ML19296C939
| ML19296C939 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/21/1980 |
| From: | Advisory Committee on Reactor Safeguards |
| To: | |
| References | |
| NUDOCS 8002290091 | |
| Download: ML19296C939 (36) | |
Text
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U NIT E D STATES NUCLEAR R EG UL ATORY COMMISSION in the matter of:
METROPOLITAN EDISON COMPANY Docket No. 50-289 (Restart)
THREE MILE ISLAND, UNIT 1 SPECIAL PREHEARING CONFERENCE PIace:
Bethesda, Maryland Date:
February 21, 1980 Pages:
1-3s INTERNATIONAL VERBATIM REPORTERS. INC.
499 SOUTH CAPITOL STREET, S. W. SUITE 107 WASHINGTON, D. C. 20002 202 484-3550 800220o yg
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8 ACE N C.
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I UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION
..____________________________x j
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1
- '.n the Matter of:
I METROPOLITAN EDISON COMPANY Docket No. 50-289 (Restart) l 5
(THREE MILE ISLAND, UNIT 1) y
_____________________________x 3
9 Conference Room, 5th Floor East West Towers 10 4350 East West Highway Bethesda, Maryland 11 I
Thursday, February 21, 1980 l
l s
This Special Prehearing Conference was held, pursuant I#
to notice, for presentation of the above-entitled matter, at I
l' 9:00 a.m., Chairman Smith, presiding.
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On behalf of UCS:
IS ELLYN R. WEISS, ESQ.
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i9 On behalf of NRC Staff:
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20 DANIEL T.
SWANSON JAMES R.
TOURTELLOTTE,'ESQ.
21 On behalf of Metropolitian Edison:
3 22 ROBERT E.
ZAHLER i
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CHAIRMAN SMITH:
Are you ready to proceed, ladies and gentlemen?
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1 MR. TOURTELLOTTE:
Yes.
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MS. WEISS:
Yes, sir.
6 MR. ZAHLER:
Yes.
T CHAIRMAN SMITH:
In our Prehearing Conference session 3
held in Harrisburg last week, we agreed to adjourn to this place 9
today for the limited purpose of hearing arguments on Union
- o of Concerned Scientists' motion to compel discovery of the Staff.,
This arrangement was possible because all of the parties agreed that the only business that would be discussed would be the g
UCS motion.
I Thursday evening, the Board received a call -- Thursday I
afternoon, the Board received a call from Robert Q. Pollard of the Chesapeake Energy Alliance, requested by telephone that he l
be permitted to appear at this session of the Prehearing Con-l 17 ference and to argue other matters which I understood to be, 18 i
during that telephone conversation, general due process matters.I l
19 I told him that, of course, he is welcome to appear; this is i
- o I
an open Prehearing Conference, but we would not permit him to l
21 l
argue matters of general interest to the other intervenors.
He indicated that it was a matter of great importance i
to him and it was important that he be given the opportunity i
- 4 to appear hear and argue and asked if the Board would recon-i
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I siderifhereceivedtheconsentofallofthepartiestoappear!
2 here.
I told him that -- and that he would file a motion re-i f
2 flecting the consent of all the parties.
I told him that he I
1 is certainly free to file whatever motion he wishes, but that l
i 3
I would recommend to him that he not waste his time because in 5
the first instance, it is unlikely that he could, in the time l
7 involved, obtain the consent of all of the parties; andsecondly{
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even if he were able to communicate with all of the parties, the nature of the com:aunication and his explanation of the subject matter would give rise to serious possibilities of mis-10 understanding.
11 Nevertheless, CEA did file a motion to permit oral t:
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argument.
The only reason we are bringing it up now is that it :
is consistent with our commitment to the parties, last week, 14 a
that we will not depart from business relating particularly to l
the UCS motion.
And, the motion reflects the fact that he l
14 had some communication with some of the parties in which he t --
l described and discussed his purpose of requesting oral arguments-la and he requested he be permitted to appear here.
l 19 The problem with his motion is that the original 20 concern that I had still exists and that is the motion does i
- 1 l
not indicate to the Board that the parties were fully informed me as to what he wanted to discuss and now, it is apparent that he wished to discuss his, the CEA Omnibus motion to the Board, l
24 dated February 13, 1980; that was the motion presented, hand-i,,rr
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I delivered to the Board and to some of the parties on February 13. !
1 That motion is, the Omnibus motion to the Board is quite clearly,
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a motion which involves areas of quite strong and general l
interest of all the parties in this case.
So, despite the fact i
I that some of the intervenors agreed, including UCS, agreed to 5
allow Mr. Pollard to argue these matters, the Board believes that; i
7 it would be inconsistent with its commitment to some of the i
i 3
parties, to all of the parties that we would not depart from l
l 9
the narrow business at hand here.
And, indeed, the intervenor i
l Jo who is most directly involved or is equally involved as CEA, that is People Against Nuclear Energy, PANE, did indicate that they i
l were not pleased with the idea that intervenor funding, for j
i 13 example, would under CEA's motion be discussed today and that j
i they could, under some hardship, appear and represent their
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4 position, but they were advised that CEA's motion to present l
oral arguments today would be denied.
I So, yesterday, Robert Q. Pollard was advised by I
telephone that his motion to appear here today and present j
oral arguments was denied.
And, of course, that being the case,;f 19 there is no need for any party opposing that motion to file responses to it; it is quite late to file responses to it any-21 l
way; and I note the Mr. Pollard is not hare today, Robert Q.
f Jr Pollard is not here today, Mr. Robert O. Pollard, in case I haven't mentioned it, is the representative of Chesapeake Energy A
Alliance.
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I Now, moving on to the business scheduled for today, I
the Board has reviewed UCS's motion to compel the NRC Staff to i
respond to interrogatories.
It is our view that the Prehearing j
A Conference session in Harrisburg on February 13, has resolved j
i I
3 many of the issues, but there are some, as we recognized then, i
i 6
that remain for discussion.
l 7
The first that we have identified is the request by j
l UCS, referred to on Page 10 of the UCS motion; which, as UCS l
3 states it, UCS has asked the Staff to identify all sections and 9
page numbers of the SER, Safety Evaluation Report, or FSAR which g
contain subject matter pertaining to each UCS contention.
The Staff refused to answer this question according to UCS with I
respect to every UCS contention on the basis that it is not la i
l necessary to a proper decision in the proceeding and because 14 I
it is unduly burdensome.
Well, the defense of, quote, not 13 necessary to the proper decision in the proceeding, end of quote, was discussed and disposed of last week; unduly burden-
- 7 some was not.
If the Board were ruling today, we would deny 18 l
the motion to require the Staff to identify all subject matter 19 pertaining to each UCS contention in the SER and/or the FSAR 20 i
because, in our view, these documents are not particularly i
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large.
We see no reason why UCS cannot do it as well, or in
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fact, better than the Staff and we do not believe that is particularly burdensome for UCS to do it for itself.
But, even
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i Staff to do this task than for UCS to do it, our ruling would i
still be that UCS should do it itself, because you are asking i
the Staff to exercise judgment on your behalf as to what is l
relevant and what isn't relevant, which again, is sometimes I
necessary when you are dealing with a large pool of data.
- But, 6
when you are dealing with a relatively small pool of data, I
i 7
that is very undesireable because it gives, raises the possibility 3
of misunderstanding as to the judgment of relevance.
So, we p
would normally be disinclined to shift the burden from the to discovering party to the party against whom discovery is sought to identify what the discovering party seeks as relevant.
g; Before we call upon the parties to address this issue, I
- 7 Ioverlookedthefactthatwehavenewcounselpresenttodaythat!
has not been identified, Mr. Tourte11otte, is that the case?
i Who is with you at the counsel table?
I MR. TOURTELLOTTE:
To my right is Lucy Swartz and
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i Dan Swanson.
And, Dan Swanson will be representing the Staff today regarding the objections.
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CHAIRMAN SMITH:
Mr. Zahler is present and you, sir -- l 19 l
oh, you are representing the Staff.
20 MR. TOURTELLOTTE:
Harl'ey Silver is also here; he is 21 f
the project manager for the NRC Staff.
22 CHAIRMAN SMITH:
Okay.
20 As to the remaining specific interrogatories beginning 4
on Page 12, if the Board were ruling today, without benefit of L'
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further argument, we would find in each instance UCS is entitled j
2 to at least a portion of the relief it seeks.
So, with that before you, we will ask Ms. Weiss, representing UCS, to begin 1
A addressing the Staff's rempxse to UCS's motion to compel.
l MS. WEISS:
The Staff didn't respond on the merits of 6
any of the specific objections, and I am thinking primarily l
7 of the relevance objections which I gather is what the Board l
1 3
would like to hear about now?
9 CHAIRMAN SMITH:
Why don't we take it up on the context,
.jo j
do you have any quarrel with the Board's reasoning on the portion
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of your motion on Page 10 in which --
MS. WEISS:
No, I don't have any further argument
- 7 on that.
la, l
l CHAIRMAN SMITH:
So, you will accept the Board's ruling
,4 i
6 without any further discussion.
I li MS. WEISS:
Yes.
Id i
CHAIRMAN SMITH:
Well, then that will be the ruling of the Board.
18 i
i Then, let us move to -- I will allow you to move to 19 f
wherever you want to move, but to me, the next item for consider $
20 l'
ation is your motion, the portion of your motion on Page 13, 21 you are discussing Interrogatories 88 and 89.
But, suit your-I self, Ms. Weiss; it's your opportunity to convince us, or 2
further convince us that you have some merit along these lines. i 24 MS. WEISS:
Well, let me just say ct the outset that, 25
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I as I say, the Staff didn't respond to the merits of any of i
these objections -- the merits of our motion to compel, I should!
say, or any of the specific interrogatories beginning on Page 13 i
t and going to the end of the motion.
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I really have nothing to add beyond what is there in l
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witting.
If the Board is familiar with it, maybe we can save t
7 some time, I don't need to make any oral argument.
If you l
6 would like to hear me summerize what is in the written motien, 3
I would be happy to do that.
9 CHAIRMAN SMITH:
So, you don't believe that the Staff has said anything in its response that --
MS. WEISS:
No, I don't think there is anything at all that is directed to the relevance objections which were the remaining objections; there is nothing in the Staff's response 14 i
to our motion to compel that goes to that.
l CHAIRMAN SMITH:
Do you think that the Staff is in j
14 def ault of response to your motion to compel?
17 MS. WEISS:
Well, technically, I suppose they are in 18 default.
I imagine -- I assume that they are standing on what-1 19 ever they said in their original objections.
And, of course, l
10 we responded directly to those in the motion to compel; nothing l
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else was raised in the response to the motion to compel.
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In that -- given that that's the case, you may want l
to hear from the Staff first and I could reserve, essentially, 1
rebuttal until after we hear what the Staff's arguments are.
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I But, as I say, I really have nothing additional to say at this point other than what is in writing.
If you would like me to I
summerize it, I would be happy to do that.
1 CHAIRMAN SMITH:
I sea no need to.
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i MS. WEISS:
Okay, fine.
l i
6 CHAIRMAN SMITH:
I call upon the Staff.
I I
MR. SWANSON:
Again, I'm Daniel Swanson, counsel for i
l 6
3 the Staff.
9 As Ms. Weiss correctly noted, the Staff did not respond; to to the specific interrogatories in the response to the motion i
4 l
to compel.
The Staff, instead, rSted its general objection to that motion to compel that it was without basis in the regula-I g
tions.
g If we are now proceeding under a request under the regulations for the Board to make a determination as to whether I g,
the Staff should be instructed to answer certain interrogatories,I'i we are, of course, prepared to get into the merits.
As we noted in our response to the specific interrog-j i
atories, we had objections to, and I will take the first two, l
1 the first four interrogatories together, because I think they l
19 t
seem to relate to, at least the Staff has the same general 20 objection to them.
l 21 I
The Staff objected to Interrogatory numbers 88 and 89,'
JF as well as 122 and 123 for the same basic reasons; in each of I
22 the two groups of interrogatories, the first interrogatory re-24 quested a date as to when the Staff made a formal decision against
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backfitting of a Reg guide; the second question asked for a i
I contemporaneous documentation supporting the Staff decision not 2
to back that.
The Staff's position is that these general 4
I requests for background information and documentation regarding i
I a general backfitting of a Reg guide is not related to this j
5 proceeding.
The relationship between the Reg guides and TMI-1, j
7 which is clearly relevant, is asked for in separate interrog-l I
atories; for example, the first Reg guide addressed in Interrog-g j
9 atories 88 and 89 is asked for ir relationship to TMI-l in 10 Interrogatory numbers 90 and 91.
The second set of interrogatories, 122 and 123, which address Reg guide 189 is asked for in relationship to TMI-1 l
l in Interrogatory numbers 124 and 125.
The Staff readily concedes 13 i,
I the relevancy of this Reg guide as it relates to to TMI-l and i
we will answer thore questions.
However, the Staff has not seen if i
any basis or showing by UCS for maintaining that the general l
decision to backfit or not to backfit a Reg guide completely 17 l
l apart from its relationship to TMI-1 has any relevance to this j
18 I
proceeding.
19 The Staff would also note that if UCS, in fact, is 20 askingfordocumentspursuantto~Section2.744oftheregulationd[
21 I
which, incidentally, is not so indicated in the interrogatories l 22 that UCS has a burdan to meet under the regulation to satisfy i
22 the relevance of the information they are asking for; they must i
24 convince the Board not only of the relevance, but they must set 2?
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1 forth with reasonable specificity the category of the informationl i
l obtained for the items themselves.
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The Staff would, however, rest its objection primarily I
on the stated response in its response to interrogatories that 3
the general subject matter addressed since they seem to be 6
excluding TMI from these two sets of interrogatories, it is 7
just not relevant to this proceeding.
l i
3 i
CHAIRMAN SMITH:
What was your last statement?
i 9
j MR. SWANSON:
Okay, I should clarify that.
10 The Staff is interpreting the fact that they have i
11 l
asked follow-up questions, specifically related to TMI as i
- 7 casting, perhaps, a different interpretation on the first two I
- 3 l
sets of interrogatories and would otherwise be normally read.
For example, i f uhe. first two sets of interrogatories were
- g asked without any follow-up questions, the Staff would treat j
g them as being, perhaps, a general question as well as a specific!
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one.
The Staff would be, obviously, willing to address the 1,,
specific relationship of the Reg guides and TMI-1.
- However, I
UCS has already gone ahead and asked those specific questions 19 in follow-up interrogatories; so, the Staff reads the interrog-20 atories as readily being capable of differentiating between the 21 l
j specific relationship between TMI-l and the Reg guides, and the more general subject matter of the decision of whether or 4
22 l
1 not to backfit the Reg guides to other plants.
l 24 DR. JORDAN:
May I just ask a clarifying question?
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I Would it be your opinion in regard, perhaps, to then 2
i Interrogatory 88 that if they had said, when did the Staff 2
make the formal decision against backfitting of Reg guide 1.47 to TMI-1; would you then have said that is relevant?
- And, 4
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you would have answered --
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MR. SWANSON:
Yes, I think that would be relevant.
4 i
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t As a matter of fact, that may well be an inherent aspect of 7
the subject matter of 90 or even 91, the relationship between y
i that Reg guide and TMI-1.
9 I
CHAIRMAN SMITH:
Mr. Zahler, how do you want to par-10 l
i ticipate in this discussion?
i MR. ZAHLER:
In a very limited manner.
The licensee doesn'thaveapositioningeneralwithrespecttoUCS'smotionl I3 i
il to compel against the Staff.
As it affects the general relevanc;e i
14 l'
question in the scope of this proceeding, that does impact on 13 l
licensee and we do have a view.
If you are interested, I 16 would give you a very brief comment as to what licensee's i
17 view of the relevance question is in general.
18 I guess the one thing we point out is that this 19 proceeding, unlike some other past investigations relating to 20 I
the accident, is not concerned with a backward look as to Staff 21 practice to determine whether it was good, bad, or indifferent.
a The question before the Board is whether what the Staff is j
t proposing for the restart of Unit 1 is necessary and sufficient 4
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to assure the public health and safety.
That necessarily focuses
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the inquiry into what the Staff is requiring of us at this time,!
I not what the Staff required of us in the past or should have
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required of us in the past.
The general question as to back-1 J
fitting seems, to licensee, to go to this retrospective inquiry: I 1
I was it appropriate, was it not appropriate to have exempted l
5 certain plants from backfitting of particular Reg guides that l
I came out subsequent to the licensing of those plants.
i 3
As to whether or not this plant should now be required
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to meet a Reg guide, that may be a legitimate subject for this 10 proceeding within the scope.
Inquiring into that does not, it f
it seems to me, really require that there be a general inquiry
[2 as to the background to Regulatory guides and why they were or i
i 13 were not applied to other plants in the past.
That is somewhat i f
- 4 extraneous; I think it tends to loose the focus of t' tis proceed-!
ing and distract the parties from what is at issue, which is j
g whether what the Staff i.s now requring of licensee is neessary l
and sufficient.
- 7, CHAIRMAN SMITH
Ms. Weiss?
I MS. WEISS:
Well, Mr. Chairman, I want to begin by l
seeking to clarify something that Mr. Swanson said at the
,0 4
i beginning when he mentioned a burden that UCS has to meet; and he never specified what burden.
I understand that he wasn't l
C here at the --
22 CHAIRMAN SMITH:
Excuse me, Ms. Weiss, I would take
- A their position that they have abandoned that; isn't
- hat correct?
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I MR. SWANSON:.Well, the burden I think that she is l
I referring to is just as to if the UCS is, indeed, making a document request under 2.744, which is not specified in the
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A interrogatories, but if they are, there is just a general showingj I
y required of the documents, aswithanydocumentrequestthatyoul i
6 would, with reasonable specificity, identify the category or item!
4 7
requested and a general statement as to its relevancy.
CHAIRMAN SMITH:
I was not aware until this moment that there was a surviving isssue, a burden upon the Staff and it would be my view that you have probably won on that score 10 l
and if you argue further, you know the risks inherent in that.
Are you now arguing against discovery on these Inter-rogatories 88 and 89, and 122 and 123 on the basis of burden?
l 13 MR. SWANSON:
The only objection we cited in our re-i it I
sponse was one of relevance.
I'm just making the point that it's 13 perhaps the relevancy quesiton wouldn't even have risen if l
I4 there were sufficient basis shown in the original interrogatories
!7 l
as to why the information requested is related to this proceeding, 18 but absent that, the Staff maintains its original position that 19 I
the general subject matter inquired into is just outside the t
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scope of this proceeding.
j 21 i
CHAIRMAN SMITH:
Perhaps, I shouldn't have interrupted l
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you, Ms. Weiss.
MS. WEISS:
No, I think that was useful, and I take 3*
i Mr. Swanson to be saying that they are standing on a general relevance objection; that's what I have responded to.
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First of all, just a word about the standards of l
i of relevance; admissibility, potential admissibility j
l of the evidence which may be discovered is not an issue, as the l i
Board is aware, and that goes rimarily to Mr. Zahler's comment.!
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The standard is whether it is relevant to the general subject l
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6 matter or might lead to discoverable evidence.
i 7
I think we have demonstrated clearly exactly how we l
3 intend to use the answers to these interrogatories.
UCS has
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had a contention admitted which essentially asks for application IO of Regulatory guide 1.47 to TMI.
Now, we understand the Staff's position to be that for It g
whatever reason, it believes that it is not necessary to apply I
g the requirements of Reg guide 1.47 to TMI.
We have asked two questions:
when did the Staff make the formal decision against i
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backfitting of Reg guide 1.47, and for them to provide the con-l g
I temporaneous documentation supporting that generic decision.
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Because it is our understanding that when the Reg guide was formalized, a decision to backfit it or a decision not to back-I fit it was made in a generic way; whether or not there is any 19 documentation that supports that, we don't know.
But, it is
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our understanding that there was never an effort to go on a il plant-by-plant basis and make the backfitting decision.
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But, the only decision that we would find contempor-f
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ous with the implementation of the Reg guide would be a a,
3 generic decision.
W.at we intend to use that for is primarily
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would be arguing that it is not necessary to implement Reg guide !
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1.47; we intend to compare the reasons that they give now for i
the decision not to backfit ;r not to apply Reg guide 1.47 with f i
3 the reasons that they gave at the time that the Reg guide was 6
implemented to see if those are consistent, to see if there i
7 really is anything different in the situation now than there was 3
then, which would argue for implementation of the requirements 9
in the Reg guide.
And, also, in order to prepare our direct to j
testimony; we intend to have to meet arguments with regard to ti the lack of necessity to implement the Regulatory guide and g
we want to know, I think we are entitled to know, what those l
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reasons have been from the very beginning and what they are l
today.
- 3 I
So, I think not only is it clearly relevant to the
- 3 subject matter, but it is going to lead to admissible evidence to, and we cited cases which say that we are entitled to discovery which is used for cross-examination purposes and we think that this is certainly going to be used for that purpose; the answer I
is the information gained would be used for that purpose.
I 20 really don't think there is any question that it is relevant Il to the subject matter.
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l CHAIRMAN SMITH:
Yourargumentsapplyequallytothe-h
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MS. WEISS:
Yes.
24 CHAIRMAN SMITH:
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i MS. WEISS:
Yes.
CHAIRMAN SMITH:
Okay, is there anything further on these two, or these four interrogatories?
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We move on to the -- excuse me -- Ms. Weiss, shall f
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I we follow the pattern that you have suggested with respect to l
I 6
earlier and ask the Staff to defend its position?
7 MS. WEISS:
I would suggest that.
3 CHAIRMAN SMITH:
Okay, Mr. Swanson?
We are on 140 7
i and 142 on Page 17.
10 MR. SWANSON:
Okay.
The Staff has the same basic ob-jection to these interrogatories.
They are seeking information to a generic proceeding and they are not asking for specific g
I I
g information related to the TMI-1 proceeding.
g3 The Staff has additional specific objections to these interrogatories, but before I get into them, I might note the same basic construction of the interrogatory sequence here as Id i
I we had in the first two categories:
we have three interrogatoriqs I
here addressing a generic proceeding; we have follow-up interrogn 18 I
atories which address the specific proceeding at hand.
- Again, 19 i
the Staff readily concedes that the remaining interrogatories
~
20 on design basis accidents related to this proceeding are not objectionable if they ask for information that is clearly re-lated to this proceeding and is likely to lead to discoverable j
i information.
4 The Staff did not object to Interrogatories 143 and 14d 2!
i 1
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which we believe are related to this proceeding.
In addition i
i to the general objection of relevancy, the Staff has specific l
concerns with regard to these interrogatories.
Question number 140 merely asked for members of the Staff who have been assigned l l
3 or will be assig ed on our proposed rulemaking proceeding.
Per I I
4 haps I have missed something, but in looking through the motion 7
to compel, I don't see that the UCS has even addressed the l
3 specific interrogatory; I simply fail to understand how the names
?
of individuals who are working on a generic proceeding, not thisl i
j l
93 proceeding but a generic proceeding, have any reievance to this i
proceeding.
Similiarily, Interrogatory 141 asked for a draft to i
I 73 file anaylsises related to the general subject of probability g
and consequences of accidents design beyond the current design I
basis.
Based on my reading of the motion on Page 18, they again!
I I
i are clearly referring to the generic proceeding.
However, this :
74 l
interrogatory as constructed beyond the concern we have over t,<
l relevance, is seemingly without bound.
There is no reasonable i
la l
I particularity as to the type of documents that are requested; 19 basically, they are asking for all draft and final analysises, i
20 l
memoranda, reports, reccmmendations, and other documents relied Il upon or consulted by the Staff related to this general subject j
C matter.
- l O
Granted, the general discovery rules do allow for
- a discovery of information which may lead to information which is i
- C r
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I relevant.
However, this is not a license to seek information t
without bound.
As the Board pointed out in the Barnwell decision',
parties should not be permitted to roam in the shadow zones of l
relevancy and to explore matters which do not presently appear I
germane on the theory that it might conceivably become so; that f
I 4
is a quote in a Barnwell decision under 5 NRC-H 492.
That Staff; i
7 concedes or perceives this interrogatory to be nothing more i
3 than a fishing expedition by UCS to find general information 7
on general subject matter without any indication that it is re-l IO lated to this TMI proceeding, g
On Interrogatory 142, UCS is asking the Staff to pre-11 g
dict what position it is going to take in a proposed rulemaking l g
and the Staff has the further objection here that being asked
- 3 to speculate -- not only that, but to explain our speculation fully.
The Staff finds these three interrogatories to be clearly g
I objectionable.
l CHAIRMAN SMITH:
In addition to your original response,j was one of relevance, but now, as I understand it, you are expanding your response to the motion to compel on it is un-bounded and because it is requiring a position to be formulated 20 i
which may or may not be in existence now; is that --
j 21 i
MR. SWANSON:
That's correct.
But, again, we per-
[
ceive the primary objection to be one of relevance.
l m
CHAIRMAN SMITH:
Up until now, as I understand it, UCS, 24 has not really had an opportunity to address your other ob-2 f arTUnnaDopeaa. VD'saPas 4,, wa. !a c s
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I jections, your other responses.
j MR. SWANSON:
That's true, I think.
4 l
CHAIRMAN SMITH:
Mr. Zahler, do you want to --
i l
4 MR. ZAHLER:
Licensee has no comment with respect to i
.e these.
CHAIRMAN SMITH:
Ms. Weiss?
3 r
MS. WEISS:
Mr. Chairman, I object strongly to the Staff coming here today and stating new grounds for opposing
^
the motion to compel and I'm not going to respond to them
.f because I don't want to waive my right to that objection.
I l
10 i
think if they want to raise new grounds for objection, they 11 have got to file a paper and request permission to late-file 12 I
it; this should have been done a long time ago and I'm not 13 even going to respond to it today.
14 I want to respond only to the objection which is, I
13 proposed rulemaking of generic subjects is unrela d to this I4 proceeding:
that's the totality of the Staff's objection.
I 17 2HAIRMAN SMITH:
As you noted, Ms. Weiss, we also 18 observe that new grounds were being raised and we should in-19 dicate some sensitivity to your position.
But, as a practical 20 matter, considering your problem of resources and everyone's
- 1 problem with time, I would suspect that you might be fully i
capable of responding today anyway.
But, I think you are correct;
~,
it is somewhat of an imposition for you to be faced, for the
~
I#
first time, with new grounds against your motion.
It may very
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well be that you could, without further ado, you could prevail t
on all basises without -- I don't want to force you into it.
j l
I You are taking a steady, cautious approach, which is a prudent j
i i
thing for counsel to do.
I suggest that you gamble a little bit;j I
3 see what happens and if you are not -- if you don't think the t
6 due prccess has been afforded, well then we will consider your 7
point.
3 MS. WEISS:
Well, I will accept that --
t 9
CHAIRMAN SMITH:
You don't have to it, Ms. Weiss.
IO MS. WEISS:
I accept that suggestion in the spirit in which it was offered.
I guess I display a little peak, I think it is just-
.u ifiable.
As the Board is aware, we spend a long time writing
.u interrogatories; we spent a long time doing the motion to compel.
,L s.
I really very much resent being faced with new arguments today when we preceived the objections to be without foundation and unsupported and essentially, just tossed off.
Be that as it may.
I'm going to respond, at least, first to the relevance i8 objection.
I truly can't believe the Staff is actually taking 19 the position that no discovery can be permitted about generic 20 subjects.
The subject matter is'directly related to the UCS Il Contention 13; I dich't think that that can be disputed.
I think; C
i we are entitled to know if there is any difference between the j
Staff's position in a generic proceeding on precisely the same l
4 issues, and the Staff's position here on the question of Class 9 i
i i
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accidents.
I It's clearly relevant information and I think we are entitled to it.
Interrogatory 140 asks for the names of A
individuals; that's for the purpose of determining whether and I
who we might want to depose of subpoena or ask the Board to 6
subpoena from the Staff.
I think that what -- well, we heard 7
a new objection with regard to Interrogatory 141 that it was 3
without bounds; I think it's clearly without bounds, the subject 9
matter that we are asking for is clearly defined.
And, I 10 might point out that sometimes I think we are just playing
- 7 games here because I could probably get everything I've asked for if I did a Freedom Information Act request unrelated to this case; be that as it may, we are involved in this case now.
We intend to use the answers, both for cross-examin-ation to pursue any technical or policy inconsistencies in j
t.!
I the Staff's position and to form a foundation for our direct l
l testimony on the subject.
(7 As you know, the UCS contention has been admitted for la discovery purposes only, at least at this point; and I think 19 we are entitled to an unusually broad standard of relevance, 20 given that we are going to have to specify that bounds of this 21 contention after we are through with the discovery process.
i And, if the Staff is going to frustrate that by not giving us m.
j anything during discovery, we will be exactly where we were at 24 l
the beginning some months hence.
2 l
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CHAIRMAN SMITH:
Ms. Weiss, given relevance, if the I
?
I
~
Board should order the Staff -- compel the Staff to respond to l
Interrogatories 140 and 141, particularly, and if they should elect to take the dump truck approach, wouldn't you be in some-l l
3 what the same position that you were with respect to asking for l
i 4
some identificacion on what is relevant?
You could be over-i f
7 whelmed with documents here and then you would have to wade 3
through them and determine for yourself what is relevant and you r
9 might very well turn around and say, okay, now tell us in those to documents you have provided where the body is buried or --
MS. WEISS:
Well, I don't think that is going to happen r;
because our suspicion is that there aren't all that many doc-l r3 uments lying around from the Staff on the probability and con-g sequences of Class 9 accidents.
I would be willing to take g
the risk if there are a lot to wade through and decide what's i
relevant.
But, I don't suspect that there is a whole box car 7
load of documents on those issues hanging around in the NRC Staff.
l 18 l
CHAIRMAN SMITH:
Where we were leading was, certainly 19 assuming relevance which the Board is veiwing it as an 20 assumption worth consideration, there must be a better way as a Il I
practical matter for responsible counsel to solve, you know, to 22 work it out.
.m.
This is what somewhat concerns the Board that the 24 Staff seems to have taken a -- maybe we have misperceived it --
2
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1 the Staff seems to have taken a flat position; it is not relevant:;
I no further discussion.
We want to urge the parties not to be l
l I
quitesoarbitraryandsaveeverybodydifficultyandbealittlef bit more sympathic to the discoverers request and see if these l
t I
problems can't be solved in a practical way.
5 MR. TOURTELLOTTE:
Mr. Chairman, could I address that?'
I i
7 CHAIRMAN SMITH:
Yes, please, Mr. Tourtellotte.
3 MR. TOURTELLOTTE:
Because we got into that a little 9
bit at the other Prehearing Conference.
j l
to It is certainly not our intention to be reluctant g
t to discuss or work these things out.
What I think happened in g7 this instance is kind of an unfortunate circumstance, but back l
1 WeissandIwerediscussingl when we were discussing, that is Ms.
g 1
I the possibility of her filing a motion to compel, what we sort 14 I
of got into was a situation where she felt like she needed some information and she needed it now.
The responses that we gave 06 i
were not sufficient, particularly regarding those responses that!
!7 f
said, we don't have the information now; we will have to give it t
to you later.
19 Because of that circumstance, as much as anything I
- o think, Ms. Weiss felt that she had to file a motion to compel.
Il We were willing at that time to try and work things out, but 22 i
then, on the other hand, we understood her position quite well and her feeling that there was a necessity of filing the motion
- 4 to compel.
25
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I We are still ready and willing to try and work as many I
of these things out as we can.
Nevertheless, when faced with l
I a motion to compel, we had to answer in a way that we felt l
f 4
was a reasonable response and in a way that would orotect our I
5 pcsition.
l 5
CHAIRMAN SMITH:
I think we can see the under-current 7
of tae problem here.
3 Does the Staff persist upon its objections to 141 on 7
the basis of burden or do you think there is a good possibility I
that the UCS and the Staff could work out 141, given relevance, 3
g in a reasonable way?
In view of changing circumstances, I maan.
g I want you to bear in mind that not once has this i
I.4 i
l Board ignored the Staff's concerns about resources, and the i
i3 Board is sensitive to that problem and is going to be very sympathetic.
But, we want to address the issues in the proper II t
frame in which they are presented.
If you objected to that based!
I4 I
upon the limited amount of resources at one time, re-appraise 17 it and see if that's still your position.
18 MS. WEISS:
Mr. Chairman, do you think we might give 19 l
them a couple of minutes?
1 2a I
MR. TOURTELLOTTE:
Well, was the question only l
21 l
directed toward 141?
i 1
CHAIRMAN SMITH:
That's the one I see to be -- you canl
~,
l
~
sense that the Board is inclined to believe that the general 24 subject matter is relevant.
But, now as Ms. Weiss pointed out
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i and we pointed out for the first time, we are faced with the 1
i suggestion -- not the suggestion, but the objection that it is i
i I
also burdensome and 141, I can see, possibly could be burdensome.l A
But, now we are saying, can't you work it out?
l 3
MR. SWANSON:
Excuse me, Mr. Chairman, we would like 5
a couple of minutes to talk about it, I just want to clear i
t 7
somthing up.
We did not raise, today, the objection of burdensome 3
of this objection.
I think the only thing that was new that was 9
raised was the comment that 142 asked for the Staff to speculate.
to l
CHAIRMAN SMITH:
Okay.
MR. SWANSON:
The general, I think everything else
- 7 g
I argued today was just expanding upon the general objection of relevancy.
We are not claiming -- we did not mean to claim today g
nor did we state in our response that the objection was one of burdensome, but if we could have a just a couple moments to talk i i
this one over.
l I4 CHAIRMAN SMITH:
I just misunderstood.
MS. WEISS:
Well, I had that same misunderstanding.
la CHAIRMAN SMITH:
Let's take c few minutes recess.
(Whereupon, the hearing was recessed at 9:55 and re-20 convened at 10:30.)
21 CHAIRMAN SMITH:
Is there anything to report to the 22 i
Board on the negotiations?
{
m MS. WEISS:
Yes.
Do you want to go first?
24 MR. SWANSCN:
Yes, I think we have an agreement now
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I on the remaining interrogatories which were the subject of the j
i motion to compel.
I l
On 140, the Staff will list the members of the Staff A
working on Task Forces which are going to be identified in the l
i March 7th submittal to the Board on Class 9 accidents.
l 3
l 6
Let me skip down to 142; similiarily, the Staff will 7
submit a position, if it has one as of that date, as part of l
3 that submittal.
We understand that this will be a continuing l
9 obligation if the position is not set forth at that time.
j to On 141, we have agreed to inform UCS by next Wednesday,l i
if that will be the 27th, the extent of the request.
We had some I2 discussions as to just what exactly was meant by this request I
7.;
and we will get back to UCS informally next Wednesday to discuss i
i this and hopeidly, reach an agreement at that time as to the
- g i
scopeoftheinterrogatoryandtheStaff'sabilitytorespondtol f
it.
- 4 MS. WEISS
That's fine.
I MR. SWANSON:
Okay.
On 145, the Staff can simply I
is i
t state that the generic position in the treatment of Class 9 19 accidents is the same as it was prior to the Off-shore Power 20 I
i Systems case.
There readly isn't much else we can say on that Il matter; it's my understanding that that response satisfies the O
question, anyway, of UCS, although they might not be totally l
C satisfied with the content of the answer.
It's at least respon,
24 sive to the question.
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MS. WEISS:
And you all have agreed to provide that 1
i answer in writing; is that correct?
I l
?
I MR. SWANSON:
We can do that.
As a matter of fact, we i can provide the answer in writing to, I think, all of the re-1 I
maining interrogatories that were the subject of the motion to 5
compel.
7 Again, I think that leaves one point; there was a j
i 3
l request for all drafts.
The response would be subject to the l
i l
9 qualification of not providing non-privileged -- excuse me, of l
10 providing privileged information.
And, I think on that basis, it we have reached an agreement as to the balance of the interrog-I; atories that are subject to the motion to compel.
f g3 CHAIRMAN SMITH:
I missed something.
I didn't get gg from 145 through 147.
I MR. SWANSON:
Okay.
I had started to talk about them,i gy g
if we want to reduce it in writing, we will provide written answers then to 145, 146, 147, 148, and 149.
CHAIRMAN SMITH:
Well, I just wonder if these answers may not just bring us right back to the motion to compel.
If 19 i
there is going to be better communication --
i
- o MS. WEISS:
I don't foresee another motion to compel.
21 What I foresee is possible follow-up, but I don't foresee as a l
i result of our discussions that it would be necessary to renew
~.,
m a motion to compel.
- 4 CHAIRMAN SMITH:
Well, there is no use for the Board 2.!
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researching for trouble if the parties -- now, what issues remain li for the Board to rule on in your motion to compel?
I MS. WEISS:
I think just the interrogatories that we i
A f
previously argued, 88 and 89, 122 and 123.
I 3
CHAIRMAN SMITH:
We have prepared to rule on those, f
4 and we will order the Staff to respond to Interrogatories 88, 89,f 7
122, and 123.
l i
3 MS. WEISS:
I'm not sure they heard that.
9 CHAIRMAN SMITH:
The Board is ruling that the Staff to must respond to Interrogatories 88, 89, 122, and 123.
MR. SWANSON:
I think there might remain one matter
- 7 that we haven't discussed, and that is the general Quesiton C, l
6
- 3 or has that been the subject of a ruling that escaped me?
j In other words, when the Board opened up this morning,;l
- g it went directly to Interrogatory number 5 and it passed over the general Question C, which is to be answered as to each I4 l
interrogatory.
CHAIRMAN SMITH:
Would you direct me to the page in l
1 UCS's motion?
19 MR. SWANSON:
Okay, it's on the very first page of the' 20 interrogatories and on the motion --
21 CHAIRMAN SMITH:
I don't have the interrogatories.
MR. SWANSON:
I think it is Pages 5 and 6.
02 CHAIRMAN SMITH:
This is still open.
Can the area of l
- s dispute be narrowed any better for the Board?
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g MS. WEISS:
Well, I may be able to help.
l 2
What we have asked for is documents that were examined I
by the Staff, but not relied upon.
In other words, we are not i
4 asking for any independent search.
So, I don't think that there i
3 could be any question of it being unduly burdensome.
I don't l
l know whether the Staff had understood it in that way, but 3
7 that's what we are asking for; we are not asking to make an i
independent search for all relevant documents, we are just asking-3 you to identify the ones that you have examined, but which you aren't relying on.
I I0 i
i CHAIRMAN SMITH:
I, myself, was troubled by the word 11 examined, hoping that a narrower term, yet useful to UCS, could i
I be agreed upon.
I 13 I understand the basic idea and I have no trouble with,
is it; but you need something more than that which was relied f.!
I l
upon.
But, to go from that point, to examined is to me 16 i
seems to be a great distance.
17 MS. WEISS:
I'm open to suggestions if anybody has 18 any thoughts.
19 MR. SWANSON:
That's basically the Staff's concern, too..
20 Obviously, there are documents that may not support a Staff
- 1 position that were examined and maybe even relied upon, but not r
~,
those documents, perhaps, didn't constitute part of the Staff's l
basis for a position.
Those documents, obviously, woul'. Se
's discoverable and would be provided.
i 15 i
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i i
But, the way the interrogatory is written, it would i
seem to include something as extrene as a newspaper article that :
i e4 happens to be -- that happened to pertain to the subject matter A
questioned.
Obviously, some sort of bounds needs to be put on I
the interrogatory as framed.
l 1
i 6
CHAIRMAN SMITH:
I have seen this language in interrog-;
7 atories before, Ms. Weiss.
And, I know that you are not the 3
first one to be this broad.
9 But, nevertheless, it does seem to be, just within to the context of this case, it does seem to be very, very broad.
i 1
I MS. NEISS:
Well, what we are really asking for is when the Staff sits down to answer the interrogatory, it makes I
73 use of some series of documents; some of which it relies on,
- g some of which it doesn't because it contradicts their position
\\
or whatever.
I don't see that that's really all that broad, given that we not asking to make any independent search, but g
just to tell us when you formulated your answer, what sources did you go to and consider.
I Now, maybe considered would be a better word.
19 l
i CHAIRMAN SMITH:
All right.
I think you are getting 20 closer to it.
All of it is a judgment -- it is highly judgmental 21 in response, but certianly considered is approaching reasonability.
I MS. WEISS:
It certainly depends on their good faith, !
22 j
yes.
l 24 MR. SWANSON:
I think we have specified the specific
- .1
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concern the Staff has and as the Board pointed out, the real i
e problem is that no matter what specific word we agree on, there l
l is going to be a judgmental aspect of it.
And, perhaps, using the word concerned would satisfy that problem of the Staff's --
3 or considered, I guess was the word suggested by Ms. Weiss.
I I
5 The Staff just points out that it will, obviously, set; l
7 forth documents that it has seriously considered, whether or 3
not it supports the Staff position or whether or not it l
9 actually was relied on for the ultimate Staff conclusion.
This doesn't preclude the possibility in the future j
IQ t
it that there might be some argument as to whether or not judgment t:
was properly exercised, but given the understanding that we g;
would use the word considered, the Staff doesn't have an I
- j objection.
CHAIRMAN SMITH:
There is no way we can avoid the i
g potential problem which you referred to, but good faith is all l
g i
that Ms. Weiss is asking for, as I understand it.
I think, then, you have worked that problem out.
We will substitute the word examined -- I mean considered for examined.
19 Is that agreeable Ms. Weiss?
20 MS. WEISS:
That's fine, Mr. Chairman.
Il CHAIRMAN SMITH:
Mr. Swanson?
i C
MR. SWANSON:
No objection; that's fine.
D CHAIRMAN SMITH:
Now, how can -- I think that as far 04 I
as time is concerned, the parties has all the rulings from the
[
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l i
i Board on the motion which is needed to proceed.
l I
Can a simplified order disposing of the motion be i
i i
I agreed upon by the parties?
This is a matter of burden to l
the Board.
Rather than go through every point that has been I
I discussed and debated and analyze it as we are usually required 4
to and make a ruling, haven't we arrived at the point where the l
7 Board's -- or, first that Staff has, on its own, agreed to the 1
general aspects as to the nature of the response, the timing of 9
the response, and the degree of the response.
They have I
to agreed to that, I think, to Ms. Weiss' satisfaction and to the i
Board's satisfaction in our prehearing Conference on Wednesday, p;
Today, we have agreed to virtually everything that f
l p3 was remaining pending, except 88, 89, 122, and 123; we ruled upon it.
g g
Can you envision a simplified ruling by the Board l
i which would solve your problem?
I'm trying to avoid work.
I i
just don't want to have to have a big analysis of the motion to compel and our rulings on it if really, it seems to me that as we approached every item, the issue just sort of fell away.
19 t
MS. WEISS:
Well, on the matters that we have discussed 20 4
today, I think the Board could just issue an orcer which would accept the stipulation on the pages of the transcript as it was l read in.
l 12 i
CHAIRMAN SMITH:
Well, Ms. Weiss, would it burdensome --
24 the party who has largely prevailed in this pro-;
you are, I see, 2
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t ceeding.
Then, could I ask you to present an order to the Board 1 I
with Staff's approval?
~
I MS. WEISS:
Yes, Mr. Chairman.
Let me just --
8 A
CHAIRMAN SMITH:
A proposed order for the Board to sign) i i
I MS. WEISS:
I'm under a couple of very severe deadlines)
I t
6 One for this case next Monday, and I also have a very quick 7
deadline on Indian Point before the Commission and I have to get I
a major piece of work in for that --
9 CHAIRMAN SMITH:
Ms. Weiss, since it was your motion, l
1 l
to you are the one who really needs any formal order of the Board.
If you don't feel you need it timely, let's just do it whenever --
t; i
I2 all I want to do is clean the slate of the pending motion to
- 3 compel and you can do it better than we can; you can do it simply.
gj l
MS. WEISS:
I'd be happy to do it on the issues that gy we discussd today.
I just wonder if -- I would just kind of
,0 l
suggest a date for it and maybe if it's acceptable to the parties sa I would propose an order by next Thursday on the agreement that we will all move ahead on the basis of the agreements that 19 we have reached on the rulings we have had today.
i
- o CHAIRMAN SMITH:
Well, the Board will order the parties!
Il to proceed on the oral rulings of the Prehearing Conference; 20 l
that's not a problem.
So, remaining only is you, I would.hink, l 2
l would require a written order from the Board and you co-present ^
- 4 it whenever, as far as I'm concerned and if there is.to objectich 2
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by the parties, whs aver you have time.
I MS. WEISS:
Does the Board want me to propose an order !
also on the matters which we discussed in Harrisburg?
A CHAIRMAN SMITH:
The matters we discussed in Harrisburd i
3 I think have general relevance to all of the parties and when l
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3 we issue the Prehearing Conference Order, I think, it would 7
probably be appropriate if we made the observations on the rulings as required.
3 i
The only thing that I would expect from you, then, 9
would be a proposed order approved by the licensee and the 0
4 Staff relating to -- and you know, as far as I'm concerned, you don't have to have the licensee on it.
Is there any problem i u
I there, do you think, Mr. Zahler?
MR. ZAHLER:
I guess we are not interested an# I 14 don't think it is necessary for us to sign a stipulati n on f
13 i
anything like that.
I would just as a matter of courtesy that if is. Weiss sends it to the Staff, that she send us a copy.
We ma-y have
!8 some useful comments that would just make it clear or something; 19 I don't know.
l
- o I
CHAIRMAN SMITH:
Okay.
A formal order whic, you 21 think satifies your requirements and adequately and <ccurately i
reflecting the Board's rulings, approved by the Staf;, whenever l
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you are able to do it.
I think there should be some theoretical deadline on "5
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it; let's say April 1st.
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MS. WEISS:
Thank you, Mr. Chairman.
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CHAIRMAN SMITH:
You're the one who needs. so you A
decide when you want it filed on the record.
I really don't 1
3 think you need it, but it should be cleaned up.
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4 Okay.
I think that we have concluded.
Is there any 7
other business related to this particular consideration?
l 1
Okay.
I think that the parties should be and the 9
Board does commend them for their responsible approach that l
has been taken toward these discovery problems.
You have been 10 i
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quite responsible and we appreciate it.
The conference is adjourned.
f g3 (Whereupon, the conference was adjourned at 10:55.)
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