ML20032E849
| ML20032E849 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 11/18/1981 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8111230372 | |
| Download: ML20032E849 (75) | |
Text
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/7 ARIZONA PUBLIC SERVICE COMPANY, et al
) DOCKET NOS.
(Palo Verde Nuclear Generating Station,
) STN 50-528 OL Units 1, 2 and 3
) STN 50-529 OL
) STN 50-530 OL
)
- Acr: novnmber is. 1981 PAczs:
s, m-,,,s AT: Phoenix, Arizona
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40 0 Virg_nia Ave.,
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20024 Tahphone: (202) 354-2245 G111230372 811118 PDP ADOCK 05000528 T
51 I
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
ATOMIC SAFETY AND LICENSING BOARD O
4
x 5
In the matter of:
6 ARIZONA PUBLIC SERVICE COMPANY, et a1 Docket Nos.
(Palo Verde Nuclear Generating Jtation, :
STN 50-52d OL 7
Units 1,
2, and 3.)
X 9
Kednesday, November Id, 19d1 10 Courtroom 2, 7th Floor The Federal Building 11 230 North First Avenue Phoenix, Arizona 85025 Prehearing conference in the above-entitled matter convened, pursuant to notice, at 9:30 a.m.,
14 BEFORE:
15 ROBERT M.
LAZO, Chairman, 16 Administrative Judge Atomic Safety and Licensing Board RICHARD F. COLE, Member, 18 Administrative Judge Atomic Safety and Licensing Board A.
DIXON CALLIHAN, Member 20 Administrative Judge Atomic Safety and Licensing Board 22 APPEARANCES:
13 On behalf of the Joint Applicants:
24
(])
ARTHUR C. GEHR, Esq.
dnell & Wilmer 15 3100 valley Center, Phoenix, Arizona 85073
52 1
on behalf of the Nuclear Regulatory Commission Staf f:
()
2 EDWIN J.
REIS, Esq.
Office of the Executive Legal Director 3
Nuclear Regulatory' Commission hashington, D.C.
5 On behalf of the Intervenor:
6 PATRICIA LEE HOURIHAN 6413 douth 26th Street 7
Phoenix, Arizona 85040 8
On behalf of the State of New Mexico:
9 RAND L. GREENFIELD, Esq.
Assistant Attorney General 10 Office of Attorney General P.O.
Box 1508 11 danta Fe, New Mexico 87503 12
(])
13 14 15 16 17 18 19 20 21 22 C) 23
(:)
24 25
53 P3QQE{Qlygg 2
(9:35 a.m.),
3 JUDGE LAzo:
On th.: record.
4 Good morning, ladies and gentlemen.
This is an 5
administrative proceeding before an Atomic safety and 6
Licensing Board of the United States Nuclear Regulatory 7
commission, in the Matter of Arizona Public service Company, 8
and four Joint Applicants renarding the Palo Verde Nuclear 9
Generating dtation, Units 1,.2 and.3..
10 The proceeding is identified as Nuclear Regulatory 11 Commission docket number STN 50-528 OL, 50-529 OL and 12 50-530 OL.
Q 13 The proposed administrative action is the issuance 14 of facility operating licenses which would authorize the 15 Joint Applicants to possess, use, and operate Palo Verde 16 Nuclear Generating Station, Units 1,
2 and 3, three 17 pressurized water nuclear reactors located on Applicants '
18 site in Maricopa County, approximately 36 miles from the 19 City of Phoenix.
l 20 Notice of this pre-hearing conference was issued 21 by the Licensing Board on November 4.
I apologize that we 22 were not able to designate this courtroom at that time, but 23 it appears that all of you have found it by checking with 24 the clerk downstairs.
25 Let me say welcome.
This will not be an evidentiary I
54 1
session, but a meeting of the participants, Counsel for the (3
s/
2 parties, in order to consider various matters that have 3
arisen since our last pre-hearing conference on December 2, 4
last year.
5 As a first order of business, let us call for 6
appearances, please.
'1 For the Joint Applicants?
8 MR. GEHR:
Arthur C. Gehr, dnell and b.ilmer, 9
Phoenix, Arizona, appearing on behalf of the Joint 10 Applicants, who are represented collectively by Arizona Public 11 dervice company.
12 JUDGE LAZO:
Thank you, Mr. Gehr.
()
13 And for the Nuclear Regulatory Commission?
14 MR. REIS:
Edwin J. Reis, Office of Executive 15 Legal Director of the Nuclear Regulatory Commission, 16 t.ashington, D.C.
17 JUDGE LAZO:
Thank you, Mr. Reis.
For trae 18 Intervenor?
19 M3. HOURIHAN:
Patricia Lee Hourihan, and I am 20 representing myself.
21 JUDGE LAZO:
You are not represented by Counsel 22 today, Ms. Hourihan?
)
23 MS. HO URIHAN:
I have Counsel, but they are not 24 representing me today.
{)
25 JUDGE LAZO:
Very well.
Thank you, Ms. Hourihan.
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And for the State of New Mexico?
()
2 MR. GREENFIELD:
Rand L. Greenfield, Assistant 3
Attorney General, for the Attorney General of the otate of m
4 New Mexico.
5 MR. GEHR:
If the Chairman please, I would like to 6
introduce on my right Mr. Carl Andognini.
He is the vice-7 president of Arizona Publi'c Service company.
8
~
JUDGE LAZO: Vice -president, you say?
9 MR. GEHR:
Yes, vice president of electric 10 operations, and he will be responsible for i operation of 11 Palo Verde when it comes on line.
12 JUDGE LAZO:
Thank you, Mr. Gehr.
()
13 MR. REIS:
Mr. Chairman, Ms. Hourihan mentioned 14 that she has Counsel.
I don't believe he has filed a notice 15 of appearance yet.
This is news to the Staff that there is 16 counsel in this proceeding.
I think it may be appropriate 17 to inquire who this Counsel is at this time.
18 MS. HOURIHAN:
My Counsel is an attorney that is 19 helping me with the briefs, and is not going on the record as 20 of yet until time of the hearing, if he so wishes.
21 MR. GEHR:
I am still -- I am confused., I don't 22 know whether she is represented by Counsel or whether she is 23 appearing by herself.
24 JUDGE LAZO:
One of the problems, Ms. Hourihan, 25 would relate to the proper service of papers and documents,
56 i
1 as far as service is concerned, if a party has counsel, and
()
2
,has authorized that counsel to represent them, then the other 3
parties would serve papers on your counsel.
()
4 If you do not have counsel, then they will want to 5
know where 'to serve you.
It is just a matter of convenience 6
to the parties, and how you plan to operate.
7 If you wish to have the assistance of a lawyer to 8
help you in preparing your papers, I don't think we would 9
find any problem with taat, but+the mechanics of it dictate 10 that we ought to know thether you want your Counsel to be 11 yo:r spokesperson, or wheiner you are going to continue to do 12 it yourself.
(])
13 M3. HOURIHAN:
I was under the impression that 14 unless the attorney filed appearance, and he would just be 15 helping me, and I would be,. representing myself, and that is 16 pretty much where I stand, that I would be representing 17 myself.
18 JUDGE LAZO:
Any problem?
19 MR. GEHR:
No.
20 MR. REId No problem.
21 JUDGE LAZO:
All right, thank you.
(~g 22 he had thought that as a first order of business on V
23 the agerda, we should probably consider the motion of the 24 Attorney General of the State of New Mexico, and the status
()
25 of the state.
Perhaps, Mr. Greenfield, you might address
57 1
that.
O 2
you have recene1y f11ed,a gaper with-eh, parties, 3
which we have received.
Do you have anything to add to your 4
latest filing?
5 MR. GREENFIELD:
There are presently, as I see it, 6
tuo issues.
The first issue is the original motion to 7
participate, and the response of the Joint Applicants to that 8
original motion, and the Attorney General's response to the 9
Joint Applicants.
10 Also, there has been filed by the Attorney General 11 a motion to amend that original motion to participate, and 12 therefore, I think there are two issues, and we need to Q
13 decide whether we are going to handle those separately, or 14 consolidate them, and argue them as one point.
15 JUDGE LAZO:
Lell, what is more convenient to you?
16 MR. GREENFIELD:
bell, if we are ' granted 17 participation under the original motion, there is really no 18 need to address the amended -- the motion to amend,.and the 19 participation under the amended motion.
So, from that 20 regards, it may be best to go on the original motion.
21 On the other hand, if we are granted the right to 22 O
amend, then the 1ega1 argemenes in sugpore of our goeition 23 are going to be different arguments, and so would the Joint 24 Applicants' response, so it really -- perhaps I should ask if
/]
25 the Board is ready to.make a ruling on either -- on both of
F 53 1
those issues today, or only on one of those issues.
I think
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(])
2 that is a concern of Mr. Gehr, is whether or not the Board can 3
make a ruling on the motion to amend today,or whether that is l ()
4 going to cause some delay in the proceeding.
5 JUDGE LAZO:
he would like to dispose of the matter 6
today, and I think it is our inclination that we ought to 7
consider the amended motion as being the current motion, 8
unless there are any objections by any of the other parties, 9
the amended motion in e ffect supplants the original motion.
10 MR. GREENFIELD:
All right, then perhaps we should 11 make argument on whether -- on the motion to amend, and after 12 a determination on that, then we would go to the issue of the 13 right to participate under whatever motion is left, whatever
(]}
14 motion to participate is left standing after that.
15 JUDGE LAZO:
- 1. e ll, just to simplify things, the 16 Licensing Board will accept the motion to amend.
17 MR. GREENFIELD:
All right.
Thank you very much.
1g Therefore, the argument is as to the Attorney i
19 General's right to participate under his amended motion to 20 participate.
21 JUDGE LAZO:
Yes, sir.
l 22 MR. GEHR:
If I may interrupt just a moment, we
\\_/
23 have no objection to the filing of the motion to amend.
i.e --
24 a2r position is that the motion to amend -- or the amended C) 25 motion to participate still does not show an adequate interest i
l 59 I
on the part of the State of New Mexico Attorney General.
2 The time -- just for -- the time for responding to 3
that motion for us expires, I think, Saturday the 20th, but 4
we have served on the parties this morning our answer to that l
5 motion, and I have copies to serve on the Board.
6 MR. REIS:
Mr. Chairman, in that regard, the Staff's 7
reply to the formal motion will serve as a reply to this 8
motion as well.
Essentially the Staff has no objection.to 9
the otate participating under 2.715, and we see-nothing in 10 this paper that would cause us to change our position.
11 MR. GREENFIELD:
And the Attorney General 12 acknowledges that we have been served with the Joint Q
13 Applicants' response, and have had adequate time to respond I
14 thereto, and we waive any objectian to the fact that we 15 un't have -- to any lack of time to read that motion.
l 16 So, we are ready to proceed at this point.
l 17 JUDGE LAZO:
Kell, since the Licensing Board has not l
18 ye: read it, perhaps, Mr. Gehr, you might tell us, what is in 19 it, (c.
what your argument is.
Yes.
As I understand, we are now -- the 21 issue before the Board is on the amended motion to 22 participate.
This means that the interest of the dtate of 23 New Mexico respecting the Attorney General's ratemaking 24 participation responsibilities is no longer the' issue.
The 25 issues are those interests which are set forth in his
ou 1
amended motion to participate.
()
2 As I understand that, and if I am incorrect, I hope 3
Mr. Greenfield will correct me, one, he has -- the interest O(_j 4
of New Mexico hinges on the shipment of fuel assemblies and 5
perhaps other radioactive material through the State of 6
New Mexico, and two, that the State of New Mexico is located 7
within a five hundred mile radius of the Palo Verde Plant.
8 Have I adequately stated that, Mr. Greenfield?
9 MR. GREENFIELD:
Kell, that is true.
However, we 10 do retain our original contentions that our expertise with 11 the finances of P and M and El Paso Electric Company will be 12 of assistance to the Board in this proceeding, and that there
({}
13 are possinle socioeconomic impacts from the operation of the 14 plant in regard to electric service in New Mexico.
15 MR. GEHR:
I acknowledge that that is in the motion.
16 I do not think either of those go to the question of interest, 17 the first as to the expertise on financial matters, respecting 18 El Paso Electric Company and Public Service Company of New 19 Mexico, relate to questions of whether or not the Board should 20 exercise its discretion to permit the State of New Mexico 21 Attorney General to participate.
The latter onc, I believe, 22 of social and economic impacts, is so general as to lack any 23 specificity, and I don't Pnow how to deal with it.
24 As a matter'of interest, the question is, the two O
25 points of interest are, shipment of radioactive materials 1
61 1
including fuel assemblies, through the State of New Mexico, l
()
2 and there is not much doubt about the rules, the principles 3
'that govern this statement of interest.
The cases on this
()
4 matter are clear, and I would cite the Pennsylvania Power and 5
Light company case, Susquehanna Steam Electric Generation 6
Station, Units 1 and 2, 9 NRC 291, page 315, decided in 1979.
7 JUDGE LAZO:
Is it your position, Mr. Gehr, that 8
an adjoining State wishing to participate in an NRC proceeding 9
as an interested state under our regulation 2.715(c) must meet 10 the same judicial standards of standing as a Petitioner for 11 Intervention under 2.714?
12 MR. GEHR:
It is our position that they must -- I
()
13 guess the answer is no, that they must establish an interest 14 which is justiciable.
If they have no justiciable interest 15 in the proceeding, then their participation is meaningless, 16 and is not useful, nor helpful.
l 17 Now, as I stated, the first statement of interest 18 under the amended motion is the transportation of radioactive 19 materials, and in this Susquehanna case, the statement is i
20 clear.
I am quoting, at page 315:
"Furthermore, as a health 21 and safety matter, it has long been held that offsite 22 transportation is outside the scope of an operating license 23 proceeding.- The safety matters related to transportation S
)
would come up in connection with the license and the grant of 25 authority to ship fuel through the State of New Mexico."
J 1
. _ _ _ _.. ~.. _. -..
62 1
JUDGE LAZO:
Mr. Gehr, in both your response to the
()
2 original petition and your response today to the amended 3
petition, you have not said anything about the State of
()
4 New Mexico's indication that they wanted to participate in 5
the matter of water availability and decommissioning, and I 6
think those were contentions five and seven.
7 MR. GEHR:
I think that is true.
I think the 8
ques' tion -- under the Exxon case, I think it is quite clear;,
9 whether or not i t is the same test as applied to an Intervenor 10 under 2.714.
The test -- the Exxon case makes it very clear 4
11 that any state that wishes to participate does not have that 12 matter as of right, unless it is an interested state.
Those
[])
13 vere the words in the regulation.
It has to be an interested 14 state, and I think the Exxon case makes it clear that that L
15 state of interest must be established prior to participation 16 on any contention.
17 I think -- of course, as you are well aware, that IS was a case decided with three separate opinions by the Appeal 19 Board, one dissenting, Dr. Johnson, and Mr. Sharfman and the 20 other opinion, but it is quit e clear in each of the opinions 21 that they all three accept the premise that the establishment l
22 of interest is a prerequisite to participation by a state 23 agency-as.a matter of right, and we would not argue that the 24 Board is O
deprived of all discretion to permit the l
25 participation, but he certainly -- our argument is that the f
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,ar n.
~ - ' ~ - - ~ ~
63 1
Attorney General has not established an int'erest which
()
2 permits him to utilize Section 2.714 (c) as a matter -- as.a 3
basis for participation.
()
4 JUDGE LAZO:
Mr. Greenfield?
5 MR. GREENFIELD:
I think that we clearly set forth 6
in our response to the Joint Applicant alcernative positions, 7
and the first position is that under the Atomic Energy Act, 8
states have an unconditional right to participate, and we 9
have tracked the history of this condition, and in that 10 entire history there has never been a case of a state being 11 denied the right to participate under Section 2.715(c).
12 Therefore, the position tnat Mr. Gehr is arguing
(])
13 is without precedent.
14 That is our first position.
Our second position is 15 that if in fact there is some condition attached to a 16 state's participation under Section 2.715(c), that this Board 17 has been delegated virtually unlimited discretion in 18 determining whether or not to allow states in, and that that 19 discretion has been given so broadly in favor of allowing 20 states to participate.
21 Now, all of the arguments Mr. Gehr has made are
[)
based upon an analogy that Section 2.714 is analogous to the 22 23 present, and that the standards of 2.714 should be applied.
i 24 The Attorney General's position is that this is completely
{)
l 25 wrong, that this is not an analogous case.
l
I 64 1
First of all, there is much statement is past cases
()
2
,that the participation of an interested state is always 3
desirable, and we have cites to that in our brief.
()
4 The reason that it is not analogous is that in the 5
Atomic Energy Act itself, the Congress of the United States 6
was making a determination that the states and the Federal 7
Government snould cooycrate in the area of atomic energy, and 8
that the states would be allowed a different position from the 9
other parties in NRC proceedings.
10 Ke are not taking a position in this proceeding.
11 He are allowed to do that under 2.715 (c).
We are not coming 12 in here saying that we are opposed to the operating license
{])
13 or that we are for the operating license.
We are simply going 14 to participate as the Board deems we should be allowed to.
15 Therefore, the stance of the State in this case, 16 New Mexico, is completely different from under the other 17 dection.
Le are not an adversary party of any kind, and 18 therefore coming under any test that would be set forth for an 19 adversary party.
20 he have tried to make clear.here that ue do not in 21 any way want to delay this proceeding.
That was one reason 22 for the amendment of the. motion, and I hope I made clear in 23 the motion that the Attorney General will take the case as it 24 presently is, and that any argument by the joint participants 25 that our entry into the case will delay the proceedings or
65 I
will in any prejudice them, we will make every attempt to
()
2 cooperate both with the Joint Applicants and with the Board to 3
make sure that there are no delays caused by our
()
4 participation.
5 Finally, as to the Exxon case, which Mr. Gehr is 6
relyihg on, there was a specific finding in the Exxon case 7
that was limited, and that finding was limited in the 8
following way:
9 The Board had granted the State of California 10 participation based on a general allegation that they needed 11 information.
Now, the Appeals Board said, we are not going 12 to rule on whether or not that is a sufficient interest.
tie
(])
13 are going to rule that based on other, more specific matters, 14 this is grounds for participation, but they specifically did i
t 15 not make a ruling.
16 Therefore, the Exxon case in no way delimits this 17 Board from going beyond the Exxon case, and that is made 18 clear in the statements in the Exxon case.
19 JUDGE LAZO:
What basis -- pardon me, sir.
The 20 Appeal Board in the Exxon case did in f act affirm the 21 Licensing Board's admission of the State of California.
22 MR. GREENFIELD:
That is correct.
O 23
. JUDGE LAZO:
bhat grounds did they base that on?
r~s 24 MR. GREENFIELD:
The State of California'had a
\\J 25 statute which required them to make certain determinations in
I 6b 1
regard to nuclear power before. plants would be licensed in the
(])
2
, State of California, and the State of California was coming 3
into the Exxon proceeding to determine whether or not -- I
()
4 think it was reprocessing was an effective means of taking 5
care of the end of the nuclear fuel. cycle.
6 Now, the Appeals Board found that that was an 7
interest that justitied the State of California's participa.
l 8
tion, but they did not make a finding that a general need for 9
information, a general need to monitor the case, was not in 10 itself grounds.
11 They said, we found this one ground.
ne will make a 12 ruling on this, and thus we don't need to go any further, but
{}
13 they did not make any statement that anything beyond that was 14 in any way not an interest to be recognized.
15 Now, we have also shown that -- so therefore, even 16 if the only thing in our motion was to say, all we want to do 17 is monitor this case, we would like some information, on the 18 basis of Exxoa, this Board could not find against a motion to 19 participate, even if it was that general, but our motion 20 certainly is not that general.
It is much more specific, and 21 if the Board wishes, I can get into the specific factual 22
-)
bases of the motion, but first I will just finish up with uj 23 legal argument..
g3 24 The final thing !s that the participation of the
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25 states can also be based just on a wish to assist the Board,
67 1
and we have cited both the Exxon case and the Portland
()
2
, General Electric case to that, that c"r familiarity with the 3
financial qualifications of El Paso Electric Company and
()
'4 Public Service Company of New Mexico can be an important 5
contribution to this proceeding, and that on those grounds 6
alone, the Attorney General should be allowed to participate.
7 One final thing which Mr. Gehr has not addressed 8
is. that the Board has the power to determine what the level j
9 of that participation will be.
We are not coming in, asking i
10 to participate in all contentions.
We have identified the 11 two contentions that we wish to participate in.
Le have not 12 taken a side on any issues.
(])
13 At this point, until we have reviewed all of the 14 documents in this ase, we have made no plans to present any 15 witnesses.
The Board can make the determination as to what i
16 the scope of our participation will be, and between -- the 17 Attorney General is certainly willing to work out as limited 18 a scope of participation in furtherance of speedy proceedings 19 as is consistent with its interest.
20 Therefore, unless the Board has specific questions j
21 as to the f actual allegations in the motion, I will rest.
22 JUDGE LAZO:
Mr. Greenfield, Counsel for Joint
)
l 23 Applicants has raised the question, or there is a problem in
)
Counsel for Joint Applicants' mind regarding your pleading 24 25 which referred to the transportation of fuel assemblies througr t
69' I
the state.
How do you' stand with that?
Is that an area 2
which you would like to litigate?
3 MR. GREENFIELD:
I would first of all like to point O
4 oue thee this issue was addrer,ed in the Dreft Environmenea1 5
Impact Statement for the operation of the plant, and we also 6
have recently been made aware of a nuclear waste transit 7
study which indicates that in fact, those al. legations of --
1 8
may become factual, and which further supports our interest j
9 therein.
10 he.-- our problemoreally has been a sort of Catch i
11 22 situation.
We have asked -- we asked the Joint Applicants 12 for the doctiments in this proceeding relating to our concerns O
'3 in order to review them, and were denied access to them.
We 14 did talk to the Staff of the NRC in regards to obtaining 15 documents, and they had difficulties, and we did not receive 16 any of the documents from the Staff of the NRC.
i 17 The Intervenor in this case has sent those 18 documents to us, some of those documents, in the mail.
19 However, if they arrived, they arrived after I had lef t for 20 this proceeding, so our posture in this case really is that 21 we have had difficulty in obtaining the documents to review 22 it to determine whether or not we are going to litigate any 23 issue.
24 That is one reason why we want to get past this 25 motion, so therefore, we can work with the Joint Applicants in
69 1
getting the documents.
We don't want to burden them with
()
2 asking for all the documents.
We only want to get those 3
related to our concern.
(
4 So, I would say at this point, we have not made a 5
determination as to whether we are going to litigate any of 6
the issues.
We want to review the documents, some of which I 7
understand are going to be out very soon, before making that 8
determination.
9 I hope that is responsive to your question.
10 JUDGE LAZO:
Well, then therefore at least at this 11 point, the possible participation of the State of New Mexico 12 in this proceeding would include the two contentions, five
(])
13 and seven, that we have discussed, and possibly this question 14 of transportation of, pent fuel assemblies and other 15 radioactive materials through the State of New Mexico, and i
16 air' contamination 500 miles away.
17 MR. GREENFIELD:
That is correct.
18 JUDGE LAZO:
Mr. Reis, could we have the views of 19 the Staff, please?
20 MR. REIJ:
Yes.
First of all, the Staff feels that 21 the scheme of the Atomic Energy Act and the regulations is 22 such as to encourage states to participate and therefore 23 regulation 2.715 (c) particularly provides that they need not l
24
{)
take a position on matters, but they are to -- may take part 25 in proceedings before the Board just in developing f acts.
70 1
Therefore, we think it appropriate that they be in
(])
2 on the issues admitted, particularly since two of the 3
participants here do do business in New Mexico and do sell
()
4 electricity there.
5 That is not to say, and we certainly do not take a 6
position that they could litigate general financial matters or 7
rate matters.
8 However, to the extent that it will be part of this 9
proceeding, 'if there is no change in the regulations, that we 10 look at financial qualifications f or decommissioning, we would 11 think that they could take part in that aspect of the 12 proceeding.
[])
13 I don't think we have to get to the issue generally 14 as to whether any stato who says I want to take part in a 15 proceeding is an interested state within the meaning of the 16 regulation.
I think that would be over-broad, and I don't 17 think that position has to be taken here.
18 I think there is enough here because two of the 19 Joint Applicants are in New Mexico and do business in New 20 Mexico, to allow them to come in and take part as provided in 21 715.
22 However, let me say very clearly here that I do not 23 think that there can be any expansion of the issues in this 24 proceeding to include transportation or air matters over in 25 New Mexico.
The contentions were filed a long time ago.
The
71 1
State of New Mexico has said they will take the proceeding as O
2 ehey find 1e, ane f111ng o, conteneiens and raising new 3
issues is a participation under 714.
Many states do that.
O 4
They are not choosing to do that here.
I don't know whether 5
they could here at this stage.
I rather think they couldn't.
6 oo I don't think you can raise any new. issues, but 7
for them to come in and ask some questions on these two 8
issues, of air and water, and let me go to water for a minute.
9 In the Southwest and the best generally, water of 10 course is a very great concern to the states, and although I 11 don't have the facts here as to how the use of water for the l
12 Palo Verde f acilities could affect the 6 tate of New Mexico, O
23 aa vbe ther c a'e aa==vbe en e is *n t we witt be 14 showing in these proceedings,,I do feel it is proper as a 15 matter of comity between the Federal Government and the 16 States to allow them to take part in that issue as well, but 17 let me say that I believe their participation should be 18 strictly limited under 715(c), and that it should not include 19 either any new discovery at this late date, or raising of 20 any issues that are not presently in the proceeding.
21 MR. GREENFIELD:
Perhaps I can respond to that.
22 I think the Staff is correct that we do agree to 23 take the. case as it stands, and that if the issue of 24 transportation or airborne contamination requires a nea 25 contention, that we would not intend to ask the right to file
72 1
that contention.
()
2 However, if those issues are a part -- are related 3
in any way to any of the other presently filed. contentions,
()
4 we therefore would state that they are relevant thereto.
5 As to discovery, we would not -- if it would delay 6
proceedings, we would not request a new discovery period.
7 However, we would like a ruling of some kind from the Board i
8 that'as to all past documents filed, including. Answers to 9
Discovery, that the Joint Applicants be required to supply us 10 with those documents which we will identify as relevant, and 11 which ue will make every attempt to limit so as not to burden 12 the Joint Applicant.
l
{])
13 JUDGE LAZO:
Mr. Gehr, let us come back to you one 14 more time.
Do you have anything further to add to this l
l 15 argument?
16 MR. GEHR:
I think the only thing I want to add is i
i, 17 to make it clear that the right to participate, on the part 18 of a state agency, under 2.715 (c) hinges on interest.
bithout 19 the interest -- if it is not an interested state, there is no 20 right to participate, he must -- the state must then proceed 21 under some other basis, whether it is rules on the Board's 22 discretionary authority to permit participation by a state
()
r 23 agency, under either 2.715 (c) or 2.714, I don't think is clear.
gs 24 hhether the same limits on discretion are applicable.
\\-)
25 In our case, we believe that the only basis on which i
. ~.
s 73 I
the Attorney General has stated a reason why they can 2
contribute is an allegation that thev have some financial 3
expertise with respect to the two utilities who are Joint 4
Applicants, and who are regulated in part or in whole by the 5
Public Service Commission of New Mexico.
6 I don't know that - that: is a fact.
I don't know 7
whether that is true or not.
he don't think the fact that 8
there is an allegation of financial expertise by the Attorney 9
General is clear on its face.
If the Public Service 10 Commission of New Mexico were making that allegation, that was 11 responsible for and making those determinations on financial 12 matters and rates,- I would have a much more difficult problem Q
13 contesting it,..but I don't know where the Attorney General 14 gets his financial expertise.
l l
15 I don't consider myself a financial expert, and the 16 Attorney General is a lawyer.
17 MR. GREENFIELD:
Could I respond to that?
18 JUDGE LAZO:
Have you. completed, Mr. Gehr?
19 MR. GEHR:
Yes, I think it -- I
- I can't -- I am 20 just going to be repeating myself again, if I go on.
21 JUDGE LAZO:
All right.
Mr. Greenfield?
22 MR. GREENFIELD:
The Attorney General's office of 23 the State of New Mexico represents the.itate of New Mexico 24 as a ratepayer, and ratepayers that are.not represented by 25 other counsel in proceedings before the New Mexico Public
74 I
dervice Commission.
O 2
I myself have personally participated in the last two Public Service Company of New Mexico rate cases, as well 4
as the present rate case which is going on.
The Attorney 5
General has also participated recently in several certifica-I 6
tion proceedings, including the certification proceeding for 7
Palo Verde, by Public Service Company of New Me cico and El I
Paso Electric Company.
9 he have participated, other people in the office, 10 in the rate cases of El Paso Electric Company.
11 That is the underlying basis for the statement that 12 we do have financial expertise in relationship to those O
13 two come aies.
14 MR. GEHR:
Mr. Chairman, if I may 15 JUDGE LAZO:
One question, Mr. Greenfield, the El i
16 Paso -- two entities who are co-owners of this project have 17 been identified as having contacts or are in New Mexico.
18 Would you identify those, please?
19 MR. GREENFIELD:
Public Service Company of New 20 Mexico is the largest utility in the State of New Mexico, and 21 it is also the only -- it is also the largest home grown 2
O
" "P r^'t " *" '"" *" tire ""***
23 JUDGE LAZO:
Does El Paso Electric Company serve 24 customers in New Mexico?
25 MR. GREENFIELD:
El Paso Electric Company serves both 1
.. _.. _.. _. ~. - _ - _ _ _....... -...,__,. _ ___. _,,,
75 1
Texas and New Mexico.
It serves the southern part of the 2
6 tate of New Mexico, which includes Las Cruces, which is the 3
second-largest city in the state.
Public aervice Company of 4
New Mexico serves Albuqueque, which is the largest, Santa Fe, 5
which is the third-largest city in the state.
6 These are the two major utilities in the State of 7
8 JUDGE LAZO:
Thank you, Mr. Greenfield.
9 Ms. Hourihan, does the Intervenor-Qish to comment 10 on the request by the State of New Mexico to participate?
11 f tS. HOURIHAN:
I am trying not to talk too muck-12 because of my laryngitis.
O 13
^11 I wou1d 11xe to e v is ta t 1 utee ene 80 erd to 14 accept New Mexico as a party to the proceedings.
I would hope 15 that their waste transportation contention would atso be 16 accepted as well as the air irradiation.
17 I would like to point out to the Board at this time 18 that the Heidelberg contention, 6(b) -- I am sorry that is 19 ATUS.
The Heidelberg will no longer be a contention, and 20 that would be in regards to New Mexico's involvement in a 21 contention with air irradiation, so there would be no 22 contention on my part that they could be invalved with.
23 JUDGE LAZO:
I am sorry, which contention are you 24 referring :.o as being no longer a contention?
25 MR. GEHR:
I think it is contention number one.
4 76 1
MR. BEIS:
The Staff similarly believes it is
()
2 pontention number one.
3 MS. HOURIHAN:
That is true.
()
4 JUDGE LAZO:
You refer to that as the Heidleberg 5
contention.
6 Md. HOURIHAN:
As the Heidleberg contention.
7 MR. REIS:
Mr. Chairman, do I understand the 8
Intervenor to be withdrawing contention number one?
9 MS. HOURIHAN:
Yes, because I have been advised in 10 the past summer that the NRC would be taking care of that.
11 They would be ruling on that Heidelberg report, so I felt 12 since the -- and Heidelberg people were actually flown here
(])
13 from Germany, and since the NRC is ruling on that, it would 14 really be a waste of my time to r tre someone to do a site-15
. specific report.
1C JUDGE CASE:
I don't understand what you mean by 17 the NRC ruling on that.
18 MS. HOURIHAN:
Well, as I understood this summer 19 from Jay McGurran (ph) when he was working on the case, and i
20 from Nuclear Information Resource dervice in Washington, D.C.,
21 that the NRC was making a decision as to whether to accept 22 that report or not, and if they were to do that, then that 4
)
23 would af fect all plants, and so I was advised that it would be 24 best not to go ahead with this and hire Heidelberg, since if 25 the NRC made a decision, you know, I would just be doing
77 1
something that they would be doing.
Are you following that?
O 2
JUDcE COLE:
reeh, I heard the worde.
3 MR. REIs:
I would like to tell the Board that I 4
can not sit here and confirm -- that may be so,.but I cannot 5
sit here and confirm that.
I do not know that.
I will say 6
for the Staff that I don't know that.
7 I know that the Staff itself has prepared a report 8
on the Heidelberg study, and has reported it to the 9
Commission.
The Commission, I believe, accepted that report, 10 that was some time ago, and they essentially said that the 11 Heidelberg study had no basis.
12 I don't know that there is any further work going 13 on on it.
I haven't looked at it recently to see that, and 14 Mr. McGurran was more involved with that than I am, so it l
l 15 may very well be what Ms. Hourihan says is correct, but I 16 cannot sit here silently and say that that is absolutely so.
17 I really don't know.
18 JUDGE CALE:
My concern is, I want to make sure 19 that there is a connection between the Heidelberg report and 20 contention number one, so that there is absolutely no 21 confusion as to what we are talking about.
22 MS. HOURIHAN:
I see.
I could clarify that for you.
23 JUDGE CALE:
Okay.
24 Md. HOURIHAN:
Okay, contention number one was 25 based solely on the Heidelberg report, and to Mr. Reis, I feel i
l
78 1
that I have done enough research into this this summer to
(])
2 know that --
3 MR. REIS:.You cannot sustain'it, and you are
()
4 withdrawing the contention in any event.
5 MS. HOURIHAN:
Yeah.
I am comfortable with that.
MR. REIS:
Fine.
Mr. Chairman, there is one other 6
7 thing I want to add to the statement I made on this motion.
8 That is I hope the State of New Mexico realizes 9
that if the parties move for summary judgment, and the one 10 Intervenor who has appeared in the case is no longer in the 11 case, and the Board is satisfied, that there would be no 12 proceeding that the State of New Mexico would be involved in,
()
13 and an interested state appearing under 715, when the 14 proceeding disappears, the proceeding disappears, and they 15 have nothing to attach themselves to, and the fact that there 16 is an interested state does not of itself keep the proceeding 17 alive, and I just wanted to make that clear for the record.
18 JUDGE LAZO:
That is a correct statement of the 19 f acts, Mr. Greenfield.
20 MR. GREENFIELD:
I appreciate the warning, and we 21 are aware of that position.
22 JUDGE LAZO:
Thank you.
bell, it is the Licensing 23 Board's belief that the Attorney General of the State of New 24 Mexico has established the interest of the state, both in its 25 earlier filed pleadings and in the statements referring to l
79 1
those pleadings which we have heard today.
()
2 Therefore, we will grant the request of the State 3
of New Mexico to appear in this proceeding through its
)
4 Attorney General, and to participate under the provisions of 5
2.715(c).
That participation, as we understand it, at this 6
time, will be liniced to the litigation of contentions 5 and 7
7.
8 If other matters arise from the publication of 9
Staff documents, the DES, which, by the way, the Licensing 10 Board has still not received, or the Final Environmental 11 Statement when it is published, or if other new matters should 12 arise from the issuance of the Staf f Safety Evaluation Report,
(])
13 or any supplement thereto, then we would take that up at the 14 time, as to whether additional participation by the State, or 15 indeed by any other party would be permitted.
16 As for discovery, we accept your recognition of the 17 problems of delay, and since you have. tot requested any 18 additional discovery by the State, that should be no problem.
19 I believe it only fair to ask that the Jtaff and the 20 Applicant do provide you with copies of whatever discovery 21 requests and responses have gone forward up to this date so 22
{}
that you would be up to date on that.
23 Mr. Gehr, would you undertake to provide copies of 24 your interrogatories and responses?
{])
25 MR. GEHR:
Absolutely, yes.
I want to make it clear
80 1
that we -- I was a little surprised that we were charged with O
2 refusine to oroauce documente.
I be1ieve Mr. Greenfie1d, 3
shortly af ter he filed his motion, requested copies of O
4 documents, and I thought we had underteken to sugp1r you 5
documents as you requested.
6 It is also my understanding that sometime last week 7
he made the request for the discovery documents relating to 8
the contentions, and it was not our intent to refuse to give 9
them to him.
It was a problem that we have to 'sstmble those a
10 documents.
It was not just the interrogatories, wh.ch we have 11 copies of, but there are a number of other documents which we
\\
12 have to get a hold of, that have been put back in the files O
'3 aa "^ve to "
or 4"c a-14 he will make the commitment to Mr. Greenfield, if 15 he wants to stay around tomorrow, we will give him the 16 discovery documents, including those that are apart from the 17 interrogatories, including the documents produced in 18 response to the Intervenor's request.
19 JUDGE LAZO:
Well, sir, we appreciate that.
kie 20 certainly don't want to unc:uly burden the Joint Applicants, 21 but since we are of the opinion that the State of New Mexico 22 well may make a valuable contribution to this proceeding, and 23 help us prepare a sound record, we would encourage you to 24 whatever you can do that is not terribly inconvenient to 25 provide them with such documents as they may require.
81 1
MR. GREENFIELD:
I want to thank Mr. Gehr for that
()
2 o ffer, and thank the Board.
3 JUDGE LAZO:
The next item on our agenda relates to
()
4 the discovery matters that have continued to take the time of 5
the participants and the Licensing Board.
6 During our recent conference by telephone, I 7
believe it was the 29th of October, the Intervenor stated that 8
she would provide answers to the Staff and to the Joint 9
Applicants requests for Answers to their Second Set of 10 Interrogatories, and would provide a response to the 11 Applicants' request for Admissions, and it was agreed those 12 responses would be filed by November the 13th.
[])
13 May I ask -- I am trying to preserve your voice, 14 Ms. Hourihan.
Were you able to file those responses?
15 MS. HOURIHAN:
Yes, and I have some copies here if 16 you haven't gotten them yet.
Have you not received them?
17 JUDGE LAZO:
Not yet, no.
18 MR. GEHR:
Neither has the Applicant.
19 MR. REIS:
Nor has the Staff yet, not as of 20 yesterday morning.
21 MR. GREENFIELD:
The Attorney General received no 22 documents.
23 JUDGE LAZO-Mr. Green, we did see that your name 24
()
was put on the service list, so you should be receiving 25 do cuments.
32
{
1 MR. GREENFIELD:
I have been receiving the O
2
,,cuments in this proceeeing.
3 JUDGE LAZO:
Good.
hell --
O 4
MR. REIs I note thee in our second see of 5
interrogatories, they were-limited to contentions one and 6
eight.
Both of those contentions having been dropped, we 7
have no second set of interrogetories pending.
8 MR. GEHR:
We do have.
9 JUDGE LAZO:
I wonder if it would expedite matters 10 now if we simply took a short recess, and let the Intervenor 11 show~the other parties what she has done.
Do you think that 12 would move things --
Q 13 MR. GEHR:
It might shorten it.
At leas t we won ' t 14 have to argue about a motion to compel if she has complied.
15 JUDGE LAzo:
Let us try that.
Uhy don!t we take a 16 15-minute recess, and then come back and see where we stand 17 on discovery.
Off the record.
l 18 (Brief recess) 19 JUDGE LAZO:
On the record.
Pre-hearing conference 20 come to order, please.
21 Ms. Hourihan, just before we went into a short 22 recess, you stated that you had complied with discovery 23 reques_s, as were necessary, and I note that the document you 24 handed ne is undated.
kas this document put in the mail on 25 the 13th, or what date should I put on it?
83 1
MS. HOURIHAN:
The 16th.
2 JUDGE LAZO:
On the 16th.
3 MR. GREENFIELD:
Mr. Chairman, some of the people 4
in the back have complained that they are having trouble 5
hearing.
I don' t know what could be done about it, but I 6
just thought I should bring it to your attention.
7 JUDGE LAZO:
I think this is the courtroom speaker 8
system.
Am I being heard now?
Very well.
I will try to do 9
better.
Thank you.
10 Well, now Mr. Reis, in view of the withdrawal of 11 contentions one and eight, it is your position that the 12 Staff has no outstanding interrogatories?
O 23 xa azzs=
raet i= riene, rour aoaor-14 JUDGE LAZO:
'/ery well.
Thank you.
Mr. Gehr, what 15 about the Joint Applicants?
16 MR. GEHR:
he have outstanding interrogatories on 17 contention 6(b) and 7.
6(b) relates to ATWS, anticipated 18 transients without scram, and 7 relates to financial 19 qualifications, of decommissioning.
20 In addition, we had the request for admissions, and 21 a motion to set a date for responding to the request for 22 admissions.
It is my understanding that Ms. Hourihan'has 23 filed this one-page document in the mail yesterday -- we 24 have not received it -- in which she admits all but three, 25 she advised me, of those requests for admissions, those facts.
____ ~
d4 1
If that is the case, we feel there is no -- and she
()
2 has responded to that request for admissions, we accept that, 3
and therefore, there is no need for the Board to rule upon
()
4 our motion to set a date, or designate a time to respond to 5
that request for admissions.
6 Vie still have outstanding a motion to compel as to 7
the -- on the second set of interrogatories, on contention 8
6(b) and 7.
Now, as to 6 (b), Ms. Hourihan advised me during 9
the course of the recess that she would be withdrawing 10 contention 6(b), so now we are getting down to the second 11 set of interrogatories on contention number 7.
dhe told me 12 that she had overlooked the fact that those interrogatories l
(]}
13 were outstanding, and that she will -- she didn't give me a l
14 date, but I would like to have one established -- when she 15 will respond to the second set of interrogatories on 16 financial qualifications.
17 Is that correct, Ms. Hourihan?
18 JUDGE CALE:
You said yes? Nodding your head won't 19 come across very well on the record, Md. Hourihan.
20 MS. HOURIHAN:
Yes, that is correct.
21 JUDGE LAZO:
Mr. Gehr, have you identified the.
22 numbers of those interrogatories that relate t-contention l
s l
1 23 seven?
24 MR. GEHR:
Yes, and I have a copy of them, and we
)
25 will see that she gets another copy.
She says does have them,
85 1
but we will provide her with another copy when we get on the
()
2
, bus.
3 JUDGE LAZO:
Well, Ms. Hourihan, now what about
()
4 contention 6(b).
Is that formally withdrawn or still 5
pending?
6 MS. HOURIHAN:
That contention is formally 7
withdrawn because the NRC is to rule on that.
It has been 8
before them for a year,. and ethey will be ruling on that 9
within the next six months, and Ed confirmed that once they 10 rule on that, it is either one way or another way, and'there 11 is really nothing that we can do about.it.
12 MR. REIS:
Mr. Chairman, in speaking to Ms. Hourihan
(])
13 in the hall, I indicated that the matter of ATWJ was before 14 the condition, and had been before the Commission for a 15 considerable period of tiiae.
I would expect the Commission 16 would rule -- well, I don't think that there is a rulemaking 17 pending on ATUS, now that I think of it, specifically.
I 18 may be wrong, but I don't believe there is.
19 MR. GEHR:
I believe that there has been published 20 a notice of -- Advance Notice of Proposed Rulemaking.
21 MS. HOURIHAN:
Yes, right.
22 MR. GEHR:
With two or more alternate proposals on
)
23 dealing with ATWS.
These are proposals which have been 24
)
generated, or alternates been generated by the NRC dtaff, and 25 I hear from time to time it is on the docket, the Commission's
86 1
docket, and then it comes off the docket.
I don't know Where
()
2
,it is --
3 MR. REIS:
That is exactly the status of it.
But
()
4 there is no formal notice of rulemaking out. ~ There was a 3
Proposed Rulemaking out on'it.
i l
6 MR. GEHR:
In any case, it is dealt with, as would 7
be expected after Gulf States Utilities case, that the ATt.S 8
and all other generic issues are dealt with in the DER, ata ff 9
dafety Evaluation Report.
10 MR. REIS:
Yes, and that went to the ACRd on Friday 11 and it will be pinted and distributed this week, and the 12 AThis issue was particularly dealt with in that report.
-i
{]y 13 JUDGE CALE:
On a site-specific basis.
14 MR. REIS:
On a site-specific basis.
15 MS. HOURIHAN:
bell, I would like to -- I was 16 under the impression that it was definitely to be ruled on, 17 and I thought you would verify that today, and so I will then 18 I don't feel comfortable dropping that until I know for a 19 f act that that will be --
20 JUDGE CALE:
You are withdrawing your withdrawal?
21 MS. HOURIHAN:
Well, I have been told by so many I
t 22 people in the NRC and Jay McGurran, and I also received that l
23 Advance Notice of Proposed Rulemaking, that it seemed that 24 if they were to rule on it, it would be best to let them do 25 that and not waste the Board's time on something that would i
l l
87 1
already be decided upon, but if there is a question in the
()
2
,NRC attorney's mind as to whether that is true, I didn't 3
expect that to happen today.
I assumed he would verify and
()
4 confirm.
5 MR. REId:
I will not -- it is very hard fue otaff
.6 Counsel to say when the Commission will rule on a mattet.
7 The Staff Counsel really has no idea when the Commission u
8 chooses to rule on a matter.
Le do know that the Commission 9
has been concerned with ATUS and has been considering the 10 AThs material, that there has been a notice of proposed 11 rulemaking published.
12 Fhether there will be a ruling on ATL3 before this
(])
13 proceeding is concluded, I can't say.
14 JUDGE LAZO:
hell, the ATi.a proceeding has been 15 before the Commission and the Commission's staff for a good 16 number of years.
There have been indications that a final 17 ruling will be forthcoming,.but as Counsel for NRC 6taff has i
18 stated, I think it would be impossible to estimate when the l
19 Commission will take that action.
20 Md. HOURIHAN:
Lell, then could we make a date, have l
\\l -
21 a date set when we would decido, or I would decide on that 22 contention,,and I will look into it some more?
23 MR. GEHR:
he do not need -- ue are not asking her i
24 to withdraw her contention.
l 25 JUDGE LAZO:
No.
i l
38 1
MR. GF3R:
be -- if she does not withdraw O
2 contention sch), then we have some interrosatories that we 3
are entitled to an Answer, and we would like to have a date O
4 eee for that.
now, if she suheeauentir choosee, rather than 5
to respond to those interrogatories, to withdraw it, that is 6
her choice, not mine.
7 MS. HOURIliAN:
That is not why I would drop it.
8 JUDGE CALE:
I am sorry, I didn't hear you, Ms.
9 Hourihan.
10 MS. HOURIHAN:
I said that is not why I would dr p 11 the contention, simply because of interrogat6 ries.
12 JUDGE CALE:
I see.
Okay.
13 JUDGE LAZO.:
hell, as you know, Ms. Hourihan, the 14 provisions, the discovery provisions which relate to 15 interrogatories are provided to enable the parties to 16 prepare for hearing.
In complex litigation of this type, it 17 is necessary that all parties are able to ascertain the facts 18 underlining the content!.ons, which generally are rather 19 skeletal in form, and as we have stated, there is -- no one 20 is urging you to drop the contention, but simp %' let us get 21 on and prepare for a hearing cn it.
22 MS. HOURIHAN:
Okay.
~23 JUDGE LAZO:
That would mean that there still are, 24 not having the documents in front of me, there still are a 25 number of interrogatories relating to contention 7 and
\\
\\
=
s ')
I contention 6(b) which require Answers, and we had hoped that
()
2
,those. would have been provided by last Friday.
3 What kind of a time frame are you suggesting now?
(f 4
MS. HOURIHAN:
The 27th, which is next Friday, or 5
the Friday after next.
6 JUDGE LAZO:
I am sorry, the date again, please?
7 Md. HOURIHAN:
The 27th.
8 JUDGE LAZO:
The 27th.
9 MS. HOURIHAN:
That is a Eriday.
It is next week.
10 That would be for all of the interrogatories, and I 11 would answer the ATES interrogat6 ries.
12 JUDGE LAZO:
As well as the contention 7.
()
13 MS. HOURIHAN:
Right.
14 MR. GEHR:
The 20th happens to fall on daturday, 15 so I figure the 27th would fall on a Saturday.
16 Md. HOURIEAA:
It is a Friday.
17 MR. GEHR:
The 20th is a Friday?
18 MS. HOURIHAN:
The 27th.
19
-MR.
GEHR:
Oh, 27th is a Friday?
20 Ma. HOURIHAN:
It is Friday.
21 MR. GEHR:
Okay.
22 JUDGE CALLIHAN:
Friday was the 13th.
23 MR. GEHR:
Right.
You are right.
That is right 24
)
after Turkey Day.
25 MS. HOURIHAN:
Oh.
=.,-.
90 I
MR. GEHR:
You know, I am not going to be in the O
2 oefice on the rridar.
If she wents to eaxe the Mondar, I 3
will buy that one.
O 4
Ms. HOURIHAn=
Okay.
4 5
JUDGE LAZO:
hhat is Monday, the 30th?
6 MS, HOURIHAN:
Monday is the 30th.
7 MR. REIS:
Mr. Chairman, though, can I ask, 8
discovery has gone on a while in this proceeding, and we have 9
had dates.
Can I ask that the Board's ruling read that the 10 contentions are dismissed without any further action of the 11 Board unless those Answers are served on that date, rather 12 than calling for another Answer and another round?
13 In other words, unless -- certainly the Board's 14 Order can be phrased so that the contentions are dismissed 15 unless those matters are served on that date, and that we 16 don't have to have additional orders and additional go-l 17 around on whether they should be dismissed?
18 MR. GEHR:
I concur with the Staff Counsel's 19 comments.
I think it is -- the second set of interrogatories 20 was served several months ago.
They have been ignored, and 21 I think it is time that the Answers be served.
Our motion to 22 compel still stands as to those.
I am judging that we are 23 agreeing on a date that you will use in your disposition of C'
25 JUDGE LAZO:
hell, we think the position of Staf f
91 1
counsel is a reasonable one, Ms. Hourihan.
Therefore, we put
()
2 you on notice that unless you file those responses by 3
November the 30th, that we certainly will consider dismissing
()
4 the contentions.
5 Ms. HOURIHAN:
I have no problems with that 6
whatsoever, but is this something that will go on?
7 JUDGE LAZO:
I don't understand you.
I am sorry.
8 MS. HOURIHAN:
From now on whenever we have 9
deadlines, will it be a case where if you don't meet this 10 deadline you lose a contention?
I don't think I could agree 11 with that.
12 JUDGE LAZO:
Presumably -- no, this would complete
(])
13 the current discovery, as far as I could see.
14 Md. HOURIHAN:
Okay.
15 JUDGE LAZO: If we should have new contentions arise 16 in this case, we would have a new discovery period.
But I 17 think we do agree with Counsel for Joint Applicants, as well 18 as with the Staff, that this -- you have had many 19 continuations to get these materials filed, and enough is 20 enough.
November 30, then, shall we say?
In the mail?
21 Md. HOUR 1HAN:
May I point out something for the 22 record?
23 JUDGE LAZO:
Please, yes.
24 MS. HOURIHAN:
And that is, is that my Counsel had 25 to drop the case right in the middle of the litigation, and up
92 1
until that time we were doing very well, and I think that was O
2 the main erob1em, decause we ran out of mener, end it hesn e 3
been total 1y an irresponsible situation.
O 4
JUDGE tAzo:
I didn t mean to img1r chae, Ms.
5 Hourihan.
Thank you for the further explanation.
6 November 30?
7 Md. HOURIHAN: That is finti.
8 JUDGE LAzo:
Tnat will be for the filing of 9
responses to interrogatories relating to Joint splicants' 10 second set of interrogatories relating to contentions 7 and 11 6(b).
Kould it be worthwhile to identify those interrogatory 12 numbers, Mr..Gehr, or --
13 MR. GEHR:
Yes.
Those are Joint Applicants' 14 second set of interrogatories, and request for production of 15 documents to Intervenor, numbers 24 through 27, as to 16 contention 6(b), and numbers 28 through 35 as to contention 17 seven.
18 There is in addition to those interrogatories a 19 request for production of documents which would be identified 20 in any answer to any interrogatory.
21 JUDGE CALLIHAN:
For identification, Mr. Gehr, give
.22 us the date of that document, please.
23 MR. GEHR: TYes, sir.
July 21, 1981 24 JUDGE CALLIHAN:
Thank you.
25 JUDGE LAZO:
Now, the next item on our agenda for
93 1
this morning is emergency planning, and the proposal shich O
2 Joine Apg11 cants have made regarding the hend11ng of that 3
matter.
4 Mr. Gehr, perhaps you might for the benefit of all 5
of us elaborate 'on where we stand with emergency planning?
6 For example, did the Arizona Division of Emergency dervices 7
submit their preliminary report or preliminary review to 8
FEMA on October 15, as you had indicated they were planning?
9 MR. GEHR:
No, they did not, Mr. Chairman.
We have 10 now been advised recently, as recently as last week, that they 11 will be making this filing in the latter part of the first 12 week of December, first week of December.
Q 13 JUDGE LAZO:
liell then, what is your proposal 14 regarding steps to be taken after that.
15 MR. GEHR:
Our proposal would remain the same.
It 16 is just we have a six-or seven-week delay in the submission i
17 of that emergency plan, or the availability of the emergency 18 planning for the Intervenor.
So, we would suggest that 30 1
19 days af ter the state and local emergency plan draf t has been 1
20 submitted to FEMA for preliminary revi.ew, that the 21 Intervenor be required to state a contention, if she has one.
l 22 JUDGE LAZO:
That would be 30 days af ter she is 23 provided with a copy?
24 MR. GEHR:
Yes, sir.
he have discussed this matter, 25 of providing her with a copy, with the State agency preparing
94 1
the plan, the Division of Emergency services, and they have
(])
2
,no objection to that procedure.
3 JUDGE LAZO:
According to your recent filing, or
()
4 dtaff Counsel's filing, Mr. Reis, the Staff has supported the 5
Joint Applicants' proposal?
6 MR.. REIJ:
Yes.
i.e don't see any particular 7
prejudice to the Intervenor in this, and we think it would 8
certainly move forward -- move the procesding f';rward to have 9
them comment on the draft submission.
Certainly any fault 10 they would find with the draf t would subsume any fault, I 11 presume, they would find with the final, so hat we see no 12 prejudice to them in allowing them to set forth contentions on
(])
13 this draft, and having it done within a reasonable period, 14 which we feel is 30 days, and that would move the proceeding 15 forward.
he feel that is an appropriate manner in which this 16 Board could proceed.
i t
17 JUDGE LAZO:
Then any contentions filed in the 18 emergency planning area would be served on the Board and on 19 all parties, and what response time then would you propose 20 for the parties to respond to any contentions which the l
l 21 Intervenor should file?
I 22 MR. GEHR:
he would use the time permitted by the 4
s 23 regu lations.
I have just loaned my copy of that schedule l
24 to the Intervenor.
Let me get it back.
25 he had given ourselves one week to respond on the I
a.
I 95 1
contention.
he will meet that schedule.
()
2 JUDGE CALE:
Mr. Gehr, there seems to be no 3
provision ir here for time in the mails.
()
4 MR. GEHR:
That is correct.
I am hoping that we can 5
get these, something like this, either delivered by hand, or 6
the local mail here in the City of Phoenix can get it to us in 7
a day or so.
I don't think it is going to take us very long 8
to prepare a response to the admissibility of a contention 9
relating to the emergency plan, and so I don't think I need a 10 great deal of time for that purpose if I have a couple of days 11 of --
12 JUDGE CALE:
You are willing to live with the mail
(])
13 system?
14 MR. GEHR:
Yes, sir.
15 JUDGE LAZO:
Mr. Reis?
16 MR.-REIS:
he would require another week af ter we 17 receive Applicants' response, to reply.
Now, in other cases, 18 we are talking from the time it is served on us.
In other 19 cases, that has been done through the use of Federal Express 20 or Express Mail, or such things, to. speed up service, or 21 there are some firms that use corresponding law firms in 22 Washington, maybe just for that express purpose, telefax their 23 matters to them, and then have them hand-delivered to us, but 24 whatever means that is, we would require another week af ter we
)
25 receive Applicants ' response, to reply.
96 1
I presume by that time, we would have the contention
()
2
,in hand as well, although I am not sure with the mail.
3 JUDGE LAZO:
Ms. Hourihan?
()
4 Md. HOURIHAN:
I would like to point out that in 5
2.712(c), it says that service may be made by personal 6'
delivery, by first class mail, certified, or registered mail, 7
including airmail.
I would -- I am not going to send, if I 8
don't have to, I would not like to send Federal Express every 9
time, and there is quite a few deadlines coming up.
I would 10 rather do it by the regular mail, as long as it is stamped on 11 the date that it is due.
12 MR. REIS:
Mr. Chairman, I recognize there is a
({}
13 great expense to Intervenors in Federal Express and Express 14 mail.
In other cas.es, this has been gotten around by a simple 15 phone call to Applicants ' Counsel, to send somebody out to 16 pick up things.
He then takes it upon himself to see that all 17 other parties get the matters quickly, and I am sure that Mr.
l 18 Gehr in order to move these things along here would not object.
i 19 I presume he won't object.
I won't speak for him to such a 20 way of doing things in this proceeding.
21 That doesn't mean reproduction or anything is on 12 Applicants' Counsel, but just that he gets the documents s
23 distributed promptly, because frankly, we have found in the l
24 past we can't rely on the mail service.
25 MR. GEHR:
If Ms. Hourihan will get her documents to
97 1
me, we will see that they are served, put in the mail AV 2
promptly.- either by Federal Express or regular mail,,
3 dependington the exigencies of the situation.
O 4.
aooGE tazO:
Fair enough.
w111 that aseist you, 5
Ms. Hourihan?
6 MS. HOURIHAN:
I do think it would be easier if we l
7 just stuck with the mail, and I could put the things in t 8
mail, and you know, be assured that it is stamped
.te 9
correct date, because you know, there is a provision for that 10 in the rules, it does state, airmail.
11 MR. REIS:
Mr. Chairman, I believe the rules have 12 been amended during the last week,<which obviously Ms.
Q 13 Hourihan didn't have notice of, to provide that there would 14 be -- that the Board could order the use of Express Mail where 15 it thought matters required it.
16 I have suggested another provision, another way of 17 proceeding, and of course, the Board has inherent powers to 18 shorten times and to take care of how service of documents are 19 to take place, and I thought the most sensible way, since I 20 am in washington, and the Intervenor and the Applicant are 21 here, and Mr. Greenfield is in Santa Fe, that the most 22 sensible way to handle things would be for the Applicants 23 either to hand-deliver it to Mr. Gehr or have Mr. Gehr have a 24 messenger go out from his firm, and pick it up from Ms.
25 Hourihan, whatever they agree on between themselves, and then
98 1
the matters could be very quickly, and the times taken for O
2 service cou1d he ohviated, and some method cou1d he worked out 3
to do this, conr.idering costs and the interests of all O
4 earties, and the need for expedieien.
5 M3. HOURIHAN:
Considering -- oh, excuse me.
'6 JUDGE LAZO:
Go ahead.
7 MS. HOURIHAN:
Considering the rule change, I would i
8 be more than happy to go along with that.
9 MR. GEHR:
We will cooperate with Ms. Hourihan any 10 way we can.
11 JUDGE LAZO:
All right.
Then:I.think we have 12 resolved that.
13 MR. GEHR:
Well, I am not sure that we have.
14 I would like it clear.
I don't know whether she is going to 15 put documents in the mail, or if she is going to call me and 16 tell me to pick them up, or whether she is going to deliver 17 them to me.
I would just like to know what the procedure is.
18 At some point in time, I am. going to start sending 19 in motions again for dismissal.
20 JUDGE LAZO:
Ms. Hourihan, what is your problem?
21 It seem like a very reasonable of fer.
22 MS. HOURIHAN:
That is why I just agreed.
23 JUDGE LAZO:
Yes, I thought you did.
If you will 24 contact Mr. Gehr's office when the do:.uments are ready, and 25 either agree to get them to him or accept his offer to send a
. - - - _ _ _ ~ - - -., _ _.. _ _
99 1
messenger to pick them up, then all of us will get them
()
2
, served in good order.
3 Md. HOURIHAN:
I can get them to you.
()
4 MR. GEHR:
Okay.
5 Md. HOURIHAN:
Thank you.
6 JUDGE LAZO:
Ms. Hourihan, you were not heard on the 7
proposition that you would have 30 days af ter the preliminary 8
draf t of the offsite emergency planning was delivered to you.
9 Are you agreeable that 30 days is a reasonable time in which 10 you have an opportunity to frame one or more contentions.
11 Md. HOURIHAN:
Yes, I am agreeable to that.
My 12 only concern is, correct me if I am wrong, Mr. Gehr, did you
[])
13 say that it would come out -- you thought it would come out 14 in the first week of December?
15 MR. GEHR:
I said thateis what I had been advised.
16 I am not representing that they -- that it will.
he don't 17 know of any reason today that they will not meet that schedule 18 but it is somebody else's schedule and not mine.
19 MS. HOURIHAN:
Okay, I would agree with' that sche-20 du le.
21 JUDGE LAZO:
Very well.
22 The next item that we had put on our agenda ralates 23 to contention eight, which the Intervenor had indicated would 24 be dropped or withdrawn, and I think we have all been assuming 25 that the contention is withdrawn.
However, the Licensing
100 1
Board would be interested in hearing from Ms. Hourihan as to O
2
.ehe reasons why she hee decided to drog thee contention.
3 Md. HOURIHAN:
The two people that we talked with 4
last Summer, a man named David Page, who was a reporter for 5
Channel 12, he has now left town, and I, met with two people 6
who worked with Engineering Testing Labs, and they are 7
subcontracted by Bechtel, and the person that gave us the 8
information and his girlfriend, his girlfriend was supposedly 9
threatened by Bechtel, and a Bechtel employee.
10 I don't know if this is true or not, but what I do 11 know is that they will not testify, and I know that the 12 person who worked for Engineering Testing Labs who was O
23 u1ti-ce1r firea for r isias so=e -- e===her or euestioas 14 about the slump tests -- as of late July had decided that he 15 would not, absolutely would not testify.
16 Now, when Bruce Myerson and I were working on the 17 interrogatories, we talked to cement experts and engineers in 18 Tucson, and we felt we had a good case, and we went along 19 uith it, but Bruce felt if we could not have the testimony of 20 the person who gave us the direct information, then we would 21 not have a case, and I would have to agree with him.
22 And, I wonder if Mr. Gehr would be prepared to talk 23 about the tests that you :did -- well, not you personally, but 24 that APd undertook with a private firm on some of the base 25 mats out on the site, and what they found.
t i
,,-o--
,,4--- - - - -,
101 1
JUDGE LAZO:
Fell, before proceeding along that O
2 direction, you do understand, as. nourthen, do you, thee es e 3
full p' arty to this proceeding, that you have available the O
4 euheoene vower of the Boerd.
we can subgoene witnessee on 5
your behalf.
6 MS. HOURIHAN:
I wasn ' t aware.
I think Bruce would 7
have told me that if he thought -- I assume Bruce Meyerson 8
woul'd have known that.
9 JUDGE LAZO:
Yes, I am sure he would.
10 M6. HOURIHAN:
And he felt that if these people did 11 not want to testify, and I have to agree with that, I don't 12 think it is fair to force them to, if they feel very strongly Q
13 about not testifying.
14 JUDGE LAZO:
Well, it is one thing to have a 15 friendly witness, and another to have a hostile witness.
Titat 16 is quite true.
17 MS. HOURIHAN:
Not so much that as in the very 18 beginning when we first went and talked to them, we promised 19 them confidentiality unless we really needed them, and when 20 we went back to get them to talk, you knoa, they -- I.rould be 21 willing to give the Board thair names and have you speak with 22 them and work th:, c out, but I would not be willing to bring 23 them into a hearing.
They won't do it.
So that is where it 24 stands.
he decided tnis last summer.
25 JUDGE LAZO:
Could you give their names to Staf f
102 1
Counsel, so that the Commission's Inspection and Enforcement O
2 oivision cou1d contace these peopte2 3
MS. HOURIHAN:
If I am assured that APS will not O
4 know their names, on1y.
5 MR. REIS:
Mr. Chairman, te do conduct 6
investigations in confidence.
If the people -- we ask them 7
at the beginning if there is reason to feel that they may not 8
want their names known to the Applicant or to outside people 9
generally.
We ask them whether they want to give us 10 inf'ormation in confidence.
11 That of course is limited by the powers of the 12 Board to order people.to testify, and the powers of courts, Q
13 but within the power of the NRC Staff itself, to preserve 14 confidence, we do accept investigations in confidence, and of 15 course we hatte a program and post at every site telephone 16 numbers where any worker -- or the utilities post at every 17 site at our direction numbers where the -- any workers on the 18 site can contact the NRC about any safety problems.
Le have i
19 regulations to protect those workers.
20 There is a Congressional statute that protects those 21 workers against being dismissed for giving information to the 22 NRC, and we certainly solicit from workers on the sites any 23 knowledge they have of improper construction practices, and 24 try to protect their jobs and their anonymity in any way 25 possible, so we would certainly have a method of taking the l
l
103 1
names.
O 2
If we are ordered-to turn them over in the couree cel 3
a procee' ding, either a court proceeding, or a Board proceeding 4
of course we have to do so, and that is the only exception.
5 Mr. Chairman, since I last spoke, I have been 6
advised as to the status of what INE has checked on the 7
plant.
Now, we definitely have looked at all the test 8
cylinders for the placement of concrete, and have been very 9
satisfied that the curing tests indicated that all the test, 10 the concrete was more that strength.
In other words, it more 11 than met specifications.
There was no question of that.
12 HoNever, that was the extent of our investigation, Q
13 essentially a record check, and we went back and we checked 14 those matters, and we made sure of the tests of the strengths 15 of the concrete, and the test cylinders of the concrete.
16 Unless the Board has some basis to consider this a 17 serious safety matter within sui sponte review, the ataff 18 doesn't feel that there should be any further inquiry into 19 this matter, and of course that is a question for the Board, 20 and whether it feels it can meet the present standards of 21 the Commission on looking at this question.
22 JUDGE LAZO:
Well, of course as you recognize, it is 23 a serious allegation, and we were quite interested in knowing 24 why the Intervenor decided to drop the allegation as it was 25 framed.
I think perhaps we should hear from Counsel for Joint i
_J
104 1
Applicants at this point.
Do you have anything to add, Mr.
O 2
cehr2
^e we have etated, the Intervenor has reised whee cou1d 3
be a serious allegation here.
We would like to know what the O
4 basis for it is, if there wee or is eny, end whee she11 we 5
do with this allegation?
6 MR. GEHR:
We -- if the -- we treat this as a 7
serious contention.
We treat any allegations of improper work 8
as a serious matter.
We do the best we can to follow up on 9
any allegations of that nature or any other nature.
Le cannot 10 do so if we don't have specifics, whether it is preparing for 11 this case, this proceeding, or just satisfy ourselves that it 12 has been good quality workmanship done out there.
A 13 We do need tne specifics.
He need to know the U
14 people who were involved.
We need to know the times that are 15 involved, bec.ause that.is what we are talking about.
Le are 16 talking about exact pours done on some particular day.
17 Now, if we are not furnished with those specifics, 18 we cannot answer in a legal proceeding, hearing, we cannot 1
19 deal with the matter.
So, our statement stands, that our 20 position stands, that if we are not going to be provided with !
21 this information, then the contention must be dropped, because 22 we are not being given a fair chance to respond.
I 23 Net, apart from the hearing proceeding, if the tN 24 Intervenor chooses to give some names to the NRC INE V
25 Division or some other division, we have no complaint with
105 1
that.
()
2 JUDGE CALE:
Mr. Gehr, I sympathize with your 3
position thera, but I think that at least as I see it, and I (3
s_/
4 think my colleagues on the Board agree, that you can address 5
this in a more general way, and I would ask that you bring 6
forth information concerning the quality assurance quality 7
control program for concrete, specifically as applicable to
~
8 the base mat, and also have one of your civil engineers 9
address the relationship between the slump test, and then the 10 strength-tested cylinders, which I think would also be 11 helpful to the Board.
12 We might want the Staff to address those same 1
(]}
13 issues, and if at that time the Board is not satisfied, 14 poasibly as a last resort, we might then go to subpoenaing 15 witnesses on the case, to go further.
It might not be 16 necessary if the proper kind of information comes forth.
17 MR. GEHR:
he would accept the request, and we will 3
18 be prepared to bring forward that information.
I assume that 19 you want that at the time of the hearing?
20 JUDGE CALE:
Yes.
21 MR. GEHR:
Yes, we will meet that request 22 absolu tely.
No dif ficulty at all.
But we have done the best 23 we could to check our records, and the people that are 24 involved at the time, to find out if there was something
)
25 strange, or some background or something that would put us on
luo 1
notice, and we haven't found anything.
(l 3
(_j JUDGE CALE:
Ms. Hourihan, if you could provide
+
3 dates, 'it would be very helpful.
()
4 MS. HOURIHAN:
I could provide dates, and I have a 5
couple of questions.
If you have found the cement to be all 6
sound, structurally sound out there, I wonder why there was a 7
report in July which found a batch of cement for the reactor 8
base mats was structurally unsound.
That report was done by 9
an independent firm for your company, and that was mailed to m <e 10 from APS, and so --
11 MR. GEHR:
I am not familiar with what the -- with 12 what Ms. Hourihan is referring to.
[]}
13 JUDGE CALE:
Well, Ms. Hourihan, you could identify 14 that document more specifically to Mr. Gehr, and make sure 15 that that is considered in his response to the Board.
16 M6 HOURIHAN:
I will.
And I wonder if an 17 independent firm will be doing the ter :ing, or the same firm 18 will be doing the testing.
19 MR. GEHR:
be can't recover these things.
The 1
20 facts -- the concrete is poured.
21 MR.-REIS:
Yes, and usually at the site, the l
22 testing -- I don't know specifically at the Palo Verde site, l
23 but very of ten, and I think almost at all sites, there is an 24 independent testing lab on the site who tests the concrete at 25 the time.
Usually it is Pittsburgh Testing Laboratories or l
X
107 I
some such company, on the site conducts the compression tests
()
2 on the cylinders taken, and certifies the slump.
3 Now, I don't know as to the slump.
I do know, as I
()
4 said, that a review of the tests, of the final compression 5
strengths of the concrete, which is the concrete in place, 6
and what the base mat consists of, now in place, are fine.
7 Now, whether the slump tests were fine, I don't know, but the 8
slump tests aren't the final -- you do the slump tests as you 9
pour to make sure the batches you pour, and don't make any 10 mistake and have to rip up later, but the cylinders 11 JUDGE CALE:
Mr. Reis, that is why I suggest2'1 you 12 have a civil engineer come and explain the relationship betwee n
(])
13 the slump tests and the strength tests.
14 MR. REIS:
Okay.
15 JUDGE LAZO:
he have received from the Joint 16 Applicants a proposed hearing schedule.
17 MR. GEHR:
Do I understand, before we get to that, 18 do I understand that contention number eight has been 19 withdrawn?
20 JUDGE LAZO:
I think that is fair to say that, Mr.
21 Gehr, and the Board is raising that issue on its own, sui 22 sponte.
23 MR. REIs:
Mr. Chairman, in connection.with that, 24 V(~%
would that be amenable to solving by affidavit as well?
In 25 other words, the -- I know at least from the staf f 's point of
108 1
view, we would like to put this issue to rest by the Q
2 submission of affidavits.
In,other words, the relationship 3
between the slump and the strengtn tests, and why are f airly O
4 confident, as confident as the NRC is, th t the base mats are 5
proper in place, and if there is no need for a hearing on 6
other issues, if we should go forward with summary judgment 7
motions, as we presently plan, and should they be granted, we 8
would not see a need for a hearing if this matter could be 9
handled in the same way, so we would like some opening so 10 that we could settle this matter by af fidavit to the 11 sati sf action of the Board.
12 JUDGE LAZO:
I don't think the Board would have any 13 problem with handling it that way.
Mr. Gehr/
14 MR. GEHR:
No, I have no difficulty, and I think 15 that is very desirable.
I think at some point in time, the 16 Board is probably going to want to propound some questions for 17 the Applicant to address in the hearing, and we can respond 18 to those in writing.
19 MR. REId:
It would be very helpful for the 6taff 20 to have immediately, or as soon as the Board could get 21 together and write and propound questions on this issue, so 22 that our affidavits on this issue could be focussed, and we 23 could answer the concerns of the Board, and take care of this 24 matter.
25 JUDGE CALE:
1.e ll, I think for a start, you can
109 1
respond to'the questions that were propounded in this O
2 nearing, in the evideneiary record -- in the record of this 3
hearing, Mr. Reis.
4 JUDGE LAZO:
Mr. Reis, when do you think you will 5
be in the position to file these affidavits, or this 6
7 MR. REIS:
I would say that within a month, on the 8
questions you have propounded.
Houever, if it does take 9
additional investigs._ ion, there might be some additional time, 10 because we would have to locate people, talk to them, and 11 verify or not verify, or f ail to verify what they said.
12 JUDGE LAZO:
Mr. Gehr?
Q 13 MR. GEHR:
i;e can certainly do it in three or four 14 weeks.
15 JUDGE LAZO:
Thank you.
In response to the 16 proposed hearing schedule that was submitted by the Joint 17 Applicants, the Staff has sent along an indication of some 18 of the documents and their expected publication date.
i.e 19 saw someone referring to the Draft Environmental atatement, 20 so we must assume that it did 1.- fact issue in late 21 October, although we have not been favored with a copy.
D 22 MR. REIS:
I apologize for that to the Board, and O
23 I certainly will see to it that they get one next week at the 24 latest, or get three next week at the latest.
t 25 JUDGE LAZO:
Thank you, Counselor.
110 1
MR. REIS:
And as far as the SER, a xerox copy of O
2
.the SER wene to the ACRs on vrider, e d=are fina1, es you 3
were (sic).
O 4
The eina1 is seine guhtiehed, I gresume, this week.
5 It had not gone to the printer as of yesterday, but it was 6
scheduled to go certainly this week to the printer.
I know 7
I have signed off, and it is ready to go, so I presume that 8
is going a': those dates.
9 I don't see at this time any other dates that we 10 set out in our Answer slipping.
However, it does depend upon 11 many things.
As the Board is undoubtedly aware, there are 12 many plants pushing for license, and we have to work them O
tosether> """ "e " ave "ched" *= '"^' res"tre the=e '"tas= to 14 be worked together, and one plant impacts on another.
15 The date we: receive answers to questions from the 16 Applicants works on when we get our final documents out, and 17 so -- but right now, I don't see any further slip of any of 18 these dates, as to the issuance of documents.
19 I would supplement the Staff, in our pleading, we 20 were rather vague as to when we thought we should go to 21 hearing.
F:e set out what the bevel schedule was, what the 22 Commission hat reported to Congress.
The -- we f eel, from nV 23 the Staff's point of view, we could better that in this case, l
24 and get to hearing ahead of time.
I know the Intervenors 25 strongly object to that.
They have told me that orally this
111 1
morning.
O 2
out we fe 1, a1though we were vague as we see out 3
the bevel schedule, and felt that the Applicants' schedule 4
was a little too short, and we firmly stated that we did not 5
feel there was any need for two separate hearings in this 6
proceeding, we feel that the Applicants' date for the second 7
hearing is appropriate, and that if we could get to hearing 8
on March 15 or March 22nd, that would give us plenty of time 9
to conclude the hearing, get the findings done, and if 10 appropriate, if the Board decides that they are entitled to 11 a low power license, to allow further tests to go forward, 12 that would allow such a license to be issued pending O
23 co==iestoa review-14 JUDGE LAZO:
Your suggestion was that we possibly 15 could go to hearing on what did you say, March 22nd?
16 MR. REIS:
March 15, March 22nd, someplace around j
17 there.
That would give time for motions for summary l
18 judgment, and to allow one continuous hearing, instead of i
19 breaking up a hearing that will only have at the maximum of 20 f our or five issues, probably less, into several parts.
l -
21 JUDGE LAZO:
That is not leaving much time, 22 counselor, is it, after the issuance of the Final 23 Environmental Statement?
24 MR. REI.3:
No, but we feel we will -- there is only t
25 one environmental issue in this case.
That is the one
112 1
involving the availability of cooling water for Unit Number
()
2
,3 of the f acility.
That is the only environmental issue.
3 It involves cost benefit ultimately, because -- and we feel --
()
4 we presently plan to have our evidence pretty well in hand, 5
and tell everyone what our evidence is certainly by the 6
middle of January on that issue, because we intend to move 7
for summary judgment on that issue by that date.
8 That is our present intent.
Something might come 9
up to prevent us from doing it, but we certainly intend by 10 at the latest that date to move for summary judgment on that 11 issue.
12 The issue, of course, is a cost benefit issue.
It 13 is how often can Unit -- will Unit 3 be able to operate, and
{}
14 whether that will affect the cost benefit for Unit 3.
It 15 doesn't affect the first two units, by the way, in this 16 proceeding.
It only af f ects the third unit.
17 And that is the only environmental issue, and the 18 only issue that the FES has any relevance to.
19 MR. GEHR:
That was, if the Board please, that was l
l 20 the reason we were having separate, proposing separate 21 hearings.
1;e.also intend to file motion for summary judgment 22 on contention number seven.
be feel it is so -- now that we 23 have a response to orr request for admissions, we know uhat l
l 24 kind of an affidavit to prepare and support that motion.
he f3 U
2(
uill have it on file by mid-December, I assure you, l
I
113 1
The problem -- we always felt that if that was the
(])
2 only issue which was going to be on the environmental side, 3
that there was no need to delay the safety hearing for the
()
4 issuance of an FES, if that contention had been dispensed 5
with.
I think Mr. Reis has accurately summarized the nature 6
of that contention.
It gets down to a cost benefit matter, 7
how many days, or how many hours, if any, would the 8
operation of Unit 3 be in question because of an inadequate 9
supply of water,. and if you will notice that our request for 10 admissions, and I don't know which one of these admissions 11 Ms. Hourihan has denied -- it comes out that if you accept 12 all the projections, we are short in the month of June in
({}
13 1956 (sic) by 52 acre-f eet, which is less than five percent 14 of the amount of water in the reservoir, and it is hardly 15 enough to show any impact.
16 That is when we are operating Unit 3 at a 95 percent 17 capacity factor.
he are not giving away any -- we will go 18 along on that basis, and I think we can demonstrate that the 19 cost-benefit ratio is not modified in any manner.
20 MS. HOURIHAN:
May I speak, Mr. Chairman?
21 JUDGE LAZO:
Surely.
22 MS. HOURIHAN:
One thing I have a very hard time 23 understanding in these proceedings -- well, actually two 24 things.
One is I continually have heard Mr. Gehr say how he
)
25 would love to do everything he can to work with the citizen l
l
114 1
Intervenor.
And two, that the NRC is continually saying that
(')
2 they feel bad how the proposed rules and the rules do not 3
agree with the Intervenors.
They understand that Intervenors
()
4 do not have much money.
Yet, both parties are willing to 5
have, you know, hearings that are so soon it is simply unfair 6
to a citizen Intervenor,'and I am sure the NRC is aware of 7
that, because of the many proceedings that go on in this 8
country.
9 Now, the APS has, you know, a number of attorneys, 10 and the money, and the experts, and one thing that I found 11 last summer when working at the Center for Law, well, we had 12 to lose our best attorney, and I think -- you know, it was
(])
13 very sad -- was because we realized exactly how much money 14 it would cost us to have experts which were comparable to 15 APS's experta, and if we are going to do this, we want to do 16 it professionally.
17 1.e want people on the stand who have done site-18 specific studies, which is very expensive.
he do not want to 19 get up there and talk rhetoric or anti-nuke.
Fe want 20 documented f actual studies about the finances, and the water, 21 and it is not f air to put upon me one month for a summary 22 deposition to raise a good $20,000, because it won't happen, 23 and if you want these proceedings to be fair, and you want a 24 citizen voice, then I have to have time -- not -- I don't 25 want to drag it out until next November, when they are getting
i 115 1
their -- you know, when a final decision is made, but I want
()
2 a reasonable amount of time to have a good case, and in 3
order to do that, I have to raise money, and that means 2
4 that is different than'APS raising -nney, or the NRC.
I 5
can't fly to these meetings in 5:ashington.
6 And another thing which is very nard, we found last 7
summer when calling experts, in particular Charles Komonoff 8
from Komonoff Associates, who had testified on the e'conomics, 9
that you need a number of months, and every exper we 10 contacted, because we only wanted experts who would come out 11 here and do studies that the Board would say yes, I cou.d 12 look at that, and agree that this is a professional study,
/
(Qp 13 and these people neec~ months in advance.
1 need at least four 14 to five months to say to Charles Komonoff, be here in May, 15 or be here in June.
But if I say be here in March, I will 16 not get him.
I will tell you that right now.
I will lose 17 my best witness, and if you want to be fair to the citizens, 18 then you have to give me a break as well.
19 I hope I didn't get too emotional, but I really 20 feel this, and it is not fair to just move a hearing in like 21 that until March.
7 tron ' t have a case.
22
{y JUCnk ?A h Mb. Reis?
i 23 Mh Rt..
Mr. Chairman, I recognize that there is
/~')
24 a financial c.'nstraint on the Intervenor.
I also recognize
\\.
c 25 that the Commission has asked for expedition in proceedings, I
l l
116 1
and issued a policy statement of that nature, which we point O
2
.to in our reseonee to ^ee11 canes' motion to see a schedu1e, 3
and I think we now have to set a schedule, and we have to O
4 move forward.
5 The contentions were filed in this proceeding, and 6
this proceeding started quite some time ago.
There certainly 7
was time to go out, if funds were necessary to be raised, 8
and they could. ave been raised, if it was possible to raise 9
the funds, and I don't know whether it was or wasn't, there 10 was time to do that in the past.
11 If there was time to make contracts with 12 consultants, that should have been done in the past.
It is 13 kind of. late to come in here in the middle of November, 1931, 14 long af ter these proceedings ;1 ave started, and say you need 15 time to do things that if they had to be done should havo 16 started long before.
17 It is definitely contrary to the Commission's 18 policy to expedite proceedings.
19 JUDGE LAZO:
Mr. Gehr?
20 MR. GEHR:
I agree with Counsel for the Staff.
21 The Intervenor filed her intervention back more 22 than a year ago.
I believe it was in September or August of 23 1980.
She has had the opportunitics -- we are trying to 24 give her that -- accommodate her need to specify a time for 25 her potential witnesses almost five months in advance, more
117 1
than five months in advance, isn' t it?
Or four months?
()
2
, November -- we are November -- middle of November, December, 3
January, February, March, four months in advance.
Now, that
()
4 is a very extended time, and I don't see any reason why we 5
cannot establish a hearing date in March of 1932, and of.
6 course, I had asked for ones to start on February 1, so I 7
feel that we are giving up quite a bit.
1.e are giving up 8
over six weeks, six to seven weeks.
9 JUDGE LAZO:
tie ll, the Commission has not adopted a 10 model hearing schedule, but we have all received lotr of 11 guidance from the Commission in terms of expediting 12 proceedings in accord witr the requirements of due process of
{}
13 law.
But you are also talking about putting a considerable 14 burden on the Licensing Board if the documents come out, the 15 staf f's supplemental Safety Evaluation Report comes out in 16 December, the end of December, that may be delayed.
The FES 17 will not he out until February.
Both of those documents 18 could lead to further contentions, further discovery, and it 19 is a rather compressed period.
If we had followed those 20 model guidelines, the hearing would have been in May of 1982.
21 Now, of course, we don't know l
22 MR. GEHR:
Then the time of the pressure on the
~
23 Board becomes even more critical, if that turns out to be 24 the. case.
Because all of a sudden the Board, and somebody
[)
25 else is going to take on a great deal of responsibility for i
lla 1
delaying this operation, the operation of this plant, and I
(])
2
,think that is a tremendous responsibility.
If there are 3
issues to be raised, they should be raised promptly.
The
()
4 financial qualifications -- unlike most SER's, the financial 5
qualification information comes out in the supplement to SER.
6 I believe we all agree with that.
7 In this case, the financial qualifications has been 8
addressed in the SER, and it is available right now.
There 9
is no reason why we can't dispose of the known issues as 10 promptly as possible, and I think that is the only way that 11 you can avoid -- you and the parties and the NRC and the 12 Appeal Board when you get done, can avoid extreme pressures
(}
13 on getting this plant going.
14 MR. REIS:
Mr. Chairman, I have looked at the bevel 15 schedule, and the time given between decision date and plant 16 operation date, and essentially hearing dates were formulated l
17 for the bevel schedule by working backwards from when it was
{
18 projected, the plant, and that was a very minimal time, and 19 those times are minimal, and'they do require compression of 20 things at the very end.
l 21 That is why we think when the hearing can be moved 22 a little bit forward, and we are talking here, we are split-l 23 ting the' difference between February 1st, really, and the end 24' of May, and taking a time in the middle, that it should be i
25 done.
The issues here of the f inancial decommissioning, of I
119-1
- ATUS, rhich are the -- are dealt teith in the SER that is O
2 seing grineea this week.
The ieeue of waeer wi11 be dea 1e wie s
3 as the parties have stated already.
Generally, the O.
4 information -- 1e may he that it isn t firm enoueh,. sue that.
5 is the only information in the FES that will have to be 6
looked at, and the parties have stated, as I have heard them 7
here, the Staff has stated, and I have heard the Applicants 8
s tatie, that the information to pass on that issue will be in 9
summary judgment motions.
10 Now, you may deny those motions, but that would give 11 us some way to go, and know what to bring forward at that 12 point, and it will allow -- and I don't think the Board will Q
13 be pressed in an OL hearing to rule on the -- to have the 14 hearing at the 'end of March if it could fit it into its 15 schedule otherwise.
16 In an OL hearing, of course, the issues are the 17 ones raised by the Board that are of particular safety 18 significance, and those raised by the parties.
The 19 contentions of the parties, and it is not a revie.i de novo l
20 of the Staff documents, and I think that should be f actored 21 into your consideration.
22 JUDGE LAZO:
Well, Counselor, you are saying that l
23 as far as ATWS is concerned, and financial qualifications, 24 decommissioning, that these matters will not appear in some l
25 supplement number three or four, they will be in'the SER that l
l l_,
120 1
will be issued this week?
(])
2 MR. REIS:
Yes, sir.
3 MR. GEHR:
That is true.
()
4 MR. REIS:
They are addressed in those matters 5
finally.
They are not left open as open items.
Both 6
financial qualifications on decommissioning, and,ATb.3, are 7
addressed as final items in the present DER that has gone to 8
the'ACRS and is going to the printer this week.
9 JUDGE LAZO:
And as far as the water availability 10 question?
11 MR. GEHR:
That is dealt with in the DEd.
12 JUDGE LAZO:
That has already been dealt with in 13 the DEd.
And the FES is due in early February --'mid-
{}
14 February'.
15 hell, all things considered, we think that the 16 proposed schedule is a reasonable one, and that four months 17 should be sufficient time for Intervenor and the otate of 18 New Mexico to prepare, Staff and Applicant to get their 19 papers in order, and we will endeavor to clear our schedules 20 to commence an evidentiary hearing at the latter part of 21 March.
22 JUDGE CALE:
With respect to this base mat iss'.e, 23 Ms. Hourihan, you had mentioned that you had dates when the'e 24 slump tests were performed, and also you have a report that 25 demonstrates a deficiency.
You agreed to provide that to MR.
,c.,
_...,_.._.-..,..._,._,,,,_-____.__.._m_,__,_
121 1
Gehr, but we did not put any time frame on that.
he would
()
2 respectfully request that you provide that as soon as possible 3
so that it will not hinder the going forward on that issue.
()
4 MR. REIS:
The Staff would also request that it be 5
mailed, by regular, mail, that material as soon as possible.
6 MS. HOURIHAN:
If Mr. Lehr will send someone to 7
pick it up.
8 MR. GEHR:
Tomorrow?
9 MS. HOURIHAN:
Fine.
10 JUDGE CALE:
Thank you very much.
And whatever 11 other information you have that might be helpful to them, Ms.
12 Hourihan.
(")
13 JUDGE LAZO:
Mr. Reis, we understand that you have
]
14 ihdicated thatnyou wouldJsee that the Licensing Board got 15 copies o,f the DES as soon as possible.
16 MR. REIS:
Yes, I have written it down right here, 17 and I will attend to that on Friday morning.
18 JUDGE LAZO:
Do any of the other parties not have 19 copies?
Perhaps?
i 20-MR. REIS:
I again apologize on how that happened.
21 I don't understand how that happened.
22 JUDGE LAZO:
No, we simply wanted to be sure that
)
23 Ms. Hourihan and Mr. Greenfield also received copies.
Mr.
24 Gehr, I assume that you also -- oh, you did get one.
/)
25 MR. GEHR:
Yes.
122 1
JUDGE LAZO:
We would like to receive a copy of the
(^J 2
Final Safety Analysis' Report for Units 1,
2, and 3, and a s
3 copy of the Environmental Report for those units, that the
(])
4 Board could study.
5 The copies, please, will be currently updated with 6
whatever amendments there might have been up until this time.
7 During our conference by telephone on the 29th of last month, 8
we. talked about the possibility of making a tour of the site 9
today, if we completed this conference at an early enough 10 hour1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br />.
11 Let me ask -- well, first of all, the Licensing 12 Board does want to see the site.
Le would want to be
)
accompanied by Counsel for any of the parties who wish to go 13 14 along, or by the Intervenor if she is able to do so, and in 15 fa'ct would ask that any party not desiring to go sould 16 formally waive any objection to us going out to see the plant 17 with them not being present.
18 Mr. Gehr, have you made any arrangements whereby 19 we might go out and inspect the site?
20 MR. GEHR:
Yes.
I have.
There will be a bus 21 available, a bus or a van, I am not sure which it is, but 22 transportation available near the corner of Central Avenue 23 and Polk Street, which is just two blocks away from this 24 building.
25 JUDGE LAZO:
Polk?
123 1
MR. GEHR:
Polk, P-o k.
As you leave this
()
2
, building, you would walk one block east to Central, and then 3
one block north to Polk.
he will have some box lunches to 7%
. (,)
4 eat on the bus, to conserve time.
he would anticipate leav-5 ing by 12:30, and --
6 JUDGE CALE:
Do you have a crystal ball?
7 MR. GEHR:
Yeah, I thought you would be getting 8
hungry.
be would either 'oreak for lunch or something else.
9 It takes us roughly an hour to an hour and a half to get out 10 there, say an hour and 15 minutes.
Ke have a tour arranged 11 for you, with some -- I think you will find it very interest-12 ing, and a bus to bring you back.
he won't make you walk
({}
13 back.
That is enough for Counsel, and Mr. Greenfield, Ms.
14 Hourihan, and her guest or friend, the Board.
15 MR. REI3:
Can we change clothes, is my only 16 question?
17 MR. GEHR:
You don't need to.
It is a very clean 18 ogaration out there.
19 MR. REIS:
It will be the first construction site 20 I saw that is clean.
21 MR. GEHR:
Kell, you're going to see the best one 22 in the country.
O 23 JUDGE LAZO:
bell, I have ruined more shees on site 24 tours, but at least it hasn't been raining, so we uhould be --
25 MR. GEHR:
They are going to have to give -- you do
l 124 I
have flat heels, good.
There will be some arrangements
({')
2
,necessary to -- we will have to give you some baggy pants to 3
wear when you get out there.
No skirts.
You can put them on
()
4' over your skirt.
5 JUDGE LAZO:
Then do we understand that all of the parties are going?
Mr. Reis, have you declined?
6 7
MR..REIS:
Oh, yes.
8 JUDGE LAZO:
You have declined?
9 MR. REIS:
No, no, no.
I am going.
I am sorry.
10 JUDGE LAZO:
Mr. Greenfield?
11 MR. GREENFIELD:
I am going also.
12 JUDGE LAZO:
Good.
Ms. Hourihan?
Fine.
13 MR. REIS:
May I ask when the bus'is coming back,
()
14 at the end?
15 MR. GEHR:
We will be back, let us see -- I figure 16 the tou_ is going to take you two hours, you have got three 17 hours1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br /> for travel time, so you are talking five hours, we' 18 leave at 12:30, you should be back at 5: 30.
19 MR. REIS:
Okay, I guess the car can stay in the 20 lot.
21 MR. GEHR:
It is not hard to find if you want to 22 drive.
It is 23 MS. HOURIHAN: Le will be back before 6:00?
24 MR. GEHR:
Yes.
C3 J
25 JUDGE LAZO:
Are there any other matters that we
125 1
may profitably dispose of here this morning while we are all 2
.together?
3 MR. REIS:
Mr. Chairman, I will drive out there.
4 JUDGE LAZO:
I am sorry?
5 MR.-REIS:
I will drive out there.
6 JUDGE LAZO:
Very well.
You will meet us at the 7
site?
8 MR. REIS:
Yes.
9 JUDGE LAZO:
Well then, hearing no response to my 10 other question, we will assume that all matters have been 11 covered that we can today, and thank you for coming, and the 12 pre-hearing conference is adjourned.
(])
13 (hhereupon, at 12:10 o' clock p.m., Wednesday, 14 November 13, 1981, ' the pre-hearing conference in the 15 above-entitled matter was adjourned) 16 17 18 19 20 21 22 (2) 23
(:)
24 25 3
,.,-.n..-
.n
~.
--,-,n
This is to certify that the attached proceedings before the U.S. Nuclear Regulatory Commission a
in the matter of:
- Date of Proceeding:
November 18, 1981 Docket Number: 50-528 OL, 529 OL, 530 OL Place of ?roceeding:
Phoenix, Arizona were held as herein appears, and that this is the original transcript therecf for the file of the Commission.
Steve Hopkins Official Reporter (Ty ed)
/]
j.
Y H be/v?' i f
M i
N Official Repcrter/(' Signature) s e
,