ML20011A100
| ML20011A100 | |
| Person / Time | |
|---|---|
| Issue date: | 10/01/1981 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20011A101 | List: |
| References | |
| REF-10CFR9.7 SECY-81-526, NUDOCS 8110070251 | |
| Download: ML20011A100 (38) | |
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UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
4 DISCUSSION AND POSSIBLE VOTE ON REVISED LICENSING PROCEDURES 5
PROPOSED RULE CHANGE TO PART 2 6
7 PUBLIC MEETING 8
I 9
Nuclear Regulatory Commission Room 1130 10 1717 H Street, N.
W.
Washington, D. C.
11 Thursday, October 1,
1981 12 The Commission reconvened in open session on the 13 above en titled matter, having recessed the closed portion, 14 at 11:35 a.m.
15 BEFORE:
16 NUNZIO P ALLADINO, Chairman of the Commission YICTOR GILINSKY, Commissioner 17 PETER BRADFORD, Commissioner JOHN AHEARNE, Commissioner 18 THOMAS ROSERTS, Commissioner 19 ALSO PRESENT:
20 S. CHILK L.
BICKWIT 21 G. CUNNINGHAM B. PARLER 22 A. ROSENTHAL T. COTTER 23 E. REMICK
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CHAIRMAN PALLADINO:
Well, ladies and gentlemen, I
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3 wonder if we could reconvene.
4 This is a continuation'of our Discussion on 5 Revised Licensing Procedures, Proposed Rule Change, Part 2.
6 This is an open meeting now which will address the question 7 of limiting interrogatories.
8 I wonder if General Counsel would introduce the 9 subject 'and review for us some of the pros and cons of 10 limiting interroga tories.
11 HR. BICKWIT:
Also included in the proposed rule 12 that went out for comment was a section on limitation of 13 interrogatories.
14 What was proposed was that parties would not be 15 a bl e to file more than 50 interroga tories per proceeding on 16 another party unless it could establish that three criteria 17 vere met.
18 One, that a response to the extra interrogatories 19 is essen tial f or the party to prepare adequately its case 20 taking into account the number of contentions in the 21 proceeding, the complexity of issues and timing of issuance 22 and number of staff for applicant documents; 23 Two, the information sought is not otherwise 24 reasonably available; and 25 Three, the party was not inprovident in its ALOERSoN AEPCRTING CCMPANY,INC.
400 VIAGINIA AVE S.W., WASMNGTCN,3 C. 2C024 (202) 554 2345
3 1 overall use of the first 50 interrogatories.
2 You have before you on pages 23 through 25 of the
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3 paper we have been using the comments that were received.
4 Or analysis is basically one that has to be broken down into 5 that of the chairman of the Appeal Board, OELD and OGC on 6 the one hand, and the Licensing Board Panel, on the other.
7 The first three named offices believe that on 8 balance it makes sense to adopt something similar to the 9 proposed rule at least on a trial basis.
10 We would recommend modifying the rule as proposed 11 so that if any party consents to receiving more than 50 12 interrogatories in a proceeding that that of course vould 13 govern.
14 The other modification we would suggest is the one 15 I mentioned bef ore that you acknowledge that this is being 16 tried on a pilot basis and tha t the Commission expects a 17 evaluation of the experience with this af ter six months from 18 the time it takes effect.
19 Our feeling is that we a re very unsure on the 20 basis of the comments and our analysis of the cases exactly 21 how this will work and therefor f eel it has to be looked at 22 as a trial.
23 The three offices do not share the view of ' the 24 Licensing Board Panel tha t it would be coun terproductive to 25 put this into effect on a trial basis.
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I know Tony's view is that we are going to wind up 2 delaying the proceedings if ve even institute this for a 3 limited period of time.
I personally don't agree with that 4 view, but I think I will let Tony make his points at this 5 point.
6 COMMISSIONER BRADFORDs Let met ask just an 7 historical question, Tony.
I thought this proposal 8 originally came up as part of this working group we had on 9 licensing problems last spring.
Len referred to it as being 10 yo u r vie w.
I g a th e red, instead, this was much more what had 11 happened when this proposal was tried out on the Board l
12 members as a whole.
13 MR. COTTERa I am not sure I understand.
i 14 COMMISSIONER BRADFORD:
One,.was the l
15 50-interrogatory proposal something that you had objected to i
16 whe n it. was first floating around last spring?
17 MR. COTTER:
Yes, I objected to it.
18 COHNISSIONER BRADFORD:
Then, two, are the views 19 of this document your views or are they in fact a reflection l
20 of the reaction that you got from across your membership?
l 21 MR. COTTER :
It reflects some of my membership, 22 and I am not sure I can tell you how much.
On any given day 23 half of them were out in hearings somewhere.
I would say a 24 many consensus I guess.
25 MR. REMICK:
I think what Mr. Bradford was i
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I-1 referring to at the panel meeting was a questionnaire was 2 put out when this was proposed.
I don't know what the 3 results of that questionnaire were, but the panel was polled 4 at that time. I think that is what he is referring to.
5 MR. COTTER:
I generally poll the entire panel on 6 any issues like this and do it in writing.
I would say this 7 is the proposal, please give me your response.
I would have 8 to go back and check to see how many written responses I got 9 and how many verbal responses.
10 COMMISSIONER BRADFORD:
I wasn't really nfter a 11 nose count.
My impression in reading your memo of September l
12 8 th was that it was a summary of the panel consenr as rather 1S than your personal views on the matter.
l 14 MR. COTTER:
I think that it: correct.
As 1 recall l
l 15 how I developed this, I think I gave one aspect o'f it to the 16 Vice Chairman - Technical and asked h. m to conduct a pool 17 and I think he was the one who generated some of this data 18 on you would get.1.6 interrogatories per contention and that 19 sort of thing and other bits and pieces of it came from j
20 other parts of it.
21 CHAIRMAN PAL 1ADINO:
Was consideration given to so 22 many interrogatories per contention rather than some 23 arbitrary limit irrespective of the number of contentions?
24 COMMISSIONER BRADFORD:
We did discuss before 25 putting this out for comment last spring, and I must say I ALDERSCN REPCRTING COMPANY,INC, 400 VIAGINIA AVE., S.W WASHINGTCN. D.C. 20024 (202) 554 2345
6 1 don't remember exactly the thrust of the discussion.
I 2 think the conclusion was that tha t was not a useful approach 3 to limiting the interrogatories because ---
4 MR. BICKWIT:
Or was it limiting contentions?
5 (Laughter.)
6 CHAIRMAN PALLADINO Af ter contentions riad been 7 remitted, did they make valid conten tions?
8 MR. BICKWIT:
The point I was making was one of 9 the negatives associated with that was that it would provide to a strong incentive to get as many contentions into the case 11 as possible.
12 CHAIRMAN PALLADINO:
But these vould be admitted 13 con ten tions ?
14 MR. BICKWIT:
Right.
15 CHAIRMAN PAlLADINO:
If you admit th' all, then I 18 guess you would have to suffer all the questions.
17 COMMISSIONER BRADFORD:
What happens then if you 18 get into a fair amount of gamesmanship over whether a 19 particular vorthwhile contention can be split into two or 20 three parts, all of which would get admitted and all of 21 which would carry a number of interrogatories, and then 22 the re will be all sorts of motions for consolidation which 23 normally would be fairly easy and quick to act upon but 24 which' will carry real significance if they start dividing 25 contentions down and the Boards are going to find themselves ALCERSCN REPCRTiNG CCMP ANY. iNC.
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1 ruling on a whole separate set of actions while the 2 proceeding was going on.
3 CHAIRMAN PALLADINO:
Maybe we had better let Tony 4 go ahead.
5 Did you have a comment you wanted to make, Tom?
l 6
COMMISSIONER ROBERTS:
(Nodding No.)
7 CHAIRMAN PALLADINO:
I gather you were going to 8 commant on 9
MR. COTTER:
I would just be reiterating what I 10 have said in print.
11 CHAIRMAN PALLADINO:
Well, why don't you summarize 12 i t.
Much of what I read on interrogatories was a few 13 meetings ago.
14 MR. COTTER:
The first point.to me is that 50 is 15 so arbitrarily low as to guarantee that there will be a l
16 subsequent series of rounds of motions practiced whereby 17 those people who need more than 50 interrogatories will go 18 ahead and file them and the party against whom they file l
19 them will object to them.
Under this proposal the Board 20 will then have to look at every single question that is 21 a sk ed to find out whether it is necessary and sufficient and 22 presumably then we will have to issue some kind of a written 23 ruling.
So the potential f or consuming 3 cad time I think is 24 enormous.
25 Remember that the system is supposed to be a ALCERSCN AEPCRTING COMPANY,lNC, 400 VIAGIN A AVE., S.W WASHINGTON, D.C. 20C24 (202) 554 2345
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s 1 voluntary system which takes place principally with notice 2.to the Board but outside of the Board's cognizance.
- Now, 3 you are going to shut the Board into the process and make it 4 even more formal by requiring more pleadings and that sort 5 of thing.
6 Maybe it would be useful to look at a set of 7 interogatories and get some feel for what it is you are 8 talking about.
Question one might be who is your witness 9 and what is his name and address.
Under this principle I to suppose the identity of the witness and his addresss would 11 be two interrogatories, I don 't know, and you haven't even 12 gotten to the point where ;au are asking anything 13 substantive.
14 In interrogatory practice a lot of what you do is 15 establish a factual context against which your substantive 16 questions a re asked.
17 CHAIRMAN PALLADINO:
Tony, would some other 18 arbitrary limit be more acceptable, like a hundred?
19 MR. COTTEH4 No.
For example, in some of the 20 post-TEI proceedings where the license has been held up 21 because of TMI issues only and the rest of the proceeding 22 has already been taken care of you might end up with one or 23 two contentions in 'the whole thing.
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24 CHAIRMAN PALlADINO:
! vas just trying to find out 25 whether you vere proposing 50 or whether you felt that was ALCERSCN REPCRTING CCMPANY,INC, S VtR@tNIA AVUL F1.Wm WMHIN@T@N, bln. PT@#6 N#@ PENTt'M
9 1 just too lov.
Were you proposing the concept of limiting 2 the number of interrogatories in principle or where you 3 looking at the specific number?
4 HR. COTTER:
I have two positions or responses to i
5 that.
The specific number to me is absurd.
It is 6 seaningless.
It will generate work.
The principle of 7 limiting interroga tories to some number I don't react as 8 violently to, particularly if the number were something like 9 100 for contentions or some thing.
I think you might be able 10 to live with something like that.
11 But basically and ultimately the purpose of 12 discovery and interrogatories, as you said, is to make sure 13 that all sides have all the information related to the case 14 in the o ther party 's possession.
Then when that is 15 accomplished, to the extent that discovery is then used as a 16 device f or burdening the other party, then it is the 17 discretionary responsibility of the Boards to step in and 18 sto p that and we presently have a device for them to do that 19 in the rules.
The party can object to a particular set of 20 interrogatories or a particular interrogatory as either 21 burdensome or unnecessary or what-have-you.
22 COMMISSIONER AHEARNEs You had made a proposal, 23 n o t a very counterproposal, but a proposal that insthad of 24 limiting by specific number that instead that we adopt at 25 least a version of a proposed f ederal civil rule.
ALOERSCN AEPCATING COMPANY :NC, C@ VIR$1NIA A$ @.W.g WASHINGTCN, 0.@. 28564 (202) 554 2345
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MR. COTTER:
Tes.
2 CHAIRMAN PALLADINO:
Which one was that?
Was tha t 3 where they agree as to the number they are going to answer?
4 MR. CUTTER:
It is essentially a direction 5 te-emphasizing to the judicial or presiding officer to 6 control the situation.
The federal courts clearly have 7 generated this proposal as the most acceptable because they 8 have run into problems with people abusing discovery and 9 abusing the interrogatory process and I think to a much 10 greater extent than ve have.
11 CHAIRMAN PALLADINO:
Is that on a particular page 12 of your write-up ?
13 MR. COTTER:
The proposal itself if attached to 14 the Gene ral Counsel's memo.
15 COMMISSIONER AHEARNE:
You did not develop 16 specific language; isn't that correct?
17 3R. COTTER:
No.
18 COMMISSIONER AHEARNE:
What you had suggested I 19 had thought was to tak e the fede ral proposal which is 20 attached to General Ccunsel's memo, and then ycu also 21 indicated that specific authority could be added to empower 22 Boards to place specific limits on the number of 23 interrogatories on any contention following the last'SSER.
24 MR. COTTER:
Yes.
25 COMMISSIONER AHEA3NE:
So that would give the ALOERSCN REPCRT NG COMPANY,INC, M fvQatKd;i?forn D1& SeiGM %9& Wh%wl
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11 1 Board tne ability to settle in the judgment of the Board.
2 MR. BICKWIT There is a summa y of your proposal 3 on page 29, the 1 st two paragraphs of page 29 of our memo.
4 MR. COTTER:
I might comment that the proposal is 5 based on a much broader and more extensive study that was 6 conducted by the Federal Rules Committee.
7 CHAIBMAN PALLADINO:
Don't the Boards right nov 8 have the opportunity or the authority to limit 9 interrogatories?
10 MR. COTTER:
Only if it is affirmatively requested 11 and grounds are established tha t some number of 12 interrogatories is burdensome.
13 CHAIRMAN PALLADINO:
Now how would this 14 administrative rule change tha t ?
It would place the 15 responsibility for discovery not only,on the Boards bu+ on 16 the parties as well and would provide sanctions against the 17 party who did not in good faith abide by their provisions.
18 Well, that is rather general.
I think the Boards have that 19 capability now, don't they, or am I wrong.
20 MR. COTTER:
Well, they don't have i t as an 21 affirmative authority.
They have it as a responsive 22 authority, if you will.
23 COMMISSIONER BRADFORD:
Tony, what is it that 24 prevents a Board from starging in on its own?
Does the 25 rules say that you have to be acting on a J.ation?
ALDERSCN REPC ATING CCMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON O.C. 20024 CO2) 554 2345
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MR. BICKWIT I think the rules give authority to i
1 2 get discovery on all relevant matters unless a party meets 3 the riteria for a protective order.
Those criteria deal 4 wit excessive burden and annoyance.
So that the Board can 5 say to a party of a major case that if you go beyond a set 6 number of interrogatories you thereby create excessive 7 burden and annoyance and tha t is the limit to the 8 interrogatories that you can put, except that you need to 9 est ablis h that.
10 COMMISSIONER BRADFORD:
Excep't that it is pretty 11 hard to establish that I guess without a party objecting.
12 MR. 3ICKWIT:
Tha t is righ t.
It' COMMISSIONER BR ADFORD:
But, on the other hand, 14 why should the Boards limit interrogatories if the parties 15 d o n ' t object?
16 CHAIRMAN PALIADINO:
Why should they?
17 COMMISSIONER BRADFORD:
Why should they unless a 18 party objects.
19 MR. REMICK:
The objection is on a very limited 20 basis, a permitted objection, and that kind of objection 21 generally does not succeed and it is time consuming.
It 22 takes up time while the Board is examining.
23 It seems to me in this area that a given is that 24 there is a great deal of unnecessary discovery.
One 25 recognires that a great deal of the information pertaining ALDERSON REPORTING COMPANY,INC, 3F U R3-R W
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93 1 to the issues in the case is available through the 2 applican t's various filings and from the staff's various 3 documents.
I have seen a lot of this discovery which, it 4 seems to me, not only placed unwarranted burden on staff 5 resources by discovery against the staff, but in addition 6 really couldn' t be justified.
7 Reasonable minds might differ as to whether it 8 would meet or would not meet the present standard of 9 oppressiveness or burdensomeness and it migh t have been 10 close to the line, but I think most objective observers 11 would have had to agree that it wasn't worth a candle, and 12 by the candle I mean the amount of time and effort that had 13 to go into these responses.
14 MR. COTTER So far as I know, the staff has never 15 objected or never used the authority ---
t 16 MR. CUNNINGHAM:
No, I don ' t think that is correct 17 at all.
I think we are talking about two different things.
18 There is a provision in the rules that the staff is not 19 subject to discovery except by direction of the Board.
20 His to ri- 'ly the staff has not availed itself of that 21 protectAun because it knows the Board will say yes, the 22 inf ormation is necessary and go ahead and answer.
23 In fact, recently when we have started to invoke 24 that we have been subject to criticism by the Boards who say 25 tha t you are wasting our time making us rule on that.
So ALCERSCN AEPC AT!NG COMPANY, INC,
14 1 vhy don't you just answer the questions.
2 (Laughter.)
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MR. COTTER:
Well, it is my understanding tha t it 4 is just sort of a standard policy now that you refuse to 5 answer any interrogatories, is that correct, under that rule?
6 CHAIRMAN PALLADINO:
You could refuse?
7 HR. CUNNINGHAM:
I don't know what the standard 8 policy is, but th e rule is being invoked considerably more 9 frequently.
10 MR. COTTER:
The staff is refusing to answer 11 interrogatories under that rule and saying in effect to the 12 a.plicant you have got to go to the Board and get them to 13 tell us to answer them.
14 CHAIRMAN PALLADINO:
Can I just ask one little 15 question.
If there is an interrogatory to which the staff 16 answer is well, look in the SAR and it is in there.
Is that 17 a s ufficient response a t the present time?
18 MR. CUNNINGHAM:
It vould depend on the nature of 19 the question.
One of the problems that the staf f finds in 20 answering discovery is that the question vill be asked what 21 is the basis for the conclusion at such and such a page of 22 the SER.
23 MR. ROSENTHAL:
That ought to really be out in any 24 event.
I mean, it is one thing to seek specific factual 1
25 inf ormation to an interroga tory and it is another thing, in ALOERSCN REPC ' TING COMP ANY,INC, CM) VlMWJo SML fW M%3Xi2fMTBRL DM AR5R(LUVAU4tlf6E9
15 1 my judgment at least, to be probing the staff's thought 2 processes througr interrogatories.
I think that is 3 impermissible and that is actually what most of this is 4 about as a practical matter.
A lot of the specific factual 5 information is available in the various documents that are 6 issued by the staff or by the applicant.
What is being 7 sought by and large is, as Guy-indicates, well, how did you 8 f ellows get to that conclusion?
9 CHAIRMAN PALLADINO:
Do you feel it is improper to to ask the ra tionale ?
11 COMMISSIONER BR ADFORD:
Why is that improper?
12 MR. COTTER:
I don't understand tha t at all.
The 13 u/ t : 7 ate evidence is that expert opinion.
14 MR. ROSENTHAL:
I think that is an improper use of 15 interrogatories.
16 COMMISSIONER GILINSKI:
Would it be improper in a 17 deposition ?
18 HR. ROSENTHAL:
I think that is basically the kind 19 of thing that if this issue goes to hearing, the sponsors of 20 t h a t d e'.- tm e n t are there and they can be examined.
I am not 21 saying that in the best of all possibly worlds where you had 22 a staff of several thousand members available to discharge 23 a ll o f t hes e functions and you could set aside a group of 24 these people who would be professional thought process 25 revealers ---
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(laughter.)
2 MR. ROSENTH5La I just myself think that given the 3 real world that conf ronts us that that is an improvident 4 utilization of staf f time.
I hate to be in the position of 5 agreeing with Howard Shapar on anything, and this may be the 6 first ti m e.
7 (Laughter.)
8 COMMISSIONER BRADFOPD:
Alan, why is it going to 9 take less time for the staf f to respond to that question by 10 sending a witness to Phoenix or some such place to face it 11 on cross-examination especially if it may well be the kind 12 of issue that is going to come up more than once?
13 ER. ROSENTHAL:
Well, because for one thing, if 14 you have seen some of these interrogatories what you have 15 got is a very substantial number of unfocused questions 16 which they have to sit there and respond to in writing.
17 If you have got a Licensing Board chairman who is 18 on the job a lot of that kind of questioning tha t goes on in 19 this interrogatory form will not be permitted in a hearing.
20 Tha t is one answer I can give you.
21 COMMISSIONER BRADFORD:
Well, it won't be 22 permitted perhaps in the form of how did you arrive at this 23 conclusion, but what will be permitted is a series of l
24 questions lasting half a day that get to basically the same 25 result.
ALOEASCN REPCRTING OoMPANY,iNC, i
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MR. ROSENTHAL:
I mean, this is something on which 2 I think reasonable minds will differ.
My perception of it 3 is again formed f rom tracking some of the discovery practice 4 in a number of cases.
I am not a precise authority on all 5 the case law that has evolved in the judicial arena with 6 respect to interrogatories, but my impression is that 7 basically the purpose of interroga tories is to elicit 8 f actual inf ormation.
I don't think that there is any legal 9 constraint upon putting out of bounds the underlying thought 10 pro cesses.
11 The staff represents that this is an enormous 12 drain on its time and I must say tha t ha vin g seen some of 13 the products of these interrogatories back and forth that I 14 can readily believe it.
15 Now, my thought about this endorsing, as len 16 indicated, the basic proposal to try it out, is I have no 17 way of knowing at this point, and I don't think any of us 18 has any way of knowing, whether in fact this is going to 19 speed up the process or delay it or whether it is going to 20 put unreasonable restrictions on the ability of intervenors 21 to get information or whether it won't.
22 I think in this area the proof is necessa rily 23 going to be in the pudding and I would put.: into effect on 24 a trial basis and see what happens.
25 I just say I as persuaded in this area, unlike the ALCERSCN AEPoRTING COMPANY,;NC.
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l 18 1 contentions area, with all due respect to Commissioner 2 Ahearne, that something has got to be done, if nothing else 3 on a trial basis, to'see if we can't bring under control 4 wha t seems to me a p ro cess tha t has run amuck.
5 CHAIRMAN PALLADINO:
AL3n, I find it a little hard 6 say that it is inappropriate to ask the rationale or how you 7 got to that conclusion, because when you talk about legal 8 arguments the rationale is the most important part and the 9 conclusion sometimes seems almost unimportant.
10 (Laughter.)
11 CHAIRMAN PALLADINO:
No, seriously, if you got to 12 the right answer f or the wrong reason in the legal context 13 you would f a ult the decision.
14 MR. ROSENTHAL:
That is quite right.
15 CHAIRMAN PALLADIN0s Now why would it be wrong for 16 an interveno r to come in and sa y, well, I would like te know 17 how you got there, and it may be a perfectly reasonable 18 question and a perf ectly reasonable answer.
19 MR. ROSENTHAL Let me say two things to that.
20 First of all-in tecms of the ultimate decision of 21 the issue, there is no question th a t the reasoning is an 22 important aspect of it and, indeec, I think that the Board 23 would be remiss, for example, in allowing an expert witness 24 to merely state some conclusions without giving the reasons 25 f or them.
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I also think that there is nothing wrong on the 2 interrogatory level of us saying, if this is the conclusion 3 tha t you have reached, what facts do you base that 4 conclusion on ?
I don't regard that as being thought 5 processes.
6 Many of these interrogato ries, and perhaps Guy or 7 Bill speaking for the staff here this morning can elaborate 8 upon it, but many of the in terroga tories that I have seen 9 have gone f ar beyond that.
What they are really trying to 10 do is to test through the means of an interrogatory an 11 entire philosophy, methodology and the rest of it rather 12 than simply getting at 5. hat is the underlying facts upon 13 which that thesis rests.
14 Now, again, if we were talking about a world in 15 which there were a limited number of people available to 16 add ress interrogatories, fine.
I mean, I am a great 17 believer in having as uuch out on the table in advance as 18 possible.
That is the theoretical objective of us all.
But 10 the staf f tells us, and I think quite correctly, that it has 20 g o t extraordinarily severo manpower problems and the lines 21 have to be drawn somewhere, and I as just telling you tt t 22 is where I would draw the line.
i 23 I think that the 50 interrogatory limitation might 24 have the effect of concentrating these inquiries on the 25 basic f acts, just what facts did the staff enploy in ALOERSCN REPCRTING COMPANY, ;NC, t -
20 1 reaching these conclusions and avoid two th in gs :
one, sone 2 of these thought processes inquiries; and, two, requiring 3 the staff to come up with factual information on matters 4 which there are other readily available sources to obtain 5 that information.
6 I mean right now what they just use the staff for 7 in many instances is a substitute for any kind of research 8 on '.eir own.
They just go to the staff and use then for 9 such as a fishing expedition and ask the staff to put it all 10 bef ore them.
11 COMMISSIONER BRADFORD:
But, Alan, even conceding 12 that there is a problem here, it seems to me that in the 13 con tentions area ve are talking about an approach that, 14 vha tever its underlying basis, has in effect managed things 15 better by looking at them according to a set of standards.
16 What is suggested here is analogous to saying each 17 party can have three contentions.
! must say there is a lot 18 tha t appeals to me in Tony's proposition which is what 19 really should be ha ppening here is not an arbitrary 20 numerical limit but a requirement on the Boards to exercise 21 a certain amount of management in this area as well 22 regardless of the numbers.
23 MR. ROSENTHAL:
They ha.e to have some kind of 24 standard.
As Hovard Shapar stresses, there are a number of 25 United States District Courts, to be sure most of them in ALCERSON AEPCRT;NG CCMP ANY. INC, 400 vinGtNI A MC $W W A$WNQTQN Q Q ?^Q74 r;^7) a g4.y 4 c
E 21 1 rural areas, but there are a couple in metropolitan areas, 2 in San Diego there is one, for example, which have employed 3 limitations.
So this is not unheard of and some of those 4 districts have go'cen cases which have been quite complex, 5 although maybe not quite as complex as some of ours.
6 MR. COTTER:
I don't think that limited 7 interrogatories are applicable to complex proceedings at 8 all.
Limitations have never been applied to complex 9 proceedings.
10 MR. ROSENTHAL4 As I understand the rules, they 11 make not exceptions, those districts that have those rules 12 tha t they apply now.
13 MR. COTTER:
That is not how I heard it down at 14 the ABA conference a couple of weeks ago.
15 MR. BOSENTHAL:
The rules on their face don't make 16 the exception.
How they are applied, I dot ' t know.
3 17 Again, I am not suggesting that this is, nor is 3 the General Counsel's Office nor is the ELD suggesting that 19 this is necessarily the answer.
I think the suggestion on 20 the part of those two offices and myself is simply that it 21 is time to address this problem and the problem really does 22 exist and this is a way of doing it and let's try it out and 23 see what ha ppens.
I frankly see nothing wrong with that.
24 COMMISSIONEh BRADFORD:
First of all, the staff 25 now has begun to contest interroga to ries and we don't have ALCERSCN AEPCRTING CCMP ANY, INC, Mo SF4UEt'e-74Ya
22 l
1 much experience yet with what happens when the Boards have 2 to rule on those types of issues.
For all we know the 3 problem is going to diminish substantially in response to 4 the actions the Commission took last spring.
5 CHAIRMAN PALLADINO:
What was done last spring?
6 COMMISSIONER BRADFORD:
Well, we just put out a 7 policy statement which, among other things, reminded the 8 Boards that they did.have the authority to manage the 9 interrogatory process and I gather the staff has taken some 10 h ea rt from that.
Whether it has begun to object to all 11 interrogatories or to some seems to be ---
12 CHAIRMAN PALLADIND:
Would it be possible to 13 supplement that with qualitative criteria for admitting or 14 not admitting interrogatories such as you said, those that
, probe the thought processes?
I am not suggesting that that 16 b e o r.e.
I am just saying such as that.
17 MR. CUNNINGHAM:
In fact that particular proposal 18 vas recommended in the ELD attachment to the SECY paper we 19 h a v e.
We have specific proposal language which would 20 prohibit the probing of thcught processes.
It appears at 21 page 7 of that ELD attachment.
22 CHAIRMAN PALLADINO:
A ttachmen t 1?
23 MR. CUNNINGHAM:
It is Appendix 1 to the staff 1
24 paper.
1 25 MR. BICKWIT:
It is worded as "In addition to the ALOEPSON AEPCRT!NG CCMP ANY,INC, "I
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1 limita tion on inte rrogatories," those 50.
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HR. CUNNINGHAM:
That is right.
We clear support 3 the limitation on interrogatories and propose tha t the 4 Commission consider the addition.
5 CJEMISSIONER BRADFORD:
The Boards, on the other 6 hand, propose just to use qualitative criteria in their memo 7 of September luth.
8 CHAIRMAN PALLADINO:
What?
9 COMMISSI]NER BR ADFORD:
The Boards in their memo 10 of September 14th proposed the use of qualitative criteria 11 without the numerical limitation.
12 CHAIRMAN PALLADINO:
Without the number.
13 COMMISSIONER AHEARNE:
I must admit that I found 14 this one in which we had the intervenors almost uniformly 15 opposed,' but in addition a significant number of the 16 industry participants also opposed, as well as the Board 17 opposed which caused me to feel that if you have most of the 18 parties that are participants and normally people who are on 19 dif f eren t sides all ag reeing that this doesn't look like it 20 is that good an idea, and a real cynic would say this would 21 reduce the amount of business for lawyers so that they are 22 opposed to it more because they are lawyers, but putting 23 tha t cyn cism ---
24 CHAIRMAN PALLADINO:
The lawyers are on all sides.
25 (Laughter.)
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COMMISSIONER AHEARNE:
--- but putting that 2 cynicism aside it sounded like it might not be a good idea.
3 Then I was attracted to Tony's proposal that he 4 did make that seemed to go in a step of relorcing the 5 concern that '.he Commission had in explicitly tng the 6 Boards the authority to limit interrogatories bu eaving 7 them to the Boards ' judgment.
So that is where I guess at 8 the moment I would come out in endorsing Tony's proposal.
9 CHAIRMAN PALlADINO:
I was leaning a little in 10 that direction and also puts some qualitative criteria on 11 the classes of questions that should not be allowed as 12 guidance.
13 COMMISSIONER BRADFORD:
I wo uld lik e to see those 14 criteria written out.
I am a little uneasy a?;out trying to 15 split, and maybe it can be done, but about trying to clearly 16 split off different categories of questions about the 17 process cf reaching a conclusion.
18 MR. BICKWIT:
My own feeling is tha t those are 19 pro bably th e most valuable questions that can be asked of 20 the staf f in discovery.
21 (laughter.)
22 MR. BICKWITs (Inaudible) 23 (laughter.)
24 MR. BICKWITs Well, in answer to John I should say 25 that the primary motivation f or developing this proposal was ALCERSCN AEPCRTING COMPANY,iNC, krityK#fw\\>%3 JayLMr5&nww%v&-
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i 25 1 to save staff resources.
The staff is one party that has 1
2 supported this particular proposal.
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3 COMMISSIONER AHEARNE.
No, I recognire that.
4 MR. COTTER I was going to say in addition to the l
5 question of resources the difference in approach with a
- 6 numerical limitation it is self-executing.
If you get to l
7 the more subject approach requiring the involvement of the 8 Board I think you build in time.
9 CHAIRMAN PALLADINO:
But you still can petition to 10 go above 50 or whatever number you select.
l 11 COMMISSIONES BRADFORD:
One of my misgivings with l
l 12 the numercial approach is that I doubt it will be l
13 self-executing really.
Instead of asking please explain 14 your reasoning for this proposing in the SER and repeating 15 tha t nine or ten times, you get an interro atory that says 16 please document your reasoning f or erseything on pages 5 17 through 20 and that vill be one question.
Then you will L
18 have to come back to the Board and say, wait a minute, there 19 are 43 separate topics covered in there and that is a3 20 interrogatories and there will be a dandy a rgument about 21 whether it is one inte rroga tory or 43.
22 CHAIRMAN PALLADINO:
And if you have an A, B, C in 23 a question, does this count?
Are they part of one 24 question?
I was going to ask that before.
25 MR. REMICK:
Many times Boards will put in A, B, C ALOERSoN REPORT;NG CCMP ANY. INC, u
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26 1 to try to simplify or consolidate and so forth, and if there 2 is a limit I am not sure they will succeed.
3 CHAIEMAN PALLADINO:
But the more A, 3, C's they 4 get in there the more they can pack into 50 questions if you 5 allow A, B,
C to be part of one question.
I don ' t know how 6 the Boards rule or what was intended on this.
7 If you have a limit of 50 questions would you then 8 limit the number of subparts they may have?
9 MR. COTTER 4 Oh, yes, I think tha t is in here.
10 There are no subparts.
11 MR. BICKWIT4 "For purposes of this section each 12 subpart of a question is considered as an interrogatory."
13 That is what we said in the proposed rule.
14 COMMIS SIO N ER BR ADFORD :
But, you know, all that 15 does is tax one 's knowledge of grammar to cram all the 16 subparts into a sing' 7tence.
17 MR. BICKWIT4 I think there was always concern 18 tha t this was quite arbitrary and would lead to some 19 conf usion.
I think it is a more powerful limitation on 20 interrogatories than in the approach that has been suggested.
21 MR. CGTTER:
I might add that the Boards are 22 sym pathe tic to the staff's position when there is a load of 23 these questions that come in.
24 CHAIRMAN PALLADINO:
Where does the staff think 25 tha t the number of questions gets excessive cr. them, 300?
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1 MR. CUNNINGHAMs I don't know that you can put a 2 number on it in a particula r case because i' depends on how 3 skillfully their drafter is.
4 MR. COTTER:
It also may depend on what area it is 5 in and whether the staff has stayed in that area or not.
6 That could be a major problem.
7 CHAIRMAN PALLADINO:
I wasn't trying to fix it 8 precisely.
I think if somehow intuitively somebody asked 9 the staff a thousand questions I would almost on the face of 10 it say, gee, that sounds awf ully excessive.
11 Is it a hundred?
12 MR. COTTER:
I guess if you were to ask the staff 13 the truthf ul a nswe r is ---
14 (Laughter.)
15 COMMISSIONES AHEARNE:
It is a very steep curve.
16 (Laughter.)
17 MR. CUNNINGHAM:
The staff is of the opinion that 18 given the tremendous amount of materials that it discorges 19 in the documentation, the SER and the environmental reports 20 and so f or t h, that its position is well known to everybody 21 a nd there should be very little, if any, need for discovery.
22
.MR.
B ICK'4IT :
They discorge just about everything 23 b ut their thought processes which is what the interve'nors 24 are inte rested in.
25 (laughter.)
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MR. CUNNINGHAM:
I think even there the question 2 is in how much detail have these thought processes been 7.;
3 discorged.
4 CHAIRMAN PA1LADINO:
Once you start to ask that 5 then the staff ought to be able to answer that or the 6 applicant.
Now, if we go along with the fact that the 7 applicant has to set forth all the facts he is going to use 8 then can 't there be questions such as how do you feel that 9 is pertient and then you could ask as many questions of the 10 intervenor as the intervenor can answer of the staf f.
I 11 don ' t know if that gets you anywhere when you are all done.
12 MR. COTTER:
This isn't a one-way street either.
13 The staf f has occasion to serve interrogatories on the 14 intervenors.
15 COMMISSIONER AHEARNE:
Yes, but as I have seen in 16 a couple of Boards recently that has not always proven to 17 elicit any response.
18 CHAIRMAN PAL 1ADINO:
Well, I don't know if we are 19 going to settle this.
20 COMMISSIONER AHEARNE:
Could I ask Len a question 7 21 CHAIRMAN PALLADINO:
Yes.
22 COMMISSIONER AREARNE:
Len, I gather than Alan and 23 the staf f strongly believes tha t matters of opinion, meccal 24 process and other non-factual information are not 25 appropriate for the interrogatories, but you believe they d
1 l
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29 1 are appropriate?
2-MR. BICKWIT.
Yes.
3 COMMISSIONER AHEARNE:
Could you explain why you f
4 believe that is appropriate?
5 MB. BICKWIT:
I think the purpose of discovery is 6 to prevent surprise and to prepare people f or the hearing in 7 a way that may trim down the hearing if we are fortunate.
8 I think what the intervenors are really interested 9 in knowing is how the staff did arrive at a given 10 conclusion.
Then once they know it, they may regard tha t 11 reasoning as acceptable and they drop the contention.
12 COMMISSIONER AHEARNE4 Now when you say how they 13 a rrived at it, do you mean for a technical question to 14 demonstrate the calculations they went,through, what were 15 the original f acts which they started from, what were the 16 calculational methods, for example, what codes, or what 17 sheets of analysis?
18 MR. BICKVIT:
I am a little out of my element, but 19 I think that is what I mean, yes.
20 MR. REMICK4 I would be worried if through mental 21 process you mean excluding explanation of assumptions and 22 basic f acts and so forth and how you got from the sitation 23 that you are faced with to the conclusion you might have in 24 the SER.
25 It seems to me tha t some kind of a, and I don't 4
d ALCERSCN AEPCATING COMPANY, INC,
30 1 know if you call that a mental process or not, but I would 2 he vorried if you excluded the -- (Inaudible).
3 CHAIEMAN PALLADINO:
Especially assumptions.
4 COMMISSIONER AHEARNE:
I haven't read these 5 interrogatories so I am not sure what they ver,e striking 6 for.
Alan, is th a t what they were looking for, the 7 calculations to get there or were they asking for more than 8 that?
9 CHAIRMAN PALLADINO:
Or the assumptions.
10 ER. ROSENTHAL:
Well, it obviously va ries f rom 11 interrogatory to interrogatory and they have covered a lot 12 of te rri to r y.
But many of the interroga tories tha t I have 13 seen have really said, all right, staff, you start at square 14 one and we vant to know how you approached this problem and 15 what your philosophical, if I may use that term as applied 16 to scientific questions, what your philosophical approach 17 was and what your entire methodology was right down to the 18 very end.
19 In other words, they wanted in effect the member 20 of the staf f who had been assigned to this project from the 21 beginning. He said, okay, analyre it beginning to end and 22 com e o u t with the conclusions.
He wanted that individual to 23 s ta rt with his first step one when he first got the 24 assignment and addressed it and follow it though every step 25 to the ultimate conclusion which the individual, if he did a ALDERSoN AEPCRTING CCMP ANY. INC, tvaSM&DL%66VC 1
- o-39 1 full dob on it, it might be a full book.
There are books 2 written on the analytic process th a t leads one to a 3 particular conclusion.
4 CHAIRMAN PALLADINO:
When in your thinking did you 5 decide that this assumption was improper and then you J modified it.
7 MR. ROSENTHAL4 They would trace righ t down the 8 line.
Tcu know, I have to agree with Len that in a perfect 9 world you should have all of the f acts on the sable.
So I 10 think if the Commission is sensitive to the matter of staf f 11 resources at all that this is something tha t hits us, too, 12 because a number of the cases that we are trying to push 13 through and have tried to push through over recent years 14 there have been all kinds of delays in getting hard staff 15 evidence and revelations of thought processes because the 16 staff doesn ' t have the resources to address it.
17 Now, I think something has to give and I think 18 this is it.
19 COMMISSIONER AHEARNE:
I am uneasy because I would 20 expect if you ended up doing a technical calculation you 21 have your work sheets or whatever assisting you to do your 22 work and that ought to be producible.
If it isn't, that 23 would be of some concern if you had reached a significant 24 conclusion without being able to do that.
But if you have 25 done th a t, that should not be that much difficulty.
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1 MR. CUNNINGHAM:
Well, I would think that would be 2 reachuble as a document.
3 MR. ROSENTHAL:
But the next question though is 4 why didn 't you do something else in the thought processes.
5 Once you begin producing sheets, then they say, well, now, 6 did you consider this other approach and, if not, why not.
7 CHAIRMAN PALLADINO:
If you think you are going to 8 get a lot out of the calculation book, I think you are being 9 a little misled.
There are times when you have the 10 calculations very nicely worked out and there are times when 11 you said, oh, well, no, valt a minute, we have got dif f eren t 12 a ssumptions.
You go back and you say, oh, nov they ha70 13 changed the dimensions f r.
52 inches to 63, so you cross 14 that out and you go down here and you have iterations on 15 these.
While you do try to keep a logical calculation book, 16 not everything is as straightforward because you might have 17 a date up here, 12/25/81 and then you may have to come back 18 in '82 and make a revision on that calculation.
19 I am just saying it is not as definitive as you 20 v an t and it is not alears clear, although I try to do it, 21 what the assumptions are end tha t is very important.
So you 22 might end up with a whole stack of stuff that someone would 23 have to take quite a bit of time to go out and develop a 24 chronology.
Now if you could satisf y their question by 25 giving them a Xerox, that would be one thing, but I don't ALDERSCN AEPCRT:NG COMP ANY, tNC.
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33 1 know that you could do that.
2 COMMISSIONER AHEARNE:
On this one I guess I have 3 more misgivings.
4 CHAIRMAN PALLADIN0s I don ' t know where to go on 5 this one either.
I wasn't trying to take exception as to 6 where we ought to go.
7 MR. COTTER:
The difficulty that is really I think 8 underlying this question is that as a rule in tervenors do 9 not have the funds to take depositions which is the normal 10 discovery process.
You would hit round one with some 11 interrogatories to set up some premises and'then you would 12 take the pe rson 's deposition.
That is a much mere efficient 13 and expeditious way of doing things than trying to write out 14 a question that a lawyer can't duck.
I think that is where 15 this problem comes up.
16 COMMISSIONER AHEARNE:
As far as staff resources, 17 is that obvious?
Just as an aside, if you vere concerned 18 about staff resources isn't it obvious that having the staff 19 deposed is less of a burden on the staff re source s ?
20 MR. CUNNINGHAM:
I don't think it is obvious.
My 21 quess would be it probably is more efficien t.
The time 22 spent in answering some of these interrogatories and having
~
23 them reviewed up a management chain and re-reviewed 24 COMMISSIONEL AHEARNE:
All I remember is a small 25 experience in the Def anse Department in having to go through 1
ALCERSCN REPCRT:NG COMP ANY,INC, j
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I 34 1 two large cases, one in which I was deposed several times 2 and one in which I just had to write out the answers.
Both
~ 3 were burdensome, but I thought the deposition ended up 4 requiring even greater work.
5 CHAIRMAN PALLADINOs We are past our allotted 6 closing time.
I wonder if we might try to focus on these 7 two r,oin ts.
8 One, flesh out a little bit the approach where you 9 place more responsibility on the Board to flesh the 10 questions out.
11 COMMISSIONER AHEARNE:
You mean Cotter's approach?
12 CHAIRMAN PALLADINO:
Yes, Cotter's approach.
13 And maybe a little mo re th ough t on some of the 14 criteria one migh t use to accompany that.
15 Then the other part that I was hoping that we 16 might focus on was that I wasn 't quite clea r why a pilot 17 test was no good 18 (Laugh te r. )
19 CHAIRMAN PALLADINO:
Why all of the sudden a pilot 20 tes t was a deasible thing for questions.
21 (Laughter.)
22 MR. BICKWIT:
I wasn't clear on that either.
23 CHAIRMAN PALLADINO:
I was wondering whether you, 24 working with Tony, might pull together something that we 25 might consider in terms of put the responsibility on the ALCERSON REPCRTING COMP ANY,INC, MQMn0K3Vvt4LJnri mr25%'L%6&v& -
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35 1 Boa rd, and perhaps Alan contributing anything he wants on 2 the excessive criteria might go along with that, and then 3 prepare that for another meeting which I don't think we have 4 yet scheduled but we will schedule in the agenda session.
5 In the next meeting I would also like to address 6 why it is felt tha t the pilot test here would be feasible.
7 COMMISSIONER BRADFORD:
Is it too early to ask 8 whether there has been any significan t change in the impact 9 on the staff as a result of its policy of o bjecting to 10 interrogato ries?
I don 't mean f or this mee ting but maybe if 11 You cocid go back and at least ask around a little and let 12 us knos.
13 MR. CUNNIhGHAM:
We will do some checking.
I 14 don't know the answer to that.
-15 COMMISSIONER AHEARNE:
I guess a larger part of 16 that is has there been any significant modification of the 17 impact on the staff resources as a result of the 18 Com mission 's policy direc tiv e ?
19 COMMISSIONER BRADFORD:
That is right, although it 20 will be easier for the staff to I think look at it in terms 21 o f the objections it has raised and how they have been ruled 22 on and whether the interrogatories have been narrowed or 23 eliminated.
24 CHAIRMAN PALLADINO:
Unless there is something 25 l
ALCERSON REFoRTING COMP ANY, lNO, FMEIREEUEE A.ActhEEp
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36 1 urgent to come up now, I would suggest-that we stand 2 adjourned.
-3 (Whereupon, at 12:25 p.m.,
the meeting adjourned.)
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NUC:7.AR REGULATOEf COFKISSICN s This i's Oc certif7 that the at achec pecceedings before the COMMISSION MEETING in the satter cf:. PUBLIC MEETING - DISCUSSION AND POSSIBLI: VOTE ON P,EVISED LICENSING PROCEDURES PROPOSED' RULE CHANGE TO PART 2
- Cate of ?receeding:
nn+mwn-1, 1981 Decket Number:
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? lace cf ?rcCeeding:
Washington, D.
C.
scre held as herein appears, acc :ha;. this is the criginal transcri;;
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Mary C.
Simons Cf ficial Repcrter (T/ ped) j -M r5 w-r f
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1.
Transcript of:
Discussion and Possible Vote on l
Revised Licensing Procedures Proposed Rule Change to l
Part 2, October 1, 1981.
(1 copy) a.SECY-81-526 - Rulemaking Issue paper dated Sept.
3.
81,
Subject:
Proposed Changes to 10 CFR Part 2 (Contentions, Interrogatories) -- Analysis i
of Public Comments and Recommendations of NRC's
[
Legal Offices and Licensing Panels.
(1 copy) i i
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//
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jak arown Off of the Secretary
$a=
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