ML20039G255
| ML20039G255 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 01/11/1982 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OLA, NUDOCS 8201150429 | |
| Download: ML20039G255 (82) | |
Text
_
,a
. ( N,.{ q
.s
-x 7
NUCLEAR REGULATORY COMMISSION O
I i'.'.5
(..;..'-
[. ?...'
ATOMIC SAFETY AND LICENSING BOARD 4
- A,
(,
X).;
e g
I:2 the Mat::m: cf:
- - Q ', '.1 WISCONSIN ELECTRIC POWER COMPANY DOCKET NOS. 50-266-OLA POINT BEACH NUCLEAR PLANT 50-301-OLA
.J \\
.; -[
UNITS 1 AND 2
+
. 9...
d.
g DATE: January 11, 1982 PAGES:
830 - 911 AT:
Washington, D. C.
4 4
t.O b
41 s.
~
'DD ggg p,
.*.. j ub{!,! 2'982%$
,?l-N go\\
/
C
%d A=" 8 5 '.
g r c k
j
~ j Iy \\
f e, - r, -
p y -l:,,
.T '? ;
. Sw 11.DR%X FEPORTI.TG I. ~.
~
7_
^
... j. ', d.,
400 Virgi.::ia Ave., S.W. Washi::g.=n, C.
C.
20024
. p A '. Y.
..:.., a
'%$ '?c,
Ta hch==a: (202) 554-2245
?
,6 ?
830 1
UNITED STATES OF AMERICA
(}
2 NUCLEAR REGULATORY COMMISSION 3------
x 0
s 4 In the Matter of s a
a Docket No. 50-266-OLA 5 WISCONSIN ELECTRIC POWER COMPANY:
50-301-OLA s
6 POINT BEACH NUCLEAR PLANT s
s 7 Units 1 and 2 s
a----------------x 9
In the Offices of Alderson Reporting Compa ty 10 400 Virginia Avenue, S. W.
Washington, D. C.
11 Monday, January 11, 1982 12 A telephone hearing in the above-entitled matter 13 was convened, pursuant to notice, at 11:05 a.m.
{
BEFCREs 15 PETER B. BLOCH, Chairman 16 Atomic Safety and Licensing Board 17 APPEARANCES:
18 On behalf of Wisconsin Electric Power Company:
19 BRUCE CHURCHILL, Esq.
LISA RIDGEWAY, Esq.
20 Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
l 21 Washington, D.
C.
20036 22 On behalf of Wisconsin's Environmental Decades 23 PETER ANDERSON, Esq.
114 Lewis Carroll Street
()
24 Madison, Wisconsin 53703 25 ALDERSoN REPORTAG COMPANY,IMO 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
l__ _ _ _. _
i I
l 831 l
llQ 1
On behalf of the Nuclear Regulatory Commissions i
l 2
RICHARD BACHMANN, Esq.
j t
O 4
i i
5 P
6 i
i 1
t 8
i f
9 i
10 l
11 12 13 I
O t
14 l
15 16 f
17 18 19 I
r 20 21 22 23 24 i
25 i!O i
i e
A:.DERSON REPCRT:NG COMPANY,INC.
l 400 vlRGINIA.tVE., S.W., WASHINGTGN, D.C. 2'J024 (202) 564-2345 r---...--___-_._.--...._..._..m_,....mm.-_..m..---...,_-,,-c.._-,-,.~.,-v..
y.,
..-,.,--y.
. - - -.y
-,,, -v
832 O
En cssnIsrs 2
CHAIRMAN BLOCH:
Good morning.
This is Peter 3 Bloch, Chairman of the Licensing Board for the Point Peach 4 Nuclear Plant, Units 1 and 2, Docket Numbers 50-266-OLA, and 5 50-302-OLA.
This is an on the record hearing in this case.
6 The transcript may be ordered at the close of the formal 7 conference f rom the reporter, whom I ask to remain on the 8 line at the end of the call.
9 The principal purpose f or calling this conference to is to discuss the motion to dismiss of Wisconsin Electric 11 Power Company on December 9, 1981.
A secondary purpose is 12 to discuss the efficient scheduling of the remainder of this 13 case.
14 Would the parties please identify themselves for 15 the record.
First Decade.
16 MR. ANDERSONa Decade appears by Peter Anderson 17 for Kathleen Falk.
Please pardon my teeth chattering, but 18 we have no heat here.
19 CHAIRMAN BLOCH:
We are sympathetic with that.
I 20 am sure that it is very uncomfortable.
21 For Wisconsin Electric, please.
22 MR. CHURCHILLs This is Bruce Churchill, and lisa 23 Ridgeway is with me for the Applicant, Wisconsin Electric.
O 2.
CHA1RnAN Bt0CH.
For the steff.
25 MR. BACHMANN:
Richard Bachmann, representing the O
ALDERSoN REPORfiNG COMPANY,INC 400 VIRGINIA AVE. S.W., WASHINGTON, D.C. 20024 (202) 554-2345
833
(])
1 NRC staff.
2 CHAIRMAN BLOCH:
Mr. Bachmann, before we begin, 3 there was a preliminary scheduling matter, which I inquired 4 into.
Does the staff know now when the SER and 5 environmental assessment might be prepared for this case?
6 MR. BACHMANNa Yes, sir.
I discussed this with 7 the Project Manager within the last half an hour.
He 8 indicated to me tha t the staff is still aiming for the third 9 week of February.
However, there is some information that 10 we still require f rom the licensee, and there is possibility 11 of that slipping approximately a week.
So we may be looking 12 a t the end of February 1982.
13 CHAIRMAN BLOCH:
Mr. Churchill, would you be able 14 to present your motion in under 10 minutes?
15 MR. CHURCHILL:
Yes, I think I could'.
16 CHAIRMAN BLOCH:
We have, of course, read the 17 motion, and you may assume that, but I would like you to 18 summarize for us the principal points that you have made.
19 MR. CHURCHILL:
Yes, thank you.
20 CHAIRMAN BLOCH:
Before you continue, I hope you 21 also will address, in making your remarks, the recent 22 agreement reached be tween staff and Decade and its effect on 23 your motion, if any.
()
24 MR. CHURCHILL:
Yes, I will.
25 My motion was prompted as a result of the
' O ALDERSoN REPORTING COMPANY, troC, 400 WGINIA AVE, S.W, WASHINGTON, O.C. 20024 (202) 554-2345
834
({}
1 responses that we got from the Intervenor to our 2 interrogatories on the f ull scale sleeving program.
3 Basically, those motions were carefully with a great deal of
)
4 effort and a great deal of thoroughness to determine 5 specifically what each specific allegation was and what the 6 basis was for that allegation.
7 Every time I ask for a basis, every time the 8 Licensee asks for a basis, we got back an answer that says, 9 "See the record generally in this proceeding, and in two 10 proceedings before the Public Service Commission of 11 Wisconsin."
12 I am viewing this in the full procedural context 13 o f this proceeding, and what has gone on before it, and I O
14 view that as a deliberate refusal to answer the questions 15 which go to determine what the bases for the contentions are i
i 16 that have been raised.
Basically, the procedural context l
17 includes a hearing at the conclusion of which the Peard is 18 able to determine that those contentions, a t least with
'19 respect to the Demonstration Program, did not have 20 sufficient bases to merit or to warrant holding an 21 evidentiary hearing on them.
22 CHAIRMAN BLOCH:
Mr. Churchill, Decade responded 23 to your motion to dismiss by stating that there was no
()
24 specific authorization f or such a motion, and interpreting 25 the motion, therefore, as a motion to compel.
I take it t
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C.20024 (202) $54-2345
835
(])
1 that this is not your view.
2 Would you comment briefly on the authority for us 3 to act on the motion to dismiss?
4 MR. CHURCHILLs The authority, probably, is 5 contained somewhere in 2.718.
I can look that up, if you 6 will.
But the Board certainly does have the authority to 7 govern the proceeding and to determine whether or not the 8 parties have complied with their obligations.
9 In the statement of policy issued by the to Commission on May 27, 1981, the Commission sets out a list 11 of possible sanctions in the event that parties do not 12 f ulfill their responsibilities, and one of those sanctions I am reading from the Federal Register, Volume 13 is that 14 46, page 28534.
15 One of those sanctions that the Commission says, 16 for example, that the Board might do is to dismiss one or 17 more of the party 's contentions.
It lists about six 18 sanctions, and the sixth one says, "Or, in severe cases, 19 dismiss the party from the proceeding."
20 The motion really has two primary grounds for 21 dismissal.
One is that in the procedural context, the full 22 procedural context of this hearing, I see a refusal by the 23 intervenor to provide a basis for the contentions, which the
()
24 Board has said many times were admitted under a very lenient 25 standard because of the press of the schedule tha t we were ALDERSON REPORTING CObPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) $b4 2345
836
(])
1 operating under then.
2 Secondly, there is a second reason, too, and that 3 is that each time we asked for the basis for a contention, 4 we were referred generally to the record, without any 5 specifics, a record, the most dominant and important 6 document of which is the Initial Decision of November 5 by 7 this Board, which concluded, and I quote from page 9 of 8 that, "We have carefully examined each of the contentions 0 which have been raised, and for reasons that we will discuss 10 below have concluded that these contentions lack sufficient 11 basis for conducting an evidentiary hearing."
12 At the conclusion of that hearing on October 30th, 13 the Board said at page 699 of the transcrip t, "This decision 14 that there is no basis for the contentions is based on a far 15 more complete record," meaning a f ar more complete record 16 than we started out with before the Applicant had filed all 17 of its documents, and before we had held th e hea ring.
18 The fact that when we ask f or a basis f or their is contentiens, and they cited a record which culminated so far 20 in this order, suggests tha t they have no basis.
The 21 Applicant has insisted that there is no basis, and that the 22 Intervenors have none for these contentions.
23 CHAIRMAN Bl0CH:
Mr. Churchill, what effect should
()
24 we give, if any, to the agreement between staff and Decade 25 that a basis will be filed.
There is no specific date that O
l ALDERSON REPORTING COMPANY,INC, 400 VIR3 INIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
.~
e
^},
837 f
'T 1 I can find in the agreement, but you might comment on what (d
2 date you would suggest, als o.
3 MR. CHURCHILLa That is a very puzzling acronmant 4 to me because pursuant to the Board's instructions before we 5 filed our motion, we did consult with the Decade and we said 8 that we considered that to be a non-responsive answer, and 7 that under the circumstances we planned to file a very 6 strong filing about it.
9 The way I understand it, they refused our request 10 to have similar type interrogatories answered.
The staff's 11 were more general, they said, "Please give us ai'l your 12 allegations and the basis for them."
Ours were essentially 13 the same, except that we parsed each contention and each 14 allegation they made in the contention, cited it, and said, 15 "Give us the basis for these."
Then our second follow-up, 16 we said, "Do you have any other issues.
If so, give us the 17 ba sis. "
18 CHAIRMAN BLOCH:
If the Decade *were willing to 19 accept the agreement with staff to include answers to.
20 portions of your questions, which were more specific than 21 the questions asked by staff, would that help to assuage 22 your problems ?
23 MR. CHURCHILL:
You asked earlier, Your Honor,
()
24 whether my response to the fact that Decade considered this 25 as a motion to compel, I would say that because of our OV ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
838 requestinkfootnote, in the alternative, if the Board was 1
2 not disposed to dismiss Decade as a result of this motion,
'3 that clearly all that is lef t of my motion is a motion to O
,~
4 compel.
5 I would prefer, and I think we have the right and
"~
6 I think we have stated adequate grounds, to have Decade 7 dismissed. outright because of their failure to provide a
"~
8 basis and because of their citation to a record which 9 contains a conclusion by the Board that so far they have 10 shown no basis.
1 CHAIRMAN BLOCH:
Mr. Churchill, on Contention 12 Seven in particular, you might want to comment on that 13 particular point csomewhat more because it does seem to me 14 tha t 'in the context of full-scale sleeving, the allenations 15 may be somewhat:more serious, and our record, I think, at 16 the pre sen t time has no indication of the supervisory plan 17 to be fo11 owed during full-scale sleeving to make up for 18 al1eged problems with channel-head workers.
1y MR. CHURCHILL:
A problem with that is that the 20 other thing that has happened is that so far, in spite of 21 the f act that the Board has given Decade special 22 opportunities to conduct discovery early, they have not 23 tdken advantage of it.
In the total context, I also ha ve to O
24 1ook et their fa11ere to cenduct discovery themee1 es.
25 Contention Number Seven, I have always believed, O
~
ALDERSON REPORTING COMPANY,INC, 403 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
839
(])
1 and still continue to believe, has absolutely no basis 2 because the contractor, which they say is the same, does not 3 in this case either train or supervise the channel-head 4 workers.
To my understanding, the only basis that they ever 5 said was tha t it was the same contractor involved here and 6 in San Onof re.
7 Also there has been f urther information presented 8 at the last hearing which showed a report by IEE, which 9 investigated these allegations, that showed that the work 10 there has been accomplished satisf actorily.
11 The second part of my argument, my argument beino 12 tha t the order said tnere was no basis, if I am correct -- I 13 am sorry, I was mistaken there.
l 14 I think that your order also suggests for 15 Contention Seven, at least with respect to the Demonstration 16 Program, that there was no basis.
There is nothing that has 17 been said, that I can see on the record, to suggest that 18 there is any further basis for a full-scale program based on i
19 what has already been presented.
20 It is not a question tha t we, all of a sudden out 21 of the blue, have to prove that everything is all right 22 un til th e Intervenor, or the party that is alleging 23 something, provides at least a tolerable basis as to why we
()
24 would have reason to suggest that something might not be all 25 right, and tha t is what he has failed to do.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WAShlNGTON, D.C. 20024 (202) 554-2345
840
(])
1 CHAIRMAN BLOCHs Have you concluded, Mr.
2 Churchill?
3 MR. CHURCHILLs Yes, except that I have not
)
4 answered one of your questions, Your Honor.
5 When you asked me how do I feel about the answer 6 to the discovery, I responded by saying that I think that 7 they should be dismissed.
You probably would be interested 8 in my views on their f urther answering, should you decide 9 not to dismiss them.
10 CHAIRMAN BLOCH:
Yes, I would be.
11 MR. CHURCHILLs That would be tha t at the very 12 lea st, I would expect our interrogatories to be answered 13 f ully and completely.
If that, in and of itself, would also 14 answer the staf f, and they wanted to essentially give the 15 identical information to the staff and represent tha t this 16 was a complete response to the staff, that would be all 17 right.
l 18 I would not be satisfied just to have them answer 19 the staf f's because they have made specific allegations, we 20 h a ve ze rced into each one of them and asked specifically fcr 21 their basis for each individual allegation.
That is what wet 22 are enti tled to have, and that is what I would insist on 23 h av in g.
Now I am completed.
()
24 CHAIRMAN BLOCH:
The timing on that, is there a 25 deadline that you would like to suggest?
I
(
ALDERSON REPORTING COMPANY,INC, l
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
841
(}
1 MR. CHURCHILL:
I have not really thought about 2 that, Your Honor, because the motion was primarily one for 3 dismissal.
Maybe we could discuss that.
You said that you 4 airo wanted to discuss scheduling.
5 CHAIRMAN BLOCH:
Of course, if we dismiss, that is 6 moot.
7' MR. CHURCHILLs That is right.
8 CHAIRMAN BLOCH It seems that we should consider 9 both possibilities.
10 MR. CHURCHILLs I an a little bit troubled by this 11 because the questions are to Decade, "What are you, Decade, 12 asserting?
What is your basis?"
This is information that 13 they either have or they don't.
If they don't have it, they 14 could tell us that within a day, and if they do have it, it 15 is just a matter of setting it down.
16
'Je should have gotten this a long time ago if it 17 existed.
Therefore, there is no rea son a t all to suggest 18 t ha t they should be given any time other than the time that l
19 i t would tak e th em to put it down on an expedited basis.
20 CHAIRMAN BLOCH:
To clarify one more thing, Mr.
21 Churchill, when you are asking th a t the y provide specific 22 basis, where it involves a citation to our record, would a 23 specific transcript citation be sufficient, or are actually
()
24 contending that in answer to the interrogatories they have 25 to copy over the words?
O ALDFRSON REPORTING CCMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
842
(]')
1 MR. CHURCHILLa I would think that they should at 2 least specif y what the basis is.
One of the reasons is that 3 the past practice has been to be extremely vague in making 4 reference to the record.
For example, in the exception to 5 your Initial Decision, we have a great deal of trouble 6 determining Just what they were taking exception to.
7 I don't know that you have to specifically 8 propound the rule on this, Your Honor, but I think that they 9 answer has to be clear enough so that we understand to precisely what the basis is.
If it is just a citation to a 11 transcript page, and I and you and the other parties read it 12 and are still unsure of what they are citing for a basis, 13 that would obviously be inadequate.
14 CHAIRMAN BLOCH:
I am just talking mechanically.
15 If, in f act, they are relying word for word on what the y 16 have already put in the transcript, you are not really 17 requiring that they physically copy it over ?
18 MR. CHURCHILL:
I don't think any point would be 19 served in physically copying it over, provided I knew 20 precisely what they were referring to.
21 CHAIRMAN BLOCH:
All right.
22 Have you concluded now, Mr. Churchill?
23 ME. CHURCHILL 4 Yes, I have.
()
24 CHAIRMAN BLOCH:
Mr. Bachmann, it is our general 25 practice to have the staff come last in proceedings.
It O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
843
(])
1 seems to me that if your position is more supportive of the 2 person making the motion, it may be better for you to be 3 last on tna.t side.
4 Would it be more appropriate for you to speak now 5 or af ter Decade speaks, if you accept the general tha t you 6 should speak last on the side that you represent?
7 MR. BACHMANNs I think at this point, since we 8 vere not totally, absolutely supportive of the Licensee 's j
9 motion, tha t we should present our case last.
10 CHAIRMAN BLOCH:
Mr. Anderson, will you present 11 your case now?
I hope that it will not take more than 10 12 minutes, but if necessary we will be indulgent.
13 MR. ANDERSON 4 I think I can make it very quickly, 14 Your Honor.
Let me make three brief points.
15 First, as to the nature of Mr. Churchill's 16 pleading, I think he has simpled pleaded his point 17 incorrectly and improperly.
To illustrated that, let me 18 make an exaggerated point for illustrative purposes only.
19 If he were to propound to us a question in an 20 interrogatories asking what the meaning of life is, and we 21 responded, I don't know, under his interpretation of the 22 Commission's policy statement, we could be dismissed from 23 the proceeding because we have not answered an interrogatory
)
24 tha t he has propounded.
25 Obviously, the absurdity of that illustrates the O
ALDERSoN REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W, WASHINGTON, D.C. 20024 (202) 554 2345
844
()
1 fact that the procedures, which are in the Commission's 2 regulations, ought to be adhered to, and that is that an r~s 3 alleged non-response by a party has to be determined by the U
4 Board, or the Appeals Board, or the Commission itself, and 5 not by the opposing pa rty.
8 CHAIRMAN BLOCHs Mr. Anderson, that is obvious.
I 7 think the characterization may be a little bit more 8 extreme.
I noted that Applicant relied on a case, which it 9 attached, which had not been generally cited, but in the 10 footnote to that case they cited Boston Edison Company, 11 which appears in 1 NRC at 579.
12 I think the precedent is fairly clear that when 13 you are asked for the bases of your contentions, you really 14 are supposed to provide them in detail as they are known to 15 you at that time.
Not speculating on what you will learn 16 later, but as they are known to you at that time.
17 Mechanically, that may not mean copying all the pages of the 18 tra nscript, and I have just discussed that with Mr.
19 Ch urchill, but it means fairly specifying what the bases are 20 as understood by you at the time you received the 21 interrogatories.
22 MR. ANDERSON:
That moots that, so let me try a 23 second point.
But, before I do that, I think what we are
()
24 all saying is that the proper question is, should discovery 25 be compelled.
In other words, does the Board feel that we O
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 (202) 554-2345
845
(])
I have or have not been responsive to the Licensee 's 2 position.
3 In that regard, and this is my second point, the 4 word " basis" has two separate and distinct meanings which 5 are being blurred together.
The first meaning of the word 6 is a basis sufficient to support a contention for a hearing 7 to be held.
In our vernacular, a second use for the word,
8 " basis" is essentially all the things you are going to rely 9 upon in making your final argument in the final brief or 10 cral statement to the Board or Commission.
11 I think wha t Mr. Churchill is actually asking for, 12 I am quite clear in that regard, he is asking for the 13 second.
14 CHAIRMAN BLOCH:
Mr. Anderson, I think it may be 15 right.
If he could get tha t, he would be happy to.
But I 16 think he really is asking for all the support that you now 17 have for your contentions.
Not necessarily what you will 18 have at the end of your case, but what you now have.
19 MR. ANDERSON:
I don't think that that is the i
20 ca se, Your Honor.
21 Mr. Churchill had a discussion with me prior to 22 his filing what he called a strong motion, and I indicated 23 to him at that time that we have not made the compilation
()
24 and the indexation of the record sufficient to list l
25 everything out of the record, except for th at which we have l
O ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554 2345
846
()
1 already provided in response to the motion for summary 2 disposition and as part of the initial petition filing.
He 3 indicated that those things which we already had filed were 4 not sufficient.
5 I think the issue is this, at least as I perceive 6 it and we can have further discussion to see if that 7 perception is inaccurate.
My perception is that Mr.
8 Churchill is asking us to basically file our brief on the 9 entire case, and we do not believe that he can advance a 10 stage by the filing of an interrogatory in which final 11 arguments are made.
12 We have provided to him everything which we have 13 indexed out of the record at this point in time, but we have 14 not yet at this point in time done a complete indexing of 15 t h e reco rd.
He is asking us, ir. our estimation, to index 16 the record prior to the completion of discovery and prior to 17 the hearing being held, and we consider that inappropriate.
18 CHAIRMAN BLOCH:
How do you consider your recent 19 response to staff to be different from your response to 20 Applicant?
21 MR. ANDERSON:
I believe it to be the exact same.
22 I think that Mr. Churchill, he can speak for himself, of 23 cou rse, was more insistent because I think he was asking for
()
24 the latter.
He was asking for the entire brief on the case, 25 and not for what existed in our hands at this point in ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
847 i
1 time.
2 If my understanding of Mr. Churchill is 3 inaccurate, and all he is asking for is that which we have 4 indexed at this point in time, probably this whole storm and 5 fury could probably subside substantially.
6 CHAIRMAN BLOCH:
I am not sure that what you have 7 just said, what you have indexed at this time,, is what he is 8 asking for.
There could be a little work necesst ;y in order 9 to go back over the transcript of the hearing to determine to what exists in the record, but that would be in your 11 possession at this time.
What he could not be asking for, I 12 think, ic for you to go about doing research for him in 13 order to have more to provide than you have now.
14 MR. ANDERSON Let me make our position clear.
We 15 are takino the position tha t once we have provided what we 16 believe is sufficient to provide a basis for a contention to 17 initiate a proceeding, we cannot be compelled under the 18 guise of discovery to go index the record, even in terms of 19 the existing record, for him to downgrade our final brief.
20 That would be the position we would take in this regard.
21 CHAIRMAN BLOCH:
Mr. Anderson, have you consulted 22 the case which I forwarded to you?
23 MR. ANDERSON:
Boston Edison.
O 24 CsaranAs atoCa.
res, sostoa tdisoa.
25 MR. ANDERSON:
It does not ring a bell off-hand, O
ALDERSON REPORTtNG COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
i 848
()
1 and I don't have it in front of me now.
2 CHAIBMAN BLOCH:
It was the case footnoted in the 3 first footnote in the case that was included in Applicant's 4 brief.
I think a problem with your position is that 5 precedent seems clearly to stand for the opposite of what 6 you are now asserting.
That is, you must-provide +he 7 current status of your support for your contentions in 8 response to discovery.
The discovery is supposed to be full 9 and open, and to keep everyone apprised of what the other 10 parties are relying.
11 MR. ANDERSON:
But it cannot compel me to make 12 research of things outside of the record or of the record 13 itself if that has not been done at this point in time under 14 the rubric of discovery, in our estimation.
Whether that 15 case says that or not, I will have to review it to speak 16 more knowledgeably about it, if I have not done so at this 17 tim e.
18 CHAIRMAN B10CH:
Mr. Anderson, I think you will 19 also find that there is a discussion of what kinds of l
20 research have to be done.
There is a citation to Hickman v.
21 Taylor, and tha t in f act there can be some obligation to do l
22 research in your own records, and that the decision about l
23 whether or not to compel is a balancing decision relating
()
24 the difficulty of doing tha t to the importance of obtaining 25 the information in the procedure.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
849
(}
1 MR. ANDERSON:
I as f amiliar with the Hickman 2 case, and my recollection of that is that I think the 3 reference there was to things that are in the file outside 4 of the record.
The reason for that being an important 5 distinguishing f eature is that the opposing party wculd not 6 have access to it otherwise, and that is why the need to ash 7 the persons to perhaps do some additional research of their 8 file if it is not pa rt of the record available to the 9 opposing party.
10 But in the case where the opposing party has the 11 exact same record on their desk as we do, basically what the 12 opposing party is asking is for us to do their research for 13 them.
Of course, we are going to have to do some research 14 ourselves, but the question is, at what point in time.
15 We have had a continuing objection to the 16 Licensee 's position that they can advance what normally 17 occurs through and to the close of the hearing to occur 18 essentially prior to the hearing.
That is where the 19 disagreement would focus, I think.
20 CHAIRMAN BLOCH:
Mr. Anderson, on the scheduling 21 matter, actually the most troubling part, I think, of 22 A pplican t's motion for dismissal is that he points out that
(
23 in your last progress report, you did not indicate any plans
()
24 to utilize the discovery process.
I am curious what your 25 requirements are f or more time, is it to do research O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W. WASHINGTON, D.C. 20024 (202) 554-2345
850 1 yourself or to file interrogatories, and what you think
(}
2 would be f air in that regard.
3 MR. AN DERSON :
Let me ask a question, if I may, 4 and then I will get to the answer.
5 I had been under the impression that we were going 6 to receive the Demonstration Sleeving Report in December.
I 7 vonder if I could break up your question, and pose that 8 question to Mr. Churchill at this time to better answer your 9 question, because my answer depends upon that response.
10 CHAIRMAN BLOCH:
Mr. Churchill, please respond to 11 just that one question at this point.
12 MR. CHURCHILL:
The Demonstration Sleeving Report, 13 w e hope will be filed this week.
14 HR. ANDERSON:
I don't know what is going to be in 15 it, but it had been our intention to begin to formulate 16 discovery questions within ten days to two weeks af ter 17 receiving that sleeving report.
Also, I think we wanted to 18 preserve the right, if it was necessary, to have discovery 1o continue to a time some short time after the SER is 20 released.
21 CHAIRHAN BLOCH:
To be clear, Mr. Churchill, would 22 t ha t Demonstration Sleeving Report have any performance 23 tests in it?
()
24 MR. CHUFCHILL4 No, it would not.
Furthermore, 25 this is the first time I ever heard that Mr. Anderson was O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON. D.C. 20024 (202) 554-2345
851
(])
1 relying or waiting for that report in conjunction with his 2 discovery.
He certainly never said anything about the Demo 3 Sleeving Report in any of his discovery reports.
4 CHAIRMAN BLOCH:
I guess he could expect to have 5 quality assurance discussions in that report, but it would 6 not go to the actual performance of the sleeves.
Would that 7 be a correct characterization?
8 MR. CHURCHILLs That would be.
That report is 9 just a report of precisely which tubes were sleeved and how, 10 and the process, and so on.
It would not have performance.
11 CHAIRMAN BLOCH:
Would it include any problems in 12 the actual installation process that were experienced?
13 MR. CHURCHILL It would, but it is my 14 understanding that there were no problems experienced.
15 CHAIRMAN BLOCH:
Would you like to continue, Mr.
16 Anderson?
17 MR. ANDERSON:
No, I think that completes.
l 18 CHAIRMAN BLOCH:
Would you lik e to comment on why 19 i t is that you need that for discovery, other than for 20 Contention Seven?
21 MR. ANDERSON:
It is not a question of need.
22 Discovery certainly could oo on on an on going basis.
It 23 has just been our intention to group things, and not dribble
()
24 them out.
It has not been a question of a claim being made 25 b y us that discovery would be impossible without that.
I O(_/
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
b52
(])
1 just do not perceive any need to advance things in a never 2 ending series of discovery requests.
3 It seems to me, though, that the Demonstration 4 Sleeving Report would by itself initiate the need for 5 questions, even if questions had been propounded before.
In 6 view of the fact that we are lagging substa ntially, there 7 will be no need to have earlier ones precede that.
8 CHAIRMAN BLOCH:
If we chose to order that yogr 9 last opportunity f or initial discovery, other than newly 10 discovered matters, was to occur two weeks after the it issuance of the Demonstration Sleeving Report, would tha t 12 meet your procedural needs?
13 MR. ANDERSON:
Except for the SER, if the SER 14 would come out at the same time, because we would like to 15 have that also.
If we had two tracks, one of the SER and 16 one for the Licensee, it would, sir, but not if it were on 17 the same track, because the SER as I understand is in the 18 third week in February.
19 CHAIRMAN BLOCH:
Suppose we permitted you two 20 weeks f rom the receipt of the Demonstration Sleeving Report 21 f or all discovery, otner than that specifically related to 22 new information contained in the SER.
23 MR. ANDERSON:
With the understanding that that
()
24 discussion is first round, that would meet our needs, sir.
25 CHAIRMAN BLOCHs The SER questions would come O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTON. D.C. 20024 (202) 554 2345
853
(])
1 within what period of time af ter that?
2 MR. ANDERSON:
Ten days.
Actually, it could come 3 earlier.
I don't know what is in it, so I would like to 3
~J 4 nave an outside ten days.
It will be as early as possible.
]
5 CHAIRMAN BLOCH:
All right.
i S
Have you any further argument, Mr. Anderson?
l 7
MR. ANDERSON:
No, I do not, sir.
I 8
CHAIRMAN BLOCH:
Do you understand that Applicant 9 was citing the general authority of the Presiding Officer i
10 f or the proposition that we could treat this as a dismissal 11 motion if we chose.
12 MR. ANDERSON:
I go back to the general l
13 proposition that there is a prefatory decision to be made, 14 and that is whether the answer was or was not responsive, 15 a nd that is a question for the Board and not for the l
16 Licensee.
t 17 So I would have to disagree, if I understand your 18 present pro po sitio n, that there is no proper motion f or 19 dismissal until the Board has first ruled on whether 20 discovery should be required and whether the opposing party, 21 in this case ourselves, have complied with that order to 22 comply with discovery, to the extent that the Board felt l
23 that the responses to the interrogatories were not complete, 1 ()
24 and we think they were, of course.
25 CHAIRMAN BLOCH:
You think that the first time
)
l l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
854
(])
1 that the Board acts on discovery tha t the best principle to l
2 follow would be to order responses before you consider 3 anything more serious.
4 MR. ANDERSON:
I don't think any other procedure 5 would be appropriato.
6 CHAIRMAN BLOCH:
All right.
7 Mr. Bachmann.
8 MR. BACHMANN:
Yes, sir, as we stated in the staff 9 answer to the motion for dismissal, we do generally agree 10 with Decade that the intermediate step prior to granting a 11 motion for dismisstl would be a motion to compel.
We did 12 state in our answer that it certainly is within the Board's I
13 authority to proceed directly to a dismissal of an 14 intervenor.
15 However, as we also stated in our answer, the NRC 16 case law uniformly has stated and has indicated tha t prior l
17 to doing that, tha t the Board should have out an order 18 compelling responses prior to issuing a motion to dismiss.
19 So that is pretty much the staff's position as we did state 20 it in our answer.
21 We do, however, agree with the Licensee insof ar as 22 the particular responses to the Licensee's interrogatories, 23 they do appear to be incomplete, and tha t a motion to compel
()
24 based on the Licensee's interrogatories and Decade's 25 responses would be appropriate.
However, if the Board O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
855
(])
1 wishes to shape it or form it based on the arguments given 2 today, our agreement with Decade was based, as Decade has 3 indicated, on a different form of interrogory.
4 I had a discussion with Mr. Anderson, and he did 5 commit to providing us the type of answers that the staff is d
8 looking for, and for that reason we did not file a motion to 7 compel at the time.
We, of course, have not valved our 8 right to file a motion to compel answers if the information 9 does not conform with what our understanding was of our 10 agreement.
11 CHAIRMAN BLOCH:
When do you expect answers to be 12 filed pursuant to your agreement?
13 MR. BACHMANN:
We did not put that in the O
14 agreement, and Mr. Anderson could correct me if I am wrong, 15 I talked to him on the 5 th of January, so we would assume 16 sometime before the end of this week, since there does not 17 seem to be a lot of information that we requested.
Maybe 18 Mr. Anderson could confirm that.
19 CHAIRMAN BLOCHs Could you comment on when you 20 expect to file the answers, Mr. Anderson?
21 MR. ANDERSON:
Let me back up before I do.
I l
22 indicated I saw no problems with the oral statement, but I 23 withheld filing a commitment until I had a chance to review r
i
(_)
24 it in writing.
I want to make sure that that is clear.
We l
25 have just received it, and a preliminary review indicates
()
i l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
856
(])
1 that it appears satisfactory.
I don't think it is necessary 2 to provide a rerecitation of our contentions, but in the 3 spirit of accommodation we will do so.
I think we could get 4 it in the mail by the end of this week.
5 MR. BACHMANN:
That is satisfactory to the staff.
6 CHAIBMAN BLOCH:
Before you complete, Mr.
7 Bachmann.
8 Mr. Anderson, if you also had to review your 9 answers to the Applicant's interrogatories and make those 10 more complete, would one additional week be sufficient for 11 that?
12 MR. ANDERSON:
I think we have to get a precise 13 definition of what would be provided in there.
There are 14 two things.
If it is a request to review the record that 15 the Applicant has in his hands and index it, and pull out cf 16 the record, which we all ha ve, those things which to speak i
17 to our contentions, we would resist, and we would have to 18 seek redress.
We do not believe that that is an appropriate 19 thing.
20 If there is a request to just recite everything in 21 wri ting, the Applicant's was far more detailed, pro babl y 22 ano ther week would be necessary.
But I would add to tha t, I
23 don't think it would add anything more than the Applicant l ()
24 really has right now, and it would consume a lot of Mickey 25 Mouse time on our part that would be non-productive.
O ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
857
()
1 While I think we would have to abide by such an 2 order f rom the Board, I would urge the Board not to make it 3 because I don 't know what would actually be provided of
)
4 substance to the hpplicant, except a consumption of our 5 time.
6 CHAIRMAN BLOCH:
Mr. Bachmann.
7 MR. BACHMANNa Yes, sir, there are a few more 8 points that I would like to make on behalf of the staff.
9 The staff has been proceeding with the understanding th a t 10 information not provided by the Intervenor in this case 11 through discovery would not be permitted to be brought out 12 a t the hearing.
13 It was the basis of our agreement with Mr.
14 Anderson, or a t lea st the staff 's thinking in reaching this 15 agreement was that, for instance, in the agreement we 16 indicate that at the present moment that the Decade has no l
17 witnesses.
18 Certainly, with sufficient time prior to the 19 hearing, if they developed some expert witnesses, we would 20 expect that everyone would be immediately informed and a i
21 summary of their views provided sufficiently prior to the 22 hearing, so that we would be able to prepare for the actual 23 hearing itself.
()
24 So the staff is not as concerned, perhaps, as the 25 Licensee is, because we are operating under the assumption
!'([)
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
858
(])
1 that that which we have not been provided will not be used 2 at the hearing.
If this is all that Decade has at this 3 time, then we will have to assume that that is all they will
)
4 be providing at the hearing, and there will be no more than 5 that.
6 CHAIRMAN BLOCH4 Mr. Anderson, is that consistent 7 with your understanding?
8 MR. ANDERSON:
I think, if I can restate my 9 understanding of Mr. Bachmann's statement, so that I am 10 answering the same thing.
Mr. Bachmann is saying that in 11 terms of an affirmative case being presented, number one, at 12 the hearing, we would have updated our responses to the 13 interrogatories to the extent that anything further occurs O
14 a t some point, I am not sure what it would be, let's just 15 say for the sake of discussion, a week before the hearing.
16 Secondly, if we are coing to rely on any major 17 information outside of the record in cross-examination, we 18 would provide it to him at some point prior to the hearing, 19 and that would be our understanding as well.
20 CHAIRMAN BLOCHs Mr. Bachmann, as I understand Mr.
[
21 Anderson, he is sa ying tha t they would have to give you 22 completely the basis for their contentions so f ar as it is 23 n o t already in the record.
As I heard him, he is saying
()
24 that he wouldn't have to detail for you what is already in 25 the record.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
859
(}
1 Mr. Anderson, is that right?
2 MR. ANDERSON:
That is correct, sir.
3 CHAIRMAN BLOCHa Mr. Bachmann, is that acceptable 4 to you?
5 MR. BACHMANNs With a certain modification, 6 perhaps, merely perhaps in the semantics sense.
When we 7 requested in our agreement, and stated that we wanted a 8 comprehensive, self-contained list, we did this not only so 9 we could understand what was going on from the staff's 10 viewpoint, but also perhaps from the Intervenor's viewpoint 11 because the staff is a bit unclear as to what specific 12 contentions or issues, wha tever we want to call them, are 13 going to be litigated.
l 14 We are going into this phase of the litigation 15 with the Board 's single broad contention.
We would 16 certainly hope that sufficiently in advance of the hearing, l
17 tha t the Board would make some form of ruling as to the 18 precise issues to be litigated, and at that point we would 19 then expect from Decade a more precise explanation, or have 20 them provide more precise information as to the authorities, 21 the factual authorities that they intend to use to litigate 22 the precise issues that the Board determines will be 23 litigated in this hearing.
()
24 CHAIRMAN BLOCH:
While you don't require a full 25 indexing of the record, you do require a full statement of O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., W ediHINGTON, D.C. 20024 (202) 554-2345
860 1 the specific allegations and factual support, whether or not 2 it is in the record.
3 MR. BACHMANN:
I think that that is approximately 4 what we are saying.
The problem we have right now is the 5 single broad contention.
6 CHAIRMAN BLOCHs Let me ask Mr. Anderson if that 7 is also what he understands.
8 MR. ANDERSON:
I think we are potentially loping 9 partly into that gray area which contains somewhere in it 10 tha t line which we think is inappropriate to draw.
We would 11 be willing to provide the basis for the contentions, and we 12 would be willing to provide those which we have indexed from 13 the record.
But we are not willing to voluntarily bind a
14 ourselves, in terms of use for cross-examination, to things 15 which are in the record but were not stated in a previous 16 basis summation.
17 CHAIRMAN ELOCHs It would be fair to say that as 18 Decade's representatives review their contentions, they 19 certainly ought to list anything that at this time they nov 20 consider to be important.
They may not make a thorough 21 review of that record, but anything th ey now consider to be 22 important, they are going to indicate to be a basis and show 23 what the support is.
24 HR. ANDERSONs That is correct.
This is not meant 25 to be a limiting summation basis.
O ALDERSON REPORTING COMPANY,INC, I
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345 U
861
()
1 CHAIRMAN BLOCH:
Just to be clear, the Public 2 Service hearing record is not entirely in our record.
To 3 the extent that you refer to it, for us to understand w ha t 4 has been filed, we would need something to know what is 5 going on.
6 MR. ANDERSON :
I think in that regard, at this 7 stage, we have indicated to Mr. Bachmann that that record is 8 in our file, and if his representative wants to come and 9 review it at this juncture, we would be glad to do so.
At to this juncture, we do not have it indexed, and we are not at 11 the stage where we are willing to voluntarily prepare that 10 indexing.
13 CHAIRMAN BLOCH:
If there is anything important on O
14 i t, which you are relying on, you will list it as an 15 answer e l
l 16 MR. ANDERSON:
Exactly, and we intend to do that 17 in response to his lettar.
I 18 I would expect, though, to accommodate him, any 19 major issues, we would actually affirmatively review th e 20 file before the hearing in the PSC docket, and alert him to 21 anything that is of significance prior to the hearing.
22 CHAIRMAN BLOCH:
Mr. Bachmann, any further 23 comments?
l ()
24 3R. BACHMANN:
Yes, just to go further as to what 25 M r. Anderson said earlier about the two definitions of O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
862
(~N 1 " basis."
I would like to develop that just a little bit O
2 further as briefly as possible.
3 As I mentioned earlier, we are proceeding under 4 the single broad contention.
I would like to ask you, Judge 5 Bloch, if sometime in the not too distant future, if the 6 Board intends to take the issues that Decade has raised 7 either at the prior hearing or as responses to discovery, 8 and rule upon these issues and call them contentions, and 9 narrow the issues down.
10 I think Mr. Anderson and I during our discussion 11 both agreed that we were a little unclear as to specifically 12 w ha t the Boa rd intends to admit in as litigable issues for 13 the purposes of this hearing, and narrowing the issues down 14 so that we know exactly what we are litigating.
15 CHAIRMAN BLOCH:
Of course, that would be the 16 purpose of a summary disposition motion, if one were filed.
17 I t would also be the purpose of a preliminary hearing, were 18 we to hold one, in response to a motion for summary l
l 19 disposition.
20 Is there another way that we ought to be getting 21 at that?
22 MR. BACHMANN:
I am going back to Mr. Anderson's I
23 comment about the two meanings of " basis," one the initial
()
24 basis, or as Decade has termed it, the preliminary basis, to 25 get contentions admitted for litigation, or to forin the O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
063
(])
1 material upon which a motion for summary disposition can be 2 made.
Second*y, the basis in the sense that is used in 3 discovery, where one is asked all of the factual authorities
{}
4 one has to be pursue the case.
5 At this poin t, I think it is a bit unclear to 6 everyone the precise, specific issues that the Board feels 7 can be litigated under the umbrella of its single broad 8 contention.
9 CHAIRMAN BLOCH:
Are you suqqesting that we should 10 hold a preliminary hearing conference without requiring that 11 there be any previous summary disposition motion, that we 12 should just at that time hear presentations on what the 13 basis for is for litigable issues, and rule afterwards on O
14 genuine issues of f act for which we ought to have a 15 hearing?
16 MR. BACHMANN:
Yes, sir.
I believe that at this 17 point Decade has presented four contentions at the 18 Demonstration Program, which it has indicated that it still 19 vishes to litigate f or the full sleeving program.
It has 20 also indicated in responses to the interrogatories from the 21 staff and the Licensee that it has five further issues that 22 it wishes to litigate.
23 We feel, and I have discussed this with Mr.
()
24 Anderson, that we would need some bases for the five further 25 issues.
Of course, we have asked for one single piece of ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
864
(])
1 paper giving us all the issues and their preliminary bases, 2 that they wish to litigate.
r~g 3
I think it would be helpful to all parties, prior V
4 to any motions for summary disposition, and subsequent to 5 Decade providing the bases for at least their other issues, 6 the additional five, for us to have some form of a 7 conference, whether it is telephone or otherwise, and for 8 the Board to rule on the admissible contentions.
9 Then, we are over the hurdle as to what the first to meaning of " basis" is.
Then everybody would be aware that 11 any turther discovery would be asking the Intervenor, for 12 instance, give us all your factual information to this point 13 tha t you are going to use at the hearing.
O 14 CHAIBMAN BLOCH:
It seems to me that after 15 discovery is completed tha t tha t might be redundant.
In 16 f act, it would be more appropriate, once you have discovery 17 on what the bases are, for us to consider in one step 18 whether there ought to be summary disposition, ra ther than, 19 af ter discovery is completed, deciding whether something 20 should be admitted for discovery because there is a basis, 21 a nd then deciding there should be summary disposition.
22 MR. BACHMANN:
The reason I brought this up was to 23 respond to Mr. Anderson's comment about the two meanings of
()
24 " bases" tha t have been used in this discussion.
25 I think that he and I, at least, I have not talked O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
865
()
1 to Mr. Churchill about this rat, are unclear as te what 2 bases we are talking about at this point.
Maybe Mr.
3 Anderson could clarify that a bit more.
{)
4 CHAIR 3AN BLOCHa I thought I understood what Mr.
5 Anderson said, and maybe the Board can clarify it.
There is 6 a basis required for the admission of a contention to a 7 hearing.
Then there is a requirement on a notion for 8 summary disposition that there be a genuine issue of 9 material fact before we have a hearing on that issue.
10 Therefore, there are two levels of contention.
11 Mr. Anderson, that is consistent with your 12 understanding, isn't it?
13 MR. ANDERSON:
Well, there are two junctures at O
14 which it is, but the standard to be applied at the first 15 ste p and at the second step in a motion for nummary 16 disposition.
I am unable to fathom exactly what the 17 distinction in the standard is, in fact, to be quite frank, 18 sir.
19 CHAIRMAN BLOCH:
I think the precedents of the 20 Commission suggest a rather lenient standard in the first i
21 step, and a more rigorous one in the second step.
It is l
l 22 like summary disposition in a court.
23 The only I think you could learn more specifically
()
24 about that would be to try to review some of the precedents 25 on those issues.
l O
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
866
()
1 Mr. Bachmann, I assume that you have completed, is 2 that incorrect?
3 MR BACHMANNs No, sir, I just have one or two 4 more little comments to make.
5 In response to discovery, Decade has indicated, as 6 I stated just a few minutes ago, that they had five 7 additional concerns.
These concerns were provided to us 8 without even that initial basis for admission of 9 contentions, and that is what we have asked Mr. Anderson to 10 provide us.
11 I assume that at some point the Board may rule 12 upon the admissibility of these five additional concerns.
13 HR. ANDERSON:
Could I comment on that, sir?
14 CHAIRMAN BLOCH:
Please.
15 MR. ANDERSON 4 At the last, or at the time before 16 ve had a telephone conference, I specifically asked the 17 Boa rd whether that was the j'2ncture at which contentions 18 supplemental to the original contentions should be filed.
I 19 believe the response that you made was that that was not the 20 tim e f o r th a t to occur, and t.ta t you would advise the 21 parties when additional contentions should be made or 22 submitted.
23 I just wented to indicate, in response to wha t Mr.
()
24 Bachnann has said,, tha t it is ou-intention to make a 25 supplemental filing on contentions at the appropriate time, O
ALDEF SON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
,x.
867
(])
1 but as we understand it, and I would like to recapitulate 2 tha t understanding, this is not yet the appropriate time in 3 the Board's opinion.
4 CHAIRMAN BLOCH:
Let me comment that we are about 5 to establish some deadline on the completion of initial 6 discovery requests and on your response to the discovery 7 requests already filed on you.
8 At that point, if I understand, the questions thrt 9 have been asked of you through interrogatories, the parties 10 will know the bases for those requests.
We could go into 11 very formalistic procedures which would require us to do 12 everything twice.
13 I am not sure I understand the reason that we O
14 would have to do that.
It seems to se that we could just 15 consider this single jump, whether or not you have genuine 16 issues for each of your sub-contentions.
17 MR. ANDERSON:
So if we were to do that by motion 18 for summary disposition, for example, a more formal 19 statement which puts it all together, cotid occur in the 20 response to the Licensee's motion for summary for 21 disposition, for example.
22 CH AIBM AN BLOCH:
That is correct.
23 MR. ANDERSON:
If that is done by a Board hearing
()
24 o r a preliminary hearing, we could do it in the pre-filing 25 time, which would probably be made as part of tha t O
ALDERSON REPORTING COMPANY,IP.C.
400 VIRGINIA AVE., S.W WASHINGTON, D.C. 2ra24 (202) 554 2345
j 868
(])
1 scheduling.
2 CHAIRMAN BLOCH:
Prior to our decision, would be 3 papers f rom the parties, whether they were called summary 4 disposition or something else, they would have a chance to S show what the bases for their contentions were, and the 6 Applicant and the staff had the chance to show they might 7 not be genuine issues on some of them, I think we would have 8 the basis for a reasoned decision on what goes to trial.
9 MR. ANDERSON:
All right.
10 CHAIRMAN BLOCH:
Mr. Bachmann, have you completed 11 now?
12 MR. BACHMANN:
Yes, sir, I have.
13 CHAIRMAN BLOCHa Mr. Churchill, you have a few 14 matters that I am sure you would like to comment on.
15 MR. CHURCHILLs Yes, I would, thank you.
16 Going back, first of all, to Mr. Anderson's first 17 statement about our interrogatories, two different types of 18 bases, and what his understanding is of what we were asking 19 f o r, I think that the confusion that has arisen, and is more 20 or less of a red herring that has come up due to the 21 circumstances, and that is, started with the cita'ien of c
22 record in answer to the interrogatories.
23 I think what he was essentially saving is that
()
24 wha tever the licensee asked in its interrogatories, the 25 answer was somehow in the record, and there were no answers ALDERSON REPORTING COMPANY,INC, l
400 VIRGit:1A AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
869 O
' ather ta a i= tae t card-tat 1 enea=1r r1ca 2 interpret that.
3 Our interrogatories don't say what is on the 4 record or what isn't on the record.
Our interrogatories 5 simply ask for the Intervenor to state the basis for the 6 allegations that he has made in his petition.
7 For example, at Interrogatory 4-1, we recite the 8 contention, Contention Four, and we say, " State in detail 9 the f actual bases for the allegation that the sleeving 10 process will give rise to ' unexpectedly corrosive 11 environment.'"
He said in his allegation that it would give 12 rise to an unexpectedly corrosive environment.
All ve are 13 asking for is, what is the basis for that statement.
O 14 We did not say, "What is the basis that is on the 15 record so f ar, or is not on the record."
We just said, 16 "What do you, Decade, have, what information do you possess 17 to cupport that allegation because we don't believe it is 18 t ru e. "
19 CHAIRMAN BLOCH:
Mr. Churchill, you were listening 20 to the dialogue among Mr. Anderson, Mr. Bachmann and 21 m yself.
Are you satisfied that what Mr. Anderson plans to 22 provide would be adequate for your purposes?
23 MR. CHURCHILL:
I am not sure whether I am or not, O
24 decause Mr. Anderson s answers see ed to de centered on the 25 record.
It seems to be a question of whether or not he has O
ALDERSON REPORTING COMPANY,INC, 400 VIRGtNIA AVE., S.W., WASHINGTON, D.C. 20024 (2C2) 554 2345
870
]
1 had a chance to index the record.
It is almost as if the 2 question that we had asked was, "Here is th e re co rd.
Tell 3 se what on the record is the basis for it," and we did not 4 ask that.
I asked, "What is the basis that you have, 5 whether or not it is on the record."
6 Now, if he can specifically give a basis on the 7 record, that is fine.
I really don't care where it comes 8 f rom, I just want to know the basis that he has.
If he can 9 cite lines, page numbers, and transcripts that provide a 10 basis, or that provide what he thinks is a basis, that is 11 okay with me, too.
12 But the whole discussion about whether they have 13 to assemble material or create new work, or something, or O
14 whether they a re required to go and index the transcripts, 15 or whether or not they have got enough indexing done so they 16 can answer the question, is really irrelevant because I am 17 not asking where in the record something is.
I am asking 18 wha t the answer is.
If he wants to cite the record as part 19 of the answer, that is probably okay, if in f act it is 20 there.
21 CHAIRMAN BLOCH4 Mr. Churchill, you don't want to 22 just have a basis for each thing.
You want to know each of 23 the bases that Decade now has that it might want to assert 24 a t an evidentiary hearing; is that correct?
25 HR. CHURCHILis Certainly.
In fact, there is O
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
871
(')
1 plenty of case law to say that in making the case at the 2 hearing, you can't go beyond wha t he cupplied in discovery.
3 Yes, the " bases" is b-a-s-e-s in all cases, plural.
{}
4 CHAIRMAN BLOCH:
All right.
5 MR. CHURCHILL:
What do you have to support them.
6 In answer to the question, does he have to go out 7 and do research especially to answer the interrogatories, 8 wha t we are asking for is what he now has.
Of course, 9 interrogatories are continuing in nature, and as he gets 10 more information in his possession that would be responsive 11 to the interrogatories, he as well as the rest of the 12 parties would be obligated to provide that.
13 It is not a question of saying that we want you, O
14 Mr. Anderson, to go out and do some research for you to 15 compile information that we could just as easily compile.
16 It is not that at all because I don't know what is in his 17 head as the bases for these contentions.
Fe is the only one 18 that can give us that answer.
19 CHAIRMAN BLOCH:
Let's stop for a second.
20 Mr. Anderson, has what Mr. Ch urchill just said 21 reassured you to some extent that the request he is making 22 is basically a reasonable one, similar to the ore the staff 23 is making, or are you still troubled by wha t he is saying?
()
24 MR. ANDERSON:
As stated just now, as 25 distinguished from what we discussed over the phone in our v
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
872 O
' oriv te coaver tio i= a=1te t1 r ctory-2 However, I would like to interject, sir, if I ma y,
3 that Mr. Churchill's comments would indicate that we have 4 never provided a basis.
We view, although there is a 5 disagreement in that regard, that our initial petition and 6 our response to the summary disposition did provide a 7 basis.
It is not a situation in which no basis has been 8 provided.
It is a disagressent as to the weight of that 9 basis.
10 The answer to the question is yes.
11 CHAIRMAN BLOCH:
We do seem to have some agreement 12 that your answers should include what Applicant has asked, 13 as well as what Staff has asked.
There is to be a full good O
14 f aith ef fort.
We are not asking for comprehensive indexing 15 of previous documents.
16 MR. ANDERSON:
I just want to indicate to the 17 Boa rd that we have provided that, in our view, in the 18 initial petition and in the response to the summary 19 disposition motion.
Anything subsequent to that would be 20 separately enumerated.
I would not see the need to repeat 21 w h a t has previously been stated in a clear response.
22 CHAIRMAN BLOCH I think we also agreed in my 23 discussion with Mr. Churchill earlier, that providing you O
24 c1eer17 indicete existing portions of the record you ere 25 relying on, this is not a copying requirement.
We want O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
873
~
1 clear information, and providing it is clea rly indicated,
2 that will be acceptable.
3 MR. ANDERSON:
Fine.
g 4
MR. CHURCHILL:
I want communicated to me the 5 basis for it.
If it is a method of communication that a 6 reasonable man can understand, that is fine.
7 On this question of whether an adequate basis has 8 been provided, Mr. Anderson is quite right, we have a big 9 disagreement there.
10 CHAIRMAN BLOCH:
Okay, but there is no reason to 11 argue that at this point, is there?
12 MR. CHURCHILL:
Yes, there is.
There is a very 13 good reason to argue that because it goes to the motion.
O 14 Mr. Anderson made an admission during his 15 discussion with you.
He admitted that there is nothing more 16 tha t he has that is not already on the record.
In fact, he 17 said tha t he didn 't think it would do much good for him to 18 go and recite things or point to things on t!.e record 19 because I would not get any more in answer to my 20 interrogatories than is already there.
21 Your Honor, if that is the case, I would submit 22 tha t we have on this record an Initial Decision by the Board 23 t h a t says that so far there has not been shown sufficient 24 bases to warrant an eviden tiary hearing in this proceeding.
25 This again points out one of the two main reasons that I O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
874
(])
1 cited as my reasons for my motion to dismiss the Decade as a 2 party to this proceeding.
3 On the question of further --
[}
4 CHAIRMAN BLOCH:
Mr. Churchill, our reason for the 5 continuing leniency on bases, if you recall, was that you 6 were asserting that there is a possibility that you might 7 want to go ahead with full-scale sleeving on Unit 2 this 8 spring.
Is that still a possibility, or are we now using 9 more lenient standards on contentions than we need to, given I
to the requirements of the case?
11 HR. CHURCHILLs I can 't answer that question, I 12 d on ' t really know.
Yes, it is still a possibility.
It is 13 likely that will there be f ull-scale sleeving, I don 't know O
14 the answer to that.
15 I think it is safe to say at this point, Your 16 Honor, that the question you have been asking about j
17 scheduling and when discovery first round, or when a round 18 of discovery should commence and end, and so on, and my 19 f ailure to comment on that as of yet, although I will i
20 comment.
21 I am assuming that right now, we are coing into a 22 normal scheduling procedure, and I am not at this moment 23 asking for an expedited schedule because I have already done
-( )
24 t h a t, and it has been denied.
I am assuming now that we are 25 scheduling under a normal basis.
That it will no longer be
()
1 ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
875
()
I wnat we call an expedited schedule and, therefore, we will 2 no longer need this kind of leniency.
3 Wha tever ha ppens in March, we will just have to do
{)
4 the best we can.
I do this because I don't think it is 5 possible at this juncture to go through everything that has 6 to be gone through, including a hearing, and have an Initial 7 Decision in time for that particularly refueling outage.
If 8 we do any sleeving then, we will have to do whatever we can 9 do within the confines and the allowances of our currently 10 worded technical specifications.
11 So the answer to your question is, I think we are 12 in a normal schedule.
We are not on an expedited schedule, l
13 which would require special leniency in the matter of O
14 defining contentions.
I 15 On the sched uling, there also seems to be a little 16 bit of turning around here where Mr. Anderson seems to 17 think, before I can have discovery, I need to see a demo 18 program report, or I need to see the staff's SER.
I don't 19 agree with that, and I never have agreed with that.
I think 20 I have expressed my opinion on this before.
21 I think Mr. Anderson's obligation is to undertake 22 discovery in an expeditious manner.
If a document should 23 come out later that raises good cause for more discovery, A(_)
24 then it might be reasonable for the Board to allow it.
I 25 personally do not think that an SER per se gives cause for ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
876
()
1 new discovery because the SER is the staff's opinion and 2 review of information that is already on the record.
3 I think that the Decade has been extraordinarily
[}
4 dilatory and delinquent in pursuing its discovery 5 oblications.
I don't think tha t the issuance of the SER, or 6 even the sleeving demo report which we have heard of for the 7 first tino today, should be used as an excuse.
8 I think that if the Decade is not going to be 9 dismissed, and if we are going to go ahead with discovery or 10 f urther discovery, that that schedule should be set 11 expeditiously.
If another document should come out that 12 would raise a question or some new information that would 13 reasonably require more discovery, then we can consider it O
14 a t that time.
15 In any event, if you do schedule more discovery 16 based on the issuance of the documents, I don't think that 17 automatically we should be scheduling a second round.
I 18 think that any second round discovery, particularly under 19 the circumstances where the first round has not even been 20 started yet, should definitely and clea rly be a question of 21 whether there is good cause and just reason for such a round 22 of discovery.
23 On the question of motion f or summary disposition,
()
defining contentions, and so on, we are in a little bit of 24 25 an unusual situation, I think, in this proceeding.
The fact O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
877
()
1 that we are not talking any longer about an expedited 2 schedule suggests to me tha t maybe we can get around more 3 toward the normal mode as contemplated by the Commission's
[}
4 regulations.
5 Ordinarily contentions are supposed to be stated 6 at the outset, which includes an opportunity to amend the 7 petition to intervene to state contentions later in 8 accordance with 2.714.
But the whole process is geared, the 9 whole prehearing process is geared to finalizing, shaping, 10 focusing, and sharpening the issues as much as possible.
11 We see tha t in Section 2.752, which is the 12 prehet ring conference that is required before the hea ring 13 itself, the very first item is the simplification, O
14 clarification, and specification of the issues.
You see 15 that in Section 2.714, which requires that contentions be 16 specified at the outset.
17 You also see that in the regulations in 2.740, 18 which says that discovery is to be had on the issues that 19 are in, the purpose of discovery is not to go fishing and 20 find new contentions.
It is just the opposite.
The 21 contentions have to be out first, and then the discovery is 22 limited to the contentions that are out.
I suppose that if 23 inf ormation should come up that a party could show good
()
24 cause why a new contention should be raised, and the Board 25 could consider a t the time.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
i 878
()
1 We have, in my opinion, in this case, four 2 contentions, and it is my firm belief that as of this point, 3 the hearing should be right now primarily concerned with
}
4 those f our contentions, and discovery should be limited by 5 those four contentions.
If there is good cause for more, 6 the Board can hear them.
7 In answer to our request of Decade, Decade 8 suggested that there were some more issues that it would 9 raise.
We have as yet not seen the bases for those issues, 10 and we have as yet not had any showing of good cause as to 11 why those issues should be considered late.
12 This ties in with summary disposition.
I do not 13 believe that it is possible to appropriately use summary O
14 disposition as it was meant to be used if we don't have 15 specific contentions first.
16 CHAIRMAN BLOCHs Mr. Churchill, wha t about this 17 possible procedure, that we set a deadline for a motion 18 concerning litigable issues sometime af ter the discovery is 19 com pleted, that we then require a response concerning the 20 motion about litigable issues, that we shortly thereafter 21 have a preliminary hearing on the telephone or, if required 22 by the parties, in Wisconsin, to discuss what litigable 23 issues are available for the hearing.
That is assuming that
()
24we rule against you on the motion for dismissal because, 25 obviously, we would not get that far if we rule for you.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
879
()
1 MR. CHURCHILL I think probably that is a 2 reasonable way to go, provided, however, that I will have to 3 argue that if Decade was raising new issues that there has
(}
4 got to be a showing of good cause as to why new issues 5 should come up.
~
6 I am concerned a little bit that Decade should 7 have the opportunity for broad discovery right now for 8 locating new issues.
That is not the way the Commission's 9 rules are supposed to go.
We realize that when the 10 contentions were first framed, all information was not in 11 the possession of Decade.
12 However, the inf ormation has been in their 13 possession for a long time now, and I would say that if they O
14 try to raise new issues along the lines, for example, of the 15 issues that they mentioned in the response to our i
i 16 interrogatories, I would have some f airly strong statements 17 to make as to whether or not they were, in fact, showing 18 good cause.
19 I do believe that we do have to have some kind of 20 a hearing or some kind of procedure to actually define the 21 issues.
Following that definition of issues, there should 22 be opportunity to file motions for summary disposition.
23 I might add that there is no time limit specified 24 in the rules for filing motions for summary disposition, and 25 depending on how schedules come out for discovery, and so
(
i l
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE, S.W., WASHINGTON D.C. 20024 (202) 554 2345 1
880 Q
1 forth, we might find it reasonable and appropriate to file 2 some form of summary disposition on what we at least know 3 the issues to be now.
Or, if it should come later, then we 4 would have to do it later.
I don't know whether we would 5 divide it up like tnai cr not.
6 CHAIRMAN BLOCHa Mr. Churchill, what I am 7 suggesting would short-circuit one round of filino on 8 summary disposition.
I migh t be requiring tha t there be a 9 filing of the genuine issues, and then you just have to to respond rather than making a motion for summary 11 disposition.
12 MB. CHURCHILLs I certainly believe, Your Honor, 13 t ha t you have the authority to, essentia11y on your own O
d 14 motion, set up a summary disposition process.
I think it 15 sounds like what you are doing, and I would have no 16 objection to that, provided that we did not forfeit any 17 rights granted us under the Commission's rules f or summary l
18 disposition.
19 In a motion for summary disposition, we would set 20 forth a statement of f acts, and we would support it by 21 affidavits.
In response any facts that were not 22 controverted would be deemed to be admitted, and those that 23 were controverted, there would have to be something more O
24 then denie1 or orotestations of counee1.
l 25 If we could stick to those basic ground rules in ALDERSoN REPoRTINC COMPANY,INC, 400 VIRGINIA t.VE S.W., WASHINGTCN, D.C. 20024 (202) 554 2345
881
()
1 your procedure, that might be an efficient way to proceed.
2 CHAIRMAN BLOCH:
Mr. Churchill, I would point out 3 that on the state of the record, there would be great
)
4 difficulty dismissing Contention Number Seven, in my 5 opinion, because many of the reasons that we had for finding 6 tha t there was no genuine issue, if you look back to our 7 decision on that point, were related to the fact it was a 8 sleeving program involving only six tubes, all of which 9 would be inspected.
10 I don't think we have at the present time a 11 representation f rom Wisconsin Electric Power Ccmpany about 12 w ha t the procedures would be on the full scale sleeving; am 13 I correct about that?
O 14 ER. CHURCHILLs 1 quess I would hesitate to say 15 yes or no until I review the record, Your Honor.
But one cf 16 the arguments tha t I would make is, there has to be at least l
17 some threshold showing.
1 18 CHAIRMAN BLOCH:
I understand.
You argued that 19 earlier in this call also.
20 MR. CHURCHILL:
Yes.
21 I am sure that would be part of it, because we 22 don ' t, just out of a general accusation with no basis, have l
23 to all of a sudden be in a position where we have to put
()
24 affirma tive proof on that.
There has to be some threshold 25 showing that it is an issue that should be litigated.
l l
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, 0.0. 20024 (202) 5'4-1345
882
(])
1 CHAIRMAN BLOCHs When you review whether or not 2 you think you have a burden at this time, you might also 3 vant to look back to what we said our conclusions were about
{
4 the report of Inspection and Enforcement in the San Onofre 5 situation.
I think we found it less conclusive than you 6 do.
7 You may want to look at that, and we may have been 8 vrono.
If you show us why we were wrong, of course, we 9 would have to reconcider that.
10 MR. CHURCHILL:
Sure.
11 The main thrust of my argument, of course, is that 12 this bears no relationship to Point Beach.
13 CHAIRMAN BLOCH:
I understand.
O 14 Mr. Anderson, have you any comments on the general 15 thrust of the procedural outlines that I have been 16 discussing with Mr. Churchill?
17 MR. ANDERSON:
As to the motion f or litigable 18 issues proposal, that sounds like a possible way to proceed 19 t h a t sounds reasonable.
20 If I may, I would like to respond to some of the 21 n ew points that Mr. Churchill raised, if that is 22 a ppropriate.
23 CHAIRMAN BLOCH:
I am not sure what you are
(
24 ref erring to.
So let's see, and if some of it seems 25 irrelevant, I hope you won 't mind if I just interrupt at O
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE, S.W WASHINGTON. D.C. 20024 (202) 554 2345
883 O
i ta t rotat-2 MR. ANDERSON:
It sounds reasonable.
3 Mr. Churchill first argued his motion for
{)
4 dismissal by bringing up again the question of whether our 5 contentions were sufficiently supported.
I think, again, it 6 is a situation where it appears Mr. Churchill is confusing 7 the appropriate pleading.
The way to raise that issue is a 8 action for summary disposition, which he has not filed, and 9 not a motion for dismissal.
10 As to the second point I wanted to raise in 11 response, he has misstated our position.
He has misstated a 12 second time our position that we are arguing that we have to 13 have the demonstration report prior to do doing any O
14 discovery.
We never have stated tha t, we clearly stated to l
15 the contrary.
l l
16 Mr. Churchill's discussion illustrates one very 17 good reason why we did want to wait, and tha t is, if we'had l
18 filed discovery earlier on and if we wanted to file more 19 discovery on the demonstration report, he would see the need l
20 to have to show good cause for us to do another round of it, 1
l 21 and we would have to go through a whole additional layer of 22 proof and altercation.
I 23 That is exactly one of the reasons why we are 24 thinking it more appropriate to wait until the bulk of the i
25 relevant is in to avoid having to then defend ourselves i
l l
l ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
864
(])
1 against a claim that we have already had seventeen rounds of 2 discovery and no more is needed.
3 A third point is Mr. Churchill's objection to the
)
4 broad contention the Boa d has downgraded.
Discovery rules 5 are very broad about anything relevant or that may lead to 6 admissible evidence.
I think when you apply the broad rules 7 of discovery, which are far broader and more general than 8 the rules of admissibility at a hearing, you don't have 9 anything substantially different f rom the Board's broad 10 statement of the contention.
11 The fourth point, Mr. Churchill has misstated this 12 record.
He has stated that the new contentions were not 13 supported with any basis.
We have, in fact, stated in our O
14 response to his interrogatory, if he would review it, the 15 Applicant LER, and the date of the LER is subsequent to the 16 last time we filed contentions.
So if you were looking for 17 a reason why it was being raised later, I think you could 18 look to the date of that LER.
19 These would be the additional points we would want 20 to raise, sir.
21 CHAIRMAN BLOCH:
On the new contentions, Mr.
22 Anderson, it would be helpful to the Board, since we may 23 have to rule sooner er later on whether these issues are
()
24 litigable, if you explained the reasons you thought that LER 25 supported the admissibility of those contentions.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
885
()
1 We just want to have your position as clearly as 2 possible on your reasons or authority f or believing that 3 those new contentions or those issues under the admitted
{)
4 contentions, rather, shocid be considered at a hearing.
5 MR. ANDERSON:
We can do that, if it is all right 6 with you, as a response to the staff's interrogatories.
7 CHAIRMAN BLOCH:
Sure.
8 That response may have to be a little broader than 9 just the staff's interrogatories, you understand, if there to is something in Applicant's interrogatory, which is 11 broader.
12 MR. ANDERSONs All right.
13 CHAIRMAN BLOCH4 Mr. Bachmann, have you any O
14 comment on the general outlines of what we have been 15 proposing?
l l
16 MR. BACHMANN No, sir.
I think that pretty much 17 covers everything that the staff wishes to bring up at this 18 pcint.
19 CHAIRMAN BLOCH:
I request the parties to remain 20 on the line for two to three minutes.
21 MR. ANDERSON:
Before you do that, I have 22 additional agenda items I wanted to bring up, if it is 23 a ppropriate.
()
CHAIRMAN BLOCHs All right, what would that be?
24 25 MR. ANDERSON:
Let me first pref ace it by O
ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
086
- O
' taaic tiaa to the 9 rtte-ta t "a a ro=-
"r-e1oca, c 11 4 2 se on Friday, indicating that the order had come out on 3 Thursday about the confidentiality iss:ues, I had inquired 4 whether it would be appropriate to add as an agenda item 5 today the question of whether a hearing would be necessary 6 on the confidentiality issue as scheduled for the month of 7 February, or whether in fact all the facts are agrcad to 8 sufficiently to adjudicate that insue.
9 I just want to add to that that you suggested that 10 Westinghouse was not, in your understanding, going to be a 11 party to today's conference call, and apparently that is the 12 case.
13 I just wanted to update you and the parties on O
14 that act, and to indicate that I had called M r. Barton on 15 Friday and lef t a message, but I have not yet heard from 16 him.
It is my intention to pursue or to ascertain whether 17 in f act we have any actual facts to adjudicate on the 18 confidentiality issue.
19 CHAIRMAN BLOCH.
We, of course, welcome any 20 progress you can make in reducing our procedural burden on 21 t ha t issue.
I appreciate the notice you have just given 22 u s.
23 There is no further agenda item on that, is O
u therer 25 MR. ANDERSONa Since Mr. Barton is not on the O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554 2345
887
()
1 line, it would be inappropriate, I would assume.
2 CHAIRMAN BLOCH All right, let us stay on the
{])
3 telephone f or the next two or three minutes, after which the 4 Board may be able to rule on the motions now pending.
5 MB. CHURCHILLs Your Honor.
6 CHAIRMAN BLOCH:
Yes.
7 HR. CHURCHILLs One other thing.
I don't think it 8 is quite clear in my mind the procedure that you may have in 9 mind.
You said that maybe we could short-cut or skip a 10 procedure related to motions for summary dispositions.
I 11 vant to make it clear that I don't want to waive any rights 12 tha t I have to file a motion for summary disposition under 13 2.749 or the equivalent.
O 14 CHAIRMAN BLOCH You said, or the equivalent.
Can 15 you suggest now, before we rule on the procedure that I have 16 just outlined, in which we would intend to apply the summary 17 disposition standard, could somehow be prejudicial to your 18 rights?
l 19 (Pause.)
l 20 CHAIRMAN BLOCHs Mr. Churchill, I assume that you 21 are thinking, and have not left the line.
22 HR. CHURCHILLs I have not left the line.
23 I think the reason I have paused here is because I
()
24 am not sure I have a ready answer for that.
I believe that 25 normally under a motion f or summary disposition, the movant O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINtA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
888 O
o=1a e== ati 111 =t t tw * *a t-i= ao a aata i===
or 2 f act to be tried.
The other parties, then, would have a 3 chance to controvert that, if he could, and state the facts 4 which were in issue and support it any way he can.
5 I guess my comment was made out of caution because 6 I am not quite sure how your procedure is going to work, and 7 I think it would be a good idea to have the summary 8 disposition type procedure in order to resolve, maybe narrow 9 or eliminate some issues.
10 All I wanted to do was make sure that it was not a 11 general blanket approval, without my being sure of whether I 12 still had the same rights, or whether Decade, in fact, or 13 the staff had the same rights as they would have under the O
14 rules.
15 CHAIRMAN BLOCH:
Of course, if we were to issue an 16 order which prejudiced the parties, particularly since it 17 would be an oral order on the record, certainly a motion for 18 reconsideration would be in order by any of the parties if 19 they felt prejudiced.
20 We will now recess on the telephone line for the 21 next two to three minutes.
The recess shall commence.
22 (A short recess was taken.)
23 CHAIRMAN BLOCH:
We will reconvene.
O 24 1 am prepared to ru1e.
25 First, I would like to say that we have considered O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
889
()
I the motion to dismiss seriously.
The Board does have the 2 aut horit y to dismiss, and if the violations of procedural 3 strictures were sufficiently severe, then that sanction
(}
4 ought to be applied or could be applied even if it were the 5 first round of failure to respond properly to 6 interrogatories.
7 However, in this case, we feel that summary 8 disposition is not appropriate.
We see signs in the 9 discussion between staff and Decade that there is a serious 10 willingness to comply with the legitimate needs of the 11 parties.
Therefore, dismissal of some or all of the issues 12 would not be an appropriate sanction for what does appear to 13 be incomplete answers to the interrogatories which were O
14 served on Decade.
15 Having decided not to grant the motion to dismiss, 16 I do plan to promulgate a procedural order binding the 17 remainder of the procedure.
18 First, we will require that Decade answer the 19 outstanding interrogatories in good faith pursuant to the 20 standards which have been discussed in some detail in the 21 course of this telephone conversation.
The purpose will be 22 to inform the propounders of the interrogatories f ully of 23 v1.atever bases Decade now has that it considers important
()
24 and tha t it plans to rely on at a hearing that might be held 25 in this case.
O ALDERSoN REPORTING COMPANY,INC, j
400 VIRGINIA AVE., S.W WASHINGTON D.C. 20024 (202) 554-2345
~
890
()
1 The answers shall be flied by Decade no later than 2 January 18, 1982.
Decade is advised, as Applicant has 3 srgued, that the parties to this proceeding have a
{)
4 continuing obligation to update answers to interrogatories 5 on a resasonable basis when new responsive information 6 becomes available to thea.
7 We f urther order that all initial requests for 8 discovery shall be filed by the parties no later than 10 9 days from the filing of the Demonstration Sleeving Report, 10 with the exception of interrogatories arising from new 11 inf ormation contained in the Safety Evaluation Repcrt or 12 Environmental Assessments, which the staff may issue, and 13 interrogatories relating to that new information should be O
14 filed within 10 days after the filing of those documents.
15 There is a possibility that follow-up 16 interrogatories might be required by the nature of the 17 answers to the initial interrogatories.
Such follow-up 18 interrogatories, if required by information contained in 19 initial answers, will be filed no 1r ter tha n 10 days after 20 receipt of the answers.
21
'ie also intend to require in this case the filing 22 of a motion concerning litigable issues.
The motion 23 concerning litigable issues is necessary in this case
()
24 because the Board admitted a single broad contention in 25 response to what it perceived to be the procedural needs of O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
891
(])
1 this case in light of the urgency of decision making caused 2 by the schedule for sleeving repair and demonstration 3 programs.
4 Because we have tried to address that urgency by 5 admitting a broad issue, there is a need for the Intervenor 6 to spell out in greater detail than ordinarily might be 7 required wha t the litigable issues are from its viewpoint.
8 Consequently, we will require that it file a 9 motion concerning litigable issues in which it will document 10 the genuine issues of fact which it believes exist with 11 respect to any litigable issue which it plans to try at an 12 evidentiary hearing.
13 Decade should understand that the standard that O
14 vill De applied to its motion concerning litigable issues 15 will be the same standard as would be applied to a motion 16 for summary disposition.
17 Therefore, it will have to show that there are 18 gancine issues of material f act, and for that purpose it 19 should document where those material issues may be found, 20 either in sources accompanaying the motion or which may 21 already be found in our record.
22 It should also make whatever legal arguments it 23 feels are necessary in order to persuade the Board that the
()
24 f actual issues are material to legitimate legal issues that 25 may be raised by it.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 m
892
()
1 This motion concerning litigable issues should be 2 filed within 14 days from the receipt of answers to the 3 follow-up discovery requests, if any.
If there are no
[}
4 follow-up discovery requests, that is no legitimate, 5 honestly raised follow-up discovery requests, then this 6 motion should be filed 14 days from receipt of the answers 7 to the last initial round of interrogatories, that is the 8 interrogatories which might be filed after the SER.
9 Within 14 days of filing of the motion concerning 10 litigable issues, Applicant should file its response 11 concerning liticable issues.
We will permit staff seven 12 sdditional days for its response.
13 This response is in the nature of a motion for O
14 summary disposition and should attempt to show why any 15 genuine issues of fact propounded by Decade are not really 16 genuine issues of f act and that, therefore, the issues that 17 Decade wishes to have admitted to hearing are not proper 18 subjects for hearing.
I 19 We vill schedule a preliminary hearing by l
20 telephone five days af ter the responses are in.
During that l
21 preliminary hearing by telephone, we will hear oral argument 22 concerning the appropriateness of gran ting the motion 23 concerning litigable issues.
()
I wish to have any brief comments which the 24 25 parties might now make on the order which we have just I
i ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE S.W WASHINGTON, D.C. 20024 (202) 554 2345
093 O
' i==uea-2 MR. ANDERSON:
This is Peter Anderson.
3 CHAIRMAN BLOCH Yes.
{)
4 MR. ANDERSON:
On that requirement for us to 5 respond to the staff's January 7 letter relating to the 6 interrogatory requests, you said to file it by January 18.
7 Are we correct to interpret that to be, mailed cut by 8 Jan uary 18?
9 CHAIRMAN BLOCH:
The filing can be accomplished by 10 mailing.
Mr. Anderson, you are not just responding to the 11 letter, of course.
You are responding to the initial 12 interrogatories pursuant to that agreement and our 13 discussion today, you understand that.
()
14 MR. ANDERSON:
Let me make sure.
What I 15 understand I am going to be doing -- Do you have the January 16 7 letter there?
17 CHAIRMAN BLOCH I do.
18 MR. ANDERSON:
He has asked us to re-reiterate the 19 issues and specifically list the bases for the issues, and 20 of course by saying that it keys back to his original 21 interrogatory.
It is that which we will do.
We will 22 provide a piece of paper which will have th e 10 or so issues 23 specifically stated with the specific case law that exists
()
24 in terms of what has been indexed so far at this point in 25 time.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
r s.
894 O
i Caxtana'a n'oca-
"et conviete11, decau e
- 1 2 stated, each of'the ba'ses you now have should be 3 elucidated.
You ave aultiple bases.
4 C'
MR. ANDERSONa That isl correct.
5 CHAIRMAN BLOCH,t Also you should review 6 Applicant's.intercogatories to make sure that your good fait s
7 effort to provide baser.also responds to the specific 8 questions. thr.t Applica nt filed. a
~
3 9
M3. ANDERSOMs I understand, r.nd it is our opinion 10 tha t the previous' answer dois ~do that.
I guess what we
_s s ~.
11 should do is vait until the'(Applicant reviews our response s.
12 to the staff and-see-if thgy hay 4 an( problem.
I will 3
13 review :it again one vore time'. '
O 14
' CHAIRMAN BLOCH:
All right.c In the course of s
15 responding this time, we do expect tha t you will review it
\\
16 Again.
"N
,?
R.
AND RSONs The second ' point is, since wha t is 17 N
~~
18 basically happening, vi.th the' mot'ing of litigable issues is a 19 summary disposition, thpe procedute, we would like to seek, N
N.
s 20 if it is~ amenable.31th the Board,\\a response time, if
, g -N 21 necessary, to the's.osition.Jf'what should be thrown out as
'N -
s.
22 's ta te d b y the Li~ce'risee. '
Voul'.that be possible?
d 23 CH AIR M nN BLOCH s' '.I wo'21d like to hear comments 24 f rom Applicant and sta ff on tha t' suggestion.
25 MR. CHURCHILLs> This is Mr. Churchill.
Two a
I ALCERSON REPORTING COMPANY,1NC, s
400 MRGIN A AVE., S W., WASHINGTON, D.C. 20024 (202) 554-2345 s
l rs 895 7
l
()
1 comments on his two points.
2 One, I do not want to review the answer to the 3 staff to find out if it is sufficient for ours.
I have
}
4 propounded specific interrocatories, and my understanding of 5 the ruling of the Board was that Decade was to answer the t
6 interrogatories that the Licensee has propounded.
7 They were specifically propounded tha t way so that 8 we could parse out each and every allegation we think he has 9 made so far, and have him response to it.
The staff's was 10 not, it was just general.
If I ask for basis for a specific 11 cne or two word allegation that he made as part of one of 12 his contentions, I want him to say that either he has a i
13 basis for it or he doesn't.
If he does, I want to know the
()
14 basis.
If he just says generally what his issues are in 15 response to the staff, then I don 't know where I am lef t, l
16 and I need that for the summary disposition proceeding.
17-I would seek clarification, Your Honor, that you 18 did, in fact, order Decade to answer the interrogatories 19 tha t the licensee has filed.
It is my thought that if he l
20 d id answer those, because of the nature of th e m, he would 21 have automatically answered the staff's because the staff's 22 were more general, but I don't see it the other way around.
l 23 CHAIRMAN BLOCH:
Mr. Churchill, I think it might O
a) 24 he to Mr. Anderson 's advantage to follow your suggestion.
m 25 It really was not what the order was.
The order was that he O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON D.C. 20024 (m2) 554-2345 S
896
()
1 respond f ully to staff's interrogatories, and that he review 2 your interrogatories to make sure he has answered them.
3 I don't envision such a complex document that it
(}
i 4 would be difficult for you to find out whether he has, in 5 f act, answered each of your interrogatories.
I don't see 6 the complexity arising in this case that would make that i
7 dif ficult, you might want to advise me otherwise.
8 If he, by not responding specifically to your 9 interrogatories, should happen not to answer one of your 10 questions, then we would take that to be an admission that It there is no basis for that particular interrogatory of the 12 kind that was asked for.
13 HR. CHURCHILL 4 Your Honor, I think we could avoid O
14 a lot of confusion.
In spite of the fact that we filed a 15 lot of interrogatories, it is my personal belief that many 16 of those interrogatories will be very easy to answer because 17 I d on ' t believe there is a basis.
18 But I would just like him to say for each specific 19 allegation that he has made, when I say, have you got a 20 basis, he will say, either there is or there isn't, rather 21 than just answer it generally.
22 I appreciate your being willing to assume that if 23 he somehow misses something tiat I asked, that in his answer
()
24 to the staf f, he is somehow silent on one of the licensee's 25 interrogatories, you wo 21d be willing to take-that as an O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
897
()
1 admission that the answer is, no, that he has no basis.
2 I think it would solve an awful lot of trouble 3 later on the record, and for whatever review of the record
)
4 would be necessary, if he were required to answer 5 specifically the Licensee's interrogatories.
6 CHAIRMAN BLOCH:
Mr. Anderson, I think possibly 7 this could be handled, if you would, in the course of 8 reviewing Applicant's interrogatories, indicate in the 9 answer, just by parentheses, which bases you think are 10 responsive to Applicant's interrogatories.
Then you might 11 also indicate, if there were certain interrogatories you 12 were not answering, that such and such interrogatories were 13 not being answered.
O 14 Would that be burdensome on Decade?
15 MR. ANDERSON:
Let me understand.
In the response 16 to the staf f, we will put in parentheses the question 17 numbers of the Licensee's interrogatories to which we 18 believe they are responsive to.
Is that correct?
19 CHAIRMAN BLOCH.
That is right.
20 You would also, because you are reviewing their 21 interrogatories carefully, if there were any that you were 22 not responding to, that is that you had no basis for of the 23 kind they were asking, tha t you would just indicate that 24 als o.
25 MR. ANDERSON 4 If I could, I am just concerned AV ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
898
()
1 about the accretion of misstatements, I would just want to 2 restate, to avoid that, that we have provided the basis, in 3 our view, for our contentions in our original filing of the
{)
4 petition and in our response to the motion for summary 5 disposition.
8 We don't want, by the simple repetition of Mr.
7 Churchill's position, the implication lef t that we view as a 8 f air statement that the bases have not been provided.
9 CHAIRMAN BLOCH:
I think we are really asking at to this stage for the extent to which we have litigable 11 issues.
Maybe we can gradually slide into that language, 12 and away from the language that seems to be upsetting the 13 parties.
O 14 I understand that Mr. Churchill may raise this on 15 a ppeal, but I think that we can, for amicable purposes, use 16 the phase " litigable issues" f rom this poir.t on.
17 M r. Churchill, if M r.
Anderson follows the 18 procedure I have just suggested, to indicate by parentheses 19 each portion of his response to staff that is responsive to 20 your specific interrogatories, to show which interrogatories 21 he has really no answer to clearly in his cnswer to staff, 22 will that not serve your purposes?
23 MR. CHURCHIlls I am just not sure, because I am
()
24 af raid of vague ref erences.
25 Wouldn't it be, in addition to that, very easy for O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
899
(])
1 him simply to put a key or crocs-reference to my 2 interrogatories, to the extent that he is saying they are 3 answered in a staff interrogatories, after my numbered
)
4 interrogatories, to say, "This is answer to staff 5 interrogatories such and such."
6 The parties are entitled to have their 7 interrogatories answered by number, so that there is no 8 confusion.
Frankly, Your Honor, I am very much afraid that 9 I am going to get some kind of a generalized that I won't be 10 able to really square precisely wi th the precise question.
11 We have draf ted them very carefully and very precisely, I am 12 af raid that more confusion than not is going to come from 13 this, if somehow I am compelled to accept his answers to a O
14 much more general set of interrogatories.
15 CHAIRMAN BLOCH:
Mr. Anderson, I have listened to 16 the arguments that you have made and Mr. Churchill has 17 m a d e.
I am prepared to accept the indication which I stated 18 you could make on the answers to staff.
But you, of course, 19 must be careful because if your answers to staff do not 20 fully answer in good faith the interrogatories that were 21 submitted by the Applicant, then there could be negative 22 inf erences drawn and you might thereby lose the right to 23 litigate certain issues at a hearing.
()
24 I am not going to require tha t you respond to the 25 two sets of ir.terrogatories separately because I think this ALDERSON REPORTING COMPANY,INC, 400 VIRGWlA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
900 1
i vould, if done fully and thoroughly, fulfill the legitimate
(])
2 needs of the Applicant.
3 M r. Bachmann, have you any comment?
4 MR. BACHEANNa I have one general comment, Your 5 Honor, and tha t is, I am a little concerned as to the filing 6 dates.
Each of these days are from the_ time of receipt by 7 the parties, or do we consider these filing date to filing 8 da te with the normal five days for mailing.
I would like to 9 clarify that point.
10 CHAIRMAN BLOCH:
I had better clarify that, and I 11 think we should consider it from receipt and not from 12 filing, as I initially stated on the record.
13 Do any parties object to that change?
O 14 HR. ANDERSON:
I think it would be essential 15 because there have been some very substantial lags in recent 16 times.
17 CHAIRMAN BLOCH:
Mr. Bachmann, could you please 18 also comment on Decade's need to respond or reply to the 19 responses to its motion?
20 MR. BACHMANNs I am not quite sure I understand 21 t h a t question, si r.
Could you resta te it?
22 CHAIRMAN BLOCH:
We required a motion concerning 23 litigable issues, and we provided for a response to tha t
()
24 motion.
Decade has asked to be able to reply to the 25 responses.
O ALDERSON REPORTING COMPANY. INC.
400 VI.% INIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
901 1
MR. BACHMANN:
Generally, in a normal motion for 2 summary disposition, I don 't believe there is a provision 3 for replies, merely the motion and then the responses.
4 However, in this case, since Decade is filing a motion 5 against summary disposition first, with the actual motion 6 for summary disposition following it, the staff has no 7 objection to allowing them an opportunity to reply.
8 CHAIRMAN BLOCH:
Mr. Churchill, does that seem 9 appropriate to you as well?
10 MR. CHURCHILL:
Yes, it does, but I would like to 11 seek a little clarification and maybe make a suggestion.
12 I can sort of analogize this to a situation where 13 somewhere along the line Decade is going to be filing a O
14 motion to litigate certain contentions.
I know, for 15 example, in Pet ti, every once in a while, if an intervenor 16 gets a new idea, he will file a motion to add a new 17 con tention --
18 CHAIRMAN BLOCH4 Please don't argue Perry now.
We 19 appear in that one separately.
20 MR. CHURCHILLs We will forget about Perry, but in 21 any case, sometimes if some new information comes to the 22 a tten tion of an intervenor, they may try to add that 23 con tention, and as part of their motion, th ey would have to 24 have some kind of a showing of good cause as to why they 25 s hould r.ot have raised it earlier, and why it should not O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
902
()
1 have been timely raised.
2 I see this as similar to that kind of situation.
3 So that in my response to the motion per se, the Licensee's
{}
4 response I see almost as a two-part paper, one responding to 5 the motion and the arguments about good cause, but secondly 6 being kind of a counter-motion f or summary disposition.
7 To the extent that our response would be a 8 counter-motion for summary disposition, I think the Decade 9 should have the opportunity to respond, and I think they to should respond just as if we were filing a motion for 11 summary disposition in the first instance pursuant to the 12 rules, which is probably what we would be doing.
I am not 13 sure that it is appropriate that they should have the chance O
14 to respond on the other arguments, such as their showing of l
15 good cause and so forth.
16 CHAIRMAN BLOCH We will clarify the order, and 17 provide that Decade may have 14 days to reply concerning the 18 merits of its motion concerning litigable issues af ter it l
19 receives the response from staf f or Applica nt, whichever 20 comes last.
21 We will not require that the motion concerning 22 liticable issues have any showing of cause, since we 23 admitted a single broad contention, and providing the issues
()
24 raised by Decade are within that contention, we have ruled 25 tha t they are admissible in this proceedino.
- However, O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
903
()
1 Decade should be on notice that Applicant plans to raise the 2 consideration of late issues as a possible ground for 3 appeal.
}
4 Therefore, if Decade would like to show good cause 5 for so-called late filed contentions, and ask for the Board 6' to rule on good cause, we would do so.
They are not in any 7 way required to make such a request.
8 One more round of comments, if we may.
9 Mr. Anderson.
10 MR. ANDERSON:
That is it.
11 CHAIRMAN BLOCH:
Mr. Churchill?
12 MR. CHURCHILLs Yes, there is one other thing, and i
l 13 that is about the timing.
Again, I point up to the fact GV 14 that the basic these in the regulations is that contentions 15 are supposed to come before discovery and not after.
l l
16 I am not arguing about the fact that we are now in 17 a process where discovery is going to be allowed to be i
18 utilized by the Intervenor in framing its contentions.
I l
19 would suggest that it is a little bit extreme in this case l
20 to wait until receipt of answers to follow-up 21 interrogatories, which is really going to get us farther and 22 f arther along in the year.
23 Since I don't feel that this should be done after
()
24 discovery anyway, I wonder if it would be reasonable to have 25 the motion due 14 days after receipt of the initial O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
904 O
1 interrogatories.
Then, if somehow receipt of the answers to 2 the initial interrogatories, and if there is some particular 3 reason why they think they are going to need further 4 interrogatories, take it up with the Board at that time.
5 But I do think that it is somewhat excessive in 6 giving the Intervenors that much opportunity, particularly 7 since they have a lot of opportunities for discovery so far, 8 a lot of urging f rom this Board to commence discovery, and 9 have not yet done so.
10 HR. CHURCHILLs Mr. Anderson.
11 MR. ANDERSON:
I am not sure that it is a big 12 ticket issue, but the result of that would leave us at the 13 mercy of the Licensee in terms of first round discovery O
14 responses which are not entirely complete.
If it something 15 in terms of scheduling to the advantage of the Licensee, we 16 should not be left at the mercy of their strategy as to the 17 responsiveness.
18 CHAIRMAN BLOCH:
I don 't think that is really 19 acc urate, M r.
Anderson, because you move to compel, and if 20 t h at were granted that would obviously defer the schedule 21 automatically because we would not know whether ycu had a 22 final answer yet.
23 MR. ANDERSON:
That is correct, and that is why I O
24 seid it wes not e big ticket.
I am ouet seying thet 1 em 25 not overjoyed by the proposal.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE.,3.W., WASHINGTON. D.C. 20024 (202) 554-2345
..___.2
905 1
CHAIRHAN BLOCH4 Mr. Bachmann.
{}
2 MR. BACHMANNs The staff has no comments on this.
3 It seems acceptable to the staff at this poin t.
4 CHAIRMAN BLOCH:
You think it might be appropriate 5 to provide in the schedule for the possibility of follow-up 6 interrogstories?
7 NR. BACHMANNs I would say, representing the 8 staff, that the original time schedule that was proposed by j
9 the Board is acceptable to us.
10 CHAIRMAN BLOCHs In that case, we will not modify
- 1 tha t.
We would repeat that in the course of providing for 12 follow-up interrogatories, we did state that they should be 13 propounded only if required.
This will give some incentive 14 to give full answers to the initial round of 15 interrogatories.
I think that we vill stick by the initial 16 schedule.
17 Are there any further agenda items that we must 18 consider today?
19 MR. CHURCHIlla Your Honor, just one more point of I
20 cla rification.
I 21 It is my understanding that our response to 22 contention motion will include and be in the nature of a 23 summary disposition motion, if we wish, and that the
()
24 Intervenors will have an opportunity to respond to that.
I 25 am assuming that should we respond that way, in the form of O
ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
906
()
1 a mction for summary disposition, that the procedures under 2 2.749 should be used, that is, 2.749 specifies what the 3 novant, which would be the Licensee, is supposed to say, and
{)
4 it also specifies what the respondent, which would be the 5 intervenor, can or cannot say or must or must not do in 6 order to satisfactorily defeat the motion for summary 7 disposition.
8 It is my assumption that we would go by the 9 standards and the procedures in that rule to that extent.
10 CHAIRMAN BLOCHs That includes the formal 11 specification of issues as to which there is no genuine 12 dispute, is that correct?
13 MR. CHURCHILLs Yes.
We would in tend to do that, O
14 although it is conceivable, Your Honor, that we might not do 15 tha t.
It is conceivable that we could stand by their filing 16 a motion for those contentions, we might simply say, " A ll 17 right, we agree to litigate those contentions."
That is not 18 lik ely, but that is a conceivable response.
19 CHAIRMAN BLOCH:
We intend to effectuate the 1
20 purposes of that section, whether portions of the document 21 tha t is filed by Decade needs to meet the f ull f ormality 22 that you are suggesting is required by the summary 23 disposition rule will depend on whether they can convince us
()
24 tha t the standards have been met.
25 We will not waive any important requirements O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 s..
907
(])
1 relating to summary disposition, but the important job 2 before us will be to decide whether there are genuine issues 3 of material fact, and Decade must respond specifically 4 encuch to persuade us that issues you have identified as not 5 subject to dispute, are subject to dispute.
6 ER. CHURCHILla There is one other question that 7 has just occurred to me.
Ordinarily, one party would file a 8 motion for summary disposition, and the other two would 9 respond.
If it was the Licensee that filed the motion, it 10 would directed against the Intervenors, and the staff would 11 file a response if it chose and would either support or not, 12 or maybe support in part and oppose in part.
13 It is conceivable that under your procedure, the O
14 staff and the Applicant on the same day could each come 15 f orward with a motion.
16 CHAIRMAN BLOCHa But you also could generally 17 respond to each other's motions.
I don't see any serious 18 problem.
19 MR. CHURCHILLs Do the staff and the Licensee 20 respond to the motion on the same day?
21 CHAIRMAN BLOCH:
On the response, I have provided 22 that the staff would have an additional period of time, 23 which now escapes me.
()
24 MR. ANDERSONa It is seven days.
25 CHAIRMAN BLOCHs Seven dayr, is that correct, Mr.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., V MHINGTON, D.C. 20024 (202) 554-2345
908 O
i sech ea 2 2
MR. BACHMANN:
Yes, sir, seven days.
/
3 MR. CHURCHILLs I am sorry.
In o ther words, when 4 he files the initial motion --
5 CHAIRMAN BLOCH:
He will have seen your motion 6 first.
7 MR. CHURCHILLs We, then, respond in the normal s
8 time given in the rules to respond to the motion.
9 CHAIRMAN BLOCHs No, we just provided for 14 days 10 f or reply, and it would seem to me it would be more 11 appropriate to allow you the same time that we are civing 12 Decade.
13 MR. ANDERSON:
Perhaps the staff can take care of O
14 its own interests.
15 MR. CHURCHILLs It is not that.
I am not worried 16 about the staff's interest or anything else, Mr. Anderson.
17 I am trying to make sure I understand this.
Maybe I could 18 repeat my understanding of it just to make sure.
19 When Mr. Anderson files his motion -- I guess I 20 f ailed to jot down in my notes when the licensee was 21 supposed to respond to Mr. Anderson's motion, and when the 22 staff was supposed to respond.
Could I a sk that.
23 CHAIRMAN BLOCH:
The motion would be made, and we O
24 geve the ticensee,a deys, end the eteff seven eddition 1 25 days.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
909
()
1 MR. CHDRCHILLs That would take care of my 2 concern, thank you.
3 CHAIRMAN BLOCH You are veicome.
4 I believe that we have no further issues to 5 resolve today, am I correct in that?
6 MR. ANDERSONs That is correct, sir.
7 CHAIRMAN BLOCH:
There being no further --
8 MR. BACHMANN:
Judge Bloch, I have one minor 9 comment to be made on the Board 's January 7 th, 1982, Order 10 on the proprietary issue.
11 CHAIRMAN BLOCH I think you should make that with 12 f ull awareness that Westinghouse is a party to that 13 controversy, and they are not on the line now.
O 14 MR. BACHMANN:
Yes, I have.
Westinchouse has 15 indicaed to me, and I don 't know whether they have indicated 16 to Mr. Churchill, that the date for the hearing -- I might 17 a t this point out that staff has not yet received a copy of 18 that order -- the date for the hea ring set for Milwaukee for 19 February 16 is virtually impossible for Westinghouse, and it l
l 20 looks very bad for the staff.
l 21 As I have said, I have not seen the actual order, 22 so there might be some discussing as to the actual 23 scheduling date of tha t conference.
()
24 CHAIRMAN BLOCH:
I think that discussion should 25 occur between Decade, Westinghouse, and th e staf f, and you O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
910
()
1 should be aware of what Mr. Anderson told us today on this 2 conference call, and that is that he would rather not have 3 an evidentiary hearing.
I assume he may prefer a telephone 4 hea ring to an on-site hearing anyway.
5 So the Board will avait the pleasure of the 6 parties concerning the nature and timing of that hearing, 7 and will promptly issue an appropriate order when we have 8 heard from the parties.
9 MR. BACHMANN4 Should we contact you, sir, by 10 telephone once we have come to some sort of conclusion on 11 that respect.
12 CHAIRMAN BLOCHs If the parties agree that one of 13 you can contact us, that would be okay.
If it is strictly 14 procedural commun-ication, we will receive it.
i 15 MR. BACHEF5N:
Thank you.
16 MR. CHURCHILL:
Your Honor, I assume that you 17 omission of the Licensee from that list of parties was 18 unintentional.
i 19 CHAIRMAN BLOCH:
Yes, it was.
The Licensee is l
l 20 also interested in that topic and should be consulted on the 1
21 timing and nature of that hearing.
22 MR. CHURCHILL:
Thank you.
23 CHAIRMAN BLOCHs Mr. Churchill, we have not heard
()
24 f rom you on that issue in a while.
I am sorry that I forgot 25 tha t you might be filing on it, too.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
911 0
raere de1==== rurther >= 1ae s to con 1 der, 1 2 vish to express my a pp recia tion to the parties for their 3 cooperation, and to adjourn the hearing.
The hearing is 4 adjourned.
i 5
(Whereupon, at 1:20 p.m.,
the hea ring adjourned. )
j 6
4 7
8 9
10 11 i
12 13
- O 14 15 16 17 18 l
19 i
20 1
21 22 23 O
24 25 l O l
ALDERSON REPORT lNG COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
1 NUCLEAR REGULATORY COMMISSION This is to certify that the attached proceedings before the ATOMIC SAFETY AND LICENSING BOARD in the matter of:
Wisconsin Electric Power Company, Point Beach Nuclear Plant, Units 1 and 2 Date of Proceeding:
January 11, 1982 Decket llumber:
50-266-OLA & 50-301-OLA Place of Proceeding: Washington, D. C.
l were held as herein appears, and that this is the criginal transcript therecf for the file of the Commission.,
Patricia A. Minson Official Reporter (Typed) c~:O L_t:./_
- o. m,s _
l l
Official Reporter (Signature) l l
0 O
V,
.-