ML111570426

Agreement of the Parties Regarding Mandatory Discovery Disclosures in the Matter of Davis-Besse, Unit 1

ML111570426
Person / Time
Site:	Davis Besse
Issue date:	06/06/2011
From:	Polonsky A FirstEnergy Corp, Morgan, Morgan, Lewis & Bockius, LLP
To:	William Froehlich, Kastenberg W, Nicholas Trikouros Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 20427, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML111570426 (8)

Text

Alex S. Polonsky Partner 202.739.5830 apolonsky@morganlewis.com Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004

Tel. 202.739.3000 Fax: 202.739.3001 www.morganlewis.com Washington Philadelphia New York Los Angeles San Francisco Miami Pittsburgh Princeton Chicago Palo AltoDallas Houston Harrisburg Irvine Boston Wilmington London Paris Brussels Frankfurt Beijing Tok yo June 6, 2011

William J. Froehlich, Chair

Nicholas G. Trikouros Dr. William E. Kastenberg Atomic Safety and Licensing Board

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

Docket: FirstEnergy Nuclear Operating Company (Davis-Besse Nuclear Power Station, Unit 1), Docket No. 50-346-LR Re: Agreement of the Parties Regarding Mandatory Discovery Disclosures

Dear Administrative Judges:

During the May 19, 2011 conference call with the Board, the parties agreed to provide the Board with a proposed schedule and an agreement governing the exchange of mandatory disclosures.

The purpose of this letter is to provide the proposed schedule (attached) and to inform you that the parties to this proceeding have reached the following agreement concerning mandatory

disclosures under 10 C.F.R. § 2.336 and the hearing file under 10 C.F.R. § 2.1203. As used in this agreement, the term parties includes FirstEnergy Nuclear Operating Company (FirstEnergy) (the applicant in this matter), Joint Petitioners 1 and the U.S. Nuclear Regulatory Commission (NRC) Staff. The parties have agreed to the following protocol:

1. The parties may limit the mandatory discovery disclosures to final documents that they and their contractors develop, and need not include drafts (including comments on drafts, 1 The Joint Petitioners are Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio.

J UNE 6, 2011 2transmittals of drafts, resolution of comments on drafts, and similar documents). Handwritten notes on a final document constitute a separate document, and must be produced as well as the original document.

2. If the same relevant e-mail exists in multiple locations, each party may produce only one copy of that e-mail. If the e-mail exists in both sender and recipient e-mail folders, the party may produce the senders copy of the e-mail. If a chain or string of e-mails exists, the party need only produce the last e-mail in the chain or string, provided that it includes all of the previous e-mails and recipients of the chain or string.

3. To the extent reasonably practicable, each party will provide electronic copies of documents in a word-searchable, PDF format.

4. The parties have agreed to waive the requirement in 10 C.F.R. §§ 2.336(a)(3) and 2.336(b)(5) to produce privilege logs. The parties, however, will still produce as part of their disclosures lists of any documents withheld as containing sensitive unclassified non-safeguards information (SUNSI), including, but not limited to, proprietary, confidential commercial, and security-related information.

5. A party need not identify or produce any document that already has been served on the other parties to this proceeding.

6. The parties need not produce publicly-available documents. Each party, however, will produce as part of its disclosures a log identifying publicly-available documents upon which the party may rely at hearing and indicating the general location of such documents.

7. The parties need not identify or produce press clippings, including web clippings, unless they plan to rely on them at hearing.

8. The following documents are not relevant to admitted contentions, and need not be produced: documents that contain only administrative information related to a contention, such as notices of upcoming meetings or telephone calls, records of time and expenses, billing statements, and similar documents; and documents older than five years from the date of FirstEnergys submittal of the License Renewal Application to the NRC, which was August 27, 2010.

9. The parties will treat the following as locations of reasonably accessible electronically-stored information: computers, shared/networked drives, modeling software input and output codes, removable drives (such as thumb drives), and e-mails.

J UNE 6, 2011 3 10. In connection with the NRC Staffs submittal of the hearing file, the Staff will identify all relevant documents available via the NRCs website or ADAMS, as required by

10 C.F.R. §§ 2.336(b) and 2.1203. The parties shall not otherwise be required to identify or produce docketed correspondence or other documents available via the NRCs website or ADAMS.

11. In connection with the NRC Staffs disclosures and hearing file required by 10 C.F.R.

§§ 2.336(b) and 2.1203 and FirstEnergys disclosures pursuant to 10 C.F.R. § 2.336, the NRC Staff and FirstEnergy will identify documents and correspondence that are relevant to the admitted contentions, subject to the limitations set forth in this agreement.

12. In accordance with the provisions of 10 C.F.R. § 2.336(a)(1), each of the parties shall identify any person on which it may rely upon as a witness, with its initial or update to mandatory disclosures, with final witness lists exchanged no later than 60 calendar days before the due date for Joint Petitioners direct testimony. Depending on the written testimony eventually filed by the parties, the parties reserve the right to identify rebuttal witnesses not previously identified in these mandatory disclosures, but they must do so no later than 7 calendar days after receiving the written testimony they are opposing: rebuttal testimony (for Joint Petitioners) and sur-rebuttal testimony (for FirstEnergy and the NRC Staff).

13. The parties agree that the initial mandatory discovery disclosures, and the NRC Staffs hearing file index, shall be filed no later than 30 calendar days after the Commission rules on the May 6, 2011 appeal of LBP-11-13, or four and one-half (4.5) months after the Board issues its initial scheduling order, whichever is earliest. A party may voluntarily file its initial mandatory disclosures earlier. Until the NRC Staff issues the final safety evaluation report (SER) or final environmental impact statement (EIS), the continuing

obligation of the parties under 10 C.F.R. § 2.336(d) to update their respective disclosures is modified so that any information or documents subsequently developed or obtained must be disclosed in a periodic update transmitted on the 15th day of every other month (subject to 10 C.F.R. § 2.306(a)). A party may voluntarily update more frequently.

14. The duty to update mandatory disclosures and the hearing file shall terminate 30-days before submittal to the Board of Joint Petitioners direct testimony. If a contention has been dismissed through summary disposition or for other reasons (e.g., mootness), the duty to update mandatory disclosures shall terminate with respect to that contention upon issuance of the Board order dismissing that contention.

J UNE 6, 2011 4DB1/ 67309418 Representatives for each of the other parties identified above have authorized counsel for FirstEnergy to submit this agreement and attached proposed schedule on behalf of the other

parties.

Respectfully submitted,

Executed in Accord with 10 C.F.R. § 2.304(d) Signed (electronically) by Alex S. Polonsky Alex S. Polonsky Counsel for FirstEnergy

Davis Besse License Renewal Proceeding Parties' Proposed Schedule 6-Jun-11 Date D ays f rom NRC Issuance of Final SEIS (assumed to be May 30, 2012)# of Days Between ActionsAction/Filing DeadlineNotesWednesday, May 30, 201200 NRC Staff issues Final SEIS The Final SEIS is the trigger for the contentions admitted by LBP-11-13 because they are NEPA-related contention.Thursday, May 31, 2012N/AN/A Parties exchange final witness lists for

contentions admitted by

LBP-11-13 This date is 60 days before Petitioners file direct testimony, per the mandatory disclosures agreement.Saturday, June 30, 2012N/AN/A Parties exchange final mandatory disclosures

on contentions

admitted by LBP-11-13 Final disclosures due one month before Petitioners file direct testimony. Parties continue to be under an obligation to disclose

documents that will bre relied upon at hearing.Monday, July 30, 20126160 Joint Petitioners file direct testimony (written

position statement, written testimony, and

exhibits).

The initial written statement shall be in the nature of a trial brief that summarizes the partys case, setting out applicable legal

standards, identifying witnesses and evidence, and specifying

with as much particularity as practicable how each witness, exhibit, or category of evidence supports a factual or legal

position. The written testimony shall be submitted under oath in

the form of an affidavit or sworn declaration suitable for being

received directly into evidence pursuant to 10 C.F.R. §

2.1207(b)(2). The exhibits shall include all documents that the

party or its witnesses refer to, use, or are specifically relying upon

for their statements or position.Wednesday, August 29, 20129130 FirstEnergy & NRC Staff opportunity to file

Motions in Limine/Strike30 days from Joint Petitioners' Direct testimonyFriday, September 28, 2012121N/A Applicant and Staff file Rebuttal testimony60 days from Joint Petitioners' Direct testimony 67347541 Date D ays f rom NRC Issuance of Final SEIS (assumed to be May 30, 2012)# of Days Between ActionsAction/Filing DeadlineNotesMonday, October 15, 201213817 Petitioners file Sur-rebuttal testimony &

identify any rebuttal witnessesMonday, October 22, 20121457

1) Motions for cross-examination due;

2) Opportunity to File

Proposed Questions for

Board to AskMonday, October 29, 2012152N/A

1) Joint Petitioners' opportunity to file

Motion in Limine/Strike;

2) Applicant and Staff

identify any rebuttal witnesses30 days from Applicant and Staff Rebuttal testimonyMonday, December 03, 2012183 Single evidentiary hearing on contentions admitted by LBP-11-1349 days after Petitioners' SurreplyWednesday, January 02, 201321330 Parties file findings of fact and conclusions of law30 days after start of hearingTuesday, April 02, 201330390 Dealine for Board's Initial Decision 67347541 DB1/ 67271215.1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) June 6, 2011

) CERTIFICATE OF SERVICE I hereby certify that, on June 6, 2011, a copy of the Agreement of the Parties Regarding Mandatory Discovery Disclosures was served electronically with the Electronic Information Exchange on the following recipients:

Administrative Judge William J. Froehlich, Chair Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001 E-mail: wjf1@nrc.gov

Administrative Judge Dr. William E. Kastenberg Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001 E-mail: wek1@nrc.gov

Office of the Secretary

U.S. Nuclear Regulatory Commission Rulemakings and Adjudications Staff

Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov

Administrative Judge Nicholas G. Trikouros Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001 E-mail: nicholas.trikouros@nrc.gov

Office of the General Counsel

U.S. Nuclear Regulatory Commission

Mail Stop O-15D21

Washington, DC 20555-0001

Brian G. Harris

Lloyd Subin E-mail: Brian.Harris@nrc.gov

Lloyd.Subin@nrc.gov

- - 2 Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission

Mail Stop: O-16C1

Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov

Kevin Kamps

Paul Gunter

Beyond Nuclear

6930 Carroll Avenue, Suite 400 Takoma Park, MD 20912 E-mail: kevin@beyondnuclear.org;

paul@beyondnuclear.org

Michael Keegan Dont Waste Michigan

811 Harrison Street

Monroe, MI 48161 E-mail: mkeeganj@comcast.net

Terry J. Lodge

316 N. Michigan St., Ste. 520

Toledo, OH 43604 E-mail: tjlodge50@yahoo.com Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Phone: 202-739-5059

Fax: 202-739-3001 E-mail: sburdick@morganlewis.com COUNSEL FOR FIRSTENERGY