Text

Transcript of ASLB 930512 Meeting in Walnut Creek,Ca.Pp 482-568
	ML20044C955
Person / Time
Site:	Diablo Canyon
Issue date:	05/12/1993
From:	; Atomic Safety and Licensing Board Panel
To:	;
References
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Pacific cas and Electric Company (Diablo Canyon Nuclear Power Plant Units 1 and 2) Docket No. 50-275-OLA and 50-323-OLA i c LQCATION: Walnut Creek, California DATE: Wednesday, May 12, 1993 PAG 5: 482 - 568 140091 (' ANN RIEY& ASSOCIATES, LTD. 1612 K St. N.W. Suite 300 %gton, D.C 20006 (202) 293-3950 i

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h 482 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4 -X 5 In the Matter of: 6 PACIFIC GAS AND ELECTRIC COMPANY

Docket No. 50-275-OLA 7

(DIABLO CANYON NUCLEAR POWER PLANT : 50-323-OLA 8 UNITS 1 AND 2) (Construction Period 9 -X Recovery) 10 Conference Room, 11 Nuclear Regulatory Commission 12 Region V 13 1450 Maria Lane 14 Walnut Creek, California 15 Wednesday, May 12, 1993 16 17 The above-entitled matter came on for prehearing i i 18 conference, pursuant to adjournment, at_9:00 a.m. l l 19 20 BEFORE: 21 CHARLES BECHHOEFER, Administrative Judge .2 JERRY R. KLINE, Administrative Judge 2 23 FREDERICK J. SHON, Administrative Judge 24 25 ANN RILEY & ASSOCIATES, LTD. Court Reporters I612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950

483 l l 1 APPEARANCES: 'j h. 2 On behalf of the NRC Staff: I 3 ANN P. HODGDON, ESO. I 4 Office of General Counsel j i 5 Nuclear Regulatory Commission j P 6 Washington, D. C. 20555 i j a 7 GEORGE HUBBARD i 1 8 SHERI PETERSON 'j i 9 On behalf of the Applicant: 10' Pacific Gas and Electric Company _f 4 11 DAVID A. REPKA, ESQ. I 3 12 Winston & Strawn .I 13 1400 L Street, N. W. j 4 14 Washington, D. C. 20005 9 [ 15 and 16 CHRISTOPHER J. WARNER, ESQ. f 17 Law Department j l 18 Pacific Gas and Electric Company j 19 77 Beale Street, Room 3027' i 20 San Francisco, California ~ 94106 l 21 l 22 t'; 23 j '24 l 25 ll t ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 { (202) 293-3950 i '1 li

.. ~... _ _... -.. - - - - 484 1 APPEARANCES: [ continued] l 2 on behalf of the Intervenor: 3 San Luis Obispo Mothers For Peace 4 JILL ZAMEK and 5 ROCHELLE BECKER 6 P. O. Box 164 7 Pismo Beach, California 93448 i 8 9 l 10 l 11 12 l 13 14 i I i ~ 15 16 u i. 17 j l' 1 18 l l i' 19 i I I 20 21 i 22 i l: 23 1 24 l 25 i l 1 i ANN RILEY & ASSOCIATES, LTD. l Court Reporters l '1612 K Street, N.W., Suite 300 Washington,-D.C. 20006 l (202) 293-3950 i ?,. i I _,,.. -,_.-c.-- - ~.

485 1 PROCEEDINGS 2 9:15 a.m. 3 JUDGE BECHHOEFER: On the record. 4 Last night as we broke we promised you a 5 decision on the merits of the three proposed late-filed 6 contentions. Well, we have reached a decision. We have 1 7 reached this decision on the basis solely of the adequacy l 8 of the bases to support the claims made. We are not 9 dealing at this stage with timeliness at all. But we have 10 determined that the bases did not in any of the 11 contentions support the allegations but that aspects of at 12 least the first and third of the contentions are litigable 13 under the maintenance and inspections contention, 14 Contention I. 15 We looked over every basis that we recall 16 recited and various discussions which we had with the 17 parties and we have decided not to -- if there were valid 18 bases for the contentions then we will see whether the l 19 timeliness concerns would or should be overcome. But we 20 did not get there and that is what our ruling is.

Now, 1

21 when we consider various discovery matters, the scope of j 22 discovery, because of the matters we deemed to be 23 litigable under Contention I, the scope of the discovery 24 could possibly be broader than we had so determined, 25 particularly the cable matters and the aging. But what ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006-(202) 293-3950

l 486 .{ 1 the scope of that would be, we will wait and see what 2 disputes arise. We think certain, if not most, aspects of 3 the aging centention deal with whether premature aging can 4 be promptly detected and there was nothing in the 5 allegations that convinced us that matters of premature .i 6 aging could not be detected through the maintenance and i 7 surveillance programs. So there were just no allegations i of certain other types of things which you can't detect in 8 1 9 that way. 10 (The Judges conferred.) ) 11 JUDGE BECHHOEFER: What I was specifically 12 referring to under I is both the aging and claims and the 13 claim concerning the cabling, or possibly the 14 non-inclusion of certain cables in the maintenance 15 program. We are not sure exactly what the status of that n. 16 is, whether various cables are included or not-included, 17 but premature corrosion of cables would be a subject that-j i 18 we think could be litigated under Contention I. .i l { 19 MR. REPKA: Judge Bechhoefer, just for i 20 clarification, when you were referring to the cable 21 matters, you are referring to Diablo Canyon-specific cable .f 2 22 matters cited? j t 23 JUDGE BECHHOEFER: There were three cables i 24 particularly that I remember which prematurely corroded, l 25 as I recall. One of them was safety-related or important ANN RILEY & ASSOCIATES, LTD. ' Court Reporters 1612 K Street, N.W., Suite 300 j washington, D.C. 20006 l (202) 293-3950 l l ++ +. m m .m.y .~--m-y

~= a ) 487 1 to safety, I. don't remember, and the other perhaps wasn't. 2 But they were the same type. And those particularly we 3 think are covered by Contention I. The generic problem as 1 4 to which no samples were produced at Diablo, no, that is 5 not technically within the contention. 6 The generic thing is not the specific cables for j 'l 7 which there were some problems and whether they are all ] 8 safety-related or important to safety or not, we don't 9 know. But at least one of them, we are told, was. So j t i 10 that matter is covered and accordingly, when we-go over 4 11 discovery motions, we will approach them with that in 12 mind. 13 JUDGE KLINE: On our way over here this morning 14 we were just discovering tentatively whether the parties i 15 might continue -- with our ruling on the contention, would 16 the parties like to take a recess.and negotiate on what is 1 j 17 left on discovery rather than having us plow through 18 apparently seventeen or eighteen specific motions? Do you 19 think you can make some progress, say, in an hour or so? f 20 JUD'3E BECHHOEFER: If not, we will plow through 21 them all. t 22 JUDGE KLINE: But we can give you the ] ) I 23 opportunity. 24 MR. WARNER: Let's break for a half-hour. I 25 MR. REPKA: We are willing to try. I i t t i ANN RILEY & ASSOCIATES, LTD. Court Reporters l 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 [ (202) 293-3950 t tj

.. ~. -- -.-.. -.. -. _.~. I j 488 r i 1 JUDGE KLINE: If you are willing to try -- t 2 . JUDGE SHON: I think it is a good idea. 1 l 3 JUDGE KLINE: We have a list'of all the !~ 4 outstanding motions here someplace. I 5 MR. WARNER: We have that list also. j. 6 JUDGE BECHHOEFER: I mean, some of these will l j 7 clear themselves up because of the ruling. i l: 8 MR. REPKA: We believe that'also. 9 MR. WARNER: Yes, and some may clear this up 1 l 10 based on our discovery last week in terms of -- 11 JUDGE BECHHOEFER: That we didn't even know l 12 about, but there were one or two, for the answers to the i l 13 Thermo-Lag, were very relevant the Applicants, the way 14 they organized their answers And so if you think it s l 15 might be worth a try, we would certainly be willing to do i i-16

that, l,

17 MR. REPKA: I suggest we proceed on that and we 18 check back in a half-hour. We will tell you the status. I i 19 JUDGE BECHHOEFER: Is it okay with you? j 20 MS. ZAMEK: I have one question: Are we going l 21 to be allowed more discovery? I ) 22 JUDGE KLINE: You are going to negotiate that. I 23 MS. ZAMEK: In terms of the aging and the f f' 24 cabling? 25 JUDGE BECHHOEFER: We are going to have to l I ANN RILEY & ASSOCIATES, LTD. Court Reporters 3 i 1612 K Street, N.W.,' Suite 300 j Washington, D.C. 20006 l. (202) 293-3950 .-. - )

i 489 1 consider something in the nature of future schedules. And 2 -- well 1 think they can undo things. j 6 3 (The Judges conferred.) 4 JUDGE BECHHOEFER: The Board thinks that some 5 additional discovery is warranted on matters that weren't } 6 previously at least accepted as being the Contention I but ] 7 which now we have said are there. So to that extent at 8 least your discussions -- and if you could reach some sort i 9 of an agreement on what additional discovery you might j f 10 need, would like some time and that kind of thing on those i i 11 subjects, which we view as very real subjects which are 12 clearly covered by Contention I. I 13 JUDGE KLINE: We don't want to deprive you of 14 anything but we think we should not proceed very crisply. I i 15 JUDGE BECHHOEFER: Then if there is anything l 16 that you are not able to agree on, we can certainly be j i 17 here to rule on that. }a 18 JUDGE KLINE: They want to start with a j i 19 half-hour, then. 20 JUDGE BECHHOEFER: Okay, then ten o' clock we i 21 will be back. I 22 (Whereupon, at 9:38 a.m., a brief recess was 23 taken.) 24 JUDGE BECHHOEFER: On the record. .i i 25 Just put on the record that the Board inquired i; ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 (

-490 1 after a half-hour and was told that another half-hour 1 ) 2 might be fruitful., Therefore, the Board agreed to further 3 recess for another half-hour until 10:30 a.m. 4 Off the record. 5 (Whereupon, an additional half-hour recess was 6 taken.) 7 JUDGE BECEHOEFER: Back on the record. 8 Before we inquire as to the status of 9 negotiations, I would like to make one minor transcript 10 correction. On page 411 -- and I have already mentioned 11 this to the Reporter -- on the top line where it says I 12 should recuse myself, it should say, "I should offer to 13 recuse myself." Let the record reflect that I haven't 14 yet. 15 Now, do you have any spokesman or somebody who 16 would wish to present whatever has been agreed to and also 17 define where we still have to rule, on which there are 18 some things that are probably fairly clear. 19 MR. REPKA: I will try to cut through this, and 20 basically we have had very good discussions. We have 21 reached a series of agreements. First, there are three 22 separate motions to compel by Mothers for Peace on 23 outstanding discovery requests, addressing the first, 24 second, and third sets of interrogatories filed.by Mothers 25 for Peace. In addition, there is a motion for additional 1 ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 i Washington,-D.C. 20006 (202) 293-3950 l

i 491 ? 1 discovery on cable issues by the Mothers for Peace. 2 We have reached a series of agreements that will i 3 moot all of'those motions and we have agreed to do some l 4 things and they have agreed to do some things, I think, 5 with one or two exceptions, So where we are on those [ l 6 motions is basically we can set those aside. Mr. Warner 7 will read the agreements as we understand them. 8 MR. WARNER: I believe I am correct in adding 9 that this also would cover any requests for additional 10 discovery as a result of the Board's rulings on the scope 11 of Contention I that we heard today, in other words, 12 additional diccovery on the cables and on aging. And with i 13 that in mind, we have agreed as follows: i I 14 On cables, PG&E will respond to the additional 4 : 15 interrogatories that the Mothers for Peace have provided, l f 16-numbers one through seven, by May 26. The other 17 interrogatories in that initial request, initial motion by [ i 18 the Mothers for Peace would not be responded to.

However, i

19 they do relate to the EQ issue, primarily. As far as l 20 additional discovery is concerned on cables, the Mothers l l 21 for Peace would provide additional interrogatories on [ f 22 maintenance and surveillance issues associated with those 23 cables by May 19, filing four by fax to PG&E by May 21. i 24 PG&E then would provide its response seven days from ~ 25. receipt of those additional interrogatories. i r i i i ANN RILEY & ASSOCIATES, LTD. Court Reporters -j 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950

492 i 1 On Thermo-Lag, PG&E would provide by May_16 the f 2-information-referenced in the answer to Interrogatories 23 l 3 to 30 in the third set by Mothers for Peace. In regard to i 4 fire watch log information, that the Mothers for Peace j j' 5 would have until the end of May 26 to inspect the fire j j 6 watch logs themselves as a follow-up to the information l i 7 provided by PG&E. -l 1 i ~ 8 In regard to aging, both issues related to j l i L 9 previous discovery requests as well as any additional a 4 10 request on aging, the Mothers for Peace would limit their 11 request on aging to component-specific aging issues and f J 12 interrogatories on component-specific aging issues would i i i i 13 be faxed to PG&E by May 28. At least that is our i 'l 14 proposal; we have a slight dispute in that, I believe, the i 15 Mothers for Peace would like an additional week to provide i j f' 16 those interrogatories. In any case, whatever the date we i j 17 pick, PG&E would respond to those interrogatories-two l I i j. 18 weeks from receipt. Those interrogatories also would 1 I 4 l 19 include any follow-up interrogatories particular l F 20 locations of check valves in connection with Interrogatory j 21 No. 6 of the third set of interrogatories. 22-In terms of follow-up discovery and i 23 interrogatories in response to maintenance and { 24-surveillance issues, PG&E by May 26 would provide the i i 25 following to the Mothers for Peace: I i i s l ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950

493 1 We would provide copies of 1993 NCRs that relate 2 to maintenance of surveillance issues. We would provide 3 additional 1990 to 1992 NCRs to the extent the Mothers for 4 Peace provide us a list of those coming out of what we 5 call the OSRG reports. And if those NCRs indeed are 6 related to maintenance and surveillance, we also would 7 provide a response to an informal list of ARs, or Action 8 Pequests, that the Mothers for Peace provided us last week j. 3 vaen they visited the plant, to the extent that those 10 Action Requests are relevant to maintenance and 11 surveillence. And finally, we would provide copies of 12 1990 to 1992 OSRG annual and quarterly reports to the 13 extent relevant to maintenance or surveillance. l l 14 In terms of any NCRs referenced in the 1990 to 15 1992 NCRs which may date back to years previous to 1990, l j 16 the Mothers for Peace would provide us a request for those t l 17 NCRs, those pre-1990 NCRs, by May 21 by fax. And then I l l 18 believe we would respond within seven days of receipt to l 19 that request. 20 PGLE will also provide copies of the following l 21 to plant procedures that we have not provided C-40S2 22 regarding plant trending, and PDTS-1, regarding aging-L 23 management. Those two procedures would be provided by May 24 26. PG&E will not be asked to provide E-3.60C or DC4 T-10 25 and its appendix because these do not relate to h I l l 7004 RILEY & ASSOCIATES, LTD. Court Reporters-1612 K Street, N.W., Suite 300 Washington, D.C. 20006 l. (202) 293-3950 i L

=. I c i 494 t I 1 maintenance or surveillance. f I 2 Finally, as a follow-up to PG&E's response to j 3 Question No. 9, the second set of interrogatories, we 4 would respond by no later than May 26 as to whether the l 5 list we provided there was a comprehensive list or not. l 6 And on this basis this would be the end of the discovery [ i 1 7 schedule, as we understand it. 8 MR. REPKA: The only outstanding dispute for the i 9 Board on that is the one day for the new questions [ 10 specific to specific components on aging, whereas we l 11 proposed a five/ twenty-eight day and the Mothers for Peace i 12 have proposed a day and a week later than that. In f i l E 13 addition, I think there is still a dispute on some INPO f l i 14 documents i .O l 15 But, as Mr. Warner said, that would conclude the i 16 discovery on all issues, the discovery from PG&E. I 17 (The Judges conferred.) i 18 MR. REPKA: Judge Bechhoefer, this agreement -- { I 19 JUDGE BECHHOEFER: I was looking to see if there j i i e0 was any. agreement for the NRC Staff that you read out. { 21 MR. REPKA: This agreement is not meant to I 22 discovery against the NRC Staff or the Mothers for Peace. 23 So I would suggest that we address the two outstanding 24 disputes on this and then we can move on to discovery i 25 against the other parties. l .l i ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 l

a 495 I 1 JUDGE BECHHOEFER: That would be okay. (- 2 MR. REPKA: As far as the agreements are 3 concerned, I think the transcript will speak for itself. i 4-And I think most of those are really relevant only amongst l 5 s. f 6 JUDGE SHON: The sole disagreement that we see 7 is just this question of whether May 28th or a week later j 8 as the due date. I 9 JUDGE BECHHOEFER: May 26. i 10 MR. REPKA: Additional discovery on aging, and 11 there is already some other discovery provided for. But-i 12 to the extent that the Mothers for Peace have additional i 13 discovery on aging issues, they have committed to make l l 14 those requests and then the question is only the date. Is i O 15 it May 28 or is it a week later? And I can explain the i 16 position on that. l 17 JUDGE BECHHOEFER: There were a number of 18 questions which asked for whatever result they were l l 19 seeking going back to the beginning of plant operation. l 20 And I think the Applicant gave them two or three years, i 21 something like that. Now, have those been -- l 22 MR. REPKA: All of that -- we have moved beyond 1 23 that. We have agreed to do certain things and vice versa, 24 so.we are beyond that. 25 JUDGE BECHHOEFER: So, okay, we don't have to 1 i l ANN RILEY & ASSOCIATES, LTD. Court Reporters .i 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 i

I e 496 l l 1 worry about -- l I 2 MR. REPKA: This involves -- 3 JUDGE BECHHOEFER: -- " Hey, you forgot to do l 4 something". That is what I want to know. l i 5 MR. REPKA: This is intended to resolve i t 6 precisely that. j { 7 JUDGE BECHHOEFER: All right. 8 MR. REPKA: And then the only other -- Judge l 9 Shon, you said that is one -- I think there is --- the l 10 Mothers have to clarify this for me -- but I think there 11 is also a dispute on certain specific INPO documents that j 12 they have asked for and we have opposed on grounds of i 13 privilege. ? a 14 JUDGE BECHHOEFER: We have researched some of O 15 the case law on that. I guess when we get to that I will l 16 _ want to hear something about release pursuant to 17 protective orders and stuff like that and to how that- { 18 interacts with the various decisions' holding that it is l l 19 proprietary. 20 MR. REPKA: I think we can address those-two, 'i 21 the date issue, and then we can go onto that issue, and 'l 22 then talk about the discovery against the other parties. ] r 23 JUDGE'BECHHOEFER: Sometimes you don't turn it l 'l 24 over to the public but you might turn it over to a party l i 25 under a protective order. P ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W.,. Suite 300 Washington, D.C. 20006 (202) 293-3950 .- =.

p.. 497 -1 MR. REPKA: We understand. 2 JUDGE BECHHOEFER: I would like to hear 3 something about that because we have a number of questions 4 asked about that. i 5 JUDGE SHON: What are the considerations? Why l l 6 -does the dispute exist, for this one week? s 7 MS. BECKER: Our expert is going to be in L 8 Slovenia. f i 9 JUDGE SHON: Is what? l l 10 MS. BECKER: Is going to be in Slovenia. I 11 JUDGE SHON: Oh. 1 12 MS. ZAMEK: He won't be back until the 28th. l 13 MS. BECKER: And I will out of the country until 14 the 26th. So it makes it a little difficult to try to do l 15 it by the 28th. But we can do it the following week, we i i 16 just'need another week. I 17 JUDGE SHON: And what is your -- i 18 MR. REPKA: Our basis ~for the time allowance is l l-19 that we have had four months of discovery already and much l I 1~ 20 of this could have been pursued.and.wasn't. pursued. So I [ .21 that is why we are opposing further extensions. h 22 (The Judges conferred.) l-i 23 JUDGE BECHHOEFER: The Board has decided on~this I l 24 one that we are. unanimously in favor of giving the Mothers 1 s 25 for Peace the extra week. I won't offer more at this l-1 ANN RILEY & ASSOCIATES, LTD. Court Reporters l-1612 K. Street, N.W., Suite 300 i Washington, D.C. 20006 (202) 293-3950 --..L._,,,, u... _..,..._,r

l-f 498 i I stage, but at least we will offer you the week that you 2 have said you need. 3 JUDGE KLINE: What is the date now? 4 MS. BECKER: That is the 4th of June. i' 5 JUDGE BECHHOEFER: And that is instead of which 6 cne? 7 MS. BECKER: The 28th. 8 JUDGE BECHHOEFER: Okay. l 9 MR. REPKA: That is for one specific set of l 10 questions, so the record will be clear. And that will be 11 by-fax date. I 12 MS. BECKER: Yes. f 1 13 (The Judges conferred.) h 14 JUDGE BECHHOEFER: At this stage, I guess we 15 should to the INPO documents. That is, still the Mothers 16 for Peace asking the Applicants for something, whatever 1 17 that answer might have been part of. And on this one, as 18 I mentioned earlier, I would like the parties to address j 19 not only whether they are to be treated as confidential 20 information. They have clearly been held by a decision, I 1 1 21 guess the DC Circuit, to be confidential. 22 The question we want to know is does that 23 preclude or have any effect on. releasing the document 24 under' protective order, which would be the Mothers for 25 Peace, depending on the terms. But the protective order l' ANN RILEY & ASSOCIATES, LTD. l ' Court Reporters l-1612 K Street, N.W., Suite _300 i Washington, D.C. 20006 [ (202) 293-3950 e l I L. ,)

r L i ![ 499 l l 1 could be worked out where certain representatives and 2 certain technical representatives would see it but would 3 have to agree not to disclose it elsewhere. And if it 4 ever got to a hearing and if it became relevant, there 5 might have to be in camera hearings for that particular a f I 6 matter. i s 7 So this is the kind of thing I would like the l 8 parties to address. i l 9 MR. WARNER: Judge Bechhoefer, if I might, the t l 10 first question that we might discuss is exactly what is i 11 covered by Interrogatories 12 and 13. I believe they are 12 a little different. Interrogatory 12 covers INPO 13 documents generally that may be related to fire protection 14 and or maintenance and surveillance programs or 15 activities. Interrogatory 13 is Diablo Canyon-specific i 16 but, again, just covers broadly fire protection and/or 17 maintenance and surveillance programs. j l 18 I think that the threshold question that I think I i 19 should be asked of the Petitioner is: Have they shown a l' 20 need for these documents? And then at that point I think l l 21 the next question would be whether.there is any privilege l l 22 attached to these documents, any public policy in favor of l 23 such privilege. But I would suggest that the first' L. L 24 question be Petitioner's as to need. We do not believe l i l-25 Petitioner has demonstrated the need for the documents. l i. ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 l .(202) 293-3950 l' i b i.-

500 1 MR. REPKA: Those are Interrogatories 12 and 13. l 2 JUDGE BECHHOEFER: Well, I.had something, a note 3 here saying that it related in part to Reauest for 4 Production of Documents No. 5 of MFP's second set. Is i i 5 that what you will be addressing? 'I i 6 MR. REPKA: There is no Motion to Compel on I i 7 Interrogatory 5 of the second set. The only Motion to l [ 8 Compel on specific INPO documents is Interrogatories 12 [ 9 and 13 from the second set. So that is all we are really ] 10 talking about here. i 11 JUDGE BECHHOEFER: I see, okay. 12 MR. REPKA: Some of it, insofar as it might f 13 relate to fire protection, I think is well beyond the 14 scope of Contention V, the Thermo-Lag paragraphs here. f 15 Beyond that, there is the question of need on maintenance 16 and surveillance INPO documents. And that is why we 17 believe the first question has to go to the Intervenors 18 instead of to what need there is for these admittedly 19 privileged documents.. [ t 20 JUDGE BECHHOEFER: I was just getting out the 21 responses and also the Motion to Compel. I have a 22 question first for the Mothers for Peace. I was reading 1 1-23 here your April 26 Motion to Compel as including the j t i 24 Request for Production of Documents No.5. And I guess 25 maybe reading it again it is not clear to me whether it is ANN RILEY & ASSOCIATES, Liv. Court Reporters i 4 1612 K Street, N.W., Suite 300 l Washington, D.C. 20006 1 (202) 293-3950 i

l 1 501 ) 1 or isn't. And I am just trying to figure out whether we 2 are talking about that or not. 3 MS. ZAMEK: We are just talking about 12 and 13. t 4 JUDGE BECHHOEFER: Take your time to find it. ( i 5 MS. ZAMEK: I know what you are referring to. l [ 6 MR. WARNER: Judge Bechhoefer, the Motion to ( [ 7 Compel, the bold print in front of that does refer to I i 8 Interrogatories 12 and 13. l 9 JUDGE BECHHOEFER: I realize that. 10 But the title, at least, says it covers Request i t 11 for Production of Documents. Yet I see no specific 12 request referenced. So I am not sure how to interpret 13 these various things. I am well aware that 12 and 13 are f f 14 covered. Maybe that is sufficient. O 33 MR. WARNER: Excuse me. t t 16 JUDGE BECHHOEFER: But I was reading various I t 17 objections in Request No. 5. You outline the Applicant in 18 particular, the privilege question. j i 19 MR. WARNER: I was referring simply to the 20 Mothers for Peace Motion to Compel which listed various -l } 21 interrogatories. 22 JUDGE BECHHOEFER: I realize that. But I was 23 reading the title of that and it reads Request /for 24 Production of Documents, but doesn't have any specific- -l 25 references. So what I was trying to figure out is whether i I 70M RILEY & ASSOCIATES, LTD. Court Reporters l 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 l (202) 293-3950 1 l l .~

m 502 1 we are also talking about Request No. 5, which involves { l 2 the privilege. l 3 MR. WARNER: And the way the Interrogatories 12-l I 4 and 13 were written, they actually were requests for i t 5 production of documents. I think that is how they were 6 framed. So that may be the source of the confusion. ) i 7 MS. ZAMEK: I wouldn't mind receiving the 1988 l } B INPO which was mentioned in Request 5. But the Motion to i 9 Compel was just 12 and 13. 10 JUDGE BECHHOEFER: Okay. I was reading in part ? i 11 from the title. l t i 12 (The Judges conferred.) j i 13 JUDGE BECHHOEFER: I guess we will shift to the l 14 Mothers for Peace first on this then and ask whether you l f) ? (/ 15 have any specific claim of need to see or use the INPO j i 16 reports. 17 MS. ZAMEK: This is the point that I would like i 18 to revise our request to 13, which is Diablo Canyon j t 19 specifically. And also maintenance and surveillance and j i 20 not the fire protection. And then it is probably clear l'l 21 that it would be pertinent. { 22 JUDGE KLINE: I did not understand that. Does 23 that mean that you are not pursuing the Motion to Compel 24 on 12?. 1 25 MS. ZAMEK: Correct. -j ANN RILEY & ASSOCIATES, LTD. Court Reporters Suite 300 1612 K Street, N.W., ~ 20006 Washington, D.C. (202) 293-3950 i i - I

I'i 503 i i 1 JUDGE-KLINE: Okay. j () 2 MS. ZAMEK: That's a general request for all and 3 I want to see the INPO documents that are specific.to 4 Diablo-on only maintenance and surveillance issues. l 5 JUDGE-KLINE: And not Thermo-Lag? 6 MS. ZAMEK: Correct. { 7 JUDGE KLINE: Does that change the meaning? i 8 MR. WARNER: That certainly helps, Judge Kline. 'l 9 But I think the burden is still on the Petitioner to 10 demonstrate that if the underlying data on which the 11 documents are based and the information is already readily 12 available, then what is the need for the actual documents 13 themselves. And in the case of INPO-related maintenance 14 and surveillance documents, certainly those subsequent to 15 1990, since we are basically arguing that pre-1990 is not 16 relevant in any case, for those subsequent to 1990 we 17 still very strongly believe that the Petitioner must show 18 need if the underlying data is already available l 1 19 elsewhere. And we do not believe such need has been 20 demonstrated. j '21 We have provided NCRs going back to-1990,;we 22 have provided a list of quality-assurance audits, we have -j i 23 provided lists of QC surveillances, we have provided l ) 24 copies of LARs, certainly the NRC inspection reports,Ethe 25 ~ SALP documents, all of those are available and had been l i i i i l ANN RILEY & ASSOCIATES, LTD. ') Court Reporters 1612 K Street, N.W., Suite 300 'l Washington, D.C. 20006 (202) 293-3950 1

504 1 available. And so.we do not believe that the INPO l ) 2 documents, because they are based on the same underlying 3 data, have been demonstrated to be shown to be needed in 4 this case. 5 JUDGE BECHHOEFER: Is there anything that would 6 go into the INPO documents that would not be readily 7 available in the public document room of the types of 8 matters that would be relevant to the contention here? 9 MR. WARNER: The underlying data and information 10 is no different than that available, either through the 1_ public document room in terms of NRC inspection reports 12 and SALP evaluation or through the other self-assessment 1 13 documents that we have made available to the Mothers for 14 Peace through the three or four months of discovery. OC 15 surveillance, QA audit, NCRs, et cetera. {- 16 MR. REPKA: Obviously, if INPO comes in and 17 formulates an opinion of a maintenance and surveillance 18 program, that opinion is not elsewhere available. But' 19 that is precisely the kind of self-assessment that is _l t 20 considered to be confidential. Because if it weren't 21 confidential it would defeat the very purpose of doing it. l l 22_ We tend to frustrate the process and our-point 'I 23 is that the Mothers for Peace have an opinion.of the 3 l 24 maintenance and_ surveillance program, they have all the i 25 data necessary to formulate such an opinion, but to f - ( ANN RILEY1& ASSOCIATES, LTD. Court Reporters j 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 l q

505 1 piggyback arbitrarily an INPO opinion is not necessary and (I 2 it is not what this case is all about. I 3 JUDGE BECHHOEFER: But part of your defense is l 4 not going to be, "Oh, INPO says it's okay, so therefore t 5 it's okay"? If we were faced with something like that we j 6 would have significant difficulties in accepting -- 7 MR. WARNER: Well, obviously if were to put j B forward an INPO witness, that witness would be subject to f 9 cross-examination. If we were to introduce -- 10 JUDGE BECHHOEFER: I'm not even raising that 11 question. But if you didn't put forth an INPO witness, if 12 you said, " Hey, we got this report here and it says it's 1 13 okay and I affirm that it says it's okay" -- ) 14 MR. WARNER: I think the issue may be -- [ 1 l-15 JUDGE BECHHOEFER: -- I would have some problems ) i 16 putting any reliance on the report. 17 MR. WARNER: Yes, I agree. I think the issue i 4 18 may be mooted by the fact that we would not be putting f i 19 INPO documents or witnesses forward insofar as our case. 20 And I -- l l 21 JUDGE BECHHOEFER: Would there be-references? 1 22 MR.. WARNER: I do.not believe we may even-be j 23 permitted to do so in terms of our'own agreements with 24 INPO. As you know, the INPO evaluations themselves have. l i 25 certain confidentiality requirements. ANN RILEY & ASSOCIATES, LTD. Court. Reporters: 1612 K Street, N.W, Suite 300 Washington, D.C. 20006 (202) 293-3950 1

506 1 JUDGE BECHHOEFER: No, I have read the cases and 2 you people cited the cases, and at least one or two of 3 them I have read before. 4 MR. WARNER: We do not intend to put INPO -- 5 JUDGE BECHHOEFER: They are FOIA cases rather i 6 than litigation involving administrative adjudication, j 7 which may or may not be different. But the FOIA cases, I I 8 mean, the exemption -- without an exemption they would be l 9 available to everybody who crossed the board. And that i 10 wouldn't be true.if we had a protective order here. j 1 1 MR. WARNER: Well, Judge Bechhoefer, I agree 11 4 l-12 this is not the FOIA case. But self-critical analysis 13 privilege is not preserved by production via protective j 14 order. Because the public policy in favor of that l i 15 privilege, which is similar to what the Commission has l 16 talked about in terms of FOIA, is the importance of { l 17 maintaining that confidentiality so that there is a free - i 18 flow of information and a free' flow of self-critical 19 evaluation and assessments by licensees. It is not i t 20 preserved by a protective order because any. breech of that [ - I 21 confidentiality tends.to negate the incentive for l 22 licensees to be self-critical. r 23 Arguably, FOIA is a much broader breech of that f 24 confidentiality but it is no different than if you l 25 basically breech that confidentiality by providing the i i' 7JUJ RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 t Washington, D.C. 20006- [ (202) 293-3950 ,j ~ ,F

l .I l 507 l 1 document under a protective order to a petitioner in an l 2 adjudicatory proceeding. The petitioner has it. i 3 Therefore, that is a disincentive in terms of the licensee i 4 performing such self-critical analyses or INPO performing { 5 such self-critical. evaluations on behalf of the licensee. 6 So I guess my point is that we would not agree j r 7 that a protective order would preserve the public policy j 8 goal in favor of. confidentiality and in favor of 9 self-critical analysis. I 10 (The Judges conferred.) W 11 JUDGE SHON: That particular point, the point j that distinguishes between a FOIA request and a release to 3 12 13 an opposing party in litigation has not been addressed by 14 the courts, is that correct' ' I 15 MR. WARNER: I agree. 16 JUDGE SHON: What I am saying is, you have your 17 view, Mothers for Peace might have quite another view. 18 And there hasn't really been -- 19 MR. WARNER: Let me clarify. It has not been j f 20 addressed in the NRC context. 21 JUDGE SHON: I see. l 22 MR. WARNER: It has been addressed involving, l 23 for example, hospital evaluation of a malpractice issue 24 involving a doctor on the staff of the hospital. It has l ~ f 25 been addressed where an outside auditor on behalf of a j I t i ANN RILEY & ASSOCIATES, LTD. j Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 l (202) 293-3950 i;

m-- 1 ) 508 I 1 client has done an audit of internal matters in a j i 2 corporation. And the self-critical privilege basically [ t 3 has been held to extend to those circumstances such that l l 4 in litigation -- for example, a plaintiff suing a doctor 5 for malpractice is seeking that hospital internal i 6 evaluation through discovery and that has been denied to l 7 the plaintiff in that situation on the basis of this 8 qualified privilege. 9 But I do agree it has not been addressed r f 10 directly by the Commission or by any court decision 11 regarding that matter. f l 12 JUDGE SHON: That was a hospital? { t 13 MR. WARNER: Yes. r 14 JUDGE BECHHOEFER: Ms. Hodgdon, let me ask-you 15 -- you may not know -- is there any sort of a Staff policy 16 on how boards should treat requests for privileged 17 documents, INPO-type documents? I remember there was an I a l 18 attempt at one point to appropriate some of those things ~j i 19 into rulemaking. And I'm not sure that that ever went 2 20 through or exactly what the result was. Is there any sort 21 of a Staff policy statement or Commission policy statement 22 or something of that sort that we may not be aware of that 23 we should look to that either says the Staff -- I mean, 1 1 24 the Commission will go out of its way to protect these 25 documents or that protective orders may be issued where ~. l i ~ ANN RILEY & ASSOCIATES, LTD. l Court Reporters i 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 l (202) 293-3950 l i 1!

.] 509 1 requested, or upon a showing of need for the particular { 1 2 purpose? Do you know of anything that the Commission has i 3 done lately on that? Because I don't, but I am trying to f ) 4 make sure that we are not missing something. i 5 MS. HODGDON: I am not aware of the Staff or j 6 Commission policy. And I am also sure that if there were 7 one I would know about it. So I am reasonably sure that .l 8 there is no Commission policy or policy statement or F 9 anything of that order on those documents. f 10 I was involved in a' case a number of years ago, i 11 and I was just speaking with Ms. ZamEk about it, but I 12 can't remember the outcome, except that they were not -- 13 but I can't remember exactly what happened, what the l 14 resolution was. It was resolved amicably but I can't j 15 remember the resolution. So I can't reach the bottom line l 16 on that because I can't just off the top of my head 17 remember any situation that would affect this particular ] 1B question before the Board now. 19 JUDGE BECHHOEFER: Does the Staff have any sort 20 of -- 21 MS. HODGDON: Ms. Peterson reminds me of the 22 memorandum of understanding or agreement with INPO 23 regarding that. And, of course, that is not a policy but I 24-it is a policy circumstance. l 25 JUDGE SHON: That is a memorandum of j i i ANN RILEY & ASSOCIATES, LTD. Court Reporters i 1612.K Street, N.W., Suite.300 Washington, D.C. 20006 (202) 293-3950

_ - ~,. i 510 l t 1 understanding.that tells how NRC -- l () 2 MS. HODGDON: Will treat INPO documents. i 3 JUDGE SHON: It's not necessarily how a licensee i 1 4 might treat an INPO documents for litigation. One might f 5 distinguish that, too, might they? -j i 6 MS. HODGDON: Well, yes. But, 1 mean, that is j 7 some guidance in this area for the NRC, it is privileged 8 to have INPO documents because of this treatment of them, f 9 So I think that is an indication of how the NRC has l i 10 treated them. f j-11 JUDGE SHON: Does that particalar policy { l 12 statement address itself to the matter of releasing in a 13 litigation, releasing such information under protective I l 14 order? f 15 MS. HODGDON: I believe the policy statement i i 16 goes only to the NRC's treatment of those INPO documents -17 and doesn't give instructions to the boards. j i 18 Unfortunately, I don't have it with me. 19 JUDGE BECHHOEFER: Well, while we are with you 20 let me ask -- I would expect that it would -- does the l 21 Staff have a position on this particular INPO document, l 22 whether or r.at it should be released under a protective l l 23 order? 24 JUDGE'SHON: In this case? 25 JUDGE BECHHOEFER: In this case it does not l 3 ANN RILEY & ASSOCIATES, LTD. Court Reporters. ~ 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 i

511 1 involve Staff discovery, so probably technically you are ) 2 probably not even interested. But I wonder if you have a 3 position on this matter because your position may be taken l 4 into account. 5 MS. HODGDON: I think I would rather not take a j 6 position on that. I am a little shaky on the whole 7 subject matter of those documents-. I think the Staff does-t B not have a position on this particular document, it is not 'j 9 familiar with it. i 10 JUDGE BECHHOEFER: It doesn't involve Staff. ] [ 11 MS. HODGDON: It doesn't involve -- j i 12 JUDGE BECHHOEFER: As far as I know, it doesn't I 13 seem to. 14 Ms. ZamEk or Becker, do you have anything more O t 15 specific to add on this? i

f 16 MS. ZAMEK:

I don't have much of value. I i 17 haven't seen one before. But I am awfully curious. 18 JUDGE BECHHOEFER.: That makes you equivalent to 19 this board member, anyway. l -t ? 20 MS. ZAMEK: I am very curious to see what is in { 21 these now, even more so. I i 22 MS. BECKER: Do some INPO documents have I 23 privilege and not others? PG&E did send us one INPO 1 24 document. 25. MR. REPKA: The one provided was a list of INPO ~l ANN RILEY &. ASSOCIATES, LTD. f Court Reporters ~1612 K Street, N.W., Suite 300 l Washington, D.C. 20006 l (202).293-3950 {

_. f 512 1 I .I 1 criteria. j i ( 2 MS. BECKER: Okay. 3 MR. REPKA: Which is different than -- 4 MR. WARNER: It was not a self-evaluation. 5 MR... REPKA: -- evaluation. } } 6 MS. BECKER:

Okay, i

l 7 JUDGE KLINE: Well, aside from your curiosity, ( 8 you heard it said that the data that these documents. rely 9 on are already disclosed to you. So the issue is not so -l i 10 much what opinions INPO might have but what opinions you ( 11 would like, you would formulate based on these data. In 12 light of that, it isn't clear to me that you have given us 13 an explanation of why you have to see these, other than 14 curiosity. l 15 JUDGE SHON: I would also like to point out that 16 PG&E has given us some assurance that they don't propose 17 in any way to rely on INPO's opinion in pursuing this i j 18 case. i 19 MR. REPKA: That is correct. l 20 JUDGE BECHHOEFER: Because, I might add, I don't 21-think we would accept INPO's opinion without looking up 22 the study and seeing if underlying data supported it. 23 ' JUDGE SHON: So if they don't rely on it and you 24 have experts of your own to look at all of the data on ) 25 which it is based and make up your mind,.what do you need j ANN RILEY & ASSOCIATES, LTD. Court Reporterc .1612 K. Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950

513 l i 1 it for? l l 2 MS. ZAMEK: Our experience is that when you look j 3 at self-evaluation, they are more direct and up front and 4 candid about it all. You do get more information that -l 5 way. 6 MR. REPKA: But that is our point. If their .f 7 self-evaluation was introduced into an adjudicatory. 8 proceeding, no one would do self-evaluations anymore, f 9 JUDGE BECHHOEFER: Well, isn't that more or less 10 a bit extreme? There have been documents released under 11 protective orders, presumably. This has been quite a few i 12 years ago. And the penalties for breaking a protective j 13 order can be quite severe. [ 14 MR. REPKA: But they are released with a O 15 demonstrated need and just in your -- i 16 JUDGE BECHHOEFER: That is correct. [ 17 MR. REPKA: Under whatever protective order or 18 whatever other guise it is released does tend to frustrate i 19 the whole process of self-evaluation and the willingness 20 of anybody to do further self-evaluations. ~l l 21 . MR. WARNER: This is exactly the circumstance j 22 that I think you can argue that the' Commission had in mind 23 in terms of the FOIA situation, and that is basically it t 24 is clearly a situation where a party who has a particular j ? 25 view that is antithetical to the licensees in terms of i t JJR7 RILEY & ASSOCIATES, LTD. Court Reporters' 1612 K Street, N.W., Suite 300 [ Washington, D.C. 20006 j (202) 293-3950 l

i ~i 514-l 1 their activities seeking access to INPO self-evaluations. i 2 I think it is directly analogous here. We have a party 3 who is opposing the licensee on a licensing matter and 4 that party is seeking the critical self-analysis documents i 5 from INPO. -j l 6 So I think the protective order really would not i ? 7 preserve the public policy in this circumstance. 8 MS. HODGDON: Well, Judge -- 9 JUDGE BECHHOEFER: Well, are we potentially to 10 have in mind -- well, assuming the policy of Il self-criticism really works. These people have said, "Our j f e 12 maintenance and surveillance program is barely passable 6 L 13 and we think that unless we take some corrective actions I .14 immediately we will have out license suspended or -t 15 something," or something like that. I'm not saying that l r 16 that is likely to occur. But if it were and you came j 17 before the Board and did not rely on INPO at all but i i 18 relied on whoever makes up your testimony, you people make 19 a testimony for your witnesses saying that our program has 20 never received adverse criticism'from anybody. j i 21 MR. REPKA: Well, testimony must be trae and j i 22 accurate in all material effects. 23 JUDGE BECHHOEFER: Well, I would have to base a 24 decision just from an overall standpoint. I would hate to i 25 be having to issue a decision under facts like I have { ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 l Washington, D.C. 20006 I (202) 293-3950

515 1 hypothecated and I will presume they are hypotheses. But 2 it troubles me a little bit. 3 MR. REPKA: The basis for the Licensee's 4 position is the adequacy of maintenance and surveillance l l 5 will be clear in testimony, assuming there is testimony in l 6 this proceeding. And to the extent the Intervenor has a 7 contrary view, they have to offer their own' opinion as to 8 why there is a deficiency in the maintenance and 9 surveillance process here. Relying on INPO or anybody f i 10 else is not the way for an intervenor to make that case. i 11 MR. WARNER: And if this were some other 9 12 industry you might have a situation where you would say, f l 13 well, the underlying data is not readily available. But l t 14 when you look at the amount of data and the openness in 15 terms of the documentation by both the Commission and by j 16 the Licensee in terms of the operations and the 17 maintenance and surveillance in the plant, that data is 4 i 18 widely available, has been widely available to Petitioner. i i 19 And, therefore, I think when you look at balancing the 'I 20 public policy in favor of confidentiality in this case j l. 21 against the need, and that is the balancing that is done i 4 22 in looking at this qualified privilege, we do not believe 23 the need is there, given the huge amount of information .{ 24 that is already available and that.is no different from i 25 the information that the INPO evaluation is based on. I ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N. W.,- Suite 300 Washington, D.C. 20006 (202)293-3950 l

i 4 I i 516 I q 1 (The Judges conferred.) ? 2 JUDGE BECHHOEFER: Does anyone have anything j I l l 3 further on the privilege questions we have been talking j t I 4 about? Ms. Hodgdon? j i L i t i 5 MS. HODGDON: Yes. Ms. Peterson says that the l 6 Staff takes very seriously the memorandum of understanding 7 with INPO, that the NRC recognizes the importance of 8 keeping those documents confidential, and that the Staff i l I 9 at least is bound by the memorandum. 10 JUDGE SHON: In other words, confronted with the 11 request for these INPO documents, even under a protective 12 order, the Staff would probably resist it? l 13 MS. HODGDON: The Staff would certainly resist E 14 it and has done so. 15 (Pause.) 16 MS. HODGDON: Excuse me, Judge Bechhoefer, I 17 could probably get a copy of the memorandum of i i 18 understanding if you want that to read during lunch. l 19 JUDGE BECHHOEFER: Is there anything further on 20 this question? If not, we will break for lunch and we 21 will let you run the Xerox machine. 22 MR. WARNER: Judge Bechhoefer, I'm just 23 backtracking and I'm assuming, with the exception cf the . 24 INPO issue, the discovery schedule agreement that we.had 25 for the Petitioner is acceptable. i i ANN RILEY & ASSOCIATES, LTD. j Court Reporters l 1612 K Street, N.W., Suite 300 l Washington, D.C.'20006 l (202) 293-3950 i t h .___.;__._._______._a_._____

i 517 l 1 (The Judges conferred.) f i 2 JUDGE BECHHOEFER: Let me pose an inquiry Did j 3 your agreement or your collective agreement have any date 4 as to which the Intervenors would tell you a prospective 5 witness? Because that -- 6 MR. WARNER: We haven't got to that. 7 JUDGE BECHHOEFER: We are interested in 8 discussing that a little bit. l 9 MR. REPKA: What we have talked about thus far { f 10 is our agreement on discovery from PG&E, i 11 JUDGE BECHHOEFER: Well, you have asked for some 12 of the witnesses. l 13 MR. REPKA: That is discovery against the l A J i 14 Mothers for Peace and that is something that we still need { i 15 to talk about, that is still on the table. l t 16 JUDGE BECHHOEFER: I just wanted to make sure we f a 17 weren't -- f 18 MR. REPKA: We haven't forgotten it but -- 19 JUDGE BECHHOEFER: We want to talk to the. 20 parties about that issue, among others, not that one only. [ I 21 MR. WARNER: But it is not tied to this 22 agreement in terms of discovery with PG&E. 23 JUDGE BECHHOEFER: Okay,'well, that.is what I l 1. Because I took down lots of notes but 24 wanted to inquire. 25 -whether I have everything or not, I am not a very good I h i ANN RILEY & ASSOCIATES, LTD. Court Reporters i 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 l .(202) 293-3950 l l

518 l I court reporter. ~ 2 MR.. REPKA: I think we still have on the table i 3 discovery with. Mothers for Peace, including the 4 identification of witnesses and any discovery back and 5 forth between the NRC and the Mothers for Peace, which I 6 don't know about. g f 7 JUDGE BECHHOEFER: Right. f t 8 And then setting some schedules. { i 9 MR. REPKA: And setting schedules, which is also 10 'related to identification of witnesses. 11 JUDGE BECHHOEFER: Right. l t i 12 (The Judges conferred.) j 13 JUDGE KLINE: I don't think the Mothers for 14 Peace have been asked on the record whether they agree to i 15 the schedule that was outlined. And I would like you to 16 just give your response to the agreement that has been i j 17 outlined so far, j i 18 MS. ZAMEK: The only disagreement we have was .j t 19 the May 28 date. 20 JUDGE KLINE: We understood that -- l 21 MS. ZAMEK: We have agreed to everything else. 22 JUDGE KLINE: Otherwise, you do agree? l 23 MS. ZAMEK: Yes~. l 24 MS. BECKER: If it'was clear that documents that i 25 we identified today have a chain:back to pre-1990, which.I i F JJUJ RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 . (202) 293-3950 + i

519-1 think Mr. Warner mentioned. 2 JUDGE KLINE: Okay. 3 (The Judges conferred.) 4 JUDGE BECHHOEFER: During lunch, we would like 5 the parties, particularly to consider something. They j i 6 should consider, in the interest of moving the proceeding l 7 along rather than the particular stage of the proceeding, 8 whether if the parties would forgo their admitted right to e f 9 file summary disposition motions. And we would then do i 10 our best to bring the proceeding to a hearing rather 11 quickly. Whether that might be a type of schedule that j 2 l 12 would be attractive to everybody. And I am not trying to [ i i 13 impose any implications as to what our response would be i l 14 to a summary disposition motion, except to note that it 15 takes about as much work to prepare for one of those 16 motions as it does to prepare testimony. In fact, many i [ 17 times -- not always, but many times -- they are verbatim. 'i 18 MR. REPKA: We understand the question and we j ] { 19 will give it some thought. l l 20 JUDGE BECHHOEFER: Perhaps it will save a lot of 3 21 time if we skip one stage. But we also believe that any 22 party has a right to file such motions. So, absent that 23 agreement, we don't feel that we are permitted to say that 24 it would apply or the 749 doesn't apply, I guess, if it d 25 does. ) l ANN RILEY & ASSOCIATES, LTD. ) q Court Reporters 1612 K Street, N.W., Suite 300 1 Washington, D.C. 20006 (202) 293-3950

l 520 l 1 So, during lunch you all may want to consider 2 that. Let's be back by 1 15. [ t 3 (Whereupon, at 12:05 p.m., the hearing was 4 recessed, to reconvene at 1:15 p.m. this same day.) j 5 AFTERNOON SESSION t 6 1:18 p.m. 7 JUDGE BECHHOEFER: Back on the record. { S Ms. Hodgdon, do you have that memorandum? 9 MS. HODGDON: No, Ms. Peterson was explaining it 10 to me but we don't have it. It is not a federally l; 11 registered memorandum of understanding, it is not in the i 12 Federal Register. I had hoped to find it in the Federal j i t 13 Register but I did not. That's why I said I could find it 14 in my office, but it is not to be found there. We looked 15 in Lexus and couldn't find it there. They we tried NUDOCS 2 16 and I don't know. f 17 JUDGE BECHHOEFER: So it is a Staff document. i 18 MS. HODGDON: Everybody was at lunch. So in any j 19 event we were not successful in getting a copy. The short 20 answer is, no, we were not successful in getting a copy. 21 I haven't yet determine whether we have given up on that. f 22 It is'possible we might be able to get it faxed 23 JUDGE BECHHOEFER: We are not going to rule j 24 immediately on that particular question. l a I 25 MS. PETERSON: We did talk to a person, the INPO j t i ANN RILEY & ASSOCIATES, LTD. . Court Reporters-l 1612 K Street, N.W., Suite 300 i Washington, D.C. 20006 { {202) 293-3950 i 1 r -..-r -r,,

I i 521 l 1 coordinator for the agency, and basically the memorandum 2 of agreement just lays out how we can get access to a 3 dveuments. Because we don't have access to INPO 4 documents. And when they do come in we treat them 5 proprietary but the memorandum of agreement really only j i 6 addresses how we can view a document on site or with the l 7 licensee or actually go to Atlanta at INPO's corporate l office and see the evaluation. B 9 So I don't know if that -- 10 JUDGE BECHHOEFER: Well, as I say, I don't think 11 we are going to rule on this particular request today f 12 anyway. But I'm sure that we will withhold any decision - t j 13 on whether the report should be made available under a

i i

14 protective order, to be sure. So, again, if there were a j 15 protective order we probably at least would want a j t 16 conference call to. determine what the conditionL vaculd [ t 17 be. So we will not let any of these things go unescaped, ~ 18 I hope. If we do, let us know. I 1 i 19 MR. WARNER: We will. L i 20-(The Judges conferred.) 21 JUDGE BECHHOEFER: At this stage, I think we v 22 should advise the parties that we do not intend to rule at 1 23 all on PG&E's motion to strike in part certain aspects of - l 24 responses to questions we asked about the FES. We don't f i 25 think that any issue at all remains of that sort in the i ANN RILEY & ASSOCIATES,.LTD. Court-Reporters l 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 ( 7 .,y 9

) l 522 j 1 proceeding that we haven't ruled on already. j l( ) 2 MR. REPKA: We agree. 3 JUDGE BECHHOEFER: We i e not going to rule on 4 that either way, we are not going to say it was or was not 5 justified. l 6 MR. REPKA: Judge Bechhoefer, you want to move I 7 on to discovery for Mothers for Peace? l t 8 JUDGE BECHHOEFER: Yes, returning to that. We j 9 have various motions concerning that, plus motions 10 concerning the Mothers for Peace versus the Staff. Those-f l 11 are at least two topics we have to see. And then for the [ 12 scheduling, which will depend in part on the response to t 13 the questions we pose. 14 MR. REPKA: With respect to the issue of our l 1-15 discovery from the Mothers for Peace, I think we can cut i i 16 through that a little bit. We have pending two l t 17 motions, dated April 6 and April 23, essentially seeking to i 18 insure that Mothers for Peace do respond or supplement 19 their responses to previous discovery requests. And I i 20 _think really the issue there is we still-would like j i { 21 responses to those questions and that includes f 22 identification of witnesses and some other matters. And t 23 it is just a matter of a schedule for the Mothers for 24 Peace to do so. l i' 25 And I think that this is why this whole issue ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 ) (202) 293-3950 i t l:r ]

i l i 523 1 dovetails with the schedule issue. According to my l:. 2 calculations, the last date we have for a discovery action 3 is a response by PG&E or the 18th of February. And what I 4 would propose -- or sorry, June 28. Those are responses 5 to questions we would receive from the Mothers for Peace 6 on June 4. I would propose that we have an agreement from l 7 the Mothers for Peace to just supplement the previous 8 responses to the interrogatories that provide the initial l l 9 responses to those that they said they would do so by the t i l 10 18th of June. 11 JUDGE BECHHOEFER: 18th? l l 12 MR. REPKA: 18th of June. That would be an i i 13 appropriate date. l 14 JUDGE BECHHOEFER: Do either of the Mothers for I i l 15 Peace, do you have -- will you, particularly on your 16 expert witnesses, even though they may change by the 18th, 17 will you be prepared to at least identify those who you I 18 are planning to use? They may then be subject to j 19 deposition. 20 MS. ZAMEK: Right. !1 l 21 JUDGE BECHHOEFER: I don't know whether the 22 counsel will seek those depositions, but it is a i 23-possibility. But, then again, the witnesses have to be l j 24 identified at some point prior to going to hearing. And i[ 25 we would like to get the hearing as soon as.we can if we 1 i 3.- l ANN RILEY & ASSOCIATES, LTD. q Court Reporters l 1612 K Street, N.W., Suite 300 j Washington, D.C. 20006 r (202) 293-3950 l l i

l' I l_ 524 l: j' 1 could avoid extended delays for reasons that. don't appear l-j 2 to us to seem to serve much useful purpose. i 3 MR. REPKA: Just to clarify, it is more than l 4 just identification of witnesses. There are other l l 5 requests -- j' 6 JUDGE BECHHOEFER: Well, I.:ecognize that. But i 7 that was the one that stuck in the minds of the Board, l t j 8 anyway. l-9 MS. ZAMEK: The problem I see with June 18th is l 10 that on June 18th we will just be receiving -- l l 11 JUDGE BECHHOEFER: May 18? 12 MR. REPKA: June 18. l' l: 13 MS. ZAMEK: June 18. I 14 JUDGE BECHHOEFER: I'm sorry. l 15 MS. ZAMEK: On June 18 we will just be receiving i l 16 PG&E's discovery. So I think I would like a couple of l 17 weeks to review the material before. Because they ask for l 18 documents that will be used in testimony in their l l 19 discovery request. 20 MR. REPKA: The basic proposition is that our 21 requests go to the basis for the contention and the basis 22 for the positions to be taken. And the responses really 23 were due quite some time ago. I mean, it has been now 24 well over four months since the discovery period started. 25 So I think that by allowing the June 18 is allowing more () ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950

525. 1 1 than ample time, much'more than would be called for by the 2 regulations. 3 JUDGE BECHHOEFER: Well, you know, you recognize j l 4 that you will name somebody. Then if it turns out that -l t 5 that person can't or won't serve as your witness you have j 6 to tell people as soon as you find that out. But it is j ( 7 not that you are -- I mean, you should have some 8 confidence that the people you name are going to testify 1 9 for you. But, then again, it doesn't have to be, you know l l 10 11 MS. ZAMEK: It also may be that at this point we j i ] 12 are considering just using cross-examination, no expert 13 witness. And we understand that intervenors are allowed f 14 to do that. And we may end up doing that. j 4 i l ~ 15 JUDGE BECHHOEFER: But people do have the right i 16 to prepare for cross-examination, that type of thing. So j 17 both side, every side. } 18 JUDGE SHON: Did I misunderstand you? What you l l 19 are suggesting now is that.you might entirely try to make r 20 your case on cross-examination? f i 21 MS. ZAMEK: Yes. 22 JUDGE SHON: I see. l 23 JUDGE BECHHOEFER: Well, you can say that. l 24 JUDGE SHON: You can say that. r i 25 MS. ZAMEK: June 18th? i i () 1000 RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950

526 l 1 JUDGE SHON: But you should be able to say that { .i 2 early enough so that they can prepare. j 3 MS. ZAMEK: I understand. l -l 4 JUDGE SHON: So that they know they won't have 5 surprise witnesses of some sort. l 6 MS. ZAMEK: Okay. 7 JUDGE BECHHOEFER: We don't want to affect j i 8 either party or either party to be surprised by somebody i 9 coming out of the woodwork at the last minute. I think the 10 whole purpose of discovery is supposed to avoid that kind l t 11 of thing. And we would like to see it work. j 12 MS. ZAMEK: My request would be to have it .I 13 closer to the end of June, that date. 14 MR. REPKA: I don't understand what that would 15 accomplish. I think we were entitled to time of responses t 16 to discovery some time ago. And what we would like to do -i 17 is proceed in an expeditious fashion from close of j 18 discovery to subsequent motions and ultimately hearing, if 19 the hearing is necessary. l t 20 And to put off naming witnesses just for another ~ 21 couple of weeks, all that does is create the potential f .i 22 that we would then-have to go back and perhaps notice 23 depositions, if_we were going to go that route, and we 24 want to get on with it. And we think we are entitled to i 25 do that. I i i ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950

l: I l 527 l 1 JUDGE BECHHOEFER: We better talk about this for. l-I 2 a moment. 3 (The Judges conferred.) i I 4 JUDGE BECHHOEFER: We have decided on i-5 essentially the earlier date, although we will make it I [ 6 June 21, which is a one day extension to give Mothers for t 7 Peace an extra weekend. Our theory is that bj that time l I l 8 you should have some idea how you are going to present l 9 your case. If it-changes, you just tell people, you f i 10 supplement, that is very possible. If you are under l 11 negotiation for price or for a witness or whatever other 12 arrangements and you haven't reached an agreement, you 13 don't have to spell out the details. But you could say it l 14 will be such and such unless our negotiations fail, or l-l 15 something like that. L i l 16 There are a number of ways you could handle it. L 17 And if matters change, you tell people. But we think it ) 18 should be out in the open what people are going to l i l 19 present. And, of course, those' people will be subject to 20 deposition. I don't know whether PG&E will want to take 21 depositions, but they have a right to. And you will have 22 a right to depose other witnesses who are identified to i l 23 you, too. 24 So, again, whether they want to do that or'not, 25 I don't know. In other words, we are not trying to plan ANN RILEY & ASSOCIATES, LTD. I Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 ll (202) 293-3950 i i 1.. . _ - _ - _ _ _ _ _.. _ _ _ _ _ _. _.. _ _. _.. _ _.. _ _ - -. _. _, -.. _.. _.... ~ _ - -,

528 l 1 discovery strategy, although I did ask whether the Staff. ) 2 had a particular view. Does making it the 21st give you-y 3 any problems. It doesn't strictly involve your discovery, 4 I don't think. As I recollect -- 5 MS. HODGDON: Well, on the that, it is because I f I 6 haven't had an opportunity to speak. But the Staff has a -e 1 7 problem with and objects to any discovery that is based on 8 the aspects that were admitted by the Board this morning 9 without a finding on the five factors. Because the Staff 10 believes that the Pilgrim case, as cited in its brief in j 11 response to the Mothers for Peace's third late-filed-t 12 contention, is still good law and gives a positive finding l 13 on the five factors and the conditions pertaining to 14 admitting late contentions. 15 And so it is possible to say how much of this' f 16 discovery actually you-are going -- of these new aspects l 1 17 were admitted without finding on the five factors. And we i 18 certainly object to any of that discovery. So the Staff j t 1 19 has a problem with all of these dates because we think i 20 that discovery has been vastly expanded in all of these 21 aspects that were defined today and it is not really l .t '22 possible to separate those things out. Now, I know that 23 this is pending discovery on the-identification of 24 witnesses and therefore it is not really directly 25 relevant..But the fact is that we are pushing all sorts /"'y L (_/ ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 'l (202) 293-3950

i 529 i l 1 of things into these dates and.therefore creating ) 2 obligations that wouldn't exist without the Board's having- -l l 3 admitted aspects today which were late-filed. _i i l 4 MR. REPKA: Our understanding is that the Board 5 is not willing to admit anything new, so that contention 6 was as previously admitted. And in that eense it is l 7 indeed expanded. And all we have agreed to do in the 8 traditional discovery is address aspects that were subject 9 to such dispute previously. And in that sense we are 10 willing to agree to the dates we have agreed to. 11 And yet the presumption is that the Board this [ 12 morning did not admit anything new and did not expand the 13 scope of Contention I. 14 MS. HODGDON: May I address that? If that is 15 the case, it seems to me a very cumbersome way to go about 16 discovery on already admitted contentions. Filing three 17 late-filed contentions is putting everybody to the 18 difficulty of responding, et cetera, bringing an expert 19 witness out here. And, of course, PG&E brought an expert 20 witness as well. But this whole thing was in all the l 21 while. Now, I don't agree that it was in all the while. l l 22 These things were identified as late-filed and the i 5 23 Intervenors believe them to be late-filed, as if they were -f l 24 late-filed. And the Board treated them as if they were 25 late-filed, except they did not address the five factors. I l (f ANN RILEY & ASSOCIATES, LTD. Court Reporters -i 1612 K Street, N.W., Suite 300 i Washington, D.C. 20006 (202) 293-3950

530-1 And I think that is contrary to the law and probably up ( )- 2 for reconsideration. 3 MR. REPKA: I would agree that the discovery 4 process in this proceeding has become cumbersome. I agree 5 with that very strongly. But it is my understanding that l 6 when the Board issues its order on the three late-filed 7 contentions the decision will be that those three 8 contentions will be denied. And what we are really -- 9 JUDGE BECHHOEFER: That is correct. They will l 10 explain what parts of those are incorporated into l 1 11 preexisting Contention I. 12 MS. HODGDON: May I speak? 13 But to the extent that there is new discovery on i i 14 aspects that were identified in documents that were filed I 15 past the original date for supplementation of petitions, i 16 then those were late-filed and therefore must be treated l .t 17 as late-filed contentions. It is not enough to say that j t l 18 they were late-identified. The case is clear. It says, 19 " late file contentions or any aspect of them". t ? 20 MR. REPKA: There is a distinction here between j 21 incorporating things backwards into the existing 22 contentions -- which it is my understanding that is not 23 what is happening -- versus saying the contention was 24 there all along and this is what it was. So it is argued l 25 and the Board has decided it is the latter and Contention ANN RILEY & ASSOCIATES, LTD. Court Reporters i 1612 K Street, N.W., Suite 300 I Washington, D.C. 20006 (202) 293-3950 'l c

~ 531 1 I is preexisting so there is no back-incorporation that () 2 would. avoid the-late-filed factors. i 3 MS. HODGDON: May I speak insofar as discovery 4 dates are excluded to accommodate that? That just isn't f l 5 so. It is obviously not so. -t 6 MR. REPKA: Those discovery dates are being set 7 by agreement of the parties. l I 8 MR. WARNER: Judge Bechhoefer, I'think standing ) -i 9 back a minute, I think we agree completely with the Staff j J 10 that what we are doing here, I think, is a very cumbersome l l 11 discovery schedule. And I have to say that I think we -- 12 PG&E -- are reaching this voluntary agreement as a~way to. 13 resolve the whole waterfront on discovery once and for all 14 with the expectation that we are not going to be facing O 15 this death by one-thousand cuts in terms of late-filed 3 16 contentions coming over the transom as a means of l 17 expanding discovery or expanding discovery of previous a 18 contentions into the future. 19 Absent that type of overall resolution, we would 20 be taking the position that discovery ended March 8th, or 21 whenever the deadline was that we agreed to, back now, 22 what is it, almost two months ago, three months ~ago, and 23 that there would be no further discovery to be had. But 24 in the interest of moving.the process forward voluntarily 25 we have reached this agreement. But if, as the result of ANN RILEY & ASSOCIATES, LTD. Court Reporters L 1612 K Street, N.W., Suite 300 I Washington, D.C. 20006 (202)-293-3950

i -P i 532-l I this agreement, we face additional pushing-back of the 2 schedule in terms of previous discovery requests we have i 3 made of the Petitioner, I think we might have to I 4 reconsider that. But I think we have reached an i 5 understanding in terms of clearing the waterfront. 'Juld i 6 then we think we ought to move on from there with the 'i 7 proviso that we all understand what the Board did this i I 8 morning was not to in any way whatsoever expand the l 9 Contention I by admitting new aspects or by otherwise 'l i 10 incorporating issues that are unrelated to the l 11 implementation and programmatic effectiveness of 12 maintenance and surveillance. l 13 (The Judges conferred.) 14 JUDGE BECHHOEFER: Well, the Board specifically j O f 15 notes that it is admitting Contention I, we specifically 16 noted that the Intervenors were not limited to the 17 specific incidents ~ cited at that time. So duly developed i 18 information certainly would or could be relevant.

Now, 19 the cable matter, in particular, we thought was clearly i

20 the type of thing, unexpected or premature aging or [ i 21 corrosion of cables was clearly subject of the contention l 22 before. So all we are really -- but the parties might not '!l 23 have been thinking of those terms. i 24 And we had mentioned that incidents of the type i i 25 mentioned in the letter that Mothers for Peace tried to l l ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300- ' Washington, D.C. 20006 (202) 293-3950

533 1 read at the prehearing conference would be acceptable. We ( ) 2 didn't want to pause the conference way back then and 3 examine incidents which certainly, as a separate 4 contention, would have been late at that time. But we 5 wanted to enable a contention to handle matters of this 6 sort, which are of the same virtue as had been relied on 7 before. 8 MR.' WARNER: Judge Bechhoefer, I just want to 9 ask a clarifying question. When you spoke of premature 10 degradation or corrosion as being within the Contention I, 11 did you mean corrosion and degradation per se, or did you 12 mean -- as I think we interpreted Contention I -- to be 13 where that creates evidence as to an inadequate 14 maintenance or surv2illance program then as evidentiary 15 where, however, it is unrelated to maintenance or 16 surveillance? Where it is simply something that you might 17 have, even where you might have the best maintenance and-18 surveillance program in the world? Then you are not 19 looking at the issue of aging or corrosion per se. 20 Because we interpreted that particular generic aging issue 21 as having been rejected in Contention IV. 22 And I think the Staff's position iaally is that 23 once you have rejected an issue in Contention IV and you 24 are looking at maintenance and surveillance in Contention 25 I, if you are going to come back later on and retrofit a j ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950

~ -. l f .l 534 new version of Contention IV on Contention I, that would .l 1 2-be a late-filed. It really would be a late-filed j 3 contention. And we didn't understand your ruling on the 4 contentions to do that. And I want to ask for that ] 5 clarification. i 6 JUDGE BECHHOEFER: Well, our ruling was that f t 7 aspects of what was -- one of the reasons we did not 8 accept Contention IV is because we felt a specific part of 9 it -- and I won't say all of it -- but a significant part 10 of was covered by Contention I. Some of the things 11 specifically, some of the incidents cited were the very l 12 same, or they were duplicate, but we weren't necessarily 13 limiting it only to those. But we felt that it was 14 already covered and why have two contentions? And we also ~O 15 said there wasn't enough at that time to constitute a j i 16 wholly different contention, particularly since a 17 significant aspect of it was covered already. l 18 So that was what the process of our thinking i 19

was, r

20 MR. WARNER: I understand, i 21 But Contention I remains limited to maintenance { 22 and surveillance. f 4 23 JUDGE KLINE: But -- 24 JUDGE BECHHOEFER: That's correct. ( t 25 Whether the program is sufficient to detect l 1 l -i .t ANN RILEY-& ASSOCIATES, LTD. l Court Reporters

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f 535 1 premature maintenance and surveillance in particular () 2 parts. But the only way you could show prematurity is~to 1 3 allege it. And to some er: tent that was done on the i 4 cabling contention, to some extent it wasn't. And we are 5 relying on the portions that were that related to Diablo l l 6 and which we seem to have been told that if the l i 4 7 surveillance program was adequate they would have picked 8 that up before any problem arose. -j i 9 JUDGE SHON: But we did not need, I think, to E 10 preclude Mothers for Peace from bringing in hitherto e i r 11 unmentioned instances of things that were bad without i 12 maintenance and surveillance catching them. 13 MR. WARNER: Absolutely. 14 Where that is relevant to what would be O 15 determined to be an effective and adequate maintenance i !i 16 program. i 17 JUDGE KLINE: Yesterday I asked Mr. Repka a ] 18 question and it appeared to me that we had an agreement 19 But the nature of the question was: Had the late-filed 20 contention never come in and, understanding that 21 Contention I is by its nature multifaceted, couldn't f i 22 issues such as cables and other forms of degradation be l 23 brought into Contention I as an effort to show that there I 24 is some defect in the maintenance and surveillance I l 25 program? Not as a new contention, just an additional l i i ANN RILEY & ASSOCIATES, LTD. Court Reporters t 1612 K Street, N.W., Suite 300 Washington, D.C. 20006-(202) 293-3950 i i ]

i 536 i i 1 basis. And I thought we had an agreement, or you agreed j . (I 2 that in fact that was legitimate. 3 MR. REPKA: We do speak with the same voice. ] 4 The answer to that is yes. And one of the things we have 5 agree to do this morning is to answer the previously asked 6 questions about Diablo-specific cable incidents. And j 7 putting aside the issue of whether we think that is really 8 evidence of a maintenance problem or not -- r 1 4 9 JUDGE KLINE: That is all we will hear evidence i 10 on. But, nevertheless -- 11 MR. REPKA: That is within the scope of j 12 Contention I -- I-13 JUDGE KLINE: Yes. i i 14 MR. REPKA: -- and to the extent that is what 15 the Board did this morning -- 16 JUDGE KLINE: It does appear, and I think you j t 17 are correct, that the nature of Contention I has not been l I 18 broadened. But it was always multifaceted to begin with. l f 19 If you are going to show some sort, or have the 20 opportunity to show, some sort of institutional problem -- 3 21 and I am not saying there is ene, just an effort to show -l ) 22 it -- it would seem that some sort of cumulative evidence ( i 23 would be required, a simple piece of evidence wouldn't do j 5 24 it. You would need multifaceted evidence. l t 25 And that is.what we had in mind when we said in i I 'l -i ANN RILEY'& ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 1 Washington, D.C. 20006 (202) 293-3950

b il' 537 1 i i i 1 the first place that you are not restricted to just the [. L 2 bases you chose to get the contention in. If other bases j l 3 surface and they are within that scope, they are 4-legitimate. But not late. They wouldn't be late in the l L [l 5 sense of a late-filed contention. That was my view of it_, l l 6 anyway. j i i i 7 JUDGE BECHHOEFER: Well, it is mine as well. { i 8 We do not have any dispute with that. l-l i 9 MR. REPKA: I think that is fine. But I think l .[ 10 we are beyond that. And, as Mr. Warner said earlier, our 4 I j. 11 whole effort here this morning is to get on with this and i t 12 close out discovery. .l l l 13 JUDGE KLINE: Yes, there are some -- we are 14 going through more discovery than we had anticipated when. l l 15 we sent the first schedule, But this now appears in my } l 16 mind to be a practical way of clearing tha deck. And if l 17 the parties particularly agree, I don't see what the V i 18 problem is. l-l 19 (The Judges conferred.) l 20 JUDGE BECHHOEFER: After this discussion, we I 'l l 21 will adopt the June 21, as the date, the last date for l 12 2. Mothers to identify their witnesses. Again, if that i 23 MR. REPKA: And as well, answer the other -- I i 24 JUDGE BECHHOEFER: Pardon? l 1 25 MR. REPKA: And, as well, answer the other j '. ANN RILEY & ASSOCIATES, LTD. Court Reporters i 1612 K Street, N.W., Suite 300 l l Washington, D.C. 20006 i L (202) 293-3950 l i i i 1 J

538 i i 1 interrogatories that are pending, and that they -- l () 2 JUDGE BECHHOEFER: Yes, I guess that's correct. 3 Everything else, where the date was -- well, we haven't 4 talked about whether everything else should be extended to j 5 the 21st from the 18th, or not. It's a weekend and I i 6 guess we'll give them the weekend. I guess we'll give you i l 7 the weekend. So, for every time you see June 18, make it 8 June 21. 9 (The Judges conferred.) 10 JUDGE BECHHOEFER: We're going to turn to the j k 11 motions relating to the NRC Staff. I have a question l f 12 first. 13 (The Judges conferred.) ) 14 JUDGE BECHHOEFER: Now, looking through various 15 aspects of the Staff response -- and, of course, we have 16 in mind that discovery against the Staff has to meet + 17 certain criteria. 18 If you go back, there is apparently a request of j 19 evaluation for fire watches, fire watch program, of PG&E; t 20 and the Staff responded to this back in July 1991, and 21 .bjected to the rest of the request as being unduly i 22 burdensome and overly broad. I would like the Mothers For 4 23 Peace now to state why you think that you need to go j l 24 farther back then July 1991, which I guess is the cut-off 25 date for the Staff answer. We're picking answers now, but I I J ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.. W., Suite 300 Washington, D.C. 20006 (202) 293-3950 1 a

539 1 we're trying to only pick the answers when we feel that (f 2 there might be some difference of opinion. 3 MS. ZAMEK: We're looking at the reliability of 4 fire watch personnel in general. 'S JUDGE BECHHOEFER: Yes. And this is discovery 6 request No. 5. 7 MS. ZAMEK: Right. And, so -- 8 JUDGE BECHHOEFER: And the staff's answer is on 9 page 5. 10 MS. ZAMEK: Well, that's obviously my motion to 11 compel. 12 JUDGE BECHHOEFER: I'm not -- there may be other 13 documents, as well, but I'm reading from the Staff's 14 response right now. 15 Well, let me ask the Staff one' question: Are i 16 there any inspection reports, or reports of investigation, { 17 which, for one reason or another, would not have been put 18 in the Public Document Room as of this time, old ones that l 19 are subject to investigation for one purpose or another, l 20 and which may never have gotten to the Public Document 1 21 Room? j 22 MS. HODGDON: The answer is -- 23 JUDGE BECHHOEFER: If you were investigating-24 alleged criminal conduct, for instance -- I'm not accusing j 25 anybody of criminal conduct; but you advise your clients ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street,.N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950

. _ ~ _ _ ~ i i ? 540 i i 1 to put certain documents in the Public Document Room for l I) 2 that very reason. And until further investigation is 3 performed, it should not be public information. l l 4 MS. HODGDON: The answer to that is no. i 5 JUDGE BECHHOEFER: Okay. So, then, all of the' l t 6 documents, for which you declined to answer on that l 7 particular question, would be someplace in the Public I r i 8 Document Room? j i 9 MS. HODGDON: That is true. i 10 JUDGE BECHHOEFER: Right. j i .11 MS. HODGDON: They are. They're also in NUDOC. .l i 12 JUDGE BECHHOEFER: Well, NUDOC is supposed to -- l f f 13 MS. HODGDON: Yes, right. I mean, yes; they're .i l 14 public documents and they are in the Public Document Room. j l 15 MR. WARNER: And Judge Bechhoefer, just a 16 clarification? 17 JUDGE BECHHOEFER: Yes. I 18 MR. WARNER: The Mothers For Peace, of course, 19 have been on the service list, distribution list, for NRC l I 20 Inspection Reports for 10 to 15, 20 years now. l 21 JUDGE BECHHOEFER: Oh, I see. So not just l 22 during this proceeding? 4 23 MR. WARNER: That's correct.. 24 JUDGE BECHHOEFER: I knew they were way back 25 when, but whether they'd stayed -- I didn't know they i ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K_ Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950

541 a 1 stayed that way? l 2 MR. WARNER: Continuously, i 3 JUDGE BECHHOEFER: Yes. We had some talk about 4 different people and different people living in different 5 places. Have you all resolved that problem so that you k' 6 get to see -- i- [ 7 MS. BECKER: We've been to everyone's garage. I [ 8 JUDGE BECHHOEFER: Pardon? 9 MS. BECKER: We've been to everyone's garage. l l j j 10 Yes, we've checked them all. [ i j-11 JUDGE BECHHOEFER: Well, now, could the Mothers 12 For Peace explain why you need that in view of the i l 13 criterion, the staff, it's in the regulations that the i j 14 Staff doesn't have to respond if the information is ( t 15 available elsewhere and can be obtained from normal .i F t 4 i 16 sources. I don't know the magic words rights now, but -- l 17 MS. ZAMEK: We havent had a lot of luck with j l 18 NUDOC. When you put in something like fire, fire ~ f 19 protection, and fire watches, nothing comes up. Or, some j l 20 things might come up on some unrelated items. So, it's j l 21 quite difficult for us, particularly since the staff at l 22 our Public Document Room is not-trained well. So, that's l ) 23 our dilemma. J 24 So, it seems fairly easy if they came up with l 25 just these few'to go back and do the few years. I don't. t ANN RILEY & ASSOCIATES, LTD. l Court Reporters j 1612 K Street,.N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 4 [

542 1 know if it -- I don't know if it's-easy or not for them, 2 if they have their information organized in a fashion that 'l 3 it's readily available to them. i 4 JUDGE BECHHOEFER: Do you have any comments on f 5 that? I don't -- 6 MS. HODGDON: Yes. We answer to the questions i 7 is that I did not prepare this response to discovery ~ 'l 8 myself. I'm amazed that it gave the Mothers For Peace -l l 9 those inspection reports. The fact is that Ms. Peterson 10 got them from NUDOC, and it took her whatever time it took i i 11 her. It was the Mothers For Peace's work to do and not 12 Ms. Peterson's, who has other things to do. And that's 13 the reason that we have the regulation that we do, making i 14 discovery against the Staff different and requiring a 15 finding by the Board that the documents sought are ~ 16 necessary to a proper decision in the proceedings and not, l 17 are not, reasonably obtainable -- those answers to- + 18 interrogatories are not reasonably obtainable from any 19 other source. And, on that basis, the presiding officer 20 may require the staff to answer the interrogatories. 21 Well, obviously, that's not the case here. These 22 are public documents, where there is a Public Document \\ 23 Room. Mothers For Peace have access to that Public I 'I 24 Document Room. There is no reason in the world that they 25 should require the project manager to use her time to find i j f ' MUJ RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 i Washington, D.C. 20006 (202) 293-3950 i i I

j 543 l 1 them. [. 1 2 JUDGE BECHHOEFER: Could the Staff -- Ms. 3 Peterson, maybe you can answer. Do you know, offhand, 4 what the magic code word for finding these reports was? 5 In which case, they cught to go back and change the dates 6 and gets thousands of documents, zero documents And the 1 7 way NUDOCs works and doesn't work -- l 8 MS. HODGDON: It's not that easy. 9 JUDGE BECHHOEFER: I've used it. It's very 10 frustrating to use. I did some of this myself. 11 MS. PETERSON: The best thing is just to use the i 12 docket and go through and use the document type, 13 inspection report, and pull up all the inspections 14 reports. I had to look through every inspection report 15 manually and find out where they mention fire protection. i l 16 So it's not an easy task. 1 1 17 JUDGE BECHHOEFER: Yeah. There is, by the way, i 18 some code letters for inspection reports. l' j 19 MS. PETERSON: Right. 20 JUDGE BECHHOEFER: And I've tried to use that l 21 occasionally. It's three or four letters -- there is a 22 booklet someplace. I finally got one, but it took me i 23 awhile. Finally, NUDOC sent me one. This lists various 24 code letters, series of letters, for different types of 25 documents and type of report, whatever the letter code is. i ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950

-t I t I 544 f 1 MS. PETERSON: There's actually a help feature. } r 2 If you ask, it will give you a list of document types.. j l 3 MS. ZAMEK: We're not allowed to use the machine j r f 4 ourselves. 5 MS. HODGDON: But to answer Ms. ZamEk' s i 6 comments, she said that she tried for fire watch. It's i t 7 just, of course, not -- f j 8 JUDGE BECHHOEFER: No. You get the -- -l 1-l 9 MS. HODGDON: You can tell it what you're j 10 looking for, but -- l 11 JUDGE BECHHOEFER: You get the microfiche t 12 address, and then you got to go and look in a reader that l \\ 13 may or may not work. At least I could get a percentage'of j i 14 the time when ours doesn't work and it. s f airly high. O 15 } MS. ZAMEK: But you understand. t 16 MS. HODGDON: The point to be made here is: We { l 17 have the same problem, j i 18 JUDGE BECHHOEFER: I realize that. l I 19 MS. HODGDON: We did do those discoveries back ^ a 20 to July 1991 even though we were not obliged to do that. .j t 21 So - - 22 JUDGE BECHHOEFER: I'm not criticizing the 23 Staff. I'm just trying to see if we can get some of the 24 technical assistance to make it a little easier. I 25 MR. WARNER: Judge Bechhoefer, if I might offer? t l l I ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, L.C. 20006 202) 293-3950 . i ( 1

^\\ 1 g 545 1 I think we now have a contention, as admitted, .l j. 1 j 2 that is narrowly limited to the implementation of fire j 3 watches and Thermo-Lag areas. 4 JUDGE BECHHOEFER: That's correct. i l 5 MR. WARNER: And to the extent that that period i 1 j 6 really only covers June '92 to the present., then I think t l-7 that narrows the -- certainly narrows the search burden, 8 in terms of going back to the Public Document Room, in 1 l 9 terms of inspection reports that might relate to that [ l 10 period of time. l 11 (The Judges conferred.) 1 j 12 MS. HODGDON: Excuse me. May I speak? I 13 There were fire watches before that time, but ) J l. 14 they were not compensatory for Thermo-Lag, and for the 4 l ~ 15 inoperability, the system was declared inoperable. So the i l-16 only ones that are relevant are the ones since the-systems i 17 were declared inoperable in July 1992. So, to the extent l } 18 that it goes beyond that, it's generic and has to do with j l e l 19 the aspects of the contention that the Board specifically I i-20 excluded, and that is the generic thing, about whether l 21 fire watches are generally reliable. These are fire i l 22 watches. The implementation of these fire watches that i 23 are compensatory for Thermo-Lag inoperability. We're I i' l 24 talking about only that and nothing more. 25 JUDGE BECHHCEFER: Now, wait a minute. I have a i. i l-l ANN RILEY & ASSOCIATES, LTD. Court Reporters }. 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 i (202) 293-3950 t t

i ? ) i 546 1 few things I don't understand. I understood the staff to () 2 have approved the various applicants, or licensees, 3 following their tech specs for what happened when there is i 4 an inoperable fire barrier. If that's the case, the very 1 5 fact that the particular misses occur before or after a 6 given date isn't, per se, relevant. It's how you've been 3 l 7 implementing your fire watch tech specs, all the way back. 4 b 8 But for reasonableness, perhaps you don't go all the way f 9 back. The question I was trying to raise is: It seems i 10 pretty pertinent to me, for whatever the reason, if you l 1 11 miss five or ten fire watches, or whatever -- I'm not i t 12 accusing anybody of doing that -- if you missed lots of j r 13 fire watches, that would be, perhaps, a meritorious j t 14 contention. 15 MR. REPKA: We disagree with that completely. j 4 16 We think that goes with the issue as a generic matter, and 17 that's the second late-filed contention that was just i j l 18 ruled out. The issue in the first contention is the-l t 19 implementation of the Thermo-Lag compensatery measures. j 1 a 20 And, by definition, that's a known set of fire watches I I 21 since the middle of 1992 So, it's just -- l ? 4. 1 22 JUDGE BECHHOEFER: Well, as I say, I'm not -- I. ) 23 don't necessarily agree with that. Because, if you're f 4 l l 24 using an existing system to implement potentially a new i 4 25 requirement, then, how you've done with the existing j i r i IdRJ RILEY & ASSOCIATES, LTD. 4 Court Reporters l 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 l,

I 547 j 1 system is about as relevant as the -- it's very pertinent. 2 MR. WARNER: Well, Judge Bechhoefer, also, just ? 3 getting back to the discovery issue, I'm going to pose a i i 4 hypothesis; and that is: In terms of fire watches that 5 were not being required to be done as compensatory actions 6 prior to June 1992, the fire watches we were doing 7 voluntarily, I would not expect to see any inspection by the Commission Staff on those fire watches. So, B effort 9 to that extent, I'm Just trying to point out that the J i 10 issue of Staff Inspection Reports, going back pre-1991, I i f 11 think is extremely marginally relevant to the issue, as 3 i 12 admitted. ] 13 JUDGE BECHHOEFER: Well, under 10 CFR 50.59, if f a 14 you had a lot of -- I'm just hypothesizing now -- wouldn't i 15 there be a requirement that you evaluate that there might -t 16 be a problem and tell the Staff after either a few months f 4 ~, j-17 or years? You wouldn't have to do it on a 24-hour basis; 18 but, at some point, don't you, under 50.59 - I think the 19 number is 50.59; I can ] x it up. I think that's the l 1 i 20 one that allows you to evaluate certain problems. 21 MR. REPKA: I don't think 50.-59 has anything to j 22 do with that. But I think another factual matter that's l 23 relevant here is: Many of the fire watches that may have 1 24 pre-existed the Thermo-Lag interim compensatory measures 3 25 were not required fire watches. They were not required by { t ANN RILEY & ASSOCIATES, LTD. l Court Reporters l 1612 K Street, N.W., Suite 300 l ] Washington, D.C. 20006 'I (202) 293-3950 i

~ ~ -.. - -.. -. _ -. ~. -. -. - - -. - - -. ~... -. [ i i 548 l-1 tech specs, or anything else. There are many, many fire 2 watches that are done at the plant simply because we do 1 3 them as a conservative measure, and that nothing may have ii' l 4 been declared inoperable in the area; but it's there, the l 5 fire watch is done. In a sense, if something is found to 6 be open, the fire watch is already in place. Or, if i l 7 something is found to be inoperable, the fire watch has 8 already been through there. 9 So, you have a universe of fire watches that (a) 10 is not even required by tech specs, or any regulation; and 11 (b) is certainly not relevant to Thermo-Lag interim l 12 compensatory reasure. I 13 Then, to answer your question, I think, as far i 14 as reporting is concerned, that's 50.72 and 50.73. It I 15 would be reported if you miss a fire watch, if it was a 16 tech spec required fire watch, it would be reportable g l 17 under 50.73. I don't think that 50.59 plays into this in l l-l 18 any way. 19 JUDGE SHON: Well, what you're saying is that i i l 20 the fire watches that existed prior to the Thermo-Lag 21 business were largely not required by tech specs: and, 22 therefore, a sampling of them would not be a reliable 23 measure of the reliability of fire watches which are 24 required by tech specs. Is that right? l 25 MR. REPKA: Whether it's reliable or not, I'm not 1 4 'l' i l' ANN EILEY & ASSOCIATES, LTD. l Court Reporters i_ 1612 K Street, N.W.,' Suite 300 l. Washington, D.C. 20006 (202) 293-3950 i s

..~- 549 l I sure. i 2 JUDGE SHON: Yes. 3 MR. REPKA: But it certainly -- it's correct in 4 the factual matter that most of them were not tech spec I 5 required fire watches. And that's what we have done in i 6 Diablo Canyon, almost since operation began, was run j i 7 continuous fire watches, and continuous hourly fire 2 8 watches, which is far beyond tech spec fire watches. .i 9 JUDGE SHON: The intervenors now have, I 10 essentially, all the inspection reports identified, which 11 are inspection reports concerning fire watches after i a j 12 Thermo-Lag. Is that right? l s i 13 MS. ZAMEK: After the compensatory measures were a j 14 required. l 15 JUDGE SHON: Right. ) 8 16 MS. ZAMEK: Yes. It's my understanding that i t 17 we're to look at all. Whether the tech spec requires j r 18 these fire watches or not, I think that the personnel 19 would want to be reliable. And that's what we're looking i 20 at when we go back, to see the reliability of the 1 21 personnel on fire watches and the equipment. l t2 MR. REPKA: And I think that determination can 1$ 23 be made by looking at the specific set of fire watches .[ 24 we're talking about, which is those that are interim 25 compensatory in Thermo-Lag fire areas. i IJUJ RILEY & ASSOCIATES, LTD. Court Reporters j 1612 K Street, N.W., Suite 300 i Washington, D.C. 20036 I (202) 293-3950 l i ~ - - - +

l i I i 550 i { 1 JUDGE SHON: Under any circumstances, the 2 Staff's answer seems to be that, if you want that 3 information, you would have to dig it yourself out of the 4 previous inspection reports: and, that, indeed, you i 5 already have from them more than they really feel they're. 6 required to supply. I 7 JUDGE BECHHOEFER: Well, to follow up one more l 8 question, subsequent either to September 28, 1992, or l i 9 October 27, 1992 -- I'm not sure which of these dates -i 10 would be appropriate -- did anything in the nature of the j g 11 fire watches that are performed change from what prior 12 practice would be? l 13 MR. REPKA: A few seconds, please? i l 14 JUDGE BECHHOEFER: Okay. Take your time. i \\ 15 (Pause.) 'I 16 MR. REPKA: The answer to your question is that j l 17 there is no change to the nature of the watches, since j .i 18 they became interim compensatory measures. There may have [ 19 been an expansion of the areas covered to make sure'that i 20 the Thermo-Lag areas were covered, but there is no change j f 21 because they were interim compensatory measures. There"is 22 an unrelated change made to the system, which were going 'I 23 to card readers versus a' previous measure where the fire 24 watcher logged in each area. But that's not related at 25 all to Thermo-Lag compensatory measures. ] i ) ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 'l Washington, D.C. 20006 l {202) 293-3950. i t I ~* s +- r

551 1 1 JUDGE BECHHOEFER: Okay. I 2 (The Judges conferred.) j 3 JUDGE KLINE: Has the Staff made any systematic f l 4-collections -- and this is relevant to interrogatory 4. 5 Has the Staff made any systematic collections of data j 6 regarding the reliability of fire watch personnel? 7 MS. HODGDON: No. B JUDGE KLINE: Okay. So that, if, for example, 9 one now wanted to make a systematic collection, would it l 1 10 be necessary to simply go into the body of raw data 11 related to inspections and try to formulate something from 12 that? Is that what one would have to do? j 13 MS. HODGDON: Certainly a compilation could be ( 14 done. I i 15 JUDGE KLINE: Some sort of compilation from a i 16 large accumulation of documents, is that right? .{ 17 JUDGE BECHHOEFER: What we were most interested .i 18 in is whether the Staff has already done it -- 19 MS. HODGDON: No. 20 JUDGE BECHHOEFER: -- so that further extensive. .j i 21 labors would not be done. 22 JUDGE SHON: In other words, this isn't just a. 23 request for a sheet of paper or a pamphlet'you already l l 24 have? e l 25 JUDGE BECHHOEFER: Or a NUREG document? l -) i l ANN RILEY & ASSOCIATES, LTD. Court Reporters ) 1612 K. Street, N.W.,-Suite 300 i Washington, D.C. 20006 I (202) '293-3950 a

t 552 ? 1 MS. HODGDON: No. No, there is no NUREG 2 document on this. To my knowledge, there's no documents, 3 (The Judges conferred.) 4 JUDGE KLINE: I would like to ask the Mothers, 5 in regard to interrogatory No. 7, the staff responds on 6 the question of its position on the contentions. It i 7 appears that the filing before us, the Staff opposed all l i 8 contentions -- opposed admission of them. It would seem a- ) 9 fair inference to me that the Staff -- I don't want to l 10 speak for the Staff. But, from what they have said to us, 11 it appears they think they have no merit. Now, isn't that j li an answer to your question on their position? 13 MS. ZAMEK: Well, oftentimes, the NRC Staff l } 14 opposes the things based on other, like other things not l ' 15 merit. Like the five factors, for instance, on the i 16 late-filed contentions. They really don't discuss the I t 17 merits of it. That's what we're trying to get: what they 'l 18 thought about the merits, not about the admissibility. l 19 MS. HODGDON: I can address that, if you -- l l l 20 JUDGE KLINE: Yes. Why don't you give'the 21 answer right now, if you can. 4 22 MS. HODGDON:- Well, our answer was something to I i 23 the effect that it was in our responses to the i l 24-contentions. To the extent that this motion to compel-l -i 25 asks what our position is now, since they've been ] l IdG7 RILEY &. ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 O

i 553 i l 1 admitted, well, the answer is the same. The fact that i 2 these contentions were admitted doesn't change our view of i 3 their admissibility. The fact that we didn't appeal i i 4 doesn't mean that we might not have thought that -- we 5 still don't think the same thing about them as we did in 6 the first place, that they were inadmissible. [ t 7 As regards the merits of it, the Staff hasn't f 8 taken a position on the merits of these contentions. The 9 Staff position is in its documents. We don't have any j 10 documents on that. If we did, we would be happy to give [ i 11 them up; but, we don't have any. We just don't take a l 12 position on them unless we need to, and, so, there is no 13 position on the merits. I suppose the staff testimony l 14 will be, if this thing should go to hearing, will be the l l 15 Staff's documents on the merits. i'I 16 JUDGE BECHHOEFER: Is the Staff likely to take a 17 definitive position on the contentions, as admitted, any t i 18 time, or any significant time, prior to.when you would 19 file your direct testimony on the particular issue? f 20 MS. HODGDON: I think it's highly unlikely. I' j 21 mean, I think it's highly unlikely that anybody would ask i 22 the staff for a document about how it feels about the ) 23 merits of certain contentions. It just wouldn't happen. j 24 JUDGE BECHHOEFER: Well, can't you'see that f i 25 somebody like Mr. Scholley might say: Hey, even-the Staff f l ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 4 Washington, D.C. 20006 (202) 293-3950-

~ . -. ~ 1 554 I .i 1 agrees with me; this contention has merit, that the j .I g 2 enforcement of the surveillance and maintenance program is l l 3 for the birds? Can't you see an intervenor witness saying-I 4 that? 5 MS. HODGDON: I -- 6 JUDGE BECHHOEFER: I'm not trying to write 7 testimony for anybody. I'm just trying to hypothesize 8 that. l t 9 MS. HODGDON: Well, I don't think I follow that. .l l 10 What's the relevance of that? [ 11 JUDGE BECHHOEFER: Well, the relevance is -- the i 12 question was: Would it be reasonable to wait until you i I 13 get the Staff's direct testimony prior to finding out the 14 Staff position on a particular contention, as developed t 15 and as modified or not modified, as the case may be? What 16 would be the point where the Staff would make up its mind? I ~ 17 MS. HODGDON: Well, the point that I think I l i i 18 just made is that the Staff does not take a position about -l [ 19 these separate documents. The Staff has no documents on i 20 this subject matter, other than the documents that it has 21 already filed about the admissibility of the contentions, j i 22 The merits of the contentions will be addressed in the i 23-testimony. We don't expect that there will be any { l 24 documents prior'to that time. j 25 MR. WARNER: Judge Bechhoefer -- l ANN RILEY & ASSOCIATES, LTD. Court Reporters j 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 l .(202) 293-3950' i

- _ ~ l l 555-1 JUDGE BECHHOEFER: Okay. Well, that -- 2 MR. WARNER: Judge Bechhoefer, just a 3 clarification on the Staff. Has the Staff has taken a i 4 position on the environmental assessment? I know that's 5 not an issue at this time. l 6 JUDGE KLINE: That contention is not admitted. 1 7 JUDGE BECHHOEFER: Yes, that's correct. 1 8 MR. WARNER: Previously, it was not. It's j 9 mooted now in terms of the contention not being admitted. f 10 JUDGE SHON: I guess what I'm having difficulty { 11 understanding is that you seem to be saying that, although j 12 discovery and the entire plan of-this proceeding is, in 13 general, designed to preclude surprise in the filing of i 14 the testimony, you feel that does not, by the rules, apply I-15 to the Staff, in that Mothers For Peace can't'ask, in l 1 16 effect, who are your witnesses and what-will they say. i 17 MS. HODGDON: The Mothers For Peace did not ask i 4 i 18 us who our witnesses -- yes, they did. Excuse me. We 19 said we didn't know at this time whether or not there-20 would be a hearing. Because, certainly, we had not 21 identified any issues. I_mean, you don't choose witnesses 22 until you figure out what the issues are. We don't know 23 what the issues are. At the same time, we don't know what i 24 our position is because we were just asked about the j 25 contentions. The question was: what is your position on l 2 - i I ANN RILEY & ASSOCIATES, LTD. 2 Court Reporters 1612'K-Street, N.W., Suite 300 i Washington, D.C. 20006 (202) 293-3950 I

i I 556 I 1 the contentions? The answer is: that was in what we i 2 filed on the contentions. They don't ask us what we think 3 about the issues, or anything like that. They ask about l 4 the contentions. We gave a complete. responsive answer. 5 The motion to compel is just not appropriate and shouldn't j 6 be granted. l 7 Do you understand the distinction, Judge Shon? 8 It says contentions. It doesn't say issues. 9 (The Judges conferred.) 10 JUDGE KLINE: I want to ask the Mothers this: 11 The Staff has now told you that, as to the merits of the 12 contentions that are now admitted, they have no formulated t 13 position. That's in the record. Is that a sufficient j r 4 14 answer to your question? I mean, that's the kind of O ~I 15 answer you're giving us, that you have no answers to whom 16 your witnesses are going to be. You just haven't decided l 17 yet. .l l 18 MS. ZAMEK: Right. I think that those -- I I l. 13 JUDGE KLINE: And that's their answer, too. 20 MS. ZAMEK: Yeah. Maybe they could update them j l 21 as they know. l-! 22 JUDGE KLINE: Well, I presume that, at some-23 point, if they file any testimony -- 24 MS. ZAMEK: By June 21. j 25 JUDGE KLINE: -- you'll know. But it would seem } ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 i Washington, D.C. 20006 (202) 293-3950

r.____ l i i 557 i 1 that you do know their position on the contentions. 1 -() 2 Before they were admitted, they opposed them. Now that 3 they are admitted, they have not formulated anything. l-4 That's their answer. l l j 5 MS. HODGDON: Excuse me, Judge Kline. That i l i 6 wasn't exactly our answer. I think our answer was, where 7 the Mothers' request knowledge of the Staff's position on l 1 8 these contentions based on their merits, and I was just j 9 saying that, really, contentions don't have merit. That's i 10 not the way we do it. We had an opinion about the i i 11 contentions. We already put that out. I 12 JUDGE KLINE: Yes. l l l '3 MS. HODGDON: When we identify issues, they'll 14 hear about it. Now, we don't have any documents beyond 1 ( j 15 what we've given that are responsive to these questions. 16 JUDGE KLINE: Yes. 17 JUDGE SHON: But you do recognize a duty to 18 supplement this as you form a position on these facts, on l l 19 these issues? l l 20 MS 90DGDON: Well, no. We won't have a i l 21 different . ion on contentions than we've already had. I 22 There will be issues, or something; there won't be l. 23 contentions. I think that goes to another question, which l 24 .we have a duty to supplement, which is: Who are your l-25 witnesses, and what will they say? or something like ANN RILEY & ASSOCIATES, LTD. . Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 l-l

i 558 j 1 that. f 2 So, basically, yes. We will do what we're 3 required to do, of course. j i 4 JUDGE BECHHOEFER: Well, I'm not sure we draw i 5 that conclusion. i 6 (The Judges conferred.) 7 JUDGE KLINE: Well, I understand their position. j 8 JUDGE BECHHOEFER: Oh, I do, too. 9 JUDGE SHON: The real question is: Should'the 10 Staff, if it changes the position they've expressed in-11 response to the contentions, on a particular contention, j 12 if it finds any portion of the contention, or any issue to f 13 merit a different answer, and that: decision is made not 14 within a day or two of some other filings, should they be 15 directed to write a letter to tell people? l ~ 16 JUDGE KLINE: I don't think so. The fundamental I 17 dispute -- 18 JUDGE BECHHOEFER: What? 19 JUDGE KLINE: .I don't think so. i 20 (The Judges conferred.) 21' MS. HODGDON: I'm amazed that this discussion is 22 taking place because it seems to be so simple. I can't l 23 imagine that reasonable minds might differ about this. l l 24 The fact is that we don't have'any documents'that are 25 responsive to this request, asLwe've-already said. If we 'i .l ANN ~RILEY & ASSOCIATES, LTD. l Court Reporters 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 i

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559 1 had documents that were responsive, they would know about i 2 it. I mean, our position is in our documents. They would 3 know about it. So, everybody would know about it. I 4 mean, that's the whole rationale of the rule about { 5 discovery against the staff, and 2790 on documents. So, 6 there's nothing here. { 7 Of course, we will meet our discovery 8 obligations. These things are really separate in a way. 9 This is a motion to compel us to produce documents that we I 10 don't have, so it necessarily must be denied. We don't j 11 have anything that's responsive. j 12 (The Judges conferred.) i l 13 JUDGE BECHHOEFER: The Board has talked over the 14 Mothers For Peace motion to compel Staff. We've decided l 15 not to grant it at this time in view of the j l 16 representations of the Staff has made concerning the i 17 development of the staff position on that type of thing. l 18 (The Judges conferred.) 19 JUDGE BECHHOEFER: We are assuming that l 20 documents, such as have been discussed, would not be j i -21 privileged interagency communications relating.to a 22 proceeding. I mean, I presume that they would not be j 23 protected on-that ground and was not made available. So, _ 24 in so ruling, in ruling that we won't grant the Mothers j i 25 For Peace motion, we are assuming that the Staff.will { l ANN RILEY & ASSOCIATES, LTD. j Court Reporters ] 1612 K Street,-N.W.i Suite ~300 Washington, D.C. 20006 l (202) 293-3950

'l 560 i 1 treat anything like that as just a routines document, I 2 something that, if issued, would get into the public 3 docket Of course, they will get prepared testimony, 4 eventually, assuming we go to hearing on all these issues. l 5 (The Judges conferred.) l l 6 JUDGE KLINE: Are there any other issued related I 7 to discovery that the parties have? j 8 JUDGE BECHHOEFER: Other than scheduling. 9 Because, this whole list I have, I don't want to have to l 10 reread all those motions. f 11 (No response.) 12 JUDGE BECHHOEFER: Why don't we take a 13 ten-minute break We will then come back -- yes? { 14 MS. HODGDON: Yes. I just wanted to say, and it l 15 doesn't have to be on the record. We found the document i 16 that we were looking for, and it is a public document. 1 1 17 Nevertheless, we are mr. king copies of the memorandum of .l 18 agreement. I don't know why that's -- I think it's 19 because it's not an agreement with a federal agency,' f 20 something that's not in the Federal Register, j 1 21 JUDGE BECHHOEFER: Yes. [ 22 MS. HODGDON: Nevertheless it is a private 23 document. 24 JUDGE BECHHOEFER: All right. We'll go off the l 25-record. .f 'I 'i 1007 RILEY. & ASSOCIATES, LTD, Court Reporters 1612 K Street, N.W., Suite 300 'l Washington, D.C. 20006 l (202) 293-3950 l t c

l-; l f 561 i 1 (Whereupon, a brief recess was taken.) i \\ 2 JUDGE BECHHOEFER: Back on the record. l 3 Turning to scheduling, has the Applicant, in i 4 particular, made any determinations with regard to the 5 question we asked just before the lunch hour. That will t 6 obviously affect scheduling. { 7 -MR. REPKA: We have very carefully considered i 8 the proposal of proceeding directly to hearing, as opposed 9 to summary disposition motions. But, on balance, we've l I 10 decided we would like to preserve the option of filing l 11 summary disposition motions, and would like to propose a j l 12 schedule with that presumption in mind. t 13 Basically, based on where we stand today in our 14 agreements on discovery, the last discovery responses that P 15 we will owe are June 18, and the last responses from the 16 Mothers For Peace are June 21. With those dates in mind, 17 we would propose to file summary dispositions motions on 18 any summary disposition motions on July 2, that's a i I 19 Friday. Then, responses to those -- f 20 JUDGE BECHHOEFER: What date was that? l 4 21 MR. REPKA: July 2, 1993. -l 22 JUDGE BECHHOEFER: Two? 23 MR. REPKA: Two. l 24 JUDGE BECHHOEFER: Okay. I just wasn't sure I j l 25 heard two or seven. I wanted to make sure. 1 i ANN RILEY & ASSOCIATES, LTD. l s Court Reporters 1612 K Street, N.W., Suite 300 Washington, D. C.. 20006 (202) 293-3950

562 1 MR. REPKA: That's this year. Responses to 2 those motions by all parties would be in accordance with i 3 the provisions set forth in 10 CFR 2.749. That provides l t 4 various permutations of what might happen as far as i 5 parties responding. Then, using guesstimates from there, j i 6 that, I think, would be reasonable to expect a decision on l 7 summary disposition motions probably around the end of I 8 August / September 1. Obviously, we can't set that in i 9 stone. r f 10 If we then proceed on that assumption, we could j e 11 file any direct testimony on any remaining issues in _j 12 September. Let's say September 15 or 17. That's just a t i 13 fairly arbitrary date, mid September. That would be 14 simultaneous direct testimony of the parties in accordance i 15 with the rules. 16 Also in accordance with the rules, we need 15 j 17 days after the testimony is filed before proceeding to l IP hearing. Then, we would proceed to hearing in ( 19 approximately the first week of October. It looks to me 20 like October 4 might be a good target date, if necessary, 21 if we do get that far. I 22 JUDGE BECHHOEFER: Yes. l t -23 Does the Mothers For Peace have any differing [ t 24 views as to various aspects of this schedule? j 25 MS. ZAMEK: We don't have any problems with the ] I I ANN RILEY & ASSOCIATES, LTD. Court Reporters i 1612 K Street, N.W., Suite 300 { Washington, D.C. 20006 (202) 293-3950 i m a

563-1 schedule. 2 (The Judges conferred.) 3 MR. REPKA: On that issue, Judge Bechhoefer, i 4 under the schedule under 2.749, we did have a schedule i 5 earlier in this case that has slipped because the 6 discovery has taken longer than anticipated. But the 7 earlier schedule was based on summary disposition 8 responses being in accordance with 2.749. We don't see 9 any reason to go further than that. l t i 10 JUDGE BECHHOEFER: I just. wanted to inquire of j i l 11 the Mothers For Peace whether they have the specific time j 12 limits involved. I know that particular changes can be 13 vague, but we hope not to have to be altering the l 14 scheduling everyday or two. So, this would be -- you will 15 get, the Mothers For Peace are likely to get, a big, { j 16 particularly on Contention I, if they get one, it's likely i l-17 to be a very, very thick document. 4 [ 18 MR. REPKA: Well, not that thick. ) 19 JUDGE BECHHOEFER: Well, if you put enough j 20 affidavits in, I've seen them go over a'hundred pages. l 21 They might have to answer that in 20 days, plus service 22 time. 23 MR. WARNER: We might rest on -- 24 JUDGE BECHHOEFER: Pardon? !.~ 25 MR. WARNER:' We might rest on the -- h ANN RILEY & ASSOCIATES, LTD. Court Reporters l 1612.K Street, N.W., Suite 300 l Washington, D.C. 20006 (202) 293-3950 L

1 l 564 l 1 JUDGE BECHHOEFER: I just want to make sure the { ) 2 Mothers have in mind what this schedule would be. 3 MS. ZAMEK: Well, we're not. opposed to it going 4 longer. l 5 JUDGE BECHHOEFER: Pardon? l 6 MS. ZAMEK: It would be-okay if you lengthened j P 7 that period of time. Twenty days does seem quite short. 8 (The Judges conferred.) j i 9 JUDGE BECHHOEFER: If we adopt this schedule, [ l 10 that means, if you get a very thick summary disposition 11 motion, which you're likely to get the first week in July, i 12 you'd have to by, say the last week in July, you'd-have to -l 8 13 either answer, with affidavits, or whatever else you are 14 going to use, or, at least sometime before the time runs 15 out, request an extension. So, just planning your own 16 schedules -- I don't want to approve a schedule that -- I i-17 don't know, if somebody in Congress once called it dead on 18 arrival, or something like that. Let's have one that can-I t j 19 work, at least as far as we know, and, to the extent -- we 20 have authority to change it; but I. don't think we'should 21 be changing it every couple of days or weeks, and hearing 3 ~ 22 arguments one way or the other. 23 MR. REPKA: I would just se the schedule in .j 24 2.749 has obviously been adopted by the. commission with. -l 25 some consideration of the various equities involved in j ANN RILEY & ASSOCIATES, LTD. 2 . Court Reporters l 1612 K Street, N.W., Suite 300 i Washington, D.C. 20006 [ (202) 293-3950 i .?

_ _ _ - ~ _. i 2 3 F i 565 j i I that schedule. This is not the most complex case that has d ) 2 ever been before the NRC. 3 JUDGE BECHHOEFER: I would agree on that. I 4 also think it was always pretty arbitrary, and that it was I i 5 always viewed as subject to change and all that -- which j J 1 6 it is. So, if we adopt that, I just wanted to outline the 7 parameters and make sure any request gets to us at least a l i 8 day before the time runs out. At least that's the goal-f 9 that at least some case law says people should aim for. I think there is any such requirement in the 10 don't i 11 regulations; but it's a good idea to have us, in case we J 4 5 12 have to get a conference call, or something like that,_ we I 13 ought to have a few hours to set it up. 14 So, the schedule is modified to set July 2, but j 15 that involves a holiday, too. Usually people get a day i 16 off. l 17 MR. REPKA: Well, actually, we would file on the l 18 second, and it would be in the mail -- l j 19 JUDGE BECHHOEFER: Pardon? i- ~j 20 MR. REPKA: We would file the second; but, { i I 1 21 obviously, it would be in the mail over the holiday i 1 22 weekend. i s l I j 23 JUDGE BECHHOEFER: Well, you got a July 4th j f l 24 holiday in there, too, i r 1 { 25 MR. REPKA: This'1s my point. It would be in-l I. l. i ANN RILEY & ASSOCIATES, LTD. Court Reporters l i 1612 K Street, N.W., Suite 300 Washington, D.C. 20006 (202) 293-3950 L i

~ i t i 566 1 1 the mail over that holiday. The rules then provide for j ) 2 the 20-day -- 3 JUDGE BECHHOEFER: Well, there would be an 4 extended day there. l t I 5 MR. REPKA: Right. I 6 JUDGE BECHHOEFER: Yes. 7 MR. REPKA: The 27th of July would be -- 8 JUDGE BECHHOEFER: My guess is that July -- .i 9 well, I don't have a -- let's see. Well, my guess is that. l 10 the fifth will be the holiday, but thl-book doesn't say. i 11 When a holiday is over a weekend -- 12 MR. REPKA: Well, if it turns out it's on the .J 13 second, I'm going to change the schedule. q 14 JUDGE.BECHHOEFER: Well, I would say the odds: [ 1 -O - 15 i are for the fifth, but at least this would be -- does the 16. staff happen to know? Is the holiday going to be the -r 17 fifth? { 18 MS. PETERSON: Yes. ~I 19-JUDGE'BECHHOEFER: Okay. So our revised p t .20 schedule, summary disposition motions shall be filed'by l 21 July 2. I guess we don't have to set any other date. 22 We'll just -- except that we'll set a goal that testimony 23 would have to be filed by mid September at some point. ? 24 Now, should we provide-at'all that, if they 1 i e 25 don't use the summary dispositions, does it say we can j ANN RILEY'& ASSOCIATES, LTD. Court Reporters ) 1612 K Street, N.W.,. Suite 300 j Washington, D.C. 20006 j (202) -293-3950 i a 'I

i i 567 I 1 push it up a little? .) 2 (The Judges conferred.) l 1 3 JUDGE BECHHOEFER: We'll put this off or on the j 4 record. But, if you decide not to file summary 5 disposition motions on anything, not on the particular 6 contentions, but on anything, then, we would be prepared i 7 to advance the schedule a bit for filing for our testimony 8 and for hearings. I mean, if we have to -- I know one is q 9 likely to be much longer than others, but I can't second i a 10 guess -- I don't want to second guess that. But, if we 11 get no such motions, we would be prepared to see what kind 12 of an earlier schedule we could work out. -t 13 MR. REPKA: That's acceptable. We would come to j 14 you and propose going directly to hearing and letting you l l 15 know what date we were going to file direct testimony. We } 16 would reevaluate-the schedule the way I'm interpreting ( 17 what you're saying. j r 18 JUDGE BECHHOEFER: Yes. The intervenors then, i t 19 would they develop who their' witnesses are going to be,- 1 t 20 and that kind of thing? We'll have to check vacation t 21 schedules, the availability schedules. I want to give i 22 enough time for all this kind of thing to take place. 23 (The Judges conferred.) i 24 JUDGE BECHHOEFER: We also accept the i i 25 simultaneous filings. We were just checking out that I i ANN RILEY & ASSOCIATES, LTD. Court Reporters 1612 K Street, N.W., Suite 300 l Washington, D.C. 20006 (202) 293-3950 1 i 'I e

l t 568 1 there was no objection to that, although it doesn't have l 2 to go that way. .l-: 3 Does anyone else have anything more that they -l 4 would like us to take up before we leave? Because, while i 5 we'ra here, it's a gcod chance to do certain things. 6 (No response.) l t 7 JUDGE BECHHOEFER: We do remind the parties that f t 8 we hope that these schedules are realistic and that they 9 can be met; and, if they can't be, you'll take the proper i 10 steps to change them. For the most part, this has been j i 11 done; but, we just remind you and again reiterate we would 12 like to find out about -- we, ourselves, would like to r f 13 find out about witnesses as soon as we can. So, as soon 14 as the parties have made up their minds, we would hope to 15 be advised. 2 16 So, with that, we enjoyed having you here. I i 17 hope you all haven't caught my cold. We wish you goodbye 18 and we'll see you in the future. i 19 Off the record. 20 (Whereupon, at 3:15 p.m., the hearing in the I i 21 above-entitled matter was adjourned sine die.) 'i 22 I i 23 4 _24. 25 i ANN RILEY & ASSOCIATES, LTD. 'l Court Reporters l 1612 K Street, N.W., Suite 300 l -Washington, D.C. 20006 j (202) 293-3950 I i l . s

Y REPORTER'S CERTIFICATE This is to certify that the attached proceedings before the United States Nuclear Regulatory Commission in the matter of: NAME OF PROCEEDING: Pacific Gas & Electric Diablo Canyon Units 1& 2 DOCKET NUMBER: 50-275-OLA and 50-323-OLA PLACE OF PROCEEDING: Walnut Creek, CA were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript is a true and accurate record of the foregoing proceedings. O cu Swn/L Official' Reporter G And Riley & Associates, Ltd. ,-}}

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