ML20032D811
| ML20032D811 | |
| Person / Time | |
|---|---|
| Issue date: | 10/29/1981 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20032D812 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8111170531 | |
| Download: ML20032D811 (89) | |
Text
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<f UNITED STATES
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NUCLEAR REGULATORY COMMISSION g
g W ASHIN GTON, D.C. 20555 8
October 29, 1981
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,o CFFICE OF THE SECRETARY COMMISSION DETERMINATION REGARDING PUBLIC DISCLOSURE f
UNDER THE GOVERNMENT IN THE SUNSHINE ACT OF:
Discussion and Possible Vote on Revised Licensing
-2 Procedures - Proposed Rule Change to Part 2 September 15, 1981
)
Pursuant to the Commission's regulations implementing the Government in the Sunshine Act (10 CFR 9.108(c)), the 4
Commission, on the advice of the General Counsel, determined that the attached portions of the subject transcript should be made availabte to the public.
The remaining portions of the transcript have been withheld pursuant to 10 CFR 9.104~as noted below:
Page/Line thru Page/Line Exemption 12/3 12/14 10 CFR 9.104 (a) (10) 13/4 13/5 10 CFR 9.104 (a) (10) 14/19 14/25 10 CFR 9.104 (a) (10) 15/1 18/25 10 CFR 9.104 (a) (10) 19/1 19/19 10 CFR 9.104 (a) (10) 64/8 64/20 10 CFR 9.104 (a) (10) l 77/21 77/25 10 CFR 9.104 (a) (10) 78/l 78/10 10 CFR 9.104 (a) (10)
/
/
Samuel J.
Chil.
Secretary of the Commission
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e 8111170531 811029 PDR 10CFR PDR PT9.7
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NUCLEAR REG 7dTORY COMMISSICN O
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COMMISSION MEETING
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In i:i:a Matt:r.: cf:
CLOSED MEETING - EXEMPTION 10 DISCUSSION'AND POSSIBLE VOTE ON REVISED LICENSING PROCEDURES - PROPOSED RULE CHANGE TO P, ART 2
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DATE:
September 15, 1981 PAGzs:
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Washincton.
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ALDERSOX REPORTLTG
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400 vi_ginia Ave., 5.W. Wad d ig en, C.
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20024
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1 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION f
3 4
CLOSED MEETING S
EXEMPTION 10 6
7 DISCbSSION AND POSSIBLE VOTE ON REVISED LICENSING 8
PROCEDURES - PROPOSED RULE CHANGE TO PART 2 9
10 Nuclear Regulatory Commission Room 1130 1:
1717 H Street, N.W.
Washing ton, D.C.
12 Tuesday, September 15, 1981 13
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14 The Commission met, pursuant to notice, at 15 9 :3 5 a.m.
16 BEFORE:
17 NUNZIO PALLADINO, Chairman of the Commission 18 VICTOR GILINSKY, Cominissioner PETER A. BRADFORD, Commissioner 19 JOHN F.
AHEARNE, Commissioner THOMAS ROBERTS, Commissioner 20 21 A LSO PRESENT:
22 SAMUEL CHILK LEONARD BICKWI*
23 MARTY MALSCH FORREST REMICK 24 TONY COTTER
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ALAN ROSENTHAL 25 HOWARD SHAPAR ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
2 1
PR0CEEDINGS 2
CHAIRMAN PALLADINO:
Good morning, ladies and
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3 gentlemen.
The meeting will come to order.
l 4
The meeting this morning is a closed meeting to 5 discuss SECY-81-526, proposed changes to 10 CFR, Part 2, 6 particularly regarding contentions and interrogatories.
7 As I understand, the purpose of considering these 8 matters is to try to reduce the amount of unimportant 9 activity that might go on in Hearing Boards and thereby try 10 to expedite the process.
11 To get us star *ed, I thought I would turn to 12 General Counsel and ask him to lead us through the 13 discussion - probably he will divide it into various
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14 issues.
We will treat the issues starting, I suggest, with 15 contentions to permit free dialog.
But I would like to 16 allow enough time so that we can have input from other 17 individuals that can make contributions.
18 HR. BICKWIT:
Fine.
This is a very complicated 19 subject.
As a result, in an effort to try to simplify 20 matters a bit - and we may have succeeded in only further 21 complica ting them - we sent up last night an outline of how 22 these various options would relate to a simple hypothetical 23 exa mple.
24 Now, this is being Xeroxed at this point, I
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25 gather, and you will have it in a matter of minutes.
I ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA r/E., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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3 1 would like to work from that outline in going through these 2 options.
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3 By way of brckground, I think the Commission 4 understands that we are now in the position of attempting to 5 come up with a final rule, after having received comments on 6 two alternative proposed rules.
We have, with some 7 arbitrariness, tried to focus the Commission on six options.
8 CHAIRMAN PALLADINO:
May I ask a question?
The 9 item on which you got public commment discussed A and B.
10 How do we go from A and B to the six other options?
11 MR. BICKWIT:
Well, on the basis of the comments 12 ve felt the subject matter naturally broke itself down into 13 those six.
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14 COMMISSIONER AHEARNE4 One of the six is leaving 15 in the status quo.
16 MR. BICKWIT No, that is the seventh; it is 1,
2, 17 3,
4-A, 4-B and 5, tha t is six.
18 CHAIRMAN PALLADINO:
But there is the option of i
19 leaving the status quo.
20 MR. BICKWIT Yes, there is that option.
I 21 I might add to further answer to your question, 22 one of the options that we put out was subjected to various 23 int erpreta tions.
That was conducive to dividing up further 24 options so that those who interpreted it one way would have t
25 their option posed to the Commission, and those who ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
4 1 interpreted it another way would have it posed.
2 Under existing practice we want to look at this
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3 hypothetical and see how that fits, and then move on from 4 there.
5 The hypothetical that we are putting forward is 0 that an intervenor proposes to raise the contentions that 7 the 15-minute warning rule is violated with respect to an 8 indisidual licensing proceeding.
The basis put forward is 9 that the noise from trains will drown out the sirens of the 10 applicant's warning system.
11 Under the current practice, if the intervenor put 12 f orwa rd that contention on that basis, it would be admitted.
13 The only circumstance we could see under which it
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14 would not be admitted is if the applicant came forward and 15 pointed out convincingly that the basis was completely 16 irrelevant to the contentions.
17 The example that we pick here of the applicant's 18 doing that is that if the applicant can deomonstrate that he 19 is not panning to use his siren system, in that case the 20 basis would have nothing whatever to do witu the c'ontention 21 a nd therefore the contention would not be supported by a 22 basis and therefore would be dismissed.
23 Under Option 1,
that option again is similar to 24 the alternative A that the Commission went out for comment 25 on.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024'(202) 554 2345
5 l
1 COMMISSIONER AHEAR: ?:
Len, could I interrupt yor 2 a minute?
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3 MR. BICKWIT:
Sure.
4 COMMISSIONER AHEARNE:
Since it, as you said, is a 5 very confusing subject, could I ask if any of the other 6 participants in our hearings - the Boards - have a different 7 interpretation - given your illustrative example - that they 8 speak up?
9 ER. BICKWITs I am assuming they will all, 10 cha racte ristically.
11 MR. ROSENTHAL:
I would just say that under even 12 existing practice, if the Board was in a position of taking 13 official notice that there was not a railroad track within
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14 200 miles of the plant, I am not so sure that would survive.
15 MR. SHAPAR:
I might add to that, Boards rarely if 16 ever take official notice of f acts in connection with 17 Commissioners' intentions, to my knowledge.
18 CHAIRMAN PALLADINO:
Say that again, Howard.
19 MR. SHAPARs I am not aware of any cases where 20 Boards have taken official notice of f acts in connection 21 with the admission of contentions.
22 MR. ROSENTHAL:
They have that authority.
23 MR. SHAPAR:
They have that authority, yes; but 24 they do n.
do it.
25 COMMISSIONER BRADFORD:
Generally the staff ALDERSON REPORTING COMPANY,INC, 400 v1RGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
6 1 objects when the Boards expand their authority, I have 2 noticed.
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3 (Laughter.)
4 MR. SHAPAR Oaly insofar as sua sponte is 5 concerned.
6 MR. COTTER:
I think they more frequently object 7 when the Boards exercise their authority.
8 CHAIRMAN PALLADINO:
Do you mean that the Board 9 would not take in'to account or recognize the f act that 10 perhaps there is a track?
i 11 MR. SHAPAR:
I am just saying that if yon look at 12 past practice, I am just not aware of the Boards ever having 13 used taking official notice of a fact in connection with the
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14 admisslon of contentions.
1 15 Alan is perfectly correct, though, in saying they 16 theoretically can do so.
17 MR. ROSENTHAL:
If in point of fact the Board was j
18 aware of a matter of an open, notorious f act that there was 19 no railroad track anywhere within the general vicinity of 20 the warning system, I would put it to you, under the 21 existing practice the Board would have the authority to 22 reject the contention on that ground.
Now, whether as a 23 matter of past practice it has exercised that authority or 24 n o t, I de not know.
t 25 COMMILSIONER GILINSKY:
What do the rules say?
2 ALDERSoN REPORTING COMPANY,INC, 400 VIRGit!IA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
7 1
MR. ROSENTHAL:
The rules indicate that the basis 2 for the contention is that a petitioner to intervention must
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3 state the basis for his contentions.
We have held - that 4 has been one of the problems - that under the basis Srequirement the petitioner is not required to go to the 6 merits.
7 But I am suggesting that consistent with that 8 interpretation of the rules as open to the Board, using this 9 hypothetical, if it is an open and notorious fact and 10 therefore subject to official notice that there are no 11 railroad tracks anywhere in the vicinity of the warning 12 system, the Board could employ that and throw this 13 con tenti( ' out.
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14 CH AIRM AN P ALLADINO:
But suppose the reverse, i
15 suppose there was a main line of an important railroad a 16 mile f rom the plant, would the Board take that into account,
'f 17 or would the contentions have to state or allege that there 18 is a railroad track?
19 MR. ROSENTHAL:
No, I do not think that it would 20 have to allege that.
21 What the Board could not do under the existing 22 practice if there is a railroad line there is get into the 23 matters at the threshold as to whether in point of fact a 24 number of trains are using that line because it might 25 interfere with the warnino system; or if there is a noise, ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
8 1 they could not get into the matter of the noise f rom the 2 track.-
f 3
CHAIRMAN PALLADINO:
I was just trying to 1
4 understand Howard's point.
Suppose there is a track within 5one mile of a site and that is the bais for the 6 contentions.
Did you say that the Board would not take 7 notice of the f act?
8 MR. SHAPAR4 I am just saying that in past 9 practice the Boards, in connection with whether or not ther 10 admit or reject a contention, ha ve never used - to m y 11 knowledge - have not used the doctrine of official notice to 12 point up facts on their own that would relate to the 13 rejection.
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14 CHAIRMAN PALLADINO:
But if the contender pointed 15 it out, could the Board accept that?
16 MR. COTTER:
Yes, they could.
17 CHAIRMAN PALLADINO:
I do not know what " official 18 notice" means.
19 MR. COTTER:
Taking official notice of a fact is 20 not normally applied at this stage of the proceedings 21 anyway.
I, off the top of my head, cannot think of any 22 instance in any administrative proceeding where taking 23 official notice of a f act has been app 1'.r.d at the very, very 24 beginning.
A 25 CHAIRMAN PALLADIN0s I am just trying to find out ALDERSON REPORTING COMPANY,INC, 400 VIRGIN!A AVE, S.W, WASHINGTON, D.C. 20024 (202) 554 2345
9
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1 what the intervenor has to do.
He has to talk about the 2 noise.
Does he have to also say that there is a track
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3 within "x" miles of the plant?
4 MR. COTIER:
He has the option as to whether he 5 does or does not.
i 6
MR. BICKWITs He does not have to.
7 MR. COTTER:
lle does not have to.
8 CHAIRMAN PALLADINO:
That is what I was trying to 9 understand.
10 COMMISSIONER GILINSKY:
Can I ask you, Howard, are 11 there examples of contentions which have been admitted and 12 which would fall into this, which are similar to this 13 railroad example wi th the train being 200 miles away?
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14 MR. SHAPAR:
You mean actual cases?
Well, Len 15 anticipa te1 that question.
16 (Laughter.)
17 MR. SHAPAB:
So, he asked me to go back and look 18 a t cases.
Now, I have the casos in two sets, one are dead 19 cases - so there is no possible question of any ex parte 20 contact.
Why not start with those?
21 COMMISSIONER GILINSKY:
How many cases did you 221ook at?
23 MR. SHAPAR:
We just took a very quick look when 24 Len raised the question, and I have two or three examples.
25 CHAIRMAN PALLADINO:
Which question are we Al.DERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
10 1 addressing, so I understand it?
2 MR. SHAPAR:
Contentions in past cases that ar e
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3 dead that were admitted but would not survive under the 4 proposed options.
5 COMMISSIONER GILINSKY:
When you go through them, 6 let us know whether they survived to the hearing.
7 NR. SHAPAR:
That may task my capacities.
8 COMMISSIONER GILINSKY4 Or were they summarily 9 dismissed?
10 MR. SHAPAR I think they were litigated.
They 11 were not knocked out.
But I can go back and verify that to 12 be absolutely sure.
Contention as follows:
Has 13 VEPCO implemented its quality assurance program in the
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14 construction of North Anna Units 1 and 2 in a manner which 15 provides reasonable assurance that those units can be i
16 operating without endangering the health and safety of the 17 public.
18 The same case.
Does VEPCO's emergency plan 19 provide reasonable assurance tha t appropria te measures can 20 and will be taken in the event of an emergency to protect 21 the public health and safety and prevent damage to property.
22 Finally, the same case.
Is VEPCO financially 23 qualified to operate North Anna Units 1 and 2 in a safe 24 manner; the contention.
25 Now, I should point out that all parties ALDERSoN REPORTING COMPANY,INC, 400 VIRGIN!A AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
11 1 stipulated to those contentions.
I should also point out 2 that the parties frequently now stipulate to contentions f'
3 that under a dispassionate look might not survive under the 4 present rules because it saves time and they are prepared to 5 go ahead and litigate it for summary disposition.
6 COMMISSIONER BRADFORD:
Howard, when you say that 7 those contentions would not survive under any of these 8 options, I guess all you are really saying is that even 9 under Option' 1 some factual basis would have to be put 10 forward.
You are not saying that were that done --
11 MR. SHAPAR:
No, you are prefectly correct.
12 MR. BICKWIT I would say that those contentions 13 might not survive under the current rule.
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14 MR. SHAPAR:
Yes because there is no basis for it 15 at all, and current rules say they are supposed to give the 16 basis.
Tha t is why those examples, I do not think, are 17 going to help you too much.
18 COMMISSIONER GILINSKY:
Wait a minute.
19 COMMISSIONER AHEARNE:
That is consistent with 20 past practice.
21 (Laughter.)
22 COMMISSIONER AHEARNE:
You wanted examples, and he 23 is giving examples.
24 MR. BICKWIT I anticipated that answer, too.
25 COMMISSIONER GILINSKY:
I was thinking of examples f
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
12 1 that flew in the f ace of some obvious f act, which is the 2 train being 200 miles away.
3 HR. SHAPAR:
3 4
6 5'
6 HR. SHAPAR:
7 8
9 10 11 12 13 14, g
15 COMMISSIONER BRADFORD:
Well, let me ask something 16 else as a pref ace to deciding that.
If we re-do the 17 contentions rule, is one of the steps then going to be to go 18 back and comb through on-going proceedings to throw out 19 contentions?
20 MR. SHAPAR:
No.
I think Len's recommendation -
21 17 fact, we all recommend tha t we do not do that.
22 COMMISSIONER AHEARNE:
Yes.
23 MR. SHAPAR:
Othervise it would be chaos.
24 COMMISSIONER GILINSKY:
Well, let me ask you this l
I do not know whether you are going to 25 before you proceed ALDERSON REPORTING COMPANY,INC, 400 VIAGINI A AVE., S.W., WASHINGioN, D.C. 20024 (202) 554 2345
13 1 be allowed to proceed - but you do not have exam ;1es, then, 2 from past proceedings of contentions which are ridiculous on 3 the face of it?
4 MR. SHAPAR:
Yes, I do.
5 6
COMMISSIONER BRADFORD:
Why does not Allens Creek 7 f all within the biomass contention ?
8 CHAIRMAN PALLADINO:
The what?
9 COMMISSIONER BRADFORD:
The celeb rated biomass 10 contention.
11 COMMISSIONER AHEARNE:
That was thrown out on 12 summary disposition.
13 COMMISSIONER BRADFORD:
That is why I mean.
Why i
14 does not that f all within the scope of the question as an 15 example of some thing which was at least f actually highly 16 unlikely ?
17 COMMISSIONER GILINSKY:
But not impossible.
18 MR. ROSENTHAL:
I think you have to draw the 19 distinction.
I was giving that there is not a train within 20 a hundred miles.
It therefore is a ph: sical impossibility, 21 right on the f ace of it without even going beh!.nd it, for 22 there to be noise from trains interferring with the warning 23 system.
24 Now, the biomass came really down to, you had to 25 go to additional f acts - I mean, you could not really say ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
i ts 1 that on the face of it the biomass alternative is 2 ridiculous.
You had to know how the biomass alternative
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3 operated, what kind' of space it took, etc.
4 COMMISSIONER BRADFORD:
What I wa s af te r, a re 5 those f acts of a sort that were beyond the reach of official 6 notice?
7 MR. ROSENTHAL:
Absolutely, in my judgment.
8 Official notice has to be - as a matter of la v - a f act tha t 9 is sufficiently noticeable, has to be something which 10 everybody, without any kind of special knowledge, or 11 oducation, or training would be aware of.
12 MR. SHAPAR:
Of course, there was a difference of 13 opinion among the judges as to whether or not the biomass 14 contention should have been admitted.
I must confess that 15 the biomass contention is in large part the impetus for the 16 discussion we are having today.
17 COMMISSIONER GILINSKY:
I was going to come to 18 tha t later.
19 CHAIRMAN PALLADINO:
20 21 22 HR. SHAPAR:
23 24 25 ALDERSON REPORTING COMPANY,INC.
400 VIRGINI A AVE S.W., WASHINGTON. O C. 20024 (202) 554 2345
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1 MR. BICKWIT:
2 3
4 5
6 7
CHAIRMAN PALLADINO:
8 9
to MR. BICKWITs 11 CHAIRMAN PALLADINO:
12 13 MR. COTTER 14 i
15 16 1
17 COMMISSIONER GILINSKY:
18 4
19 20 COMMISSIONER AHEARNE:
1 21 MR. SHAPAR:
22 2
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24 25 MR. BICKWIT i.
ALCERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554 2345
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ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
17 1
2 MR. SHAPAR:
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5 MR. BICKWIT:
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7 MR. BICKWIT:
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8 9
9 10 MR. COTTER:
11 12 13 COMMISSIONER AHEARNE:
14 MR. SHAPARs 15 16 MR. SHAPAR:
17 COMMISSIONER GILINSKY:
18 19 20 MR. SHAPAR:
21 22 CHAIRMAN PALLADINO:
23 24 MR. BICKWIT:
25 CHAIRMAN PALLADINO:
1 ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
18 4
1 2
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6 7
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' COMMISSIONER GILINSKY:
9 10 CHAIRMAN PALLADINO:
11 12
' COMMISSIONER GILINSKY:
13 14 COMMISSIONER AHEARNE:
15 COMMISSIONER BRADFORD:
16 17 18 19 20 CHAIRMAN PALLADINO:
21 HR. BICKWIT:
1 22 23 24 r 25 COMMISSIONER AHEARNE:
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
19 1
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MR. BICKWIT:
}7 s.
3 4
5 COMMISSIONER AHEARNE:
6 7-8 9
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10 11 CHAIRMAN PALLADINO:
12 13 COMMISSIONER AHEARNE:
14 15 CHAIRMAN PALLADINO:
16 17 MR. BICKWIT:
18 :
19 20 MR. SHAPAR:
That is fine.
21 Applicant has not demonstrated that Asiatic clams, 22 corbicula fluminea, vill not foul its safety-related cooling 23 systems, and it has not demonstrated how it can adequately 24 cope with these clams should they be present.
25 COMMISSIONER BRADFORD:
- ! hat fact is it?
ALDERSON REPORTING COMPANY,INC, j
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
20 1
MR. SHAPAR:
I turn to the General Counsel.
2 COMMISSIONER CILINSKY:
Is this a plant in the
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3 Midwest?
4 (Laughter.)
5 MR. SHAPAR:
Yes.
6 COMMISSIONER BRADFORD:
This is a plant that is 7 nowhere near clams?
9 MR. SHAPAR:
You are warm.
9 (Laughter.)
10 CHAIRMAN PALLADINO:
here were so many negatives 11 in that, I was not sure that I got it.
12 COMMISSIONER AHEARNE:
All right, I will repeat 13 i t.
Applicant has not demonstrated that Asiatic clams,
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14 corbicula fluminea, will not foul its saiety-related cooling 15 systems, and it has not demonstrated how it could adequately 16 cope with those clams should they be present.
17 COMMISSIONER BRADFORD:
Now, let's see, you are 18 saying this contention wa s admi tted?
19 MR. SHAPAR:
Yes.
20 COMMISSIONER BRADFORD:
A lot of time was spent on 21 1t ?
22 MB. SHAPAR:
This survey was done very quickly.
23 If you f eel an c.laborate survey would be more helpful, we 24 can go back it
.aeck as many cases as you want.
25 CHAIRMAN PALLADINO:
We may decide that later, but ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 55+2345
21 1 I do not think we need it.
2 HR. ROSENTHAL:
May I just say, I do not think
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3 that_is quite in the same category as he trains because if 4 hypothetically there are no clams in that body of water, 5 that presumably is something that is not as open and 8 notorious as the existence of a rail line is.
7 At the same time, if again hypothetically there 8 are no clams in that body of water, I would suspect that a l
9 one-page motion f or summary disposition would have brough; l
10 that contentions to its knees.
11 MR. SHAPAR:
Let me say something about motions 12 for summary disposition that I think needs to be understood.
13 It is not a sin ple matter in tarms of the
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14 expenditure of time and resources to successf ully launch and 15 have accepted a motion for summary disposition, it requires
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18 a lot of surk.
17 The fact of the matter is that although 18 conceptually that course is avai?able, the lawyers for the 19 parties - and I am talking about all the parties including 20 the staf f - frequently even though they know it is 21 available, if they are close to hearing or for other 22 reasons, will not file a motion for summary' disposition with 23 the required affidavits e.nd a listing of the facts because 24 i t takes too much time aad they figure they can maybe get by 25 with a half-day hearing.
They would rather expend their 1
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHfNGTON, D.C. 20024 (202) 554 2345
22 1 resources that way.
2 So, I do not want to leave the impression or have
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3 anybody leave the impression that a motion for summary 4 disposition is a very simple thing.
If it were and it did 5 not fequire resources, then you would be seeing a lot more 6 than you are seeing.
It is useful, but it is not a panacea.
7 MR. REMICK Is it not true that some applicants 8 make motions for summary disposition on every contention?
9 MR. SHAPARs Yes.
10 MR. REMICK:
So, you have the two extremes.
11 MR. SHAPAR:
Yes, some do.
12 COMMISSIONER AHEARNE But to buttress Howard's 13 point, I recently - I suppose I can refer to a case that was I
14 a Board order that is docke ted, Len, do you see any problem 15 with that?
16 MR. BICKWIT:
No, I do not.
17 COMMISSIOFER AHEARNE:
The famous by now 18 inf am >us - Allens Creek, which is not the particular 19 decision that we were just alluding to, but there is a 20 recent 71-page court order on Allens Creek showing the great 21 difficulty of getting summary disposition.
22 MR. COTTER:
I think that is correct.
Summary 23 disposition is not a panacea.
What Howard says is correct, 24 i t takes a great deal of work.
25 COMMISSIONER AHEARNE:
It no t only takes a great ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
23 1deat, but when you read through this you can see how high a 2 threshold - at least this one particular part that is put
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3 on, I assume it is illustrative - how high a threshold has 4 to be surmounted in order to get a summary disposition.
5 MR. COTTER:
Summary disposition is not a device 6 t nat should be used with the frequency that I believe it is 7 in these proceedings; it never was int. ended for that.
8 COMMISSIONER GILINSKY If it is well known that 9 there are not any Asiatic clams within a thousand miles of 10 tha t plant, it would get summarily disposed of, I am sure.
11 COMMISSIONER AHEARNE:
A thousand miles is a big 12 distance.
13 COMMISSIONER GILINSKY Now, I am not sure whether
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14 t ha t is true or not.
15 HR. ROSENTHAL:
In my view, if it is really such 18 as a matter of no clams in the particular body of water, 17 some other issue which is so f rivolous that it warrants 18 being' thrown out at the threshold, summary disposition is 19 not a difficult matter at all.
Summary disposition is very 20 f requently dif ficult to achieve.
21 It does require substantial resources where the 22 issue is a complex one and close to the line.
As far as I 23 am concerned, in most of those cases you should not be 24 considering throwing the contentions out at the threshold 25 anyway.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W WASHINGTON, D.C. 20024 (202) 554-2345
24 MB. SHAPAR:
But I would not suggest that the 2 standard you want to use is demonstrable for validity; it
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3 ought to be somewhat higher than that.
4 CHAIRMAN PALLADINO:
Howard, you are saying that 5 this example would not have survived any of the options?
6 MR. SHAPAR:
That is right.
7 CHAIRMAN PALLADINO:
Except the status quo, 8 perhaps.
9 MR. SHAPAR:
And maybe not even the status quo to because there was no basis for it.
But the basis thing, I 11 think in all cander, has been read out of the rules by 12 Allens Creek.
There is nothing left of the basis 13 requirement in the present rules.
(
14 COMMISSIONER BRADFORD:
That just is not the way 15 Allens Creek was written.
I do not know what Board you are 16 dealing with it, but that is not the way it reads.
17 COMMISSIONER AHEARNE:
I would tend to agree that 18 af ter the Commission's decision on it, that that would be 19 the way I would expect the Boards to read it.
20 COMMISSIONER BRADFORD:
I sure would not, and I 21 was in the majority in this case.
22 COMMISSIONER AHEARNE:
I know.
23 MR. BICKWIT:
The Commissica did not believe it 24 was reading the basis requirement out of the rule.
The 25 Commision believed it was interpreting the rule.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
25 1
HR. SHAPAR:
I believe the Commission readit out 2 of the rules, whether they believed it or not.
3 (Laughter.)
4 COMMISSIONER BRADFORD:
Well, Howard,.you are 5 wrong.
6 MR. SHAPAR:
All right.
7 COMMISSIONER AHEARNE:
I join you on it.
8 MR. SHAPAFs I cannot read your intent.
I can 9 read the plain language and th e result of your decision.
I 10 know how other people will interpret it.
11 MR. REMICK4 I have a question of Howard.
You are 12 reading contentions, but are we to assume that there was 13 absolutely no basis given, along with the contention, or the
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14 Board did not consider this in a prehearing conference to 15 find out more about it to understand the contention?
You 16are just reading the contentions, but definitely there is a 17 paragraph or two of description.
18 COMMISSIONER AHEARNE:
In that particult case 19 there was something else which turned out to be germane.
20 COMMISSIONER BRADFORD:
The clams?
21 CHAIRhAN PALLADINO:
That the clams existed?
22 COMMISSIONER BR ADFORD :
Let's see, John, if you 1
23 know what else there was, you can tell us.
24 (Laughter.)
is COMMISSIONER AHEARNE:
Just reading the filings l
ALDERSON REPORTING COMPANY,INC.
400 VIRGINtA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 l
26 1 that came back and forth, there was a statement, as I 2 recall, from one marine biologist who did say that there was 3 one apparent finding of such a clam in the particular lake.
4 MR. BICKWIT Like one Medfly.
5 (Laughter.)
6 CHAIRMAN P LADIN0s Maybe, to get back on the 7 track, you are going to walk us through this example as it 8 interacts with each of the options?
Maybe that is where we 9 ought to start.
10 MR. BICKWIT:
h. right, Under Option 1, again 11 using this hypothetical, the intervenor would plead the 12 basis as under existing rules, but would also specify all 10 known significant f acts tha t a re expected to be used in the
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14 hea ring.
15 We assume for simplicity's sake that the only fact 16 that is known for certain is that the train tracks cross the 17 plume exposure pathway.
18 Under Option 1,
if the intervenor pleads that 19 f a c t, the contentions will be admitted unless applicant can 20 make the relevance argument mentioned above.
21 I would now add, to accomodate Alan's point, 22 unless official notice can be taken that these tracks are 23 out of use and there are no trains within miles of the area.
24 Now, I want to mention that the purpose of Option 25 1 is not outlined in this example, the major purpose which, ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
27 1 as I understood it, was to let all parties know of all 2 significant facts which are to be used in the proceeding.
3 I think now would be a reasonable time to 4 explore that option bef ore moving on to Option 2, since it 5 is an option which is tacked onto the other options and the 6 Commission is going to have to make a decision on this one.
7 CHAIRMAN PALLADINO:
Is it clear that all the 8 other options are tacked to No. 17 9
MR. BICKWIT:
Yes.
10 CHAIRMAN PALLADINO:
I had some difficulty with it.
11 3R. BICKWITs Excret for Option 4-B.
Option 4-B, 12 by its terms, sticks with the current practice.
13 CHAIRMAN PALLADIN0s Option 4-B eventually can
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14 become three, if B is tied to one.
15 ER. BICKWITs That is right.
16 CHAIRMAN PALLADINO:
So, they are all tied, except 17 possibly five.
18 COMMISSIONER BRADFORD There is one point to be 19 made, I think, about proceeding entirely in the context of 20 this railroad example, which is that we really are not 21 concerned only with eliminating frivolous contentions.
I 22 think these options have to be tested also against their 23 effect on bona fide or useful contentions, and at some 24 point, I think, we are going to need a hypothetical base or 25 perhaps a real-world example based on contentions that ALDERSON REPORTING COMPANY,lNC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
28 1 have --
2 MR. BICKWIT This example is not a frivolous one.
3 COMMISSIONER BRADFORD:
it is a de minimis kind of 4 e xa m ple.
I mean, it suggests the contention that everybody 5 at the outset kind of rolls their eyes.
I do not kow if yoa 6 would call it frivolous or not.
7 MR. BICKWIT:
It was not designed to be because as 8 you look at the development of it, in the later options it 9 tu' ens out that the intervenor really does have something.
10 COMMISSIONER BRADFORD:
Of course, I have the 11 disadvantage in not having seen the way it works, so I do 12 not know that.
13 But it somehow does not come across with the
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14 solemnity of a contention that suggests a possibly sound 15 reason why the ECCS will not work, and then the ways in 16 which information related to that or extracted through 17 discovery and defended against some reason.
18 MR. SHAPAR:
In line with that, I think I have a 19 realized example frcm a dead case that perhaps you would 20 find more suitable, this is Callaway - that is dead.
21 he contention, there is no assurance that the 22 applicant will comply with applicable regulations pertaining 23 to physical security and special nuclear material safeguards 24 measures to protect against the occurrence of radiological 25 hazards or criminal acts and sabotage at the Callaway l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON. D.C. 20024 (202) 554 2345
29 1 facility in spite of recent reports there had been incidents 2 of suspected sabotage at the Zion Nuclear Power Plant.
End 3 of contentions.
It was admitted in that form.
4 CHAIRMAN PALLADIN04 The evidence was that there 5 had been some?
6 MR. SHAPARa No assurance that the applicant will 7 comply with our security regul-tions.
8 CHAIRMAN PALLADINO What was their basis, that 9 there bad been some?
10 MR. SHAPAR:
In spite of the fact that there had 11 been incidents of suspected sabotage at another plant.
12 CHAIRMAN PALLADINO By the same applicant?
13 MR. SHAPAR:
Zion and Callaway are different
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14 applicants.
15 HR. REMICK:
But one thing we lack against the 16 knowledge of whether the Licensing 3oard at the prehearing 17 conference explored that in any depth to find out if there 18 was bad faith.
19 MR. ROSENTHAL:
That assumption, a stated, would 20 not provide the existing practice, I do not think.
21 HR. BICKWITs I do not think so.
22 MR. ROSENTHAL:
If you just took the statement of 23 1t.
But again, as Forrester points out, the Licensing 24 Boards consider these contentions at special prehearing 25 conferences where there is a lot of discussion.
Frequently, ALDERSON REPCRTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
30 1 the petitioner for intervention will elaborate upon the 2 contentions and will indicate a casis for it.
3 So, wi;hout knowing what was the course of that 4 contention between its assertion and its admission, it is 5 very difficult to draw any conclusions at all.
6 MR. SHAPAR:
I think you would find a full 7 spectrum if you were to engage in the exercise, where the 8 Boards do indeed probe on some of these contentions at the 9 prehearing conference.
10 And there are other cases where there is no 11 probing at sll.
In fact, all the parties - including the 12 staff and the applicant - are willing to stipulate to the 13 admissibility of a contentions that demonstrably will not
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14 pass the present rule.
15 COMMISSIONER AHEARNE:
Why does the staff do that?
16 MR. SHAPAR Because the other parties are willino 17 to litigate it and based on the reading of the way the 18 decisions have run on admissibility, it is not worth the 19 candle of arguing the matter.
20 MR. ROSENTHALs I can tell you, that contentions 21 would not survive under the existing practice as we have 22 construed the basic rule.
23 COMMISSIONER AHEARNE:
You mean should not.
24 MR. ROSENTHAL:
That is what I am sayir.g, I cannot 25 tell you anything about what a Board does.
But since ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
31 1 everybody is focusing on the Appeal Board's interpretation j
i 2 of the basis requirement, I am just telling you that is not 3 met by that contentions.
4 4
CHAIRMAN PALLADINO:
Can we come back to the 5 railroad contention?
Suppose the Applicant can show that 6 I will make different kinds of assumptions.
One, that there 7 was no railroad track wi thin a hundred miles.
Then, would 8 that be denied under Option 17 9
MR. BICKWIT:
It is'a question of whether the M Board is willing to take official notice r.
that fact.
If 11 the Bord is not, the contention is admitted.
12 CHAIRMAN PALLADINO:
By not taking official 13 notice, is the Board saying, "We are not sure there is?"
(
14 MR. BICKWIT:
The same, that it is not an open, 15 notorious f act.
16 CHAIRMAN PALLADINO:
All right.
17 MR. BICKWIT:
Under those circumstances the 18 con tentions would be --
19 CHAIRMAN PALLADINO:
At this point you do not take 20 witnesses in and out?
21 MR. BICKWIT:
No.
22 COMMISSIONER AREARNE:
Another way to put it is, 23 the Board clearly can deny it under Option 1.
Then it 24 becomes a question of whether there are dif ferences in T
i 25 behavior among Boards and that sort of thing.
But Option 1 a
I ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON. D.C. 20024 (202) 554 2345
32 1 does give the Board the power to deny that contention if 2 there is no relevancy.
(
3 CHAIRMAN PALLADIN0s See, what I am having trouble 4 with, if intervenor pleads a f act, contention is admitted 5 onless applicant can make -- what is that, relevance 6 argument?
7 MR. BICKWIT:
Relevance argument mentioned above.
8 CHAIRMAN PALLADINO:
The relevance a rgument is 9 that there is no track within a hundr'ed miles, and therefore to it is irrelevant.
That is why I am having trouble, why 11 would that not be his argument, there is no train within a 12 hundred miles and this is not a relevant issue whether the 13 train noise is louder than the siren?
14 MR. BICKWIT:
It is a factual dispute.
I would 15 view that as a f actual dispute rather than a question of 16 relevance.
17 CHAIRMAN PALLADINO:
I see.
18 MR. COTTER:
That is a f act argument, not a 19 relevance argument.
20 COMMISSIONFR GILINSKY:
I think you are asking, if 21it is absolutely clear there just is not any c'ailroad, then 22 it is not a f act argument.
If one side is saying, "Yes, 23 there is a railroad track," and the other side says there is 24 not 25 CHAIRMAN PALLADINO:
Well, now, if the contender ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
i 33 1 was saying there is a railroad track, then I would say that 2 is an arguable fact.
But if he says only what he has
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3 contended in here and the applicant refutes it by saying 4 there is not a railroad track within a hundred miles and the 5 contender says, "Oh, yes, I agree there is not a train track 6 within a hundred miles --
7 MR. BICKWITs If he agrees with that, you are 8 right.
9 CHAIRMAN PALLADIN04 Then he lost his contentions.
10 HR. BICKWIT:
Yes.
But under this example he does 11 not agree with that.
He obviously, in stating his basis 12 that train noise will drown out the sirens, he understands 13 that there are trains.
I 14 CHAIRMAN PALLADINO I guess I was trying to find 15 out, what is the kind of argument you can use to argue on 16 the relevance.
17 MR. BICKWIT:
I think first of all, if you can 18 show tha t the contentions itself is immaterial to the 19 Commission's jurisdiction, you are out.
20 CHAIRMAN PALLADINO:
In this case it is.
21 ER. BICKWITs In this case it is material, the 22 Commission's jurisdiction.
23 Secondly, if you can show that the basis is so 24 irrelevant to the contention as to in effect constitute no 25 basis, then the contention is out.
ALC.RSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
s 34 1
Then, finally, if it is a factual dispute, if the 2 matter is so clear that the Board can take officie.1 notice
('
3 of the f act and resolve it in that way, then the contentions 4 can be out but, as has been pointed out, that very rarely 5 happens.
In fact, it has not happened.
6 CHAIRMAN PALLADINO:
So, you are sai tng in this 7 example there would not be much basis for the applicant to 8 ref ute the argument.
9 MR. BICKWIT:
No.
If you take the facts as 10 outlined in this example --
11 CHAIRMAN PALLADINO:
Even though the applicant may 12 know there is no railroad within a hundred miles.
13 MR. BICKWITs Well, we are assuming that in this f
14 Case the applicant knows that there are railroads.
15 CHAIREAN PALLADINO:
So, he has no basis, theng to 16 argue the case.
17 MR. DICKWIT That is right.
18 MR. REMICK:
There is one aspect of proposed 19 Option 1 that has not covered what you have here, and that 20 is the thing that Tony talked about in his memo, is the 21 sanction.
Suppose the intervenor did not mention that the I
22 train only goes by once a month?
23 As I read proposed Option 1,
the applicant could 24 go back and argue, "You did not give us all the significant 25 f acts," and the f ellow said, "I did not know tha t."
And he ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
~
35 j
1 says, "Well, you should have, you are representing so-and-so 2 and he lives somewhere nearby."
(
3 When that comes up to the Board, then, to hear 4 those discussions and determine whether a sanction should be 5 imposed that is not addressed in here.
6 MR. BICKWITs That is
- 3.
7 MR. REMICK:
It is going to cost a lot of 8 resources on hearing arguments about, did the intervenor 9 give us all the f acts.
10 COMMISSIONER GILINSKY:
I thought Tony recommended 11 dropping that in the memo.
12 MR. REMICK:
That is correct.
But, as I say, as 13 proposed Option 1 there is a sanction which is not described 14 here.
15 CHAIRMAN PALLADIN0s Well, suppose that were the 16 case that the contender knew that the train only went by 17 once a month, what would happen under Option 1?
18 MR. REMICK:
Under proposed Option 1,
sanctions 19 could be imposed.
I am not sure what those sanctions are, 20 but perhaps throw the contentions out.
The Board could 1
21 impose sanc tions.
22 MR. BICKWIT:
Throw the action out.
23 COMMISSIONER AHEARNE:
Actually, that particular 24 thing flows through much of your options.
25 MR. BICKWIT:
Yes, one through five, except for ALDERSON REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
36 1 4-B.
2 CHAIRMAN PALLADINO:
What sorts of sanctions?
I 3 do.not see the word " sanction" in here, but there are 4 examples of sanctions?
5 MR. BICKWITa The examples of sanctions are 6 warnings that, "You violated our rcgulations and if you do 7 se in the f uture, then you may be dismissed, your 8 contentions may be dismi ssed.
The fact you are attempting 9 to prove may be dismissed."
Those are the most logical 10 sanctions.
11 COMMISSIONER AHEARNE:
Here it is, page 8.
12 MR. BICKWIT:
Now, let me try to frame the issue 13 on Option 1.
The proposal was that all known significant
(
14 f acts should be pleaded at the outset.
15 CHAIRMAN PALLADINO:
It would be dismissed.
If 16 the inters
- iar f ails to set forth any relevant fact or 17 sources, his contention would be dismissed.
18 MR. BICKWIT Yes, but that is not all of it.
19 Even if he sets forward some but does not set forward all he i
20 kno ws, sanctions can be imposed by the Board for his failure 21 to set forward all the options.
22 CHAIRMAN PALLADINO:
Just to follow that one more 23 s te m, then I will get off of it.
Suppose the applicant 24 comes back and says, "You know, that train goes by once a 25 month," would that be the basis then for asking that this be ALDERSON REPoHTING COMPANY,INC, 400 VIRQlNIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
37 1 dismissed or rejected?
2 MR. COTTER Then you have the question --
3 CHAIRMAN PALLADINO:
The Board has to take
(
4 official notice that it only goes by once a month.
5 MR. COTTER:
No because it is simply a claim.
The 6 Board would have to hold a hearing to determine what the 7 f acts were that the guy knew, and it would ultimately have 8 to make the most difficult kind of finding, which is what 9 vent on in somebody 's head, what they knew.
10 CHAIRMAN PALLADIN04 The purpose of my question is 11 to find out whether all of this is going to save any time or 12 do any good.
13 (Laughter.)
(
14 COMMISSIONER GILINSKY Well, it does seem to be 15 useful to get as much out as poossible.
16 MR. COTTER 4 I agree.
17 COMMISSIONER GILINSKY:
If you get as clear as 18 possible on wha t the basis of the party's case is so that 19 others will be aware of it and can respond.
20 CHAIRMAN PALLADINO:
But they are going to get 211nto an argument as to whether or not he knew it.
22 COMMISSIONER GILINSKY:
Well, that is the 23 sanctions part.
24 CHAIRMAN PALLADINO:
You are going to decide now 25 whether it is going to be admitted or rejected, and I do not ALDERSoN REPORTING COMPANY,INC, 400 VIRGINlA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
38 1 know how it gets rejected.
2 I have not seen a single case where it can get g-3 rejected.
All I ac finding out is that even though the 4
4 f acts dispute the situation, it cannot get rejected.
I 5 gather it cannot get rejected by somebody saying the train 6 only runs once a month and you knew it.
7 COMMISSIONER GILINSKY As I read tha t, it is not l
8 so tting up a new standard for rejecting contentions so much 9 as trying to get as much on the table as feasible.
10 CHAIRMAN PALLADINO:
To settle it, then.
I used 11 the word " settle" not necessarily rejecting.
12 MR. COTTER:
Could deal with it at a later stage 13 and perhaps deal with it before you get to hearing.
14 COMMISSIONER BRADFORD:
In the real world in a 15 situation, if you had this one and it turned out that the 16 train only ran once a month, what as a practical matter is 17 going to happen with that?
18 MR. P?1ICK:
I do not think I could make any 19 decision.
The question comes to mind, once a month is a 20 small enough probability that might interfere when the 21 si rens are needed.
It is a factual question.
22 So, based on what we talked about so far, as a 23 moard member I would probably want to know more about it.
24 COMMISSIONER BRADFORD:
But in terms ct the d
15 overall interplay that tends to take place between the ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345 9.
39 1 Boatd, applicant, staff, intervenor, as facts come out to 2 indicate that the contention is of only marginal value, do 3 you not find tha t conten tions get d ropped, modified, not 4 pursued, what have you, a pretty high percentage of the time?
S MR. REMICK:
Certainly dropped.
I am just 6 guessing - which should be corrected by others - a third of 7 the time.
Is 30 percent a reasonable number to drop?
8 COMMISSIONER BRADFORD:
Of all contentions?
9 MR. REMICK:
I am sorry.
10 COMMISSIONER BRhDFORD:
Thirty percent of all 11 contentions?
12 MR. REMICK:
That is my guess.
That is just a 13 guess, not based on f acts; it is just a gue ss based on 14 observing and participating.
15 Modified, I think, is a function of Boards.
I 10 personally like that, if after a prehearing conference you 17 talk and you find out that the wording does not indicate 18 wha t the intenvenor is really concerned about.
He really is 19 concerned about this, and then, if they cannot come up with 20 something and the Board gets concurrence, this is what you 21 mean, scratch it out and we change that to this right there 22 and get concurrence of the parties.
23 Now, there is a tendency sometimes to leave the 24 wording, the first contention you proposed was a question.
25 To me that is not a contention when somebod y says, "is."
As ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON 0.C. 20024 (202) 554 2345
40 l
l l
l 1 a Board member I would want that to be a specific i
2 contention, what is your concern and state that contention
(
3 in a contention form, not in a question form.
A question 4 form does not tell ne if your contention is wrong or not.
5 MR. SHAPAR:
Of course, as you know, the 6 approaches of the various Boards differ considerably.
7 MR. REMICK:
That is right.
There are people who 8 feel that you should not touch the wording of the 9 contentions, and I differ somewhat.
10 I am not saying you should rewrite the 11 contention so that it is acceptable, but if you understand 12 wha t it is the intervenor is arguing about and you agree 13 that that is something, there is adequa te basis by modifying i
14 a few words and so forth, you can cut down hearing time 15 later on where you can make it more specific.
16 COMMISSIONER GILINSKY:
Do the Boards get any 17 guidance on something like thi s, as to whether or not 18 contentions ought to be modified or not modified?
Do you 19 direct them, or does the Board get together?
20 MR. COTTER:
I do not.
21 COMMISSIONER BRADFORD:
But at things like your 22 training session several months ago, there must have been 23 discussion of how to handle dif f erent types of contentions.
24 You must at least talk back and forth about how different 25 Boards dealt with similar types of contention-related ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
41 d
1 problems.
I 2
HR. COTTER:
We focused not at the contention
(
3 levels, the initial threshold stage, but more on what you do 4 af ter you determine what comes in.
Each Board has to deal 5 with the situation and a unique set of phrasings and 6 contentions.
7 COMMISSIONER GILINSKY:
Well, we are talking not 8 about the unique facts of the case but the policy of 9 modif ying contentions or not modifying contentions.
10 HR. COTTER:
I have not said anything on them on 11 tha t.
12 COHHISSIONER GILINSKY :
Well, it seems like 13 something on which there ought to be a uniform approach.
(
14 HR. COTTER:
What did you have in mind?
15 COHHISSIONER'GILINSKY4 Hell, either it is a good 16 idea or it is not a good idea, and we ought to do one or the 17 o th er.
18 CHAIRHAN PALLADINO:
Can I come back to Option 17 19 I am still having trouble.
This option is not clear to me 20 because there is no information that anybody can provide to 21 settle the issue, in o ther words, to guide the Board.
22 If somebody says, "Well, there is not a train a 23 month," you cannot use it.
If you say, "There is not a 24 railroad within a hundred miles," you canno t use it.
What 25 can you do with Option 1?
This just says admits every ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554-2345
42 1 contention.
2 MR. BICKWITs It will admit virtually every
(
3 contention.
4 COMMISSIONER GILINSKYa It does not change the 5 standard for admitting contentions which are in the rules, 6but what it does do is put all the parties on early notice.
7 They are going to go to work in preparing their case and 8 this gives them as much information as possible at as early 9 a point as possible.
10 CHAIRMAN PALLADINO:
Maybe that is the best I can 11 get out of this, that all it does is set the information 12 f orth.
It does not help anything.
13 MR. COTTERa It helps a lot.
I 14 CHAIRMAN PALLADINO:
That is what I want to get 15 out on the table.
16 MR. COTIER:
Well, from my standpoint this whole 17 SECY-81-526 is trying to take other parts of the hearing 18 process and get it injected into the very first step, the 19 contention stage, and try to resolve things there.
20 I think that is like trying to shove the 21 proverbial camel through the eye of a needle because as some 22 of this discussion has indicated right now, at that first 23 stage when people are first stating what it is that they are 24 concerned about in connection with the plant, there is not 25 enough information in the record on which to make those ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-234S
43 1 kinds of judgments.
2 So, consequently you run into all sorts of
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3 peripheral arguments and motions, and that sort of thing.
4 CHAIRMAN PALLADIN04 But in this example not all 5the facts have been set forth, perhaps.
6 MR. BICKWIT4 I think we are assuming that the 7 f acts that are known to the intervenor have been set forth.
8 The intervenor does not know much at this point.
9 Now, if you want to assume that the intervenor 10 knows a lot more, then under the example he would be setting 11 forward all those f acts, all the f acts that he knows.
But 12 it will do virtually nothing in terms of raising the 13 threshold and thereby knocking out contentions at the 14 contention rate.
15 COMMISSIONER AHEARNE:
But Len, it is very hard --
16 MR. BICKWITs It is not designed to do that.
17 COMMISSIONER AHEARNE:
It is very hard to say that 18 all the facts are known to an intervenor, particularly if 19 you have an organiza tion being represented.
20 MR. BICKWIT:
Well, it is all the facts, all the 21 significant f acts known that are expected to be used in the 22 proceeding.
23 COMMISSIONER GILINSKY4 And the documents on which 24 he will rely.
25 CHAIRMAN PALLADIN0s Len, at the university we get ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
44 1 hundreds of letters that say, "Please tell me everything you 2 know about nuclear fission."
You know you cannot do that in
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3 answering the letter.
4 MR. BICKWIT Yes.
I think you can.
I do not 5 think it is unreasonable to ask an intervenor to set down 8 the f acts that he plans to use and the sources that he plans 7 to use in proving his case.
8 COMMISSIONER GILINSKYs He cannot lay out all the 9 f acts, but he can say, "I am going to rely on Chapter 13 and 10 this, and this document, and I am going to rely on this 11 section."
12 COMMISSIONER AHEARNE:
Or he relies on an expert 13 witness.
14 MR. BICKWITs The example assumes that he knows 15 virtually nothing.
If you want to get more out of this 16 example, assume that he knows more than that.
17 MR. ROSENTHALs He may know, or he may have 18 witnesses that he wants to bring forward.
On a substantial 19 con tention and years ago - this again is now, at least on 20 that level, a closed case - but there was a very serious 21 con tention in the Midland construction permit proceeding 22 which was based upon the construction practices at 23 Palisades, another Consumers power reactor.
It was the same 24 a rchitect-engineer.
The contention basically was, there was 25 a terrible track record at Palisades and that therefore ALDERSON REPORTING COMPANY,INC, 400 VIR3lNIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
t 45 1 there was reason for concern as to how the same applicant 2 and the same architect-engineer were going to perform at
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3 Midland.
4 Now, that intervenor may have had nothing more 5 than new'spaper accounts of the Commission 1:aving fined 6 Consumers for their practices at Palisades, or articles just 7 dealing with a few isolated instances of construction 8 defects.
That is all he has, is newspaper articles, he does 9 not know any ching else.
He is not in a position to know 10 anything else.
11 Now, he comes in and says at that point, "Look, I 12 vant to raise this centen tion, I think that is something 13 tha t is worthy of exploration and I read somewhere in the s
14 newspaper that there have been defects discovered at this 15 other plant. "
16 Is that enough under these options?
He does not 17 have any f acts and he has obviously not gone out and 18 investigated on his own what the particular construction 19 practices were; and indeed, he is really not equipped to do 20 tha t.
All he has seen is a newspaper article.
21 MR. BICKWITs That is certainly enough.
I am not 22 sure he even has to do it.
23 MR. ROSENTHALs All right, but he pleads all of 24 the f acts.
I mean the thing about it, he is not going to be 25 able to lay much on the table at that point.
Then, if later l
l ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON O.C. 20024 (202) 554-2345
l i
46 1 on as the thing evolves his contentions are admitted, he may 2 then be able to get into greater detail, to come up with
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3 precisely what had transpired at Palisades.
4 MR. BICKWIT:
The concept is simply that he is 5 supposed to set down what he knows at this stage.
It may 6 not be very much, it may be a lot.
7 CHAIRMAN PALLADINO:
What he expects to rely on.
8 MR. BICKWIT:
What he expects to rely on.
9 CHAIRMAN PALLADINO:
That is not changing anything 10 except to f acilitate the hearing.
11 MR. BICKWIT:
That does not change anything in the 12 way of striking down contentions at this stage.
13 CHAIRMAN PALLADINO:
Or admitting them.
14 COMMISSIONER AHEARNE:
In the case that Alan just 15 described I would expect, in addressing it, that intervenor 16 would then say that he would expect to rely on discovery to 17 produce the material that he would then use to make his case.
18 MR. BICKWIT:
No.
I think all of the offices were 19 in agreement that it was useful to ask the intervenor to set 20 down the f acts and sources that he intended to rely on in 21 the proceeding.
22 Where we had trouble was in devising a sanction, 23 some kind of enforcement mechanism for hurting him if he did 24 not do that.
The one that was proposed in the rule which 25 was to say that he could not use any new facts or sources ALDERSON REPORTING COMPANY,INC, 400 VIRGINtA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
47 1 unless he could make a showing of good cause during the 2 proceeding, I think we all felt that was extremely
(
3 cumbersome.
4 The alternative that three of the offices have - I 5 think three of the offices have supported - is that we 6 simply say that if it can be demonstrated throughout the 7 course of the proceeding that the intervenor withheld f acts 8 and sources that he intended to rely on at that point, that 9 some sanctions can be imposed against him.
10 COMMISSIONER AHEARNE:
Without specifying.
11 MR. BICKWIT Specifying which, that is right.
J 12 COMMISSIONER AHEARNE:
Since you have asked Howard 13 to look for other examples, did you look for examples where 14 you have found that intervenors have withheld information 15 they intended to rely on?
'T 16 MR. SHAPAR:
I did not look for that.
17 CHAIRMAN PALLADINO:
You did what?
18 MR. SHAPAR:
I did not look for that.
19 MR. BICKWIT I am sure they withhold it, although 20 I am not sure " withhold" is the word.
They are not asked to 21 come forward with it.
22 COMMISSIONER AHEARNE:
On the basis of experience, 23 has that been a problem?
24 HR. SHAPAR:
The natural tendency of the lawyer 25 litigating a case is to withhold inf ormation.
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
48 1
(Laughter.)
2 MR. SHAPAR:
The purpose of discovery is to make
(
3 him disgorge it.
I mean, you have seen trials, the greatest 4 thing for the budding lawyer is to surprise his opponents.
5 The whole purpose of discovery is to make clear that it is 6 not a game and tha t you should disgorge it to get a fair 7 trial.
8 COMMISSIONER BR ADFORD:
You may want to keep that 9 point in mind when we come to the business on to interrogatories.
11 COMMISSIONER AHEARNE:
But has this really been a 12 problem?
13 MR. BICKWIT:
I remembLr lf arold ccming in here and 14 saying that sometimes he just cotid not figure out what an 15 intervenor was af ter, where he was really going, and that 16 the laying out of facts might be helpful to his analysis of 17 the problem.
I think thst is whr.re it stems from.
18 CHAIRMAN PALLADINO To see if we can go on, I 19 understand then tha primary benefit of Option 1 is to get 20 all the f acts F.nown ea rly a nd it would not change except for 21 tha t ; and shat impact that would have.
It would not change 22 the ne.ture of admissibility.
23 MR. BICKWIT:
The threshold.
24 CHAIRMAN PALLADINO:
The threshold for contentions.
25 MR. BICKWIT:
Thst is almost right.
There is one ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
49 1 very minor caveat to that.
I would just as soon not get 2 into it, but there is a requirement under Option 1 that at
(~
3 least one fact or one source be put forward.
4 CHAIRMAN PALLADINO:
Yes.
5 ME. SHAPAR:
Much of the basic purpose of this has 6 been described.
The basic purpose of this, as I see it, is 7 that the intervenor of course has the application in front 8 of him.
The other parties are waiting to see what the 9 intervenor's case is as early as they can find out.
10 So, if there is any purpose for this it is to 11 advise the other parties.
12 COMMISSIONER GILINSKY:
Well, that is right.
It 13 also forces the intervenor to do a little more work at an l
It introduces an element of seriousness 14 earlier point.
15 earlier.
I do r.ot know what the net effect is going to be, 16 but it has to be beneficial.
17 MR. BICKWITs I think we all agree it will be 18 beneficial.
The question will be, can we devise an 19 enf orcement mechanism that does not create more problems.
20 COMMISSIONER AHEARNE:
If it were followed it 21 would be beneficial.
22 MR. BICKWITs Yes, tha t is right.
2a COMMISSIONER AHEARNE And its being beneficial is 24 based on the assumption that it has not been followed in the 25 past.
~
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
s 50 1
Md. COTTERa It has never been required.
2 COMMISSIONER AHEARNE:
Yes.
I recognize that.
(
3 But my earlier question was, where was this a problem.
I 4 have to conclude that if it is being followed it is going to 5 be a benefit, then there is some information that was 6 available and was not laid out.
This adds to this purpose 7 of getting that information laid out.
8 COMMISSIONER BRADFORD:
I do not think there is 9 any dispute about that.
10 CHAIRMAN PALLADINO:
The core 11ary is that lawyers 11 vill not tell you what you want to know until you force them 12 to do it.
13 C0hMISSIONER AHEARNE:
Well, if that is true, a 14 f orcing has to be there.
So, what sanctions do you really 15 have in mind ?
If there are no real sanctions and the i
16 forcing is not going to be there 17 MR. BICKWIT Well, the sanctions we have in mind 18 are the ones I listed, that if the intervenor fails to list 19 a f act then the Board may want to say, "You cannot use that 20 f a c t. "
21 COMMISSIONER AHEARNE:
Now, wait.
That does'not 22 make sense.
Here you heve agreed here is an important 23 issue.
You are now arguino --
i 24 MR. BICKWIT I said that is one possible thing.
25 COMMISSIONER AHEARNE:
You argue in front of the ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
51 1 Board and the intervenor comes up with a fact which is a 2 relevant, important fact.
The Board is now going to say,
(', a 3 " Aha, but you did not tell us earlier, so we cannot take
\\
1 4 cognizance of that."
4 5
MR. PICKWITs If the Board believes that, that is 6 an inappropriate sanction.
I as trying to list the va rious 7 sanctions the Board has.
8 MR. COTTER 4 I would like to back up to a couple 1
9 of points that were made earlier.
First of all, if the to Commission requires a contention, an intevenor's statement 11 of contentions, all known f acts - without the sanction -
12 then there is an obligation imposed on the intervenor to do 13 tha t.
q 1
14 Back to the comment about the lawyer which I an 15 sure was said in a ligh t vein.
Lawyers are officers of.the j
16 court and there is an ethical and a legal duty upon them to j
17 respond and perform in accordance with the rules of this 4
18 Commission.
19 So that if this Commission says, "You are required 1
)
20 to plead all known f acts."
It seems to me tha t the general
]
21 obligation in which that requirement is stated is sufficient 22 to accomplish the objective, and that going beyond that, to 23 start haggling over whether you are going to impose 24 sanctions or not, is simply going to be counter productive.
f 25 CHAIRMAN PALLADINO:
There is one worry, though.
1 i
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
52 1 If I were an intervenor, there are some things I know that I 2 might not even think to tell you, that I know, that may
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3 later turn out to be important.
For example, I happen to 4 know that at 2,000 PSI th saturation temperature is 636 5 degrees.
6 MR. BICKWIT:
It is only a requirement to list 7 those f acts that you affirectively expect to rely on.
8 CHAIRMAN PALLADINO:
Well, I migh t expect to 9 honestly rely on that.
10 MR. BICKWITs Well, you would not expect to rely 11 on it if you could not tilink of it at that point.
12 CHAIRMAN PALLADINOs No, I migh* be trying to make 13 a point that any pressure when it gets into nuclear boiling 14 or not gets into nuclear boiling -- and then I come along 15 and there is a specific case on the 2,000 PSI.
You say, 16 "Well, you know, that is 636," and then somebody says, "Ah, 17 you did not tell tha t. "
18 My example is not good, but I am worried that an 19 intervenor may honestly not appreciate that the knowledge 20 that he has will eventually will have to come to bear on 21 t his.
22 MP. COTTER 4 If he gets an additional reason why 23 the sanction idea is not good, that background fact which is 24 in your head will then be developed during the course of 25 discovery because then you get into a larger examination of ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHING [ON, D.C. 20024 (202) 554-2345
o 53 1 what it is that you are relying on in the contention.
2 MR. BICKWIT:
I am just saying, if he does not
(
3 appreciate it at the time then he does not affirmatively at 4 that time expect to rely on it.
It is only what he 5 affirmatively expects to rely on that he is required to list 6 at this point.
7 MR. SHAPAR:
I agree with that.
Beyond that, I 8 think the crucial question here is whether or not you have 9 sanctions a vailable.
I think part of this discussion 10 revolves around situations where it would not be appropriate 11 to impose a sanction, even though the sanction is available.
12 But the question is, should you have the sanctions 13 available for the extreme case when you really want to levy i
14 a sanction.
i 15 MR. REMICKs But Howard, is it not more than 16 tha t?
If they are available, somebody is going to try using 17 th e r..
The Board has to start deciding sanction issues which 18 are not necassarily the most important.
19 MR. SHAPARs Tony 's main platform is, the Boards 20 ought to have more discretion.
I am prepared to give then 21 discretion in this area.
22 CHAIRMAN PALLADINO:
Well, I wonder if we have not 23 gone far encugh on Option 1, and I know it is very germane 24 to all the other options.
Why not try Option 2?
25 MR. BICKWIT All righ t.
Optior 2 is basically ALDERSoN REPORTING COMPANY INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
Su 1 the court standard on dismissing contentions under Rule 2 12 ( b ) ( 6 ) of the Federal Rules of Civil Procedure.
The
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3 standard that is used is, if there is no set of conceivable 4 f acts, giving every benefit of the doubt to the plaintiff in 5 the court case that could sustain the plain tiff 's claim, 6 then that claim is dismissed at the outset.
7 What is proposed under Option 2 is to apply that 8 standard to administrative proceedings and to intervenor's 9 contentions st the contention stage.
10 This example does not illustrate the differences 11 between Option 2 and Option 1 because under this example the 12 same result ensues.
But that summary of it, I think, is the 13 basic subject matter that you ought to consider.
14 CHAIRHAN PALLADINO:
I have the same problem with 15 two that I had with one because you will not admit any facts.
16 MR. BICKWIT If there is a factual dispute under 17 one or two, the contentions is coming in.
18 NR. BICKWIT:
There is no factual dispute.
19 CHAIRMAN PALLADINO:
But the facts have not come 20 o u t, tha t is my problem.
As to whether or not there is a i
21 ral1 road within the significant range has not been l
l 22 established.
How can you settle the case?
23 I gather Option 2 is based on the statement that 24 it appears beyond doubt that the intervenor can prove no set 25 of f acts to support a claim which would entitle it l
ALDERSoN REPoFINd CGMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C 20024 (202) 554-2345 1
1
55' 1
COMMISSIONER GILINSKYa That is what otherwise we 2 call bounding argument.
In o th e r word s, you say, "Given
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3 that everything he says is correct, it does ot add up to 4 much and is not worth going into."
5 COMMISSIONER AHEARNE:
Tony said, " Assuming all 6 you allege is true, so V:1at?"
7 MR. BICKWIT:
It is more than that.
It is that 8 plus, even if what you allege is true, what you allege is 9 inconceivable; you are out.
10 In other words, you have to establish that if all 11 you allege iv true in order to prevail.
12 COMMISSIONER AHEARNE:
That would make a 13 dif f erence.
14 MR. BICKWIT Yes.
Let's put it in the negative.
15 If it can be demonstrated that even if all you allege is 16 true, so what?
You are out.
17 "n addition, if what you allege is true but 18 inconceivable, you are also out.
19 COMMISSIONER AHEARNE:
Wait a minute, true but 20 inconceivable?
21 MR. BICKWIT4 No, I am sorry.
What you allege, if 22 true, will prove your contention; but if what you allege is 23 inconceivable, you are out.
24 COMMISSIONER GILINSKY:
But is that not the 25 railroad case where the train was a hundred or two-hundred ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 G02) 554 2345
56 1 miles away?
2 MR. ROSENTHALa To say it is inconceivable, you
(
3 really have to say that as a matter of official notice we 4 can reject those assertions; that is what it really amounts 5 to because if it is not open and notorious, it is not true 6 what is being alleged, at least in the judicial practice you 7 cannot throw it out at the threshold, you have to have at 8 least a motion for summary j ud gm en t.
9 So, yo are really back, then, to the open and 10 notorious f act that there are not any railroad tracks within 11 whatever miles.
12 CHAIRMAN PALLADINO:
But there is no way of 13 establishing that at this stage in the game; is that right?
14 MR. SHAPAR4 Under Options 1 and 2.
15 MR. BICKWIT:
But there would be if this were a 16 f act known to the applicant, the applicant came in and 17 pleaded it in response to this, and the Board was willing to 18 take official notice.
19 CHAIRMAN PALLADINO:
If the Board was willing to 20 take official notice.
21 MR. BICKWIT:
That is right.
But only under those 22 circumstances would that factual dispute be resolved at this 23 stage against the intervenor.
24 COMMISSIONER GILINSKY:
Well, it is not clear 25 whether a Board would or would not because we have not had ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
57 1 examples of contentions which were so flagrant.
2 MR. REMICKs Can I go back to tha t because the re
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3 is one I thought of.
I have seen cases where somebody will 4 come in with a contentions in a, let's say, license for a 5 pressurized water reactor, and the contentions speaks about 6 equipment in a boiling water reactor.
7 COMMISSIONER GILINSKY:
That is a good one.
8 MR. REMICK Without the Board ever taking 9 official notice, it just points out that this is a boiling 10 water reactor and that contention applies only to a 11 pressurized water reactor, and disposes of it at a very 12 early stage.
13 Now in a sense they are taking official notice,
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14 but they are not using those words.
15 MR. BICKWIT:
That case is a relevance argument, 16and I will admit that the line of ten is not clear between 17 relevance and, I think, factual.
18 HR. SHAPAR:
That point is well taken.
You will 19 recall, your present rules require a statement of the basis 20 for the contentions.
I do not think anybody at this table 21 would say if the basis for the contention is not reasonable, 22 that that contention can be knocked out even under the 23 present pra c tic e.
24 COMMISSIONER BRADFORD:
Can, or cannot?
25 MR. SHAPAR:
Can, if the basis is not provided.
ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554 2345
58 1
COMMISSIONER BRADFORD:
It can be done.
2 MR. SHAPAR:
That is what Allens Creek is all
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3 about and that is why you have the divided opinion about 4 Allens Creek, whether, was the basis for the contentions 5 reasonable or not that a biomass farm was economically 6 competitive with a thousand megawatt reactor.
You can see 7 that people can differ on that point.
8 Th9 Supreme Court has said that our rule requiring 9 a basis for the contention is valid.
That rule has been 10 upheld.
11 COMMISSIONER BRADFORD:
It was a four to one vote.
12 COMMISSIONER AHEARNE:
Four to one, that is 13 right.
So, only one of us was reasonable.
i 14 COMMISSIONER ROBERTS:
Only one was what?
15 COMMISSIONER AHEARNE:
Was reasonable.
16 MR. SHAPAR:
But the point I am trying to make 17 here is that you do not have to resort to the question of 18 of fi.:ial notice to knock out a contention.
The Supreme 19 Court has upheld a rule that says that an agency can require 20 a basis to be stated in support of a contentic7 and if the 21 basis is not adequate, the contentions can be knocked out.
22 That leads us to the further options.
23 MR. BICKWITs That is right.
Under the first I
24 three options listed in this example, existing practice in f
25 one and two, it is the situation where the basis is so ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
59 1 1rrelevant to the contentions that the Board would find that 2 there is no basis.
Beyond that, there is the official
/
3 notice.
l 4
CHAIRMAN PALLADINO:
Tell me again what Option 2 5does.
Optioin 1 I understood, finally, tha t it provides the 6 information up front. 'You have to have at least that one 7 supportable f act.
8 Now, what does two do, put a bound to that?
9 MR. COTTER:
It says that, even if it is true, you 10 will lose.
11 CHAIRMAN PALLADINO If it is true, then you have 12 to show that it is relevant.
Is that what you are saying?
13 MR. COTTE'Ra Yes.
14 COMMISSIONER AHEARNE:
Not necessarily.
Even if 15 it is true, would it make a difference to your result, I 16 thought was your point.
17 MR. COTTER:
Yes.
18 COMMISSIONER GILINSKY:
It is a de minimis 19 argument.
20 MR. COTTER:
Even if what you argue is correct, it 21 is not going to affect the health and safety of the 22 operation of this plant.
23 COMMISSIONER GILINSKYa It is not going to affect 24 this decision.
25 CHAIRMAN PALLADIN04 In other words, if somebody i
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
60 s
1 claims that when it rains people get wet you say, "What does 2 that have to do with the health and safety of the public
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3 f rom nuclear reactors."
4 MR. COTTER:
If somebody comes in to refine it, a 5 good example, the workers coming into the plant will get vet 6 when it rains.
That is not going to affect the health and 7 saf ety.
8 CHAIRMAN PALLADINO:
That is not going to affect 9 their health and safety.
10 (Laughter.)
11 CHAIRMAN PALLADINO:
I am trying to understand 12 what Option 2 does for you, and I guess you are saying that 13 you have to show that even if the facts are true, they will 14 make a difference in this case; that is what I am getting 15 out of it.
Tat is the added feature on number two.
16 MR. BICKWIT There is one other wrinkle to it.
i 17 If you believe the f acts in two would support the contention 4
18 but you believe those facts are inconceivable.
19 COMMISSIONER GILINSKY:
Why is that not handled 20 under one?
We went through that.
1 21 CHAIRMAN PALLADINO:
The f acts are inconceivable.
22 MR. SHAPAR:
Because one just requires a statement 23 of the f acts, it does not change the standa rd, e ssen tially,
24 as I understand it.
25 COMMISSIONER GILINSKY:
Well, is that not just the ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W WASHINGTON, D.C. 20024 (202) 554 2345
61 1 case of the railroad being a hundred miles away? Iit is 2 inconceivable that the sound from the railroad is going to
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3 affect it?
4 CHAIRMAN PALLADIN0s That has not been introdaced 5 as a fact.
6 COMMISSIONER GILINSKY:
No.
But do we not agree 7 the Boards can throw that cut under current prac tice ?
I do 8not think we have had any examples where they have been G presented with questions like that.
The only ones we have 10 had are those with the boiling water contentions applied to 11 the pressurized water case, and apparently those do get 12 thrown out.
13 MR. SHAPAR:
I think the major point here is, 14 these rules have a certain ethic built around them.
The 15 present ethic with respect to contentions is to let it in 16 f or wha t it is worth, and nobody pays too much attention to 17 the rules.
18 I think that is a fair statemewnt.
19 COMMISSIONER AHEARNE:
I do not think that is the 20 case at all 21 MR. SHAPAR:
Well, the first statement on the part 22 o f the parties who litigate the cases the general f eeling 23 is --
24 COMMISSIONER GILINSKY:
Let's see, the parties do 25 not pay attention or the Board does not pay attention to the ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202; 554-2345 r
62 1 rules?
2 MR. SHAPAR As of this point I am addressing only I
3 the parties.
4 MR. ROSENTHAL We have a nice set of rules and 5 the parties do not pay any attention to them.
Now the 6 suggestion is, change the rules.
7 MB. SHAPARs The general feeling is that the 8 contention is going to get in, no matter what they say about 9 it.
There is a feeling that it will be let in for what it 10 is worth.
That is the feeling.
11 I am not arguing that it is right or wrong, I am 12 stating as a fact this is the way the litigatore feel about 13 i t.
(
14 MR. COTTER:
I controvert your so-called fact.
15 COMMISSIONER GILINSKY:
Are you also saying the 16 Boards are not applying the rules?
17 MR. SHAPAR:
Yes.
18 COMMISSIONER GILINSKY I just want to get that.
19 MR. SHAPAR:
I had not said so up until now, but I 20 wan t to be responsive to your question.
21 COMMISSIONER AHEARNE:
I will have to say from my 22 much more limited set of data which just comes from reading 23 the Board decisions as they come through, I would have to 24 say that I found it very difficult to see on what grounds a 25 Baord would be willing to reject a contention.
There are ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
63 1very few other than, "The contcntion is withdrawn."
2 HR. COTTERa I can give you some numbers because
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3 they reject a lot.
4 COMMISSIONER AHEARNE:
They probably do not get to 5 the level of discussion, then, I see in the se cases.
6 ER. SHAPAR:
It is a result of job voting on the 7 part of the Boards and the parties getting together if they 8 are withdrawing.
9 COMMISSIONER GILINSKY4 let's see, do you quarrel 10 with the present rules if they were applied reasonably, 11 uniformly?
Well, I have to say two things.
As a 13 legal matter the Commission can set a higher threshold than
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14 the threshold that is now established.
As a policy matter I 15 would se t a higher threshold, yes.
16 COMMISSIONER AHEARNE:
That is not his question.
17 His question was, if the rules as currently established were 18 applied consistent with what they seem to say, would you 19 believe that would be adequate.
20 MR. SHAPAR:
No.
I think the threshold should 21 still be set higher than that.
I would set it around a 22 widely understood doctrine, and tha t is tha t there be a 23 demonstration of a genuine issue of material f act.
I would 24 rely on court cases which say, " Lead a reasonable man to 25 inquire f urther."
If that would be upheld, it is based on ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 9
64 1 good case law, I think it is reasoaable as a matter of 2 policy.
3 COMMISSIONER ROBERTS:
Why are you shaking your 4 head?
5 MR. ROSENTHALs I do not agree with that at all.
6 COMMISSIONER ROBERTS:
Could we hear your 7 viewpoint?
8 MR. ROSENTHAL:
9
~
10 11 12 13 14 15 16 17 19 20 21 There is just no way in which this party, this 22 plaintif f, could conceivably establish the facts which he 23 has alleged in his complaint.
2/
HR. COTTER:
Plus failure to state a claim u n
25 which --
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MR. ROSENTHAL4 That is a legal issue.
I mean, i
l 2 that is the other half of it which Len was referring to,
(~
3 where the judge looks at it and says, "All right, even if 4 everything he says is true - A, B, D, and E - nonetheless, 5 he is not entitled as a matter of law to relief."
A judge 6can always dismiss a complaint on that ground.
7 But that is not getting into the matter of the 8 truth or f alsity of his allegations of fact.
But the judge 9 has to look at those allegations of fact because if they are 10 all true, the individual might well be entitled to relief.
11 There, the judge can only determine, as I read that 12 standard, that this is just frivolity.
That the individual 13 is claiming that the moon had collided wi th the earth on the
(
14 other side of it yesterday, or something of that order.
15 But a genuine issue of material fact, that is 16 something which is disposed of in the courts on summary 17 judgment.
18 MR. COTTER And summary judgment as a rule which 19 provides fer some sort of evidentiary submittals before it i
201s rende red.
i 21 MR. ROSENTHALs That is right.
[
22 MR. COTTERa There can even be a hearing.
23 MR. SHAPAR:
I think the question is whether or 24 not this agency has the legal authority to set a threshold 25 theory, or a standa rd at the threshold before summary ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
6 66 1 disposition which is based on a genuine issue of material 2 f act, and the measure of that would be whether or not it
('
3 would lead a reasonable man to inquire further - not at 4 summary disposition, but at the threshold.
5 The General Counsel and I have both told you that 6 in our opinion that is legal.
7 COMMISSIONER AHEARNE:
Tony, in your paper, in 8 writing on Option 2 you said, "Should this option be 9 adopted, we believe that the materiality standard should be 10 added."
4 11 Did you mean what Howard was just describing?
12 MR. COTTER:
No.
13 MR. BICKWIT:
I think he meant what you were just
('
14 saying before, it is thrown out that.
It can be said, 15 "Even if all you sa.y is true, so what?"
i 16 MR. COTTER 4 I think that is righ t.
17 CHAIRMAN PALLADINO:
going back to your example, 18 you say that since there is a set of conceivable facts which 19 would suppor t contention.
How do you know there is a set of 20 conceivable facts that will support the con tentions?
J1 You gave it to us as though that were truism, but i
22 I do not see it, necessarily.
23 MR. BICKWIT:
If nobody has suggested to you that 24 there is no t, then I would say there is.
25 CHAIRMAN PALLADINO:
Well, the applicant came in --
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67 1
MR. BICKWIT4 I would assume under this the 2 applicant comes in with his study as outlined.
)
{'
3 CHAIRMAN PALLADINO He comes in and says there is 4 no train track within a hundced miles of this plant.
You 5 say the court cannot accept that.
6 MR. BICKWIT:
I am saying if the intervenor can 7 test tha t f act, then it is conceivable that the intervenor 8 is right, and the factual dispute is not to be resolved at 9 that stage under Option 2.
10 MR. ROSENTHAL But it seems to me, though, when 11 you are dealing with something like this, when the Licensing 12 Board is in a special prehearing ianference and is dealing 13 with this contention and the applicant says, "Look, we know 14 what is around our plant and we can tell you 'there is not a 15 railroad within 50 miles of it."
You say to the intervenor, 16 " All right, now obviously your contention rests on the 17 premise that there is a railroad, operating railroad, within 18 50 miles.
Now, tell us, what is it?"
19 CHAIRMAN PALLADINO Well, you put the word 20 " operating" in there now.
21 MR. ROSENTHAL:
It has to te an operating railroad 22 tha t has trains on it.
23 CHAIRMAN PALLADIN0s Well, I come back and say, "I
24 just went down on a hike last Tuesday and there is a spare 25 line that goes right down the valley, right t ver this little ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
68 s
I hill there.
Didn't you know about that track?"
2 I happen to kow it is not operating.
((,
3 MR. ROSENTHAL:
But I think you can at least press 4 the petitioner for intervention on just, "What is your claim 5 based on, what railroad is it that you think runs in that 6 vicinity and what is your basis for it?"
I think it is at 7 that point.
8 CHAIRHAN PALLADIN0s But you get farther.
That 9 little line that I referred to is dead, but I know that 10 there is a steel mill there that is having trouble getting 11 truck service, and that line may open within the 40 years of 12 your plant.
13 HR. ROSENTHAL:
That is what he can say.
But my
(
14 point simply is that the Board can engage in preliminary 15 explorations - and I think Forrest would bear me out on that 16 - can engage in the preliminary explanations and if the 17 intervenor said, "Well, gee I had heard somewhere that there 18 is a track down there, I do not know," the Board then can 19 say, "Well, you have so many days to go down the're and 20 verif y it."
21 MR. COTTER:
A substantial number of contentions 92 are withdrawn ar a result of that process.
23 MR. ROSENTHAL:
Right on that basis.
So, there is 24 a lot of this informal kind of discussion that goes on as is 25 illustra ted by almost all of the special prehearing ALDERSON REPORTING COMPANY,INC, l
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69 1 conference transcripts.
2 MR. REMICK:
And if you come to the case where you
(
3 are talking about, where somebody says, "There is a spur but 4 it not used," and the other person says, "Yes, it is," or 5 maybe, "We expect it to be used."
I think a reasonable line 6 is to inquire f urther and get the facts.
7 CHAIRMAN PALLADINO:
Well, shall we try Option 3 8 for a while?
9 MR. BICKWIT:
Just to point out, the difference 10 between Option 2 and the existing practice, the official 11 notice situation, is that undor Option 2 you do not have to 12 take official notice of a f act in order to determine that 13 there is no perceivable set of facts.
(
14 You could simply say, "If it is your view that 15 there is no conceivable set of facts, you can dismiss the 16 contentions on that basis without going through the official 17 notice and the opportunity to rebut implicit in the official 18 notice procedure."
There is not a big difference.
19 COMMISSIONER AHEARNE:
The Board could say, "We 20 have looked at your contentions and we find that to us it is 21 inconceivable that you could be right."
22 MR. BICKWIT:
Tha t is right.
23 COMMISSIONER AHEARNE:
And they would not have to 24 explain why.
25 MR. REMICK:
There is cae aspect to that - and I ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE' S.W., WASHINGTON, D.C. 20024 (202) 554 2345
70 1 apologize - that I have a little bit of trouble with, and 2 that is on the question of relief because I think there are
(
3 dif feren t kinds of relief.
4 The intervenor might want the plant not to be 5 built, but there are other forms of relief that he might get 6 as a result of exploration of the contentions.
It might be 7 a design modification or it might be an operating condition 8 which is a f orm of relief.
9 So, I have a little bit of trouble there kn'owing.
10 MR. COTTER:
That is included.
11 MR. REMICKs It is included.
12 COMMISSIONER AHEARNEs I think what Forrent is 13 saying is that when you use the standard, that can have no
(
14 ef f ect on the decision.
Given' the wide range of potential 15 impacts on the decision it is hard, it is very hard, to 16 struggle with some f acet that could not lead to some 17 determination.
18 For exemple, in your train case you might conclude 19 tha t, "Well, you would have to put in a slightly higher 20 powered siren system."
That would be a function of how far 21 away the trains, or how loud the trains.
22 MR. COTTER:
I think maybe it would be useful, it 23 just occurred to me, that a recap of the impact of Option 1 24 and Option 2 is, in the case of Option 1 the necessity to
{
25 plead some f acts will eliminate certain contentions, the ALDERSON REPORTING COMPANY,INC, a
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71 1 kind where somebody just comes in and has some wild and 2 crazy statement, and will eliminate the need to go to a
.(
3 preconference hearing to get rid of it.
4 So, to that extent it is a raising of the 5 threshold, it has a salutory effect.
6 COMMISSIONER AHEARNE:
Unless the y sa y that they 7 intend to prove it on discovery.
8 MR. COTTER:
Well, you go to the preconference 9 hearing and deal with it.
But there are certain kinds of 10 contentions that will not then appear if they know that the 11 obligation at the outset is to cover the fact.
12 Then, I think the same thing, you are adding by 13 including that and moving to Step 2, to the failure to state
(
14 a claim.
You are adding another option for eliminating 15 certain kinds of cententions.
16 But I think it would be fair to say that the kinds 17 of contentions that you are going to see that fail to state 18 a claim will be f ew.
19 CHAIRMAN PALLADINO:
I know we were scheduled only 20 to go until 12 o' clock.
Are you willing to go until about 21 12:20?
j 22 MR. BICKWIT:
I certainly am, yes.
23 CHAIRMAN PALLADINO:
All right, I think it is 24 worth it.
25 MR. BICKWIT I do not think you are approaching a ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) $$4 2345
72 1 decision here.
2 CHAIRMAN PALLADINO:
No, I-did not mean that.
{
3 HR. COTTER:
we just finished the first semester 4 of law school.
5 (Laughter.)
6 CHAIRMAN PALLADINO:
I am getting an education.
7 You want to try number three?
8-HR. BICKWITs Yes.
Option 3 is basically that the 9 intervenor has to demonstrate that there is a genuine issue 10 of material f act in dispute here.
11 It it understood tha t the Board can use its own 12 technical knowledge to assist it in that determination, but 13 that if it does so, there must be an opportunity to rebut
, l 14 the Board prior to the dismissal of the contentions.
15 The way we see this operating is as outlined in i
16 this attachement.
Let us assume.that the applicant has in 17 his application a study which demonstrates that the train 18 noise will not drown out the sirens.
He pleads that. -The 19 intervenor is not on notice as to what is contained in that 20 applica tion until the pleading takes place.
21 If the Board is persuaded by that showing, the 22 Board would then inform the intervenor that it planned to 23 dismiss the contentions unless the intervenor can rebut that 24 particular showing of the applicant.
25 In our example the intervenor attempts to conduct l
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73 1 that rebuttal by claiming that it has examined the train 2 tracks and that these are different from the tracks used in
(
3 the applican t's study.
And also cites an expert study that I
4 the train tracks in the area vill produce a louder noise 5 than the tracks assumed in the applicant's study.
6 In other words, the intervennor is saying there is 7 a hole in the applicant's case.
The applicant has the 8 burden of establishing that the regulations are met, and th e 9 intervenor is claiming in this case that the applicant will 10 not be able to sustain that burden.
11 Under these circumstances, the Board would then go 12 back to the applicant and get a rebuttal from the applicant 13 under the f acts assumed there would be a genuine issue of
(
14 material f act in dispute between the two, and the 15 contentions would be admitted.
16 COMMISSIONER GILINSKYs My legal assistant tell i
j 17 m e, this is reminiscent of 18th Century pleading practice.-
18 (Laughter.)
19 MR. ROSENTHAL:
Fifteenth Century.
1 i
20 COMMISSIONER AHEARNE:
Len, you say in your 21 write-up of the modification of Option 3 that this would 22 overrule the Allens Creek decision - I guess you say by 23 permitting the Licensing Boards to look at the merits of a 24 con tention.
25 Given the Allens Creek issue, and since it has now 1
f ALDER $oN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
i 74 1 been closed, that particular contention was dismissed so we i
2 can talk about its substance.
What kind of a discussion or
(
3 presentation would you have felt would have been required by 4 the Licensing Board in their dismissing of that contention?
5 CHAIRMAN PALLADINOs Under this?
6 COMMISSIONER AHEARNEs Yes, under this.
7 MR. COTTER 4 You can say the result would be 8 dif ferent.
You say the case was overruled.
9 MR. BICKWIT 1 think if the Licensing Board is 10 taking official notice of f acts - and I am not familiar 11 enough with the specifics of Allens Creek to answer your 12 question thoroughly - then there would have to be some kind 13 of statement of the Licensing Board as to why official i
14 notice was being taken of facts which were inconsistent with 15 wha t the intervenor was claiming.
16 COMMISSIONER AHEARNE:
Le'. me put it a different 17 vay.
Are you familiar with the Appeal Board decision in 18 Allens Creek?
My question would be --
19 MR. BICKWIT:
No.
20 COMMISSIONER AHEARNE4 Maybe Marty is.
Jagk Buck 21 w ro te a dissent.
Would that dissent, the information 22 presented in that, be the kind of information that you would 23 expect would be required to be presented by a Board on which 24 then the intervenor would be asked to comment, or provided 25 an opportunity to?
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MR. MALSCH:
I think that would require the Board 2 to' explain and say, "We think this is clearly not a viable
('
3 alternative because under the assumptions in which it is 4 proffererd you need a certain amount of square miles, and 5 these kinds of assumptions are necessary; just lay that all 6out."
7 COMMISSICNER AHEARNE:
Alan?
8 MR. ROSENTHAL4 Well, I think first of all, of 9 course Option 3 as the example that is set forth in this 10 paper would not have applied to Allens Creek because the 11 applicant obviously would not have addressed in its 12 application, the biomass alternative, at all.
13 COMMISSIONER AHEARNE:
Right.
/
14 MR. ROSENTHAL4 So, the question here would be, 15 D r. Buck or whoever was looking at it, he does not have on-16 the record any information about biomass at all, or very 17 little, perhaps.
18 COMMISSIONER AHEARNE:
Right.
19 MR. ROSENTHALs I mean, it may be in the 20 environmental impact statemewnt there was a short statement.
21 COMMISSIONER AHEARNE:
Right.
22 MR. ROSENTHAL:
So, the question then is, where is 23 tha t Board member going to derive his information.
24 COMMISSIONER AHEARNE:
But you recall what Dr.
25 Buck did is, he looked at the project independence report ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
i 76 1 and he then discussed the contention with respect to project 2 independence and his own technical analysis of the validity
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3 of that.
4 HR. ROSENTHAL:
But he looked at, it was said, 5 project independence, about tha t alterna tive.
6 COMMISSICNER AHEARNE:
Right.
7 HR. ROSENTHAL:
That is all that he had before 8 him, apart from whatever he might have happened to 9 personally know on biomass.
10 COMMISSIONER AHEARNEs Correct.
11 MR. ROSENTHALs I think that really brings to the 12 f ore the question of the extent to which you are going to 13 allow Board members to inject into this threshold
/
14 consideration of contentions either, one, their own personal 15 knowledge acquired over a lifetime of educational and 16 vocational acquisition or, two, what they then may go to the 17 books and through their personal research projects learn.
4 18 COMMISSIONER AHEARNEs Right.
19 MR. ROSENTHAL4 And then the question is, if you 20 are going to allow them to employ their own previously 21 acquired knowledge - either again educationally or 22 vocationally - or allow them to go + o independent research, 23 then bef ore that all comes out on the printed page, do they 24 have to provide the petitioner with the opportunity to rebut.
iS it.
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77 O
1 COMMISSIONER AHEARNE That was wy question.
2 MR. ROSENTHAL:
I would say, clearly, yes.
3 COMMISSIONER AHEARNE:
My question was, given the 4 dissent that Buck filed in that, is that presentation he 5 made, would that meet the requirement that you see in this 6 option that as Len has described it, the Board would~have to.
7 provide an opportunity for the intervenor to rebut?
8 MR. ROSENTHAL:
In that case, to the extent that 9 Dr. Buck was relying on disclosures in the project 10 independence report, the response might be, the intervenors 11 have relied on that report as the basis or the major part of 12 the basis for their contention.
13 So, it is f air enough for a member of the Board to 14 look to that very same report and sa y, "OK, this is what you 15 are putting forth as the basis and if you go on to the next 16 page of the report it indica tes that you need 300,000 square 17 miles or whatever of marine territory, that, on its face, 18 makes this a nonfeasible alternative."
19 The more difficult case is where the Board member 20 is relying on something other than.the material which-vas 21 pu t forth by the petitioner for in terventien.
22 23 24 25 ALDERSON REPORTING COMPANY,INC, 4
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l 1
COM'MISSIONER AHEARNE:
2-3 4
5
-l 6
7 8
MR. ROSENTHAL:
9 10
~
11 COMMISSIONER AHEARNE:
Yes.
12 ER. BICKWITs I think you migh t then be vat under 13 Option 2.
14 MR. ROSENTHAL:
Yes, I think so.
15 MR. BICKWIT Because he is admitting that this is 16 his basis.
17 MR. ROSENTHAL:
And the Board looks at the basis 18 and says, "This is not an adequate basis, wha t you have 19 presen ted."
20 MR. COTTER:
As a practical mattet, though, if he 21 sees himself getting painted into that corner, he is going 22 to. find himself another basis.
23 COMMISSIONER AHEARNE:
I doubt if he could, then.
24 MR. COTTER:
Well, in that case maybe.
25 CHAIRMAN PALLADINO:
Do I understand the main i
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79 0
n) 1 difference between Option 3 and Option 1 is, ypasnar Option 1 2 you present the facts and don't argue about them; and under
(
3 Option 3 you are allowed to argue about them?
4 MR. BICKWIT:
I think that is fair.
5 COMMISSIONER AHEARNE:
Well, I thought Option 3 6 also included the possibility that the Board member could 7 use, 'as Alan pointed out, the information gained through a 8 lif etime of work in that area.
9 MR. SHAPAR:
With general opportunity for rebuttal.
10 COMMISSIONER AHEARNE:
Yes, rather than strictly 11 restricting to the facts that are alleged.
12 CHAIRMAN PALLADINO:
But after they are rebutted, 13 then they still can use their experience.
But at least the 14 parties here can argue about their views.
15 MR. REMICK:
Basically, what Option 3 does, you 16 might have many hearings to decide these because Board 17 members probably will not necesarily rely on written 18 inf ormation ; they are going to have questions they are going 19 to want to pursue.
So, you end up kind of having a 20 mini-hearing under Option 3 to decide.
21 MR. BICKWITs But not one with cross-examina tion 22 and the full rigors of the Administrative Procedure Act.
23 MR. REMICK That is true.
24 MR. SHAPAR:
And the rule can make it clear that 25 it can be decided by the Board - can be decided by the Board ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
80 e
i 1 on the pleadings.
2 MR. CCTTER:
But you know, that is the problem i
3 with Option 3.
You are taking the summary judgment, the 4 summary disposition procedure and you are shoving it into 5 the pleadings at the front end; and you are not giving the 6 parties upon whom you have to make a decision an opportunity 7 to establish their position.
6 MR. SHAPARs Only when it does not lead a 9 reasonable man to inquire further.
10 COMMISSIONER BRADFORD:
Well, but there may be 11 f acts that have not become available to the parties yet that 12 might lead a reasonable man to inquire further because they 13 do not have all the documents.
i 14' MR. SHAPAR That is a basic policy issue, if you 15 accept the fact that discovery might later bring in stuff 16 which would cause a different result to be reached.
17 COMMISSIONER BRADFORD:
How about just the safety 18 analysis report without Discovery?
The fact is that all the 19 documents that are part of the case have not yet been filed 20 and become available.
21 MR. SHAPARs Again tha t is a policy question as to 22 whether or not in determining whether somebody is entitled 23 to cause a hearing to be held and to litiga te it, should be 24 able to state the basis for his position and his basic 25 position based on the application which has been submitted ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D C. 20024 (202) 554-2345
81 1
1 by the applicant who has the burden of proofs or whether he 2 is. entitled to rely and wait to see what the staff has done i
3 in its own independent analysis of that same application.
4 Now, this is a basic gut policy issue on which 5 reasonable peole can differ.
i 6
COMMISSIONER BRADFORD:
But even the application 7 is still being amended at that point.
8 MR. SHAPAR:
Well, to the extent it is amended, 9 then you are talking about requirements in the rule to 10 accomodate amendments.
I am talking basic concept now.
Is 11 an intervenor entitled to wait to see what kind of a job the 12 staff has done to be able to meet a threshold which is 13 determined at the very beginning?
f 14 MR. ROSENTHAL:
The answer on the environment is 15 clearly, yes.
16 MR. SHAPAR:
Well, let's stick to the basic point i
17 on health and safety, then we will get to the environment 18 lat er.
19 MR. ROSENTHAL:
Excuse me, but if you are talking 20 about separate contention requirements for the environmental 21 health and safety side, you have to look at the requirements.
22 MR. SHAPARs Well, you do not have to now because 23 as of now the requirement f or the basis for the contention 24 and the way you handle the staff's job on the environmental 25 impact statemevnt is allow late-filed contentions, and no i
c.
s i
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3 1 one has suggested any change in that process.
2 But I am talking now to the basic question which
(
3 you have identified, and I think it is starkly identified.
4 That is, can you establish a threshold, a reasonable 5 threshold - whatever it is - before anybody has seen the 6 staff's EIS and SER.
7 COMMISSIONER GILINSKY:
Would yu allow late-filed 8 contentions af ter the SER has been produced ?
9 MR. SHAPAR:
I would have to allow something for 10 late-filed contentions based on some other kind of 11 standard.
Alan's point is that the agency does have an 12 independent job to do its NEPA analysis.
That is different 13 from the safety aspect of it.
14 We are responsible, under statute, to do a 15 competent NEP A job.
Somehow that can be tested.
If we do 16 not allow that to be tested in our hearing process, he can 17 test it in the, courts.
Then the policy que tion is, where do 18 you want to have it contested first, in our process or in 19 the courts.
20 So, NEPA is a special problem here which I do not 21 wan t to confuse the basic policy question with, which I 22 think I have just identified.
23 CHAIRMAN PALLADIN0s How does Option 3 help us in 24 the hearing process, does it save any time?
25 MB. BICKWITs The purpose of it is to eliminate ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
83 1 issues which at threshold it cannot be demonstrated are 2 going anywhere at all.
(
3 CHAIRMAN PALLADINO:
But it does take some 4 argument and it takes time.
The question is now, do you get 5 into enough to save time later.
6 MR. BICKWITs You are certainly going to knock out 7 contentions with Option 3; that is our view.
The question, 8 I think, the policy question is, given that you will knock 9 out some which conceivably could be helpful in assisting the 10 agency in resolving health and safety questions, is it worth 11 doing.
12 Our view, after reading through some of the cases, 13 is that there really are an awful lot of cases in which 14 intervenors really have not shown that they have anything, i
15 and tnis is demonstrated at th'i conclusion of the hearing or 16 a t the summary disposition stage.
17 That it would be helpful in terms of agency i
18 resources to not to have to go through the particular 19 process in those instances.
20 CHAIRMAN PALLADINO:
Now, do we have an 21 assessment, or maybe we have some opinions, as to whether or 22 not in the end it helps the overall hearing process?
23 MR. BICKWIT:
I think you do have some opinion.
I 24 tnink people ought to be heard f rom.
25' COMMISSIONER AHEARNE:
Could I go first since I 1
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84 I think I was perhaps the author of the alternative which is 2 reflected here, at least, say, the three objectives that I
/
3 had in mind?
4 COMMISSIONER GILINSKY:
Why do you say "perhaps?"
5 COMMISSIONER AHEARNE:
Well because by the time 6 that they are spread out, distributed on Len's six options, 7 I think my alternative tracks to No. 3; but I think clearly 8 some of the commenters did not.
That is why I say "perhaps."
9 The desire is to have the hearings focus on 10 important issues significant to the health and safety, and 11 so forth, and not focus on unimportant issues.
That is 12 combination of resourcers and also, I believe, it has a 13 f undamental hope of having the hearings reviewed by both
/
14 participants and observers as being something that is 15 significant, as opposed to - as it sometimes has been 16 described - as a charade or an art form.
17 I had also hoped that since we do have Hearing 18 Boards that have on it people who are chosen for technical 19 compe tence, tha t they could use that technical competence in 20 the early stages on addressing contentions.
Those were the 21 principal reasons.
22 COMMISSIONER GILINSKY:
How do you compare that 23 with the present system of summary disposition?
In other 24 words, what this proposal would do would be to move part of 25 that process into the contention existence process without l
l ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 l
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85 1 the benefit of the parties' briefs, I gather.
l 2
COMMISSIONER AHEARNE:
Sure.
In the first, as far 3 as the use of the technical knowledge, the members have to 4 use their technical judgment on both.
I was trying to move Sit at an earlier stage.
On the contentions currently ther 6 are not allowed to do that.
7 The second, my belief - and it comes more from 8 having talked to staff lawyers and staff members - is that 9 summary judgment is a long, difficult process and it really 10 does not save much time.
Since then I have been trying to 11 read more caref ully the resolutions of summary judgments on 12 the Boards and my belief is even strengthened by th a t.
13 COMMISSIONER GILINSKY:
My feeling is that without s
l 14 the benefit of the parties' briefs the Boards will not be so 15 bold as to throw out many contentions because they will not 16 be clear whether they ought to be in or ought to be out - or 17 vill not be manifestly clear that they ought to be out.
18 MR. SHAPAR:
But you will be monitoring the 19 process.
20 MR. COTTER:
The brief is in evidence.
21 CHAIRMAN PALLADINO Is this the one where there 221s a suggestion that we try it for six months?
23 MR. BICKWIT No.
24 CHAIRMAN PALLADINO That was on another one, that 25 was on interrogatories, I think.
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MR. BICKWITs Tha t is right.
2 CHAIRMAN PALLADINO I was not even on the right 3 subject.
s 4
MR. BICKWITs The right paper.
5 CHAIRMAN ~ PALLADINO:
Not on an admissible 6 contention.
But I do notice the time is well past 12:20.
7 Do we have another meeting scheduled on this?
8 MR. CHILKs There is one on the 23rd.
9 CHAIRMAN PALLADIN0s I guess that is the next time to we vill pick this up.
I found the discussion very helpful 11 and I hope that we can continue to elucidate whether or not 12 i t will help us to make a vote item of it.
13 Without any other items coming up, we will stand 14 adjourned.
15 (Whereupon, at-12:15 p.m.
the meeting of the 16 Commission was adjourned.)
17 18 19 20 21 22 23 24 25 i
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i.
MUCLEAR REGULATORY CO'C4ISSION This is to certify that the attached proceedings before the COMMISSION MEETING
\\
in the matter of:
CLOSED MEETING - EXEMPTION 10 - DISCUSSION AND POSSIBLE:
VOTE ON REVISED LICENSING PROCEDURES, PROPOSED RULE CHANGE TO PART 2 Date of Proceeding:
Sectember 15. 1981 Docket !! umber:
Place of Proceeding:
Washington, D. C.
were held as herein appears, and that this is the original transcript therecf for the file of the Ccamission.
M.
E.
Hansen Official Reporter (Typed)
!f-Official Reporter (Signature)