ML102440803
| ML102440803 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/24/2010 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-275-LR, 50-323-LR, ASLBP 10-890-01-LR-BD01, NRC-408, QQ-27 | |
| Download: ML102440803 (83) | |
Text
qq-9L? Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Pacific Gas and Electric Company Diablo Canyon Nuclear Power Plant Docket Number: 50-275-LR and 50-323-LR ASLBP Number: 10-890-01 -LR-BD01 Location: (telephone conference)
Date: Tuesday, August 24, 2010 Work Order No.: NRC-408 Pages 371-451 0 RIG6, AL NEAL R. GROSS AND CO., INC.
DOCKETED Court Reporters and Transcribers USNRC 1323 Rhode Island Avenue, N.W.
August 24, 2010 (3:02p.m.) Washington, D.C. 20005 OFFICE OF SECRETARY (202) 234-4433 RULEMAKINGS AND ADJUDICATIONS STAFF
ý fO T;- 3~ DJo DS o3
371 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5
6 HEARING "7 ------------------------ x 8 In the Matter of: Docket Nos.
9 PACIFIC GAS & ELECTRIC 50-275-LR 50-323-LR 10 COMPANY ASLBP No.
11 10-890-01-LR-BDO1 12 (Diablo Canyon Nuclear 13 Power Plant Units 1 and 2) 14 ------------------------ x 15 Tuesday, August 24, 2010 16 17 Teleconference 18 19 BEFORE:
20 ALEX S. KARLIN, Chair 21 PAUL B. ABRAMSON, Administrative Judge 22 NICHOLAS G. TRIKOUROS, Administrative Judge 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
372 1 APPEARANCES:
2 On Behalf of Pacific Gas & Electric Company:
3 DAVID A. REPKA, ESQ.
4 of: Winston & Strawn LLP 5 1700 K Street, N.W.
6 Washington, D.C. 20006 7 202-282-5000 8 TYSON SMITH, ESQ.
9 of: Winston & Strawn LLP 10 101 California Street 11 San Francisco, California 94111-5802 12 415-591-1000 13 14 On Behalf of San Luis Obispo Mothers for Peace:
15 DIANE CURRAN, ESQ 16 of: Harmon, Curran, Spielberg and Eisenberg 17 1726 M Street, N.W., Suite 600 18 Washington, D.C. 20036 19 202-328-3500 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
373 1 On Behalf of the Nuclear Regulatory Commission 2 SUSAN UTTAL, ESQ.
3 MAXWELL SMITH, ESQ.
4 LLOYD SUBIN, ESQ.
5 of: Office of the General Counsel 6 Mail Stop 15 D21 7 U.S. Nuclear Regulatory Commission 8 Washington, D.C. 20555-0001 9 301-415-1582 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-44433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
374 1 P RO C E E D I NG S 2 (3:02 p.m.)
3 CHAIR KARLIN: We will now go on the 4 record, Mr. Reporter. I would like to welcome 5 everyone. As I understand it, there is a 6 representative from each of the parties, and all the 7 judges on the line, so we will start.
8 This is a conference call, initial 9 scheduling conference call in the matter of Pacific 10 Gas & Electric Company. It's a challenge to PG&E's 11 application to renew its license for two nuclear 12 reactors. For the record, the docket number is 50-13 275-LR and 57-325-LR, and it's ASLBP number 10-890 14 LR-DB01.
15 This conference call is being held 16 pursuant to an August 5 th order by the Board, and 17 today's date is August 2 4 th, 2010. We're conducing 18 this initial scheduling conference telephonically. We 19 have two separate sets of lines. One set of lines is 20 for the representatives of the parties and the judges, 21 those who can have speaking roles, as it were. And 22 the other is for a line set up for members of the 23 public, or any media who might have been interested in 24 listening in.
25 What I'll do now is introduce the Board, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
375 1 and I'll ask each of the parties to introduce 2 themselves, and their representatives, and their 3 clients who may be on the line.
4 With regard to the Board, again, I'm Alex 5 Karlin. I'm sitting here with Wen Bu, our lawyer and 6 law clerk, and we're in Rockville at the NRC 7 headquarters. Ashley Prange, our Administrative 8 Assistant is at her desk at the moment. And if anyone 9 has any problem during the course of this call, and 10 can't get back on to the conference call, first try to 11 call the conference operator. Second, if that doesn't 12 work, call Ms. Prange. Her telephone number is 13 (301)415-0110.
14 Now, Dr. Abramson, and Dr. Trikouros are 15 on the line, I think. Is that correct?
16 JUDGE TRIKOUROS: We are here.
17 JUDGE ABRAMSON: Yes.
18 CHAIR KARLIN: Okay. Great. Now, 19 Petitioners sent us this from Mothers for Peace. Ms.
20 Curran, could you introduce yourself and anyone else 21 from your group who is on the line.
22 MS. CURRAN: Yes, thank you, Judge Karlin.
23 I'm Diane Curran, and I represent the San Luis Obispo 24 Mothers for Peace. I don't believe that any of the 25 members of the Mothers for Peace are on the line.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
376 1 CHAIR KARLIN: All right. And the 2 Applicant is Pacific Gas & Electric Company. I 3 believe Mr. Repka and Mr. Smith are on the line.
4 Could you introduce yourselves, and any of your 5 clients who are on with you.
6 MR. REPKA: Yes. This David Repka, counsel 7 fo PG&E, and I'm in Washington, D.C. Separately on 8 the line from California is my colleague, Tyson Smith.
9 And I believe we are the only representatives of PG&E 10 on the call today.
11 CHAIR KARLIN: Okay. Great. Welcome. And 12 staff, Ms. Uttal, could you introduce the people'from 13 the staff who are here?
14 MS. UTTAL: Yes. This is Susan Uttal, U-T-15 T-A-L, counsel for the staff. With me is Maxwell 16 Smith, counsel for staff; Catherine Kanatas, also 17 counsel for staff; Lloyd Subin, counsel for staff; and 18 Tina Ghosh, staff.
19 CHAIR KARLIN: Okay. Great. Welcome. Is 20 there anyone else on the line? Okay. That's great.
21 Appreciate the introductions.
22 The purpose of this call is to conduct an 23 initial scheduling conference in accordance with the 24 regulations 2.332, and then to use this discussion and 25 the materials you've submitted as the basis for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
377 1 developing and issuing an initial scheduling order.
2 The regs call for us to do that, and the model 3 milestones indicate that we should try to have the 4 initial scheduling order out within 55 days of the 5 August 4 th ruling. So, that's what we want to do.
6 The immediate background here is, of 7 course, on August 4 th we ruled admitting four 8 contentions, and denying one. We then issued this 9 scheduling conference order on August 5 th. On the 10 l 0 th, the staff noticed that it was going to 11 participate as a party on all matters. Also on the 12 l 0 th, Mr. Repka sent in a letter reflecting agreement 13 of all parties regarding certain matters, mandatory 14 disclosure and other, and that's helpful. And on the 15 1 8 th, the staff, Mr. Subin sent in a letter indicating 16 its estimated schedule for the SER and the EIS. And 17 we recognize, of course, that there are some appeals 18 going on interlocutory with regard to some of our 19 rulings. And that is above our pay grade, and we will 20 not try to attempt to deal with any of that at the 21 moment, but we recognize that that, of course, exists.
22 The purpose, as I say, was to do a 23 scheduling order. The overview -- here's the agenda 24 I think I'd like to pursue, sort of major topics.
25 First, we would review the staff's schedule. And I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
378 1 have a question or two about that, but I think it's 2 pretty clear, so that's the first item, staff 3 schedule. Second item is to go down the 19 questions 4 that were posed in our August 5 th order and talk about 5 that. The third major topic is to review Mr. Repka's 6 letter of August 1 0 th, because that has answers to a 7 number of the items, and also covers a couple of other 8 things. And I think it's useful. The fourth item for 9 the agenda would be to review other items that arise 10 from the Progress Levy scheduling order. As we said 11 in our initial -- in our August 5 t" order, the Levy 12 would be, in a sense, an example of things that might 13 be covered, and we ask you to look at. that, and to 14 stand ready to talk about, on a point-by-point basis, 15 some of those items. So, that would be the fourth 16 part of major topic of the agenda. Fifth, there may 17 be a couple of other things that the judges have maybe 18 to ask or to talk about. And that's about it.
19 Now, is there anything else that any of 20 the parties, staff, Applicant or Mothers for Peace 21 want to bring up at this conference call, or thinks 22 needs to be addressed now? Okay, hearing none, we 23 will go to the first significant topic. That is this 24 letter by the staff, Mr. Subin, giving us your 25 schedule, your best estimate at the schedule.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
379 1 Oh, and let me just ask before we proceed.
2 As I understand from the letter of Mr. Repka, you all 3 did have a chance to converse, and to discuss the 4 items we covered in our conference call. Is that 5 correct, Mr. Repka?
6 MR. REPKA: That is correct.
7 CHAIR KARLIN: Good. And have you been 8 able to figure out maybe lead spokespersons for 9 various topics? Are you just going to play it by ear, 10 and we'll have everyone talk as we go?
11 MR. REPKA: We didn't designate a lead 12 person. I did compile some notes based on our 13 conversations, which I've circulated to the parties.
14 I'm happy to describe that, and have everybody else 15 tell me where I'm off base.
16 MS. CURRAN: That sounds like a good plan 17 to me, Judge Karlin. This is Diane Curran.
18 CHAIR KARLIN: All right. We'll pretty 19 much allow everyone to speak, if they feel there's 20 something they need to say on any of these topics, but 21 we'll try to move along. I mean, the main point is to 22 try to manage this case properly, and actively so that 23 procedural difficulties and confusions are minimized, 24 if we can, and we can deal with the merits, as it 25 were, or any particular issue rather than worrying NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
380 1 about procedural questions that we might have 2 resolved. I attempt, I think we all attempt to 3 resolve some of these things in this scheduling order.
4 So, on to the staff's estimated schedule, 5 I see, Mr. Subin, you're going to be -- anticipate the 6 Draft EIS coming out, and then the comment period 7 ending in January of 2011. Is that correct?
8 MS. UTTAL: Excuse me, Judge.
9 CHAIR KARLIN: Yes?
10 MS. UTTAL: This is the staff. We got 11 disconnected for about three minutes.
12 CHAIR KARLIN: Oh, okay. Sorry to hear 13 that. Well, I'm not sure where -- we're going to have 14 -- here's our agenda. One, we're going to review the 15 staff's schedule. Two, we're going to go through the 16 19 questions. Three, we're going to review the Repka 17 letter regarding the areas of agreement that you've 18 proposed. Four, we're going to look at the Progress 19 Levy initial scheduling order. Five, there may be 20 some questions that some of the judges have, and 21 that's it. Do you have anything else you want to add 22 to the agenda, or you think needs to be discussed 23 today?
24 MS. UTTAL: No, sir.
25 CHAIR KARLIN: Okay. All right. Then, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
381 1 we'll proceed. The first item being to review the 2 staff's schedule that you submitted on August 1 8 th.
3 And I appreciate that you all gave us your best 4 estimate, and it's not in stone. It's just what your 5 best estimate is.
6 It's my understanding that you're going to 7 -- end of the Draft SEIS comment period is in January 8 of 2011. Is that correct?
9 MR. SUBIN: Correct.
10 CHAIR KARLIN: And the Advisory Committee 11 meets to discuss the Draft SER in February 2011.
12 Right?
13 MR. SUBIN: That's correct.
14 CHAIR KARLIN: Okay. One of the things we 15 have to do in our scheduling order is to figure out 16 what is the appropriate trigger date for commencing 17 the filings that will lead to the evidentiary hearing.
18 And it looks like under this schedule that trigger 19 date is the later of the SER and the EIS, and the 20 later of those is August 1 2 th of 2011. If that holds 21 true, and we use that as a trigger date, and the Board 22 hasn't decided anything at this point. We're going to 23 discuss this afterwards, the likely filing schedule 24 would end up with 140-150 days later, maybe we 25 commence the evidentiary hearing. That ends up being NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
382 1 January-February of 2012. I'm just thinking out loud, 2 basically, but that's a schedule we might be looking 3 at. We also have to set some deadlines for motions for 4 summary disposition, and your schedule, Mr. Subin, and 5 the staff's schedule would be important in that 6 respect.
7 Is there anything else about the schedule 8 that Judge Abramson or Trikouros want to ask or talk 9 about? Hearing nothing, anyone from -- the parties 10 have anything of concern that is reflected out of the 11 staff's schedule, problems?
12 MR. REPKA: This is Mr. Repka.
13 CHAIR KARLIN: Yes.
14 MR. REPKA: No concerns with the staff's 15 schedule, just -- and I think we'll probably discuss 16 this more later in terms of what the trigger date is, 17 and I would just comment that I'm not sure we need to 18 assume that for both TC-I and EC-l, the trigger date 19 needs to be the same. Certainly, TC-l would not be 20 tied to the SEIS. That's the comment I would have 21 there.
22 CHAIR KARLIN: Okay.
23 MS. UTTAL: The staff agrees with that, 24 Your Honor.
25 CHAIR KARLIN: Right. Okay. Let's move to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
383 1, the second major topic, because I think that will 2 bring us right into that, Mr. Repka, and Ms. Uttal; 3 that is, the 19 questions that we have in our order 4 scheduling conference.
5 The first question is whether the hearings 6 on the safety contentions should be commenced before 7 publication of the staff's Safety Evaluation, as 8 permitted by the regs. Does anybody think that we 9 ought to consider doing that?
10 MR. REPKA: This is Mr. Repka. Now, this 11 is starting down the items that we did discuss amongst 12 ourselves. In our discussions, I think both PG&E and 13 the staff agreed that TC-l, at least in its current 14 form, would not depend upon the SER. I think the 15 Mothers for Peace had not taken a position on that 16 issue at the time. So, the SER, at least from the 17 staff and PG&E's perspective would not be required to 18 be the trigger date.
19 CHAIR KARLIN: Okay. Thank you, Mr. Repka.
20 Ms. Curran, do you have any thoughts on this?
21 MS. CURRAN: Well, it just seems premature 22 to cast it in stone. I don't know how Contention TC-l 23 is going to develop, but it may be that - I could 24 imagine that it's possible that the Mothers for Peace 25 will have some concern that all the issues in the SER NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
384 1 should be resolved, because it's kind of the overall 2 management issue, might affect a lot of things 3 addressed in the SER. I don't know, but I -- the 4 regulations clearly allow this. I think it says that 5 the Board can decide to expedite, that. it's 6 appropriate to expedite the proceeding that way. And 7 it seems to me that that's the kind of decision that 8 should be made close to the hearing.
9 CHAIR KARLIN: Okay. Well, it's, worth 10 listening to -- hearing you all out on that. I mean, 11 I think it's a rare event for the Safety Contention to 12 be litigated before the SER is substantially complete, 13 but I guess it's not unheard of, and it is possible 14 under the regs. So, I appreciate your input on that.
15 JUDGE TRIKOUROS: Judge Karlin.
16 CHAIR KARLIN: Yes?
17 JUDGE TRIKOUROS: I guess I'm not clear on 18 what the position of PG&E or the staff is on that.
19 CHAIR KARLIN: Okay. Well, that was Judge 20 Trikouros speaking. That's a good question. Are you 21 suggesting we should have the evidentiary hearing on 22 TC-I now?
23 MR. REPKA: This is Mr. Repka, and I'll 24 speak only for PG&E on this, and let Ms. Uttal speak 25 for the staff. No, I'm not suggesting we have the --
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202)I
& 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
385 1 hold the hearing now. We have agreed amongst the 2 parties not to do disclosures pending appeal, so, 3 certainly, I see no reason to go forward before the 4 parties have even done disclosures.
5 I think that there can be a schedule on 6 TC-I that's premised to a Commission ruling on the 7 appeal, plus time for disclosures, plus time -- some 8 time, I suppose, for summary disposition; although, I 9 have to say, I don't think TC-l is a contention that, 10 at least at this instance, seems like it's likely to 11 be susceptible to summary disposition. It's also not 12 a contention that, based on the positions of the 13 staff, and PG&E, appears to be one that will be 14 addressed in any way in the SER, because it's -- the 15 issues don't really relate to Aging Management, or 16 other issues there.
17 So, I think that the trigger date there 18 would probably be at least to begin a process, would 19 begin with a Commission decision on the pending 20 appeals. And then we could move forward from there.
21 And I think as a practical matter, leaving time for 22 summary disposition, and approximately 60 days or so 23 for -- after that for written testimony, and other 24 things, you're probably going to get to some time 25 around that May 2 3 rd Final SER date, anyway. But NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
386 1 we're only speculating there, because we don't know 2 what the time for the Commission decision will be.
3 CHAIR KARLIN: Right.
4 MR. REPKA: But I think, again, 'if you 5 follow the model milestones using a Commission 6 decision as a trigger date, I think that would be an 7 appropriate approach to TC-I.
8 CHAIR KARLIN: Okay. Does that help you, 9 Judge Trikouros?
10 JUDGE TRIKOUROS: I guess the -- I'd like 11 to hear from the staff. Does the staff agree with 12 that?
13 MS. UTTAL: We do, because the subject of 14 TC-l is not one that is discussed in the SER under 15 normal circumstances. And we do need a certain amount 16 of time for disclosures, and for preparing documents, 17 so it sounds like a reasonable amount of time.
18 JUDGE TRIKOUROS: Well, okay. That's 19 helpful. I would suggest that if the contention is 20 upheld by the Board, it may be something that the SER 21 will need to address. So, you may be presuming that 22 TC-l will be thrown out, and if it's thrown out, well, 23 then of course, we won't have an evidentiary hearing 24 at all. So, it is a bit of question there as to how 25 the Commission will rule. If it rules -- affirms it, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
387 1 then maybe somebody working on the SER may want to 2 think about whether that needs to be addressed in the 3 SER, or not. But I understand that, at this point, 4 the staff is not contemplating incorporating anything 5 like that in the SER. So, that's part of the issue 6 there, is the ruling by the Commission either may 7 eliminate entirely the evidentiary hearing, or make 8 the staff -- the staff may want to rethink what it's 9 doing with the SER. The ACRS may want to ask' some 10 questions related to that, that could be of interest 11 and valuable to this Board when we conduct our 12 evidentiary hearing.
13 CHAIR KARLIN: Let's move, if that's all 14 right, Judge Trikouros and Abramson, to Question 2 on 15 the August 5 th order, which is the time limits problem 16 with regard to motions for summary disposition.
17 A little bit of an intro here. On motions 18 for summary disposition, as with many things, there.
19 are really two types of time limits that apply. One 20 is a promptness time limit or deadline, and another is 21 sort of an ultimate deadline. Promptness meaning that 22 under the normal rules, motions need to be filed 23 within 10 days of the event or circumstance giving 24 rise to the motion. Promptness, need to be filed 25 promptly, within some relatively short time frame of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
388 1 the event. We don't want motions for summary 2 disposition, in particular, held up and postponed 3 until the end to create what I refer to sometimes as 4 a train wreck. So, there's a promptness deadline 5 issue. And then there's an ultimate deadline issue, 6 which is to say at some point we may need to, we think 7 it is appropriate to cut off all motions for summary 8 disposition, because we're in the midst -- you are in 9 the midst of preparing for the evidentiary hearing, 10 which is, essentially, a paper proceeding, anyway, for 11 the most part under Subpart L. And it becomes 12 counterproductive to have a motion for summary 13 disposition filed exactly at the same time everyone is 14 preparing all their filings for the evidentiary 15 hearing.
16 So, you may have seen how we handled this 17 j- in Progress Levy, and I'm interested in your thoughts.
18 One thing in particular is, if you look at, for 19 example, 2.1205, the time frame they say is you can 20 file motions for summary disposition as late as 45 21 days before the commencement of the evidentiary 22 hearing. Answers are filed 20 days later, and the 23 Board has to file its decision 15 days before the 24 commencement of the evidentiary hearing. That gives 25 us a 10-day window right before the Subpart L hearing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
389 1 when we're supposed to rule on motions for summary 2 disposition. Meanwhile, the only thing that happens 3 in a Subpart L hearing is the Board studies all the 4 materials, and asks questions.
5 I don't think that particular time frame 6 is going to work' so I think we're going to have to 7 modify those things. So, your thoughts. We'll start 8 with you, Mr. Repka.
9 MR. REPKA: Yes, we did discuss this 10 amongst ourselves, and I think we agreed, in 11 principle, that the time limits for sum -- what you 12 referred to as the final deadline for summary 13 disposition, we agree that that can be modified to 14 avoid conflicts with hearing preparation.
15 We talked amongst ourselves about a 60-day 16 prior to the testimony being due, would be -- as a 17 possible deadline for -- ultimate deadline for summary 18 disposition. We didn't reach any hard agreement on 19 that, but I think 60 days, obviously, would be a 20 little more than 45, so that does address the concern 21 you noted on that.
22 CHAIR KARLIN: Well, let me ask -- clarify.
23 Sixty days prior to what?
24 MR. REPKA: Sixty days prior to the due 25 date for written direct testimony.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
390 1 CHAIR KARLIN: Okay. Because the 45 days 2 is 45 days prior to the commencement of the 3 evidentiary hearing.
4 MR. REPKA: Right.
5 CHAIR KARLIN: Okay.
6 MR. REPKA: We talked about 60 prior to 7 testimony. And then, you assume testimony comes in 8 on, call that day 60, there would be another period 9 for -- that would be simultaneous written direct 10 testimony. There would be another period, two weeks, 11 whatever, three weeks, for simultaneous rebuttal 12 testimony. Then another two weeks, and then the 13 evidentiary hearing would start. So, overall, you're 14 talking there about probably. 60 days, plus another 15 four weeks or so between summary disposition and the 16 hearing. Again, we talked about that. We didn't 17 memorialize any specific agreement.
18 CHAIR KARLIN: Okay. Yes. That still 19 seems to have, for me. I'm speaking just for myself 20 at this point, a case management problem, in that a 21 lot of -- a motion for summary disposition, to us, 22 looks very similar to the initial testimony, and the 23 rebuttal testimony. It's paper. And the one 24 difference is that if you've got the evidentiary 25 hearing, you can actually ask the. witness some NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 . www.nealrgross.com
391 1 questions.
2 MR. REPKA: Yes. I think there's two kinds 3 of summary disposition. One would be, we might 4 contemplate, for example, for a contention like EC-I, 5 that's a Contention of Omission. And that's one that 6 certainly can be filed much earlier than the kind of 7 schedule that we're talking about now for the SEIS.
8 And maybe that's what the Levy order gets at when it 9 says 20 days after something that would trigger it.
10 A second kind of summary disposition motion would be 11 a motion that addresses the full-blown merits of a 12 case, and maybe that's what you might expect on a TC-13 1.
14 Again, I don't know that -- I certainly 15 wouldn't want to rule out any options. But a 16 contention like TC-I seems less amenable to summary 17 disposition than a Contention of Omission. So, I think 18 we may be arguing, or debating something that's, in 19 reality, not a real issue.
20 CHAIR KARLIN: Okay. Ms. Curran, did you 21 want to -- any thoughts here on this question?
22 MS. CURRAN: I think Dave summarized it 23 pretty well. We were worried about making sure 24 summary dispositions didn't happen too close to the 25 hearing. That's why we thought the 60-day time frame NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
392 1 was workable.
2 I think the 20-day -- running a 20-day 3 clock after the event is a good idea. I don't think 4 everybody was in agreement about that.
5 CHAIR KARLIN: Ms. Uttal?
6 MS. UTTAL: I have no argument with what 7 either Dave or Diane said.
8 CHAIR KARLIN: Okay. One of the things.
9 that does, I'm thinking out loud here, is right now, 10 at least if you look at the Levy order, we have 11 addressed, and I think they addressed some issues.
12 And one of them was once the trigger date occurs, the 13 initial testimony is due 45 days thereafter, let's 14 say, or 60 days thereafter the initial testimony. So, 15 trigger date, 60 days thereafter initial testimony.
16 Now, you're saying well, 60 days before the initial 17 testimony you have to have the motion for summary 18 disposition ultimate deadline. Well, that's the same 19 as the trigger date. You follow me? Well, how do you 20 solve that problem? You solve that problem by moving 21 trigger dates having the initial testimony filed 120 22 days later, so you can build in enough time for the 23 process of these motions for summary, so you delay the 24 evidentiary hearing. You'd have to have built in more 25 time for the filing of the initial testimony if you're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
393 1 going to have the motions for summary disposition 2 precede the initial testimony by 60 days. So, that's 3 a problem, a concern there.
4 Question Three.
5 MS. CURRAN: Judge Karlin, this is Diane 6 Curran.
7 CHAIR KARLIN: Yes?
8 MS. CURRAN: Maybe it has -- I know I've 9 seen a lot of orders, maybe this Levy order, too, says 10 the Board will look with disfavor on motions for 11 summary disposition. Maybe as a practical matter, if 12 we stick with that 60-day rule, then if one had to 13 wait for say the EIS to come out to do a summary 14 judgment motion, then it's just too late. The summary 15 judgment motions are best for things like Contentions 16 of Omission, where some information comes in, and it 17 resolves the issue, rather than, basically, doing it 18 as a dress rehearsal for the hearing.
19 CHAIR KARLIN: Okay. Well, we'll take that 20 into account. The Levy order handled it quite 21 differently, and set relatively hard dates that were 22 considerably earlier than anything you all are talking 23 about. So, let's move to Question Three.
24 The time limits for new or amended 25 contentions, and this is, again, a promptness time NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
394 1 limit, not a ultimate time limit, or deadline. And I 2 think we've usually used 30 days for filing of new or 3 amended contentions. And did you all talk about that?
4 MR. REPKA: This is Mr. Repka. We did, and 5 we agree that 30 days was the normal and reasonable 6 time for defining timeliness in the context of good 7 cause for new or amended contentions. So, 30 days, I 8 think, was appropriate.
9 CHAIR KARLIN: And everyone is pretty much 10 on board with that? Ms. Curran?
11 MS. CURRAN: Yes.
12 CHAIR KARLIN: Ms. Uttal?
13 MS. UTTAL: Yes.
14 CHAIR KARLIN: Okay. Good. All right.
15 Item Four. And, again, Judge Abramson, or Judge 16 Trikouros, if you want to jump in here, have any 17 issues, certainly, we're not all in the same room, so 18 it makes it a little more difficult to do that, but 19 certainly.
20 Four, pleading rules. What this question 21 or issue really deals with is. the -- what I see as a 22 problematic -- sometimes causes confusion regarding 23 well, do I file a motion for leave to file a new 24 contention? And then does the Board -- they file an 25 answer to the motion for leave to file a new NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
395 1 contention, and then does the Board rule on the motion 2 for leave to file a new contention? And then do they 3 file the new contention? And then do they have an 4 answer, and then they have a reply, and then the Board 5 rules. It's a seven-step process, and we think that 6 can be consolidated. And you may see how we did that 7 in Levy. Do you have any comments on that?
8 MR. REPKA: Mr. Repka, again. I don't know 9 that we broke it down into seven steps, but we did 10 address two different issues. One is just the sheer, 11 if you get a proposed new or amended contention, 12 what's the time frame for responses and replies? And 13 there is some ambiguity in the regulations there. We 14 suggested, as in other cases, that the response time 15 would be the 25 days, plus the 7 days for reply, is 16 typical for a timely proposed contention. The same as 17 in 2.309(h), rather than the general motion response 18 deadline in 2.323. So, that was one issue, and that's 19 the responses.
20 With respect to -- the other embedded 21 question in here is the question as to whether or not 22 new or amended contentions need to meet both the 23 2.309(f) (2) and 2.309(c) (1) criteria. We didn't agree 24 on that. That's been a subject that's been -- there's 25 been some divergence of opinion amongst the licensing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
396 1 boards that have looked at it. And we did not come to 2 a resolution on that. Certainly, it's PG&E's position 3 that a new or amended contention needs to address both 4 2.309(f) (2) and 2.309(c) (1).
5 And I think the third thing I'd say is 6 something we didn't talk about, but in terms of the 7 steps, I don't think I focused on, Judge Karlin, the 8 way you're describing the seven steps, but I think 9 that we just see a motion to add a new contention just 10 being one step, and include the required showing for 11 a new or amended contention, include the contention, 12 and address all of that in one reply with respect to 13 both the timeliness, and the initial contention 14 admissibility criteria in one response. So, it would 15 become filing of new and amended contention, replies 16 25 days -- answers 25 days later on all issues, and 17 replies seven days after that. So, three steps.
18 CHAIR KARLIN: Okay. That's helpful. The 19 concern, you've put your finger on it, is among other 20 things, in 2.309(f) (2), it contemplates that 21 contentions may be amended or filed after the initial 22 filing only with leave of the presiding officer.. So, 23 what happens is, there's a motion for leave to file a 24 new contention, let's say by the Intervener, 25 obviously. And well, it's a motion to file for leave NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
397 1 to file a new contention. You're the Applicant. How 2 much time do you have to respond to a motion? Well, 3 you've got 10 days, so you file a response in 10 days.
4 So, no, leave should not be granted to file a new 5 contention, 10 days. And, oh, by the way, you filed 6 your answer. There is no reply available against a 7 motion under the normal rule, so you have the motion 8 and 10 days later an answer, and that's it. And then 9 the Board rules on the motion for leave to file a new 10 contention. And if we grant it, then we start the 11 okay, now you've got 25 days to file your -- now you 12 file your new contention, and then you've got 25 days 13 to answer, and then you've got seven days to reply.
14 And we are trying to avoid that problem, which has 15 occurred, and confusion that has occurred. And I 16 think if you see the way it was handled on page 9 of 17 the Levy scheduling order, what's called "Consolidated 18 Briefing," is the way most boards have been handling 19 it recently.
20 Ms. Curran, any comments from you on this 21 one?
22 MS. CURRAN: I just think it would be 23 simplest to -- oh, well, the approach of file the 24 contention, and address the late filed criteria in the 25 pleading. And if we get to the question of -- I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
398 1 suppose knowing that the other parties are going to 2 oppose a contention that doesn't address all the 3 factors, that's what we'll end up doing.
4 CHAIR KARLIN: Okay. I think that we -- I 5 don't use the term "late filed" in my parlance. It is 6 not a term that appears in any of the regs. I think 7 there are timely new contentions, and there are 8 untimely new contentions. And the vast majority of 9 the boards that have addressed this issue have said 10 it's an either/or 309(c) or 309(f) (2). But, in any 11 event, we understand your point, I do, anyway, your 12 point, Mr. Repka. Staff?
13 MS. UTTAL: Your Honor, I think that the 14 Levy order has it right, and that would be the 15 position that the staff would put forward, that we 16 file everything together, get the 25 days to answer, 17 and if it's timely new contention, you address the 18 factors under 309(f) (2) And if it's untimely, 19 309(c).
20 CHAIR KARLIN: Okay. All right. We'll 21 move to Question Five. And that one, I believe, 22 you've already answered, which is to say the updates 23 would occur on the 1 5 th of the month, monthly, every 24 30 days, and on the 1 5 th So, that's from your letter 25 of the l 0 th of August. So, I think you've covered NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202)J 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
399 1 that. Any comments there from anyone on the updating 2 issue? We'll deal with the delay, the postponement of 3 the mandatory disclosures when we get to your letter, 4 I suspect.
5 MR. REPKA: Nothing further here.
6 CHAIR KARLIN: Okay. Number Six, agreement 7 concerning electronically stored information 8 considered reasonably accessible. I don't know -- did 9 you address that in your letter, Mr. Repka? I don't 10 think that particular topic was addressed, or was it?
11 MR. REPKA: It was not, and we did discuss 12 the issue. And we're aware that there's an issue as 13 to the scope of electronic disclosures. But I think 14 we basically agreed amongst ourselves that we would 15 proceed, and we would discuss further specifics as we 16 got into the process. And if we were aware of any 17 problems or disagreements, we would come to the Board 18 to resolve those, if we couldn't work it out amongst 19 ourselves. We didn't get beyond that at this point.
20 Recognizing that under our agreement, only EC-l is 21 currently scheduled for October 1 5 th.
22 CHAIR KARLIN: Okay. Well, we addressed 23 that in the Levy -- that was addressed in the Levy 24 scheduling order on page 6, "Reasonable Search 25 Electronically Stored Information." Did you all talk NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
400 1 about that? I mean, because we may end up issuing 2 something which addresses that one way, or the other.
3 MR. REPKA: Well, we, certainly, speaking 4 for PG&E, have no objection to conducting reasonable 5 searches for electronic information. We have no 6 problem with including an affidavit attesting that 7 we've conducted such a search. And I think, really, 8 the only question in our mind was defining 9 "reasonable." And I think that's where we needed to 10 talk amongst ourselves about how do you search for 11 information, what kind of word searches we might 12 contemplate, and issues of that nature. So, the 13 concept of "reasonable," I don't think we have an 14 disagreement about.
15 CHAIR KARLIN: Right. Ms. Curran?
16 MS. CURRAN: Yes, I agree with Mr. Repka.
17 Really, it's a question, when we get into the details 18 of things like how far back the records go, or what 19 word searches, that sort of thing, I think we're going 20 to need to work'out on a case-by-case basis.
21 CHAIR KARLIN: Okay. Ms. Uttal?
22 MS. UTTAL: I agree with both parties.
23 CHAIR KARLIN: Thank you. Thank you.
24 Okay. Well, as in the Federal Rules of Civil 25 Procedure that were recently, what, 2006 amended, I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
401 1 believe it was, to deal with this issue, they instruct 2 judges to instruct parties to discuss and confront 3 this issue, the ESI, Electronically Stored Information 4 issue, so that people can think about it ahead of 5 time, and try to reach agreement. And I appreciate 6 that you all were trying to follow something like that 7 model, and ask you to focus on it. And I appreciate 8 that you have focused on it.
9 Turning to Question Seven, I guess, if 10 that's okay. And I believe you did address this, and 11 resolve this issue on Electronically Stored 12 Information, how to produce it, the format for 13 production, in your letter, paragraph 4. Mr. Repka, 14 anything you want to say about that?
15 MR. REPKA: No, we believe that's correct.
16 Paragraph 4 addresses this issue.
17 CHAIR KARLIN: Right. Yes. It seems to 18 handle it reasonably. I think what we contemplate, or 19 what I contemplate was that our order will, 20 ultimately, incorporate or reflect most of these 21 things. And this instance may very well just simply 22 adopt what you've suggested, what you've agreed to on 23 this issue.
24 Anyone else want to talk about the format 25 of production? It's not a major issue. I'm glad you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
402 1 all talked about it.
2 Eight and nine, items eight and nine from 3 our August 5 th order kind of go together, which is to 4 say we're in a Subpart L hearing for the four 5 contentions that have been admitted. One of the 6 determining factors into whether or not someone gets 7 a G hearing is whether or not the credibility of an 8 eyewitness is part of the resolution of that issue.
9 I have no good reason to think that that is a --
10 credibility of witnesses is a key issue here, but we 11 don't even know who the witnesses are. Certainly, the 12 intervener doesn't know who the witnesses are, and 13 unless and until you know who the witnesses are, you 14 might not be able to raise a 2.310(d) motion.
15 So, normally, the time limit for filing of 16 potential witnesses would be sometime, maybe the 17 initial filing, which almost ends up being kind of 18 late in the game to switch to a G hearing. Any 19 suggestions on that front, Mr. Repka?
20 MR. REPKA: No, we didn't reach any 21 particular agreement on this issue. It also didn't 22 appear to be explicitly addressed in Levy, from what 23 I could tell, anyway. But I think that, at least on 24 the one hand, witnesses could be identified very late, 25 maybe even in rebuttal testimony, if there's some new NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
403 1 issue comes up in direct testimony. So, I think it 2 would be difficult to say that you can't identify a 3 new witness as late as the statement of positions and 4 filing the testimony, because that may just be the 5 reality of it.
6 CHAIR KARLIN: Well, under the Reg 2.336, 7 each party -- well, each party, the staff, not 8 necessarily, is obliged to identify witnesses, opinion 9 witnesses I might note, and that is one mechanism for 10 smoking each other out. You've got to do that at your 11 first disclosure, and you've got to update it every 12 month or so, who 'the witnesses are, those witnesses, 13 anyway. And if someone lists one of those witnesses, 14 then a motion for a G hearing ought to be, if it's 15 going to be prompt, would need to be filed, I don't 16 know, within 10 days, 20 days, 30 of the listing of 17 that witness, if that witness is a credibility 18 problem. But if you spring new witnesses on the 19 opposing party at the last minute, then the opposing 20 party may have reason to raise a problem with the 21 credibility of those witnesses, and we end up delaying 22 the evidentiary hearing because of this kerfuffle at 23 the end. And I want to try to avoid that, if we 24 could, by getting all the witnesses on the table as 25 early as possible, at least potential witnesses.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
404 1 MR. REPKA: Well, in concept, I have no 2 opposition to that. I think that it needs to be a 3 date that's later than the first initial disclosures, 4 but at an appropriate point prior to the testimony.
5 And then with some -- perhaps the onus then would be 6 for good cause shown, or for some good reason to add 7 a witness after that point. I think that would be 8 fine. I would have no objection to that.
9 CHAIR KARLIN: I see. Yes.
10 JUDGE ABRAMSON: This is Judge Abramson.
11 I've been in cases, and I think that this can 12 certainly happen in any case, where testimony that 13 shows up in the initial filing of expert testimony 14 requires somebody else to be brought forward as a 15 rebuttal witness. So, you really can't identify 16 everybody up front.
17 CHAIR KARLIN: Yes. No, I agree with that.
18 I agree with that. I guess -- and I agree entirely.
19 I think it would be best if the parties could identify 20 as many of the potential witnesses, as possible, and 21 then select from that group. And if someone has to be 22 added for good cause, or whatever, absolutely. We're 23 not going to prevent that from happening. I just 24 don't want to delay the proceeding, if we can help it.
25 Ms. Curran, any thoughts here?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
405 1 MS. CURRAN: Thanks, Judge Karlin. I guess 2 my thought is that from the intervener's perspective, 3 setting too early a date for conclusively identifying 4 witnesses is just burdensome for us, just because we 5 have limited resources. And my thought about the 6 issue of Subpart G is, there's really two aspects of 7 that. Right? One is, there's more discovery in 8 Subpart G. You get interrogatories and depositions, 9 and then there's the right of cross-examination.
10 I think that if the issue of credibility 11 of a witness came up in the case, it would be pretty 12 serious, and warranting that kind of delay. . It 13 wouldn't be the kind of run of the mill thing, I don't 14 think. It would be unusual. I think it would be worth 15 it to take the time, if that came up, but I also think 16 that, say for an intervener with limited resources, 17 doing things like taking depositions or 18 interrogatories at such a late date wouldn't really 19 make a whole lot of sense. It would probably. be that 20 one would want to get cross-examination. And I don't 21 see how that would delay the hearing.
22 CHAIR KARLIN: Yes, particularly under the 23 CAN ruling, whereby cross-examination is available 24 under L, as well.
25 MS. CURRAN: Yes. So, to me, it doesn't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
406 1 seem like this particular rule has that big of 2 potential to delay the hearing. But what would have 3 a potential to really, I think, impinge on the 4 interveners would be to set too early a date for 5 identifying witnesses in order to accommodate this.
6 CHAIR KARLIN: Right. Well, okay. I think 7 that's the right spirit on the thing. I just have 8 seen or concerned about -- and I don't think it's 9 going to happen here, someone who might want to delay 10 the proceeding at the last minute by virtue of 11 throwing in a motion for a Subpart G hearing just 12 simply for delay purposes, or something like that. I 13 don't think that's going to happen here. We have 14 experienced counsel on all sides of this case, so 15 that's helpful. Maybe the question -- we don't need-16 to focus any more on that question, unless, Ms. Uttal, 17 you have anything from the staff, perhaps?
18 MS. UTTAL: No, I have nothing to add.
19 CHAIR KARLIN: Okay. Anyone else? Judge 20 Abramson or Trikouros?
21 JUDGE TRIKOUROS: No.
22 CHAIR KARLIN: Okay. Ten, I have to ask 23 this question. Does anybody want to use Subpart N 24 here?
25 MR. REPKA: In our discussions, nobody NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
407 1 stepped up to that. We would not be opposed.
2 CHAIR KARLIN: Okay. I don't think anyone 3 has ever used it before, but it's out there, just have 4 everyone remember, just in case. Of course, there 5 also is the opportunity to use the Subpart L written 6 hearing, but that requires unanimous consent of all 7 the parties. And, again, that may not be in the cards 8 either.
9 MS. CURRAN: That doesn't seem likely from 10 the interveners' point of view.
11 CHAIR KARLIN: Okay. Yes. Eleven, 12 opportunities for clarification. Again, this is a 13 listing, 11, 12, 13 of items that I think are 14 appropriate to at least identify clarify of the 15 issues. Anything that can be done here on this, and I 16 might ask Ms. Curran to address 11, 12, 13,. anything 17 you see in those, clarification of the issues, other 18 than the normal course of motions for summary 19 disposition, or motions to add new contentions, that 20 sort of thing. Anything along those three, 11, 12, or 21 13?
22 MS. CURRAN: Well, we talked about number 23 11, and decided that we will work together to see if 24 we can accomplish clarification, or simplification, or 25 specification in the future. We're all open to that.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
408 1 The interveners are interested in getting to the 2 merits of these issues, and really focusing, so 3 anything like that, we're open to.
4 CHAIR KARLIN: Okay.
5 MS. CURRAN: So, I think we're -- we've all 6 worked together a long time, and that we are -- we 7 work together well, and if opportunities come up to 8 narrow the issues with stipulations or admissions, or 9 that sort of thing, we'd all be open to doing that.
10 But it seems until we're going to get into the process 11 of developing the contentions that we can't really say 12 anything too specific about that yet.
13 MR. REPKA: Yes, this is Mr. Repka. Me, 14 too, everything that Ms. Curran said. And I think we 15 all agree that with 11, 12, 13, and 14, that the Levy 16 order was fine and appropriate.
17 CHAIR KARLIN: Okay.
18 MR. REPKA: I think it was Paragraph I 19 addresses all of these items.
20 CHAIR KARLIN: Yes. Okay. And I think one 21 of the things -- despite the fact that under Subpart 22 L there is no discovery, but for the mandatory 23 disclosures, I think there are still remaining 24 opportunities for stipulations, or admissions of fact 25 that you all might consider. I have -- it helps NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
409 1 simplify some of the issues as we come -- when we get 2 closer to, perhaps, an evidentiary hearing, and some 3 of the facts can be stipulated to.
4 I have seen parties use motions for 5 summary disposition as a vehicle for obtaining 6 stipulations or admissions of fact. I think that's a 7 misuse of a motion for summary disposition. But, as 8 you know, motion for summary disposition must be 9 accompanied by a list of facts that the movant 10 believes are unassailable, and there's no genuine 11 dispute about. And the answer to a motion for summary 12 disposition must include answers, to each of those 13 proposed facts, admitting or denying, or whatever.
14 So, this is, in effect, a way of getting stipulations 15 on at least some of the facts. I'd rather you all 16 develop that as simply stipulations of fact, than to 17 file a motion for summary disposition, in part, just 18 to get these freebie stipulations. What I'm saying 19 is, I think stipulations of fact are available without 20 going to a motion for summary disposition.
21 MS. CURRAN: Judge Karlin, this is Diane 22 Curran. If I'm remembering Levy correctly, isn't the 23 paragraph on summary disposition, doesn't it say that 24 we're supposed to consult the other side before 25 submitting a summary disposition motion?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
410 1 CHAIR KARLIN: Yes.
2 MS. CURRAN: Well, that seems like maybe 3 something that could be said to see if any of the 4 issues could be resolved through stipulations, without 5 going through that process.
6 CHAIR KARLIN: Right.
7 MS. CURRAN: That's a way of doing it.
8 CHAIR KARLIN: Yes. I think that would be.
9 I mean, the duty to consult is required under the 10 regs, but we amplified some of it under -- in the Levy 11 order and said, in addition to a duty of the movant to 12 attempt a good faith consultation with the other 13 parties, the other parties have a duty we imposed to 14 respond in some good faith way to try to talk with 15 them, rather than just sort of saying well, I'll see 16 you in court.
17 MS. CURRAN: Yes.
18 CHAIR KARLIN: And that would be one of the 19 things you all might talk about, is well, what can we 20 agree to here, or there may be some facts you can 21 stipulate to.
22 Anyway, Mr. Repka, any thoughts here?
23 MR. REPKA: No, I really don't have 24 anything further to add. I mean, it's certainly 25 something that -- set the goal that the parties will NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
411 1 consult even in the context of prior to filing a 2 summary disposition motion, is acceptable to us.
3 CHAIR KARLIN: Okay. Especially in the 4 context of a motion for summary disposition.
5 MR. REPKA: Right.
6 CHAIR KARLIN: And, staff, Ms. Uttal, Mr.
7 Subin, anything?
8 MS. UTTAL: I.have nothing further to add, 9 Your Honor.
10 CHAIR KARLIN: Item 14 from this order, 11 Settlement Judge. Just a reminder, we have that 12 opportunity to ask the Chief Judge to appoint a 13 Settlement Judge. Is there any interest in any of 14 that right now?
15 MR. REPKA: I think that's probably 16 premature at this point.
17 CHAIR KARLIN: Premature. Okay.
18 The fifteenth item is the Privilege, 19 Protected Status information, and procedures for time 20 limits for challenges to assertions of privilege and 21 protected status, development of a protective order, 22 and a non-disclosure agreement.
23 You dealt with some of that in the letter 24 in Paragraph 5 of your letter, Mr. Repka. Maybe you 25 can respond to this one first.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com v
412 1 MR. REPKA: Correct. We did talk about 2 this, and in our agreement we addressed privilege 3 logs, and we agreed to waive privilege logs on 4 attorney/client privilege, attorney work product, and 5 deliberative process. But we also agreed that with 6 respect to any proprietary and sensitive information, 7 that would be identified in a disclosure log. And 8 then if any proprietary or security sensitive 9 information is identified, and a party wants to have 10 access to that, we agreed we would work together and 11 develop a protective order to provide for the 12 disclosure, if that was the appropriate thing to do.
13 I think we all felt like we have 14 protective orders we've used in other matters, and 15 that would not be a particularly contentious issue, at 16 least the scope of the protective order, itself. So, 17 we would work together, and submit that at an 18 appropriate time.
19 CHAIR KARLIN: Okay. Any comments, Ms.
20 Curran?
21 MS. CURRAN: Well, I see that the one thing 22 that we didn't address was time limits for challenging 23 claims of privilege, or other things.
24 CHAIR KARLIN: Right.
25 MS. CURRAN: And from experience, I know NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
413 1 that there's often a huge amount of material to go 2 through, and it's really at a time when one is 3 developing the testimony that you really start to 4 focus, sift through it all, and read things in detail, 5 and see oh, there's such and such a memo that wasn't 6 produced, or something like that. So, I guess I'd 7 like to propose that whatever time limit is set on 8 that, is set to be close to the time of preparing the 9 testimony.
10 CHAIR KARLIN: Well, that's exactly what 11 we're trying to avoid, which is to avoid -- move these 12 discovery dispute issues up further in the process, so 13 that they don't arise at the very eve of the 14 evidentiary hearing.
15 MS. CURRAN: Yes.
16 CHAIR KARLIN: We will all have, 17 presumably, enough to do at the evidentiary hearing 18 stage. And one of the differences is, in a Subpart L 19 hearing, as you know, the parties submit their piles 20 of information, and we get these tall piles sitting in 21 front of the three judges, and we read the stuff, and 22 we study it, and we think about it, and we develop --
23 we analyze it, try to -- do we have any questions?
24 So, the burden is upon us, the judges, to prepare for 25 the evidentiary hearing. The lawyers sit there and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
414 1 don't have anything to do. You've already done all 2 your work by submitting the material, essentially.
3 So, in the last three weeks, six weeks, four weeks 4 before the evidentiary hearing, the judges are busy 5 preparing their questions and the issues for the 6 evidentiary hearing. And we do not want, at that 7 point, to in addition to anything else, be having to 8 deal with unnecessarily late motions for discovery 9 disputes.
10 In fact, if there is a discovery dispute 11 at that late juncture, we end up with problems about 12 well, you did your initial filings, and now you want 13 to file some additional initial filings because you 14 just moved a motion to compel, because somebody's 15 withholding a document that you didn't think they 16 should withhold.
17 So, I think there is a requirement, let's 18 say 10 days. A motion needs to be filed within 10 19 days of the event or circumstances upon which it 20 arises. And if someone claims the privilege status of 21 Document X, then should that motion to compel -- if 22 you think that's not really privileged, shouldn't that 23 be due 10 days later?
24 MS. CURRAN: Well, Judge Karlin, this is 25 Diane Curran again. My concern about that is that, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
415 1 generally, the first disclosure is enormous, and it 2 comes very early in the case.
3 CHAIR KARLIN: Right.
4 MS. CURRAN: So, that's really the problem 5 there, that one is, perhaps, still looking for 6 witnesses at that point. And you can't even make a 7 judgment about well; is this one important, is that 8 one important until you have your witness. So, I 9 understand what you're saying about not moving all 10 this to right at the point of submitting the 11 testimony, and I think that's really reasonable.
12 What I'm worried about is, right in the 13 first -- the case has basically just begun, and if you 14 don't do a motion to compel within 10 days, you're out 15 of luck for maybe two years. It could be a couple of 16 years before you go to a hearing. That's just -- I 17 just wish there was -- I'd like to see some way to 18 deal with that, that takes into account the Board's 19 concerns, but also allows the parties a reasonable 20 chance to get witnesses and prepare their case.
21 CHAIR KARLIN: Okay. Well, I think -- I 22 understand that problem, and that issue. Mr. Repka, 23 did you have any thoughts on this?
24 MR. REPKA: Well, I'll just say, number 25 one, and I recognize the Board's concern about back-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
416 1 loading the process, and I think that's a legitimate 2 concern, particularly where the disclosure process 3 could go on for many months while we're waiting to 4 present a case. So, getting those disputes addressed 5 during the time when only disclosures are going on I 6 think is very appropriate.
7 Having said that, I'm sensitive to Ms.
8 Curran's concern, and I think a 10-day requirement at 9 the front end based on initial disclosures, in 10 context, seems very harsh, so I think that some 11 reasonable accommodation can certainly be allowed 12 there.
13 CHAIR KARLIN: All right. Because it would 14 seem that under the regs, as they stand, 10 days is 15 the time frame. Motions have to be filed within 10 16 days, 2.232(a), I guess it is. And that is a little 17 short with regard, at least, to the initial mandatory 18 disclosure, which is usually quite large.
19 MR. REPKA: Correct. I mean, that may be 20 very appropriate at the end of the process, but less 21 so at the beginning.
22 CHAIR KARLIN: Right. Ms. Uttal, do you 23 have any solution to this, or ideas?
24 MS. UTTAL: Well, I agree that at the front 25 end that there should be a longer period of time to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
417 1 file the motion, perhaps 30 days or something like 2 that, but at the tail end, the 10 days should kick in.
3 CHAIR KARLIN: Right. Exactly.
4 MS. CURRAN: Well, for instance -- this is 5 Diane Curran, again. It could be a deadline about 6 something to go along with the Draft EIS, because at 7 that point, that's when things start to gel, and most 8 of the issues in this case are environmental. And 9 you've got the landscape pretty well set. You, 10 hopefully, have a witness, so if it could be set to 11 some reasonable period after that, and that's 12 significantly in advance of the Final EIS, but still 13 late enough in the process that -- for instance, the 14 Mothers for Peace has very limited resources. To 15 retain somebody for a period of years to be reviewing 16 documents, first of all, if you could find somebody 17 who's going to review documents and be able to digest 18 everything over a long period of time is, for us --
19 that would be extremely difficult. We don't have 20 that kind of resources.
21 What we do have is the resources to --
22 when the case -- when things -- the Government has 23 basically developed, finished its review, or at least 24 got the draft to be able to look at everything and say 25 okay, this is what we have to say here. But it's --
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
418 1 we have to really focus our resources.
2 CHAIR KARLIN: Well, I hear you, and I 3 think that we'll discuss this with the other judges, 4 but you all filed this case, and there will be 5 mandatory disclosures being made by all parties at 6 some point. And it is incumbent upon the parties to 7 read those mandatory disclosures, and to read the 8 privilege logs, such as they are being submitted. And 9 whether or not some document, which is claimed to be 10 privileged, really is privileged or not is not going 11 to be determined by some witness. It's going to be 12 determined by you, or, at least, ultimately, by the 13 Board, I guess. But if you have a problem with 14 someone over claiming proprietary stuff on their 15 privilege log, that ought to be brought up earlier 16 rather than waiting for some subject matter expert to 17 start delving into it.
18 MS. CURRAN: But, Judge Karlin --
19 CHAIR KARLIN: Yes.
20 MS. CURRAN: -- let me just give an 21 example. Well, I don't have a concrete example, but, 22 for instance, there's technical studies that are going 23 on right now, and that are going to be, I would think, 24 pieces of them becoming available. And when a new 25 study becomes available, sometimes it makes an earlier NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. ,20005-3701 www.nealrgross.com
419 1 study suddenly relevant. A lot of it is what is 2 important, what are the important documents, what are 3 the important facts? And one sees that as the case 4 develops, and you don't always know right at the point 5 some document is identified how it fits into the 6 picture.
7 I'm just asking for some flexibility so 8 that it's really like putting together a puzzle. As 9 one puts -- and I'm not suggesting that we are going 10 to sleep on our rights or anything, but it is an 11 iterative process of putting things together, and the 12 pieces really start falling together at the point when 13 the staff prepares the EIS. I guess I'll leave. it at 14 that.
15 CHAIR KARLIN: Okay. Well, let me --
16 before we leave this topic entirely, I have some 17 concern and difficulty, questions, really about your 18 Paragraph 5, Mr. Repka, of your letter. And I think 19 it helps clarify by your explanation. Let me see if 20 I've got this right. I'm reading Paragraph 5.
21 "The parties agree to waive the 22 requirements to produce privilege logs with regard" --
23 and you have an e.g. down there. I think what you 24 mean is an i.e. , or you are waiving privilege logs for 25 attorney/client, attorney work product, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
420 1 deliberative process. However, you are not waiving
4 MR. REPKA: That's correct.
5 CHAIR KARLIN: Okay. Does everyone agree 6 with that?
7 MS. CURRAN: Yes.
8 MS. UTTAL: Yes.
9 CHAIR KARLIN: Okay. Is there any other 10 categories we need to consider, or does that cover the 11 universe? It's probably good enough for now, but 12 there are other privileges that exist somewhere in the 13 world, I guess.
14 MR. REPKA: Yes, I suppose there are, which 15 is probably why I put e.g., but I think those are the 16 big players we were thinking of.
17 CHAIR KARLIN: Okay. Was the general rule, 18 you waive all privilege logs, exception proprietary, 19 SUNSI, and SGI?
20 MR. REPKA: Correct.
21 CHAIR KARLIN: Okay.
22 MR. REPKA: So, any disputes would be 23 surrounding those, and any issue of access under a 24 protective order would relate to proprietary, SUNSI, 25 or SGI.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
421 1 CHAIR KARLIN: Okay. That's helpful. Do 2 you agree with that, Ms. Curran?
3 MS. CURRAN: Yes.
4 CHAIR KARLIN: Okay. And Ms. Uttal?
5 MS. UTTAL: Yes.
6 CHAIR KARLIN: Okay. Now, let's focus on 7 the ones that you will produce. I understand 8 proprietary. There is a legal category. It's Freedom 9 of Information Act, Exemption 4 that we all know as 10 proprietary. I understand SGI. There is a section of 11 the statute 147, and there is a section of the regs 12 that tell us what SGI is, and what it isn't.
13 As you might suspect, I do not understand 14 SUNSI in that there's no legal definition of SUNSI.
15 There's no case -law, regulation that tells me what 16 that is, and/or why it might be protected, so what do 17 you mean by SUNSI, Mr. Repka?
18 MR. REPKA: Well, I use SUNSI in the way 19 that the NRC staff uses SUNSI. And I do believe the 20 staff has a position that's documented on the FOIA, 21 and where SUNSI fits under the exemptions. I would 22 defer to Ms. Uttal on that off the top of my head, but 23 I'm not sure that I agree that it's not subject to a 24 FOIA exemption. I believe the staff position is that 25 it is.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
422 1 CHAIR KARLIN: All right. What exemption 2 is it, Mr. Repka?
3 MR. REPKA: I don't have that off the tip 4 of my tongue. I'll just add that Mr. Smith, Tyson 5 Smith is on the line separately. He may know, and I'd 6 ask him that.
7 MR. T. SMITH: Sir, this is Tyson Smith.
8 As I understand it, the staff considers,, and Ms. Uttal 9 can, perhaps, expand on this, they consider SUNSI 10 information to be protectable under FOIA. There may 11 be -- as you know, there have not been any specific 12 challenges to it, but I believe it falls under 13 Exemption 4, or under Exemption 2, the High 2.
14 CHAIR KARLIN: All right. You're 15 suggesting it's Exemption 4, that's proprietary 16 information?
17 MR. T. SMITH: For confidential financial 18 information.
19 CHAIR KARLIN: Yes. Confidential.
20 MR. T. SMITH: Yes.
21 CHAIR KARLIN: Financial information.
22 MR. T. SMITH: Commercial or financial 23 information that -- I don't have the statute in front 24 of me.
25 CHAIR KARLIN: Well, maybe Ms. Uttal can NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
423 1 help us. What I'm suggesting, I'm not trying to play 2 games here. I mean, if we're going to have something 3 in this order, we need -- I think we ought to have a 4 definition of the word, so that if somebody says this 5 is SUNSI or this isn't SUNSI, we all have some friggin 6 idea what the word means. So, sensitive, it's not 7 classified, and it's not safeguards, but it's 8 sensitive. Now, Ms. Uttal, what's the -- is there a 9 legal definition, that is, a case law or regulation 10 that is binding upon this Board that defines SUNSI?
11 MS. UTTAL: We're kind of in a quandary 12 here. I don't know the definition right off the top 13 of my head, but I don't believe that it's Exemption 4, 14 because that would be proprietary information, trade 15 secrets, commercial or financial information obtained 16 from a person, and privileged or confidential. So, I 17 don't think that's SUNSI. I think more on the 18 information that might affect security, but doesn't 19 rise to the level of safeguards.
20 MR. T. SMITH: Well, perhaps I can expand 21 on this. This is Tyson Smith, again. SUNSI means, 22 and I'm looking at the NRC's policy on treatment of 23 Sensitive Unclassified Non-Safeguards Information, 24 which is the acronym for SUNSI. It says, "The 25 categories have been organized into the following NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
424 1 seven groups, allegation information, investigation, 2 security-related information, proprietary information, 3 and sensitive internal information." So, I think the 4 category of SUNSI would encompass, and it is a broad 5 category, encompass both Exemption 4 material that's 6 some proprietary information. It might also encompass 7 some information that could be withheld from public 8 disclosure under the Exemption High 2, which is 9 internal agency procedures that might lead to a risk 10 of, the term, some violation of statutory or 11 regulatory requirement. So, perhaps it is a catchall 12 that's not defined very clearly.
13 CHAIR KARLIN: Right. Is there any 14 regulation or case law that defines SUNSI in a binding 15 way here?
16 MS. UTTAL: Not that I'm aware of.
17 CHAIR KARLIN: Right. There is none, I 18 would submit to you. And SUNSI appears, according to 19 what Mr. Smith just indicated, to be a label which is 20 used to comprehend as an umbrella label for, I don't 21 know, seven other categories. And I think the way to 22 look at that is to say well, let's not ask whether it 23 qualifies as SUNSI, let's ask whether it qualifies as 24 High 2, or Exemption 4, or investigative. So, I think 25 the correct analytical approach is not to use the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
425 1 label SUNSI, but to look at the underlying legitimate 2 legal protection which is available, or not, for the 3 document claimed to be privileged.
4 1' don't know what we do here. One option 5 would be, and I have to consult other Board members, 6 is to ask you all to come back with a better -- a 7 clarification of what you want to cover or not cover 8 by this acronym undefined SUNSI, and we could consider 9 it. Or the other is, we already know what's said in 10 the NRC policy, and we could attempt to clarify it, as 11 we see fit. But we do -- we need, essentially, some 12 clarity.
13 There's another option, which is 2.390(d),
14 talks about security-related material, but it never 15 uses the term SUNSI. I'm not sure that's what you 16 mean.
17 So, are the parties interested in coming 18 back to us with a better definition of what you will 19 cover in your privilege logs? Proprietary -- and 20 here's where the -- proprietary, including documents 21 that are SUNSI. Does that imply that SUNSI is a 22 subset of proprietary?
23 MR. REPKA: Yes, I believe that's written 24 that way because I thought that was the case, but that 25 may or may not be the case. It's Mr. Repka speaking NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
426 1 again. I defer to the staff, to some extent, but I 2 think we would be happy to look further into the 3 issue, and provide further background.
4 MS. UTTAL: The staff would like the 5 opportunity to address this further.
6 CHAIR KARLIN: And Ms. Curran?
7 MS. CURRAN: Well; I'd certainly like to 8 see what PG&E and the staff have to say. I guess, 9 from a practical perspective, maybe what would help is 10 to put something in the agreement about that the 11 privilege log should have some detail about when 12 something is claimed to be SUNSI, exactly what legal 13 protection is claimed, so that -- my understanding, 14 as was just discussed, is that it could be any one of 15 a number of FOIA exemptions. So, if there could be 16 some information in the privilege log as to what it 17 is, and what exemption is claimed, that would 18 certainly be helpful.
19 CHAIR KARLIN: Maybe I'll ask Judge 20 Abramson and Judge Trikouros just off the cuff if you 21 have any - and I'm sorry we didn't really discuss 22 this. Any objection to us sort of asking the parties 23 to submit something to us, say within a week or 10 24 days, providing their -- whether they have an 25 agreement of what SUNSI is, or isn't, and that sort of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
427 1 thing. Would that be all right with you, Judge 2 Abramson? Give them five or ten days to do that, 3 seven days?
4 JUDGE ABRAMSON: Yes, I don't care. It 5 seems to me like we're making a mountain out of a 6 molehill at this point. We'll know what they're 7 claiming when they have to claim it.
8 CHAIR KARLIN: Okay.
9 JUDGE TRIKOUROS: Yes. I think it would be 10 a good idea to try and clarify this in perhaps 10 11 days. But it's clear to me in listening to the 12 conversation that the use of the term "SUNSI" is 13 probably not a good idea. That SUNSI is a large 14 enough umbrella that is probably not very useful to 15 us. The term "proprietary" certainly is. The term 16 "security" certainly is, and there may be one or two 17 others that might be fine.
18 CHAIR KARLIN: Yes. Okay. Well, I think -
19 - I agree, and maybe we could ask the parties to -
20 give you - what's the date today? Until next Friday 21 to submit something either jointly, or separately. I 22 mean, Paragraph 5 is, ostensibly, your agreement, what 23 you've agreed to. And I'm not sure whether I 24 understand what you've agreed to, or I'm not sure 25 whether you agree to what you've agreed to vis a vis NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
428 1 the label of SUNSI, but I agree. So, by next Friday, 2 COB Friday, please submit to us whatever you wish to 3 with regard to clarifying Paragraph 5, particularly 4 the second sentence, and particularly the term "SUNSI" 5 here.
6 I think it's probably much more productive 7 not to use that label, because it's meaningless as far 8 as the law is concerned. And instead, to use the 9 underlying seven labels that Mr. Smith just rattled 10 off, if that's what you mean when you say you will 11 produce privilege logs with regard to proprietary, 12 safeguards, and all seven of those underlying 13 categories.
14 MS. CURRAN: Judge Karlin, this is Diane 15 Curran. I'd like to make a request. Could the 16 Mothers for Peace be allowed to respond if we need to, 17 to the other's pleadings, because we don't -- this is 18 not our information, so it's not --
19 CHAIR KARLIN: Well, I don't know if that's 20 really quite fair. It's not your information, but 21 you're the one who's interested in getting the 22 information.
23 MS. CURRAN: Yes, and --
24 CHAIR KARLIN: So, you're the one who 25 they're going to be disclosing it to, so you, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
429 1 obviously, have an interest in what you're going to 2 waive, and what you're not going to waive, and what 3 you want them to produce in a privilege log, and what 4 you don't. And if you have a label SUNSI that you 5 don't know what it means, and you agree they do or do 6 not have to cover it, no one knows what that covers.
7 I think you need to take a position, and it wouldn't 8 be fair to really give you a rebuttal opportunity. I 9 mean, everyone just gives us what they think.
10 MS. CURRAN: Well, then I just want to ask 11 for clarification that -- I guess the Mothers for 12 Peace would be prepared to address how -- what would 13 be the most helpful way for claims of protection of 14 information to be described. I think you raised a good 15 point, that when somebody says something is SUNSI, 16 it's a little hard to know what's the basis for the 17 claim that this information doesn't need to be 18 disclosed.
19 I just -- I don't feel in a position to 20 give you a big briefing on how information ought to be 21 categorized as SUNSI, or not SUNSI, just because it's 22 so complicated. And for purposes of just figuring out 23 whether -- you know, from our perspective, it's just 24 getting enough information to evaluate a claim that 25 something is protected, and whether you try to get the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
430 1 information. That's our perspective.
2 In terms of the whole debate about whether 3 the classifications are legitimate, what exemptions 4 certain information falls under, or shouldn't fall 5 under, I just don't feel prepared to address that.
6 CHAIR KARLIN: Do the other parties have 7 any position or concern on this? Mr. Repka, perhaps?
8 MR. REPKA: I think that it's a staff term.
9 I think that it does have a definition in internal 10 agency documents, and I think we can certainly lay 11 that out. I don't think it's a term that -- I do not 12 believe it's a term that PG&E invokes unilaterally.
13 If a document is labeled by the NRC staff that way, 14 PG&E may carry forward that label, but --
15 CHAIR KARLIN: No, my question was more on 16 this point. First, Ms. Curran, we have to issue 17 initial scheduling order within 55 days, and we're 18 trying to do that, so we don't want to delay this, 19 particularly. But you've asked for a process whereby 20 let the staff and the applicant submit what they wish 21 to with regard to the meaning of Paragraph 5, and then 22 give you opportunity to react or respond, and file 23 something a bit later. Do you have any problem with 24 that approach, Mr. Repka and Ms. Uttal, that maybe you 25 file first, and then give Ms. Curran an extra three or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
431 1 four days, five days to say yeah or nay to that? I 2 mean, is there any problem?
3 MR. REPKA: I do not believe it's an issue 4 that's amenable to debate. I think it's a -- the term 5 is defined. I don't know the definition offhand, or 6 where that is, but that's what I believe that we can 7 get back to you with. I don't think that the 8 definition is subject to debate. The application of 9 it some day may be, but not the term, itself.
10 CHAIR KARLIN: Well --
11 MR. REPKA: I'm not sure why we would have 12 filings and counter-filings.
13 MS. CURRAN: Judge Karlin --
14 CHAIR KARLIN: The point -- well, let me --
15 the point is, what are you agreeing to? You can 16 agree to waive the list logs for X files, and I don't 17 know what X files means. If you give me a definition 18 of X files, then we can go move forward. But I don't 19 know whether you know what you -- whether you've 20 reached an agreement here. That's all I'm trying to 21 figure out.
22 JUDGE ABRAMSON: Judge Karlin, this is 23 Judge Abramson. This will be much easier to resolve 24 in the specific when things come up. I think what we 25 can expect reasonably to get from the staff and the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
432 1 applicant at this point, if there is, in fact, a
.2 staff's definition, is we're going to get the staff's 3 definition back. And we're not going to know how it 4 applies in the specific until a specific instance 5 comes up. And we can't expect an infinite list of 6 specific examples at this point.
7 CHAIR KARLIN: Right. I agree with that.
8 We don't want specific examples, at all. Agreed.
9 MS. CURRAN: Judge Karlin, this is Diane 10 Curran. Maybe the best thing to do would be for the 11 three parties to get together and give a more detailed 12 explanation of the meaning~of Paragraph 5. And if we 13 can't come up with it together, then the Mothers will 14 make some separate statement. Does that make sense?
15 CHAIR KARLIN: Right. By next Friday, let 16 us ask you to submit, I think we've discussed this 17 enough, whatever you wish to. submit with regard to
- 18. Paragraph 5, particularly the second sentence of 19 Paragraph 5, what you think you're agreed to, and what 20 you haven't. And then we'll take it under 21 consideration. And if-you reach agreement, you can 22 file some agreed position. If you don't reach 23 agreement, you can file separation positions, and all 24 the filings will be due next Friday.
25 Now, I might add that we may or may not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
433 1 adopt, are not bound by something if it doesn't seem 2 to be meaningful, or we don't understand what we're 3 doing, we're not going to put it in an order when we 4 don't know what that word means, or at least I'm not.
5 We'll think about it. We'll talk about it, the Board, 6 and we'll debate it.
7 All right. Let me raise one other thing 8 in the SUNSI context. We could either do it now, or 9 later, so we might as well do it now, which is, if you 10 look at the issue of SUNSI, in our -- in the Levy 11 order, and in the normal course of events the way 12 boards handle discovery disputes, or, in this case, 13 not so much discovery, as motions to compel. Okay.
14 What happens if someone makes a mandatory disclosure, 15 and somehow they've omitted relevant documents? Then 16 the other -- from the mandatory disclosure. Then the 17 other side has the opportunity to file a motion to 18 compel the production of those documents.
19 If someone makes a mandatory disclosure 20 and they claim something to be privileged in a 21 privilege log, and the other side believes that it 22 really doesn't qualify for that privilege, then the 23 other side can file a motion to compel the production 24 of that document, or to challenge the claimed 25 privilege.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
434 1 Now, with regard -- this is how we're 2 going to handle -- this is how we handle, this is how 3 boards handle discovery disputes, disclosure disputes.
4 And this also applies to SUNSI; that is to say, if 5 someone claims something as "SUNSI," and the other 6 side says that it's not SUNSI, what the process is, is 7 the normal discovery dispute process under the 8 adjudicatory proceeding, whereby you file a motion to 9 compel, and the other side files an answer. And then i0 the Board resolves that issue.
11 And what is correct here is that if you go 12 back -- I want to avoid confusion, because if you go 13 back to the initial Federal Register notice here on 14 January 2 1 st, 2010, there was a process laid out 15 dealing with SUNSI. And that dealt with potential 16 parties who needed information in order to obtain the 17 information, in order to file contentions. And that 18 process does not apply here any more, because now 19 there is an actual party. The actual contentions are 20 filed, so the guiding process for discovery disputes 21 will be the normal discovery dispute process of 22 boards. And it will not be the process laid out in 23 the Federal Register notice, because that is moot. If 24 you look at 2.307(c), it gives SECY the authority to 25 issue such orders dealing with potential parties who NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
435 1 need information to file contentions. That is now 2 past, and as that order says, now the normal process 3 applies, and the normal process is motions to compel 4 in front of a board. And I think that just needs to 5 be clarified, because it could be the source of 6 confusion.
7 So, why don't we move on to Question 8 Sixteen, Site Visit. I think I believe, 9 personally, that a site visit might be helpful. And 10 I'm not sure whether the parties think that would be 11 appropriate. I mean, it is somewhat of a burden on 12 PG&E to have all of us trouping around on your 13 facility. And all of us, of course, would have to 14 spend some money to get there, so I ask -- I'll start 15 with Mr. Repka, if you think that would be an issue or 16 a problem for your client if we have a site visit?
17 MR. REPKA: It would not be an issue or a 18 problem. I think we would defer to the Board's view 19 as to whether that's helpful. So, we're neither for 20 it, nor against it, but we would support it. In our 21 discussions, I believe the staff was of a similar 22 view, and I believe the Mothers for Peace felt the 23 issue is premature. But speaking for PG&E, I think we 24 would support it, if the Board desired.
25 CHAIR KARLIN: All right. I appreciate NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
436 1 that, because it is a burden of some degree on the 2 applicant. Ms. Curran, any thoughts here?
3 MS. CURRAN: Well, if the Board wants to 4 have a site visit, the Mothers for Peace would 5 certainly be supportive of that. At this point, we 6 would like to wait and see when we have our witnesses 7 whether they would think it was useful to tour the 8 site.
9 CHAIR KARLIN: Well, okay. A site visit is 10 not an opportunity for all of your experts to 11 accompany you on the visit. It's not discovery for 12 you, it's information for us, but okay. And, staff, 13 you're neutral on this, basically?
14 MS. UTTAL: Basically, yes.
15 CHAIR KARLIN: Okay.
16 JUDGE ABRAMSON: This is Judge Abramson.
17 I'm not so neutral on this. We can talk about it 18 later.
19 CHAIR KARLIN: Okay. Item 17, Simultaneous 20 Filing or Sequential Filing of the initial written 21 statements. Does anyone have any thoughts on that?
22 I mean, if you don't, it's okay.
23 MR. REPKA: Well, Mr. Repka, again. I 24 think we agreed that simultaneous written direct 25 positions and testimony, followed by simultaneous NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
437 1 written rebuttal would be what we would think would be 2 appropriate.
3 CHAIR KARLIN: Okay. Good. Everyone is 4 okay with that then? That is the way the regs are 5 laid out, and it has some sense to it.
6 Eighteen, Time limits for filing motions 7 for cross-examination. Probably not a major issue to 8 discuss, but at some point, there is an opportunity to 9 do that, and we need to lay off -- have a time frame 10 for that.
11 We handled it in the -- the Levy Board 12 handled it in page 18, and sort of after all the 13 initial and rebuttal filings have been made. That 14 seems to be about the right time frame, unless you all 15 have some objections or concerns.
16 MR. REPKA: This is Mr. Repka. I think it's 17 just a matter of working it into the schedule timed 18 with the testimony coming in and the start of the 19 hearing date. I think 30 days prior may be a lot --
20 might end up resulting in too much extra time being 21 put into the schedule. But I think, obviously, some 22 allowance can be made for it in the schedule, and we 23 have no objection to that.
24 CHAIR KARLIN: Okay. Nineteen, any other 25 procedural matters. We'll move -- I think we're NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
438 1 pretty much done with the August 5th order. Now, 2 we're going to go to the Repka letter of August l 0 th.
3 Okay? And I think we've pretty much covered that one, 4 too.
5 We dealt with the issue of privilege log, 6 Paragraph 5 issues. Let me ask an easy one. You have 7 proposed deferral of disclosures, initial disclosures.
8 Does that include deferral of the hearing file with 9 regard to those contentions, as well, Ms. Uttal? Is 10 that the intent?
11 MS. UTTAL: That was my understanding.
12 CHAIR KARLIN: Was that everyone else's 13 understanding? It wasn't clear to me in the way the 14 letter was written.
15 MR.. REPKA: That would have been my 16 understanding, as well.
17 MS. CURRAN: Yes. This is Diane Curran, 18 same here.
19 CHAIR KARLIN: Okay. Because it said 20 "initial disclosures," and it didn't say hearing file, 21 so I had a question about that.
22 EC-l you've got delayed until -- proposed 23 until October 1 5 th That seems just a short delay.
24 The other one, TC-l, you've delayed indefinitely. And 25 I have to say, personally, I am somewhat troubled by NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
439 1 that, in that if we have admitted TC-l, we, of course, 2 are waiting for the Commission's decision on its 3 appeal. Meanwhile, the FSER is being issued, and it 4 may -- you're talking about having the safety hearing 5 even before the FSER is issued. And, yet, there will 6 be no disclosures made until the Commission rules.
7 And the Commission -- the last time they appealed 8 something I was working on, it took them 18 months to 9 decide it. Let's hope it doesn't take that long, but 10 I would think six months is not unreasonable. Then 11 that puts us into February.
12 MR. REPKA: This is Mr. Repka. I was 13 assuming about six months. I think that's a logical 14 assumption. I wasn't assuming going forward to 15 hearing prior to making any disclosures, so I think 16 what we were contemplating was a Commission decision.
17 Obviously, TC-I is a contention that will require some 18 significant effort on the part of all of the parties, 19 both in the disclosure, and in the preparation 20 process. But we were looking at a schedule that would 21 have a Commission decision, some appropriate time for 22 disclosures, and then appropriate time periods for 23 preparation of cases, and summary disposition motions 24 in there, as necessary. Again, not keyed to the SER.
25 That doesn't mean it won't show up, that the schedule NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
440 1 wouldn't push it, go back and look at the issue that 2 a Safety Evaluation Report with open items in 3 December, final SER in May. If it turned out that the 4 schedule -- a appropriate schedule triggered by a 5 Commission decision on the appeal, and subsequent 6 disclosures could extend past that SER date, I 7 recognize that, and I don't have any problem with 8 that. So, if it turned out that it could be earlier 9 than the SER date, that's fine, too. But we're not 10 looking, and we're not advocating for a hearing prior 11 to disclosures, just to be very clear there.
12 CHAIR KARLIN: Yes, right, right. I'm just 13 suggesting that this could delay, if we wait until the 14 -- whatever. Ms. Curran, again, you are agreeing --
15 you were suggesting you would agree to delay this 16 indefinitely. Do you see a -- what happens if we get 17 pushed up against other deadlines that are occurring 18 here?
19 MS. CURRAN: Well, I -- to me, this seems 20 like a reasonable approach. There's a lot of issues 21 have been admitted, and it's a way of managing it a 22 little bit for me, so I think it's -- from my 23 perspective, it's reasonable.
24 MR. REPKA: Judge Karlin, this is Dave 25 Repka, again. I'd say that, again, we're contemplating NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
441 1 separate tracks for EC-l and TC-l. And, obviously, if 2 any of the contentions that are subject to some 3 further process, if we end up moving forward to, they 4 would be on separate tracks, as well. And the 5 prospect of a long-term Commission delay, say beyond 6 our assumption of about six months, perhaps if we find 7 ourselves in that space, we can and should revisit the 8 issue. But a working assumption of six months I think 9 would allow us to proceed on different things, on 10 different schedules, on appropriate schedules.
11 CHAIR KARLIN: Ms. Uttal?
12 MS. UTTAL: Judge, the effort that would be 13 put forth on TC-I would be, I think, enormous for the 14 staff. We think that it's a good idea to wait and see 15 what happens with the appeal.
16 CHAIR KARLIN: Okay. Well, okay. There's 17 a couple of things here. One is, we have admitted, or 18 found admissible four contentions here. One of them 19 is subject to a prima facie review, of course, 20 determination, or the waiver decision by the 21 Commission. But there are four admissible contentions 22 here, and I don't see this being quadraficated into 23 four different hearings. We're going to have a 24 hearing probably on -- that covers all of them that 25 survive. And, by now, I think we did the right thing, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
442 1 and we admitted what we think is right. And it could 2 be reversed, and might not, but I think the proper 3 presumption is they're in. And they are in at the 4 moment.
5 Perhaps what we might do is, normally --
6 and, again, I'll talk with my colleagues on the Board 7 about this, but what I think is a good case management 8 mechanism is to have case management conferences about 9 every six months, even if there's no specific burning 10 oral argument that has to be held on anything. And 11 that at a six months from now juncture, let's say 12 February, we would have another case management 13 conference, and we could revisit this. It might even 14 be a presumption that the mandatory disclosure is 15 delayed seven months, subject to further extension if 16 at the six month conference call we decide, and you 17 ask that it be extended again. Because inertia, I am 18 concerned with inertia, and I think I'd rather have 19 some date out there for the disclosures to commence, 20 than to have inertia just simply delay indefinitely 21 until something -- until the Commission rules. And it 22 could be a long time. But, I guess we just -- the 23 Board will have to -- we'll talk about that, and I 24 appreciate your input on that.
25 Other than that, I don't have any NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
443 1 questions about the letter, unless either of my 2 colleagues do. We've already gone over the privilege 3 log issue.
4 Okay. Next point, which is review of 5 other points from the Progress Levy initial scheduling 6 order. As you note at the very -- on page 4 of our 7 August 5 th order, we said that you should be prepared 8 to explain on a point-by-point basis why a similar 9 order should not be issued here. I don't think, 10 unless my -- at the risk of my colleagues, we need to 11 go through that on a point-by-point basis, but do you 12 have any issues that you want to talk about that are 13 problems, or that you have difficulty with in the 14 approach that was used in that other order? Mr.
15 Repka?
16 MR. REPKA: No, we had no other issues that 17 we wanted to take up on that.
18 CHAIR KARLIN: Okay. Ms. Curran?
19 MS. CURRAN: Neither did the Mothers for 20 Peace.
21 CHAIR KARLIN: Staff, Ms. Uttal?
22 MS. UTTAL: Staff has nothing else to add.
23 CHAIR KARLIN: Okay. I think that's about 24 it. Let me just -- I have a couple of final items.
25 One is, in your discovery, mandatory disclosures I NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
444 1 might say, when you do the mandatory disclosures, 2 don't send them to us. We don't want to see them.
3 They are discovery that goes inter se between the 4 parties, and we don't need to read -- we don't want to 5 see it. It mucks up the record. We're not going to 6 read it, and we don't need to read it, so just 7 exchange it amongst yourselves, if you would.
8 We also I, personally, are not 9 particularly interested in getting a lot of 10 notifications sent to the Board. I've seen some 11 par.ties sometimes send what I call FYI filings. For 12 your information, Board, such and such just occurred, 13 or we just did this. I don't really want to see that, 14 personally. If you've got something you want us to 15 take action on, then file a motion. Otherwise, just 16 don't file FYI filings with us and expect us to pay 17 any attention. We don't want them. I don't want them.
18 MS. UTTAL: Judge Karlin.
19 CHAIR KARLIN: Yes.
20 MS. UTTAL: This is Susan Uttal. When we 21 file documents with the EIE, they automatically go to 22 the Board, so do you want us to remove you from the 23 service list for certain documents on the EIE, if that 24 is possible? I don't know if it's possible.
25 CHAIR KARLIN: Yes. It is- with other NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
445 1 cases, yes. I mean, we -- if you're going to use the 2 EIE as a vehicle for making your mandatory 3 disclosures, you don't have to, but if you're going to 4 use it, you don't need to put us on the list of 5 getting these thousands of documents that are being 6 exchanged.
7 MS. UTTAL: Okay. Well, normally we just 8 send a list with the ML numbers.
9 CHAIR KARLIN: Well, we don't need that 10 either.
11 MS. UTTAL: Okay.
12 CHAIR KARLIN: Now, with the hearing file, 13 that's something different. I think there's a 14 different regime with that, and under the regs for 15 hearing file 2.1203 or whatever it is, I think you do 16 need to notify us that you've updated the hearing 17 file. But we don't need to see the hearing file, no 18 need to be provided the hearing file, because that's 19 the next point. What you're exchanging, and what's 20 the hearing file, that's not the record. The record 21 we're going to decide this case upon is the evidence 22 that you submit when you do your initial filings, and 23 your rebuttal filings. That's the record, that's the 24 evidence, that's what we'll decide this case on, not 25 what's in ADAMS, and not what you exchange in your NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
446 1 mandatory disclosures. That's not the record, as far 2 as I'm concerned, in terms of what we're going to 3 read. We're not going to read that stuff. We can 4 only read a certain amount, and be responsible for it.
5 MS. CURRAN: Judge Karlin.
6 CHAIR KARLIN: Yes.
7 MS. CURRAN: This is Diane Curran. I'd 8 like to go back for a minute to the point you were 9 making about FYI filings.
10 CHAIR KARLIN: Yes.
11 MS. CURRAN: And just to say that the 12 interveners tend to depend on Board notification. I 13 think there's a Commission policy that if the 14 applicant, or say the staff generates a document that 15 has a bearing on an admitted contention, that they're 16 obligated to notify the Board and the parties that 17 that document exists. It's helpfulto us. It gives 18 us a head's up that there's something we should be 19 focusing on, so I just wanted to mention that that is 20 something important to us.
21 CHAIR KARLIN: Well, I think that that's 22 somewhat -- I think that notification policy that 23 you're referring to has been displaced by the fact, 24 essentially, that there's mandatory disclosures. That 25 if there's any relevant document of any kind that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com v
447 1 relevant to contentions, that has to be exchanged or 2 disclosed. Likewise, the staff has a hearing file 3 obligation, so all of those things will be smoked out 4 and produced in that context. And you guys exchange 5 it to your heart's content, but we don't need to be 6 notified every time the staff does something, because 7 you've got mandatory disclosures that will achieve 8 that -- provide you with that information.
9 So, I mean, if there's something really 10 burning that we need to be -- you think that needs to 11 be notified, okay, staff, or anyone else, but I don't 12 want to get a copy of the notification that the staff 13 had a meeting with regard to scoping of an EIS 14 somewhere, as if -- what are we supposed to do about 15 that? It may be relevant to some contention, but 16 you'll find that -- so, I think, Ms. Curran, you --
17 Mandatory Disclosure 2.336, and the evidentiary 18 hearing files under Subpart L achieve the disclosure 19 to you that you're seeking.
20 MR. T. SMITH: Judge Karlin, this is Tyson 21 Smith for PG&E. I just have a quick clarification on 22 the disclosures. The way it typically works is we 23 would not provide the Board with the actual documents 24 that we are disclosing, but we would file a 25 notification to the EIE on a monthly basis saying NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
448 1 here's the list of documents that we filed. And am I 2 correct in understanding that you do not want to see 3 that? It's sufficient if we just provide that to the 4 other parties?
5 CHAIR KARLIN: That's my take on it, yes.
6 MR. T. SMITH: Okay.
7 CHAIR KARLIN: And you can set up your EIE 8 filings as to who you disclose things to, and who you 9 don't. And I think that's -- I have other boards, and 10 that's exactly what they do. We don't see that stuff, 11 nor do we need to, or want to.
12 Okay. Corrective filings are discouraged.
13 Obviously, we don't want someone -- if you've got a 14 deadline to file something, to file a corrected 15 filing. That's -- we've got all experienced counsel 16 here. That isn't going to happen.
17 And, finally, I just would note that 18 sometime in the next month or so, maybe we will be 19 issuing a Notice of Hearing. It's sort of a thing 20 that's required under 2.105(e) (2), so we'll be doing 21 that. So, it will, ultimately, appear in the Federal 22 Register. And it just says now that the Notice of 23 Opportunity for Hearing was issued, and the hearing 24 has been granted, and, therefore, we have to issue a 25 Notice of Hearing. And it has to appear in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.oom
449 1 Federal Register, and it will.
2 Do we have anything else, Judge Abramson?
3 Anything you want to add, or mention here?
4 JUDGE ABRAMSON: Just I'm still awake.
5 CHAIR KARLIN: Good man. Judge Trikouros?
6 JUDGE TRIKOUROS: No, I think we covered 7 everything.
8 CHAIR KARLIN: Anything from the parties, 9 questions?
10 MS. UTTAL: Nothing from the staff.
ii MS. CURRAN: Judge Karlin, this is Diane 12 Curran. I did not understand that the Board 13 notification policy has been, basically, superseded.
14 And I am going to go do some reading about it. And if 15 I find some other information about it, I'd like an 16 opportunity to write to the Board.
17 MS. UTTAL: If I might say something, Your 18 Honor, this is Susan Uttal. We still do Board 19 notifications on matters that are not directly related 20 to the litigation, but may somehow affect something 21 having to do with the litigation. That's a separate 22 policy on the part of the NRR staff. And those, we 23 would still be sending. So, Diane, I wouldn't worry 24 about that.
25 MS. CURRAN: Okay. Thank you.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
450 1 CHAIR KARLIN: Okay. Well, a couple of 2 points, Ms. Curran. If you've got an issue, when you 3 say "write to the Board," well -- if you want to file 4 a motion for clarification, or a motion of some kind, 5 file a motion, but don't write to the Board like we're 6 going to have a dialogue here. Anything you want to 7 file with us, you file in a motion.
8 MS. CURRAN: Okay.
9 CHAIR KARLIN: Staff, we don't want to be 10 inundated with a bunch of notifications. You've got 11 something urgent that you've got to tell us, then tell 12 us. I've seen some boards get a lot of stuff that 13 really isn't very helpful, and I think that 2.336 has 14 utterly displaced any duty to file the notifications.
15 But if you feel the urge, I don't think we'll -- we'll 16 just have to deal with it, and we'll get them. Just 17 let's be reasonable here. We just don't want to get 18 a bunch of stuff, FYI stuff from people. If you've 19 got something you want us to take an action on, file 20 something. Otherwise, just do your own thing.
21 Mr. Repka, any final questions or issues?
22 MR. REPKA: No.
23 CHAIR KARLIN: Okay. All right. Well, I 24 appreciate everyone's attention and patience. It's 25 gone a little -- it's about two hours. We have set NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
451 1 next' Friday, I don't know what the date on that is 2 exactly, as the deadline, September 3 rd, for you all 3 to file anything you want to with regard to Paragraph 4 5-of the letter of August l 0 th. Otherwise, as I see 5 it from the call, there's no other deliverables or 6 submissions due from any of you. And once we get your 7 filing on next Friday, we will proceed to work on a 8 scheduling order, and issue it, hopefully, within the 9 55-day time frame.
10 Oh, we might also add, and the Board has 11 agreed, we talked about this ahead of time, that we 12 agree that your initial disclosures are not due on 13 September 3 rd, as you have suggested, as the regs 14 require. We're not, necessarily -- we haven't issued 15 the order, so we haven't adopted your date of October 16 1 5 th yet, but until you hear further from us, you can 17 assume that the date for filing the mandatory 18 disclosures under Contention EC-l and TC-i is in 19 abeyance until you see the order from us. All right?
20 I appreciate everyone who's on the call.
21 This meeting is adjourned. Thank you.
22 MS. CURRAN: Thank you.
23 MR. REPKA: Thank you.
24 (Whereupon, the proceeding went off the 25 record at 4:55 p.m.)
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.; N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com
CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: Diablo Canyon Nuclear Plant Name of Proceeding: Hearing Docket Number: 50-275-LR and 50-323-LR ASLBP Number: 10-890-01-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.
John Montove.
Official Rep rter Neal R. Gross & Co., Inc.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com