ASLBP 10-906-02-LR-BD01, Transcript of Pre-Hearing Telephone Conference Held on March 14, 2011, Pages 175-227
| ML110770445 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/14/2011 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-443-LR, ASLBP 10-906-02-LR-BD01, NRC-792, RAS VV-05 | |
| Download: ML110770445 (55) | |
Text
(h-s vv-Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION DOCKETED March 14, 2011 (10:30 a.m.)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF
Title:
Seabrook Station, Unit 1 Docket Number:
ASLBP Number:
Location:
Date:
50-443-LR 10-906-02-LR-BDO1 (telephone conference)
Monday, March 14, 2011 Work Order No.:
NRC-792 Pages 175-227 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 h *L/T E 5"*o__-Y _ 03,.)_
b 9n3
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL PRE-HEARING CONFERENCE x
IN THE MATTER OF:
NEXTERA ENERGY
- SEABROOK, LLC (Seabrook Station, Unit 1)
- Docket No.
50-443-LR
- ASLBP No 10-906-02-LR-BD01 x
Monday, March 14, 2011 The above-entitled matter came on for prehearing conference, pursuant to notice, via teleconference at 10:30 a.m.
BEFORE:
PAUL RYERSON, Chairman, Administrative Judge MICHAEL KENNEDY, Administrative Judge RICHARD WARDWELL, Administrative Judge NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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APPEARANCES:
2 On Behalf of NRC:
3 MARY SPENCER, ESQ.
4 EMILY MONTEITH, ESQ.
5 MAXWELL SMITH, ESQ.
6 MEGAN WRIGHT, ESQ.
7 of:
Office of the General Counsel 8
Mail Stop 15 D21 9
U.S. Nuclear Regulatory Commission 10 Washington, DC 20555-001 11 12 On Behalf of the Applicant:
13 STEVEN C.
- HAMRICK, ESQ.
14 of:
NextEra Energy Seabrook, LLC 15 801 Pennsylvania Avenue, NW 16 Washington, DC 20004 17 18 ANTONIO FERNANDEZ, ESQ.
19 of:
NextEra Energy Seabrook, LLC 20 700 Universe Boulevard 21 Juno Beach, FL 33408 22 On Behalf of Beyond Nuclear:
23 PAUL GUNTER 24 6930 Carroll Avenue, Suite 400 25 Takoma Park, MD 20912 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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On Behalf of Seacoast Anti-Pollution League:
2 DOUG BOGEN 3
Seacoast Anti-Pollution League 4
P.O. Box 1136 5
Portsmouth, NH 03802 6
7 On Behalf of Friends of the Coast/New England 8
Coalition:
9 RAYMOND SHADIS 10 P.O.
Box 98 11
- Edgecomb, ME 04556 12 13 On Behalf of the State of Massachusetts:
14 MATTHEW BROCK, ESQ.
15 Assistant Attorney General 16 Office of the Attorney General 17 State of Massachusetts 18 One Ashburton Place 19
- Boston, MA 02108 20 21 ALSO PRESENT:
22 HILLARY CAIN, Law Clerk to the ASLBP 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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PRO C E E D I NG S 2
10:33 a.m.
3 CHAIRMAN RYERSON:
On the record.
Good 4
morning, everybody.
This is Judge Ryerson.
Let's go 5
on the record.
I think what happened earlier was 6
really not necessarily on the record.
7 I'm here with Judge Kennedy in Rockville 8
along with Hillary Cain, the Law Clerk to this Board.
9 And, Judge Wardwell, are you on?
10 JUDGE WARDWELL:
I am.
I was wondering 11 whether anyone was going to care whether I was or not.
12 And I was pleased to be invited.
13 CHAIRMAN RYERSON:
We now have you on the 14 record as a participant.
As Ms.
Cain explained, the 15 rules seems to change on these calls for some reason.
16 I'm not sure why it happened, but --
17 JUDGE WARDWELL:
I might add that they 18 didn't ask one way or the other.
That never came up 19 during when you signed in.
So just for your 20 information.
21 CHAIRMAN RYERSON:
Yes.
We'll try to fix 22 that in the future.
Okay.
We obviously have the 23 reporter on line and just for the record let's at 24 least have those participants who expect to speak 25 identify yourselves once again starting with the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Applicant.
2 MR.
HAMRICK:
Yes, this is Steven Hamrick 3
for the Applicant and also on the line I believed is 4
Antonio Fernandez.
5 MR.
FERNANDEZ:
I'm here as well.
Can you 6
hear me?
7 (Chorus of yeses.)
8 CHAIRMAN RYERSON:
Yes.
All hear you.
9 Thank you.
10 And for the Beyond Nuclear I think I heard 11 Mr. Gunter.
12 MR.
GUNTER:
Yes, this is Paul Gunter.
13 CHAIRMAN RYERSON:
And I think I heard Mr.
14 Shadis for
- And, Mr.
- Gunter, who are you 15 representing?
16 MR.
GUNTER:
I am representing the New 17 Hampshire Sierra Club and, Mr.
Bogen, you can speak.
18 MR.
BOGEN:
I'm with Seacoast Anti-19 Pollution League, but Mr. Gunter will be speaking for 20 our group.
21 CHAIRMAN RYERSON:
Okay.
Thank you.
- And, 22 Mr.
Shadis, who are you representing today?
23 MR.
SHADIS:
Friends of the Coast and New 24 England Coalition.
25 CHAIRMAN RYERSON:
Okay.
Welcome.
Let's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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see the NRC --
Oh, and Mr. Brock is on.
is not yet been admitted as a participant.
I'm not 3
aware that anyone is going to object to that.
And 4
unless there's an objection we'll certainly have him 5
speak today if he would like to.
6 MR.
BROCK:
Thank
- you, Your Honor.
7 Matthew Brock representing Commonwealth of 8
9 CHAIRMAN RYERSON:
And that leaves the NRC 10 staff I believe.
11 MS.
SPENCER:
Yes, this is Mary Spencer 12 for the NRC staff and I have Max Smith, Emily Monteith 13 and Megan Wright and the Project Manager for Safety 14 Rick Plasse with me.
15 CHAIRMAN RYERSON:
Okay.
Thank you.
16 All right.
And it is possible that there 17 are additional members of the public.
Our intent was 18 to allow members of the public to call in but not 19 speak.
And I take the fact we've had everybody now as 20 a speaker that nobody did call in.
So if there is 21 that remote possibility that someone else is listening 22 we had made that opportunity available.
23 The purpose of the call today is set forth 24 in our February 24 Order which is essentially to help 25 the Board develop a
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proceeding.
And what I propose to do unless there is 2
a consensus to the contrary is just go through the 3
items in that order in the order in which they are 4
listed.
5 I
know we did ask the parties to see 6
whether they might reach agreement or perhaps at least 7
a consensus on some of these.
And if that is the case 8
we can discuss that as we go through item by item.
9 Any comments before we begin? First from 10 my fellow judges?
Judge Kennedy, is there anything?
11 JUDGE KENNEDY:
I have nothing to add.
12 Thank you.
13 CHAIRMAN RYERSON:
Judge Wardwell.
14 JUDGE WARDWELL:
I have nothing.
15 CHAIRMAN RYERSON:
Okay.
Any of the 16 parties want to say anything before we start with Item 17 1?
18 MR.
GUNTER:
Judge Ryerson, this is Paul 19 Gunter, Beyond Nuclear.
20 CHAIRMAN RYERSON:
Yes.
21 MR.
GUNTER:
Is there an opportunity on 22 the agenda to address the fact that I am going to be 23 out of the country on business and family obligation 24 at some point during April?
If I could just put that 25 into the schedule.
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CHAIRMAN RYERSON:
Well, we can certainly 2
consider that.
I have a feeling that April will not 3
be a particularly busy time at least from the Board's 4
standpoint.
We haven't ruled yet on the motion, the 5
agreed-upon motion, to postpone the disclosures.
But 6
I suspect that we will be giving at least another 7
month on that.
So, yes, if you would just keep your 8
schedule in mind as we talk through these things and 9
remind us of that if it's necessary.
10 MR.
GUNTER:
Yes, sir.
11 CHAIRMAN RYERSON:
Okay then. Let's begin 12 with Item 1 which is the unopposed motion to defer 13 initial disclosures.
I'll tell you.
My sense and I 14 think it may be the sense of the Board, although we 15 haven't finally talked about all these things, is that 16 some delay to allow the Commission to rule upon the 17 appeals would probably make sense as long as it's not 18 going to interfere in any way with achieving a hearing 19 within the time frame of the milestones.
And I guess 20 that depends to some extent on what the staff's 21 schedule is for the SER and the EIS.
22 Now the staff has indicated --
I think, 23 Ms. Spencer, you sent a letter on March 7 which says 24 there will be a final SEIS in January of 2012 and also 25 says that there will be a final SER for submittal to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the ACRS.
That's the Advisory Committee on Reactor 2
Safeguards in the same month.
3 And I guess that my first question to you, 4
Ms.
Spencer, is do you see that as the version of the 5
SER that triggers the milestones under the rules or is 6
there a later version that we also should be aware of.
7 MS.
SPENCER:
No.
I would --
The final 8
version is the one that normally triggers the 9
milestones for the hearing on safety contentions.
10 CHAIRMAN RYERSON:
I mean when you say the 11 final version the version --
12 MS.
SPENCER:
The version the one that we 13 intend to have --
that we scheduled for January of 14 2012.
The one that gets submitted to the ACRS.
15 CHAIRMAN RYERSON:
Okay.
16 MS.
SPENCER:
That would be the final that 17 would trigger the deadline.
18 CHAIRMAN RYERSON:
Yes.
And if you can, 19 and I know this may be difficult, do you have a sense 20 of the confidence limits on your projection for both 21 of these staff documents in January of 2012?
Very 22 likely.
Somewhat likely.
Really not sure at this 23 point.
24 MS.
SPENCER:
You know I would say we're 25 not sure at this point.
You know I could have said --
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In my experience is that these things can change and 2
that we will have to update the parties as we move 3
along in our process.
4 CHAIRMAN RYERSON:
Right.
And you've 5
committed to do that in a timely fashion in your March 6
7 letter.
7 MS.
SPENCER:
That's correct.
And that 8
would probably be part of our monthly update if 9
there's any change once we start doing disclosures and 10 before that if there's any significant change.
But 11 once we start doing our disclosures we would include 12 any changes to that anticipated schedule in that 13 document.
14 CHAIRMAN RYERSON:
Okay.
Thank you.
15 Here is my -- And I'm speaking for myself 16 at the moment -- preliminary thinking about what to do 17 with the initial disclosures.
We have an unopposed 18 motion in front of us.
At the same time, we don't 19 want to build in any immediate delay in the process.
20 Delays seem to rear their ugly heads from time to time 21 without any help from us.
22 So I guess I would be myself interested in 23 what the parties might think would be a reasonable 24 time period to allow the Commission potentially to 25 decide the appeal without getting us into a point NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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where assuming we have staff documents February 2012 2
that we would be interfering with a timely milestone 3
compliant hearing process.
4 Let me --
Who filed that motion actually?
5 Was it NextEra?
6 MR.
HAMRICK:
Yes.
Judge Ryerson, this is 7
Steven Hamrick for NextEra.
That was our motion.
8 CHAIRMAN RYERSON:
Yes.
If we were to say 9
that initial disclosures are due 30 days from the 10 Commission's ruling on the appeals but no later than 11 X, what do you think a good date would be for X?
12 MR.
HAMRICK:
And I
understand the 13 concern.
I know it's judging or trying to guess at 14 how long a Commission appeal will take is a very 15 difficult game.
So I think I am comfortable with the 16 idea that you're proposing of putting some sort of cap 17 on the suspension of discovery.
18 I believe that the appeal was filed right 19 around March ist.
And six months from March 1st would 20 be around I believe --
21 JUDGE WARDWELL:
September 1st.
22 MR.
HAMRICK:
September 1st?
23 JUDGE WARDWELL:
Yes.
Six and three is 24 nine, anyhow.
25 MR.
HAMRICK:
Right.
It's always easier NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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to do math when you don't talking.
2 CHAIRMAN RYERSON:
This is Judge Ryerson 3
if I may interrupt.
I forgot to mention this at the 4
beginning.
Please when you speak for the benefit of 5
the reporter who is going to have a very hard time 6
otherwise please identify who you are.
I'm sorry.
7 Continue.
8 MR.
HAMRICK:
Sure.
And this is Steven 9
Hamrick again for NextEra.
I think perhaps giving the 10 Commission six months to issue a decision by September 11 1st and then giving the parties 30 days from that date 12 would be approximately October 1st.
13 CHAIRMAN RYERSON:
October 1st is a
14 Saturday.
So it would be October 3.
15 MR.
HAMRICK:
Okay.
16 CHAIRMAN RYERSON:
That's -- Anybody have 17 a problem with that.
Anybody see that that is 18 unnecessarily long delay?
Staff in particular?
19 MR.
SHADIS:
Judge Ryerson.
20 CHAIRMAN RYERSON:
Yes.
21 MR.
SHADIS:
This is Ray Shadis speaking 22 and I have a concern.
I'm not sure I can clearly 23 articulate it.
But if there are no disclosures until 24 October 1st it really compresses the amount of time 25 that we have to investigate the issues prior to the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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issuance of the SER.
We're looking at two or three 2
months max where normally there would be much closer 3
to a year to review that material.
4 CHAIRMAN RYERSON:
Okay.
Now, Mr. Shadis, 5
if I understand things, you agreed to the motion to 6
defer initial disclosures and the motion frankly did 7
not have a cap on how long the extension might go 8
simply keyed to completion of the appeal.
So I'm a 9
little surprised at your view on this at this point.
10 MR.
SHADIS:
Yes, Your Honor.
Ray Shadis 11 again.
It's understandable and I think that we're at 12 fault for not clearly thinking through the 13 ramifications.
But at the same time --
I guess that's 14 it.
I really was not looking at the SER milestone for 15 triggering the remainder of the hearing process.
16 And we will, of course, do what the Board 17 orders, but I am raising this as an issue.
I just 18 really now recognized it as an impediment.
19 In addition, we had begun to think about 20 the effect of holding on disclosures on potential 21 motions for summary disposition.
And we raised this 22 issue with NextEra and the staff in our --
We did have 23 a conference call on Friday to talk about these 24 issues.
And the issue is that if motion for summary 25 disposition are filed in advance of disclosures or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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immediately upon the initial disclosures, we are at a 2
disadvantage of not having been able to review the 3
relevant evidence.
4 CHAIRMAN RYERSON:
This is Judge Ryerson.
5 I think that's clear.
If there hasn't been discovery, 6
normally we would never grant summary disposition.
7 MR. HAMRICK:
Steven Hamrick fromNextEra.
8 There's --
We do not dispute that either.
9 CHAIRMAN RYERSON:
I think there's been --
10 MR.
HAMRICK:
There is general consensus 11 that summary disposition motions would need to wait 12 beyond a reasonable period beyond when discovery 13 commences.
14 CHAIRMAN RYERSON:
Yes.
Let me ask this.
15 Since you did have a call to discuss this, who is 16 happy with the October 3
deadline?
I take it 17 obviously the Applicant has proposed an October 3 18 deadline to submit initial disclosure regardless of 19 the status of the appeal at this point.
20 MR.
FERNANDEZ:
Your
- Honor, this is 21 Antonio Fernandez for NextEra.
Can we have --
I don't 22 know that --
Can we have an opportunity to confer?
23 Co-counsel for the Applicant is located at different 24 locations.
Before this idea of October 3rd gets much 25 more discussion I want to make sure that internally NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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the Applicant has aligned on that date.
2 CHAIRMAN RYERSON:
Okay.
I was attempting 3
to see whether any other parties were happy with that 4
date.
So the Applicant is not necessarily proposing 5
October 3.
6 MR.
FERNANDEZ:
Since it's the first time 7
that it's come up, I think it would be helpful if I
8 could just talk to Mr. Hamrick separate from the group 9
if that's something that the Board intends to do today 10 so that we can give you our final position on that 11 issue.
12 CHAIRMAN RYERSON:
Okay.
13 MR.
FERNANDEZ:
But we can --
We have the 14 possibility of putting you on mute and then him and I 15 talking on a different line if that's what you would 16 like us to do.
17 CHAIRMAN RYERSON:
Okay.
Let's see where 18 other parties are.
Mr. Shadis, did you have a date of 19 your own that you were prepared to propose as an 20 absolute cutoff for the deadline for initial 21 disclosures?
22 MR.
SHADIS:
Ray Shadis again.
No, Your 23 Honor.
I didn't.
And again this is a
new 24 consideration for us.
I would only ask that the Board 25 consider and deliberate on the question of how this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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might affect the remainder of the calendar in order to 2
provide a
real opportunity to go through the 3
information prior to triggering the milestones at the 4
end of the calendar.
5 CHAIRMAN RYERSON:
Well, that's why I was 6
proposing a limit to the extension.
And the question 7
is what's an appropriate limit.
8 Does the NRC staff have a view as to what 9
an appropriate time period would be assuming we allow 10 several months in order not to have any likely effect 11 on the milestones?
12 MS. SPENCER:
This is Mary Spencer for the 13 staff.
I was not on the conference call on Friday.
14 But as I've been reported by co-counsel who 15 participated in the
- call, I
don't think this 16 particular issue came up in the call.
So I concur 17 with Mr. Shadis on that.
18 I think the staff agrees that some limits 19 should probably be placed.
We all know that 20 predicting when the Commission will handle an appeal 21 is not possible to do that.
I guess one point that 22 the staff would make is that obviously our documents 23 as we go through this process, our REIs and the REI 24 responses, all those things are going out in public 25 and are provided to the electronic ListServe and are NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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available on ADAMS as we go along.
2 But we do think that there is a potential 3
that if we wait too long to start initial disclosures 4
we would be getting rather close to the trigger dates 5
for a hearing.
I don't know that we have a specific 6
view about whether October is too late.
I don't think 7
we were prepared to take a position on that at this 8
point.
9 But I would be hopeful that we could hear 10 from the Commission sometime during the summer or 11 August/September time frame.
12 CHAIRMAN RYERSON:
Yes.
All right.
- Well, 13 this somewhat ties in with one of the last issues 14 which I was going to discuss which is after we've gone 15 through all these issues where do we go from here.
I 16 must say tentatively I was thinking it might be most 17 efficient after we've discussed these items orally for 18 the Board to prepare a draft scheduling order and then 19 submit that to all the parties for comment before we 20 finalize it.
21 Maybe in this instance it would be helpful 22 if the parties could attempt to discuss a specific 23 date for initial disclosures, again but the concept 24 would be 30 days after a decision by the Commission on 25 appeal but no later than this date.
And if the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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parties can agree upon that, perhaps if you can submit 2
that in writing within the next ten days we'll work 3
that into our draft order.
And if there is not 4
agreement, then within the next ten days any party is 5
free to file a statement of what they think the 6
appropriate cutoff date should be.
7 MR.
SHADIS:
Judge Ryerson, this is Ray 8
Shadis again.
9 CHAIRMAN RYERSON:
Yes.
10 MR.
SHADIS:
If I may suggest.
I cannot 11 foresee that even with long meditation on this we 12 could come up with a better date.
I would suggest 13 that perhaps it would be possible to conclude this 14 issue now if we were to allow NextEra a brief recess 15 to confirm that October 3rd would be the date.
And I 16 know that I would agree on behalf of Friends/NEC that 17 we would go with that date.
18 MR.
SMITH:
Your Honor, this is Max Smith 19 from the NRC staff.
20 CHAIRMAN RYERSON:
Yes.
21 MR.
SMITH:
I would like to point out, 22 too, that based on a reading of the model milestones 23 the direct testimony won't be filed until 155 days 24 after the issuance of the SER.
25 CHAIRMAN RYERSON:
We'll get to that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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however.
2 MR.
SMITH:
October's deadline.
That 3
would provide until January and then another five 4
months after that.
So it would be almost eight months 5
of disclosures up until the time of testimony.
So I 6
think the October deadline might actually be a good 7
balance between giving the Commission enough time to 8
rule and at the same time making sure the parties 9
adequate time to prepare.
So the staff thinks that 10 October might actually be a good time.
11 CHAIRMAN RYERSON: All right. Here's what 12 I'd like to say about that.
I would like to do 13 something that has some support by the parties if we 14 do anything here.
But don't count on having that long 15 for direct testimony because under the milestone 16 direct testimony comes in I believe 20 days before the 17 hearing which I
think is almost certainly 18 unrealistically a short period of time in this kind of 19 contested case.
20 So I think we will probably be striving to 21 move that date forward a bit for initial testimony in 22 front of the hearing which can be much more efficient 23 if the Board has an opportunity to look at the written 24 testimony, if there's an opportunity for a rebuttal 25 written testimony.
And the Board may not find it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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necessary to bring in some of the authors of the 2
testimony if we have an adequate time to consider it.
3 That's another issue which we may get to today.
4 But I do agree that the overall milestones 5
contemplate about roughly six months after the staff 6
documents before holding a hearing and another three 7
months to decide.
So I think that if, myself, the 8
initial disclosures were available to everyone around 9
October 1 that might be adequate.
10 But I'd like to see if we're going to 11 decide that tentatively today, again we have to 12 discuss this with Judge Wardwell and Judge Kennedy.
13 But if we were to decide it right now, does Beyond 14 Nuclear have an objection?
I think if the staff does 15 not have an objection and the Applicant would like to 16 confer and make sure that's okay with them, Mr. Shadis 17 is okay with that as I understand it if it's okay with 18 the Applicant, I haven't heard from I guess Beyond 19 Nuclear or not yet a party or not yet a participant 20 officially, Massachusetts.
Do either of you have 21 comments on that?
22 MR.
GUNTER:
This is Paul Gunter with 23 Beyond Nuclear.
You
- know, since Mr.
Shadis is 24 carrying the burden of addressing safety contentions 25 we're going to defer to his call on this.
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CHAIRMAN RYERSON:
Okay.
And, Mr. Brock, 2
do you have any comments?
3 MR.
BROCK:
No, Your Honor.
I don't think 4
at this time Massachusetts is considering filing 5
direct testimony, although we have some questions 6
about that as we get to some of these other issues 7
identified in your order.
So again we don't have a 8
direct stake in that decision.
9 CHAIRMAN RYERSON:
Okay.
All right.
So 10 let's see.
Does the Applicant want to just take a 11 minute and have a private call on this subject and the 12 rest of us if you don't mind waiting for just a minute 13 or two.
14 MR.
HAMRICK:
- Yes, Your Honor.
This is 15 Steve Hamrick from NextEra.
That would be 16 appreciated.
17 CHAIRMAN RYERSON:
Okay.
18 MR.
HAMRICK:
And we may be able to reach 19 an agreement here today.
Thank you.
20 JUDGE WARDWELL:
And this is Judge 21 Wardwell just quickly interrupting with another mass 22 comment that if we project the rate at which we're 23, going we'll be done with this conference call in five 24 and a half hours.
I just thought I would interject 25 that.
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CHAIRMAN RYERSON:
I'm very aware of that, 2
Judge Wardwell.
But thanks for pointing that out.
3
- Well, just wait for a moment here.
We 4
probably should say something so that this doesn't 5
kick out automatically or something like that.
6 (Off the record discussion.)
7 MR.
HAMRICK:
Your Honor, this is Steve 8
Hamrick for the Applicant.
We are back and we can 9
report that we can agree to the date that I proposed 10 myself.
So the concept that if the Commission has not 11 issued a ruling by September 1st that discovery 12 disclosure obligations would kick in on October 3rd.
13 CHAIRMAN RYERSON:
Okay.
Thank you.
14 MR.
SHADIS:
Judge Ryerson, before we 15 proceed if This is Ray Shadis again.
If I might 16 just step back to on the question of motions holding 17 off on motions for summary disposition, we had in our 18 discussion proposed a number there that they might not 19 be filed prior to 30 days after the initial 20 disclosure.
So it would give us time to have a look 21 at the information.
22 CHAIRMAN RYERSON:
Okay.
And that moves 23 us right into the second item.
And, Judge Wardwell, 24 I apologize, but this will take a little longer than 25 some of the others I think.
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And I am speaking -- This is Judge Ryerson 2
for myself, not for the full Board.
But when you 3
have a panel of judges deciding the facts and the law 4
you don't have a jury --
I am skeptical of the 5
advantage in many, many cases of summary disposition 6
motions.
And you will see that the Commission's rules 7
do not even require us to entertain them.
8 Summary disposition is based on summary 9
judgment which makes an awful lot of sense often when 10 you have a jury trial and you've got an extraordinary 11 expense and delay and complications and trying facts 12 in front of a jury.
When the same people who would be 13 reviewing the summary disposition motions are 14 reviewing what is mostly written testimony 15 particularly in an L hearing the efficiencies of 16 summary disposition I think are much more debatable.
17 Basically, whenever a Board entertains 18 summary disposition three things can happen and two of 19 them are bad.
One is that the Board goes through all 20 this and the parties go through all this, filing 21 papers, and the Board decides there's a disputed issue 22 of fact and so it's all for naught.
23 The second thing that can happen which is 24 probably even worse is that Board decides that summary 25 disposition is appropriate, but on appeal the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Commission disagrees.
And the case comes back to the 2
Board again to do it over after a substantial delay.
3 So the only, if you will, good outcome is 4
that the Board decides summary disposition is 5
appropriate and confirmed on appeal, but the savings 6
in terms of time and efficiency compared to conducting 7
an L hearing is often not very large I think.
8 So I approach with some skepticism about 9
summary disposition motions.
They certainly have 10 their place if you have a pure legal contention and 11 they certainly have their place if the parties can 12 agree, all parties agree, there is no dispute as to a 13 genuine issue of material fact.
But if any party says 14 there is a factual issue, it is troublesome to me at 15 least whether it is sufficient to proceed on summary 16 disposition.
17 So that said I guess what I'm suggesting 18 is that at least this member of the Board will be very 19 skeptical if there are summary disposition motions on 20 every single contention that's been admitted.
I would 21 be surprised at that.
So that's sort of a framework 22 perhaps for our discussion.
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was the suggestion.
2 MR. SHADIS:
Yes, Your Honor.
Ray Shadis.
3 Thirty days.
4 CHAIRMAN RYERSON:
And I think perhaps the 5
more or an equally important date is what is the 6
latest that summary disposition motions can be filed.
7
- Again, under the milestones which perhaps were 8
prepared by somebody who has not tried a lot of cases, 9
summary disposition motions can be entertained as late 10 as 45 days before the hearing.
11 And then I think there's a 20 day response 12 period.
And then the Board is supposed to decide them 13 no later than 15 days before the hearing which gives 14 the Board all of ten days to decide a
summary 15 disposition motion which again strikes me as perhaps 16 a little unrealistic and also diverting everybody's 17 time and attention at the very time that they ought to 18 be preparing for the hearing.
19 So I guess I'm suggesting that we will 20 probably want to impose a
limit for summary 21 disposition motions that is somewhat earlier, perhaps 22 quite a bit earlier, that the milestones provide.
And 23 I was, again not speaking for the whole Board at this 24 point, thinking of something like 30 days after the 25 staff documents.
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MR.
SMITH:
The SER, Your Honor.
2 CHAIRMAN RYERSON:
Yes.
3 MR.
HAMRICK:
This is Steve Hamrick for 4
the Applicant.
I didn't hear the amount of days that 5
was in your suggestion.
6 CHAIRMAN RYERSON:
I was
- Again, 7
speaking for myself, I was just contemplating maybe 30 8
days following issuance of the staff documents as a 9
cutoff for summary disposition.
So if they are filed, 10 they don't really interfere with direct preparation 11 for hearing.
12 MR.
SHADIS:
Your Honor, may I interject?
13 This is Ray Shadis.
The parties discussed this.
14 NextEra's proposal was 120 days prior to the hearing.
15 And that would coincide with 30 days after the SER I 16 believe.
One hundred and fifty days minus 30.
17 MR.
HAMRICK:
It would roughly coincide.
18 This is Steven Hamrick.
Under the model milestones, 19 the hearing is to begin 175 days after the issuance of 20 the SER and EIS.
So this wouldn't be exactly the 21 same, but we're in the same ball park.
22 CHAIRMAN RYERSON:
Yes.
All right.
It 23 sounds like there's at least among the parties 24 substantial agreement that a
summary disposition 25 motion should not be filed too soon or too late.
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it sounds like we have at least a consensus if not 2
total agreement on what those times should be.
3 Is there anybody who wants to speak to 4
that now?
Again, I think our plan will be from the 5
Board's standpoint to put some of these dates into a 6
proposed order.
And then we'll submit it for comments 7
before we finalize it.
8 MR. SHADIS:
Your Honor, Ray Shadis again.
9 With small editorial comment, the parties did agree 10 with NextEra's proposal including a
proposal on 11 rulings on summary disposition.
And I would leave it 12 to NextEra to present that to you.
Again, all parties 13 agreed.
14 MR.
HAMRICK:
Sure.
This is Steven 15 Hamrick again.
Our suggestion that we circulate it 16 again was to have motions filed within 120 days prior 17 to the initiation of a hearing.
And then kind of 18 copying the framework from 2.1205 which asks the Board 19 to decide within 15 days of the hearing our proposal 20 that the other parties agreed with was that the Board 21 would decide within 60 days of hearing.
So motions 22 filed within 120 days and then the Board has 60 days 23 to rule which leaves another 60 days prior to the 24 hearing.
That was our suggestion that we floated and 25 received positive feedback from the other parties.
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CHAIRMAN RYERSON:
Okay.
2 MR.
HAMRICK:
And I will leave that with 3
the Board for its consideration.
4 CHAIRMAN RYERSON:
All right.
Thank you.
5 I think we're up to Item 3 which is much shorter or 6
hopefully will be much shorter.
Time limits for 7
motions to file new or amended contentions.
The usual 8
rule I
think is 30 days.
It's not in the NRC 9
regulations, but it seems to be informally adopted.
10 And that's what we were tentatively thinking.
11 Is there any other?
Any agreement to the 12 contrary on that?
13 MR.
HAMRICK:
No, this is Steven Hamrick 14 for NextEra.
That's the time limit that the parties 15 agreed to in our conference call as well.
16 CHAIRMAN RYERSON:
Excellent.
17 MR.
HAMRICK:
And I don't know if the 18 staff wants to get into its suggestion for dealing 19 with the various regulatory requirements for new or 20 late filed contentions on that issue.
21 MS.
SPENCER:
Your Honor, this is Mary 22 Spencer for the staff.
The staff proposed some 23 language that comes from a
number of scheduling 24 orders, Diablo Canyon, Watts Bar Unit 2 and Vermont 25 Yankee scheduling order that just clarifies the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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relationship for the parties.
Thirty days, yes, but 2
also the (f) (2) and 2.309(c) requirement.
So we 3
proposed some language.
4 And then Friends of the Coast/New England 5
Coalition had a modification to that language.
So we 6
were going to say "A
motion and proposed new 7
contention shall be deemed timely under 8
2.309(f) (2) (III) if it's filed within 30 days of the 9
date when the new and material information on which it 10 is based first becomes available to the moving party 11 through service, publication or other means; if filed 12 thereafter the motion and proposed contention shall be 13 deemed non-timely under 2.309(c);
if the movement is 14 uncertain it may file pursuant to both sections, 15 namely 2.309(f) (2) and 2.309(c)."
16 CHAIRMAN RYERSON:
- Yes, that's out of 17 Vermont Yankee's scheduling order I think.
18 MS.
SPENCER:
It is.
But striking the 19 last after -- The last sentence is "If the movement is 20 uncertain and may file to both sections."
And the 21 rest of the paragraph was deleted by NEC's, New 22 England Friends of the Coast, suggestion.
23 CHAIRMAN RYERSON:
Okay.
Now who has 24 signed onto this language?
Who is happy with it?
25 MS.
SPENCER:
I believe there was a
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general agreement that this was acceptable to the 2
parties.
3 CHAIRMAN RYERSON:
Okay.
I think it would 4
probably be helpful if you would submit that as a 5
proposal in writing.
6 MS.
SPENCER:
Okay.
7 CHAIRMAN RYERSON:
We may have sort of a 8
laundry list at the end of things that would be 9
helpful to get in writing before we put together an 10 overall order.
But let's make that one of them.
11 MS.
SPENCER:
Okay.
I will do that, Your 12 Honor.
13 CHAIRMAN RYERSON:
Okay.
Thank you.
14 All right.
Item 5 is 15 JUDGE WARDWELL:
Excuse me.
Judge 16 Wardwell here.
We're still on three, correct, before 17 you move onto five.
18 CHAIRMAN RYERSON:
That actually was four.
19 But go on.
20 JUDGE WARDWELL:
No.
Three was suggested 21 time limits to file new or amended contentions.
22 Right?
23 CHAIRMAN RYERSON:
That is correct, Judge 24 Wardwell.
But then the participants started talking 25 about four.
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JUDGE WARDWELL:
Okay.
2 CHAIRMAN RYERSON:
Which is cleaning up 3
the Cleaning up.
Simplifying the rules on new 4
contentions.
If you literally read the rules, it 5
appears --
6 JUDGE WARDWELL:
I understand.
We have to 7
cut to the chase.
I understand that.
Under four, I 8
would like to also bring up then.
Does anyone have 9
any response to or suggestions for the amount of time 10 for answers and the amount of time for replies?
And 11 the reason I'm saying this is that I'm going through 12 and it's been my experience that it takes more time to 13 go through some of these than what's generally allowed 14 and we're getting a tremendous number of requests for 15 extensions of time.
I want to make sure people have 16 enough time to do what's needed to file answers and 17 replies.
18 MS.
SPENCER:
Your Honor, this is Mary 19 Spencer for the staff.
The parties discussed -- This 20 is Item 4 on your list.
21 JUDGE WARDWELL:
Right.
22 MS.
SPENCER:
And I believe everyone was 23 agreeable to the general language that has been used 24 by a number of boards including the Diablo Canyon 25 license renewal board, the Watts Bar Unit 2 and the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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Vermont Yankee board in their November 2006 scheduling 2
order.
Although there was some discussion among the 3
parties about the time for answers, for replies to 4
answers.
So 25 days for answers to new contentions.
5 And then there was some discussion about 6
allowing ten days for replies to answers.
And I
7 believe that the parties were going to think about 8
that issue.
But otherwise we were agreeable to the 9
language that's been used by previous boards, the 25 10 days for answers.
11 CHAIRMAN RYERSON:
All right.
This is 12 Judge Ryerson.
Ms.
Spencer, you were going to submit 13 a written proposal that I thought represented the 14 consensus of the participants.
And does that have 15 seven days or ten days?
16 MS.
SPENCER:
It will have I
guess 17 there should be some discussion on that, on the ten 18 days.
I believe it was Beyond Nuclear and the New 19 England Coalition that were proposing ten days.
And 20 I don't think that there was significant objection.
21 I mean the staff is find with giving ten days.
And I 22 don't know that NextEra was opposed.
I will submit 23 this in writing for the Board's consideration because 24 it was a consensus.
25 CHAIRMAN RYERSON:
Yes.
I mean the 25 and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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seven would simply mirror what the regulations provide 2
for new contentions.
Ten would give a little longer 3
for the reply.
4 MS.
SPENCER:
That's correct, Your Honor.
5 MR.
SHADIS:
If I may, Your Honor.
This 6
is Ray Shadis.
Our reasoning on that stems from the 7
fact that we are obligated individually to consider 8
the answers of two adversarial parties, so staff and 9
NextEra.
And it really is quite a burden to get 10 through that in seven days and compose a reply.
11 CHAIRMAN RYERSON:
Okay.
Judge Ryerson 12 here.
So you're happy with ten though, Mr.
Shadis.
13 MR.
SHADIS:
Ten is what we suggested.
14 CHAIRMAN RYERSON:
Okay.
All right.
15
- Well, let's move on then.
16 JUDGE WARDWELL:
Thank you.
17 CHAIRMAN RYERSON:
Item 5 is suggested 18 time frame for updating the mandatory disclosures and 19 updating the hearing file.
Again, I don't think this 20 is really necessarily very controversial but it's a
21 continuing obligation under the regulations.
But we 22 can make it a
more We can make it monthly or 23 something like that so you know exactly when you have 24 to do it.
25 Is a
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everyone?
Have you talked about that?
2 MR.
HAMRICK:
This is Steven Hamrick for 3
NextEra.
Yes, we have discussed that and we proposed 4
and the other parties I believe agreed to a monthly 5
update frequency and a suggestion that updates be made 6
on the first Thursday of every month.
And that would 7
include documents created up until the 15th of the 8
previous month.
9 And that is language that we have that we 10 can perhaps ask Ms.
Spencer to include as proposed 11 language in her submittal.
But I believe the parties 12 did reach agreement on that issue.
13 And just generally speaking there are a 14 number of discovery issues that the parties will need 15 to address once we get closer to September or whatever 16 date the Board determines is appropriate.
And so we 17 plan to get much more specific on the discovery 18 obligations in a future conference call among the 19 parties and a future submittal to the Board closer to 20 that date.
21 CHAIRMAN RYERSON:
Thank you.
So, Ms.
22 Spencer, will you undertake to include that language 23 then in what you file?
24 MS.
SPENCER:
- Yes, I will, Your Honor.
I 25 will set forth the first Thursday proposal.
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CHAIRMAN RYERSON:
Okay.
Thank you.
2 MS.
SPENCER:
No further detail on that.
3 Just the 30 day frequency.
4 CHAIRMAN RYERSON:
And also making it 5
current through the 15th of the prior month.
6 MS.
SPENCER:
- Yes, that's correct.
Also 7
that language.
8 CHAIRMAN RYERSON:
Okay.
We appreciate 9
that.
10 Let's see.
Item 6 again doesn't seem like 11 a
terribly controversial one I suspect.
It's the 12 suggested time limit for filing the final list of 13 potential witnesses.
Was there any agreement on that 14 among the parties?
15 MR.
HAMRICK:
Yes, this is Steven Hamrick 16 for NextEra.
The agreement that my notes reflect from 17 our previous conference call would be that each party 18 is to file its witness list not later than 45 days 19 prior to the initiation of the evidence there at 20 hearing and that there also would be an agreement that 21 no witness may testify at the hearing who was not 22 identified as of that date unless there were extreme 23 circumstances such as a witness who has a health 24 condition or something like that and cannot appear.
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hearing who was not identified by that 45 day date.
2 MR.
BROCK:
Your Honor, this is Matt Brock 3
from Massachusetts.
Just a clarification on that.
4 With respect to rebuttal testimony and I believe you 5
made reference to that earlier in this call I wanted 6
to understand where in this process that rebuttal 7
testimony, if any, that could be filed.
And I just 8
did not want to preclude what seemed sort of this 9
broad statement that Mr.
Hamrick just referred to 10 about no witness may testify unless you prefiled that 11 there either be an exception or an additional 12 accommodation for rebuttal testimony if that's 13 permissible.
14 CHAIRMAN RYERSON:
Yes.
I think that will 15 somewhat get into Item 10.
The milestones don't 16 really talk about rebuttal testimony I believe.
The 17 milestones seem to contemplate that there will be just 18 one set of testimony and then 20 days later there will 19 be a hearing.
20 And I
think
- Well, the Board will 21 certainly consider whether that's the best way to 22 proceed or not.
And we can talk a little bit about 23 that in
- 10.
But I think you're absolutely right, Mr.
24 Brock.
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any cutoff, whatever it may be.
2 I must say again speaking for myself and 3
not the Board I think the 45 day rule may be mooted if 4
we, in
- fact, require initial written testimony at 5
least 45 days before the hearing so that we will in 6
fact know who the witnesses are because we'll actually 7
have their testimony.
But we'll take that suggestion 8
of 45 days under advisement as we try to fashion a 9
draft which again we'll circulate for the parties' 10 comments before we finalize.
11 Item 8 if we can move onto that --
- Well, 12 let's see.
13 JUDGE WARDWELL:
You skipped 7.
14 CHAIRMAN RYERSON:
Item
- 7.
Yes.
15 Opportunities for settlement of issues including the 16 utility of appointing a settlement judge.
Let me 17 first ask if the parties have any thoughts about that 18 or any agreement on that.
19 MR.
HAMRICK:
This is Steve Hamrick for 20 NextEra.
We did discuss that and I think all of the 21 parties indicated some openness to settlement 22 discussions or mediation.
But I don't believe felt 23 that the appointment of a settlement judge at this 24 point would be productive at this point.
25 CHAIRMAN RYERSON:
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that some of the contentions that often appear at 2
these cases might seem amenable to settlement.
And 3
I'm not pushing settlement.
We're not the settlements 4
judges if you had them.
5 But one does wonder particularly on a NEPA 6
contention that essentially involves a challenge to 7
the adequacy of an analysis I don't think anybody is 8
suggesting that a NEPA contention even if proven 9
requires anyone to go out and build an offshore wind 10 farm system.
But if proven it would require greater 11 analysis in the NEPA document.
12 So one wonders whether those sorts of 13 issues might be amenable to a voluntary resolution.
14 But I just make the comment.
That's all I'll say on 15 it at this point.
16 Anybody else wish to comment on that item, 17 on Item 7?
18 MR.
SHADIS:
No, Your Honor.
This is Ray 19 Shadis.
I do just want to make it as clear as 20 possible that Friends/NEC is open to settlement 21 discussions at any time.
22 CHAIRMAN RYERSON:
Okay.
Thank you, Mr.
23 Shadis.
24 Item 8,
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information or documents that have to be disclosed, 2
and, if so, whether development of a protection order 3
or nondisclosure agreement is necessary or 4
appropriate.
5 I should distinguish obviously -- I'm not 6
sure the question really does --
between privileged 7
documents which the rule already cover in the sense 8
that if you withhold a document on the basis of 9
privilege the rules provide for the preparation of a 10 privilege log that provides some information about the 11 documents held.
Non disclosure agreements really deal 12 with the situation where a document is produced, but 13 the producing party has concerns about limits on its 14 further disclosure beyond particular authorized 15 persons.
16 Any discussion or consensus among the 17 participants, the parties, on this item before we say 18 anything further?
19 MR.
HAMRICK:
This is Steven Hamrick again 20 from NextERA.
We certainly expect that you have some 21 privileged documents or at least a potential as we go 22 through the responsive documents that some will be 23 proprietary and may require a protective order.
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global discovery agreement that we would like to reach 2
at some point prior to the disclosure obligations 3
beginning.
And agreeing on a text of a protective 4
order could be one of those issues.
5 CHAIRMAN RYERSON:
Yes.
This is Judge 6
Ryerson again.
- Yes, I would urge you if you get to 7
the point of kind of what we agreed on October 3 that 8
it would be well to try to initiate discussions on 9
this subject on a protective order well before October 10 3.
11 MR.
HAMRICK:
Absolutely.
12 CHAIRMAN RYERSON:
You don't need to do it 13 tomorrow.
And you may not have done it.
If the 14 Commission decides the appeals in the next 40 days, 15 you may not have reached it.
But if it looks like 16 you're getting into the October time frame for 17 disclosure, I would urge that you try to negotiate a 18 protective order before that happens.
19 Anyone else wish to comment on this 20 subject?
21 MS.
SPENCER:
Your Honor, this is Mary 22 Spencer for the staff.
Just to let everyone know I 23 believe the staff would think that if we need to do 24 this we would favor the non disclosure agreement just 25 recently put in place by the Diablo Canyon board.
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1 2
3 4
5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 215 find that as a good model.
So I just wanted to put that out here.
CHAIRMAN RYERSON:
Okay.
Thank you.
Item 9
whether a site visit would be helpful to the Board in resolution of the admitted contentions.
Any agreement on that?
MR. HAMRICK:
This is Steven Hamrick again for NextEra.
I think there is a differing of opinion among the parties as to whether a site visit would be helpful or necessary.
NextEra takes the position that it probably would not be necessarily for resolution of the contentions.
However, given that position, if the Board determines that a site visit would be helpful, then we will certainly make that happen.
Obviously, there are some scheduling issues at a nuclear power plant such as outages that we would like to work around.
But assuming there is sufficient notice we would be happy to make that happen if the Board feels that that's necessary.
CHAIRMAN RYERSON:
Okay.
Thank you.
Any other parties have a feeling about that one way or the other?
MR.
SHADIS:
This is Ray Shadis again for Friends/NEC.
We believe that a
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absolutely necessary to gain a sense of scale, really 2
to put a picture behind the words when it comes to the 3
electrical cable locations, the transformers and also 4
the site and local area features.
5 And I think this is especially important 6
now given the events in Japan.
This is a site that's 7
just a few feet above sea level.
So I would urge that 8
the Board schedule a site visit.
9 CHAIRMAN RYERSON:
All right.
Thank you.
10 Anyone else wish to comment?
11 MR.
BROCK:
- Yes, Your
- Honor, from 12 Massachusetts.
I think we would concur with Mr.
13 Shadis.
We think that would be helpful to the Board 14 at least in providing a
general framework for 15 considering the issues, again understanding that it 16 does take some time and effort.
But hopefully we 17 think that would be worthy and ask the Board to 18 consider it.
19 CHAIRMAN RYERSON:
Okay.
Thank you, Mr.
20 Brock.
21 All right.
Are we ready to move to Item 22 10?
Ah.
Item 10 is whether the parties should be 23 required to file their respective initial written 24 statements of position and written testimony with 25 supporting affidavits simultaneously or sequentially NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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and, if sequentially, in what order.
2
- Again, the milestones appear to 3
contemplate one round of testimony simultaneously 20 4
days before the hearing.
And again speaking for 5
myself and not necessarily for the Board certainly the 6
opportunity for rebuttal testimony seems called for.
7 And my own sense would be perhaps simultaneous filing 8
from all parties on all contentions and then 9
simultaneous rebuttals some time later.
10 But was the --
Were the parties able to 11 reach any agreement on that issue or?
12 JUDGE WARDWELL:
And can I
This is 13 Judge Wardwell.
Can I interject also that any 14 comments on the filing date would be appreciated, you 15
- know, relative to either the start of the hearing 16 which personally I think is backwards?
It should be 17 more in regards to what's been filed, either the last 18 docket to the staff's EIS or the SER or new or amended 19 contentions as a triggering date for when.
What their 20 feelings are as to when should these filings be done.
21 MR.
HAMRICK:
This is Steven Hamrick for 22 NextEra.
We were not able to reach an agreement last 23 week on this issue.
The staff and NextEra I believe 24 both took the position that because an intervener has 25 the burden of going forward before the burden shifts NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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to the applicant that it makes sense for staggered 2
filings where the interveners would file first such 3
that we can kind of narrow the issues and applicants 4
and potentially the staff aren't filing testimony at 5
the outset that may not prove to be necessary or may 6
be focusing on issues that the interveners don't focus 7
on and would become unnecessary.
So staggered filings 8
may help to trim some of the fat, so to speak, on 9
those issues.
10 JUDGE WARDWELL:
Okay.
Where would the --
11 This is Judge Wardwell.
Where would you see the 12 interested governmental bodies fitting in then this 13 process?
14 MR.
HAMRICK:
It depends on what position 15 those interested governmental bodies would take on the 16 contention.
If they --
17 JUDGE WARDWELL:
Wouldn't they have to see 18 both in order to make a decision?
19 MR.
HAMRICK:
Well, that's an interesting 20 question.
I think by that time in the proceeding they 21 likely will have a position staked out.
But that's 22 the first time I thought about that particular issue.
23 MR.
BROCK:
Your Honors, Mr.
Brock for 24 Massachusetts.
I appreciate your question.
I think 25 again that at this time Massachusetts does not intend NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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to file initial direct testimony but would like the 2
opportunity with a reasonable time of that filing or 3
those filings to file rebuttal.
And we're open to 4
trying to work it with the other parties to reach some 5
agreement on a time frame or we're open to discuss 6
that.
But we do think we would like that opportunity 7
to have the opportunity for rebuttal testimony after 8
the direct filings.
9 MS.
SPENCER:
Your Honor, this is Mary 10 Spencer for the staff.
We were one of the proponents 11 of staggered filings just because of our experience in 12 other proceedings where the initial testimony of the 13 staff and applicant and the interveners was kind of 14 like ships passing in the night.
It wasn't 15 necessarily directly on point and that it would be 16 better to stagger the filings.
17 Now I believe and unfortunately I don't 18 have it before me that in the Watts Bar proceeding the 19 board has operating license proceeding.
I believe 20 that the board has established a staggered procedure 21 in which the interveners go first with initial 22 testimony.
Then the staff and applicant file.
And 23 then I believe the interveners and perhaps in this 24 case the interested state would have an opportunity to 25 provide some sort of rebuttal to that.
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CHAIRMAN RYERSON:
So there would be 2
essentially three levels of filings, three stages.
3 MS.
SPENCER:
- Yes, in a way.
4 MR.
HAMRICK:
And this is Steven Hamrick 5
for NextEra.
I believe that same framework was the 6
approach that was taken in the Vermont Yankee license 7
renewal proceeding where the interveners went first 8
followed by the applicant and staff followed by an 9
opportunity for the interveners to rebut the applicant 10 or staff positions.
11 CHAIRMAN RYERSON:
Anyone else want to 12 comment on that?
13 MR.
BROCK:
Your Honor, this is Matt Brock 14 from Massachusetts.
Since we're not filing initial 15 testimony, I'm not going to comment on that part.
I'd 16 leave it to the parties to address that.
But as to 17 the rebuttal portion of the framework that was just 18 outlined which as I understood it would come after the 19 initial filings by all the parties that would be 20 acceptable to Massachusetts.
21 CHAIRMAN RYERSON:
Okay.
Thank you, Mr.
22 Brock.
23 MR.
SHADIS:
Your Honor, this is Ray 24 Shadis again for Friends/NEC.
Actually as it happened 25 NextEra initially proposed the filings to be done NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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simultaneously.
2 And NEC did agree with that position.
And 3
our reasoning was that if there was simply going to be 4
one round of filings it would be patently unfair to 5
NEC to have to submit its or Friends/NEC to have to 6
submit its filings in advance for the critique of the 7
opposing party.
8
- However, now that you've made the 9
proposition that there would simply be simultaneous 10 filings and simultaneous answers or rebuttal filings 11 that would from our point of view put it on a much 12 more even footing.
You know, again this is not a 13 matter of just one adversarial party versus another.
14 We are basing on our particular issues we're facing 15 two adversarial parties.
So it would do a great deal 16 to help level the playing field if we had filings and 17 answers simultaneously.
18 CHAIRMAN RYERSON:
Okay.
19 JUDGE WARDWELL:
Could I ask a question?
20 This is Judge Wardwell.
Mr. Shadis, how is that any 21 more level than if the interveners file first, the 22 applicant and staff then respond, and then the 23 interveners have rebuttal? Doesn't that still achieve 24 the same goal?
25 MR.
SHADIS:
It would achieve the same NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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goal provided there were not page limits that were too 2
restrictive on the interveners' reply or rebuttal.
3 And it would in fact tip the playing field slightly in 4
our direction if the staff and NextEra were not 5
permitted to file rebuttal.
6 JUDGE WARDWELL:
Has anyone This is 7
Judge Wardwell again.
Any other comments from the 8
other parties in regards to whether or not they've 9
seen page limits on the testimony or what page limits 10 they have seen or the rebuttal of that testimony?
11 MR.
SMITH:
Your Honor, this is Max Smith 12 on behalf of the NRC staff.
I have not ever seen page 13 limits in regard to initial testimony not only because 14 it's so dependent I think,on the issues that are 15 involved and in this case there are several issues at 16 stake still.
So I'm not sure that page limit would be 17 the best way to develop these issues.
18 JUDGE WARDWELL:
Have you seen any page 19 limits on rebuttals?
20 MR.
SMITH:
No, Your Honor.
21 JUDGE WARDWELL:
Thank you.
22 CHAIRMAN RYERSON:
Staff?
23 MR.
HAMRICK:
This is Steve Hamrick for 24 NextEra.
And I don't recall any cases with page 25 limits off the top of my head on testimony.
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CHAIRMAN RYERSON:
Now this is Judge 2
Ryerson.
I'm not sure where that concept of page 3
limits on testimony comes from because I'm not 4
familiar with it and it's usually something that 5
applies to briefs, if at all.
6 But in any event, I think this is probably 7
an issue that the Board will give some thought to.
We 8
appreciate your comments.
And again we will --
it's 9
our intent to circulate our proposed order in draft 10 form for comments before we finalize it.
So you'll 11 have another crack at whatever we come up with to let 12 us know what you think of it.
13 I think we're ready for Issue 11 which is 14 another short one I suspect.
Issue 11 is suggested --
15 JUDGE WARDWELL:
Can we go back to 10 for 16 just a second?
I'm sorry.
This is Judge Wardwell.
17 Maybe I missed it.
But are there any suggestions for 18 when the date for filing these should be predicated 19 on?
20 MR.
SMITH:
Your Honor, this is Max Smith 21 on behalf of the NRC staff again.
The parties did 22 discuss this issue in our Friday conference call and 23 thought that the appropriate thing would be to tie it 24 to the initiation of the evidentiary hearing.
We 25 talked about 30 days prior or 45 days prior.
But the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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more we talked about it the more we realized a lot has 2
to happen between initial statement and position and 3
testimony, rebuttal, motions for cross examination, 4
motions in limine, a final evidentiary conference and 5
thought maybe a 60 day prior to the evidentiary -- the 6
initiation of the hearing would be the most 7
appropriate deadline.
8 CHAIRMAN RYERSON:
Thank you.
Obviously 9
whether we have a two-step or a three-step submission 10 would impact that somewhat.
11 MR.
SMITH:
I agree, Your Honor.
12 CHAIRMAN RYERSON:
I think probably 13 everybody agrees that the milestone 20 days is a
14 difficult concept.
It is much better to do it 15 substantially earlier.
The Board will discuss that 16 and we appreciate your comments.
And we will come up 17 with a proposal that will be circulated.
18 Anyone else have any comments on Issue 10?
19 MR.
SHADIS:
Only for what it's worth we 20 agree with NextEra's comments.
21 CHAIRMAN RYERSON:
I'm sorry.
Who is 22 speaking?
23 MR.
SHADIS:
I'm sorry.
This is Raymond 24 Shadis for New England Coalition/Friends of the Coast.
25 CHAIRMAN RYERSON:
Shadis.
Thank you.
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MR.
SHADIS:
For what it's worth we agree 2
with NextEra's comments on that.
3 CHAIRMAN RYERSON:
Thank you.
4 All right.
Item 11 suggested time limits 5
for the filing of motions for cross examination.
Any 6
agreement on that among the parties?
7 Mr. Hamrick, you often --
8 MR.
HAMRICK:
This is Steven Hamrick for 9
NextEra.
The agreement that I believe we reached on 10 our phone call last week was a suggestion of 20 to 30 11 days after the rebuttal testimony.
And that was based 12 on some of the same scheduling orders from other 13 procedures that Ms.
Spencer has referenced earlier 14 today.
15 And I suppose it's obvious that the 2o to 16 30 days after the rebuttal testimony that sort of 17 assumes that the rebuttal testimony is scheduled at 18 some point with that much time remaining before the 19 hearing.
So that obviously if there is 20 to 30 days 20 then that would be the time limit or it may need to be 21 shortened I suppose if the rebuttal testimony is filed 22 closer than that to the hearing.
23 CHAIRMAN RYERSON:
Yes.
And I suppose we 24 could have different days possibly for cross 25 examination questions on direct testimony which would NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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by definition be filed much earlier.
But we'll give 2
some thought to that.
We appreciate your suggestion 3
of 20 to 30 days.
4 All right.
- Well, I think that covers the 5
11 issues that we put forward.
Again, I've said this 6
before.
The Board's intent is to try to take what 7
we've talked about and come up with a proposed order 8
which we will circulate in confidence.
9 Ms.
Spencer, you have kindly volunteered 10 to send us some proposed language on I think it's was 11 Items 4 and 5.
Am I correct?
12 MR.
SMITH:
Your Honor, this is Max Smith 13 on behalf of the NRC.
Ms.
Spencer stepped out of the 14 room.
I'll step in for her.
I believe we agreed to 15 submit language on questions 3, 4 and 5 addressing 16 time limits or filing motions, to file new or amended 17 contentions, specifications of completing rules for 18 those motions and then a language on updating the 19 mandatory disclosures.
20 CHAIRMAN RYERSON:
Okay.
That's fine.
21 The third item was simply agreeing on 30 days, but it 22 would work into the same language.
So that's fine.
23 Thank you.
24 Okay.
Let's see.
Anything else from the 25 parties that we should be talking about today while NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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we're here together?
2 MR.
SMITH:
No, Your Honor.
The NRC staff 3
has nothing to add.
4 CHAIRMAN RYERSON:
All right.
5 Speak now or forever hold your peace?
6 MR.
SHADIS:
Friends/NEC has nothing to 7
add at this point.
8 MR.
HAMRICK:
And nothing from NextEra.
9 MR.
GUNTER:
And nothing from Beyond 10 Nuclear.
11 CHAIRMAN RYERSON:
Thank you.
12 Judge Wardwell, do you have anything else?
13 JUDGE WARDWELL:
No.
14 CHAIRMAN RYERSON:
Judge Kennedy?
15 JUDGE KENNEDY:
I have nothing to add.
16 Thank you.
17 CHAIRMAN RYERSON:
All right.
Well, thank 18 you.
We stand adjourned.
Off the record.
19 (Whereupon, at 11:47 a.m.,
the above-20 entitled matter was concluded.)
21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of:
Seabrook Station, Unit 1 Name of Proceeding: Pre-hearing conference Docket Number:
50-443-LR ASLBP Number:
i0-906-02-LR-BDO1 Location:
(telephone conference) 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.
Charles
,on Official Reporter Neal R. Gross & Co.,
Inc.
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