulated 19 an open-ended update. It simply said "until after the 20 planned appeal is resolved." We are mindful that in 21 other proceedings boards have been uncomfortable with 22 that open-ended nature, so the parties have proposed 23 a -- the following language, that the initial 24 disclosures would be deferred until the earlier of the 25 Commission issuing a ruling or six months after the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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247 1 Board issues its scheduling order.

2 CHAIRMAN FROEHLICH: Or six -- okay. So 3 the -- all right. And all parties concur in that 4 recommendation? Is that right, then, Mr. Lodge?

5 MR. LODGE: Yes, it is.

6 CHAIRMAN FROEHLICH: Okay. And Mr. Subin?

7 MR. SUBIN: Yes, that is correct.

8 CHAIRMAN FROEHLICH: Mr. Kamps?

9 MR. KAMPS: Yes.

10 CHAIRMAN FROEHLICH: Okay. All right.

11 Other than the language that was in the unopposed 12 motion, this was just -- this is predicated solely on 13 the belief that it may not be necessary for any 14 disclosures, because the Commission may reverse the 15 Board's decision and throw out the contentions, 16 therefore, terminating or eliminating the hearing. Is 17 that the theory behind it?

18 MR. POLONSKY: Yes, Your Honor. Sorry, 19 this is Mr. Polonsky.

20 CHAIRMAN FROEHLICH: Thank you. All 21 right. I think sometimes boards are a little 22 uncomfortable with deferring initial disclosures in a 23 Subpart L proceeding, because this is really the only 24 form of discovery available to the parties.

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248 1 Intervenors here understand that material that may be 2 helpful or useful to them, and, likewise, material 3 that may be useful to the Applicant in the possession 4 of the Intervenors is going to be delayed, forcing the 5 parties to do more work -- and probably a little bit 6 more furiously -- as we get closer to the hearing as 7 opposed to getting a head start on what, you know --

8 what will be the discovery available to the parties in 9 this case.

10 Does everyone understand that?

11 MR. LODGE: This is Terry Lodge. Yes, we 12 do, Your Honor.

13 CHAIRMAN FROEHLICH: Mr. Kamps?

14 MR. KAMPS: Yes, I do.

15 CHAIRMAN FROEHLICH: Okay. All right.

16 Thank you for your input. I'm glad the parties did 17 have this discussion prior to our conference.

18 The second item on the list of -- May 6th 19 order was a definition of what -- was a definition of 20 electronically stored information and how to handle 21 that. Have the parties had discussions regarding 22 that?

23 MR. POLONSKY: This is Mr. Polonsky.

24 CHAIRMAN FROEHLICH: Thank you.

25 MR. POLONSKY: Yes. Yes, we have. We NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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249 1 have discussed entering into a separate agreement, 2 which identifies the type of electronic documents that 3 we agree will be searched. We did also circulate a 4 draft agreement regarding the mandatory disclosure 5 obligations, and the parties had some very preliminary 6 discussions about that. But our intent is, frankly, 7 for many of the questions that the Board will pose 8 today, to memorialize the parties' consensus on those 9 and present them to the Board in a separate agreement.

10 CHAIRMAN FROEHLICH: Oh, that would be 11 very helpful. Thank you. I guess that will take in 12 not only point two but point three of the May 6th 13 order. Am I correct, Mr. Polonsky?

14 MR. POLONSKY: Yes. Three, four, and 15 five.

16 CHAIRMAN FROEHLICH: Okay. Can I have the 17 benefit of the thinking on five, if indeed you have 18 any preliminary thoughts on the timeframes for 19 updating mandatory disclosures?

20 MR. POLONSKY: Yes. All of the parties 21 were very uncomfortable with the burden placed on them 22 in the current regulations that there will be 14 days.

23 We discussed disclosures no later than every 60 days 24 rather than the 14 days that the rule requires. That 25 being said, a party may voluntarily update more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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250 1 frequently.

2 CHAIRMAN FROEHLICH: So the proposal will 3 state from the parties there's a 60-day update of the 4 mandatory disclosures once mandatory disclosures 5 begin?

6 MR. POLONSKY: Correct.

7 CHAIRMAN FROEHLICH: As opposed to 14 or 8 30 or some other number. Thank you.

9 As to number six, has there been 10 discussions? And can you speak for the parties as to 11 a motion for leave to file new or amended contentions?

12 MR. POLONSKY: I cannot speak to the 13 consensus for the time limits, because there is not a 14 current consensus. The Applicant is proposing that 15 new or amended contentions be filed within 30 days of 16 the availability of new information. And I will let 17 Petitioners speak for themselves, but I believe they 18 have proposed 90 days.

19 CHAIRMAN FROEHLICH: Okay. At this point, 20 why don't the Intervenors give me their proposals as 21 to the timeframe for new or amended contentions and 22 their filing?

23 MR. KAMPS: Okay. This is Kevin Kamps 24 with Beyond Nuclear. Our proposal is for a 90-day 25 deadline for new contentions based upon new NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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251 1 information, and our reasons for asking for that were, 2 first, workloads we are currently under. We are 3 engaged in multiple NRC proceedings, ASLB proceedings, 4 including this one, Fermi 3, Seabrook, to name but a 5 few.

6 Another reason is that for our severe 7 accident mitigation alternatives contentions that 8 Fukushima seems to be a case in point. Information to 9 be gleaned from that nuclear catastrophe seems to 10 change by the hour, and so with a 30-day deadline we 11 would very likely be filing partial contentions that 12 would have to be supplemented. And we think that with 13 a 90-day time window we could do a better job of 14 comprehensive new contentions.

15 And the same rationale really applies to 16 renewable energy alternatives, those contentions, 17 because, again, the late-breaking news on the 18 renewables front is ever-changing, almost by the day, 19 certainly by the week, and we would -- we would also 20 like to have a 90-day limit, so that we can make more 21 comprehensive contentions come together, instead of 22 disjointed ones in that regard.

23 CHAIRMAN FROEHLICH: Mr. Lodge, anything 24 to add?

25 MR. LODGE: No, sir. That's an effective NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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252 1 statement of our -- our underlying reasoning, too.

2 CHAIRMAN FROEHLICH: Mr. Subin, on behalf 3 of the NRC staff, what is your take on this issue?

4 MR. SUBIN: Our take is 30 days is 5 adequate. We agree with the Applicant on that.

6 CHAIRMAN FROEHLICH: Okay. All right. Is 7 there any divergence on the follow-up filings to new 8 material becoming available, the 25 days I think --

9 well, the amount of time to answer and for the reply?

10 Was there any discussion among the parties or any 11 agreement perhaps?

12 MR. POLONSKY: This is Mr. Polonsky.

13 CHAIRMAN FROEHLICH: Yes, sir.

14 MR. POLONSKY: Yes, we have reached 15 consensus on that aspect. Regardless of whether a 16 filing is titled as a motion or a petition, if it 17 seeks to introduce a new or amended contention, the 18 parties agree that the Applicant and the staff would 19 have 25 calendar days to respond, if it were filed 20 under 2.309(h) . And the Petitioners would have seven 21 days to file a reply and would not need to file a 22 motion seeking leave to file such a reply.

23 CHAIRMAN FROEHLICH: Okay. And this is --

24 what you've just articulated is the consensus proposal 25 among all the parties, is that correct?

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253 1 MR. POLONSKY: Yes, that's my 2 understanding.

3 MR. LODGE: Yes, Your Honor. This is 4 Terry Lodge.

5 CHAIRMAN FROEHLICH: Mr. Kamps?

6 MR. KAMPS: Yes.

7 CHAIRMAN FROEHLICH: Thank you. All 8 right. Then, we can move quickly to point seven.

9 MR. POLONSKY: Well, Judge Froehlich, if 10 I could --

11 CHAIRMAN FROEHLICH: Sure.

12 MR. POLONSKY: -- perhaps give some 13 rebuttal on the Petitioners' point that 90 days is 14 adequate or appropriate. We think that 90 days is 15 extreme and not warranted. From a legal perspective, 16 we are not aware of a board entering 90 days as the 17 default.

18 We are not aware of the Commission finding 19 that 90 days is -- has been timely, and there are a 20 number of policy reasons why we think that that's not 21 an adequate amount of time. They said initially that, 22 you know, they are involved in many proceedings.

23 I think the Commission has been very clear 24 in its 1981 Statement of Policy on the conduct of 25 licensing proceedings that a party may have personal NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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254 1 or other obligations, or possess fewer resources than 2 others to devote to a proceeding. But that doesn't 3 relieve that party of its hearing obligations.

4 And there are, you know, other reasons, 5 frankly, for fairness for the applicant, but there is 6 no reason we should be waiting 90 days to receive a 7 contention that could be timely brought months before.

8 And the kind of issues that Petitioners seem to 9 anticipate bringing in this proceeding seem to be, at 10 least with respect to Fukushima events, much more 11 generic. And the generic concerns are clearly not to 12 be brought in a specific licensing proceeding, but the 13 Commission has directed that those be brought through 14 Petitions for Rulemaking or 2.206 petitions or other 15 generic processes.

16 So we note that Beyond Nuclear has already 17 availed itself of the 2.206 petition process by filing 18 such a Fukushima-specific 2.206 petition.

19 In addition, other petitioners in other 20 proceedings seem to be fully capable of filing 21 contentions in a timely manner regarding Fukushima 22 with site-specific support. And so, therefore, we 23 think 90 days is not appropriate.

24 CHAIRMAN FROEHLICH: Okay. Thank you, Mr.

25 Polonsky.

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255 1 MR. KAMPS: Judge Froehlich, could I make 2 a comment on that?

3 CHAIRMAN FROEHLICH: Yes. Please identify 4 yourself.

5 MR. KAMPS: This is Kevin Kamps with 6 Beyond Nuclear.

7 CHAIRMAN FROEHLICH: Thank you.

8 MR. KAMPS: Part of our reasoning for 9 asking for the 90 days is that NRC itself, as an 10 agency, set up a 30-, 60-, and 90-day review of the 11 Fukushima situation, and so that's where we first 12 started considering a 90-day time window for ourselves 13 to review the unfolding events.

14 And I will just reemphasize that 15 information is now coming out about the earliest hours 16 and days certainly of the nuclear catastrophe, and 17 it's nine weeks later. So there really seems to be a 18 nature of uncharted territory with this Fukushima 19 situation, and that's -- it gets to the heart of our 20 SAMA contentions.

21 CHAIRMAN FROEHLICH: Okay. Thank you.

22 Anyone else want to be heard on Item 6?

23 MR. LODGE: This is Terry Lodge. I would 24 point out that other intervenors may not have had the 25 benefit post-Fukushima of having an opportunity to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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256 1 make a presentation to their licensing boards about 2 what would be an appropriate timeframe.

3 Thank you. That's all I have.

4 CHAIRMAN FROEHLICH: Okay. Thank you.

5 Has there been discussion of point seven? I'll turn 6 to you, Mr. Polonsky.

7 MR. POLONSKY: Yes, I'm sorry. I thought 8 we had already addressed point seven with the --

9 CHAIRMAN FROEHLICH: And I think --

10 MR. POLONSKY: -- 25- and seven-day time 11 periods.

12 CHAIRMAN FROEHLICH: Twenty-five and 13 seven, okay. And how about the -- and that would 14 cover both motions and answers and answers and replies 15 no matter how it was styled.

16 MR. POLONSKY: If it is intending to 17 submit a new or amended contention, yes.

18 CHAIRMAN FROEHLICH: Okay. Anyone else 19 care to be heard on Item 7?

20 (No response.)

21 Hearing no one, we can move to the 22 possibility of settlement of the two contentions in 23 this case. I don't know if that is a realistic 24 possibility or if the parties have considered 25 settlement discussions or even asking the Board to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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257 1 make a settlement judge available to them, as 2 specified in 2.338. Has there been any discussion of 3 settlement?

4 MR. POLONSKY: This is Mr. Polonsky again.

5 Yes. The consensus of all the parties is that it 6 doesn't appear that settlement is likely in the near 7 future, and the parties do not recommend that the 8 Board appoint a settlement judge at this time.

9 CHAIRMAN FROEHLICH: Thank you. Please be 10 advised that you can bring such a request at any time 11 during the pendency of this proceeding.

12 All right. Gets us right down to Point 9.

13 That would be the time limits for filing potential 14 witnesses for contentions. And I guess this should be 15 triggered or set based on the staff EIS and SER 16 publications. Has there been discussion as to point 17 nine?

18 MR. POLONSKY: This is Mr. Polonsky again.

19 Yes, there was discussion, and we did not tie it to 20 the SER and the final SEIS, but, rather, to when 21 direct testimony would be due. And we recommended and 22 have reached consensus that a final witness list would 23 be submitted to the Board 90 calendar days before 24 direct testimony is due.

25 CHAIRMAN FROEHLICH: Okay. Okay.

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258 1 MR. POLONSKY: Is there --

2 CHAIRMAN FROEHLICH: I had not thought of 3 it -- doing it that way, but that would work as well.

4 And you were going to say, Mr. Polonsky?

5 MR. POLONSKY: Yes. There was discussion, 6 and we did not reach consensus, on the issue of 7 identifying potential rebuttal witnesses -- those 8 witnesses that could not have been identified until 9 reviewed -- until a party had reviewed the testimony 10 that they were opposing.

11 CHAIRMAN FROEHLICH: I see. I see. Let 12 me ask the staff at this point if the dates from where 13 I was -- if the dates of May 2012 and, what is it, 14 July 2012 are the current proposed dates for the SEIS 15 and SER respectively?

16 MR. SUBIN: That's correct. The SEIS 17 would be in May and the other would be in July.

18 CHAIRMAN FROEHLICH: Okay. Thank you.

19 MR. SUBIN: All right.

20 CHAIRMAN FROEHLICH: Let me take us out of 21 order maybe at this point and look at point 13. What 22 discussions did you have, or what consensus were you 23 able to reach on point 13, Mr. Polonsky?

24 MR. POLONSKY: We were able to reach 25 consensus. The parties wish to file testimony NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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259 1 sequentially. That was unanimous.

2 CHAIRMAN FROEHLICH: Okay.

3 MR. POLONSKY: With the Petitioners filing 4 their direct testimony first.

5 CHAIRMAN FROEHLICH: Okay.

6 MR. POLONSKY: Followed 60 calendar days 7 later by FirstEnergy and the staff, rebuttal 8 testimony, and then 15 calendar days later Petitioners 9 filing surrebuttal testimony.

10 CHAIRMAN FROEHLICH: Okay. And the --

11 MR. POLONSKY: Yes, Your Honor.

12 Intervenors file first and last.

13 CHAIRMAN FROEHLICH: Okay. And that first 14 submission, the Petitioners' first submission, that 15 would be at what point in time? How do we calculate 16 or place that date in there to know when they start, 17 when that first submittal comes in?

18 MR. POLONSKY: Well, we did not discuss 19 that, Your Honor, but clearly we can't do that until 20 after -- knowing that these are NEPA contentions, we 21 can't have the hearing until after the SEIS is issued.

22 And we assume that Intervenors would want some period 23 of time to review the SEIS and potentially file late 24 contentions on that document.

25 CHAIRMAN FROEHLICH: I see.

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260 1 MR. POLONSKY: But we did not come up with 2 a specific date.

3 CHAIRMAN FROEHLICH: And although it was 4 an enumerated item in the list, I wonder if there was 5 any discussion or if the parties had any views on 6 whether this is likely to be a bifurcated hearing, or 7 we are likely to take environmental as well as safety 8 contentions in at the same time? A single hearing or 9 one that is in two parts. Were there any discussions 10 along those lines?

11 MR. POLONSKY: No, Your Honor, there were 12 not. But we don't view any of the contentions as 13 safety contentions. We view them all as environmental 14 contentions. They are all attacking or challenging 15 the environmental report.

16 CHAIRMAN FROEHLICH: Okay. Okay. Thank 17 you.

18 I guess we can go back. Did anyone else 19 care to be heard on any of the matters we just 20 discussed?

21 (No response.)

22 Hearing none, please --

23 MR. KAMPS: I will just say briefly --

24 this is Kevin Kamps with Beyond Nuclear -- that 25 although the severe accident mitigation alternatives NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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261 1 analyses contentions are a challenge to the 2 FirstEnergy environmental report, they certainly have 3 bearing on safety, because any SAMA that is determined 4 to be cost beneficial could very well spell the 5 difference between having no accident take place or 6 having a catastrophic accident take place. That's the 7 whole purpose of the exercise, so it certainly has 8 bearing on safety issues.

9 CHAIRMAN FROEHLICH: Okay. Thank you.

10 For point 10, we did mention that -- a site visit. Do 11 any of the parties feel that would be helpful, useful, 12 in this case?

13 MR. POLONSKY: This is Mr. Polonsky. We 14 did not think the Board needed to have a site visit, 15 but clearly that is up to the Board.

16 CHAIRMAN FROEHLICH: Okay. Does any of 17 the Intervenors or the staff have a view on whether a 18 site visit would be helpful?

19 MR. SUBIN: This is Lloyd Subin for the 20 staff. We don't believe at this point in time it 21 would be helpful.

22 CHAIRMAN FROEHLICH: Thanks. And for the 23 Intervenors?

24 MR. KAMPS: This is Kevin Kamps for Beyond 25 Nuclear again. We actually -- I believe that the site NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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262 1 visit may be beneficial to the three Judges, 2 especially considering issues like the sea-breeze 3 effects, but that also bears on wind power to an 4 extent, and then you can also get a feeling for the 5 surrounding topography, the surrounding demography.

6 CHAIRMAN FROEHLICH: Okay. Thank you.

7 We'll put any consideration of a site visit aside at 8 this point in time, and we can raise this later if 9 there is a need or a desire among the parties for a 10 site visit to be conducted.

11 As to summary disposition motions, was 12 there discussion or perhaps consensus among the 13 parties?

14 MR. POLONSKY: Yes, Your Honor -- this is 15 Mr. Polonsky -- there was. And I believe there was 16 consensus on summary disposition motions, that the 17 parties believe they are useful, that they may 18 expedite the proceeding, and that there is no need to 19 modify the time limits in the rules. And we did 20 specifically discuss what the existing rules are.

21 CHAIRMAN FROEHLICH: And that would be 22 2.1205(a) up to 45 days before the hearing, is that 23 what you are --

24 MR. POLONSKY: Yes, Your Honor.

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263 1 answers within 20 days.

2 MR. POLONSKY: Yes, Your Honor. The 3 parties felt that, frankly, they were unlikely to wait 4 that long to file any summary disposition motions.

5 They were fully aware of the Board's discretion to not 6 entertain them if they are filed that late, and that 7 was the thinking, that the rules are adequate the way 8 they are.

9 CHAIRMAN FROEHLICH: Okay. Was there 10 discussion of the venue for the evidentiary hearing in 11 this case?

12 MR. POLONSKY: This is Mr. Polonsky. Yes, 13 there was discussion. There is no consensus on it.

14 FirstEnergy requests Port Clinton. That's where the 15 plant site is. If it turns out that, you know, we end 16 up having 18 experts, and they're all based in, you 17 know Akron, then perhaps Akron, but our current 18 preference is where the site is, so that the members 19 of the public who live around the site and are most 20 affected can participate, and the plant personnel who 21 we likely would be using as witnesses can be not 22 inconvenienced.

23 CHAIRMAN FROEHLICH: And for the 24 Intervenor, what are your views on the venue for the 25 evidentiary hearing, if I could?

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264 1 MR. LODGE: Your Honor, this is Terry 2 Lodge. Our views were that Toledo would be a -- in 3 the area of the city of Toledo would be a more 4 convenient forum for the reason that we, as the panel 5 knows, have Canadian intervenors who, of necessity, 6 would have to cross at the international crossing, 7 which is some sort of time problem, or can be, 8 depending on time of day, and that Port Clinton area 9 adds an hour to travel time, and we believe that there 10 are many potential sites here in the Toledo area.

11 Plus, of course, Toledo Edison, which is 12 certainly a big part of FirstEnergy, is situated here 13 -- its regional offices.

14 CHAIRMAN FROEHLICH: Mr. Kamps, what is 15 your view on the venue?

16 MR. KAMPS: Yes, we agree with Toledo as 17 being the best place.

18 CHAIRMAN FROEHLICH: Counsel Subin, what 19 is the view of the NRC staff?

20 MR. SUBIN: The view is the staff has no 21 preference, but would like to remind that we have 22 wonderful hearing rooms right here in Rockville.

23 CHAIRMAN FROEHLICH: You're suggesting --

24 MR. SUBIN: I'm suggesting, but we have no 25 preference other than that, other than we have hearing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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265 1 rooms here. I'm not saying one way or the other.

2 CHAIRMAN FROEHLICH: Thank you.

3 MR. SUBIN: -- the Judges.

4 CHAIRMAN FROEHLICH: What were your other 5 thoughts? I missed your last point there, sir.

6 MR. SUBIN: I just said I was leaving it 7 to the Judges.

8 CHAIRMAN FROEHLICH: All right. All 9 right. Was there discussion of point 14?

10 MR. POLONSKY: Yes, Honor. This is Mr.

11 Polonsky. We did reach --

12 CHAIRMAN FROEHLICH: Thank you.

13 MR. POLONSKY: We did reach consensus, and 14 motions for cross-examination, which is what your 15 Question Number 14 was about --

16 CHAIRMAN FROEHLICH: Right.

17 MR. POLONSKY: -- should be filed no later 18 than seven calendar days after the surrebuttal 19 testimony is filed.

20 CHAIRMAN FROEHLICH: Okay. And that's 21 seven days after consensus among all the parties.

22 MR. POLONSKY: I believe so, Your Honor.

23 CHAIRMAN FROEHLICH: Okay.

24 MR. LODGE: This is Terry Lodge. It is, 25 Your Honor.

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266 1 CHAIRMAN FROEHLICH: Thank you. Were 2 there any other issues or items that the parties 3 discussed or that the parties would like to bring 4 before the Board at this time?

5 MR. POLONSKY: Your Honor, this is Mr.

6 Polonsky. I think I may have misspoke before when you 7 asked were there any other questions about your 8 Question Number 7.

9 CHAIRMAN FROEHLICH: Oh, okay.

10 MR. POLONSKY: And although we did discuss 11 the 25 calendar days and the seven calendar days for 12 a reply, we did not address the standards that would 13 need to be met in addition to 2.309(f) (1) for a new 14 contention.

15 So, and our understanding is that other 16 boards and scheduling orders have specifically 17 addressed what standards need to be met, whether it's 18 2.309(f)2) or 2.309(c), and our recommendation is that 19 if Petitioners file within the -- whatever the --

20 within the 30 days or whatever timeframe the Board 21 sets out to be a timely contention, then they need to 22 only meet the standards of 2.309(f) (2).

23 And if they file outside of that time 24 period -- again, whatever it is -- then they would 25 need to meet the standards of 2.309(c). And if they NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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267 1 are unsure whether they are within that timeframe, 2 then they should address both.

3 CHAIRMAN FROEHLICH: On its face, that 4 sounds reasonable. Is there a response or a reaction 5 from the Intervenors?

6 MR. LODGE: Your Honor, we rather 7 anticipate that that would be the policy of the Board 8 in any event. I'm sorry, this is Terry Lodge.

9 CHAIRMAN FROEHLICH: Okay. Okay. Could 10 we go off the record for a moment, please? Let me put 11 you on hold.

12 (Whereupon, the proceedings in the 13 foregoing matter went off the record at 14 1:34 p.m. and went back on the record at 15 1:35 p.m.)

16 CHAIRMAN FROEHLICH: All right. We're 17 back on the record.

18 I appreciate the fact that all sides were 19 consulted, and there was consensus reached, at least 20 among the parties, on many of the items that we had 21 enumerated.

22 Mr. Polonsky, was it your proposal or the 23 proposal of the parties to come up with a draft of 24 some sort to submit to the Board for us to include 25 perhaps in a draft -- our draft of the procedural NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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268 1 schedule? In which case we will take the last round 2 of comments and then issue a final schedule for this 3 case.

4 MR. POLONSKY: This is Mr. Polonsky. I'm 5 sorry, Your Honor. I didn't understand your question.

6 We were planning on preparing a separate agreement of 7 the parties on mandatory disclosures. We also 8 internally with the parties talked about, frankly, a 9 potential protective order and non-disclosure or -- a 10 non-disclosure agreement or affidavit. But is your 11 question whether the scheduling order should be issued 12 in draft?

13 CHAIRMAN FROEHLICH: Well, what I was 14 going to suggest is the mandatory disclosure agreement 15 I think is a good document to submit and to -- for us 16 to work from in issuing an order that reflects 17 hopefully everything -- or many of the things that you 18 wanted in it.

19 I was also going to request that a 20 schedule which reflects I guess the agreement that the 21 parties have reached in response to the enumerated 22 items would be helpful to the Board in coming up with, 23 you know, a schedule that we would publish and post on 24 this docket.

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269 1 prepare a schedule and submit that in draft to you, 2 along with the parties' recommendations for mandatory 3 disclosures.

4 CHAIRMAN FROEHLICH: That would be very, 5 very helpful. What is the timeframe that you and the 6 parties would contemplate on getting together on the 7 mandatory disclosure agreement, as well as a schedule 8 that reflects the discussions that you have had and 9 the agreements that you have reached, at least among 10 yourselves?

11 MR. POLONSKY: At least I can speak for 12 FirstEnergy. I would think within two weeks from 13 today, or let's say two weeks from tomorrow, we should 14 have that to you. That would allow the parties to 15 both digest what is there, digest what we discussed 16 today on this call, and perhaps set up another call to 17 finalize that document.

18 CHAIRMAN FROEHLICH: Okay. Then, let's --

19 let us do that. Is that -- Mr. Lodge, Mr. Kamps, and 20 Subin, does two weeks to come up with a proposed 21 schedule based on the discussion, as well as the 22 agreement on mandatory disclosures, sound reasonable 23 to you?

24 MR. LODGE: This is Terry Lodge. Your 25 Honor, I wonder if we could perhaps make it two weeks NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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270 1 from this coming Monday. We are going to be running 2 across the Memorial Day weekend, and some of us may be 3 actually taking an extra day off one side or the other 4 of that.

5 CHAIRMAN FROEHLICH: Yes, that would be 6 fine. And Mr. Lodge -- is that Mr. Lodge who spoke 7 or --

8 MR. LODGE: Yes.

9 CHAIRMAN FROEHLICH: Okay.

10 MR. LODGE: Yes, it was.

11 CHAIRMAN FROEHLICH: All right. Mr.

12 Subin, two weeks from Monday would work for you as 13 well?

14 MR. SUBIN: Yes, that would be fine, Your 15 Honor.

16 CHAIRMAN FROEHLICH: All right. Is there 17 anything else that would be productive to discuss at 18 this point with all parties and the Board on the line?

19 MR. KAMPS: Just a thought, Your Honor --

20 this is Kevin Kamps with Beyond Nuclear -- that also, 21 along with Toledo being a good central venue, for our 22 side anyway, in addition to the Davis-Besse facility, 23 given the nature of our renewable energy alternatives 24 contentions, there is also the nearby Bowling Green 25 wind turbine installation. And there is also the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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271 1 first solar manufacturing plant in Toledo, as well as 2 other solar photovoltaic manufacturing plants.

3 So it just came to mind in terms of your 4 question about benefit of a site visit, because I 5 think those real-world renewable energy installations 6 will provide a lot of important information for all 7 parties.

8 CHAIRMAN FROEHLICH: Okay. Thank you.

9 Judge Trikouros, is there anything else that you have 10 at this point?

11 ADMIN. JUDGE TRIKOUROS: Yes, I do have a 12 question regarding the venue. Are there facilities in 13 the Port Clinton area that would be useable if we 14 chose to do limited appearance statements? In other 15 words, having limited appearance statements in the 16 Port Clinton area versus Toledo, and then we can 17 decide on the venue for the hearing.

18 MR. JENKINS: This is David Jenkins. Are 19 you asking, are there -- you know, there are certainly 20 conference rooms that are generally available. I 21 think you -- we were in the courthouse at Ottawa 22 County. If you are looking for a courthouse, that is 23 probably the most readily available in the vicinity of 24 the plant. There is the National Guard Center 25 literally within five miles of the plant, who has an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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272 1 open conference center.

2 ADMIN. JUDGE TRIKOUROS: I guess what --

3 let me rephrase my question. You had -- there was an 4 opinion expressed regarding Toledo versus Port Clinton 5 on the part of the Intervenors, and Port Clinton for 6 the -- for FirstEnergy. Does either party see a 7 benefit to having limited appearance statements, if we 8 chose to do those, in Port Clinton?

9 MS. SUTTON: Your Honor, this is Kathryn 10 Sutton. I definitely see an advantage to that. In 11 particular, those who are living in the vicinity of 12 the site would have an opportunity to participate in 13 a limited appearance session. As Mr. Jenkins 14 indicated, there is a very nice facility where the NRC 15 has conducted the NEPA scoping meeting in the past, 16 and that would afford these residents and local 17 personnel an opportunity to participate.

18 ADMIN. JUDGE TRIKOUROS: Okay. Thank you.

19 MR. LODGE: Your Honor, this is Terry 20 Lodge. I have a -- without waiving our preference 21 that Toledo be a site, I would like to propose a 22 couple of things. Number one, in the past, the NRC 23 has convened public presentations of various sorts at 24 the Oak Harbor, Ohio, high school auditorium, which is 25 a very lovely, modern high school, large auditorium, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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273 1 with pretty good acoustics, if memory serves. That 2 might be a place for limited appearance statements in 3 the Ottawa County/Port Clinton area. It is about five 4 miles south of the plant itself.

5 We concur that the citizens/residents 6 living in relative proximity to Davis-Besse need to be 7 heard, but we also would request that the Board 8 consider taking limited appearance statements in 9 Toledo, if that is the ultimate forum, also.

10 CHAIRMAN FROEHLICH: Thank you.

11 ADMIN. JUDGE TRIKOUROS: All right. Thank 12 you. Thank you.

13 CHAIRMAN FROEHLICH: Judge Kastenberg, did 14 you have anything?

15 ADMIN. JUDGE KASTENBERG: No, not at this 16 time.

17 CHAIRMAN FROEHLICH: Okay. All right.

18 That leaves us I guess, having gone through the items 19 that were enumerated in the Board's order, with a 20 commitment by the parties to have within two weeks 21 from Monday a draft on mandatory disclosure 22 agreements, as well as a proposed schedule to be 23 instituted in this case, which will be submitted to 24 the Board.

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274 1 the materials that are filed two weeks hence and put 2 together a draft scheduling order for the parties.

3 And then, after having received comments on that 4 proposed order, to issue a final scheduling order to 5 govern the proceedings in this case.

6 Is there any other issues? Does anyone 7 else wish to be heard on any of the things that we 8 discussed today?

9 (No response.)

10 Please keep in mind the model milestones 11 in the proposed schedule, and as well as anything that 12 is spelled out in the Commission's regulations. Yes.

13 We may spill over the 55 days that are mentioned in 14 the milestones for getting this order out, but we will 15 do our best to make it as close to that as we possibly 16 can.

17 All right. With that, let's conclude 18 today's telephone pre-hearing conference and stand 19 adjourned.

20 Thank you all.

21 (Whereupon, at 1:45 p.m., the proceedings 22 in the foregoing matter were adjourned.)

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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: First Entergy Nuclear Davis Besse Station Name of Proceeding: Pre-Hearing Conference Docket Number: 50-346-LR ASLBP No. ii-907-01-LR-BDO1 Location: (teleconference) were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings.

Charle -Mo-rrfson-Official Rep rter Neal R. Gross & Co., Inc.

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