ML19347F004
| ML19347F004 | |
| Person / Time | |
|---|---|
| Issue date: | 05/06/1981 |
| From: | Bradford P, Gilinsky V, Hendrie J NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8105150057 | |
| Download: ML19347F004 (72) | |
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NUCL.AR PEGULATORT CCMMISSICN oo 7
g COMMISSION MEETING i
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i In t:be Matter cf:
DISCUSSION OF REVISED LICENSING PROCEDURES l
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CATE:
May 6, 1981 paggg 1 - 66
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Washington, D. C.
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UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
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4 5
DISCUSSION OF REVISED LICENSING PROCEDURES 6
7 8
PUBLIC HEETING 9
Nuclear Regulatory Commission 10 Room 1130 11 1717 H Street N.
W.
Washington, D. C.
12 Wednesday, May 6, 1981 13
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The Commission met, pursuant to notice, at 10:25 a.m.,
JOSEPH H. HENDRIE, Chairman, presiding.
15 BEFORE:'
16 JOSEPH M. HENDRIE, Chairman 17 YICTOR GILINSKY, Commissioner PETER A. BRADFORD, Commissione.c 18 JOHN F.
AHEARNE, Commissioner 19 STAFF PRESENT:
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BICKWIT 21 S. CHILK H.
SHAPAR 22 B. OLHSTEAD A. ROSENTHAL 23 T. COTTER H. DENTON 24 H. HALSCH 25 ALDERSON REPCRTING COMPANY,INC, 400 VIRGINIA AV2., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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CHAIRMAN HENDRIE Three quarters of a Commission 3 is better than none.
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4 CONNISSIONER BRADFORD:
That is not fair.
5 CHAIRHAN.HENDRIEs We meet this morning to 6 continue our work on the general subject of Revised 7 Licensing Procedures.
There are two pieces of business that 8 are before the house this morning.
One of them has to do l
9 with' changes, if any, to procedural rules of Part 2.
Tae 10 second has to do with the policy statement of licensiL;+
11 (Commissioner Gilinsky enters meeting at this 12 point.)
13 CHAIRMAN HENDRIEs Now, at our last meeting we 14 worked through the Part 2 rule changes that have been 15 proposed.
I have a score card which says yes to the 18 recommendations in that paper of the General Counsel's on 17 these matters to Nos. 2, 3, 4 and 6.
I think we split on l
18 NO 1*
19 COMMISSIONER AHEARNE:
You never had a vcte from j
20 me.
21 CHAIRHAN HENDRIE:
That is what the blank space in 22 my table means then, correct?
COMMISSIONER AHEARNE:
Correct.
23 24 CHAIRMAN HENDRIE It shows my reporting was
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25 accurate.
But we did have two votes disinclined to protect ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345,
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p 1 the staff from discovery and I think that deals with the 2 Eain thrust of that one.
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3 On No. 5 I think Vic and I said "Yes" and John and 4 Peter said adjust the times.
5 COHNISSIONER AHEARNE:
I said "No."
6 CHAIRHAN HENDRIE You said "No."
I have got you 7 and Peter labeled "No" asterisk, and the asterisk adjust 8 times.
Somebody tell me what I meant by that?
9 COMMISSIONER BRADFORD I don't know that John and 10 I meant the same thing.
My concern was that I wanted to 11 keep to the principle of a sequential filing of some sort 4
12 CHAIRHAN HENDRIE:
I see.
13 COHEISSIONER BR ADFORD:
--- so that each party had
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14 some chance to focus their filings on the filings of the 15 other rather than just having them all come in in a basket 16 on the same day and having the board have to cope with 17 comments that really didn't deal with each other or proposed 18 that really didn't deal with each other.
19 CHAIRMAN HENDRIE:
Len, what was the time question 20 there?
21 HR. BICKWITs We had proposed that 30 days after 22 the closing of the record that the applicant and the intervenors file their proposed findings, that the staff 23 24 file on day 40 and that the applicant then have a right of 25 replying on day 45.
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ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON 3.C. 20024 (202) 554 2345
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An alternative proposition which I suspect would 2 satisfy the. Commissioners who dissented to that would be 30, f3 3 40, 50 and 55.
So that the 40 would.be for the intervenor.
4 The applicantJuould file on. day 30, the intervenors would 5 file on day 40, the staff would file on day 50 and the right 6 of reply would be on day 55.
7 COHNISSIONER AHEARNE:
That is true.
8 CORNISSIONER BRADFORD:
The arguments on either 9 side are in ene case you save ten days and on the other side 10 rou give the intervenor an oppportunity to look at the j
11 applicant's filing before going forward with its own filing.
12 Our initial recommendation was to compress the 13 matter so that. the inturvenor would not have that
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14 opportunity on the grounds that the opportunity is not, in 15 our view, a terribly significant one.
18 In order to comply with those time deadlines the 17 interrenor is going to have to pretty much have its filings 18 complete by the time it would receive the applicant's 19 filing.
But there is clearly an advantage to having a look 20 at the applicant's filing before going forward.
21 So I regard it pretty much as a judgment call.
Do 22 you want to compress the time by ten days in these times of 23 stress or do you want to give the intervenor the opportunity 24 to look at the applicant's filings before filing its own i
25 piece of pa per?
t ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 (202) 554 2345
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1 CHAIRHAN HENDRIEa At the moment it says something 2 like 20 days, doesn't it?
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3 HR. BICKWITs Tha t is true.
4 COMMISSIONER AHEARNE:
What the moment is is it is 5 20 days for the applicant and at day 30 for the other 6 parties, at day 40 the staff and at day 50 the applicant i
7 response.
8 ER. BICKWIT:
That is right.
Now the boards have 9 informed us that the 20-day period is unrealistic and is 10 virtually never met.
So that while the 55-day schedule in 11 theory would be a relaxation for the current rules, in 12 practice it would in fact be a tightening.
13 COHNISSIONER AHEARNE:
Because it would cut five 14 days off of the ap1licant's response time.
l 15 HR. BICKWITs That is right, and I suspect it 16 would cut a few other days where the rules are not being 17 honored.
18 CONNISSIONER AHEARNEs I could go along with Len's 19 revised proposal.
20 CHAIRHAN HENDRIE:
Okay, I will, too.
21 Vic?
22 COMMISSIONER GILINSKYa I guess I haven't thought 23 all the details out.
I was going to support his original
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24 recommendation and I guess if it is somewhat modified that 25 is all right, too.
ALDERSoN REPORTING COMPANY,INC, o
400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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CHAIRHAN HENDRIE:
Peter?
2
.CONNISSIONER BRADFORD:
I don't think I have the 3 revised one.
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HR. BICXVIT A copy of the revised 5 recommendations?
Do you, Harty?
I don't.
6 CONNISSIONER AHEARNE:
Which?
You mean the one 7 you just said?
8 HR. RICKWIT The one I just came out with, there 9 is no such copy.
10 COMMISSIONER BRADFORD:
There is no such ching?
11 HR. BICKRIT:
No.
12 CORBISSIONER BRADFORDa No wonder I don 't have a 13 copy.
14 CHAIRMAN HENDRIEa Say it again, Len.
15 HR. BICKWIT The proposal that we put forward 16 now, which is a revision of the proposal put forward in our 17 paper, would be that the applicant files, unless otherwise 18 ordered by the board, the applicant files on day 30, the 19 intervenors on day 40, the staff on day 50 and the right of 20 reply is on day 55.
21 COHNISSIONER AHEARNES So the tvo changes from the 22 present is that it shifts the whole schedule down ten.
23 Instead of 20 for the applicant it is 30 for the applicant and it shortens the applicant's response from 10 te 5.
24 HR. BICKWIT:
That is right.
25 l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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1 COHHISSIONER AHEABNE:
It keeps all the other 2 timing the same.
3 HR. BICKWIT That is.right.
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COHHISSIONER BR ADFORD:
Under the existing 5 schedule tne applicant has ten days to respond to filings by 6 other parties.
7 HR. BICKWIT:
That is correct.
8 COMMISSIONEB BRADFOBDs Does that mean that they a have to reply to the other parties by day 40 and the staff 10 by day 50, or does it bas 1cally mean they just have to reply 11 to everybody by day 50?
12 HR. BICKWIT:
They have to reply to everybody by 13 day 50.
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14 COHHISSIONER BRADFORD:
What did the boards say 15 abo ut holding to the 55 at the end?
16 HR. BICKWITs The board.s recommended that.
The 17 boards recommended that the right of reply be a five-day 18 right of reply.
19 COHHISSIONER BBADFORD:
I don't seem to have any 3
20 problem with this.
What is the practical difference going 21 to be?
Are the boards going to feel more held to adhere to 22 this schedule than the old one because it is more reasonable?
23 HR. BICKWIT:
Tha t is right.
Presently yCu have i
24 got an unrealistic schedule which the boards don't really 25 f eel an obligation to adhere to because it is patently l
l At.DERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 unrealis tic.
2 COMMISSIONER AHEARNE Tony, what is your view?
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3 HE. COTTER:
That tha t is correct.
I would add 4 that the-discretion granted the boards can provide for 5 working variations on this schedule.
For example, in the 6 THI hearing they have scheduled findings to be filed over a 7 long period of time beginning before the hearing ends.
So 8 that with respect to that subject matter in which the record 9 is complete they can begin receiving findings and thereby to expedite the process.
The boards of course are very 11 conscious of the time f rames that we are all working in.
12 COMMISSIONER BRADFORD:
Does this proposal 13 actually change the power of the boards to work 'out a 14 schedule that seems most sensible to them?
This essentially 15 is a guidance schedule?
16 HR. COTTER:
I believe that is correct.
I don't 17 see it a s changing their power but I do see it es 18 establishing a meaningful standard for them to work from.
19 HR. SHAPAR4 You are drawing the rules in 20 substitution for numbers that are there.
There is a general 21 provision in the rules.
22 COMMISSIONER BR ADFORD:
Right.
But under the 23 existing rules the boards obviously have felt free to adjust 24 the schedule to sucompass reality up to now and apparently 25 they re'esin f ree to do so.
At.DERSoN REPORTING COMP 41,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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HR. SHAPARs They would still.have that power,
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2 subject of course to whatever hortatory language the 3 Commission might want to use in the statement of 4 consideration.
5 HR. ROSENTHAls Do those dates refer to the time
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6 at'which the proposed findings must be placed in the mail or 7 must be - received ?
8 HR. BICKWIT In the mail.
9 HR. ROSENTHAli Well then the applicant, unless it 10 is able to make arrangements"for some kind of hand delivery, 11 vill not receive the proposed findings to which he is 12 responding until the day that his response is due.
Five 13 days is' utterly unrealistic if you are allowing for mail.
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14 HR..BICKWIT:
That is part of the proposal that 15 s ta f f ---
1e COMMISSIONER ASEARNE:
Hand serve.
17 HR. BICKWITs
---will serve its filings by hand on 18 the applicant on the day in which it is filed.
19 COHNISSIONER BRADFORD:
The existing rule is ten 20 days from the date of service, right?
21 HR. BICKWITs That is right.
It is ten days from 22 date of service.
Hy calculations as I have spelled them out 23 assume hand service under the existing procedure.
What I t.
24 have said is it is 20, 30, 40 and 50.
But if you don 't 25 assume hand service it would be 20, 30, 40 and 55 because ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
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I staff wonid file on day 40, service would be complete on day 2 45 and the applicant would have a 10-d a y right of reply 3 which would require him to file on day 55.
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4 COHHISSIONER BRADFORDs This is ycur proposal that 5 you are talking about?
6
.MR. BICKWIT I am trying to give you the length 7 of time that the existing rules will take.
If you have have 8 hand service by the staff on the applicant that comes out to 9 50 days.
10 CONNISSIONER BRADFORDs The other parties remain 11 free to use the mails?
12 HR. BICKWITs That is right.
13 HR. SHAPARs But there would be some lost time if
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14 the staff, as it is, is in Washington and your utility 15 lawyers are on the West Coast.
16 HR. BICKWIT That is right.
As Howard points 17 o ut, the rule states that except as otherwise provided, 18 these shall be the times.
If you have a situation like that tg I think you would have to otherwise provide.
go CHAIRMAN HENDRIE:
Peter, did you ever come to a 21 conclusion?
COHHISSIONER BR A D FO R D s' I am perfectly happy to 22 23 accept the change.
I don't have the feeling it is a world
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24 changer.
25 HR. BICKWIT It isn't offered as that.
ALDERSON REPORTING COMPANY,IWC, 400 VIRGINIA AVE., S.W., WASHINGTON D C. 20024 (202) 554 2345
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1 CONNISSIONER AHEABNE:
That moves it into the 2 category of the other changes that we have agreed to.
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3 (Laughter.)
4 CONHISSIONER BRADFORD:
Well, no.
Things like 5 interim operations are 8
CONNISSIONER AHEARNE No, I mean to these in 7 Part 2.
8 CHAIRIAN HENDRIEa Okay.
John, you will buy it.
9 Vic, you said you would buy the. change.
10 COHEISSIONER BRADFORD Without retracting my 11 vote, tell me why the staff is given 10 days more than 12 everyone else.
13 HR. BICKWITs This is just a piece of the general
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14 proposition under which staff gets more time than all 15 ' par ties.
The purp(se of it is to allow a staff, which 16 represents the public interests, to look at the various 17 filings of the various parties and it is sort of a public 18 interest role of in fact assembling information in addition 19 to its role as an advocate.
20 ER. COTTERS I might add that the boards feel that 21 this staggered date for the staff is beneficial.
COHNISSIONER BRADFORDa I can't roll with the 22 23 theory.
(laughter.)
24 CHAIRMAN HENDRIEa Okay.
I will mark yea an 25 ALDER $0N REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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1 affirmative vote with.the provisions ar. adjusted.
2 Could we please for.a minute, and probably several 3 minut'es, back to the mandatory discovery proposition.
What
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4 I would like to do is to discuss this from the standpoict of 5 schedules.
That will give~ne some guidance on turning to 6 the policy statement and sections where we would or would 7 not provide the guidelines scheduled.
8 CONHISSIONER AHEARNE:
Could you at some point 9 also address Howard's comments which are attached to the 10 schedule?
11 CHAIRMAN HENDRIEs Well, that'is part of the 12 discussion I h' ope to have here in connection with disccvery.
13 There is a comment on page 22 of the counsel's i
14 paper that says that the proposed schedule, on wh.ich 15 apparently there were not a great many comments, that the 16 proposed schedule can serve as a guideline only if no 17 discovery is permitted on SSERs.
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18 The matter that I would like to turn to then is by 19 what sort of provisions or proclamations or explanations or 20 exhortations can we find a var to move the process into the 21 hearing phase without it taking six months or whatever.
22 Now, I guess the proposition was that if mandatory 23 discovery against the staff was not something that people 24 were entitled to, then the last SSER would issue and if the 25 staff got ten questions in a hurry it would answer them in a ALDER $oN REPoATING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
13 hurry and people could try to file contentions.
The 25 days
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I 2 projected apparently is pretty tight.
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But if the staff got 350 questions, why it would 4 say we can only answer 50 of these or something like th a t.
5 But if they have to answer the 350, why then they maybe just a can 't do it and the whole set of time scales stretch out.
7 Now, there may be some other provisions which 8 would help the timing program.
I don't know that relief s from mandatory discovery against the staff is the only way 10 to deal:with that.
One of them is a timing schedule problem 11 and the other is related but is not precisely the same thing.
12 WO have got a paper from However.
13 len, do you want to make a few comments here first 14 and then let us talk to Howard?
15 16 HR. BICKWIT4 Tes, I would.
I would like to point 17 out on page 11 of the April 24th memo that a number of 18 alternatives were proposed as possibilities.
Wha t is 19 included in Howard's meno is I guess a combination of Items 20 D and E of those alternatives, but there are some others 21 and, depending on you'r preference.
I guess mine would be to 22 just walk through these in order and see whether there are 23 r ~ fficient votes for any of them.
My inclination is there 24 might be.
25 MB. SHAPAHa Aren 't all the alternatives listed ALDERSON REPORTING COMPANY,INC,
. OED VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554 2345
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1 except that D and E are combined as f ar as the chart is 2 concerned?
Do you see other alternatives?
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HR. BICKWITs As far as the chart is concerned.
4 Actusily I do see another alternative but it is not one you 5 could have been expected to see.
It is one that we have 6 been laboring over in our office.
7 HR. SHAPARs Okay.
Because I simply drew this 8 chart based as best I could from the alternatives listed on 9 page 11.
10 MR. BICKWITa That is right.
I guess my 11 inclination would be to take up.the alternatives in concept 12 and then once we see if there are three votes for any of 13 them attempt to draw a chart that specifically sets them
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14 back.
15 CHAIRMAN HENDRIE:
Well, let's start and see how 16 it goes.
Go ahead.
17 HB. BICKWIT:
The first alternative where the 18 present rule is maintained, it is an subalternative to tha t 19 that I was referred to when I said we have been trying to 20 work something out which might have the backing of a 21 majority of the Commission.
22 It is an alternative of in essence leaving the 23 rules in place but expediting the process and trying to cut 24 down'on the 103-day schedule that is outlined in Howard's 25 submission responding to the proposed rule.
ALDERSON REPORTING COMPANY,INC, GD VIR@tNIA AVQ.9 @,We W$HINGTON, O C. 7M4 (2021554 2345 _ _
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1 I would just like to take you through the concept 2 dnd see whether there might be some inclination to support
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4 CHAIRMAN HENDRIEa Let's see, the 103 days in what 5 and is where?
6 HR. BICKWITs That is in a memo of April 7th.
I 7 have copies of it.
8 CHAIRMAN HENDRIEs And is the time from what to 4
g what?
i 10 HR. BICKWIT:
That is the time from the SSER 11 issuance to the completion of discovery.
12 MR. SHAPAR:
Assuming that every element of 13 discovery takes place in the average case.
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14 MR. BICKWIT:
It assumes a number of things, as we 15 said.
It assumes that the times under the rules are taken, 16 it assumes that motions to compel are offered, it assumes 17 that notions to compel are granted and it assumes really one 18 round of discovery.
19 CHAIR 5AN HENDRIE:
Howard, on this chart with your 20 current meno I don't find 103 days any place.
21 HR. SHAPAR Yes.
CHAIRMAN HENDRIE:
What on this chart corresponds 22 23 to the 103 point.
I HR. SHAPAR:
Bill Olmstead who prepared the chart 24 25 vill answer that.
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1 CHAIRMAN ~HENDRIEs Will defend it.
2 MR. SHAPAR4 Will defend it.
3 CHAIRMAN HENDRIEs Go ahe'ad.
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MR.-OLMSTEADs The 103 days is overlapped on this s
5 chart with the prehearing conference board order and 6 objections.
7 CHAIRMAN HENDRIEs I see.
8 MR. OLMSTEhts Essentially if you look at the day 9 64 where the responses to discovery are due, then you would to also have five days following that motions to compel and you 11 would pick up the remainder of the 103 days.
12 I just assumed that the final order would overlap 13 the board order directing responses to discovery and' you r
14 will notice the further discovery responses on day 139 15 there.
Under the current rule part of that 103 days runs 16 simultaneously as some other things that the proposed rule 17 eliminates.
18 When we pointed out the 103 days it was in the 19 context of the proposed rule which had eliminated some of l
20 these activities in the present rule that are currently 21 going on simultaneously with discovery.
CHAIRMAN HENDRIEs I think I understand it.
22 23 Now back to you, Len, now that I know where the 24 103 appears or doesn't appear.
MR. BICKWITa The solution that I would like to 25 ALDERSON REPORTING COMPANY,INC, MS VIRGINIA AVL @,W,o NO@HINGTON, D.C. 20024 (202) 554 2345
17 1 offer under Alternative 1 is basically going fo'rward with j
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2 the present system but, one, compressing se rvice times so
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3 that the boards would be given the authority to order air 4 express mail service thus cutting down from five days to two 5 days the service time which results in a rather substantial 6 saving because so much of this 103 days is service time'.
7 The second modification would be that there would 8 he no right of response to any motion to compel and the g board would be expected in lieu of asking for responses to 10 those motions to have telephone conferences with parties in
'11 which oral argument.vould take place on those motions.
12 Our feeling is that you can cut out of this 13 schedule on the order of about 25 days.
As I said, the
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14 schedule itself assumes things that well may not happen, 15 1.e., that there vill be motions to compel and that those 16 motions will be granted.
If you knock off those 17 assumptions, then you are cutting down to on the order of 60 18 days for the discovery process.
gg Well, if you cut off the assumption that the 20 motion to compel vill not be granted, you are down to 60 21 days.
If there are no motions to compel you are down to 22 about half that.
23 MR. SHAPAB Excuse me.
I would like to point out i
24 that we have motions to compel in virtually every discovery 25 case.
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 MR. BICKWITs I think it is reasonable to assume 2 that you will have them.
Can you give us any understanding 3 of the. likelihood of those being granted?
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4 HR. OLHSTEAD:
Well, in the last three major 5 litigations that we have currently, they have been granted 6 in each one of them at least as to some.
7 HR. BICKWIT:
I see.
8 The reason we are searching for this alternative 9 is in an effort.to find something that preserves all 10 existing discovery rights but simply hurries them along.
If' 11 the Commission isn't intent on preserving all existing 12 discovery rights, then some of these other alternatives look 13 more attractive.
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14 If there is not a majority for changing those 15 rights, then I think this is an improvement over the current 16 situation.
It is not a dramatic one, but'it is a 17 significant one.
18 CHAIREAN HENDRIE4 That becomes sort of an A-2 19 option.
20 HR. BICKWITs Tha t is righ t.
21 CHAIBMAN HENDRIE:
"A" is do nothing and A-1 is do 22 nothing in a hurry.
23 (Laughter.)
24 HR. BICKWIT:
Tha t is right.
Exactly.
25 CHAIRMAN HENDRIE:
That is pejorative phrasing.
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINI A AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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1 It is a little better than that in fact.
2 Now, that would in principle know the 103-day
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3 nominal discovery track back to 78.
4 HR. SHAPARs Just based on the service time cuts.
5 CHAIBHAN HENDRIEs Just knocking out some service 6 times ---
7 HR. BICKWITs And repense time.
8 CHAIHHAN HENDRIEa
--- and the right of response 9 to a motion to compel.
10 HR. OLESTEADa And a 15-day board decision time.
11
-HR. BICKWIT:
No.
It assumes a 15-day board 12 decision time.
13 ER. OLMSTEAD:
Oh, okay.
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14 CHAIRMAN HENDRIEa Now, where does that 78 days 15 then couple into any one of these schedules?
That is, if I 16 look at the simple day of when to process schedule that vent 17 out with the rule, zero is the publication of the SSER.
18 Now, do I then say that discovery ends on day 78 and just 19 move all the rest of the schedule along by the 53-day 20 increment, or is it not precisely a series configuration 21 like that?
22 HR. BICKWITs I think the best way to look at it 23 is to look at the proposed rule and instead of 25 days for 24 that first jog, you would have something like 70.
CHAIRHAN HENDRIE Not quite the full 78.
25 l
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345 __
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HR. BICKWIT Tes, not quite the full 78.
2 CHAIRMAN HENDRIE:
So A-1 is 70 and that moves
(
3 everything else down the line by 45 days, does it?
4 HR. BICKWITs Yes.
Under the proposed rule l
l 5 schedule, yes.
i 6
CHAIRHAN HENDRIEs Even aside from.any other i
7 changes, ve.have added 15 days into the proposed finding 8 time,right, from Iten No. 57 9
HR. BICKWITs Over and above the current rule 10 or ---
11 COHNISSIONER AHEARNE The proposed rule.
l 12 HR. BICIWITs
--- over and above the proposed rule?
13 CHAIRMAN HENDRIE:
I guess over and above your
(
14 proposed schedule, and let me refer to it as the eight-month 15 schedule.
16 HR. BICKWIT:
Tes.
17 CHAIRMAN HENDRIE:
That had 40 days in it for i'
18 proposed findings and we have just agreed that that will be 19 55.
1 20 HR. BICKWIT4 I think it had 50.
Oh, no, you are i
21 right, 40; 20, 30, 40 and 55.
22 CHAIRMAN HENDRIEs So if I take that 15 days and 23 the 40 days here at the discovery front end, that is two 24 months in change, and with no other changes that would take 25 the beard decision to 305 days I guess.
l l
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The next time you do one of these graphs, Howard, 2 will.you make the little numbers just enough bigger so a (S
3 56-year-old, weary Chairman with medium eye sight can read
~
4 them in poor light.
5 MR. SHAPAR:
We are really not very good at this 8 stuff but we are getting better.
7 (laughter.)
8 CHAIRMAN HENDRIE:
Now, 305 days is a nice round 9 ten months and a saidge.
I guess it is ten months just 10 about right on.
That is better.than 18, but I think it 11 would be highly desirable if we could find some acceptable 12 way-to squeeze the nominal schedule down just'a smidge.
I 13 don't know that we need to try to f.lght to get it back down
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14 to the eight, but we are scheduling at the moment at ten and 15 I would like to be just a shade under that with a ocideline.
16 So on to other options and let's see if enthusiass 17 can be generated for some or all.
18 MR. BICKWITa On Alterna tive B what you are really 19 talking about is a time limit on discovery which is a 20 proposal that has been circulated around and we just threw 21 it out as a possible time limit that all discovery requests 22 would have to be in 30 days after the SER.
23 COMMISSIONER AHEARNE:
You mean the SSER?
24 ER. BICK7ITs No, we mean the SER.
COMMISSIO';FR AHEARNE:
So if the SSER comes out 25 ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASMNGToN. D.C. 20024 (202) 554 2345
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(~h 1 several months after the SER there would be no discovery i
2 against the SSER7 3
HR. BICKWITs That is certainly one variant of the
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4 proposition.
i 5
CONHISSIONER AHEARNE:
No, no, that is not a 6 variant.
That is what you say.
7 HR. BICKWITs That is one interpretation of what 8 we say.
9 (Laughter.)
10 HR. BICKWITs There is another which is that 11 initial discovery requests could be responded to with the 12 response that the SSER has not yet come out and that 13 requests related to the SSER subject matter would therefore 14 have to be answered at a later time and that when those are 15 updated you would in f act have discovery responses af ter the 16 issuance of the SSER.even though no discovery requests would 17 be made.
18 COMMISSIONER AHEARNEa So that you are saying that 19 rou would not allow any discovery requests specifically 20 against the SSER unless it was one tha t was made against the
)
i 21 SER and the staff said, well, we have got to delay answering?
22 -
MR. BICKWITs First,~1et me ssy that what it says 23 is that there would be no new discovery requests 30 days 24 after the SER and that we will adhere to.
25 If the request is allowed on SSER subject metter ALDEP.5CN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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23
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l' 1 and if an answer to that request says that we can't answer 2 now but we could later is allowable and if ansvers which
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- 3. take into account SSER subject matter are later to be the 4 subject of an updating of that first answer, if you 5 interpert this proposal that way you have very mo dest time 6 savings.
7 If you interpret it the way which I think is 8 easier way to interpret it and it provides a much more 9 significant time reduction, then what you are saying is that 10 that kind of scenario will not be permissible and requests 11 can relate only to the SER and if your discovery request 12 relates SSER subject matter the answer "I don 't know" is 13 permissible and no additional updating is to be, allowed.
C 14 HR. SHAPAR:
I would point out, though, that one 15 of the new approaches that we are all planning on taking and it has been" discussed with the Commission, is to segment the 16 17 SERs to gain time.
In other words, if they are open items 18 that we can't deal with, the thought was in order to 19 accelerate the proceedings we would go out with a partial 20 SEB.
21 That seems to be the general approach in Harold 22 Denton's shop now.
When we discussed tha t there was a 23 general feeling that that could pick up some time and go to 24 hearing on the discrete parts of the SER that were nailed 25 down and not wait until all of it is done until we go to AI.0ERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W.. WASHINGTON. D.C. 20024 (202) 554 2345
24
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/
1 hearing.
2 HR. BICKWIT If you tailor this to tha t concept 3 then it.would take 30 days after the SSER, which is not the
(' '
4 final SSER ---
5 HR. SHAPAR:
Right.
6
- 58. BICKWITs
--- b u t the final SSER would be free 7 of discovery requests.
Now will clearly save substantial 8 time.
9 let me say that the concept we are talking about i
10 is the concept of a time limit.
Any time limit would fit j
l 11 that concept.
You have to decide what kind of time limit 12 you can live with and this is just thrown out as an example.
l 13 COMMISSIONER AHEARNE:
Eight at the moment with l
t the current rule after the SSER'what is the time limit for 14 15 discovery requests?
16 HR. BICKWIT There isn 't any in the rule.
17 MR. COTTER:
The board sets it.
18 COMMISSIONER AHEARNE:
Generally tell me what do 19 boards establish?
20 MR. COTTER:
Up to this poin t there hasn 't been a 21 need to really push on time limits in discovery because
)
22 there hasn't been the same pressure as we have now.
)
HR. SHAPAR:
I think the answer is 60 days based 23 24 on pra c tice.
25 HR. BICKWIT:
I would say that any time limit that ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
25
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1 is a number of days from the SSER is not going to save any
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2 time on this schedu'e.
The only way you will get
^-
3 significant. time savings will be to cut off discovery on the 4 SSER.
5 HR. SHAPAR:
Under this concept.
6 HR. BICKWIT:
Yes, under this concept.
~
7 HR. SHAPAR4 Because the biggest time saving, as
- 8. ve show, is insulating the staff frca discovery.
9 COMMISSIONER AHEARNE:
Yes.
In the SSERs that you 10 are now producing or intending to produce, are most of the 11 THI-related items to be covered in the SSERs?
12 HR. DENTON:
They are in the present batch of
/
13 plants.
We. hope to ultimately get that into the SER.
It is 14 trua that today's SSERs tend to be ACRS items, the clean-up 15 of loose ends and the THI action plan items.
16 CONNISSIONER AHEARNE:
Those are the scrt of 17 things then that your proposal would exclud e?
18 HR. BICKWIT:
That is right.
I just think that if 19 you are looking for substantial time savings under this 20 concept, then that is what you have got to do, yes.
21 COMMISSIONER BRADFORD:
By this concept, Len, you 22 sean rule changes involving discovery?
HR. BICKWIT4 No.
Rule changes involving tine 23 24 limits on d'.scovery, that any time limit th'a t starts from 25 the SSER '
its source is not going to result in substantial ALDERSON REPORTING COMPANY,INC.
400 VIRGINI A AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
a 26 1 time savings.
2 COHNISSIONER AHEARNE Those are all my
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3 questions.
I am vaiting until we get to limited 4 interrogatories.
j 5
CHAIRHAN HENDRIE:
Let us pass on to the next 8 option unless you have got some questions or comments you 1
7 vant to make.here.
8 HR. BICKWITs The next option"was the proposed 9 rule and I think we have had our discussion of that in paper 10 and now we can come to option "B".
11 HR. SHAPARs I am not sure when you list "C" a s 12 eliminating all discovery against staff.
When we drew the 13 charts we had a proposed rule and then we had no discovery
(
We thought you meant by that oc even 14 against staff.
15 informal discovery.
In either case both sett. of options are 18 laid out in the graph.
The no discovery against staff we 17 thought was your option to eliminate all discovery against 18 staff, formal and informal, whereas the proposed rule only 19 eliminated formal discovery against staff.
It doesn't make 20 any difference but I just wanted to clarify it.
COMMISSIONER BRADFORD:
The proposed ru'e 21 22 eliminated informal discovery against staff.
It did not 23 eliminate the notion that staff would respond to phone calls 24 and answer questions wherever possible, but it eliminated 25 anything that was called discovery.
j ALDERSON REPORTING COMPANY,INC,
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1 HR. SHAPAR But said that the staff where 2 practicable would answer.
r 3
MR. BICKWIT:
Now if you call that informal 4 discovery then it didn 't eliminate that informal discovery.
5 NR. SHAPARs Okay.
6 HR. ~sICKWIT I don't call it informal discovery.
7
.0HMISSIONER AHEARNE:
That is when you picked up 8 10 days?
9 HR. SHAPARs That is right.
10 CHAIRHAN HENDRIE:
That is what?
11 CONHISSIONER AHEARNE:
You pick up 10 days going 12 f rom proposed rule to no discovery against staff.
13 CHAIRMAN HENDRIE:
I see.
(
14 ER. BICKWITs That means no informal answering of 15 questions.
18 NR. SHAPARs Right, and we are not proposing 17 that.
We just read your words literally and developed 18 schedules for it.
19 CHAIRHAN HENDRIE:
Let's go on to "D".
MR. BICKWITs On "D"
I think it is probably best l
20 21 to have Howard go forward.
MR. OLESTEAD This is is generally an alternative 22 that would make two assumptions on discovery.
23 l
No.
1, it picks up on the suggestion that the 24 25 board be requested to rule prior to the staff answerine any e
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
28
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1 interrogatories as to which ones were permissible.
- Second, 2 it would limit.the total number of interrogatories that f'
3 could be asked the staff thus. reducing the total staff 4 resources necessary to respond.
5 If you don't make both assumptions, then you have 8 got to build in some additional time for objections and 7 responses to those objections before additional rulings.
8 This assumes that there is a limit to the total number of 9 interrogatories and that there is a prior ruling that those 10 interrogatories were necesary to the development of the case 11 of the party requesting it.
12 COMMISSIONER AHEARNE:
You had in your paper a 13 list of district courts that limited the number of
(
14 interrogatories.
15 HR. OLHSTEAD:
Yus.
18 COH5ISSIONER AHEARNEs Have you seen the questions 17 that Commissioner Gilinsky sent out?
If you take a quick 18 look at them I think those are germane to the issue that you 19 have proposed.
Particula rly this list of numbers, you have 20 got limits that range anywhere from 20 to 50 in these 26 different district ' courts.
21 22 MR. OLHSTEAD:
I think this is a good question.
I 23 would point out that in addition ---
MR. BICKWIT:
Would you tell us what the question 24 l
25 was?
I ALDERSON REPORTING COMPANY,INC, i
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HR. SHAPAR:
Let me read it.
This is a memorandum 2 from Commissioner Gilinsky to me.
( ~'
3
.COHHISSIONER AREARNE:
With copies to other people.
4 HR. SHAPAR Yes. "Would you contemplate setting a 5 maximum number of interrogatories per intervenor or per 6 contention, and.what number do you think would be 7 reasonable?"
8 COHNISSIONER AHEARNE So my question really is 9 with respect to these district courts.
Is this a limit per 10 contention, is it a limit on per party or is it a limit on 11 the number of interrogatories against a party?
12 HR. OLMSTEAD:
First, I think you have to 13 recognize that most federal district court litigation
(
14 involves two parties, the plaintiff and the defendant.
15 Occasionally there is a cross-pleading to bring a 16 third-party defendant in, but normally that would be two 17 parties.
So it would be a limit per party under the federal 18 district court rules.
19 ER. SHAPAR And I.vould think the same theory 20 should apply here, per party.
21 COMMISSIONER AHEARNEa Offering rather than 22 receiving?
In other words, is it per party raising the 23 interrogatory or per party answering the interrogatCry?
24 ER. SHAPAR:
Raising.
25 COMMISSIONER AHEARNE:
New in the district court ALDERSON REPORTING COMPANY. lNC.
400 VIRGINIA AVE S.W WASHINGTON. D.C. 20024 (2023 554 2345
30 1 does it get to the issue of per contention or is it just 2 across the board?
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3.
HH. SHAPAR:
Across the board I believe.
4 COHHISSIONEH AHEABNE:
So your answer then as far
'S as the district. court's analogy to us would be a limit per 6 party independent of the number of contentions?
7 HR. SHAPAR:
Yes, but I think we can't state it 8 quite that broadly.
We have a different situation that we 9 have to recor71ze than the district courts.
There are two 10 parties generally.
We may have a multiplicity of garties 11 and our rules do provide for consolidation.
12 If the Commission is interested in pursuing this 13 kind of a concept, I think those kinds of distinctions need
(
14 to be taken into account and I don't think the simplistic 15 answers I am giving you now may fill the bill correctly.
16 COHNISSIONEB AREARNE:
Can you make a rough
~
17 estimate of the number of interrogatories tha t get asked?
18 HE. OLHSTEAD:
We can tell you the most recent 19 ones we had.
We had 212 in San Onofre and over 115 in 2c Diablo ---
21 CONHISSIONEH AHEARNE:
How many par ties?
22 HH. OLHSTEAD:
as the most recent ones.
23 HR. SHAPAHs But if you look at subparts in San I
24 Onofre ---
l 25 HR. OLHSTEAD:
--- it is greater.
ALDERSON REPORTING COMPANY,INC, c?!p vngm mL am_ emD3N@T@h D.@. RW6  @3-rim
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1 COMMISSIONER AHEARNE:
How many parties?
2 HR. OLESTEAD:
In Diablo we have two major
'a 3 opposing. parties in addition to the applicant and the 4 staff.
In San Onofre I an not sure what the number of 5 parties is.
6 It is not at all uncommon in our practice to 7 exceed a hundred interrogatories per person requesting 8 responses and frequently if you count the subparts we are 9 talking in the neighborhood of 250 to 300 interrogatories.
10 HR. SHAPAR:
These federal courts do count the 11 subparts.
12 MR. COTTER:
Do you have similar statistics for 13 how are ansvered "Yes" or "No"?
( ~
14 HR. OLHSTEAD:
Well, as I pointed out earlier, the 15 objections are routine.
Frequently when somebody gets 250 16 interrogatories the first thing that happens is, as the ABA
- ~ article points out, is the attorney attempts to protect his 18 client.
So we object to as many as we can in trying to 19 E8. duce the amount of time that it is going to take to 20 respond.
So that is why you get into the whole business of f
21 going to the board and getting rulings and responses.
22 MR. COTTER:
Maybe you misunderstood my question.
l 23 HY question was how many of those interrogatories are 24 answered "Yes" or "No."
25 MR. OLMSTEAD:
Well, I think there are some that l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 are that way but I don't think it is quite that easy.
2 (Laughter.)
3 HR. OLESTEAD That is why if you take an
("'
4 interrogatory with subparts ---
5 COMMISSIONER GILINSKYa We would need another 6 round.
7 (Laughter.)
8 NR. OLMSTEADa There are boilerplate 9 interrogatories and the subparts f requently do ha ve "Yes" or 10 "No" answers.
That is why I gave you a number that didn't 11 count the subparts.
Frequently there will be (a) through 12 ( 3).
Answer (a) through (j) with respect to every witness 13 that you are providing and the answer to (a) throagh (1) may
(
14 be "See reponse to Inte rroga to ry 1(a), you know.
But then 15 the last question has to be answered and that usually is not 18 a "Yes" or "No" answer.
So I think if you take just the 17 total number of interrogatories you are talking about 18 substantial answers for the most part.
de 77FR 19 H R. eT - '
R:
Do you have any articles on now 20 this has worked out in practice in these districts?
21 MR. OLMSTEAD:
We talked to the Federal Judicial 22 Conference about this and they are very enthusiastic about 23 limiting the number of interrogatories because they do have 24 to come in and it does involve the court more in making 25 decisions about what is reasonable and what is not in ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
33 1 enforcing reasonableness in the discovery process.
(
2 What they encourage in the federal courts is you 3 ask who your witnesses are going to be.
When you are (T
4 talking about 20 to 25 interrogatories, the court 5 essentially expects the question to be who are your 6 witnesses going to be, you know, wh,at are their professional 7 qualifications or what elements of the case will they 8 testify on.
9 Once you have that information the contemplation 10 is that the party vill identify one or two of those people 11 to depose and use the deposition process rather than the 12 interrogatory process.
13 In our practice you recognize that most people 14 don't use depositions at all due to the costs and the 15 commuting times invoved.
~
COMEISSIONER BRADFORD:
Bill, how much time would 16 17 it save, do you think, if people, just leaving resourcing 18 aside, were able to resort to depositions where they now use 19 interrogatories?
20 MR. OLHSTEADs I don't think you are going to save 21 gross time, you know, ln terms of people, but you are going "
22 to be using different kinds of people.
Except for one bad
)
23 experience we had with depositions where the deposition of 24 one witness ran over five days, the depositions usually two 25 to six hours and they are usually limited to four er five At.DERSON REPORTING COMPANY,INC,
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CONNISSIONER GILINSKYs Why do you say different 3 people?
Wouldn't it be the same persons who would be
(
4 answering the questions?
5 HR. OLHSTEAD You would only depose one person at 6 a -time just like they were on the witness stand and you ask 7 one person a question.
Even if you put them up as a panel
' 8 you still direct the question to one individual.
You don't 9 bring the whole group in.
You just bring in the person tha t 10 has been deposed.
11 COMMISSIONER GILINSKY Wouldn't this typically be 12 the person who would be most knowledgeable and would in f act 13 be answering the interrogatories?
14 HR. OLMSTEAD:
It typically would be the person 15 rou identified as the witness on a particular contention.
16 If I indicate that the witness is going to be Joe Black on 17 Contention 5 and somebody wants to discover the basis f cr 18 Joe Black's opinion, they are going to depose Joe Blake and 19 they are not going to be interested in the rest of the staff 20 personnel.
21 COMMISSIONER GILINSKYs But suppose the 22 interrogatories came in, wouldn't Joe Black be in most cases 23 the guy who answers the interrogatories?
24 MR. OLMSTEAD:
Normally he would be the one who 25 answers the interrogatories, but because somebody is not i
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 there and able to ascertain that Joe Black doesn't know 2 anything about the following five matters they go ahead and
(
3 ask the questions.
We look at the question and discover 4 that Joe Black can't answer that question so we have to go 5 get Jim Green because they are directed to the party rather 6 than to a specific witness.
7 COMMISSIONER GILINSKY s But if they are not 8 getting their questions answered won't they be looking for 9 someone else to answer the questions?
10 HR. SHAPARa They will get their question answered 11 if You choose to answer the interrogatory.
12 COMMISSIONER GILINSKYa But suppose they go 13 through the deposition process, which I gather is a 14 substitute, wo uld they af ter having deposed Joe Black still 15 h ave a ---
16 ER. OLMSTEAD:
They might request to depcse 17 somebody else if that witness had iden tified tha t somebody 18 else was going to handle the area.
That u'sually doens't 19 happen.
Usually the counsel is making decisions as he goes 20 along as to what he thinks he can get the most mileage out 21 of-22 COHHISSIONER GILINSKYs Harold wants to say 23 something but let me just ask one more question.
This is in a system where you can use the 24 25 interrogatories to pursue things that haven't been developed ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
36 2
1 through deposition.
If you are constrained in asking 2 tritten questions, then presumably you will expand the use 3 of depositions.
4 CHAIRHAN HENDRIEs Not necessarily.
5 COMMISSIONER GILINSKY:
Well, n'ot necessarily, but e it. vould seem to vo'rk in that direction.
7 HR. OLHSTE AD:
I think the thing that yot' have got a to realize about how interrogatories are to be used is the 9 resources you can bring to bear in writing interrogatories 10 versus one guy like me faced with a technical witness.
In 11 order to ask the same kinds of questions and create the same 12 kind of problem I would have to bring five or six people in 13 to sit with me during the deposition to help me to devise 14 that kind of question.
15 COHNISSIONER GILINSKY:
But what you are saying is 16 that while you could get the same effect or result, as a 17 practical matter is tends to work differently and to be a 18 simpler process.
19 HR. OLHSTEAD:
That is right.
20 COHHISSIONER GILINSKY:
Ha rold.
21 HR. DENTON:
It is hard to generalize about interrogatories.
If they are succinct and can be answered 22 23 without just tying everybody in knots, no one cbjects to 24 some level of interrogatories.
I don 't want to leave the 25 impression that we do.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2346
37
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1 I think at times, though, we think the present 2 system is like a free Xerox machine on.the corner and we w.
3 vill. supply as many ansvers as anybody can send in 4 questions.
We literally think we have supplied textbooks of I
5 ansvers.to people and ve are a ready source of inforestion.
6 It is only the outliers that seem to give us problems.
7 I think in today's climate there is more and more 8 attention being given to this area and more people are 9 discovering it as a way to really obtain lots of detailed 10 information.
It is the fact that it is kind of without 11 bounds that I think bothers me.
I don 't want to leave the 12 impression that we are reluctant to answer questions in 13 general.
(
14 COMMISSIONER GILINSKY:
I missed the beginning of 15 this.
Were you talking about limiting interrogatories per 16 intervenor or per contention?
17 MR. SHAPAR:
Per party.
18 COMHISSIONER AHEARNE:
Per party.
19 COMMISSIONER GILINSKY Per party.
So they get 20 sort of a lump sum that they can divide among the 21 contentions as they choose.
22 MR. SHAPAR:
As they see fit.
23 COMMISSIONER AHEARNE:
They said tha t was more 24 nearly analogous to the federal court procedure.
25 MR. SHAPAR:
Maybe one thing that has been lacking ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
38
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1 in this discussion up to now is.that I don't think we have 2 really given you a feel for the kinds of questions that are 3 being asked in interrogatories.
i
{N 4
HR. OLMSTEADs I didn't bring any with me.
'5 HR. SHAPAR:
But just generally based on the most 6 recent experience.
It is in large part probing the ment ~l a
7 processes of the staff rather than asking f or f actual 8 informati6n as such.
9 COHEISSIONER GIIINSKY What sort of questions 10 does the staff ask of the other parties?
i
~
11 HR. SHAPAR:
Why don't you answer that.
12 COHNISSIONER GIIINSKY:
I mean, does the staff 13 make extensive use of interrogatories?
(
14 HR. SHAPAR:
Yes, we do.
15 MR. OLMSTEAD4 We do a combination of admissions i
18 and interrogatories.
What I prefer to do, because i
17 frequently the answer you will get back is I am going to 18 prove my case by cross-examination, is to request admissions I
i is first and then follow on if you deny ---
i 20 COHNISSIONER GILINSKY:
What are admissions?
21 HR. SHAPAR4 It is called a request for 22 admission.
You ask to admit a certain fact.
23 COMMISSIONER GILINSKY I see.
)
24 MR. OLMSTEAD:
You build the facts necessary to 25 show compliance with a particular regulation and then ask i
l ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 (202) 554 2345
39 m
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1 them to admit each one ef. those subparts.
Then what you do
~
2 is say for eac t subpart that you don 't admit please identif y
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3 the person whose testimony you intend to rely on, attach a 4 copy of professional qualifications and indicate any 5 cochnical articles, documents, et cetera, that they intend a to rely on l'n that position and state specifically the 7 element of that statement of fccts that you disagree with, 8 that type of question.
9 CONHISSIONER GIIINSKYa Typically how many 10 questions to you ask?
11 HR. OLHSTEADs Well, we take full advantage of the 12 discovery rules that we have at the moment.
It is probably 13 not as much as the applicants do, but it is not unusual in a 1
14 complex case for us to ask several hundred interrogatories.
15 (Laughter.)
16 If you read the article that I attached to the paper,'I fully agree with the criticisms of the discovery 17 18 process that are enumerated in there.
But a lawyer cannot 19 represent their client effectively if they don't use the 20 system to their advantage as well as to their disadvantage.
21 COMMISSIONEH AHEARNE:
Would you see our system a
22 being more nearly the big case?
23
- 58. OLHSTEAD:
Absolutely.
24 HR. SHAPARs They are all big cases.
HR. OLHSTEAD:
As a matter of f act, none of those 25 ALDERSoN REPORTING COMPANY,INC, 400 VIRGINtA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
40 1 cases would even compare to the length of our hearing 2 process.
Only the big IBM antitrust cases would compare to
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3 our discovery process.
4 COHHISSIONER AHEARNE:
Do the boards.have any 5 comment on the interrogatory limits?
6 HR. COTTER:
I agree in principle with the need 7 for controlling discoverr.
I' don 't have any trouble with 8 tha t at all.
I agree with the contents of the ABA article.
9 I feel obviously, as I have said many times, that 10 the way to control discovery is for the person who is 11 running the hearing to control it.
12 With respect to this specific proposal, I can only 13 assume it represents some kind of a minority view as far as 14 specifics are concerned.
I don't know how many district 15 courts they have now, 70 or 100.
16 HR. 3HAPAR:
105.
17 HR. COTTERS 105.
So this is 26 percent in view 18 of most of these courts ---
- g HR. OLESTEAD:
No, hold it.
Please.
The Judicial 20 Conference gave us 23 of those.
They told us tha t they had 21 CDlY 50 percent of the districts.
It just happened that 22 some attorneys in the office knew of some additional 23 districts which we added to that.
We have not gone through 24 all of the districts in thu United States to determine how 25 many additional districts also have a limit.
r ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON. D.C. 20024 (202) 554-2345
41 f(^
1 NR. COTTER:
Again, I am not quibbling with the s
2 principle, but I don't think the point gives the proper
('
3 perspective of the case.
Obviously the United States 4 District Court for the District of Columbia, which 5 presumably is the closest to us, has.not seen fit to impose 6 that kind of a restriction and they have similar kinds of 7 cases.
8 COMMISSIONER GILINSKY How can the boards impose 9 restrictions other than by looking at the interrogatories 10 question by question?
11 MR. OLMSTEAD:
By encouraging a voluntary system 12 and supervising it and just ensuring that the parties.get 13 together.
The voluntary part can be taken care of with a
(
14 minimum-of inconvenience aad time and expenditure of labor.
15 That has been found to work quite well,' for example, in 16 THI.
I think most of that has been voluntary, has it not, 17 particularly in consideration of the fact that it is a 18 seven-month hearing.
COMMISSIONEH GILINSKYa What was the limitation 19 20 there?
MR. OLESTEADa-If you look at the volume of 21 l
22 discovery, you are talking about tremendous resources to 23 respond in TMI.
I mean, there you have got thousands of 24 interrogatories.
COEMISSIONER GILINSKY What is the system?
Is it 25 I
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I the number of interrogatories that are limited?
2 ER. COTTER:
No.
I think it is just more simply
^)
3 the process of getting the people together.
You are more 4 f amiliar with the details than I an.
5 HB. SHAPARs Sometimes it works and sometimes it 6 doesn 't.
7 MH. OLHSTEAD4 Essentially the assumption that is 8 Eade is that the bocrds are going to take a very liberal and g very broad view of what discovery interrogatories can be 10 asked so that you don't have auch of a negotiating lever.
11 So what you do is try to reduce the amount of time involved 12 in the negotiating process.
13 COMMISSIONER GILINSKY.
Now, would you put any 14 limits on depositions?
15 MR. OLHSTEAD:
I don't think, due to their costs, 16 unless you are talking about finding some way to fund them, 17 that you are going to a lot of depositions because you have 18 got to hire a court reporter to do a deposition and that 19 keeps those things in centrol.
20 HR. COTTERS Expense limits it.
21 These districts where they have imposed limits, so 22 far as I know, and I would quess and you tell me if it is 23 different, that they are probably the product of a j udicf.01
(
24 conference's work.
25 As you may know, nost circuits have a judicial l
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1 conference'and that judicial conference is compri' sed of all 2 the people who practice before it.
The normal procedu're is 3 for then to meet as an ongoing satter and to review the
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4 procedures within that conference, the rules that are 5 governing their'. hearings and to make recommendations for 6 their improvement and what-not which are subsequently either, 7 rejected or adopted by the court itself.
8 Again, in addressing the concept of both limiting 9 interrogatories or.any o'ther form of discovery to a useful 10 point and not. making it burdensome, it would seen to me 11 perhaps the most productive way to address this vculd be to 12 form something analogous to that judicial conference by 13 having people who represent all of the interests which
(
14 practice before the boards, including the boards, meet and 15 work out these things, discuss then, and come back with to specific recommendations within a limited time f rame.
17 Otherwise you are trying to make an arbitrary judgment about 18 discovery over a whole range of proceedings.
19 COHNISSIONER AHEARNEs Well, to some extent the 20 public comment period served tha t purpose in that I would 21 guess that a lot of the comments that came back came back 22 from people who practiced in front of the agency; isn't that 23 correct?
24 ER. BICKWIT That is correct.
25 ER. COTTER 4 It is not exactly th e sa me, but you l
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2 COMMISSIONER AHEARNEa Yes.
( S, 3
HR. ROSENTHAL:
I would say two things about the
'v,
4 list.
First, it does not include most of the districts that 5 cover large metropolitan areas for whatever significance you 6 might want to draw from that.
It doesn't include the New 7 York dirtricts, the Dist'rict of Columbia, Chicago, los 8 Angeles, San Francisco, Detroit or Philadelphia.
It does e have a few of the major districts.
10 Secondly, I would say that there is relatively 11 little litigation in the federal district courts that is
$2 comparable to what we have involved here.
Most of the 13 litigation is channeled onto one or two sub$ectmatter
(
14 areas.
Whereas, as you are well aware, our litigation may 15 cover a number of quite diverse subject matter areas.
18 Having said that, I would have to say that I do 37 support the proposition of our Executive !.egal Director so 18 l o n g a s ---
19 HB. SHAPABa Wait a minute.
I am not recommending 20 anything.
My recommendation is quite different than this.
~
21 HR. HOSENTHALs Excuse me.
22 COMMISSIONER BRADFORDa Don't you want to frame 23 tha t moment, though, Howard?
I (Laughter.)
24 25 HR. ROSENTHAL:
I am sorry that I did not ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 recognize that this was being put up without.the endorsement 2 of the Executive Legal Direr. tor.
But even with that I think
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3 this is a useful concep'.
It'does seem to se that 4 interrogatories are put forth prosi.scuously.
I think that a 5 party if it knows that as a matter of right it has not a 6 blank check but a limited number it is' going to exercise in 7 most instances a certain amount of restraint.
8 Now, as long as the boards ha-e the disstetion in 9 a particular instance to expand the allowable number, it 10 seems to as that putting a limitation would not run.the 11 serious danger of a party being prec1';ded where there was 12 plainly warrant for it for putting out more than whatever 13 the nusber that you have said.
(
14 CORNISSIONER G11INSKY:
What was the number?
15 HR. SHAPARs This is simply a data base that we 16 provided for the Commission to reflect on the varicus 17 options in len's meno.
The reason I made the statement I 18 did before is that I have not made it formally as a 19 recommendation to-the Commission.
My recommendation is j
20 somewhat different and it is in a previous meno from me to 21 the Commission.
But that is not to say tha t this couldn 't l
22 he used in conjunction through with my previous 23 recommendation.
24 CHAIRNAN HENDRIE:
Granting all the careful
{
25 explanations, would you give se your best guess at what l
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1 would be a reasonable number of interrogatories to allow a 2 party in a case?
3 HR. SHAPARs In our case it is 50 at the higher (m.
4 end of the spectrum.
5 CHAIRMAN HENDRIEs Consider one of our cases.
The 6 staff publishes an environmental impact statement.
It 7 publir.hes a safety evalua tion report.
It publishes at least 3 one and for cases currently of interest perhaps more than s one supplementary safety evaluation report.
10 We don't normally -- well, let's see.
In these 11 cases we probably also have got supplements to the 12 environmental sta tement, or have we?
13 HR. OLHSTEADs In some cases.
(
14 CHAIRHAN HENDRIEs In some of them we'do.
So 15 there are a series of documents.
Now, is it 50 per party 16 for the whole case or, for instance, per filing by the 17 staff, or how do you cut it up?
18 COHHISSIONER GILINSKYs What is the number now?
19 HR. SHAPARs There is no limit.
That is the 20 p ro ble m.
21 COHEISSIONER GILINSKYa I know there is no limit.
22 What is the typical number in a case?
23 HR. SHAPAR The most recent case I guess is San
(
24 Onofre and there were 200 and I guess it can range around 25 100.
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47
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HR. OLHSTEADs It is generally over a hundred and 1
2 not infrequently over 200.
(
3 COMMISSIONER GILINSKY Abeut a hundred per party 4 or a. hundred served on the. staf f ?
5 NR. OLESTEADa A. hundred served on the staff.
6 Usually there is only one party other than the applicant 7 that is persuing the case at any given time because of 8 consolidation and this other stuff.
9 COHNISSIONER GILINSKYa Are there in these cases 10 any residual disagreements between the applicant and the 11 staff ?
12 HR. OLHSTEAD:
We sometimes get interrogatories '
13 from the applicant.
(
14 COHHISSIONER GILINSKY:
Extensive interrogatories?
~
15 HR. OLHSTEADa Very extensivo in enforcement 18 proceedings but less extensive in licensing proceedings.
17 Their interrogatories tend to run in the 20 to 50 range 18 normally in a licensing proceeding.
In an enforcement 19 proceeding, that is a whole diff eren t circumstance.
20 CGNHISSIONER AHEARNE:
What would you propose in a I
21 case where the board had consolidated intervenors because 22 contentions were similar?
23 HR. SHAPAR:
If they consolidated it is because 24 their interests are the same and I would sa y it in the same 25 limit for the consolidated pa rtie s.
This was a gross ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C, 20024 (202) 554-2345
48 1 concept that we developed.
You are asking questions nov
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2 that really haven 't bcen thought through in terms of the 3 ansvers we have been given.
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4 COMMISSIONER GILINSKYs Is this going to affect 5 consolidation?
6 MR. OLMSTEAD:
I would point out that the idea of 7 this whole thing is, as I explained I think while you were 8 out of the room, Commissioner Gilinsky, is that all of this a would be ruled on by the Board in advance.
People could to ask, say if your limit is 50, 50 interrogatories as of 11 right, but beyond that they would have co have a ruling by 12 the board that it was permissible.
Presumably then you 13 eliminate all of the motions to compel on objections or you
(
14 don't save any time with a limit or without a limit.
You do 15 save some staff resources. '
16 So the whole concept is on this graph here th a t 17 the board becomes involved in policing the discovery process.
18 MR. BICKWIT:
You acknowledge that you can't-19 assume that you will eliminate all the motions to compel 20 under this process because there will still be the question 21 of the inadequate. response and you may be sitting with 22 those.
But nonetheless the resource savings sounds 23 substantial.
24 MR. OLMSTEAD:
The theory would be that a party 25 would not assume that they would gain anything by objecting l
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1 to the question if the board had ruled that it should be 2 answered.
4 3
COHNISSIONER BRADFORD:
How can you apply a single 4 number of allavable interrogatories across the board?
That 5 is, you will have cae party in a case who has only one 6 contention that.has been admitted and another somewhere else 7 who may.have a dozen.
Why doesn',t it make sense if one goes 8 in this direction to set the litit based on some number of g interrogatories per contention but let the party choose how Io they divide them up?
11 ER. OLHSTEAD:
Those are good questions.
I think 12 in most of our ca:.ses it is not necessary because the 13 p'racticalities of 'the way cases are tried are. that case that t
14 has four contention.s takes.just as long to try as a case 15 that has 20 because you tend to spend the first four or five 16 days in the hearing going very slowly and then attorneys 17 decide they have got to catch their airplane and you will 18 take four contentions a day for the next three days.
19 (Laughter.)
20 HR. OLHSTEAD:
So that just because a case has 21 fewer contentions does not necessarily mean it is going to 22 take less time to try.
23 COMMISSIONER BRADFORD:
But in terms of the 24 interrogatories and the burden from them on the staff, I 25 would think it would be more sensible to fix the number ALDERSON REPoRTINo COMPANY. INC.
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1 based on an average cantention rather than on an average 2 proceeding.
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HR. OLHSTEAD:
I would suggest you might want to 4 do it more by subject matter rather than contention because 5 you can have five contentions on.the same subject matter and 6 rou can have two contentions on two entirely different 7 subject matters and your needs are really to become informed 8 about the subject.
9 HR.-SHAPARs In any event, it is only a norm.
10 Whatever that norm is the board would have good cause f
11 authority to allow additional questions.
12 NR. ROSENTHAL:
If this is on a contention basis 13 that might encourage a party to put in a substantial number
(
14 of contentions in order to increase the number of i
15 interrogatories they have got to write.
It seems to ne th a t 16 any system is arbitrary, but again as long as the board has f
17 the right to increase the number if in its judgment 18 circumstances warrant it, it seems to me that that would L
19 take care of it.
20 Again, I think this would have a desirable i
21 deterrent effect because as matters now stand there is 22 really no incentive at all to be selective in what ycu see.
23 I think we have heard from the staff that in some instances I
24 this process is used by parties simply to get a textbeck 25 prepared by them.
I think the staff is entitled to some i
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51 s
1 protection and it seems to me that this, even though Lt is
, ~,
not endorsed by the Executive Legal Director ---
2 3
(Laughter.)
4 ER. ROSENTHAL '
--- it seems to be a reasonable 5 concept subject obviously to fine tuning.
6 HR. SHAPARs I didn't say I didn 't endorse it.
I 7 said I didn't put 8
CHAIRNAN HENDRIE:
I haven't got time to listen to e all the fine nuances of where precisely everybody stands.
I 10 frankly don't give a dann where everybody stands precisely 11 and their reasons and rationales for it.
I would like to 12 get on with this business.
13 Now, there seems to be embedded in this
(
14 proposition for some overall limit on the interrogatories, 15 or there seems to be concealed from me at least some sort cf 16 a proposition which I can connect to this schedule.
Could 17 somebcdy try to outline for me if we did something like, I 18 don 't know, some limit on the number of interrogatories on 19 some basis yet to be determined how would that patch 20 together in a schedule sense and hope to pick up a few days 21 in this process of getting on toward getting the hearing 22 started?
23 If somebody could sketch tha t for me, then what I 24 would like to do is just look up and down the table and see 25 if there is some interest in further investigation of the ALDERSON REPORTING COMPANY,INC,
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1 matter and I would then ask the ad hoc group to think about 2 it.
3 COMMISSIONER BRADFORDs It looks like the last run.
4 CHAIRHAN HENDRIE:~
Well, that is what I am trying 5 to find out, Peter.
It hasn't been so clear to me how this 6 all patches in and I would like to hear about a seven-minute 7 outline.
Then what we are going to do is quit for the day 8 and if enough Commissioners agree with me that it is a 9 matter of some interest I will ask the ad hoc group to put to your heads together and think about some of the questions 11 that have been raised about how this signt work and what its 12 terms might be so hopefully ve could at least start 13 discussion of that tomorrow afternoon when we meet and then 14 carry it on at the following meetings.
15 Now, can somebody sketch now this might work as an 16 overall plan in the schedule sense?
17 HR. SHAPAB let me say in gross terms if you take 18 a look at the last line of the chart that is what that is 19 designed to do.
Remember we didn't have any specific number 20 in effect so it is really gross terms.
21 CHAIRMAN HENDRIEs Yes, right.
What is says is 22 tha t the last SSEB issues and parties then have -- now here 23 you see is this case where this 56 year-old Chairman in poor 24 light and with not great eye sight find it -- is that 15?
MR. SHANARs Yes.
25 ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
53 I'
1 CHAIRHAN HENDRIE Thank you.
2 (Laughter.)
3 CHAIRHAN HENDRIEa People have got 15 days to run
(
4 up a. set of questions; is that right?
5 HR. SHAPARs Right.
6 CHAIRHAN HENDRIEs The staff gets 15 days to 7 complain about the questions?
8 ER. OLHSTEAD:
That is correct.
That is five days e for service and ten days for response.
10 CHAIRHAN HENDRIEs Then the board has got 15 days 11 to say which ones to answer.
12 HR. SHAPARs Yes.
13 CHAIRHAN HENDRIEa And the staff 'has got 29 days 14 to answer them.
15 COHNISSIONER AHEARNE:
That seems to embed your is higher standard.
If HR. OLHSTEADa Actually th e y h a ve 14 days.
There 18 is five days for service on each of those times.
1g CHAIRHAN HEND3IEa I see.
20 HR. SHAPARs Well, we can put it in terms of the 21 alternative because it is such a gross concept at this point 22 in time.
23 COMMISSIONER GILINSKYa Let's see.
I think you 24 took.the service days.
25 HR. OLHSTEAD That was an earlier proposal.
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1 HR. BICKWITs You can do that.
2 HR. OLMSTEADa You can reduce the service days by
(^
3 using airmail.
s 4
ER. BICKEIT And you. can integrate that into this l
5 concept'.
i 6
.CONNISSIONER GILINSKYa It.seems to se that we 7 ought to sort of advance into the 20th Century.
You can get I
8 things to people in one day and in fact overnight.
I 9
CHAIBHAN HENDRIEs At a cost.
i 10 COMMISSIONER GILINSKYa At a cost.
l l
11 CHAIRNAM HENDRIEs Now under this last line l
12 schedule I don't see anything about complaints and motions.
I 13 Af ter the staff response to the interrcoatories that have
(
14 been allowed what would you do, not allow a round of 15 complaints if the ansvers weren't any good and so on?
l 16 MR. OLMSTEADs The assumption is twofold.
If one i
17 is restricted to a fixed numbe~r of iterrogatories they are
[
l 18 going to be sharper and more prr.se and you are going to l
i I
19 have fewer objections.
Therefore I didn't build an i
20 objection ' time in.
t 21 The second assumption is that if the board has 22 ruled that it is proper for this interrogatory to be 23 responded to a party is going to be foolish to attempt to I
l object to that interrogatory after the board ruling j
24 t
25 NB. SHAPABa The board has already declared its l
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1 ruling.
2 NR. CLESTEADa
--- because they have already 3 declared they think it is a proper question.
r~3, t
4 HR. EICKWITa But I.have got to repeat the 5 statement which I put forward before which is that I don't 6 think it is reasonable to assume no actions to compel under 7 this schedule.
There vill be dissa'tisfaction with what a comes back.
9 COHNISSIONER AHEARNE:
Inadequate responses.
10 HR. SHAPAR:
We aren't assuming none.
11 MR. BICKWIT:
You are in this schedule.
12 CHAIRMAN HENDRIEa What he is assuming in this 13 schedule is.that the rule is going to say you don't get that
(
14 crack at it.
15 HR. SHAPAR:
Precisely.
16 HR. BICKWIT:
That is precisely my point.
You are 17 proving no notions to compel.
18 CONNISSIONER AHEARNE:
Wait.
I guess what you are 19 really assuming is that no matter how poor the response is 20 that is the only response that is going ~ to be allowed.
21 ER. SHAPARs For the purposes of developing a 22 chart like this.
HB. BICKWITs But you are assuming a rule is 23 24 changed.
HR. SHAPARa Precisely.
25 ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2346
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1 CHAIRNAN HENDRIE Now, if you allowed complaints 2 about responses. and the board said to look at these and 3 decide you interfect what, ten days for the complaining and
{)
4 ten days for the board to rule and 15 days for the 5 supplementary responses?
6 NR. OLESTEAD:
I think in a prior paper we pointed 7 out that under the rule that permits us to go to the board 8 now. that our problem with it is is that it does build an i
9 additional 30 days into the process that you don 't otherwise i
10 have and that is why we don't use it.
This would assume l
11 that you don 't have that.
12 But a board enforcing discovery contentions, as i
13 that article points out, if a judge. takes a firm hold at f
14 discovery, the penalty for failure to comply with the order 15 to respond to the interrogatories is that on a summary 16 disposition motion you are going to lose.
17 HR. SHAPAHs Let me point out also that in terms 18 of savings, it is fair to say that there is an obvious tg savings in terms of staff resources and a lesser savings in 20 terms of time.
But there is a third factor and 'that is to 21 the extent that the staff isn't spending its time answering 22 interrogatories it can devote time to other cases, 23 remembering that the disciplines that have to answer the 24 interrogatories are spread thin in some areas.
So it isn't 25 a one-on-one thing at all.
It has a run-off on other cases.
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINtA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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How many service times are 1
2 there in this sequence up to, say, day 64?
3 HR. OLESTEAD:
Four.
4 CHAIRHAN HENDRIE:
Three?
5 HR. OLHSTEADa Four.
6 CHAIRHAN HENDRIE:
Four' service times?
7 HR. OLMSTEADa The first service time is the SSER.
8 CHAIRHAN HENDRIE So each of those discrete g periods here up to day 64 has a service time built into it?
10 HR. SHAPAR:
Yes, correct.
11 CHAIRHAN HENDRIE:
Five days?
12 HR. OLHSTEADs That is correct.
13 HR. SHAPARs Correct.
14 CHAIRMAN HENDRIE:
And it is practical to cut it IS to,:what, two?
16 HR. BICKWITs Two.
17 CHAIRMAN HENDRIE:
So you can pick up 12 days in 18 principle.
19 HR. BICKWIT:
Yes.
20 CHAIRHAN HENDRIE:
And day 64 could become day 21 52.
That would compare under the A-1 option with -- well, I 22 don 't seem to have a corresponding point.
23 HR. BICKWITs With 70 I think we said.
It takes 24 You 64 -- well, 64 minus 12 is 52.
That compares with 70 25 under A-1, but I think 75 is more realistic.
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1 CHAIRMAN HENDRIEs I am not sure that is quite 2 right, Len, because under your A-1 option that is 70 or 75 3 days.
Does that get you all the way through to revised 4 conten tions ?
5 HR. BICKWITs Yes.
6 CHAIRMAN HENDRIE Whereas down on the last line 7 it doesn't.
8 NH. BICKEITa Yes.
So it is 52 plus ---
9 CHAIRHAN HENDRIE:
Ten or 15.
Fifteen, yes.
10 MR. BICKWIT
--- plus 15 is ---
11 CHAIREAF HENDRIE Sixty-seven.
12 ER. BICKWITs
--- 67 as compared to 75.
13 CHAIRMAN HENDRIE:
Is it 75 or is it 90?
14 HR. BICKWITs I think it is 75.
But if you are 15 eliminating the motion to compel, I just want to make clear 16 that what you are doing is you are allowing the staff in 17 effect to answer as it sees fit and there is no right to 18 compel a response other than the one staff chooses to give.
19 That is a concept that, you know, leans back in the 23 direction of our original proposal which is to turn from a 21 mandatory right to a voluntary right.
22.
CHAIRNAN HENDRIE:
G ra n ted.
23 NR. OLMSTEAD:
I think I should point out, though, 24 that I an unaware of motions to compel against the staff for
(
25 inadequate ansvers.
There are motions to compel against the ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
59
( 'f 1 staff for not answering.
2 ER. BICKWITs I see.
3 HR. SHAPARs When we do it, we do it thoroughly.
-s 4
HR. BICKWIT Well then an alternative is to leave 5 intact the rule that allows notions to compel and assume 6 that it won't be used.
7 HR. OLMSTEADs Well, no, beca'Ise this assumes that 8 the board rules that the question is proper.
9 HR. BICKWITs Yes.
10 HR. OLHSTEAD4 The other one does not and I am 11 never going to advise the staff client to respond to 12 questions, particularly if it going to take him a couple of 13 days to do it.
If I think it is irrelevant or immaterial to (x -
14 the proceeding I am going to object to it.
15 11R. BICK'iIT You want to foreclose the right of 16 someone to disagree wi th yo u.
17 HR. OLMSTEADs This way I veuld tell the staff, 18 looki tha board has ruled that the question is proper.
I 19 agree with you and I think it is irrelevant and immaterial.
20 HR. BICKWITs I see.
21 COHNISSIONER AHEARNE:
But then Len's point is 22 valid because what you are saying is that once the board has 23 ruled that that is a proper question then it comes into that 24 category in which the staff has never been asked to provide 1
25 an additional answer because it is always satisfactory.
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1 HR. OL3 STEAD:
I didn't say it was never but it 2 usually isn't.
3 CHAIRHAN HENDRIE:
Hare I think is a better
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4 characterization.
5 COHHISSIONER AHEARNE But then Len is correct and 6 there is no'need to strike the right.
In your proposal are 7 you proposing that it is only the staff?
8 CHAIRHAN HENDRIEt Except that it then leaves that 9 additional 30-odd days in effect available for use by a,nyone 10 who wants to delay the proceeding.30 days for whatever that 11 may be.
They would go ahead and file their moti ns to 12 compel no matter what the answer has been.
13 COMMISSIONER AHEARNEs Are you proposing that this 14 liBit on interrogatories is only a limit against the staff, 15 or are you s ying that that vod1'd be a limit on any party?
16 NR. SHAPARs We didn't add ress tha t.
17 COH3ISSIONER AHEABNE:
Well, the way you had your 18 chart I thought it was just for the staff.
19 NR. OLMSTEAD:
We were focusing on the schedule.
20 CHAIRMAN HENDRIE:
The whole assumption, John,
- 21. here is that the other parties have had at each other before l
22 this time and that what is keeping the case in this 23 prehearing stage is the tact that the staff has yet to file 24 its last document and then when it does then there is a 25 flurry of activity for and against the staf f ra ther than ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
61 (S
1 other parties.having at each other.
I think that it is true 2 in the general practice; isn't it?
3 NR. SHAPAR Yes.
4 ER. OLESTEADa I would point out, too, that people 5 do use discovery as a delaying tactic and you build in 6 opportunities to file motions to compel, no matter how 7 seritorious one may be, there vill be a half a dozen that 8 a re r. ' t.
g COMMISSIONER AHEARNEs But I would assume that the to presiding officers have other mechanisms to deal with people 11 who are clearly deliberately delaying.
12 BR. OLHSTEAD Eventually.
13 MR. SHAPAR:
It is a long, drawn-out process.
14 HR. OLMSTEAD:
Hov long do you go before you 15 decide that that is what they are doing?
16 COREISSIONER AHEARNEa I guess that depends on how 17 perceptive the presiding officer is.
18 CHAIRMAN HENDRIE:
Yes.
ig Listen, I au the one that ought to be complaining 20 about lunch.
You had a chance to go and have a cup of 21 Coff***
22 (Laughter.)
23 CHAIRMAN HENDRIEs I have been here since 10:20.
24 (Laughter.)
25 CHAIRHAN HENDRIE:
But I think there is interest 1
ALDERSON REPORTING COMPANY,INC, I
400 VIRGINIA AVE., S.W., WASHINGTCN, D.C. 20024 (202) 554-2345
62
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and I think we ought to keep looking at it.
It seems to me 1
2 that our problem here is that we need to look at whatever 3 reasonable vars there may be in trying to provide a 4 guideline schedule and if necessary rules to match that is
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5 more reasonable than just having, you know, the thing vander 6 on for months.
7 COMMISSIONER GIIINSKY:
Well, let's get some 8 specific proposals tied either to the total number ser party e or per contention.
10 Also, it seems to me that one can either decide it that a party has so many questions as of right or one can
- 12. treat this in the same way we treat the schedule.
Say give 13 a certain number for a guidance and instruct the board to 14 fix the number in accordance with the nature of the case 15 which the board is in the best posi' tion to judge.
16 CHAIRHAN HENDRIEs Yes.
17 COHHISSIONEH GIIINSKYA A'nd that number we suggest 18 being in a sense the one we think is about right for the 19 typical case.
20 CHAIRHAN HENDRIEt That is possible direction.
l 21 Yes, John.
a COHNISSIONER AHEARNEs I guess my comments on it 22 23 would be that this is the first one of the proposals on the 24 subject of limiting discovery that to me begins to make 25 sense and one that I could support.
LLDERSON REPORTING COMPANf,INC, I
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1 I an interested in having this kind of a 2 restriction placed.
I would much pref er one that really is I
3 a restriction and then the board could then go beyond that
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4 based upon particular aspects.
My understanding of the var 5 the federal court systen is. that it is a restriction and 0 then they can valve it but it is a fixed number.
7 MR. SHAPAR:
And they could answer additional 8 questions on showing cause.
9 COMMISSIONER AHEARNE:
Right.
I would much prefer
- 10. to have that because I think the value of it is that the 11 people going into the proceeding can see clearly ahead of 12 then here is their limit and they then have to really focus
'13 on the questions they are going to ask.
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14 I, myself, would not support doing away with the 15 compel aspect because I can see the danger of not just to 18 the staff but other parties in the whole proceeding using 17 that'as a way of just providing inadequate ansvers.
18 MR. BICKWITs I think you have to recognize that 19 this not only may not reduce the critical path in time but 20 it may actually increase it.
21 COMMISSIONER AHEARNE:
My whole approach here, and 22 I as speaking only for myself, is that I have been trying to 23 devise. what seems to me to be a logical, defensible hearing 24 process and I have not auch confidence in fine-tuning the 25 days on a schedule chart.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
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ER. BICKWIT Tha t is right.
The proposition that 2 it will save resources is not disputed.
But the proposition
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3 under that stipulation that it will reduce the critical path 4 time I think is subject to a great deal of doubt.
5 COMMISSIONER AHEARNE:
The real reduction in the 6 critical path time will come, I think, when all the board 7 chairmen run tight hearings.
8 CONNISSIONER GILINSKY It also seems like a few 9 dollars spent on funding for service by Federal Express and 10 on stenographers might produce a substantial benefit here.
11 CHAIRMAN HENDRIE:
I will tell you what 12 (laughter.)
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13 3R. BICKVIT:
I can see some costs, too.
14 (Laughter.)
15 CHAIRMAN HENDRIES Why don't you write that 16 letter.
I have got this palsy in my hand and I don't think 17 I could sign it.
18 (Laughter.)
19 COMMISSIONER AHEARNE:
You are the only one who 20 could have enough staf f to be able to get the letter done.
21 (Laughter.)
22 CHAIRMAN HENDRIE:
Well, I assume that if those 23 provisions come to pass, why like the separate parties in a 24 hearing, why you all vill find it necessary to consolidate.
25 (Laughter.)
McER5oN REPOctTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. O.C. 20024 (202) 554 2345
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1 CHAIRHAN HENDRIE:
That way you will have a staff 2 of nine between you which ought to be adequate.
3 (Laughter.)
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4 CHAIRMAN HENDRIE4 I d ecla re tha t there is enough 5 interest and potential value in this to make it worthwh,ile 6 for the ad hoc group on hearings and all that good stuff to 7 gather and decide what kind of proposition is reasonable 8 here and what are the up and down sides of some of the g propositions like deleting the right to complain about the 10 answer.you get and so on, and questions of what the limit 11 might reasonably be and on what basis per party and per 12 contention and per subject, or maybe the board could jush be 13 given a overall total interrogatory limit of, I don 't know,
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14 300 to distribute among the parties and they see fit.
15 HR. SHAPAR On an annual basis.
So many per year.
16 (Laughter.)
17 CHAIRHAN HENDRIE:
So many per board chairman 18 member of the pane per year.
19 HR. SHAPAR Like a bank account.
20 CHAIRMAN HENDRIEs Like a bank account.
Well, you 21 have got another option to be considered.
22 We meet again tomorrow at I believe 2 on the 23 subject.
If the ad hoc group can have something to say for 24 itself at that time, that would be very useful, but it may 25 not have worked out all of these things by any manner or ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
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1 means.
2 I would then like to turn to other parts of the 3, policy statement for. the balance of tomorrow 's meeting.
r-4 Thus warned; I thank you all for this morning's 5 attendance and declare this meeting adjourned.
6 (Whereupon, at 12:08 p.m.,
the mee ting adjourned *. )
7 8
9 10 11 t
12 13 14 15 16 17 18 19 20 21 22 23 24 25 f
ALDERLON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
NUCLEAR REGULATORY COMMISSION This is to certify that the attached proceedings before the b
COMMISSION MEETING in the matter of: Discussion of Revised Licensing Procedures Date of Proceeding:
May 6, 1981 Docket !! umber :
Place of Preceeding:
Wasnington, D.
C.
were held as herein appears, and that this is the original transcript thereof for the file of the Commission.,
Mary Simons Official Reporter (Typed)
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Official porter (Signature) d l
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p TRANSMITTAL TO:
8 Document Control Desk, 016 Phillips h
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May 11, 1981 cj-f IAttachedisaCom meeting document /s/.
These are available for placement in the Document Control System so they will appear on the Public Document Room Accession List.
Any document not stampted original should be checked for possible prior y
entry into the system.
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1.
Transcript of:
Discussion of Revised Licensing h
Procedures, May 6, 1981.
(1 cy) e a.
Memorandum from lloward Shapar to the Commissioners dated May 4, 1981, subject:
Proposed Changes to 10 CFR Part 2 Option
- b" Limiting Nur. Der of Interrogatories.
(1 cy) b.
Memorandum to Commissioner Ahearne from Paul Cottcr dated May 1, 1981,
Subject:
The NRC llearing Process.
(1 cy) c.
Chairman IIendrie's Proposed language changes h
N cs to Section III.A of the Draft Statement of Pelicy on Conduct of Licensing Proceedings.
(1 cy) s e
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Commissioner Gilinsky's proposed language changes to Section III.A of the Draft Statement of g
Policy on Conduct of Licensing Proceedings. (1 cy) t 0
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NUCLEAR REGULATORY COMMISSION L
E WASHINGTON, D. C. 20555
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May 7, 1981 MEMORANDUM FOR:
Commissioner Gilinsky FROM:
Howard K. Shapar, Executive Legal Director
SUBJECT:
LIMITING NUMBER OF INTERROGATORIES It. response to your memorandum of May 5, 1981, I would propose a maximum number of interrogatories that would be equally applicable to all parties to the proceeding.
I think that 50 interrogatories would be reasor:able.
4k 0
I Howard K. Shapar Executive Legal Director cc:
Chairman Hendrie Commissioner Bradford Commissioner Ahearne EDO OGC OPE Chairman, ASLAp Chairman, ASLBP SECY PE _
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III.
SPECIFIC GUIDANCE A. Time
/he Commission expects ticensiny boards to set and adhere to reasonable schedules for proceedings. 4 equests for extension R
of time should generally be in writing and should be received by the Board well before the time specified expires.
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(Chairman Hendrie's proposed language changes to Section III.A of the draft Statement of Policy on Conduct of Licensing Proceedings.)
?001 BRMR
A " standard" schedule which is now the basis for allocating NRC staff effort is attached.
The Commission recognizes that
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proceedings vary in complexity and that in some cases special circumstances may extend this schedule while in others it may be possible to advance the date of the initial decision.
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I (Conmissioner Gilinsky's proposed language changes to Section III.A of the draft Statement of Policy on Conduct of Licensing Proceedings.)
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