ML20136A832
| ML20136A832 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/12/1985 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#485-320 79-430-06-OL, 79-430-6-OL, OL, OL-2, NUDOCS 8511200040 | |
| Download: ML20136A832 (193) | |
Text
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ORLGNAL O
U1Nritu STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO:
50-445-OL &
OL-2 50-446-OL &
TEXAS UTILITIED ELECTRIC COMPANY, OL-2 et al.
(Comanche Peak Steam Electric 0-hOL Station, Units 1 and 2) n v
LOCATION:
DALLAS, TEXAS PAGES: 24145 - 24336 DATE:
TUESDAY, NOVEMBER 12, 1985
[$ lg j'l/ g;;,dNL',-~L fuy 6 032A,P ACE-FEDERAL REPORTERS, INC.
Q Official Rewrters 444 Nonh CapitolStreet 8511200040 851112 Washington, D.C. 20001 PDR ADDCK 050 5
(202)347-3 00 T
NATIONWIDE COVERAGE
24145
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UNITED STATES OF AMERICA
()
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
X In the Matter of:
Docket Nos.
50-445-OL & OL-2 TEXAS UTILITIES ELECTRIC COMPANY, 50-446-OL & OL-2 et al.,
(Comanche Peak Steam Electric ASLBP No.
Station, Units 1 and 2) 79-430-06 OL
___________________________________x Dallas County Administration Bldg.
411 Elm Street Dallas, Texas
, -s,
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Tuesday, 12 November 1985 The hearing in the above-entitled matter was convened, pursuant to adjournment, at 8:30 a.m.,
BEFORE:
JUDGE PETER B.
BLOCH, Chairman Atomic Safety and Licensing Board JUDGE KENNETH A.
McCOLLOM, Member
/~T Atomic Safety and Licensing Board v
TATE REPORTING SERVICE, (713) 222-7177
24146 APPEARANCES:
..r
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On behalf of the Applicants:
ROBERT A.
WOOLDRIDGE, Worsham, Forsythe, Sampels & Wooldridge, Thirty-Two Hundred 2001 Bryan Tower Dallas, Texas 75201 R.
K.
GAD, III, and THOMAS G. DIGNAN, JR.,
Ropes & Gray 225 Franklin Street
)-
Boston, Massachusetts 02110 WILLIAM A.
HORRIN Bishop, Liberman, Cook, Purcell & Reynolds 1200 Seventeenth Street, N.W.
Washington, D.C.
20046 On behalf of the Nuclear Regulatory Commission Staff:
LAWRENCE CHANDLER, RICHARD G. BACHMANN STUART TREBY, GARY MIZUNO, TATE REPORTING SERVICE, (713) 222-7177
24147 office of the Executive Legal Director
{
'T United States Nuclear Regulatory Commission Washington, D.
C.
20555 On behalf of the Intervenors:
JUANITA ELLIS, ANTHONY ROISMAN, BILLIE GARDE, Citizens Association for Sound Energy 1426 South Polk Dallas, Texas 75224 1
TATE REPORTING SERVICE, (713) 222-7177
24148 1
PROCEEDINGS
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2 JUDGE BLOCK:
Good morning.
I'm Peter Bloch, 3
Chairman of the two dockets involved in the litigation of l
4 the operating license for the comanche Peak Steam Electric 5
Station, Units 1 and 2.
This conference shall come to 6
order.
7 I have been joined this morning by Dr. McCollom I
8 who is on the docket in the first proceeding, the main 9
docket.
10 Will the parties please identify themselves for 11 the record, starting with Applicants, who are on my right.
12 MR. WOOLDRIDGE:
Mr. Chairman, I'm Bob Wooldridge
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13 and also here for the Applicants are Mr. Reynolds and Mr.
14 Horin from Washington, Dr. Diggan and Gad from Ropes & Gray 15 in Boston and Mr. Roy Lesick from Washington, 1C Mr. Horin will be handling the Docket 2 discovery 17 matters principally and Mr. Gad will be handling the Docket 18 1 interrogatories.
19 JUDGE BLOCH:
For the staff.
20 MR. CHANDLER:
My name is Lawrence Chandler.
21 With me is Stuart Treby.
Also with the staff is Mr.
22 Richard Bachmann and Mr. Gary Mizuno.
23 JUDGE BLOCH:
And for C.A.S.E.
24 MS. ELLIS:
I'm Juanita Ellis, president of
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25 C.A.S.E.
I'll be handling Docket 1.
TATE REPORTING SERVICE, (713) 222-7177
24149 1
MR. ROISMAN:
Anthony Z. Roisman.
I will be O)
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2 representing C.A.S.E. on Docket 2 as will be Ms. Garde.
3 JUDGE BLOCH:
The Chairman had suggested that the 4
way we anticipated proceeding in today's conference, would 5
be to begin going through interrogatories in Docket 1, and 6
then thereafter, have fifteen minutes a party to discuss 7
the principals involved in discovery in Docket 2.
8 Are there any comments on ways of improving the 9
. efficiency of that proposed way of going forward?
10 MR. ROISON:
Mr. Chairman, Mr. Roison.
I think 11 it would be preferable if we began with Docket 2, because 12 there are some generic issues in Docket 2, the resolution
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13 of which may have an influence on a lot of the Docket i 14 questions and the reverse order will not necessarily assist 15 in terms of resolving issues that are pending in Docket 2.
16 So I think we might get through faster if the 17 the Board rules on some of the questions that are pending 18 in Docket 2 or that still seem in the minds of some parties 19 to be pending in Docket 2.
20 JUDGE BLOCH:
Are there objections to Mr.
21 Roisman's suggestion?
22 MR. HORIN:
Mr. Chairman, it was Applicants' 23 understanding, although Mr. Roisman had proposed to address 24 the general principals in Docket 2, that the Boards' order 25 at the end of the conference call last week did not include TATE REPORTING SERVICE, (713) 222-7177
24150 1
that.
We were under the impression that we would be here
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2 to discuss discovery disputes regarding specific requests 3
in Docket 2.
4 JUDGE BLOCH:
The Board called the parties prior 5
to that meeting.
The specific agenda items were not 6
discussed during that telephone conference, but I didn't 7
say anything in the course of the meeting that I thought 8
altered what we talked about in terms of agenda.
9 The one thing that altered in my mind, was that 10 the parties made it clear that they had no desire to 11 address the Boards' order on statistical inference as far 12 as CPRT sampling.
Q 13 MR. HORIN:
It was our understanding that there 14 was a discovery conference and*that's what we're here to 15 discuss.
I might point out that I attempted to inform Mr.
16 Roisman this morning of several requests which it was our 17 position we intended to provide the responses to; Mr.
18 Roisman did not express an interest in discussing that.
19 It might be helpful if I informed the Board 20 before we start, as to Applicants' position on several of 21 the requests that we intend to provide responses to at thig 22 time.
t 23 JUDGE BLOCH:
Seems to me to be a reasonable way 24 to proceed.
We could start with Applicants stating what 25 they're going to respond to and have C.A.S.E. make its TATE REPORTING SERVICE, (713) 222-7177
24151 1
argument about the contested matters, followed by i /s'()
2 Applicants and then Staff.
3 Mr. Horin, please.
4 MR. HORIN:
Mr. Chairman, Applicants have 5
evaluated Mr. Roisman's requests, those set forth in the 6
September 4th, 1985 Request for Production of Documents.
7 And we have identified several of those requests to which 8
we intend to respond consistent with the Boards' recent 9
memoranda.
10 By providing these requests, we do not intend to 11 waive objections that we might pose at a later time as to 12 the relevance of the material to be produced, in either or kl
)
13 both dockets, or acquiesce to any procedure or Board ruling 14 as to which the petition for directive certification is 15 directed.
16 The specific requests to which we intend to 17 provide the responses, and I'll give the subject matter of 18 those as I go along, with respect to request 1, which deals 19 with management and job responsibility changes.
Applicants 20 1.ntend to provide responses to Items A through D, Item E, 21 except to the extent it addresses or requests information 22 with respect to witnesses before the Department of Labor; 23 Items r, H and I; Applicants intend to provide response to
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Question 3 which deals with speaches to the work force 24 25 regarding organization and management; Applicants intend to TATE REPORTING SERVICE, (713) 222-7177
24152 1
respond to Request 4 which deals with documents provided to Os 2
the work force; Applicants intend to provide a response to
( _)
3 Request 6, Items A through C, which deals with the safe 4
Team program; Applicants intend to respond to Request 8, 5
which deals with documentation responsive to the NRC's 6
technical review team evaluations; Applicants also intend 7
to respond to Request 9 which deals with Signa documents.
8 I should note that with respect to both 8 and 9, 9
to the extent that CPRT material is involved, production 10 would be in a manner agreed to hopefully later today with 11 respect to the Docket i requests.
12 Applicants intend to respond to Item 10 which is kJ()
13 labeled Contractor Information, except for Item 10-G; 14 Applicants intend to respond to Item 14, to the extent CPRT 15 material would be involved, and I refer you back to 16 Requests 8 and 9 and my comments thereon.
17 JUDGE BLOCH:
You said 10 -- except 10-G and then 18 you said something that I missed.
19 JUDGE MC COLLOM:
14.
20 MR. HORIN:
14.
21 MR. HORIN:
Mr. Chairman, with respect to -- I 22 should make it 14-A.
23 JUDGE BLOCH:
Except for 14-A.
24 MR. HORIN:
No, 14-A will be responded to.
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25 JUDGE BLOCH:
Mr. Horin, have you completed?
TATE REPORTING SERVICE, (713) 222-7177
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MR. HORIN:
Yes, I've finished.
Thank you.
O)
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2 JUDGE BLOCH:
Mr. Roisman, we're missing a copy 3
of the interrogatory.
Do you happen to have a copy?
4 MS. GARDE:
Yes.
5 JUDGE BLOCH:
We need a copy of the interrogatory 6
request.
7 MR. GAD:
Here's a copy.
8 MR. DIGGINS:
There's some notes on it that you 9
can ignore.
10 MR. GAD:
I trust Your Honor will be able to read 11 them anyway.
12 JUDGE BLOCH:
Mr. Roisman, fifteen minutes.
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13 Do you need time to digest?
14 MR. ROISMAN:
Well, if you remember, Mr.
15 Chairman, during the conference call last week, I asked Mr.
16 Horin, or the Applicants in general, to provide what they 17 just provided by noon yesterday in writing so that I could 13 digest.
I assume that this tactic, which is not atypical 19 of the Applicants' way of dealing with discovery, is to 20 wait until the absolute deadline and then give us the 21 answer that we needed.
22 Now obviously, I'm going to have to address the 23 issues as though this has not occurred, since there is 24 hardly time to digest it all.
I spent the time between
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25 noon yesterday and this morning preparing on the assumption TATE REPORTING SERVICE, (713) 222-7177
24154 1
that they would continue to stand by the objections which
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2 they had filed in their opposition to this pending 3
discovery request.
4 The only change that I'm going to make is that 5
I'm going to put as No 1 on my agenda that the Board 6
seriously look at Rule 37 of the r deral Rules of Civil 7
Procedure and decide whether or not the time has begun to 8
begin to talk about sanctions against the Applicants in 9
this discovery.
10 This is something Mr. Horin has done this morning 11 which couldn't possibly have required him to wait until 12 this morning, which is the reason why when he thrust into
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13 my hand the handwritten copy that he read from there, I 14 said I would not accept it.
15 I believe that the way to proceed in these 16 proceedings for parties to respond to written requests.
17 Most of these requests, by the way, that he has offered to 18 respond to really go all the way back to the May 28th 19 informal discovery request; they're only a handfull of 20 questions that were asked in the September list that were 21 not merely restating the ones which we had previously 22 asked.
23 So what we're getting in November is what we 24 asked for in May.
That seems to me to be unreasonable and
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25 that that process makes the hearing substantially more TATE REPORTING SERVICE, (713) 222-7177 i
24155 1
complicated, difficult, unwieldy and unfair from the 1
(70 2
9ereective or c ^ s =.
3 JUDGE BLOCH:
May I ask why we had to come to 4
Dallas before we could get voluntary responses to 5
interrogatories?
6 MR. WOOLDRIDGE:
Mr. Chairman, we met yesterday 7
afternoon for over two hours with Ms. Ellis.
During that 8
meeting, which I believe both parties recognized as 9
productive, we discussed the opportunity to also talk with 10 Mr. Roisman about these matters, either last night at a 11 time of their choosing or this morning if they would prefer 12 to, and I left Ms. Ellis my phone number and told her she 13 could call me at any time and we would be glad to meet and 14 discuss any of these issues..
15 I do not think there's any surprise here; this is 16 a matter of things that fall in negotiations; we have 17 offered without waiving our legal positions to go ahead and 18 respond to, if there is any prejudice by reason of that, I 19 do not think it is worth of the kind of claims Mr. Roisman 20 makes against us in that connection and I think it would be 21 entirely appropriate for us to go ahead as this Board had 22 originally scheduled and addressed the Docket 1 23 interrogatories first and that.will give Mr. Roisman the 24 time he needs to determine which of the interrogatories --
25 the requests to produce remain for consideration by this TATE REPORTING SERVICE, (713) 222-7177
24156 1
Board.
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2 We still have issues to be resolved in discovery 3
by this Board in both dockets.
4 JUDGE BLOCH:
The Board is pleased that you have 5
decided to exchange information voluntarily; we would 6
prefer that it were done quickly and without the need to 7
schedule hearings lefore that kind of cooperation were 8
forthcoming.
I understand Mr. Roisman's problem today.
9 There was plenty of time to provide information so that he 10 wouldn't have his difficulty.
11 MR. WOOLDRIDGE:
Your Honor, we have had several 12 Board orders very recently.
We have had an Appeals Board
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13 order very recently.
As the Board knows, we requested that 14 we not have this prehearing at this time for that reason.
15 The attorneys for the Applicant were not able to 16 get together until yesterday to discuss the status of 17 discovery insofar as it relates to those actions that were 18 taken by this Board and the Appeals Board.
I think we were 19 acting properly.
20 JUDGE BLOCH:
Mr. Roisman, would you like to 21 accept Applicants' suggestion that we start with Docket 17.
22 I don't see any reason to take argument on interrogatories 23 that are now responded to.
I understand your point about
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wanting to have prompt responses without having to schedule 24 25 hearing dates.
I also understand that there was some TATE REPORTING SERVICE, (713) 222-7177
24157 1
relationship, at least between the directed certification 2
motion which the Applicants filed and their willingness to 3
respond at this time, and their response in that way is 4
fairly prompt.
5 MR. ROISMAN:
Well, Mr. Chairman, I think we 6
could still go ahead on Docket 2.
I will make sure that I 7
do not reference questions which the Applicants have 8
indicated they've answered, although I would note that 9
they've not told us when they will answer.
And I believe 10 that it's appropriate that those answers be within seven 11 days.
I don't think there's any 30 day -- Applicants 12 cannot start the clock running from the day that they
)
13 finally realize that there are no more options open to 14 them.
That would only award them for having drug their 15 heals up until now.
16 Secondly, they haven't told us how they're going 17 to answer them.
Are they going to make them available in 18 Dallas which is hardly convenient to us in Docket 27 What 19 do they mean when they talk about coordination with Docket 20 1 with respect to answering the questions of 8 and 9?
Are 21 they abandoning or still holding on to their position that.
22 all CPRT related documents that they will produce will only 23 be produced when the entire ISAP package is completed?
24 JUDGE BLOCH:
They're not abandoning that.
I
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25 heard them clearly.
TATE REPORTING SERVICE, (713) 222-7177
24158 1
MR. ROISMAN:
All right.
Then we obviously still Oh 2
have a great deal to argue about.
I don't want to beat a 3
dead horse, but I don't think this horse is dead.
I think 4
we should work on this question of the Applicants' 5
response.
6 Mr. Wooldridge had plenty of time to discuss with 7
Ms. Garde when they were down here last week discovery.
8 Mr. Horin called me up on the telephone last week to
~
9 discuss discovery, and at no time in those discussion did 10 they make any effort to indicate that they were going to 11 answer these questions or which questions they would 12 answer.
13 That would have been the simple thing for them to 14 do and they apparently were trying to work out an 15 arrangement which we did not agree with, that they would 16 answer certain questions after the Appeal Board ruled.
17 So they must have already had in their mind what 18 questions they would answer if they lost the directed 19 certification motion.
That notwithstanding, in the 20 telephone conversation that we had the other day, they 21 argued the second directed certification motion was the 22 crucial document, that that was the one that delayed their 23 response.
24 So I cannot take it at face value and I know this 25 Board does not like us to argue like that, but I don't know TATE REPORTING SERVICE, (713) 222-7177
24159 1
what the Board wants me to do in the face of Applicants' O)
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2 counsel who makes representations which are demonstrably 3
false on the record in this case 4
There's no sanction unless this Board orders one.
5 I have no sanction against Mr. Wooldridge personally.
I 6
can't take him to task for telling you that he was not 7
available on Friday, Saturday, Sunday and until noon on 8
Monday which is when I said I would be available, to talk 9
to them, to see something in writing from them.
I cannot 10 accept that.
All those lawyers over there, it's not a real 11 complicated set of questions to answer this discovery.
12 JUDGE BLOCH:
Mr. Roisman, I understand that J
)
13 you're completely upset about the situation; that you're 14 t;nsidering filing for sanctions.
If you'ce going to file 15 for sanctions, I want a written motion on it.
I want you 16 to consider that before you do it if you feel it's 17 appropriate.
18 MR. ROISMAN:
I will.
19 JUDGE BLOCH:
And we won't rule on sanction 20 today.
So this matter of delay in responding is now over 21 with for this hearing.
22 MR. ROISMAN:
As to the ones they haven't 23 responded to, not as to the others.
24 JUDGE BLOCH:
That is correct.
Mr. Horin, there
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25 was a question which is the timetable for responding.
Can TATE REPORTING SERVICE, (713) 222-7177
24160 1
you address that?
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8 2
MR. HORIN:
Applicants intend to diligently 3
pursue providing responses.
We would certainly hope that 4
we would do so within the time limits provided by the Rules 5
of Practice.
6 As the Board is aware, all parties have attempted 7
to do that and we would keep the other parties apprized as 8
we have done diligently with Ms. Ellis of the status of our l
9 review.
10 JUDGE BLOCH:
The time limit provided in the 11 Rules of Practice is from the date of filing.
Can't do 12 that.
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13 MR. HORIN:
We would propose -- we would propose 14 that the time limit begin to run from this date.
I would 15 point out that Applicants have twice provided the responses 16 to these requests.
Once in August, once at the beginning l
17
.of October; we had numerous objections 18 JUDGE BLOCH:
Again, I'm not asking for defense, i
19 I just want to know when you're going to respond to this 20 question.
Thirty' days?
21 MR. HOR.IN:
Thirty days.
l 22 JUDGE BLOCH:
Okay.
And you will attempt to beat 23 that time period where possible?
24 MR. HORIN:
Of course.
25 JUDGE BLOCH:
Okay.
Now, Mr. Roisman, you would TATE REPORTING SERVICE, (713) 222-7177 1
24161 1
like to speak for fifteen minutes on the Docket 2 f(i) 2 interrogatories?
3 MR. ROIS!!AN:
Yes.
Let me be clear that this is 4
not an attempt to discuss issues unrelated to discovery.
5 At least in that respect, I agree with Mr. Horin.
But the 6
point is that many of the objections that the Applicants 7
have raised with respect to discovery go to their 8
perception of what are the issues in Docket 2.
So we~can't 9
understand whether a question should be answered or not, 10 unless we understand and have an agreement as to what the 11 issues are.
12 So that it is in that context that we discuss the 13 issues in Docket 2.
14 JUDGE BLOCH:
Before we begin on that, I am 15 interested, Mr. Horin, for purpose of the findings of scope 16 of Docket 2, the Board has said some things from time to 17 time about scope.
I assume that the Applicants are 18 accepting what the Board has said about the scope of Docket 19 2.
Is that correct?
20 MR. HORIN:
That's correct, for purposes of 21 responding to these requests, Applicants are not 22 distinguishing between the two dockets.
23 JUDGE BLOCH:
Okay.
It's not just that, it's 24 that we have spoken on the meaning of harassment and
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25 intimidation, also; and some of the arguments that the TATE REPORTING SERVICE, (713) 222-7177
24162 i
1 intervenors have made have seemed to us to be within the lh) j(
2 scope of a permissable argument for harassment and 3
intimidation having to do with the overall context in which 4
the conduct occurs and things of that nature.
5 MR. WOOLDRIDGE:
Your Honor, we had not planned 6
or intended to address what are the issues in either of the 7
dockets.
We thought that that matter was resolved, at' l
8 least insofar as discovery was concerned, by these Boards' 9
rulings.
1 10 JUDGE BLOCH:
So there is no scope argument.
l 11 MR. WOOLDRIDGE:
I don't believe scope is before 12 us this morning.
! (]
)
13 MR. ROISMAN:
Mr. Chairman, it seems to me that 14 the scope question remains, just in a brief look at the 15 questions which the Applicants are not answering; that 16 their principal objections really the only ones that aren't 17 already argued -- well, of course in our position, in view 18 they have all been answered by this Board in numerous 19 orders prior to this time.
l 20 But the only ones which even have color of 21 substance have to do with the issue of the, their view of 22 the scope of the Docket 2 in the proceeding and I think 23 it's important for C.A.S.E.
to set out yet again how we 24 view that and how we think this Board has already clearly
- G 25 ruled that our view of the scope of Docket 2 is correct as TATE REPORTING SERVICE, (713) 222-7177
24163 i
it relates specifically to the discovery matters.
gy'(J 2
JUDGE BLOCH:
Okay.
I think we ought to clarify 3
that.
4 You're saying there is no relevance objection to 5
any of the interrogatories?
6 MR. WOOLDRIDGE:
Your Honor, there's no objection 1
7 on the basis that it is not relevant to Docket 2.
There 8
are some objections that it is not relevant to Contention 9
5.
In other words, either of the two dockets --
10 JUDGE BLOCH:
The question I'm asking --
11 MR. WOOLDRIDGE:
We are not arguing that it 12 properly belongs in Docket i versus Docket 2 discovery.
lh 13 JUDGE BLOCH:
And the question I'm asking is I
14 whether the objection on relevance with respect to Docket 2 15 accepts what the Board has said about the scope of Docket 2 16 as an interpretation of what's pending with respect to 17 Contention 57 18 MR. WOOLDRIDGE:
Your Honor, we do not fully 19 understand what the Board believes to be the issues in I
But we re not here to discuss that this morning, 20 Docket 2.
21 because it is our position that so far as discovery is 22 concerned and these specific matters, that we're not going 23 to get into the question of where an issue properly 24 belongs, whether it's in Docket 1 or Docket 2.
25 JUDGC BLOCH:
But there is some area where there TATE REPORTING SERVICE, (713) 222-7177
24164 1
could be misunderstanding when the Board believes it's in
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2 Docket 2 and you believe it's not under contention 5 at 3
all.
4 MR. WOOLDRIDGE:
There may be some of those and 5
certainly we need to address those this morning.
6 JUDGE BLOCH:
And what I want to ask is whether 7
in deciding it's not relevant to contention 5, the 8
Applicants have accepted what the Board has said about 9
Docket 2.
10 MR. WOOLDRIDGE:
Yes.
11 JUDGE BLOCH:
Mr. Roisman?
12 MR. ROISMAN:
Mr. Chairman, let's start with f)k y) 13 that.
14 JUDGE BLOCH:
I'm going to start the fifteen 15 minutes now, I'm going to try not to interrupt and I'm 16 requesting to ask at the Applicants not interrupt.
17 MR. ROISMAN:
Among the questions which the 18 Applicants are not answering is request No. 12, the MAC 19 Report; Request No. 13, T-shirt incident; the request No.
20 14-B related to the production of all documents developed 21 since 1 July 1984 regarding the liner plate QA/QC 22 breakdown; Request No. 15, paint coatings QA/QC; Request 23 No. 16, harassment and intimidation allegations, both those s,
24 that have occurred before and those that have occurred
\\J.J 25 subsequent to June 30, 1984; No. 16, that relate to TATE REPORTING SERVICE, (713) 222-7177
24165 1
harassment and intimidation of all documents both before O) 1 2
and after the June 30, 1984 cutoff date.
3 One question which relates to the job evaluations 4
performance ratings, letters of representation and other 5
documents generated with regard to all the prior QA/QC 6
management that's no longer with th'e company, people who 7
are key witnesses to the Applicants during the course of 8
the Docket 2 proceedings; you know, when one reads over the 9
Applicants' objections in October 9, 1985, with the 10 exception of the last category that I mentioned, the 11 principle objections the Applicants raise are not only that 12 these are not issues that are in the whole case; they are k) 13 at best claims that they are issues that are not in 14 Docket 2.
15 That's directly contrary to Mr. Wooldridge's 16 statement and I assume has to arise from a continued 17 misperception of what Docket 2 and the whole case are about 18 on the QA/QC issue.
19 It seems to us that it's very simple and straight 20 forward.
We begin with a C.A.S.E.
contention that the 21 QA/QC at this plant broke down; that the breakdown was 22 sufficiently broad that it made the QA/QC program a no 23 longer reliable basis to determine whether this plant had 24
-or had not been built properly.
25 Now, that then divides into two possible issues.
TATE REPORTING SERVICE, (713) 222-7177
24166
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1 One is that if we prove that, the case is over.
That
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2 absent a 2.275 -- 2.785 request for an exemption from 3
Appendix B, there is no option on Appendix B, the CPRT, the 4
SRT, the CAP, are not covered there.
And that arguabily 5
it's all over, they have to go for a 758 and it changed the 6
rules.
7 Alternatively, and the parties have been 8
operating on this alternative assumption as well, is that 9
there is an automatic opportunity to substitute for the 10 QA/QC with some other program, which begins with something 11 like the CPRT, which is the Applicants' version of what we 12 think should be a one,hundred percent re-inspection.
k[)
13 Point one of contention under that second line of 14 where the case could go is does it have to be a hundred 15 percent, does it have to be 80, 60 40, 10, samples, 16 whatever; this Board ruled on that question.
17 The Board has ruled on several occasions.
It 18 ruled, for instance, that in the October 29th, 1985, it 19 said in effect that the Applicant cannot avoid litigating l
20 the past dA/QC program and still rely on it in any way.
l 21 In short, unless the Applicants' are going to 22 substitute new inspections for each and every component --
23 JUDGE BLOCH:
We're having a noise interference 24 problem.
25 (Discussion off the record.)
TATE REPORTING SERVICE, (713) 222-7177
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MR. ROISMAN:
We have a situation in which this O)
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2 Board has already said in effect that if you want to rely 3
on the existence of a prior inspection, then you remain 4
open for discovery and litigation on whether or not your 5
earlier program was an adequate program.
6 And the obverse of that, which we submited in our 7
filing that the Board was addressing in part in its order 8
of October the -- excuse me, August the 29th, was that the 9
case does not become mute in Docket 2 until the Applicants 10 concede the validity of the position which C.A.S.E.
is 11 taking in Docket 2.
12 From that, a number of things followed that seem k) 13 to me should be very clear here.
One of those is that 14 everything about the CPRT's investigation of past events is 15 directly relevant to Docket 2, because the CPRT is the 16 Applicants' version of the TRT, and the TRT was the Staffs' 17 version of the allegers.
And it's all one piece of the 18 same puzzle.
19 As the Board will remember, not we, but 20 Applicants introduced into this case in their original 21 filing in May of 1984, in Dockets 2, the issue if an 22 individual claims he was harrassed or intimidated, the 23 Applicants may defend that allegation among other things by 24 saying he deserved it, he was wrong, thus we have Mr.
)
25 {
t stkins, not us, bringing the first liner plate documents TATE REPORTING SERVICE, (713) 222-7177
24168 1
to this proceeding, in an attempt to demonstrate that Mrs.
Ct()
2 Newmire was wrong in her allegations regarding the liner 3
plate.
4 We had Mr. Davidson spend the better part, or the 5
worse part of two days, cross-examining Witness F to find 6
out the substantive basis for Witness F's allegations which 7
formed the reason that he was challenged by the 8
supervisors.
9 We had the QA/QC with regard to paint coatings, 10 we were in exactly the same position.
Not we, Applicants 11 brought into this case the issue of the correctness or 12 incorrectness of the allegation.
()
13 Now, that TRT picked up on that and th_e CPRT has 14 picked up on that.
If Qe are to continue to litigate 15 Docket 2, we're entitled to know every thing the Applicant 16 is learning about failures of past programs to detect 17 deficiencies.
Does it matter for purposes of Docket 2 that 18 today, in 1985, an engineer at Gibbs & Hill is able to say, 19 "Well, it doesn't matter that the QA/QC inspector missed 20 that deficiency," no.
That has no relevance in Docket 2, 21 because in Docket 2, the issue is at the time the inspector.
22 was to have looked at that, did the inspector miss or find 23 a deficiency which was a deficiency at that time.
)
Today's explanation for why it's not a deficiency 24 25 doesn't matter.
So the liner plate matters are still very TATE REPORTING SERVICE, (713) 222-7177
24169 1
relevant, not to mention the fact that no ruling has been
(_j 2
handed down by this Board that the Applicants' explanation 3
that liner plates don't have safety significance in the 4
areas where the deficiencies were found, it has never been 5
made made, and similarly on point coatings.
6 The Staff may grant an exception but the Board 7
must rule whether the exception is valid.
So the paint 8
coatings remains a live issue but that remains a live issue 9
in Docket 1.
10 In Docket 2, what we are interested in is the 11 question what was it that caused your people to miss all 12 those deficiencies at a time when they were required to 13 find them.
That's a Docket 2 question.
When you look at 14 it from that context, it's clear why the questions which we 15
.have asked are not only relevant to the entire case but are 16 clearly relevant in Docket 2.
17 Now, there is one class of questions on which 18 there is admittedly an ambiguity.
And while I confess that 19 we have operated on the assumption -- it is just that, an
,:20 assumption; there'has not been a clear unequivical ruling 21 of the Board, and that is that the June 30, 1984 cutoff 22 date for harrassment and intimidation events has been 23 defacto eliminated.
24 If it has not been and the Board tells us that we
)
25 need to formally request it, we will file an appropriate TATE REPORTING SERVICE, (713) 222-7177 e
--.r-
24170 1
piece of paper with regard to that.
That would open up, as P()
2 we believe it should, all of the safe team files, at least 3
under the argument that the safe team files, their current 4
investigation of all allegations, would be relevant to the j
5 ongoing existence of harassment and intimidation at the 6
site.
7 However, we submit that even if the June 30th 8
date were to remain in place, the safe team documents which 9
the Applicants, in failing to respond to Request 6-D, have 10 basically disputed the discovery request that C.A.S.E. made 11 since D is a request for the output of the safe team and A, 12 B and C relate to the creation of the safe team.
j) 13 Even the output of the safe time is relevant to 14 the issues with a June 30, '84 cutoff date.
You will 15 remember the Applicants cited an eight point program, which 16 one point was a hot line and second point is an ombudsman.
17 And the safe team is the substitute for those.
Presumably the Applicants believe, at least it's 18 19 a reasonable inference for purposes of the discovery that 20 they needed something better than what tney had before.
21 One of the issues in our case was that before 22 they had the eight point program, they had nothing that, 23 when they added in the hot line and the ombudsman, they had 24 only slightly more than nothing and the safe team's
)
25 existance and the scope of what it finds as compared to the TATE REPORTING SERVICE, (713) 222-7177
24171 1
conditions which were found by the ombudsman and the hot
(_)
2 line is a very important indicator of how effective those 3
programs were.
4 In 1985, when the safe team comes into existance, 5
we are told that we have a reformed company; the people at 6
whom we have pointed the finger of accusation are gone and 7
new people are there.
8 JUDGE BLOCH:
So at the very least, you want safe 9
team documents relating to incidents that occurred before 10 June 30th.
11 MR. ROISMAN:
Those we already have.
The 12 Applicants have conceded that.
k_ )
13 We believe that if the safe team in 1985 is 14 finding harassment and intimidation or claims that people 15 are not being able to fully report safety problems or 16 problems are cropping up that people cannot deal with 17 properly within regular management that they deal with, 18 their supervisors, the craft that they work with, that that l
19 is an important piece of evidence reflecting on the 20 inadequacy of the programs that were run in 1983 and '84, l
l 21 which programs were, by the very existence of the safe I
22 team, less thorough, less complete and less effective.
l l
23 So if in a good year, in the year when they have l
24 found religion, so to speak, the safe team is finding
)
25 complaints and processing them at ten times the rate as the TATE REPORTING SERVICE, (713) 222-7177 l
24172 1
1 hot line and the ombudsman, that supports -- at least the o,)
(
2 inference is there that we are correct that the ombudsman 3
and the hot line were totally ineffective and thus the 4
Applicants can't have an effective QA/QC safety valve in 5
existence even after it put the hot line and the ombudsman 6
in 7
JUDGE BLOCH:
You consider it relevant to the 8
defense the Applicants posed about those incidents?
9 MR. ROISMAN:
Absolutely.
Absolutely and that 10 would be true whether the June 30, '84 cutoff date exists 11 or not.
12 With respect to the MAC report, the Applicants
~( /m
((,)
13 make the argument, at least in their objections here which 14 I assume are still the same objections.
15 JUDGE BLOCH:
Mr. Roisman, in terms of the cutoff 16 which was set for the hearing, I take it we could keep that 17 cutoff in place for now and you still might be entitled to 18 discovery with respect to items and could lead to move 19 later to change your cutoff.
20 MR. ROISMAN:
That's correct.
I mean our 21 position is that if the date remained there, we'd still be.
22 entitled to the discovery and --
23 JUDGE BLOCH:
How about the' cutoff on crafts 24 where we limited intimidation to QC --
k'_/'_Nk/
25 MR. ROISMAN:
I believe, I agree that we have not TATE REPORTING SERVICE, (713) 222-7177
24173 1
put that to the Board that the time is now right for O) 1 2
lifting a number of limitations on the generic harassment 3
and intimidation; probably the most telling piece of that 4
may be the recent report of the harassment and intimidation 5
panel and more importantly the underlying report, September 6
'85, by EG&G, which begins to talk about a management 7
attitude that existed at the plant site; that management 8
attitude, at least as those reports describe it, looked 9
like something which would actually affect the design 10 process, the construction process and the QA/QC process.
11 But we do not have before you a formal request to lift that 12 and I believe that we should have to file that and intend k
)
13 to do that in the near future.
14 JUDGE BLOCH:
Some of your interrogatories will 15 be affected by that, though, wouldn't they?
16 MR. ROISMAN:
Yeah, I think that in the discovery 17 area, we are operating not only on the relevance standard 18 by also on the may-lead-te-relevant, and it seems to us 19 that if you're asking about harassment and intimidation of 20 crafts, you may be finding information that will lead you 21 to perpetrators that are in the chain that QA/QC is equally.
22 affected by.
23 So it's a little looser.
But yes, I would agree 24 that if the Board were to rule that construction harassment
)
25 and intimidation is now a hearing issue in Docket 2, that TATE REPORTING SERVICE, (713) 222-7177
24174 1
that would make a number of the discovery requests that q,s()
2 we've put forward and a number of those relating, for 3
instance, to document control, related to questions, 4
obviously related in Docket 2, now they are arguabily 5
relevant in Docket 2.
6 JUDGE BLOCH:
We haven't seen the report of the 7
harrassment and intimidation panel yet.
I haven't seen it.
8 Is that going to be relevant to our decisions today?
9 MR. ROISMAN:
I don't -- I don't think it is.
I 10 mean it's evidentiary; it has a conclusion in it that 11 confirms the conclusion which was reached by the EG&G 12 people in September of
'84, that there is not a climate of
+=
(/)
13 intimidation at the plant; it has subsidiary determinations 14 in there by the various researchers and in the general 15 report, which in our judgment strongly suggests that there 16 was a climate of intimidation there and very little to 17 explain the linkage between the two.
That's a point which 18 will be decided at some fit date in the hearings, but I 19 don't know that it will bear directly on the questions 20 before the Board today.
21 JUDGE BLOCH:
You have four more minutes.
22 MR. ROISMAN:
Let me discuss just briefly sort of 23 then the process of discovery.
A class of answers which we r'
24 have gotten to discovery requests are that Applicants will Np1J 25 make the material available in Docket 1.
Let there not be TATE REPORTING SERVICE, (713) 222-7177
1 24175 1
any confusion on this.
We do not receive filings in Docket
(,)
2 1, we do not get filings from the Applicants.
3 JUDGE BLOCH:
I didn't hear them to say that.
4 What I heard them to say was that they wanted to make the 5
information available in the way they said in Docket 1, 6
that they'll be discussing later which is to wait until 7
different packets are finished.
8 HR. ROISMAN:
All right.
Well, then let me turn 9
to that second point.
10 Assuming that that is correct, this Board ruled 11 in the october 31, 1985 order, that documents sought which 12 are not yet in existence, that the Applicants should not
)
13 have an objection not in existence, but rather that they 14 shculd produce the documents when chey come into existence.
15 They also ruled all the way back into August 16 16th of 1985, that the Applicants should be obligated to 17 document ongoing work and that they should not be allowed 18 to delay that unless they in effect are able to establish 19 that it is unduly burdensome for them to provide that.
20 Now, they've never really spelled out in any 21 detail in this proceeding the basis for their refusal to 22 provide the CPRT material as it is being generated and what 23 I mean is a person goes out to.look at a particular piece f~ ~S 24 of equipment at the plant and makes some notes.
We want Q()
25 those notes.
TATE REPORTING SERVICE, (713) 222-7177
24176 1
He comes back and those notes are then turned 2
into a short report; we want that report.
3 The report then goes to somebody else who makes a 4
disposition of the item included in the report; we want 5
that disposition.
6 And somewhere way down the line, 20 or 50 or a 7
hundred of those are all drawn into one place and in some 8
macro proceeding, the Applicant's complete all the work of 9
which that one person went out to look at, that one thing 10 he's working on.
11 They tell us "You've got to wait until that's all 12 done before you see anything," and it's not clear that
(
)
13 we'll ever see the notes, according to their definition of 14 what we're entitled to see.
We submit two things.
No. 1, 15 that it is essential for us to be up to date on this case, 16 that we know what's going on.
17 Number two, that we do not accept the proposition 18 that somehow or other there is a single copy of the 19 document that we are interested in in existence, in the 20 hands of someone who cannot let go of it for it to be 21 Xeroxed and therefore that we would disruptive of the 22 process.
23 We find it incredible to believe that Applicants 24 are not all ready for their own legitimate purposes, making g
25 duplicates of this material for the original person who TATE REPORTING SERVICE, (713) 222-7177 i
24177 1
produced it, for the first supervisor, for Applicants' O~)
(
2 lawyers, and all we are asking is when you pop it into the 3
Xerox machine, make a copy, if you wish, serve it on Mr.
4 Noonan and let us have availability of it through them.
5 Let us and the Staff take a look at it.
6 I'm not trying to ask the Applicants to make 40 7
copies of something.
But if we are foreclosed on our 8
ability to see the information as it's being generated, our 9
ability to feed back into the process, to participate 10 meaningfully in the meetings which the Applicant and the 11 Staff are holding, which we and the Staff are holding,'the 12 adequacy of the CPRT, the adequacy of the SRT, the adequacy
. (~~'f~
L _)
13 of the CAP is truly limited.
14 We think that it is a tremendous disadvantage to 15 C.A.S.E.
and no amount of time -- and it is unrealistic to 16 believe that we'll ever get the time we should really get, 17 we're not going to be given a year after the ISAPS are out 18 to digest everything; we'll get it and it will be measured 19 in weeks or months at best; we know that.
That's the 20 history of NRC licensing proceedings.
21 So let us learn while everybody else is 22 learning and that way we could be effective.
23 JUDGE BLOCH:
Mr. Roisman, you have exceed your N[J~}
24 time.
Could you briefly summarize the points on which you 25 seek rulings?
TATE REPORTING SERVICE, (713) 222-7177
l 24178 1
1 MR. ROISMAN:
Yes.
No. 1, we wanted a clear and
()
(
2 unequivical ruling that the Applicants must answer the 3
questions which we have requested answers to that they have 4
not agreed to answer this morning; that their objections 5
are, at root, that it was burdensome without' meeting the 6
Boards' limitation on how they may use the burdensome 7
objection, which is that they must use it with great detail 8
and must try to answer everything possible.
That's in your 9
order of October 31st of '85.
10 No. 2, that the objections with regard to 11 relevance, that Mr. Wooldridge should be held to his 12 scatements this morning, that only objections that indicate
( ))
13 that they are not relevant in the whole case could be 14 accepted and not relevant in Docket 2 and then in assessing i
15 what is relevant in the whole case that the Board would 16 have knowledge that, No.
1, what the safe team is learning 17 today is relevant in the case and should be produced 18 immediately.
l l
19 No. 2, that the investigations of such notorious l
20 events as the T-shirt incident, the liner plates, the MAC 21 report, the paint coatings programs, that any documentation 22 that's being generated with respect to those by 23 consultants, contractors or the Applicants themselves, are 24 discoverable.
l 25 No. 3, that with regard to the past management, TATE REPORTING SERVICE, (713) 222-7177
24179 1
everything in the Applicants' files that bears on their f_s 1
3()
2 reasons for departure and the evaluation of their job by 3
the Applicants, by the Applicants' bosses, and by all other 4
personnel are relevant in this proceeding, and that we are 5
entitled to look at those both to test the credibility of 6
those former witnesses upon whom Applicants rely and 7
secondly to find out whether or not Applicants are now at 8
least internally admitting that these people did engage in 9
conduct which was contrary to the Nuclear Regulatory 10 Commission's requirements.
11 And finally, that they should be required to 12 produce ongoinq discovery with regard to the CPRT and other kd) 13 site investigations designed to disclose at the earliest 14 moment, whenever they find about an existing deficiency 15 irrespective of whether they believe that the deficiency 4
16 doesn't have anything to do with safety today.
17 JUDGE BLOCH:
Do you know what the status is of 18 documents the Staff said they had found that were related 19 in some way to the same kind of report as the MAC report?
20 MR. ROISMAN:
I do not, Mr. Chairman.
I'm 21 familiar with the communication that we got, but I have not.
22 seen anything with respect to that since we got that 23 communication.
24 MR. HORIN:
Mr. Chairman, Applicants provided a 25 letter to the Board transmitting three additional MAC TATE REPORTING SERVICE, (713) 222-7177
24180 1
reports in September.
s
'(,)
2 MR. WOOLDRIDGE:
Those have been provided.
3 MR. HORIN:
Those are the documents.
4 JUDGE BLOCH:
Those are the documents?
5 MR. WOOLDRIDGE:
It's our contention --
6 MR. ROISMAN:
Were those submitted in Docket 2?
7 JUDGE BLOCH:
Thank you.
8 MR. ROISMAN:
Thank you, Mr. Chairman.
9 JUDGE BLOCH:
Mr. Horin.
10 MR. HORIN:
Mr. Chairman, as Applicants noted 11 earlier this norning, we believe that the scope of this 12-conference is to address the status of objections and other
(
)
13 pending matters with respect to specific C.A.S.E.
14 interrogatories.
We did not come here to argue with Mr.
15 Roisman regarding the scope of the respective dockets.
16 We indicated also this morning that our answers 17 to these requests would not be making a distinction between 18 the two dockets and that we were going to seek to apply the 19 Boards' standards that it has enumerated in its recent 20 memorandum regarding the scope of the two documents, i
21 Nonetheless, I think there are a few points that.
22 should be made with respect to Mr. Roissan's comments here 4
23 this mornings.
24 The first point which Mr. Roisman put forth to
)
i 25 the Board was that the request to which Applicants' were l
TATE REPORTING SERVICE, (713) 222-7177
24181 1
not providing responses this morning, the objections to
-'(
)
2 those requests in Mr. Roisman's words, the root of the 3
objections were with respect to burdensomeness, to which 4
Mr. Roisman has claimed Applicants had not made showing the 5
Board directed be made or with respect to relevance to 6
Docket 2.
7 Each and every of the requests that Mr. Roisman 8
specifically listed, Applicants put forward objections 9
independent of those two grounds that Mr. Rois7an spoke of.
10 Mr. Roisman has not responded to those independent 11 objections.
The Board gave C.A.S.E.
an opportunity to 12 responds to those today.
The Board allowed C.A.S.E. not to
([)
13 file a motion to compel in response to our 10-9 responses 14 on the grounds that C.A.S.E. would provide its objections 15 to our responses today.
Now Mr. Roisman has not done so.
16 JUDGE BLOCH:
Given the fact that you have 17 responded to a lot, would it be possible for you to proceed 18 by discussing the ones you're not responding to in --
19 MR. HORIN:
Certainly.
20 JUDGE BLOCH:
Start with 1-G.
I see 1-E, 21 Department of Labor, I understand.
22 MR. HORIN:
Starting with A.
23 JUDGE BLOCH:
1-G.
24 MR. HORIN:
Request 1-G seeks the job
}
25 evaluations, performance ratings and other material TATE REPORTING SERVICE, (713) 222-7177
24182 1
relevant to personnel changes identified in response to 47)
Q 2
Question 8-C.
3 In Applicants' original response to these 4
requests, Applicants objected to them on the grounds that 5
C.A.S.E.
had made no demonstration of a compelling need for 6
such information to overcome the privacy interests which 7
would be violated by these requests.
C.A.S.E.
is seeking 8
personnel files, material that is confidential for these, 9
with respect to these individuals; C.A.S.E. has made no 10 attempt even to show a compelling need for that 11 information.
12 JUDGE BLOCH:, Wouldn't the standard way in our 13 proceedings to handle that would be have to have it covered 14 by a protective order so they will keep it only for 15 internal analysis for their case?
16 MR. HORIN:
C.A.S.E.
has made no proposal in that 17 respect.
We nonetheless believe that C.A.S.E.
should make, 18 before we even get to that point, the demonstration of 19 compelling needs that should be made before we're required 20 to respond.
21 JUDGE BLOCH:
Well, short of the privacy 22 interests of those people, what is there that would be 23 available from Applicants concerning the circumstances and 24 reasons for the departure of the individuals?
25 MR. HORIN:
C.A.S.E.
has asked in questions 1-A, TATE REPORTING SERVICE, (713) 222-7177
24183 1
B, C,
for documents that have been generated in meetings
()
2 within Applicants' organization, that deal with these 3
individuals; they've asked for information concerning 4
written explanations provided to the individuals; 5
Applicants are not posing their objections with respect to 6
those at this point.
7 If the Board would like me to proceed?
8 JUDGE BLOCH:
Please.
9 MR. HORIN:
With respect to Item 2, Request 2, 10 which concerns contracting documents, Applicants believe 11 that this request is duplicative response -- duplicative of 12 Request 1-F.
I believe as phrased this particular request
)
13 is overbroad.
It also seeks contract documents which are 14 irrelevant to contention 5.
This request is so broad as to 15 require contracts that deal with virtually any person or 16 organization that deals with Comanche Peak.
That is far 17 beyond the scope of Contention 5.
18 Ji'DGE BLOCH:
Are they obtaining the contracts 19 between each of the principal actors of the CPRT?
20 MR. HORIN:
Yes, of course they are and they have 21 already.
22 JUDGE BLOCH:
Continue.
23 MR. HORIN:
Next concerns Question 5, that
])
24 question goes to information regarding the status of the 25 plant and licensing status of the plant.
TATE REPORTING SERVICE, (713) 222-7177
24184 1
Applicants have objected to this request as bl) 1 2
seeking information that's irrelevant to contention 5 in 3
total.
Applicants have routinely apprized the Board and 4
the parties of the overall schedule for completion of the 5
plant; whether or not and in what respects Applicants 6
provide information to stockholders, bankers, et cetera; 7
are simpley irrelevant to Contention 5.
8 To the extent that these requests save costs, 9
information regarding the costs of the plant, this also is 10 irrelevant to contention 5.
Indeed the Board has already 11 ruled in that regard, with respect to the Signa exercise 12 where the Board asked that we provide the contracts with (j) 13 Signa and said that we should delete the figures for the 14 costs with. respect to Signa.
15 JUDGE BLOCH:
6-B7 16 MR. HORIN:
B.
17 JUDGE BLOCH:
D7 Isn't that the one --
18 MR. HORIN:
No, A through C.
19 So 6-D, this request seeks all material developed 20 by the safe team, Mr. Chairman, allegations of harrassment 21 or intimidation.
Applicants have, consistent with the 22 Soards' decision with respect to the scope of allegations 23 of harassment and intimidation before it, i.e.,
with
)
respect to quality assurance and quality control personnel 24 25 and with respect to events which occurred prior to July 1, TATE REPORTING SERVICE, (713) 222-7177
24185 i
1 1984, Applicants have reviewed and continue to review the CL()
2 safe team materials for documents within that scope.
3 We have already, in fact, provided some material 4
to C.A.S.E.
in that regard.
We believe that to the extent 5
this request would seek information beyond that, it is not 6
within the scope of this proceeding.
7 JUDGE BLOCH:
Okay.
That's because of the 8
cutoffs that the Board has in effect.
One is the date 9
cutoff and the other is the craft cutoff; is that correct?
10 Are those the only exceptions we are talking about?
11 MR. HORIN:
We would also include within the 12 scope of the objection, to the extent that this raquest
)
13 seeks information other than with respect to harrassment 14 and intimidation and that specifically -- mentions 15 undesirable work conditions, saftey problems, without 16 regard to whether there is an allegation for harassment and i'timidation, and pay raises.
We believe those are not 17 n
18 within the scope of the proceeding.
g 19 JUDGE BLOCH:
Continue.
20 MR. HORIN:
The next item is Request 7, again 21 this seeks information regarding the status of licensing 22 and schedule.
It seeks document with respect to 23 communications with a variety of government agencies, 24 Department of Energy, White House.
If such documents even
{}
25 existed, there is no relevance of those communications to TATE REPORTING SERVICE, (713) 222-7177
24186 1
Contention 5.
b'(j 2
They are irrelevant both with respect to the 3
subject matter as I've previously discussed with respect to 4
scheduling and the status of the plant, and they're 5
irrelevant with respect to the scope of the communications 6
sought, dealing with entities outside of the Atomic Safety 7
and Licensing Board before which this case is being tried.
8 JUDGE BLOCH:
Continue.
9 MR. HORIN:
Question 11, Question 10-G.
Question 10 10 generally seeks contractor information with respect to 11 any of the organizations or individuals who have performed 12 services for Texas utilities to respond to the concerns
)
13 identified by the NRC in their TRT program.
The Ap'licants' are agreeing to provide that 14 p
15 information, however Request 10-G goes far beyond that, 16 similar to Request 2, and seeks all other documents related 17 to the scope of any other contracter or consultant at 18 Comanche Peak.
Applicants object to that as being clearly 19 overbroad for the reasons stated with respect to Question 20 2.
21 Question 11, scheduling forecasts.
I have 22 already addressed the irrelevance of that to this 23 proceeding in the context of discussing the Questions 5 24 and 6.
25 JUDGE BLOCH:
Is there any way that the Board and TATE REPORTING SERVICE, (713) 222-7177
24187 1
the Intervenors can have some kind of information that will hts 1,)
2 give us confidence in what scheduling forecasts are now in 3
terms of completion of CPRT work or anything of that 4
nature?
5 MR. HORIN:
Mr. Wooldridge is most familiar with 6
the scheduling information.
7 JUDGE BLOCH:
We have no estimation at the 8
present time that I know of.
9 MR. WOOLDRIDGE:
Are you asking for case planning 10 purposes, Your Honor?
Is that --
11 JUDGE BLOCH:
Yes.
12 MR. WOOLDRIDGE:
There's an awful lot of work
(
)
13 ongoing by the CPRT program, as I believe this Board is 14 aware, from the number of transcripts of hearings with NRC 15 Staff and the like.
I'm not in a position this morning to 16 state when they think we will be completed with the first 17 results reports.
I am hopeful that that will be within the 18 next 45 to 50 days that we will have some pieces of the 19 CPRT program plan to submit to this Board for litigation, 20 if necessary.
21 JUDGE BLOCH:
Do you mean that or do you mean 22 that you'll start having packages to give to C.A.S.E. under 23 your plan for making discovery documents?
24 MR. WOOLDRIDGE:
No, the -- well, let me see just
}
25 a second.
That's correct.
When results reports would be TATE REPORTING SERVICE, (713) 222-7177
24188 1
published so it would been the latter.
I'm not suggesting s()
2 a hearing within that time frame.
I'm suggesting putting 3
it into the litigation stream at that time frame.
4 JUDGE BLOCH:
I just look for some way that we 5
can give productive information on schedule in a way that 6
C.A.S.E. will know what's happening and that parties will 7
know and the Board will know.
8 MR. WOOLDRIDGE:
Well, we're trying to make that 9
information available just as soon as we're at that point 10 in our own project.
11 DR. MC COLLOM:
Does that mean that there are no 12 ISAP's completed at this point?
(.( ')
13 MR. WOOLDRIDGE:
That's correct, Your Honor.
14 There are several that are fairly well through the CPRT 15 process.
But as far as results reports or the submittal of 16 results report to the senior review team, that has not been 17 accomplished.
And it does not look like there's going to 18 be an ability to accomplish that for a number of weeks, 19 because of their work on Revision 3 and they're addressing 20 questions posed by the Mr. Noonan and the NRC Staff and 21 when they get that done, then they will be in a position to 22 address some of the results reports, hopefully.
23 JUDGE BLOCH:
I have a feeling what we ought to
)
do is have a supplementary discussion to this specifically 24 25 on the subject of when those reports are going to be done TATE REPORTING SERVICE, (713) 222-7177 l
2415W 1
and how they should be subject to discovery.
So don't talk O)
(_
2 about that in this session, Mr. Horin, and let's see how we 3
can speed up because your time has officially expired, too.
4 MR. HORIN:
I think there are only a few more 5
requests.
Item 12, the MAC report.
C.A.S.E.
has already 6
been provided full opportunity to pursue discovery on the 7
MAC report.
8 Ms. Ellis filed requests back in June to which 9
Applicants responded, the Board issued a memorandum in July 10 which was dispositive, in Applicants' opinion, of discovery 11 regarding the MAC report.
Applicants consider this request
-t 12 to be untimely and in addition duplicative of discovery
)
13 that has already been conducted in Docket 1.
14 JUDGE BLOCH:
I understand duplicative, but have 15 we put.a cutoff date on discovery about the MAC report?
16 Why would it be untimely?
17 MR. HORIN:
The initial MAC report was provided 18 to the Board in early June.
C.A.S.E.,
in Docket 1 and 19 both, in effect in both dockets, had full opportunity if 20 they felt discovery was warranted to pursue it at that 21 time.,
22 C.A.S.E. in Docket 1 did so.
The Board ruled on 23 that discovery response in July, Applicants should not be 24 placed in the position of having to respond to both in C
}
25 Docket 1 and Docket 2 to discovety.
I think that's TATE REPORTING SERVICE, (713) 222-7177
24190 1
consistant with the Boards' admonition that C.A.S.E.
(_)
2 attempt to coordinate in both dockets.
3 JUDGE BLOCH:
Duplicative, I understand.
But if 4
they were to study what they got in Docket 1 and decided 5
that they needed follow up questions answered, it's not 6
untimely, is it.
7 MR. HORIN:
Those are questions that are 8
independent of what was taken in Docket 1.
I would point 9
out that there, with respect to 12-A, the contracts between 10 MAC and Applicants, those have already been provided.
11 JUDGE BLOCH:
Okay.
Duplicative I fully 12 understand.
Let's go on to another matter.
)
13 MR. HORIN:
With respect to Question 13, which 14 concerns the T-shirt incident, again we spent an entire 15 summer last year pursuing the T-shirt incident.
We have 16 developed a record on the T-shirt incident that is quite 17 enormous.
18 C.A.S.E.
had full opportunity to discuss 19 discovery, either with respect to requests or with respect 20 to discovery depositions last summer.
We believe that in 21 that respect, discovery with respect to the T-shirt 22 incident has been fully afforded and that it's untimely to 23 provide or to seek additional information.
}
Applicants of course are aware of their 24 25 obligation to supplement any outstanding requests that have TATE REPORTING SERVICE, (713) 222-7177
24191 1
to do with the T-shirt incident if information comes to C1(_)
2 their attention, but we do not believe that further 3
specific requests are appropriate.
4 JUDGE BLOCH:
If you had new significant 5
information, you consider that to be within the scope of 6
your obligation.
7 MR. HORIN:
Certainly.
8 JUDGE BLOCH:
But other than that, no?
9 MR. HORIN:
That's correct.
10 Question 15.
11 JUDGE BLOCH:
14-A?
12 MR. HORIN:
I'm sorry, 14-B, I should amend my J) 13 previous statement.
Applicants will provide with respect
^
14 to 14, documents that are produced through the CPRT 15 investigation into this program.
16 To the extent that additional information is 17 sought, we believe that also, similar to our position on 18 T-shirt incident, the time has passed to pursue further 19 discovery in that respect.
20 15, paint coatings.
- Again, C.A.S.E.
had full 21 opportunity to conduct discovery on this issue.
C.A.S.E.
22 had the opportunity to conduct depositions of the 23 individuals involved and C.A.S.E. did so in some respects 24 and in some instances, C.A.S.E. declined to conduct the
}
25 deposition of other individuals, specifically Mr. Hamilton TATE REPORTING SERVICE, (713) 222-7177
24192 1
who is mentioned in their request.
Os
! _)
2 JUDGE BLOCH:
Your position is on this is that 3
basically the hearings on this have been conducted and are 4
closed.
5 MR. HORIN:
That's correct.
Further discovery at 6
this point is unwarranted.
7 JUDGE BLOCH:
And also I take it is it your 8
position on supplementation is the same as with respect 9
to --
10 MR. HORIN:
Certainly.
Applicants have an 11 obligation to supplement with significant information 12 affecting issues before the Board, irrespective of the
()
13 existence of an outstanding request.
4 14 Finally, 16, " Harassment and Intimidation," it's 15 generally entitled.
- Again, C.A.S.E.
has had full 16 opportunity to conduct general discovery with respect to 17 harassment and intimidation incidents.
18 Applicants also are aware of their obligation to 19 inform C.A.S.E.
of new information consistant with the 20 Boards' rulings as to the scope of harassment and i
21 intimidation issues that are before it, specifically the 22 7-1-84 cutoff date and the limitation of harassment and 23 intimidation with respect to quality assurance personnel as t
24 opposed to craft.-
25 Applicants believe that this is a very L
TATE REPORTING SERVICE, (713) 222-7177 l
24193 1
fundamental point with respect to conduct of Docket 2; this ly_)
2 is the first time that we have heard that C.A.S.E. would 3
like the Board to reconsider its rulings in that regard.
4 We don't believe it's appropriate to move forth absent a 5
written motion providing reasons for such pursuit at this 6
conference.
7 JUDGE BLOCH:
Do you have any closing remarks, 8
Mr. Horin?
You don't have to get too creative to make up 9
additional things.
10 MR. HORIN:
No, Mr. Chairman.
No closing 11 remarks.
12 MR. ROISMAN:
Mr. Chairman.
)
13 JUDGE BLOCH:
Mr. Roisman.
14 MR. ROISMAN:
My understanding of the processes 15 that we were going to follow, and I just want to be clear 16 on this, is that we would discuss, as I indicated at the 17 outset, the generic questions.
18 I did not believe that I was also supposed to l
19 discuss the unique or specific kinds of objections that i
20 would not in my judgment fit into those generic questions.
21 And I would like an opportunity to respond briefly to the 22 arguments which Mr. Horin has said, which do not fit into 23 what I perceived was the purpose of my first fifteen 24 minutes, which is to discuss how the resolution of certain
)
f l
25 issues by the Board, either that it's already done or still TATE REPORTING SERVICE, (713) 222-7177
24194 1
has to do, which would generically influence the production O)
T 2
of documents.
I did not try to go into these specific 3
objections at that time.
And I would like the opportunity 4
to do so.
5 JUDGE BLOCH:
I guess the problem that the Board 6
saw, Mr. Roisman was there was no way to decide the 7
specific questions before based on the generic arguments.
8 Can you address them very quickly?
9 MR. ROISMAN:
Yes.
10 JUDGE BLOCH:
Do the Applicants object to that 11 procedure?
12 MR. HORIN:
To a limited amount of additional
)
13 time, Applicants will not object.
14 MR. ROISMAN:
1-D dealt primarialy with the 15 privacy objection.
We would point out that if the 16 Applicants want us to state, we will state for the record 4
17 that of course we will sign protective orders with respect 18 to anything produced as as we have done on other occasions.
19 We felt that the privacy objection was already in effect 20 dealt with, with respect to that.
21 As far as compelling need is. concerned, I thought.
22 we had been very clear that the reasons for the discharge 23 of these persons and their letters of resignation, key
{
}
witnesses in the proceeding, was reason enough for us to be 24 25 entitled to take a look at that material.
With respect to TATE REPORTING SERVICE, (713) 222-7177
24195 i
question 2, and 10-G, the Applicants position --
,l -
2 JUDGE BLOCH:
One moment.
Let me focus on your 3
first argument before we go on.
4 MR. ROISMAN:
I'm sorry, it's 1-G; my mistake, 5
not 1-D.
6 JUDGE BLOCH:
I'm looking at 1-D.
Okay, have you 7
passed up the clause on Department of Labor?
8 MR. ROISMAN:
The~only thing that we think makes 9
the Department of Labor relevant is that again, we are 10 attempting to find out whether the Applicants' witnesses 11 are credible.
We've discussed that, discussed that in 12 generic and I didn't want to go over that again.
But the k()
13 credibility of their witnesses is a legitimate scope of 14 ours.
15 You may remember the scope of the discovery 16 conducted with regard to Witness r, all the way back to 17 court marshall proceedings, long since passed.
18 JUDGE BLOCH:
You can get Witness F's stuff with 19 respect -- you get any of their witnesses who testified in 20 these proceedings.
Why do you also need witnesses who 21 testified at the Department of Labor but not in our 22 proceedings?
23 MR. ROISMAN:
Excuse me just one second.
The two
~
)
of those proceedings, Mr. Chairman, Messrs. Dunham and 24 25 Atchinson are cellateral estoppel in these proceedings.
TATE REPORTING SERVICE, (713) 222-7177
24196 1
Both of them involved questions of credibility of f,'.'()
2 Applicants' witnesses and also of the complainant witness.
3 So the records of those proceedings and the record of this 4
proceeding are in effect made coextensive.
5 JUDGE BLOCH:
Well, to the sxtent that it's 6
governed by decisions of -- or of decision of other bodies, 7
I don't understand the need for it.
8 MR. ROISMAN:
It reflects still on the 9
credibility of those witnesses.
I am not aware of 10 witnesses in those proceedings -- and if that exception is 11 what the Board wants us to state, we will.
But if there I
12 are any witnesses in those proceedings who have not been (I) 13 witnesses in these proceedings, then the information sought 14 with regard to those people need not be produced under that 15 discovery request.
But to the extent that they were 16 witnesses here, we're entitled to know.
17 JUDGE BLOCH:
Okay.
Just that one class on 18 Department of Labor they want out, if I understand the 19 effect of it is that you would get that if there were 20 witnesses here.
21 MR. ROISMAN:
Okay.
That's all right.
22 JUDGE BLOCH:
Okay.
Your statement on G is that 23 without regard to any special showing of the importance of 24 the information, you should be able to obtain it.
)
l 25 MR. ROISMAN:
Well, I think we have made a l
l TATE REPORTING SERVICE, (713) 222-7177 L
24197 1
special showing, at least in the context of what has been N
\\)
2 required in these here up until now, for similar 3
investigations into the background of either witnesses that 4
we have produced or for that matter, witnesses the 5
Applicants produced.
We have routinely looked at the 6
personnel files of individuals who have been put forward by 7
either side.
8 JUDGE BLOCH:
Documents you are asking for are 9
complete personnel files, in effect, of people whose jobs 10 have been changed is what you call key management changes 11 or suggestions of changes by the NRC.
Is that right?
12 MR. ROISMAN:
Yes.
(
)
13 JUDGE BLOCH:
Is there a definition of " key 14 management changes" somewhere?
Could you explain what you 15 mean by that?
16 MR. ROISMAN:
Yes, Mr. Chairman.
We had in this 17 request, the Applicants have changed around their 18 management structure substantially.
19 We had an outstanding request which I think they 20 are now agreeing to answer, which would give us their new 21 chart down to a level that would enable us to understand 22 better what -- I mean we knew what key management meant 23 under the old structure.
We are not quite sure that we can 24 tell you what it means under the current structure.
But it g'
)
25 certainly would go down to the level of the deputies who TATE REPORTING SERVICE, (713) 222-7177
24198 1
work for Mr. Tolson at that level, like Mr. Gran and Mr.
2 Purdey, and people who have those response.
(,j 3
JUDGE BLOCH:
Basically people at that equivalent 4
level or higher who either left or came in.
5 MR. ROISMAN:
Right, or who were transferred out 6
of into another position.
7 JUDGE BLOCH:
I am going to give Applicants a 8
chance to respond to new things that came up in the course 9
of this discussion.
Mr. Roisman, next.
10 MR. ROISMAN:
All right.
Question 2 and 10-G are 11 basically objected to on the same basis and I think it's a 12 very important consideration.
)
13 The Applicants are taking the position that they 14 define the scope of our discovery by limiting us to the 15 CPRT.
We have nothing to believe that the Applicants do 16 not have in their position information regarding the
'17 existence of deficiencies in the plant, the reasons-for 18 those deficiencies that occcur, outside the scope of the 19 CPRT.
20 JUDGE BLOCH:
So you want to limit 2 and 10-G to 21 work related to detecting or correcting deficiencies that 22 are in the plant during the time of the CPRT study?
23 MR. ROISMAN:
Well, not even -- just that are in 24 the plant, I mean it's the CPRT that's looking at it when
)
25 they say, "Well, we've got another independent contractor TATE REPORTING SERVICE, (713) 222-7177 l
24199 1
that you can't see" -- to be honest with you, we think C)
(
2 there's some Lipensky incident here; we think there's some 3
independent contractors who came in, take a look and gave 4
the report that the company didn't like and said, "You 5
don't make our CPRT."
6 JUDGE BLOCH:
You want all contractors that fall 7
with'in the scope of the tasks of CPRT7 8
MR. ROISMAN:
Right, whether or not they are in 9
fact called part of the CPRT team, that is correct.
10 JUDGE BLOCH:
And that may be a null set or there 11 may be people doing that.
12 MR. ROISMAN:
That's correct, we don't know the
(
)
13 answer to that.
14 JUDGE BLOCH:
Okay.
15 MR. ROISMAN:
Questions 5, 7 and 11 which I think 16 are properly all grouped together, they relate to two 17 things.
18 No. 1, they relate to the Applicants' current 19 perception, this is particularly true of Question 5, as 20 given to other people, of the current status of the plant.
21 We want that.
First the Board has already asked the 22 Applicant to state what the current status of the plant is 23 and then in the management views that were filed last
}
summer they purported to do that.
Whether or not their 24 25 view of what the current status of the plant is or is not TATE REPORTING SERVICE, (713) 222-7177
~
l 24200 1
in the proceeding, I think is already well taken care of.
)
2 You already ordered it, they addressed it, nobody objected 3
to it.
4 JUDGE BLOCH:
Would you want documents that 5
reflects management's current unfolding perception status 6
of the plant in terms of its safety?
7 MR. ROISMAN:
And we want that as reported to 8
people other than just for purposes of these hearings, in 9
order to test what is going on; it's a very legitimate 10 question to ask.
What is the president telling the 11 chairman of the Board, not just what is counsel telling the 12 chairman of this Board.
Are we getting the real story or k) 13 are we getting some kind of a pabulum that the Applicants 14 wish to have presented in these proceedings.
15 JUDGE BLOCH:
Okay.
If you limited it to their 16 assessment of deficiencies in the plant, with regard to 17 state of it, you'd have a much narrower question than the 18 one I think you've asked.
19 MR. ROISMAN:
Well, I would say that it is, that 20 insofar as we are asking for information, we want to know 21 what their perception is of -- and when we say "the current, 22 status of the plant," I think we mean that; but I think 23 that may be broader than how you defined it, or how I think 24 you mean it.
25 We're talking about their view of how many TATE REPORTING SERVICE, (713) 222-7177
24201 1
problems they have to solve, how long they think it will
?\\_D
/
2 take them to solve it, the amount of cost involved in 3
solving it, because that is pertinent as I'll explain in a 4
minute on two different points, certainly pertinent on the 5
question of whether or not they have currently in effect 6-conceded to some people, if not to this Board, that there 7
has been a broader breakdown, it relates to admissions that 8
they have made to other parties that we do not otherwise 9
have access to.
10 If they are answering the questions that you 11 asked them to many other parties in many other contexts, it 12 is certainly legitimate discovery for us to know every time
()
13 they answered that question.
And if they've answered it 14 the same, that will be an easy answer.
15 JUDGE BLOCH:
Is it really discovery related to 16 the current management views, continuing statements of 17 management, about current management views?
18 MR. ROISMAN:
It could be related to that but 19 it's equally related to the fact that current management 20 has as one of its' jobs doing what the TRT was doing; 21 finding the problems.
And to the extent that today they 22 find problems that' occurred during construction, then they 23 are finding problems which underlay the validity of our
])
24 claim that the QA/QC had broken down because they are f
25 finding the problems today instead of QA/QC finding them TATE REPORTING SERVICE, (713) 222-7177
24202 1
back when they occurred.
T
(_j 2
JUDGE BLOCH:
Continue.
3 MR. ROISMAN:
Similarly, the documents that we 4
request and these are primarialy in 7 and 11, relate to the 5
licensing status of the plant and predictions about it in 6
the past, cost and scheduling in the past, as opposed to 7
their current perceptions.
8 That goes to the issue which is one of the 9
principal questions in Docket 2, as Applicants perceived 10 it.
You will remember in their filing in May of '84, they 11 stressed that we had discussed in -- the inside thinking, 12 we had to come up with subjective intent to harass and
()
13 intimidate.
14 We're obviously not likely to get, in Perry Mason 15 style, one of their witnesses to break down on the stand 16 and say "I did it."
So like any case involving, intent you 17 must prove it by in effect circumstantial evidence.
One of 18 the circumstantial pieces of evidence is to prove motive.
19 And the motive is what were the Applicants telling people 20 who had to rely upon it about how quickly this plant could 21 be built and how cheaply it could be built.
22 That information contrasted with the reality of 23 what was going on would help explain what was driving all
)
24 these management people.
Why would they go out and take a 25 perfectly good QA/QC inspector like Susie Newmire and drive TATE REPORTING SERVICE, (713) 222-7177
24203 1
her into the ground until she had to leave the plant.
(r')
s
\\..j 2
JUDGE BLOCH:
This is what they're telling other 3
people is relevent to establishing a motive to finishing 4
the plant quickly and economically?
5 MR. ROISMAN:
That's right, related to their 6
past.
7 JUDGE BLOCH:
Doesn't that seem like overkill?
8 MR. ROISMAN:
Well, you will remember that when 9
you asked that question of Applicants during the in camera 10 deposition of Witness F, the answer you got was "We will 11 leave no stone unturned."
12 I think we are entitled to see -- for instance
(
)
13 it's quite possible we'll find, and we don't know this 14 until we get the information, but a clear pattern of 15 commitments to do certain things that coincide with a rash 16 of complaints from employees that when they started raising 17 safety problems, they started getting into trouble; that 18 there were times when they could tolerate more of that and 19 there were times when they could not.
And what dictated 20 their level of toieration was their level of commitment to 21 finat.cing sources, as to the Department of Energy, to their, 22 Congressional liaison, et cetera, et cetera.
23 Question 6-D, one of.the problems that we are
])
24 concerned with is that Applicants want to answer these 25 questions by using a classification that they make of what TATE REPORTING SERVICE, (713) 222-7177 i
24204 1
constitutes harassment and intimidation.
And they say "If (ls l_,).
2 the safe team document didn't mention the words ' harassment 3
and intimidation,' we don't have to produce it."
4 As you know from the hearing records, there was a 5
lot of discussions as whether or not a particular employee 6
really was complaining about something else and that the 7
documents that the employees presented to the ombudsman, 8
through the hot line, were relevent documents and that we 9
were not bound by the Applicants' view of whether it fit or 10 not.
11 JUDGE BLOCH:
You would like all safe team 12 records concerning incidents where workers have reported
(, )
13 safety or safety related defici_ enc _ies.
14 MR. ROISMAN:
Yes.
15 JUDGE BLOCH:
Regardless of whether Applicants 16 looked at them and said it deals with harassment.
17 MR. ROISMAN:
Correct.
18 JUDGE BLOCH:
May I ask, is that already included 19 in what you are responding to?
20 MR. HORIN:
No, Mr. Chairman.
That's no 21 different than requesting every NCR generated in the plant..
22 I mean there are always things that are identified.
And 23 people take them, pursuant to Applicants' program, through
}
24 the normal course of the QA program.
Applicants have made 25 available another program by which someone may bring TATE REPORTING SERVICE, (713) 222-7177
24205 1
concerns to the attention of management.
We believe that O) 1 2
that is a reasonable approach.
We believe that to simply 3
throw open that process where we have attempted to make 4
available to people who, for whatever reason, might not --
5 might wish to purue that path.
To throw open that process 6
where a confidential atmosphere exists to wholesale 7
discovery, is unfounded.
8 JUDGE BLOCH:
You are going to make available any 9
time that a worker came in and overtly alleged harassment.
10 Is that right?
11 MR. HORIN:
That's correct.
And that's something 12 that rises to the level of significant -- that rises to the
()
13 level of significance in this proceeding where it is 14 clearly relevant to an issue in this proceeding.
15 JUDGE BLOCH:
But if he said, for example, "I let 16 management know that there was a serious safety problem in 17 the plant and they did nothing about it," you wouldn't 18 cover that?
19 MR. HORIN:
Mr. Wooldridge 20 MR. WOOLDRIDGE:
Your Honor, I don't recall 21 anything similar to that and I do review those recorts.
22 But if there's any question in our mind or in anybody's 23 mind as to whether or not it might potentially be an 24 allegation of harassment and intimidation or threats,
}
25 before the cutoff date, that is made available in the TATE REPORTING SERVICE, (713) 222-7177
i 24206 1
updating in discovery.
7-I) 2 JUDGE BLOCH:
Okay, because there's some 3
inference that if they went to the safe team, that whatever 4
the ordinary channels were seemed to be inadequate for 5
them, so a that the disposition of that could be important 6
to the climate in the plant which is the principal 7
allegation of the Intervenors.
So is that basically within 8
the scope of what you're attempting to turn over.
9 MR. WOOLDRIDGE:
Yes, Your Honor, any claim that 10 is made that would indicate any impediment being imposed by 11 somebody upon the reporting of safety concerns is going to 12 be supplemented or already has been.
)
13 JUDGE BLOCH:
Does that mean it has to say they 14 have a complaint against a specific individual?
15 MR. WOOLDRIDGE:
No, sir.
16 MR. ROISMAN:
Mr. Chairman, with all do respect 17 to the Board, I don't know why we should be left in a 18 position of trusting the Applicants, given the past 19 history.
20 JUDGE BLOCH:
So you're also going to have to --
21 MR. ROISMAN:
Let us see all the safe team 22 reports.
What's did big deal?
I don't understand what the 23 contrary concern is here?
For the moment, if they want, 24 sanitize them, take the name of the employee out.
I'm
((}
25 interested in the event.
TATE REPORTING SERVICE, (713) 222-7177
24207 1
I will show you when I think the event is 1,)
2 dynamite enough that I want to know who the employees is.
3 But the very fact that you just made, that the very fact 4
that the employee didn't think writing an NCR was the way 5
to raise the concern is evidence enough that we ought to be 6
able to find out why he went to the safe team.
7 And if he says it's okay, the recent rules as in 8
the Rayburn case where one of our menbers of the Board who 9
is not here, Mr. Grossman, ruled that an Applicant's 10 characterization of a, in effect, a safe team complaint as 11 related only to pay was clearly related to the harassment 12 an intimidation.
()
13 Now, I don't want to impugne anybody's integrity.
14 You have already talked about the fact that we all have 15 issues here.
We all see the world from our own particular 16 biases.
I don't want to depond upon Mr. Wooldridge's 17 biases to screen documents.
For my purposes, I'd like to 18 have my cwn biases work at that.
19 JUDGE BLOCH:
You think it's closely enough 20 related that you can have discovery in your own eyes?
21 MR. ROISMAN:
Yes, and the concern which 22 incidently is not notes stated in there objections, and is 23 raised for the first time this morning by Mr. Horin, pages 24 23 and 24 of their October 9th filing, does not mention the
}
25 privacy concern.
But they can sanitize the name out of it TATE REPORTING SERVICE, (713) 222-7177
24208 1
for now and if we need that name, we'll make a special O) 1 2
request to the Board and ask for them.
3 All right.
Now, with regard to the -- I have a 4
lot of trouble ~with the Applicants answers to 12, 13, 14 5
and 15.
One of the answers to 12, 13, 14 and 15 was that 6
it was untimely.
There is no time limit with respect to 7
those.
8 We didn't ask for documents that came into 9
existence earlier.
Presumably I think that our discovery 10 requests, which was contained in and detailed by Ms. Ellis, 11 either before Ms. Garde and I got involved in the case, 12 would have discovered everything that we've asked for here, k) 13 not only on those items but everything else before the 14 hearing got started.
15 ita wanted to know what did you generate since 16 that time that relates to any of these items.
Now, the 17 Applicants on the one hand say "It's untimely that you're 18 asking for stuff that you have no right to" and then, at 19 the same breath, say "But of course we would supplement."
20 That makes me suspicious.
I worry that their 21 view of what constitutes supplementing is different than 22 what my view is.
If any document has come into existence 23 since the date that they last responded to discovery to us, 24 that is responsive to questions 12, 13, 14 or 15, we
/}
25 believe that they are obligated to produce it without us TATE REPORTING SERVICE, (713) 222-7177
24209 1
ever asking for it.
2 They seem to think that there's some distinction, 3
that there's some group of those documents which they don't 4
have to answer; and then another groupd which they would 5'
have to answer.
And that's why we asked the question 6
because we were not convinced that the Applicants nor do I 7
think that's unusual, parties are not real good about that 8
timely keeping parties up to date on what your discovery 9
is, to remind them.
10 For instance you may remember during the 11 hearings, Mr. Brant testified that he was going to conduct 12 his own investigation of the liner plate documents when he
,(
)
13 was on the witness stand and it was going to take place 14 sometime in the future.
15 He never returned to the witness stand; no other 16 subsequent witness came on and talked to us about that.
17 We've assumed that that investigation has been completed by 18 now.
And since that was over a year ago, where is the 19 update?
20 That's an open, valid issue in this proceeding.
21 The fact that the hearings concluded -- you will remember 22 the hearings ended at Mr. Wooldridge's request to you that 23 they be suspended temporarily.
We don't consider the issue 24 dead.
And we think that the Applicant should answer these
}
i l
25 questions.
We're nervous when they say "We're going to l
TATE REPORTING SERVICE, (713) 222-7177 r
I
24210 1
answer the questions in rederal rules," we think they have
'gj 2
to answer our question.
If they can answer that under oath 3
and say "We've given you everything or there is nothing,"
j 4
then fine, that's all we're entitled to.
5 JUDGE BLOCH:
12 at least looks like it was drawn 6
without knowledge of what Mr. Ellis had asked for.
Is that 7
fair?
8 MR. ROISMAN:
Ms. Garde tells me that that may be 9
correct and we will coordinate with regard to 12, and make 10 sure if there are any things that we have asked for that 11 she did not that we identified and identify them.
12 Otherwise they can be put into a -- into the category of
. ()
13 already answered in Docket 1.
And at least in that 14 instance, we will determine on our own what part of the 15 answers in Docket 1 were relevant.
16 However, Question C and D of 12 were never asked 17 by Ms. Ellis and are different and unique.
I would point 18 out by the way, lest there's any question about that, that 19 MAC reports and any other audits done of the company in 20 prior years is our motion for an evidentiary standerd is 21 crystal clear, are extremely relevent to Docket 2, they 22 help us map out the failure of the QA/QC program as 23 detected by others working for.the Applicants or brought in 24 by them.
.(
25 JUDGE BLOCH:
In terms of the T-shirt incident, TATE REPORTING SERVICE, (713) 222-7177
24211 1
my understanding is that we did conclude the hearing on the w
(_)
2 T-shirt incident.
Am I wrong about that?
3 MR. ROISMAN:
Well, it's very difficult, Mr.
4 Chairman, for me to feel that we've concluded the hearing 5
on anything in Docket 2.
I mean the TRT investigated the 6
T-shirt incident, the harassment and intimidation report 7
identifies the T-shirt incident as an example.
8 JUDGE BLOCH:
Okay, more clear statement is that 9
Applicants and C.A.S.E.
rested and the Staff has not yet 10 put in its case on those issues.
11 MR. ROISMAN:
But we would certainly, under 12 normal circumstances, in just your typical case, the
(
)
13 creation of a document by the Staff would produce a right 14 to discovery.
15 And I believe that when we rested, we rested and i
16 we all rested with the assumption that there would be an 17 order in this case forthcoming a year ago or so.
I think 18 the board perceived that, and what has happened is that we 19 found several threads and if we pullai them, the sweater 20 started to come apart.
21 Applicants made a major alteration in their 22 entire case.
23 JUDGE BLOCH:
Well, they're narrower.
Your 24 discovery is related to possible rebuttal or response as to
}
25 what the Staff's case may be.
TATE REPORTING SERVICE, (713) 222-7177
24212 1
MR. ROISMAN:
That is correct.
h) 1 2
And again, we're not asking for the old stuff, 3
we' re not asking for stuf f that existed before that they' 4
should have produced before.
We assumed they produced 5
everything.
We want to know documents that have come into 6
existence since then.
7 JUDGE BLOCH:
14-A specifically relates to 8
testimony that Mr. Brant had that he was going to conduct 9
an investigation?
10 MR. ROISMAN:
That's correct.
11 Now, with regard finally to No. 16, we concede 12 that No. 16 properly falls into the category that we 13 discussed.
14 JUDGE BLOCH:
14-A you're going to respond to, 15 that was -- that will be responded to, right?
16 MR. HORIN:
Yes.
Both 14-A and B, with respect 17 to the ongoing investigation by the CPRT.
18 MR. ROISMAN:
Mr. Chairman, see, that qualifier 19 is the one that makes us nervous, "by the CPRT," and they 20 define what "by the CPRT" means.
We want all the ongoing 21 investigations by whomever.
22 JUDGE BLOCH:
Could it be that Mr. Brant didn't 23 conduct this investigate?
~ f'T 24 MR. HORIN:
My understanding is that Mr. Brant (3 J 25 recommended that there be a further review of the matter.
TATE REPORTING SERVICE, (713) 222-7177
24213 1
CPRT has an ISAP specifically on liner plates, they are
'i 2
reviewing the matter.
3 JUDGE BLOCH:
Okay, so to the extent that there 4
were other investigations or inspections into the liner 5
plate, there's no particular reason that the response 6
should be limited to the CPRT, is there?
7 MR. HORIN:
My understanding is that that is the 8
only place that further investigations are being conducted.
9 JUDGE BLOCH:
Okay, but the scope of the 10 interrogatory should be interpreted to be what it says 11 rather than limited to CPRT.
Your answer is:
"The only 12 one we've got is a CPRT."
13 MR. HORIN:
I'm not sure.
14 JUDGE BLOCH:
If that's the answer --
15 MR. HORIN:
If that's the answer, I see the 16 Board's point.
17 MR. ROISMAN:
Finaly, just on 16 if the 7-1-84 18 cutoff dates and the craft exclusion are still operative, 19 then the question will have to await our formal request to 20 the Board on modifying the 7-1-84 cutoff date and the 21 craft, except to the extent as we pointed out earlier, that, 22 any subsequent discovered events by the Applicants of 23 harassment and indimidation, under that safe team program 24 would reflect on the adequacy of the earlier programs to 25 get people to come forward and talk about harassment and TATE REPORTING SERVICE, (713) 222-7177
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\\
1 intimidation.
Cs
()
2 JUDGE BLOCH:
These are subsequently discovered 3
events that occurred prior to the cutoff?
4 MR. ROISMAN:
No.
No, these are subsequently 5
discovered events that occurre'd after the cutoff.
6 JUDGE BLOCH:
Okay, and your reason for that is 7
you want to see a before/after comparison to see if they're 8
now picking up a lot they could have?
9 MR. ROISMAN:
That's right.
And you did ask the 10 question about the recent report, if you when you finally 11 get the copy of the harassment intimidation panel report, 12 you'll note in there a discussion of both from the comments 13 by Mr. Bowers and in the main body of the EG&G report of 14 September of '85, of the fact that the people come forward 15 and reported harassment and intimidation is a factor in 16 judging whether it really exists.
17 And what we are concerned with is whether or not 18 the relative number of reports of harassment and 19 intimidation before the safe team and the larger number if 20 this is true, after the safe team, indicates that there was 21 a some counterpressure to even reporting it, in the 22 pre-safe team era.
That's all I have to say.
23 JUDGE BLOCH:
I think it would probably be best 24 to let the Staff go last.
So unless there's no objection, 25 I'd like a response on new information from Mr. Horin.
TATE REPORTING SERVICE, (713) 222-7177
24215 1
MR. HORIN:
Let me address briefly just a few
\\ f')N
(_
2 points.
With respect to Item 1-G, the request for 3
documentation concerning personel files, Mr. Roisman has 4
not made a demonstration of compelling need, certainly not 5
to enable him or to warrant the wholesale review of any 6
matter within personnel files of any of the people that 7
might be identified with respect to previous 8
interrogatories.
9 Applicants believe that it's simply a fishing 10 expedition which the Board has requested that the parties 11 not engage in, with respect to interrogatories 5, 7 and 11, 12 the scheduling and status of the plant.
The Board and the
()
13 parties are fully apprized of the schedule for activities 14 at Comanche Peak which affect the conduct of this 15 proceeding.
16 To the extent that any information on scheduling 17 or status is produced to other entities, it simply has no 18 bearing upon the issues in this case.
It never has and it 19 does not now.
20 Mr. Wooldridge just reminds me that there is a 21 monthly status meeting that has been initiated regarding 22 the CPRT, to which C.A.S.E.
is invited and has attended.
23 With respect to Mr. Roisman's comments concerning 24 review of all safe team documents, Applicants believe what
}
25 Mr. Roisman's characterization of the rationale for such i
TATE REPORTING SERVICE, (713) 222-7177 t
I 24216 I
h 1
investigation would fly in the face of the public policy (l>3 "w/
2 well recognized in every' court and' administrative practice,
'3 that. inquiry into the measures, to the extent that they 4
might have been instituted as a corrective measure, would 5
would act to undermine the effective implementation and the 6
encouragement of the people to take such measures.
7 That is is the principal if not only reason that 8
Mr. Roisman has said he wants to get into this material, 9
Applicants have already responded to the information that 10 they will provide as it comes available and through the 11 safe team; that is fully responsive to any needs that Mr.
12 Roisman might have in this case.
()n J
13 With respect to Mr. Roisman's comments on the c
14 Questions 14 and 16, Mr. Roisman apparently argues that 15 discovery after a party has rested is appropriate.
16 Applicants disagree.
Mr. Roisman acknowledged that 17 C.A.S.E. had presented its case on these issues, that the 18 status of the proceeding was that the Board was conducting 19 its questions, that C.A.S.E.
had no further information to 20 present discovery after the conduct of a hearing, is 21 inappropriate.
22 I reiterate my previous comments that C.A.S.E.
23 had full opportunity -- and Mr. Roisman did not disagree --
)
24 to conduct discovery on each of these matters prior to the 25 holding of the hearings on these topics.
To the extent TATE REPORTING SERVICE, (713) 222-7177
24217 1~
that Mr. Roissan argues that he may be seeking information 2
with respect to the Staff's case, that is not where the 3
requests are directed, they're directed to Applicants.
If 4
Mr. Roissan seeks that sort of information, he should seek 5
that with the Staff.
We have no further. comments.
6 JUDGE BLOCH:
Mr. Chandler.
7' MR. CHANDLER:
Thank you.
As we advised the 8
aoard during our conference call last week, the Staff 9
doesn't intend to respond to the specific disputes on 10 discovery between C.A.S.E. and the Applicants.
11 We do have a number of comments, however, which I 12 think underscore a concern we raised in our October 25
___13 filing with the Boards in response to the proposition 14 raised during the october 15th conference call.
15 I think they bear on the principals that we have 16 discussed this morning or heard discussed this morning. in 17 particular, I think the statements we've heard from counsel l
l 18 for the Applicants on one hand, and Mr. Roissan for i
19 C.A.S.E. on the other hand, make abundantly clear that
'20 there exists a rather wide and perhaps broadening chase on 21 the parties' understanding of the issues that properly fall, l
22 within the scope of Docket 2.
23 I think Mr. Roissan's vision of Docket 2 is 24 significantly different than that of the Applicants' and 25 certainly different than that of the Staff.
I think Mr.
I j
TATE REPORTING SERVICE, (713) 222-7177
24218 1
Roissan perhaps used Docket 2 as an ever-expanding, perhaps s/
2 self-expanding docket, in which any matter of technical m
3 significance or perhaps not technical significance, becomes 4
relevant because of some potential implication of 5
harassment and intimidation; words which were sparsly used 6
as pointed out in his discussions this morning.
7 I would like to make perhaps what may appear to 8
be an outrageous statement.
Overall, unbridled, inquiry 9
into matters concerning failures or breakdowns, whatever 10 tera you use of the word "QA Program," QA/QC, is not a 11 matter in Docket 2.
12 The Board that was set up in Docket 2 is referred h
13 to -- the notice that was issued back in 1984 says the 14 Board was set up to preside over allegations of harassment 15 and intimidation.
That doesn't include general, 16 far-reaching inquiries in our view into all technical 17 issues, to probe them to see if perhaps there is some 18 involvement of harassment or intimidation.
19 I would suggest to the Board at the same time 20 that if there is a question of harassment and intimidation, 21 that those matters may properly be brought to the 22 Commission's attention, we have the Office of 23 Investigations that pursues such assertions of wrongdoing, o()
24 and can take appropriate action.
But they're not per se 25 within the scope of this proceeding.
TATE REPORTING SERVICE, (713) 222-7177
24219 1
JUDGE BLOCH:
Mr. Chandler, in terms of paint
(\\ms}
2 quality, for example --
3 MR. ROISMAN:
Yes, I recognize -- to anticipate 4
where you're going -- there are a number of areas which did 5
entail technical matters which do carry with them 6
allegations of harassment and indimidation.
No question 7
about that.
The record is replete with allegations, some 8
founded, some unfounded, which draw a nexus between or seek 9
to draw a nexus between, in some cases, techni' cal 10 deficiencies and harassment or intimidation.
11 JUDGE BLOCH:
Let me clarify.
Your position then 12 is that if there is direct testimony about incidents of k
13 harassment or intimidation or job actions or something of 14 that kind against an individual in an overall context of 15 questionable QA/QC, that the overall context is litigable, 16 so if the Applicants establish you've got a sound paint 17 QA/QC program, that has some bearing on whether or not 18 these individuals were harrased to suppress complaints l
19 about QA/QC in paint and, on the other hand, it's highly i
l 20 deficient, it's also relevant.
21 MR. ROISMAN:
I'm not necessarily agreeing with 22 the Chair when it says that, that that all falls within 23 Docket 2.
And there is a distinction I think that needs to
])
24 be made and needs to be preserved between those dockets; 25 perhaps not as significant in terms of discovery, but TATE REPORTING SERVICE, (713) 222-7177
m 24220 l
1 ultimately in terms of the way this case proceeds, a 2
distinction will need to be made.
3 JUDGE BLOCH:
How would you. find -- how would you 4
anticipate findings being filed about the question of 5
whether paint QA/QC inspectors were harassed and 6
intimidated; is there an intellectually sound way to 7
separate out the technical questions from the conduct with 8
respect to the investigators and yet reach a sound overall 9
conclusion -- not the investigators, the inspectors.
10 MR. ROISMAN:
I think there's a way in which --
11 it depends on the way in which the issues are pursued in 12 this hearing.
(
13 I don't think it's appropriate that the issues be 14 pursued necessarily from the standpoint of technical or the 15 potential for technical deficiencies.
What I'm saying, Mr.
16 Chairman, in short, is that I think the scope of discovery 17 which Mr. Roisman is developing at this points in Docket 2 18 exceeds the intended bounds of that docket.
19 We would tend, although not in particular context 20 of some of the particular items noted by Applicants' 21 counsel, to support the proposition that indeed a number of.
22 these issues are simply beyond the scope of the contention, 23 and in any event I would suggest beyond Docket 2.
f
()
24 But what I'd like to get back to, Mr. Chairman, i
25 is something very fundamental.
And at the risk of TATE REPORTING SERVICE, (713) 222-7177
24221 1
re-arguing to the Board something the Board may have
)
2 disposed, of in footnote one in its October 31 order, I 3
think it's not clear that the terms harassment and 4
intimidation that necessarily bear natural meaning which 5
is -.
6 JUDGE BLOCH:
That was another sentence after 7
this.
The Applicants didn't mention that in their 8
certification motion.
But the other sentence is also --
9 MR. ROISMAN:
Yes, it is, and it says we also 10 recall having commented on the meaning of these terms 11 previously.
And Mr. Chairman, at the risk of displaying my 12 ignorance of this lengthy case prior to my involvement in
(
13 it,Dmy understanding is this issue was discussed at a 14 prehearing conference I believe in June of 1984.
And there 15 is some general discussion there, among all the parties of 16 the Board as to an appropriate definition of the terms.
17 But there is no Board ruling on what those terms mean and 18 to the best of my knowledge, there is no ruling from the 19 Board which, with that dwfinition in mind, then defines 20 what the matters are that are properly before the Docket 1 21 Board on one hand and the Docket 2 board on the other, both.
22 very important issues, I would suggest.
23 And I would ask again.as we did in that October
)
24 25th pleading, that the Board request the parties to 25 address the issues in a written submission to the Board, so TATE REPORTING SERVICE, (713) 222-7177
24222 1
that the Board can properly rule on it.
It will I think, I
~(,)
2 believe, become very significant as the case moves along 3
into the evidentiary and hearing stage.
4 JUDGE BLOCH:
I'm not sure what the problem is if 5
you start with the proposition that if it's evidentiary, 6
that it's related, in an evidentiary fashion to whether or 7
not individuals were harassed or intimidated, then is in 8
Docket 2.
That of course generally in tort cases or other 9
cases would include the context in which the conduct 10 occurred.
11 MR. CHANDLER:
In the order in which you just 12 stated it, I don't have a problem.
But I would suggest
()
13 that if you establish that a particular situation entails 14 hadassment and intimidation, that much is in Docket 2, but 15 then the significance of that in terms of the overall QA/QC 16 program is something which is then referred back to Docket 17 1.
It is not a finding to be made by the Docket 2 Board.
18 JUDGE BLOCH:
Okay, so for example in your view, 19 with the technical defense that paint is now outside QA/QC 20 is valid, even though it may have been raised in the 21 context of Docket 2, would be a Docket 1 matter.
22 MR. ROISMAN:
If it is properly raised in Docket 23 1, or put into Docket 1.
I'm not sure, Mr. Chairman,
])
24 whether one should insist, for example, that it be a 25 contention properly raised as a late filing contention.
TATE REPORTING SERVICE, (713) 222-7177 i
24223 1
But some kind of -- it must be a transfer of that, I O()
2 believe, if there is a technical question, into the CPaket.
3 JUDGE BLOCH:
That technical question may not be 4
relevant to whether there was harassment or intimidation.
5 MR. CHANDLER:
That's right.
6 JUDGE BLOCH:
There are other technical questions 7
you have in mind that ought to be clearly in Docket I?
8 MR. ROISMAN:
No, Mr. Chairman, my comments this 9
morning are really making the connection of what Mr.
10 Roisman has been t'alking about and given the scope of his 11 inquiries, he's saying, "Let me see everything you've got 12 as it's being created and then we will litigate whatever
()
13 there is to look as such issues as management views, 14 problems of construction, safety issues, and we'll see if 15 they happen to be associated with harassment and 16 intimidation."
17 I would suggest, Mr. Chairman, that this Board, 18 borrow one of Applicants' expressions, with due respect, 19 the Board is not a roving commission, to ferret out such 20 instances.
There are certain functions that are properly 21 within the Office of Investigations for them to review and 22 investigate; there are others and very significant issues 23 which are currently before this Board, properly before this 24 Board, but it's not their ever-expanding, self-expanding
'}
25 role where, "Let me look, let me see, let me find, we'll TATE REPORTING SERVICE, (713) 222-7177
24224 1
bring it into the case, and we'll litigate it first or
'( b
'\\-)
2 we'll discover it first and then we'll see where it shakes 3
out."
4 There's got to be a context and proper confines 5
of the proceeding.
I think it's one which the proper 6
parties ought to address in writing to the Board with some 7
foresight and some time allowed to do it properly.
8-JUDGE BLOCH:
You would like us to ask for a.
9 finding on Docket 2 scope?
10 MR. CHANDLER:
I think it would be both dockets' 11 scope, quite frankly.
I think you have to address the case 12 as a whole.
It is one case.
-q k-)
13 JUDGE BLOCH:
So what you want is a request 14 particularly on management 15 MR. CHANDLER:
I think if you refer to our 16 October 25th filing, Mr. Chairman.
17 JUDGE BLOCH:
Better ask for a distinction l
i 18 between the two dockets, that's why I wanted to know what l
l 19 you mean when you say it's one case.
l 20 MR. CHANGLER:
Well, it is one case; there will 21 be one finding to be issued in this proceeding.
And as we 1
l 22 view the establishment of the Docket 2 Board, it's to make 23 a finding which becomes an element of the overall findings I( ()
24 to be made by the main docket board.
25 That Docket 2 board I think in shorthand would l
TATE REPORTING SERVICE, (713) 222-7177 1
=.
24225 i
1 issue some determination which would decide whether there has been a climate -- well, first, whether the allegations 2
3 of harassment and intimidation are born out.
And perhaps 4
then if the basis of those allegations that have been 5
proven, whether there does or does not exist a climate of 6
harassment and intimidation, it is then up to the Docket 1 7
. board, I would suggest, to determine whether on the basis 8
of what the Docket 2 board finds, that translates under the 9
callaway test into a pervasive test of the quality 10 assurance and quality control program.
11 JUDGE BLOCH:
So what would you want the parties 12 to brief us about?
(
13 MR. ROISMAN:
I think just those points.
I've 14 given you a very brief rendition, a preview of I think what 15 we would be telling the Board.
I think you heard something 16 from Mr. Roisman this morning, at the risk of speaking for 17 him -- and he'll correct me I'm sure -- I think he would l
18 like an opportunity to speak further on it, too.
I know 19 he's seen some of his views -- he doesn't want more time.
20 MR. ROISMAN:
The Board ruled.
21 JUDGE BLOCH:
I thought I did but --
22 MR. CHANDLER:
Well, consider this as a request 23 for reconsideration.
I think the discussion we've had here 24 this morning, Mr. Chairman, makes abundantly clear that the
(
)
(
25 Boards' understanding of the parties' understanding of the TATE REPORTING SERVICE, (713) 222-7177
= _ _..
24226 1
issues it's not there, Mr. Chairman.
I think it's a very I
2 different view of Comanche Peak proceeding'on different 3
ends of the respective tables.
4 Mr. Chairman, I think just two additional points 5
that I would like to allude to.
One, I believe the
~
6 Chairman inquired earlier about the report issued by the 7
Staff's harassment and intimidation panel.
That report was 8
issued I believe about a week and-a-half ago.
9 JUDGE BLOCH:
I didn't ask, I just said we didn't f
10 have a copy of it.
11 MR. CHANDLER:
I'm suggesting that it was sent to 12 the Board as a c.c. of a letter directed to Mr. Counsel of 13 the Applicants.
It would not be going as a separate Board 14 notification. I believe it's dated November the 4th.
15 JUDGE BLOCH:
That's unusually slow moving for 16 NRC mail.
i
-17 MR. CHANDLER:
The world works in strange and 18 wonderous ways.
1 19 The second item and final item, Mr. Chairman, is i-20 Mr. Roisman has suggested the possibility of to facilitate 21 their discovery of Applicants' in-process documents, that 22 they simply provide it to the Staff and the Staff can then 23 share it wi Mr. Roisman.
While that may have been some 24 beneficial appeal, quite frankly, Mr. Chairman it's a the
}
25 Staff simply can't afford.
TATE REPORTING SERVICE, (713) 222-7177
24227 1
JUDGE BLOCH:
That's the next topic, I think,
(_/
2 which is how to handle the in-process documents.
3 MR. CHANDLER:
That's fine, with again a preview 4
what we may have to say on that, it's a burden that it will 5
become so onerous and confusing for the Staff, I think it's 6
one that we will have to respectfully decline to accept.
7 JUDGE BLOCH:
Okay I propose that we take a ten 8
minute break right now and come back at 11:40 promptly.
9 Excuse me, 10:40.
10 (Brief recess.)
11 JUDGE BLOCH:
Starting on the next topic, which 12 falls between the two dockets in a sense because it's now
()
13 important to both, I think it will be helpful if the 14 Applicants could summarize for us the way in which the 15 documents are actually being used by the CPRT, how the 16 documents system actually works, so we can form some 17 opinion as to the degree of burdensomeness or some more 18 current method of making information available.
19 MR. GAD:
Your Honor, please, let me try to 20 respond to that precise question.
21 on this question of in-process discovery of CPRT _
22 materials, I have a complete argument I'd like to present.
23 I don't know whether you want me to present it first and 24 then take questions or take the questions first.
But I
])
25 would like to get the argument in.
TATE REPORTING SERVICE, (713) 222-7177
24228 1
JUDGE BLOCH:
About how long will the argument 2
take?
3 MR. GAD:
Oh, six minutes.
I 4
JUDGE BLOCH:
Fine.
5 MR. GAD:
Plus or minus some.
6 JUDGE BLOCH:
You sound like a lawyer, sir.
7 MR. GAD:
Well, where I come from, we'd say 8
lawyer's measure.
9 The first thing I want to underscore is that what 10 Mr. Roisman told you this morning was why this piece'or 11 that piece or that piece of CPRT output is something that 12 C.A.S.E.
should get.
We're not arguing about the scope of
()
13 discovery.
And indeed, that is so true that we ought to 14 put the following disclaimer on it and that is that when 15 CPRT discovery is produced, when the documents are 16 produced, that should not be taken as a statement, our 17 statement, that all of this stuff is relevant to one piece 18 of Contention 5 or the case.
Judgment has been made that 19 the entirety of CPRT, lock stock and barrel, will be made 20 available for C.A.S.E.
21 JUDGE BLOCH:
Does that include -- you say it's 22 not in scope, Mr. Roisman raised one question, if notes are 23 made and a document prepared later?
24 MR. GAD:
Whatever is produced by CP -- well, let
}
25 me back up a second.
Your Honor has to read this in the TATE REPORTING SERVICE, (713) 222-7177
=-
4 24229 1
context of the program plan.
The program plan has a 0,/
s, 2
description of the CPRT files.
It breaks them down into I
m 3
the essential files and the working files, though as each 4
ISAP is finished, the working files go into the central 4
5 files. We still call them working files for purposes of 6
argument.
7 Program plan is reasonably specific about the 8
minimum that is required to'be in those files.
Those files 9
are required to document each and every step in the 10 analytical process by which the conclusions are made, which 11 conclusions are made, which conclusions hopefully will 12 dispose of this problem presented as stated in the.ISAP,
)
13 itself.
The ISAP is the question, the results report in 14 the answer.
The program plan says that the files must 15 document each and every step by which the review team 16 leader and the senior review team reach whatever 17 conclusions they do in response.
18 JUDGE BLOCH:
To clarify, if there are field 19 notes of something happening and then there's a document
^
20 written about the field notes, the fields notes are still 21 going to be in the document --
22 MR. GAD:
They will both be in the files.
What 23 is before Your Honors, therefore, doesn't involve scope, 24 though again my little footnote, that isn't saying that all
}
25 this is relevant, it's saying we're not going to fight it, TATE REPORTING SERVICE, (713) 222-7177
24230 1
it only involves timing.
And it also involves --
2 JUDGE BLOCH:
Now wait a second.
You're not 3
fighting over discovery; you're going to fight over 4
relevance for admission of evidence?
5 MR. GAD:
Might very well.
6 JUDGE BLOCH:
Okay.
7 MR. GAD:
That's not on the plate for this 8
morning, as far as I'm concerned.
9 JUDGE BLOCH:
That's right.
If you said you were 10 not going to fight over it, I'd --
11 MR. GAD:
What is before the Board, also, 12 involves an application for leave to seek an expert
(
, itness' work papers before the expert witness has finished 13 w
14 doing his work.
That, Your Honors, is a proposition that 15 is unheard of, and alien to the rules of practice.
16 The arguments that I'm going to make to you this i.
17 morning are in fact two.
One is practical a argument, and 18 one is a legal argument.
The CP -- this is not easy for me 19 to say -- the CPRT program plan takes the total of the work 20 that's being done and it distributrd it among ISAP's, i'
21 DSAP's.
22 It describes the files that have to be prepared,
.3 the minimum files; and there are undoubtedly going to be 2
)
24 more that's in there for each ISAP and DSAP.
And it sets 25 forth a mechanism by which the review team leader and his l
TATE REPORTING SERVICE, (713) 222-7177 l-
24231 1
issue coordinator go out and do the work in the process of 2
generating their files.
3 They then write a report.
And when they're 4-through with the report, they send it to the senior review 5
team.
The senior review team will make a judgment as to 6
whether or not in regards the work done and the conclusions 7
reached, adequate to address the question.
8 If not, they will send it back to the guy.
If 9
so, then at that point that is an answer to or, if you 10 will, the completion of that part of the CPRT scope.
11 At that point, the files, since now the review 12 team leader is through with them, go into the central file;
()
13 they're maintained in Dallas.
What we have offered to 14 C.A.S.E.
is immediate access to the central files, right 15 now, pick up the phone, say you want to see it; pick up the 16 phone and say you want to see it a couple of times, that 17 stuff is available.
What we have also offered to do --
18 JUDGE BLOCH:
Right now there's nothing in those 19 files though; is that right.
20 MR. GAD:
Oh, far from that, Your Honor.
21 JUDGE BLOCH:
There are things being completed
(
22 all the time?
23 MR. GAD:
There's no complete results reports for
}
24 working files, but if you read definition in Section 3-j of 25 the program plan, it will describe for you the things that i
TATE REPORTING SERVICE, (713) 222-7177
24232 1
are essentially central files issues.
These have to do
- I)>w)
'(m 2
with program plans, with ISAP's, with attachments, with 3
procedures, with minutes of the SRT, which, by the way, are 4
not completely up to date because of the press of things, 5
but catogorically they're in there; that's available right 6
now.
7 We've also offered with respect to each ISAP and 8
DSAP, as soon as it's been approved by SRT's, so it's over 9
with, we will send C.A.S.E. a copy, we'll pick up the phone 10 and tell them that the file is available or will as soon as 11 the truck gets there, be available in Dallas for them to 12 inspect at their leisure and designate what copies -- what
(
13 documents they want copies to be made of and we will do 14 this on an ISAP by ISAP basis.
15 So there's no notion of you've got to wait until 16 the last one is done before you start looking at anything.
17 There is no necessity for doing things any other way and 18 Yours Honors, there is no practical means of doing things 19 any other way.
20 If you go through the program plan in the 21 Revision 2 form which is presently outstanding, you'll 22 count 50 ISAPS and DSAPS.
There's a potential that there 23 will be two more added by the time REV. 3 comes out.
t) 24 The working files for those ISAPS, because of the 25 way the work is being done, are or will be located some of TATE REPORTING SERVICE, (713) 222-7177
l I
24233 i
1 them in Glen Rose, Texas; some of them in Bethesda,-
!b) 2 Maryland, some of them in Berkeley, California, some of 3-them in New York City; and in a very small piece, some of 4
them in Boston, Massachusetts.
And with respect to some of 5
the ISAPS, pieces of the file are located in two or more of 6
those places because of the Division of Labor.
7 Some of these files are big and the balance of 8
them are huge, and the only one that I've scanned l
9 personally is a reasonably small ISAP, it's No. 3-D and the 10 files consist of two file cabinets, that are about yeah 11 high, about four drawers in each one and the stuff is 4
12 wedged in there so hard that it takes a guy bigger than me m/
\\ h,_
13 just to get one of the file folders out, they're all in s
14 file folders, they're all numbered.
15 JUDGE BLOCH:
That may not work for Ms. Ellis.
16 MR. GAD:
No comments.
And that's for a 17 reasonably small ISAP.
18 Until the report, the results reports have been 19 approved by SRT, these files are in constant use by the 20 people doing the work.
21 Now, this morning we heard a speculation and I 7
22 have absolutely no idea of what the basis for it is, and I 23 don't want to testify, but since it was only speculation I
)
24 guess it's fair game to respond.
There aren't copies --
25 10,000 copies of all this stuff floating around.
There's i
TATE REPORTING SERVICE, (713) 222-7177 i
. ~. - -.. - - -, - -... - -, - - - - - - -,
24234 1
only one file for each ISAP and DSAP.
And these materials' 7
\\ r" 2
are in constant use all the time.
3 The problems of trying to provide for in-process 4
review of the working files in the real world are immense.
5 Ponder this.
For openers, C.A.S.E.
is going to 6
have to travel wherever the files are, and that could be 7
Glen Rose, Texas or it could be Bethesda, New Maryland or 8
it could be Berkeley, California or it could be New York 9
City or a little tiny one, Boston, Massachusetts or maybe 10 they have to go to two places just to see what amounts to 4
11 one working file or one partial working file on an ISAP.
I 12 don't guarantee that they're complete in one city.
Indeed
)
13 I know of at least one occasion where it is spread in two.
14 Second, at the present, the files are incomplete 15 and indeed some of them probably don't even exist because 16 some of the the DSAPS are just getting underway for the 17 substantive work, but in all events documents will be added 18 to the files.
Indeed the day C.A.S.E.
leaves, there will 19 be new documents in there.
20 There are documents, and I have in mind a 21 computer printout that is updated as the samples are 22 selected and the machine figures out whether or not it's 23 excessible; and if it's inaccessible, you have to run it 24 again, that would -- it changed over time. 25 So the day C.A.S.E. leaves, they have no idea TATE REPORTING SERVICE, (713) 222-7177
24235 1 what the current status is of that file, which guarantees x-)' 2 that they're going to have to look at them again. 3 JUDGE BLOCH: When you say " change," you mean i 4 updated with new information? 5 MR. GAD: That's right, or simply stuff added. 6 So this is not a question of whether or not we 7 will look at them now or look at them later, this is a 8 question of whether or not we will do both. That's what is 9 before Your Honors because they're going to have to look at 10 them when it's finished in order to know what underlies the 11 conclusion. And I don't have to address that there is 12 simply no way to keep track of "today we had this in the ,/ m _kd-13 file, today we had that in the file," because they're a 14 mess. 15 Fourth and worse of all from our perspective, 16 indeed, completely intolerable, is that this in-process 17 review, now let's assume it only takes two days per file 18 and we've got 50 of them. While -- and somehow or another 19 whereever these files are located, these are not palatial 20 quarters out in Glen Rose, and there's not extra room in 21 Bethesda, and there's less room in Berkeley, and those are. 22 tho only three cites I've seen personally. But somehow or 23 another, you've got to get a room because you can't do () 24 files inspection wh4'.c the guys are working. 25 You're going to have to move those filen from TATE REPORTING SERVICE, (713) 222-7177
24236 1 wherever they are and put them in the room. And while \\f) (_) 2 that's be'ing done and you can't really with a practical 3 mind say, " Hey, you've got two days and then that's it," or 4 maybe we'll do precisely that, if we were ever forced to. 5 But whatever it is, the people then shutdown while that's 6 going on. 7 In-process review, were this Board to order it -- 8 and I will get in a moment to a point of argument that you 9 have no authority to order it -- but if this Board were to 10 order it, it amounts to the -- 11 JUDGE BLOCH: You do have a lawyer's notion of 12 six minutes. ) 13 MR. GAD: It amounts to a Board order conveying 14 interference and delay on doing the CPRT work and frankly 15 until we do the CPRT work, there is no case to try. 16 I therefore suggest that if this were only a 17 question of discretion, that a sound exercise of discretion 18 would mandate that this request be denied. It's not going 19 to hurt anything. 20 However, it is not, I submit to Your Honors, 21 simply a question of discretion. We believe it to be 22 firmly established that as a matter of law, what C.A.S.E. 23 seeks is impermisible. The reasons for that are as {]) 24 follows: Discovery in this proceeding is governed by the 25 Rules of Practice, which are in part modeled on the Federal TATE REPORTING SERVICE, (713) 222-7177
24237 1 Rules of Civil Procedure which have been cited to Your L (,j 2 Honor a couple of times this morning. 3 Recent cases on the particular point are 4 unanimous in holding that the principals governing expert 5 i witness discovery in this proceeding are stated by Rule 2'6 6 (b)4 of the Federal Rules of Civil Procedure. 7 The most recent case is on point is something 8 called Kerr-McGee, LBP 8538, cited September 26th, and it's 9 available only in a slip opinion -- only in a slip opinion 10 form from the Lexus machine and that doesn't make the 11 easiest reading in the world, but it's not available any ] 12 other way. ( ) 13 JUDGE BLOCH: So'what was the -- what kind of an 14 expert are we talking about? 15 MR. GAD: In that case or in the -- 16 JUDGE BLOCH: In this case. In the case that 17 you're citing. 18 MR. GAD: There were two groups of experts, Your 19 Honor, and I don't want to try to tell you exactly what 20 they were about. 'But one of them was doing a plan for 21 decommissioning and I forget what the other one was doing. 22 The other two cases on which we rely are the Sea 23 Brooke case at 17 NRC 490 and the Sheron, S-h-e-r-o-n . ((} 24 Harris case at 17 NRC 971. As I say, these cases are 25 unanimous in holding that expert witness discovery, this TATE REPORTING SERVICE, (713) 222-7177
24238 1 proceeding, is governed by Federal Rule 26 (b)4. !(ls \\ '\\_) 2 Under the principals of that rule, experts that 3 are retained for purposes of litigation are divided into 4 two groups, testifying experts and non-testifying experts. 5 Different principals govern discovery of the two groups. 6 In summary, and I want to note it up front that 7 I'm summarizing the details of 26 (b)4, but in summary, as 8 to testifying experts, you have to start with the magic 9 four interrogatories; and thereafter, if you're not 10 satisfied, you have to file a motion with the Board, or 11 have to grant it for a further discovery of expert 12 witnesses on showing of cause and with an order as to (f LL 13 expenses. 14 26 (b)4 provides with respect to nontestifying 15 experts that discovery is barred altogether, except again 16 on motion made to the Board and allowed by the Board and a 17 showing of, and I quote, " exceptional circumstances." And 18 that case deals with exceptional circumstances where it was 19 tried twice. 20 All of the CPRT personnel are experts retained 21 in anticipation of litigation. I wish to reiterate as the. 22 program plan makes clear, CPRT is doing no inspections, no 23 designs, no analyses of record. All of the CPRT people at ]) 24 the moment are also nontestifying experts within the 25 meaning of the dichotomy me erected by rule 26 (b)4, i l TATE REPORTING SERVICE, (713) 222-7177
24239 1 because until they finish their work, and until they've n) (_ 2 reached their opinions and conclusions, no decision has 3 been made as to who will testify and indeed no decision 4 could be made. 5 These cases therefore hold that the Applicants 6 have the right to insist that discovery ultimately on the 7 question of scope be extraordinarily limited. It is not 8 our preference to stand on the rights that those cases give 9 us. As I've told you up front that when this stuff is 10 -through, we have made a judgment it's going to be made 11 available lock, stock and barrel. That is a statement of 12 present intent to waive rights in the future. 13 But in order to avoid in-process discovery, 14 because of the calamitous result that would befall the 15 whole effort, and once again, you know, we have a 16 cart-before-the-horse problem, until CPRT has done its 17-work, there's no case to litigate and then for sure I have 18 ne case to discover. We're willing to stand on those 19 rights just to put off in-process discovery now. 20 I wanted to reiterate one more time that this is 21 not a question of scope, it's a question of timing. I 22 don't think Your Honors ever have to get to the legal issue 23 because I think the discretionary issue is so clear. If j } 24 necessary, we are going to stand on those rights. 25 I take it the Boards' druther is to try out this TATE REPORTING SERVICE, (713) 222-7177 ,-,,,-,,.,.-y
24240 1 issue-as a separate issue before we go through cases Docket 'O() 2 1 interrogatories one by one. Thank you. 3 JUDGE BLOCH: Yes. i I'd like to know from C.A.S.E.'s standpoint what 5 the practical implications are, how is C.A.S.E. going to 6 learn something meaningful given this massive information l 7 and does it realy matter'to it whether it gets it in j 8 process or gets it later, and why? I would think getting 9 anything meaningful at all is going to be a challenge. 10 MR. ROISMAN: That sounds like a problem the 11 Applicants have. They said all of this was prepared for 12 purposes of litigation. I wonder how they can get anything D \\ 13 meaningful out of it in the document. I 14 Can we have just one moment? 15 JUDGE BLOCH: Sure. 16 To clarify this again, are there any ISAPS or 17 DSAPS in Dallas at this point? 18 MR. GAD: No, Your Honor. There -- and again, I, 2 19 you know, I happen to have some familiarity with the stuff, 20 I just don't want to be held to the minute details. There is one that is proposed to go to SRT, and I, 21 l 22 believe the schedule for that is within the next couple of 23 weeks. f "I 24 DR. MC COLLOM: Let me ask the sequence, though. 25 When the results report is completed -- TATE REPORTING SERVICE, (713) 222-7177
24241 1 MR. GAD: Yes, Your Honor. -{ I) 2 DR. MC COLLOM: -- is that when you bring it to 3 Dallas and is that before the -- 4 MR. GAD: No, it's when it's approved. SRT used 5 to be meeting in Dallas. Now they are meeting sometimes at 6 the site; sometimes in Bethesda; and there's a proposal now 7 for even a-third place where SRT will meet. 8 When the file is available for SRT review -- I'm 9 sorry, when the results report is available for SRT review, 10 first thing SRT does is to commission someone to go out and 11 look at the files. And SRT has its own man make report to 12 them about the files. (j) 13 Then SRT has -- I mean this never happened 14 before, this is the way it's supposed to happen -- has a 15 meeting at which they debate, bring the guy in, bring his 4 i 16 report in, and they listen to it, present it, if you will, 17 paper style, and they decide whether or not they will 18 accept it. 19 If they accept it at that point, the results 20 report and the fiies, now belong to SRT. If you will in 21 the language of the program plan, are a part of the central. 22 files. But in all events they're going to be catologued i 23 and they will be taken into Dallas. 24 JUDGE BLOCH: Before the SRT sees it, it has to } 25 be assembled in the form it's going to be in if SRT TATE REPORTING SERVICE, (713) 222-7177
24242 1 approves it as is. And is a period of quiescence used at f~) (_f 2 that point? 3 MR. GAD: There's no period of quiescence 4 whatsoever. I don't want to say this, but, you know, this 5 is an awful lot of effort and if you go out there right now 6 and you say "I need something" as I did in the case of 7 interrogatory E-24, you'll be told, "Sure, I'll get it to 8 you, but there's a big delay because you're getting in the 9 way of other things." 10 JUDGE BLOCH: You've assembled the documents for 11 SRT, and for their consultants to go through it, I assume 12 at that point.it's assembled. 13 MR. GAD: It's assembled while you -- I really 14 don't understand Your Honor's question. It's assembled as 15 you do the work. 16 DR. MC COLLOM: When does SRT get it? When it's 17 finished? 18 MR. GAD: When it's finished. 19 JUDGE BLOCH: So it had to be collected together 20 for the SRT consultant to look at it to decide whether or 21 not the SRT is going to approve it. 22 MR. GAD: You're assuming -- Your Honor, I 23 believe the question assumes that you do the work, and you ~} 24 reach a quantity of file then you stop, and then you send 25 it off to someone who transforms it and then you send it to TATE REPORTING SERVICE, (713) 222-7177
i l 24243 1 SRT. It doesn't work that way. (_) 2 Then I guess I don't understand the question. 3 JUDGE BLOCH: How does the SRT get access to the 4 information that they're going to have,to act on which 5 includes all -- I understand they're going to have access 6 to all the files before they act. 7 MR. GAD: SRT is told "this result report will be 8 made available" - "will be presented to you" is the 9 language, on let's say December 1, that's not a real date, 10 I'm just making it up. 11 JUDGE BLOCH: That's a real date. 12 MR. GAD: It hasn't happened for that date is ) 13 what I'm saying. 14 SRT tells it's man, "We're going do have their 15 paper presented to us on December 1. You go out and take a 16 look at the files and you submit a report to us," which by 17 the way will itself be in the files, "as to whether or not 18 the files meet the requirements of the program plan." 19 Typically speaking, he has about a week to do 20 that, and the SRT then considers his report, it considers 21 the results report, and it, if you will, cross-examines the, 22 RTL and the IC's who did the report. 23 JUDGE BLOCH: So the people who did the report, (. V('T I'm just assuming, have access to some kind of a combined 24 25 file. Is that not true? TATE REPORTING SERVICE, (713) 222-7177
24244 1 MR. GAD: They have -- it's their own file. j-AI 2 JUDGE BLOCH: They have to fly all over the 3 country to get things in different cities and -- 4 MR. GAD: Well, the ones that are in Bethesda 5 are, to be honest with you, and Berkeley, the ones that are 6 going to come further down in the process. No one's really 7 figured out exactly how it's going to work. Frankly I 8 think SRT will go to Berkeley. But that's a debate that is 9 currently going on and to which I don't want to inject 10 myself. SRT is going to Bethesda. And SRT will probably 11 end up going to the files, not vice versa. 12 JUDGE BLOCH: Mr. Roisman, the record was not ( ) 13 being flip before, they have a lot more resourses than you 14 have to make sense out of what they're doing and the 15 question is how are you going to do it and what is your 16 -real need in order to get access to information? 17 MR. ROISMAN: Let me say as a preliminary matter, 18 that I thought the Board had already ruled that if 19 Applicants had this kind of objection, they were supposed 20 to articulate in it their objections to the discovery. 21 They have violated objections to discovery. Mr. Gad wishes - 22 us to follow the rules of procedure, the rules of procedure 23 do not allow for roving objections. (' {} 24 This argument over the experts, for instance, 25 appears in no paper and the argument about burdensomeness, TATE REPORTING SERVICE, (713) 222-7177
24245 1 the Board has a ruling outstanding that says that if they Om (_/ 2 want to object to burdensomeness, they should do so in 3 detail and I assume that they would do that in their 4 filing; they did not. 5 Nonetheless, let me answer your question, and one 6 ~ other. I believe that if the Applicants wish to make a 7 burdensomeness argument, it should be done by a witness 8 under oath in an affidavit and not from counsel. There's 9 no way for us to test the validity of that claim, although 10 it affects our rights. 11 It's a factual statement, Mr. Gad is absolutely 12 right my earlier statements were supposition; his are ) 13 hearsay. And we should have someone who's knowledgeable to 14 tell us about it. 15 Now, our first interest is in the first 16 documents, probably from what Mr. Gad said, documents that 17 come into existance before the time that he's acknowledging 18 that we have a right to discovery at all. 19 Before there was an ISAP, there was a field 20 investigation of some extent to identify the nature and 21 scope of the problem and to identify deficiencies. We want. 22 the deficiency paper, that's item No. 1, we want to know 23 whether it's a consultant who's hired by the CPRT, or fired ( ]) 24 by the CPRT or never retained by the CPRT but is on site 25 and looking who finds a deficiency, a deficiency which TATE REPORTING SERVICE, (713) 222-7177
24246 1 reflects on the question of whether or not QA/QC found that (). 2 deficiency the first time, something like a TRT. 3 JUDGE BLOCH: That was part of your other 4 discovery request that says we want it even if it's not 5 part of the CPRT. If it's within the CPRT you're going do 1 6 get it, the only question is timing. j 7 MR. ROISMAN: That is correct. But part of wnat l } 8 the CPRT does, is it also prepares deficiency papers; it 1 ( 9 prepares paper that identifies deficiencies, not evaluates 10 them, not disposes of them, not proposes what to do with 11 them but as a first order of business just says, "We've f 12 found a broken cotter pin." 13 So the first answer, I think to you is, let's 14 start with the deficiency paper. Before we get into the 15 file drawers and file drawers, unles of course the volume 16 of deficiencies found is itself so voluminous that that is 17 not feasible in the concext of Mr. Gad's discussion, but 18 then from those deficiency papers, we can do our own 19 evaluation, make some determinations and be, if the 20 Applicants wish it that way, more precise and say, "Okay, 21 here are 50 deficiencies." 22 We want to go the next step; we want to see the 23 next round of paper that these deficiencies generate. 24 That's one way, I think, to deal with the practical 25 problem. TATE REPORTING SERVICE, (713) 222-7177
24247 1 JUDGE BLOCH: Is there a big problem on waiting
- 'd 2
until the ISAPS or DSAPS are completed? 3 MR. ROISMAN: Well, you know I said earlier that 4 I didn't think that we would ever get years; we would only 5 get weeks or months of time from when we get those ISAPS 6 until when we would be expected to go to hearing, that was 7 before Mr. Gad made his presentation. 8 But what I understand from his presentation, we 9 have every reason to believe that years will be the proper 10 amount of time, given the volume of materials. We do have 11 a legitimate need for it now, in addition to the fact that 12 I think the public interest is served by n.ot having the 13 reviews be done seriotem and to some extent have them be 14 done simultaneously. 15 The process that, to steal a word from the 16 Applicants, is iterative. Applicants go out and they start. I 17 to find something; on a monthly basis they talk with the i 18 Staff about what they're finding. If we are in the dark, 19 we don't participate in that process. If we're also seeing ~ 20 material, and the only reason I suggest that the documents 21 be produced for the Staff is to save us the trouble of 22 duplicating to give them to the Staff, because the Staff 23 will also want to see the same information. i 24 nut regardless of whether they see it or we see 25 it, we take a look at that material and then we have a TATE REPORTING SERVICE, (713) 222-7177
24248 1 useful input to those monthly meetings. You've asked us as W 2 much as you can as the CPRT is evolving and developing, let 3 the parties know what we think is deficient and what is 4 wrong and we want to meet that obligation. We can't do 5 that effectively. 6 And what we find ourselves faced with on a year 7 or whatever it is from now when the ISAPS come out, is we 8 find ourselves facing the situation which it's already ( 9 happened; the events have already transpired; we're dealing 10 with history lastead of current events; that significantly 11 reduces our ability to be effective not so much in this ( 12 hearing, but in the entire administrative process in which 13 C.A.S.E. is a party. 14 So it is important to us to have it and I don't 15 understand that Mr. Gad's objection would really would go 16 to our process of starting with the first documents and 17 using those to help us narrow our requests. We probably 18 don't want to look at every ISAP. We don't want to be 19 burdened with that. But if that's our only option, that's 20 what we'll have to do. 21 I think a better option is, let us see the 22 deficiency papers, every deficiency found on site; by 23 whomever. g 24 JUDGE BLOCH: Mr. Gad, I assume that with the 25 deficiency paper, it's all filed on site, isn't it? TATE REPORTING SERVICE, (713) 222-7177
24249 1 MR. GAD: Well, we have to sta"rt, Your Honor, by ("w \\ 2 defining our terms. I think within the way the terms are 3 used by the CPRT program plan, Mr. Roisman means deviation 4
- paper, i.e.,
a suspected failure to conform to a commitment 5' or a standard. That generates a piece of paper by CPRT. 6 Interestingly enough, it also generates a piece 7 of paper by the site called an NCR. The NCR's have been 8 offered to C.A.S.E. on a current basis because they don't 9 pose the same problem. 10 So if we're talking about I want a list of all 11 the lint before I go through and see if there are any real 12 gems in there, all you have to do is look at the NCR paper ( 13 and after July 1, 1985, the NCR paper has a tag on it if 14 the NCR was generated in response to a CPRT output. And if 15 you take a look at one of these interrogatories, I can't 16 keep the numbers in my head, we made it perfectly clear 17 that's already available. 18 Let's me suggest to you Your Honors, you asked 19 the question several times -- 20 JUDGE BLOCH: Well, let me ask -- 21 MR. ROISMAN: Is that enough? 22 JUDGE BLOCH: is that enough? 23 MR. ROISMAN: This record is a history of non-NCR ) 24 writing on deficiencies found at the plant. Why would I 25 accept that representation of Mr. Gad's. TATE REPORTING SERVICE, (713) 222-7177
.a. ~ 24250 1 JUDGE BLOCH: Your representation is that later 3 '\\ > 2 when they go back and check the files they'll find that 3 every deviation is reflected in an NCR. 4 MR. GAD: Should. That's way the program reads. 5 MR. ROISMAN: That's the way it used to read. -6 But the liner plate deficiencies found by Mr. 7 Brant never made it to the NCR's until they got into the 8 hearing. 9 JUDGE BLOCH: Okay. Mr. Gad. 10 MR. GAD: Your Honors asked C.A.S.E. several 11 times, focusing, I think properly so, on why the need for 12 now versus later. And I submit to you that while you heard (C _y 13 a lot of words, the only concept you heard was "because we 14 don't want to get squeezed, we don't want to be told that 15 when we finally get these things now it's hurry up time and 16 we have to read in it a hurry, get ready to try the case." 17 There's a perfect solution to that. That is for 18 this Board to enter an order that says, there shall be a 19 discovery period, indeed it's going to be a two way street, 20 there shall be a discovery period "X" days. It starts when 21 the notice goes that the -- it starts for each ISAP when 22 the notice goes out that the working file is available. 23 And by definition you can't get pressed for a hearing b() 24 before that window is over with. And that completely 25 solves the problem, completely. And it avoids all of the TATE REPORTING SERVICE, (713) 222-7177
24251 1 chamber of horrors if you, start down the road of in-process ~ L) 2 discovery. 3 JUDGE BLOCH: C.A.S.E. is right, that if they 4 start two months early before the ISAP is finished, they're 5 not under the same pressure. 6 MR. GAD: I'm telling Your Honor that you can 7 cure the squeeze argument, " Don't squeeze me," by dealing 8 with it directly, not by creating what I submit to you is 1 9 totally unprecedented and grossly impractical approach. I '10 mean now they want someone to not only present the files i 11 but they want someone to go through and start making a 12 selection process, this we'll give them, this we won't. It ( 13 just is not practically doable and for that reason, we 14 stand on the proposition that it is not lawfully orderable. 15 And you can solve the only lament that I heard, i.e., "We 16 don't want to be squeezed" by dealing with it directly. 17 And I think it's a fine way to solve the problem. 18 JUDGE BLOCH: Is there a proceeding by which the 19 CPRT surfaces important process variables for management to 20 know about? 21 MR. GAD: I don't understand the term. 22 JUDGE BLOCH: If the CPRT uncovers something 23 that's of potential significance to the~ scheduling of the f- ) 24 work of the CPET, or that would require a substantial
- (
25 additional effort, is there a report that they gave to TATE REPORTING SERVICE, (713) 222-7177
24252 1 management so that management will know that there's N 2 something to be concerned about there? 3 MR. GAD: If a review team leader decides -- let 4 me back up a second. If you read the ISAP, some of them 5 are self expanding. Size of what you do depends on what 6 you find. 7 So a review team leader is required to consider 8 whether he's got to add issues or indeed add ISAPS and I 9 think told Your Honors at the outset there are probably two 10 more coming down as a result of this process. 11 If the review team leader perceives that, he will 12 bring that to SRT. He might do it as a prenotice, to tell 13 them I'm probably coming to you with this problem. He will 14 eventually come to them with the problem. The decision is 15 made by SRT, it's not made by Texas Utilities' Management. 16 JUDGE BROCH: Okay. So the SRT files which are 17 now currently available would show developments by the CPRT 18 that are considered to be of significance to the SRT? 19 MR. GAD: Certainly if there's any paper on them, 20 absolutely. If it was done in a collegial fashion then 21 obviously not, I don't know what the minutes show; I've 22 never looked at minutes. 23 JUDGE BROCH: Well, are there things being ) 24 excluded from the SRT minutes that are done in a collegial 25 fashion? TATE REPORTING SERVICE, (713) 222-7177
24253 1 MR. GAD: I don't know how minutes are recorded, \\/ 2 whether they only record judgments and whether they sit 3 down there and try to record discussions, I rather doubt 4 it. 5 JUDGE BROCH: I was trying to come up with a way 6 of keeping C.A.S.E. informed of current important 7 developments. I'm not sure what you're saying about 8 collegial fashion. 9 MR. GAD: Let me make this suggestion. The Staff 10 has started a notion of monthly status meetings at which, 11 you know, the second half of the meeting is to deal with 12 some particular topic and the first half of the meeting, ( 13 sometimes the first half goes second, is an update of where 14 are you. 15 C.A.S.E. is invited to these meetings; C.A.S.E. 16 has attended these meetings, last one was last week, and 17 one of the things that the Staff wanted to hear and that 18 the CPRT, RTL during 7C put on, was a description of the 19 sort of things that are being evlauated for safety 20 significance. And the one that had been found to be safety 21 significant as that term is defined in the program plan, 22 which I point out is not the way it's defined in the real 23 world, it's a much tighter threshhold, something is safety ) 24 significant for CPRT purposes and not safety significant 25 for the plant. l TATE REPORTING SERVICE, (713) 222-7177
24254 1 1 There's been one of those and that was discussed 3 'X_/ 2 at length. So if this is the kind of current events that 3 Your Honor has in mind, then the Staff has already 4 instituted a method and it's being done every month and it 5 goes on for two days. 6 But I have to come back to my underlying 7 question, what's the need for knowing what the in-process 8 status of the work is, because we've made an election for 9 our own purposes, without conceding relevance in the 10 evidentiary admission sense whatsoever, lock, scock and 11 barrel, they can have the whole thing just as soon as it's 12 finished. ( 13 MR. ROISMAN: Let me say two things. Let's focus 14 on the deficiencies. 15 JUDGE BLOCH: Deviations? 16 MR. ROISMAN: Starting at noon today, and from 17 that point on, we know because Mr. Gad has represented and 18 wouldn't represent if I weren't true, that every piece of 19 deficiency paper that is produced on the plant, they must 20 be making at least one copy of it, because there's a file 21 that it remains in, he told us everything stays in the 22 file. And there's an NCR that gets written which means 23 that someone writing an NCR has got to have access to the 24 deficiency. l 25 Signing NCR's, of course, you have to have the TATE REPORTING SERVICE, (713) 222-7177
24255 1 document that they're based upon attached with them or they 's / 2 should be, that's the general rule. 3 Now, from this point forward, the moment that 4 that piece of paper comes into existence, a copy could be 5 made available to C.A.S.E. at no, no major and hardly any 6 minor inconvenience to anyone. So if you get all the 7 deficiency paper from this point forward -- 8 JUDGE BLOCH: So you would like to have a copy of 9 each deviation that's reflected in an NCR? 10 MR. ROISMAN: That's right, in anybody. That's 11 right. The bottom level, the first person who says, 12 " Whoops, I think I got a boo-boo here," that's right, all 13 the way up. In whatever they call it, deviation, 14 deficiency, whatever. Now, what about the ones that 15 came -- 16 JUDGE BLOCH: Now, the Applicants say you have 17 access to the NCR's right now. 18 MR. ROISMAN: That's right. And -- 19 JUDGE BLOCH: Why isn't that enough? 20 MR. ROISMAN: Because we don't have the 21 underlying paper that was -- there are papers that they 22 don't write NCR's on, either because they drop the ball and 23 it never gets the NCR rider or it gets the NCR rider. ) 24 JUDGE BLOCH: You wanted a copy of each deviation 25 which was reflected in an NCR. If they drop the ball, you TATE REPORTING SERVICE, (713) 222-7177
24256 1 won't get it. 's_) 2 MR. ROISMAN: I won't get it out of the NCR file, 3 but I will get it out of the deviation report file. 4 JUDGE BLOCH: He will have misstated what the 5 state of the world is to this Board, if that*: the case. 6 They're not dropping any deviations. If you find that out 7 later, that in itself would be a ground for extending the 8 discovery period. You have access to the deviations on a 9 current basis right now, according to representation of 10 counsel. 11 MR. ROISMAN: You mean by looking at the 12 current -- ) 13 JUDGE BLOCH: By looking at the current NCR files 14 for those that are flagged as having been derived from a 15 deviation. I take it there must be some computer listing 16 of those; is that right? 17 MR. GAD: Your Honor, if I might respectfully 18 direct the Court's attention to Page 19 of our 10-22 19 response. 20 MR. ROISMAN: What was that Mr. Gad? 21 MR. GAD: The 10-22 responses to the 8-27 -- 22 MR. ROISMAN: Is that a docket -- 23 MR. GAD: I don't know. ]) 24 MR. GAD: Does it say Docket 2 on the front, if 25 it is. TATE REPORTING SERVICE, (713) 222-7177
1 24257 ) i 1 MR. GAD: No, it's not. This is Ms. Ellis' (_). 2 interoggatories, rather the answers to Ms. Ellis' 3 interrogatories. 4 MR. ROISMAN: What page? 5 MR. GAD: 19. Last paragraph, that commences on 6 that page, Your Honor, deals with NCR's. Starting on July 7' 1, 1985, someone got the bright idea of keeping precisely 8 such a list because there are NCR's being written other 9 than from CPRT sources. Before that, there is not. 10 So for after July 1, C.A.S.E. will be provided 11 with any NCR's it wants that was CPRT related. Before that 12 they're just going to have to sift through all the NCR's () 13 because no one kept track. That's all available now, i 14 because you see, I don't have to invade CPRT to make that 15 available. { 16 MR. ROISMAN: Mr. Chairman, do I understand that 17 Mr. Gad is representing that every CPRT generated deviation 18 report also results in an NCR? 19 JUDGE BLOCH: He said that three times now. 20 MR. ROISMAN: That's the Boards' understanding 21 also? We will take a look at it. We still have a problem 22 and we think it's incomplete and we will advise the board. 23 JUDGE BLOCH: Okay. And if you were to find, } 24 based on documents available to you, that you had a current 25 need to get documents for some current work that you want TATE REPORTING SERVICE, (713) 222-7177
24258 1 to do, I would suggest that at that time, you present it to ) 2 the Board so we'can weigh the need for doing it now, as 3 opposed to the in-process needs of the CPRT. 4 MR. GAD: Your Honor, please? 5 JUDGE BLOCH: Yes, sir. 6 MR. GAD: May I suggest that before anyone comes 7 to the Board, they pick up the phone and call me. I'm 8 reasonably renowned, I hope the Board will learn that over 9 time, in preferring to settle than to fight over discovery 10 issues. 11 MR. ROISMAN: My understanding was that Mr. Gad's 12 only doing Docket 1. Is he taking phone calls on Docket 2 \\ 1_/ 13 or do I have to talk to Mr. Horin? 14 MR. GAD: My phone doesn't distinguish between 15 Docket 1 and Docket 2, but it hears a lot better if it's 16 CPRT. 17 MR. ROISMAN: I didn't understand. 18 JUDGE BLOCH: All CPRT calls may go to Mr. Gad. 19 If I've heard correctly -- 20 MR. ROISMAN: We will attempt to work that out 21 with Mr. Gad and we will come to the Board if that does not - 22 work out. We will work it out in writing, however. 23 Mr. Chairman, do you want us to discuss this 26 ]) 24 (b)4, or is it -- 25 JUDGE BLOCH: Since there's no live issue about TATE REPORTING SERVICE, (713) 222-7177
24259 1 current access to in-process documents, I don't think we ~\\ / 2 need to discuss the -- 3 MS. ELLIS: May I'be heard on this before we make 4 a ruling? 5 JUDGE BLOCH: Sure. ~ 6 MS. ELLIS: Thank you. I'd like to mention the 7 problems that have been presented by our co-counsel have 8 been very well expressed for Docket 1 and 2 with a couple 9 of things that I think need to be mentioned specifically 10 .about Docket 1. 11 One thing is that by not having access in a 12 timely fashion to these particular. items, we'll be severely p lu/ 13 limited, I'm thinking now to especially in regard to the 14 design issues, we will be severely limited-in our analysis 15 time. Now, it's difficult -- 16 JUDGE BLOCH: Okay. Let me ask a follow-up 17 question on that. 18 Where it comes to design problems, are those also 19 deviations and are there NCR's to be written on those? 20 MR. GADE Basic answer is yes. The reason I 21 hesitate is that there's a slight change in the terminology-22 on the design side because of the difference in the design 23 process. But the basic answer is yes, and no mystery about ]) 24 it because since CPRT is not functioning as a director, if 25 it alerts project to a suspected non-conformance, then TATE REPORTING SERVICE, (713) 222-7177
24260 1 project has to right NCR's. And indeed under the law, h'(3 / 2 projects has to process that to see if it's 50.55 -- I'm 3 sorry, 10 CFR 50.55(e) reportable. 4 So this is no great concession that we're making, 5 just the normal operation of the way things should be. 6 JUDGE BLOCH: Okay. In the listing of NCR's, is 7 there separate designation for those that relate to design 8 as opposed to those that relate to construction? 9 MR. GAD: I rather doubt it, Your Honor, but as a 10 practical matter, the CPRT design oversight work is in its 11 relative infancy. 12 JUDGE BLOCH: So it's possible that a separate ' )^T b> 13 listing of design NCR's could be made available to C.A.S.E. 14 for its review? 15 MR. GAD: I'd have to look into that process. I 16 don't know enough about how it works. 17 JUDGE BLOCH: I hope that that could be worked 18 out because that could go a long way to solving your 19 practical problems, Ms. Ellis. 20 MS. ELLIS: I'd like to point out to the Board, 21 too, I'm sure you are aware, this is for the record, I'd 22 like to point out that whenever we have waited on 23 documents, especially regarding design documents, we've ]) 24 been extremely disadvantaged. And I'm speaking now in 25 particular of going to hearings with Signa where Mr. Doll TATE REPORTING SERVICE, (713) 222-7177
24261 1 came in on Saturday and reviewed documents received from Gsa 'i / 2 Signa for the first time before hearings began the 3 following week. I don't want to ever get into that 4 position again if at all possible to avoid. 5 Another thing that I'd like to point out is that 6 I think the Board's a little concerned that if we get 7 in-process documents we won't be able to make heads or 8 tails of them.. I want to asure the Board that if that were 9 the case we certain would let the Board know and let the 10 parties know and would not pursue it further. But I don't 11 believe that would be the case and I think that having 12 documents in a timely manner would be very helpful .:p k3J 13 especially on design. 14 JUDGE BLOCH: The way that's being set up now 15 would be that you could get current information on design 16 deviation or NCR-type problems and then if you needed to do 17 something currently to follow up on that, you'd surface 18 that to Mr. Gad initially and if his response was 19 unsatisfactory to the Board, and we would see whether there 20 was a way of weighing the in-process needs of the CPRT 21 against your current needs so you're not disadvantaged by a - 22 time crunch. 23 MS. ELLIS: One more thing I'd like to point out { ) 24 that the Signa process, while it is somewhat different from 25 what we're -- what the CPRT is doing, is in itself at least TATE REPORTING SERVICE, (713) 222-7177
24262 1 partially could be called in-process. And I think that it b 2 has been very helpful to us to receive documents from signa 3 along, although we probably still will have some additional 4 questions. I think it has been very helpful and I think it 5 will eventually be very fruitful to the hearings. Thank 6 you. 7 MR. GAD: Your Honor, may I make a suggestion? I 8 don't mean to be out of place here, but the reason -- I'm 9 going to suggest we might want to break a little bit early. IJ The reason for that is this: C.A.S.E.'s representative in 11 Docket 1 and I spent a fair amount of time yesterday 12 afternoon going over what I'm going to call the 13 nitty-gritty in that piece _..of paper. The bottom line of 14 tha't was to think about some things overnight. The 15 overnights were being discussed in the ten minute recess, 16 and we didn't measure time any better during that process 17 any others. 18 I think Your Honor might find the afternoon 19 session shortened if we had an opportunity to finish doing 20 the overnight ponders. 21 MS. ELLIS: I'd certainly agree with that. 22 JUDGE BLOCH: Off the record. 23 (Discussion off the record.) 24 JUDGE BLOCH: We'll reconvene at 12:45. 25 (Luncheon Recess.) TATE REPORTING SERVICE, (713) 222-7177
24263 1 AFTERHOON SESSION "q) 2 JUDGE BLOCH: The hearing will come to order. 3 I'd like for the record to reflect that on Page 4 4 of our statistical inference order, paragraph 2, line 5, 5 the word " inadequate" should be the word " adequate." 6 Who would like to report on the results of the 7 negotiations? 8 MR. GAD: Your Honor, I'm going to make a 9 suggestion that we take these one by one. My reason for 10 doing so is that we have now three lists that kind of 11 summarize where we've been on various times and will'give l 12 me an opportunity to flip amongst the lists. (T) _L-13 The basic agenda is as follows_with the Boards' 14 leave: In a number of places here, we have raised an 15 objection and then we have proceeded to say, in essence 16 notwithstanding and without waiving our objection, we will l 17 do the following. 18 For purposes of Phase 1, I suggest that the Boato 19 consider ar.y objections that C.A.S.E. has to what we've 2A offered to do without regard to the objection. C.A.S.E. 21 wants to ask for a ruling on objections which we have made 22 but then not stood on, and when the time comes, I'm going 23 to suggest that that is not a profitable use of time. ]) 24 JUDGE BLOCH: So maybe you could clarify what you 25 think the function is of an objection that you've made but TATE REPORTING SERVICE, (713) 222-7177
24264 1 not stood on. f )s \\_ 2 MR. GAD: It means that the next time I get a 3 similar question to which I might have a similar objection, 4 I can make it without an argument that because I answered 5 it the last time without objection. 6 JUDGE BLOCH: Ms. Ellis, are you going to have a 7 problem with that? 8-MS. ELLIS: I think when we get to that 9 particular part, I'll address that. I'd like to go through 10 the individual ones, and also -- where it applies in Docket 11 2 -- '12 THE COURT REPORTER: Miss, you're going to have ( 13 to speak up. 14 JUDGE BLOCH: You're saying it also applies in 15 Docket 27 16 MS. ELLIS: There's just one question. There's 17 just one question that applies to both Dockets 1 and 2 18 regarding NCR's. There are specifig items that we'll go 19 through and then there are a few, very few, sort of overall 20 concerns that need to be addressed. 21 JUDGE BLOCH: What document would be best for us 22 to follow as you go through? 23 MR. GAD: I think if Your Honor takes the October ) 24 22nd responses, they repeat the questions as well as the 25 responses. And if we start with No. A-1 on Page 4. TATE REPORTING SERVICE, (713) 222-7177
24265 1 MS. ELLIS: Later you'll also need to refer to @/ 2 C.A.S.E.'s original interrogatory, October 22nd. ~ 3 MR. GAD: That's correct. 4 JUDGE BLOCH: The October 22 responses. 5 MR. GAD: I happen to have an extra if that would 6 be of assistance. 7 JUDGE BLOCH: That's my problem. Let's begin. 8 MR. GAD: If we start on Page 4, Question A-1, I 9 believe that's been disposed of this morning. 10 If we turn to Page 6, we deal with, I believe 11 that's 5 and 6, we deal with Questions A-2, A-3 and A-4 as 12 a group. I believe the present status of that is to A-2 k)ym 13 and A-4. The only remaining disagreement is over the r 14 frequency of supplementation. With respect to A No. 3, I'm 15 going to go back and answer that one again. 16 MS. ELLIS: Mr. Gad has committed to make a best 17 effort to get that in the mail by Monday, the 18th. 18 MR. GAD: That is correct. 19 JUDGE BLOCH: So what is -- how are we going to 20 resolve the question of frequency of updating? 21 MR. GAD:
- Well, C.A.S.E.
has proposed that it be 22 done every two weeks or every month, and what this talks 23 about is simply an organization chart of who is in office. ) 24 Frankly, since I see little utility for knowing 25 who's in -- let's start that again. I see little TATE REPORTING SERVICE, (713) 222-7177
24266 1 usefulness for purposes of the litigation that we will ) 2 later engage in with respect to who's in office now as 3 opposed to who is in office when we're ready to litigate. 4 I have some trouble agreeing to very frequent 5 supplementations. 6 JUDGE BLOCH: So what's the frequency you want to 7 propose? 8 MR. GAD: I would say every other month. 9 JUDGE BLOCH: Is that a problem for you Ms. 10 Ellis? 11 MS. ELLIS: I would think once a month would be 12 more appropriate. 13 JUDGE BLOCH: Why would once every two months 14 matter? 15 MS. ELLIS: I think we're into a position, again, 16 where we may be having a lot of paper at the end. Also, as 17 these people come along, they may very well be that some of 18 them would have specific reason for perhaps taking 19 depositions, or trying to get other information, 20 specifically from those particular individuals. 21 JUDGE BLOCH: Is there level above which a change, 22 ought to be more than -- once every two months, is there a 23 level of person you need more current information on? 24 MS. ELLIS: I think, as I understand it, there ) 25 are still several people that are just not on board yet. TATE REPORTING SERVICE, (713) 222-7177
1 24267 1 And we would like to know about those as soon as possible 1 2 is one of our concerns. 3 JUDGE BLOCH: Suppose we say that once every two 4 ' months is enough, but there's some level of person above 5 which sort of a major person is involved and you'd like 6 information more often than once every two months. What .7 level would that be? 8 MS. ELLIS: Without seeing the organizational 9 chart, it's a little hard to specify. 10 JUDGE BLOCH: Would Mr. Beck's level be the ki'nd 11 of level we're talking about? 12 MS. ELLIS: I think that Question A-3, which ) 13 indicates second and third tiers under the management tiers 14 given on the charts is what we would*like to have. 15 JUDGE BLOCH: Once every two months. 16 MR. GAD: Moving to A No. 5, this is safe team 17 again, now, surfacing in Docket 1 as opposed to Docket 2. 18 Frankly I propose to rest on the arguments that were made 19 earlier by Mr. Horin. I understand that Ms. Ellis proposes 20 to make arguments on this one which is okay with me. 21 JUDGE BLOCH: Ms. Ellis? l 22 MS. ELLIS: I would just like to point out that 23 with regard to the safe team, the concerns in Docket 1 ) 24 differ somewhat from those in Docket 2, in that we are also i 25 concerned with the possible deficiencies or possible TATE REPORTING SERVICE, (713) 222-7177
24268 1 problem areas which have been identified as a result of the ( 2 safe team program. And this is in addition to the 3 information presented by Mr. Roisman. I just wanted to 4 point that out so that the Board would take that into 5 consideration in its deliberations. 6 Of course we understand that that would be 7 produced one place or the other, and then we would share it 8 with the other one. 9 JUDGE BLOCH: Okay. For both dockets if the safe i 10 team matters deal with an allegation of a safety deficiency 11 or a violation of plant procedures, we'd like it to be made 12 available to C.A.S.E. under the discovery. 13 MR. GAD: Page 8, Your Honors, Question A-6. 14 JUDGE BLOCH: Mr. Gad, if there is a serious 15 problem that you think the process will be compromised by 16 some disclosure of that document, we would consider 17 appropriate protective order of non-disclosure. I'm not 18 sure you really have that problem, but if you see it as a 19 problem, we would consider ordering the material specified ~ 20 in a way you want would be not disclosed. 21 MR. GAD: We will take note of that, Your Honor. 22 Page 8, No. A-6. With the preamble that C.A.S.E. already 23 has resumes for the upper tiers of CPRT, the SRT, the ) 24 RTL's, there may have been some changes here and there, I'm 25 not certain about that. With that preamble, I believe that TATE REPORTING SERVICE, (713) 222-7177
= - - - -. -- 24269 1 this falls in the category of in-process discovery that was ) 2 discussed this morning. 7 3 What Ms. Ellis would like us to be ordered to do, 4 frankly is to go out and prepare a resume for everyone 1 5 who's working for CPRT. A lot of these people don't have 6 resumes. It's not the kind of profession, and I just think 7 that's an awful lot of work to do now. 1 8 JUDGE BLOCH: Thi's is -- Ms. Ellis, this request 9 is without regard to whether these people will actually be 10 witnesses. I guess I'm wondering what possible use you 11 could make of it when you get down to this level? 12 MS. ELLIS: Well, one of the things which was -- 13 I can't-think of the inspection report number, but I 14 believe in one of the recent inspection reports, Applicants 15 were cited because there were people working I believe on 16 the CPRT team who had been formerly employed at the plant 17 doing the same kind of work. I believe that's correct. 18 And this is part of the kind of information that we are 1 19 interested in. 20 JUDGE BLOCH: You want to know whether or not 21 people working on the CPRT were previously employed at the 6 } 22 plant? 23 MS. ELLIS: That's part of our concern. That's ]) 24 one of the reasons for going as deep as we did in this 25 question. f TATE REPORTING SERVICE, (713) 222-7177
24270 1 JUDGE BLOCH: Okay. We'll sustain Applicants' 's (_) 2 objection on this interrogatory. 3 MR. GAD: Directing the Court's attention to No. 4 9, Page A-7. The story on this one, Your Honors, is we 5 have to back up for a moment, and I don't know if the Board 6 has a copy of the transcripts of the public meetings of 7 June 13th and 14th, but I have one that I'm prepared to 8 make available. 9 But this question is based on a passage on the 10 morning of June 13th. I submit that if the Board reads the 11 passage, you will find that the -- let me back up a little 12 bit. Principle focus of this two-day meeting on June 13 (T) i-13 and June 14 was to answer Staff questions about CPRT 14 efforts. Before that started, however, the -- a 15 presentation was made and.some questions were asked and 16 answered about the overall status of licensing, wholly 17 apart from the licensing boards, all the other things you 18 have to do vis-a-vis the Staff. 19 It is out of that discussion that the passage on 20 Page 33 arises and that's what this question speaks about. 21 I submit that if Your Honors read the passage on Page 33, 22 you might have to go back just a little earlier to the 23 bottem of Page 32, you will see that the efforts that are ]) 24 spoken about have nothing to do with contention 5. They 25 have to do with the use of PRA's as as management tool TATE REPORTING SERVICE, (713) 222-7177
24271 1 after you go operational. n(Ak-) 2 JUDGE BLOCH: Ms. Ellis; is that correct? 3 MS. ELLIS: It had to do with backfitting 4 activities which were under the direction'of Mr. John 5 Marshal. 6 JUDGE BLOCH: Backfitting that would be done 7 prior to completing construction, or backfitting that might 8 be required subsequent to beginning operation? 9 MS. ELLIS: This is one of our problems and what 10 we're trying to find out partially with this interrogatory. 11 We're not clear. If these are generic concerns such as TMI 12 concerns, that is not the kind of thing we're interested 13 in. 14 What we're interested in is if these are 15 Comanche Peak problems that have been identified, such as 16 with the protective coatings, they had a backfit program. 17 This is the kind of information we're interested in this 18 question. 19 JUDGE BLOCH: Mr. Gad, your representation is 20 that the work that's being done under John Marshal does not 21 consist of any current backfits. Is that correct? 22 MR. GAD: Let me put it this way. The work 23 that's described on this page is not corrective actions ) 24 with respect to found deviations or deficiencies in the 25 construction. That's material that will become available TATC REPORTING SERVICE, (713) 222-7177
24272 1 to C.A.S.E. when the files are made available. ( \\/ 2 JUDGE BLOCH: Is the work under John Marshal 3 backfitting that's currently going on? 4 MR. GAD: Some of it, Your Honor. 5 JUDGE BLOCH: 'In response to new regulatory 6 requirements, is that what you're saying, not in response 7 to deviations in the plant? 8 MR. GAD: Certainly not the latter. It is all, 9 however, outside the licensing board context. Falls in the 10 categocy of the one hundred other items that you have to 11 satisfy the Staff on, wholly apart from what is before the 12 Boards. ( 13 What I want to make clear, however, is that it's 14 corrective actions on account of found deficiencies in the 15 construction with the design, that will be available to 16 C.A.S.E. 17 JUDGE BLOCH: So if any of the work that's being 18 done under John Marshal has to do with corrections to 19 construction or design, C.A.S.E. will get that? 20 MR. GADi I believe that's absolutely so. 21 Absolutely so, Your Honor. 22 JUDGE BLOCH: What they won't get is work under 23 John Marshal that responds to regulatory requirements that { ) 24 doesn't involve corrections of design and construction. 25 MR. GAD: That is correct, Your Honor. TATE REPORTING SERVICE, (713) 222-7177
24273 1 JUDGE BLOCH: That seems like a fair (-) 2 interpretation of the scope. Let's do it that way. ~ 3 MR. GAD: Next*one is A-8; this also arises out 4 of the same -- I'm sorry, A-8 is going to be re-submitted. 5 I believe it's not before the Board this morning -- this 6 afternoon. A-9 I believe is withdrawn for the time being. 7 MS. ELLIS: Without prejudice. 8 MR. GAD: A-10 is not on the list. 9 The next one is therefore A-11 which is not being 10 pressed for the time. 11 MS. ELLIS: No, there's no real argument with it 12 as with -- we can probably cut through a lot of this by C(a_-) 13 saying that on some of these by asking follow-up questions 14 or re-submit them with a change in wording to clarify them. 15 MR. GAD: A-12 is not on the list; A-13, I think, 16 has been disposed of. A-14 and A-15 have been disposed of. 17 Pardon me if I have to hesitate for a moment on 18 that one -- 19 JUDGE BLOCH: No problem. 20 MR. GAD: -- because I've got a few lists here. 21 A-16 I believe has been disposed of. 22 A-17 and 18, I believe are satisfactory subject 23 to follow-up or re-submission of questions. ' { l]) 24 A-19 there's a problem on. If I might direct the 25 Boards' attention to Page 19 of the response with respect TATE REPORTING SERVICE, (713) 222-7177
24274 1 to documents written by project as opposed to CPRT, we made () (> 2 a proposal in there, documents are available, no problem 3 over that. 4 In order to simplify life, we made a proposal 5 that the lists would be made available, C.A.S.E. could then 6 check off the NCR's they wanted and we'd make the NCR's 7 available. 8 over the break -- I don't know how to put this 9 -- Ms. Garde said she wanted all of the NCR's and Ms. Ellis 10 said she wanted the lists, I said you can have either but 11 not both, pick one. And Your Honor is going to have to i 12 settle that. 13 JUDGE BLOCH: The question is whether they can 14 have both the lists and the NCR's, but not both? 15 MR. GAD: The lists were going to be offered, 16 Your Honor, in order to reduce the process of taking NCR's 17 and making them all available if they only wanted a piece 18 of them. I just thought that was the sensible way to do 19 it. That's what Ms. Ellis wants. Ms. Garde wants all of 20 the NCR's and I don't want to go to the trouble of doing 21 the list if we're going to have to produce all the NCR's. 22 JUDGE BLOCH: Well, Ms. Ellis is in charge, so 23 what do we want? (' ) 24 MS. ELLIS: The list; we've always gotten the 25 list. We've always gotten updates on the NCR's logs. We TATE REPORTING SERVICE, (713) 222-7177
24275 1 have all of them through the last time we asked for them; \\/ 2 we plan to continue asking for them. We've never had any 3 problems getting them from the Applicants before. 4 In addition, our reason for wanting the NCR logs 5 is that Ms. Garde wants all of the NCR's, 6 JUDGE BLOCH: What's the difference between the 7 list and the log, I don't get that. 8 MS. ELLIS: Okay. If we have the ' log, in Dallas, 9 if I have a copy of the log, I can then look at the log and i 10 request that she send me certain NCR's. 11 JUDGE BLOCH: What's the list as opposed to the 12 log? (D _ y\\ ) 13 MS. ELLIS: Well, the log, list, same thing. 14 JUDGE BLOCH: So you're going to have that. 15 MS. ELLIS: No, he says either or. 16 MR. GAD: The list Your Honor, the question, you 17 remeber, had to do with CPRT generated deviations. There 18 is a process now that flags NCR's written on account of 19 CPRT identified deviations or potential deviations. That 20 list we can make available, or we can just make all NCR's 21 available, but I don't want to put someone to the trouble 22 of keeping up a list if I'm just going to have to just 23 produce all the NCR's; it seems to me that either approach ( ) 24 is okay. I think the one we offered is reasonable, but I 25 just wish C.A.S.E. would make a selection. TATE REPORTING SERVICE, (713) 222-7177
24276 1 JUDGE BLOCH: You want all the NCR's? \\ \\ 2 MS. GARDE: We were seeking deviation reports in l 3 the CPRT. The resolution right before lunch was, since 4 they're going to make the NCR's available, we'll just take 5 the NCR's. If that doesn't work out, then we'll come back 6 to the Board and say, "This is inadequate." 7 During the break, the representation was made 8 that in response to Mrs. Ellis' question or request for the 9 lists so she can pick which NCR's are relevant to the work 10 that she wants to do, we now have to choose between either 11 all the NCR's, which is responsive to our Docket 2 requests 12 for deviation reports or the list. ) 13 MS. ELLIS: One further thing, Your Honor. On 14 the list, or the logs, Applicants have always kept NCR 15 logs. It's not something, to my knowledge, that they would 16 be starting to do just for for us. 17 JUDGE BLOCH: Is the question whether you're 18 going to actually physically deliver the NCR's to Ms. 19 Garde? 20 MR. GADE No, they'll be made available for 21 inspection and copying and I'll make sure it's in Dallas. 22 JUDGE BLOCH: So the lists and the logs will both 23 be available. {} 24 MR. GAD: If Your Honor so rules. 25 JUDGE BLOCH: I don't see any reason not to TATE REPORTING SERVICE, (713) 222-7177
24277 1 unless you just want to make it hard. l Y^) Tm/ 2 MR. GAD: No, I just wanted to do it one way 3 instead of both. 4 JUDGE BLOCH: I did rule that way, that they 5 should be both available. 6 MR. GAD: So acknowledged, Your Honor. 7 The next one is -- 8 MS. GARDE: Just a minute, Mr. Gad. 9 We never got to the point, Judge, where we talked 10 about whether or not it was acceptable to have all the 11 NCR's made available here in Dallas or available to us by 12 mail. I think certainly at a preliminary, I will come to k. 13 Dallas and lock at what they've got. But we don't have an 14 agreement yet on what is the ultimate working relationship 15 going to be on those documents. 16 JUDGE BLOCH: Okay. So as you review them, 17 you'll find out what your problems are and if there's a 18 further issue about that, we'll resolve it at that time. 19 MS. GARDE: Yes. 20 MR. GAD: Next one, Your Honors, is A-20, which 21 happily enough is on Page 20, this is one that C.A.S.E. is 22 pressing. 23 Once again, this arises out of the meeting of { ) 24 June 13, and an exchange that appears on Page 96 of the 25 transcript. And I submit that if Your Honors take a look TATE REPORTING SERVICE, (713) 222-7177
24278 1 at the referencing question, a member of Mr. Noonan's staff (_)i 2 asked Mr. Beck whether or not there might be design changes 3 that the Staff would have to look at some day. And Mr. 4 Beck's response was, "Well, right now, I don't see any." 5 But I don't know of a nuclear plant in the United States 6 that doesn't have design changes from time to time. So I'm 7 sure I can commit that we're going to have one or more for 8 you sometime in the future. And that's what gives rise to 9 this interrogatory. 10 JUDGE BLOCH: So we're talking about request for 11 FSAR amendments, aren't we? .12 MR. GAD: In essence. 13 JUDGE BLOCH: So obviously those will be public, 14 won't they. 15 MR. GAD: In essence -- 16 JUDGE BLOCH: So you're going to do it. 17 MR. GAD: When they're done. 18 JUDGE BLOCH: You'll make those available. 19 MR. GAD: They may be cvailable, Your Honor; they 20 are not relevant to Contention 5. 21 Again, I want to draw a bright line between what 22 was talked about in that transcript and any changes to the l 23 design or indeed the design analysis that arises out of the l 24 the CPRT. 25 JUDGE BLOCH: Okay. They may or may not be TATE REPORTING SERVICE, (713) 222-7177
24279 1 relevant, they'll depend upon the extent to which they were
- p
\\. r' 2 required because the commitments weren't kept during 3 construction and I'd rather have C.A.S.E. have the 4 discovery to figure out which ones are relevant and 5 irrelevant. And if there's a change in design because it's 6 required in order to keep up with what was constructed, 7 it's relevant. 8 MR. GAD: Absolutely, and it will be part of the 9 CPRT. 10 JUDGE BLOCH: Okay, and what you want to do is -- 11 MR. CHANDLER: Mr. Chairman, speaking for the 12 Staff, we're going to have some problem with the 13 proposition quite as broad as the Chairman has stated. 14 There may well be changes to the facility involving design 15 changes or whatever which are properly undertaken -- review-16 of which is properly undertaken by the Staff, but which you j 17 are not relevant to this ongoing proceeding. 18 JUDGE BLOCH: We understood that. And so if the 19 amendment is required because of a need to -- 20 MR. GAD: Long before it becomes an FSAR 21 amendant, if it is part of the output of CPRT, which has 22 its design adequacy program, principal foci of which are l 23 piping and pipe supports, cable. trays. {ff 24 JUDGE BLOCH: Okay. Rises either out of design 25 adequacy or because construction didn't meet an FSAR l l l TATE REPORTING SERVICE, (713) 222-7177 l
24280 1 commitment, C.A.S.E. will get it. 2 MR. GAD: The latter wouldn't be a design change 3 but it will be available anyhow because it will be a CPRT 4 effort and they're going to get CPRT lock, stock and 5 barrel. 6 JUDGE BLOCH: Okay. So what they won't get is 7 design changes that have nothing to do with inadequacy of 8 design. 9 MR. GAD: Precisely. 10 JUDGE BLOCH: And nothing to do with construction 11 that didn't meets FSAR commitments. 12 MR. GAD: Precisely. And also nothing to do with I 13 any of the external source issues that are responded to. Ik JUDGE BLOCH: That's consistent with the Boards' 15 understanding of the scope of this proceeding. 16 MS. ELLIS: I'm a little concerned about who will 17 be making that judgment. The Applicants will be making the 18 judgment. 19 Another aspect that I want to call to the Boards' 20 attention as I understand it, Applicants are supposed to be 21 reporting design changes to the Staff along with any other,, 22 for instance, if they change a pipe support, they're 1 23 supposed to report that as a 50.55(e) item. l 24 JUDGE BLOCH: Any change in a pipe support? 25 MS. ELLIS: Am I correct, Mr. Noonan? TATE REPORTING SERVICE, (713) 222-7177
1 l 24281 1 MR. GAD: I don't mind observing that's not our 2 view, Your Honor. 3 MR. CHANDLER: I'm not sure if I fully understood 4 what Ms. Ellis has said there. I'm not sure the statement 5 she made was wholly accurate. Could you try that one more 6 time? 7 MS. ELLIS: Okay. If there is a design change, I 8 guess a significant design change -- okay, I should have 9 prefaced it that way -- where a problem has been identified 10 with design, say of a pipe support, and it's my 11 understanding that this is supposed to be reported to the 12 Staff as a 50.55(e) item. ) 13 JUDGE BLOCH: Okay. Well obviously, from what I 14 have just said with Mr. Gad, if there's a significant 15 design change as a result of an inadequacy of design, it 16 will not only be a 50.55(e), whether it is or not, you're 17 going to get it because it's a change in a design document 18 as a result of a design review. 19 MR. GAD: That's true whether it's significant or i 20 insignificant. 21 JUDGE BLOCH: That's right. 22 Basically, the major category that I can think 23 of, where you'll have a design change that didn't come out }} 24 of the CPRT, will be again sort of regulatory requirements 25 that you're still working on. TATE REPORTING SERVICE, (713) 222-7177
24282 1 MR. GAD: I believe that's right or may that \\> 2 evolve with time. 3 JUDGE BLOCH: Okay. So I would guess that if i 4 there were a question, if you thought there were a question 5 as to whether it was a design change required to fix 6 something up, then you'd make it availab'le so C.A.S.E. 7 would know that there's a question and you wouldn't be 8 admitting that it was a necessary design change. 9 MR. GAD: I think that's fair, Your Honor. 10 JUDGE BLOCH: So let's continue. 11 MR. GAD: A-21, I believe has been disposed of 12 this morning. Likewise, I believe B -- B-1, B-2, I have 13 undertaken to answer again in light of a prior ruling of 14 the Board. 15 M'S. ELLIS: With a one month -- 16 MR. GAD: Absolutely not, I was asked how long I 17 thought it would take to do the necessary canvass, and one 18 month is a very low confidence estimate. I do not want to 19 be bound to any commitment I'm not in a position to make 20 and I don't know. 21 JUDGE BLOCH: Okay, now when The rules require 22 one month response, though, I assume you'll have to tell 23 the Board whether you run into a problem so the Board will ) 24 be aprized and will be able to grant a extension based on 25 your problem. j TATE REPORTING SERVICE, (713) 222-7177
24283 1 MR. GAD: All right. \\J 2 B-3, Your Honor, is one that the Board is going 3 to have to settle. We'didn't necessarily assist that 4 process because a line was dropped out of the responsive 5 part at the foot of Page 24, however that's not where the 6 fight is. 7 The response part was supposed to say, to the 8 extent that the requests calls for documents relating to 9 the assessment of external source issues that would be 10 available in CPRT files, 11 That is not where I understand to be the fight. 12 Once again I have to digress. This question arises out of (D 3/ 13 a discussion that occurred on the afternoon of June 13th, I 14 1985. If Your Honors take a look at the exchange, you will 15 find that it has to do with a correlation between issues 16 and resolution. 17 Unfortunately, in the course of that exchange, 18 one of the individuals used the term CAL which stands for 19 comprehensive action list. Frankly, I think that was a 20 malmeaux, that it was not intended. But in all events, 21 C.A.S.E. now wishes to have this question answered with 22 respect to the comprehensive action list. 23 I'm prepared to tender to the Board the volume in ) 24 my hands which is the comprehensive action list. This is a 25 list of all items that have to be solved or resolved for l i TATE REPORTING SERVICE, (713) 222-7177
24284 1 licensing of Comanche Peak. It has one little chapter in \\- 2 here that is entitled ASLB and it says, there's some stuff 3 in front of the ASLB and it has to be resolved. Purpose of 4 the list was to catalog everything that by definition is 5 not a licensing board issue. I'll tender this if the Board 6 would like, I'll tender the transcript, but I believe 7 that -- 3 JUDGE BLOCH: Well, we're not conducting 9 discovery. But, Ms. Ellis, what's your problem? 10 MS. ELLIS: Okay. We'd like to see the updated 11 or most recent listing because we think that it may well 12 lead to discoverable information which may be relevant to 13 these proceedings. 14 JUDGE BLOCH: If you're willing to tender it to 15 the Board, are you also willing to tender it to Ms. Ellis? 16 MR. GAD: I didn't understand this question to 17 stop with a copy of the comprehensive action list. I don't 18 mind giving away an extra copy of the book. 19 JUDGE BLOCH: Ms. Ellis, does it stop with that? 20 MS. ELLIS: At this point, I think we would be 21 satisfied with that. 4 22 MR. GAD: Sold. 23 JUDGE BLOCH: Done. ) 24 MR. GAD: I'm told that C.A.S.E. may already have 25 this. l TATE REPORTING SERVICE, (713) 222-7177
24285 1 MS. ELLIS: I was thinking there was a later -s 2 revision. 3 MR. GAD: To my knowledge, there is not. 4 MS. ELLIS: Okay. Maybe we can get together and 5 check that just to make sure. 6 MR. GAD: B-4, Your Honors, is considered 7 satisfactory. B-5 -- 8 MS. ELLIS: I think I can help a little here. We 9 can go all the way to D-1. 10 MR. GAD: I'm sorry. 11 JUDGE BLOCH: All the way to D-1. 12 MR. GAD: D-1, Your Honors, asks for two groups 13 of documents. The first are the procedures that Stone & 14 Webster will use with respect to its portion of the piping 15 reanalysis. On that we have said they will be available in 16 the files. In that aspect of it, I believe, that can be 17 disposed of. 18 However, it also asks for, if you will, the core 19 Stone & Webster stuff that they keep at home. This ( 20 information is not available to Texas Utilities. I asked 21 Stone & Webster if we could have it and they said no. I i 22 asked them, "why not?" and they said because they consider I 23 it proprietary. 24 I have suggested to Ms. Ellis under these ) 25 circumstances she should pursue discovery against Stone & f TATE REPORTING SERVICE, (713) 222-7177
24286 1 Webster directly; Stone & Webster will no doubt come in J 2 here and attempt its 2.790 showing. We will assist if we 3 can in the resolution of that process so that maybe the 4 Board won't have to rule, but as long as Stone & Webster 5 considers procedures that it's not using here, proprietary, 6 I don't have standing to either get up and waive that 7 objection or to press it. And that's what I've suggested 8 that Ms. Ellis do is to get to Stone & Webster directly. 9 JUDGE BLOCH: I'm not sure I understand what 10 you're saying. Stone & Webster is going to use these 11 modified procedures for what they do on the CPRT effort. 12 MR. GAD: Negative, Your Honor. The procedures 13 they use on CPRT will be made available to C.A.S.E. 14 JUDGE BLOCH: Okay. So it's the after the end is 15 what you won't supply. 16 MR. GAD: Precisely. 17 JUDGE BLOCH: Okay. So they're willing to make 18 available the procedures they're actually using. Is there 19 any problem with that, Ms. Ellis? 20 MS. ELLIS: I think our concern is that Stone & 21 Webster has had a lot of experience in doing these sort of. I 22 things, they have procedures that they normally use. If 23 they are now deviating from those procedures, we're ) 24 concerned that they may be lessening the stringency of 25 them, this is the sort of thing we're concerned with. TATE REPORTING SERVICE, (713) 222-7177
24287 1 That's why we would like to take a look at what h). A. 2 they normally use as compared to what they're using now. 3 That's the basic concern. 4-Now if necessary, we would certainly have no 5 problem with a protective order for them. We've got no 6 desire now to use it in any other fashion, that's our one 7 concern. 8 JUDGE BLOCH: Are these normal procedures, 9 procedures that have been used'at other plants, is that the 10 idea? 11 MR. GAD: I do not know, Your Honor, I think it's 12 the home recipe, the secret recipe. The fact of the matter 13 is -- I understand there's not an objection on this. I've 14 answered; we don't have them. And that's not an answer 15 that I use lightly because if I can pick up the phone and 16 get them, then I wouldn't give that answer. 17 The problem is that I'm not in a position to sit 18 here and make a deal on these. I'm anxious, and Texas 19 Utilities is anxious to maybe try and facilitate that 20 process but it's got to start with a correct request to 21 Stone & Webster. 22 JUDGE BLOCH: I guess to the extent that they're 23 relevant to industry practice, they're relevant to an ! D{ )
- r 24 important question in a proceeding; that is the extent to 25 which industry practice may be varied in the specific h
TATE REPORTING SERVICE, (713) 222-7177
24288 1 designs to be used at Comanche Peak. .h O 2 MR. GAD: I've not argued relevance, Your Honor. 3 JUDGE BLOCH: The Board would appreciate it if 4 you would communicate to Stone & Webster that we would like 5 their response to this. They are in some privity of 6 interest to you and I would expect -- 7 MR. GAD: Whoa, whoa, whoa, whoa. I'll go down 8 in flames, Your Honor, around my own misstakes, not anyone 9 else's. Yes, we will; we'll be happy. 10 JUDGE BLOCH: So we would expect to have some 11 answer from them. 12 MR. GAD: Let me see what we can do on that one. 13 In all event, there is no objection before the Board. 14 Next one is, I believe, D-2 has been resolved, 15 D-3 has been resolved; the next two D-4 and 5 have been 16 withdrawn, pro tem; D-6, I frankly don't know whether D-6 17 is pressed, Your Honor. 18 MS. ELLIS: D-6, we will resubmit. 19 I can help, perhaps, speed up again. The next 20 one is E-6, which'we will withdraw. 21 And the. next one would be E-13. 22 MR. GAD: On E-13, I believe C.A.S.E. has asked 23 that we make explicit the documentation was not relied upon 24 for the assertion quoted in the interrogatory which we will 25 make explicit. And on that basis, they're satisfied on l TATE REPORTING SERVICE, (713) 222-7177
24289 1 E-13 and E-14. 2 JUDGE BLOCH: Okay, so what you're making 3 explicit is there no documentation for that? 4 MR. GAD: The documentation was not relied upon 5 in making that assertion. If you went out and did the 6 original research, you'll find all sorts documentation. 7 The next one, I believe -- 8 MS. ELLIS: What did you say, I'm sorry, on E-14? 9 MR. GAD: I believe you were satisfied on E-14. 10 MR. ELLIS: Yes, with the modification and the 11 understanding that you said on all of these, that if we 12 couldn't obtain them, that you would supply them. ( 13 MR. GAD: Whatever documents. 14 Next one, I believe, with respect to E-22 -- 15 MS. ELLIS: I believe E-15 was one that you were 16 going to supply. 17 MR. GAD: E-15, the answer just wasn't available. 18 MS. ELLIS: And your ammendment is on that 19 Thursday. 20 MR. GADi I'm told the answer is sitting back in 21 Boston, Your Honor, and that means I need only get back 22 there to find them. 23 JUDGE BLOCH: Let's take about a seven minute 24 break. 25 (Discussion off the record.) TATE REPORTING SERVICE, (713) 222-7177
24290 1 JUDGE BLOCH: As we begin, I would like to state \\/ 2 that there will be some matters from this morning that we 3 will have to resolve subsequently. There's one rather 4 minor matter that seems obvious and I'm probably going to 5 describe temething that doesn't even exist. It was a point 6 Mr. Roisman made. 7 To the extent that there might be a consultant or 8 an employee of Texas Utilities doing work that falls within 9 the scope of the CPRT, but that is not being cone by the 10 CPRT, then that work should be considered subject to the 11-discovery requests that C.A.S.E. has put out in this case. 12 It's not the CPRT but it's within-the scope of the CPRT ( 13 work, then the discovery should be inicipreted to provide 14 C.A.S.E. with that information. 15 MR. GAD: May I have just a moment, Your Honor? 16 Your Honor, consistent with my philosophy, I hate 17 to pick a fight on that issue because I'm unaware of any 18 such person or organization; and frankly don't think it 19 likely. That doesn't mean it's impossible and the way 20 you've described it, that would fall squarely within the 21 class of the non-testifying expert. 22 If we let us assume, ex hypothesi, that Mr. 23 Wooldridge hired someone wholly outside of the CPRT to take ) 24 a look at them and tell them what they thought about what 25 CPRT is doing, that is a very clear non-testifying expert TATE REPORTING SERVICE, (713) 222-7177
24291 1 and that's not discoverable even as to identity or TJ 2 existence. 3 JUDGE BLOCH: And if the Applicants manage to get 4 a study of that kind and there were adverse findings in it, 5 would they have any obligations under the NRC regulations 6 to do anything about those adverse findings? 7 MR. GAD: You know, that's a knotty question, 8 Your Honor, which may be one of the reasons why it's 9 unlikely ever to arise. I don't know -- as I stand here, 10 I'm not sure I now how to resolve that difference. 11 JUDGE BLOCH: The problem I've got is what you're 12 saying is, you could have a consultant look at the plant (ny) 13 and find a problem and do nothing about it and -- 14 MR. GAD: That's simply why it doesn't happen in 15 the real world. But if you're talking straight litigation 16 issues such as the Board was dealing with in Kerr-McGee and 17 if you didn't have a collateral obligation to disclose, 18 either a CP obligation owed to the Staff or frankly an 19 obligation owed to the Board by virtue of our appears, 20 assume that aside, then I believe it would be 21 non-discoverable. 22 JUDGE BLOCH: So, it's your limitation only for 23 the things that lawyers agreed to contract for. Suppose ) 24 the management of the plant agreed to contract for 25 consultants study, would that -- is that different? TATE REPORTING SERVICE, (713) 222-7177
24292 1 MR. GAD: It could still fall in the class of a "'l 2 non-testifying expert. The way Your Honors hypothosized it 3 again I don't want to be pressed on the issue at foot. If 4 the guy comes out and it's good then maybe you can sit on 5 it and if he comes out bad, maybe you have to make public 6 and that's an awful one-way street. But the only thing I 7 don't want to do is to sit back and be silent and be 8 misunderstood as acquiescing to something that I believe. 9. not to be the law at least of discovery. 10 JUDGE BLOCH: I guess I'm not sure why the 11 principal your phrasing doesn't apply to the whole CPRT 12 effort. 3 (r 13 MR. GAD: It could and that's the reason why -- 14 that's what I argued this morning. If we choose, if we 15 shose to stand on that, Your Honor. As I said this 16 morning, we've made an election that the CPRT is going to 17 be disclosed lock, stock and barrel. 18 JUDGE BLOCH: Mr. Roisman, do you have any l 19 comments on this turn of events? 20 MR. ROISMAN: Yes, Mr. Chairman, several. 21 No. 1, we don't think the designation CPRT is I 22 necessarily the definition of either the scope of Docket 2, 23 the scope of Docket 1 or the scope of Contention 5. It's A ,i 24 Applicants' creation, I think you referred to it as V) 25 comparable to a lawyers trial plan in an earlier order, TATE REPORTING SERVICE, (713) 222-7177
24293 1 it's just something that they've used, it doesn't define \\l 2 what is relevant in this proceeding. 3 What's relevant in this proceeding is any 4 information in the Applicants' possession that is directly 5 relevant or for purposes of discovery may lead to 6 information that is relevant to the issues in the 7 proceeding. And that is not coextensive with the CPRT. 8 They're keeping out of CPRT unstead of taking 9 things that we think should be in. They have some things 10 in there which they say themselves they believe have 11 nothing to do with the hearings. They don't think they're 12 relevant issues in the hearing. So it's an irrelevant ( 13 distinction. 14 As to this experts argument, I strongly urge the 15 Board to read the case, read the rule, one of the things 16 that's crystal clear is that the only kind of expert that 17 even arguably gets within the scope of this limitation is 18 an expert whose sole reason for existence is litigation. 19 I submit that if there were no hearing, no 20 hearing board, no set of contentions, the CPRT would still 21 exist because the Applicants have mada a concession. 22 JUDGE BLOCH: We're not talking about the CPRT, 23 we're talking about these other -- O[r) 24 MR. ROISMAN: No, no, what I'm saying is on the 25 question of expertise, the only way this exception comes TATE REPORTING SERVICE, (713) 222-7177
24294 1 into play is if you have an expert who you have retained 2 for purposes of litigation but you don't -- you're not 3 going to use him to testify. 4 The Applicants conceded in their filing on 5 management views back in the summer, that they would not 6 take the plant to full power if they were given a license 7 today or as of that date. That statement is in their 8 management views, they make the statement, "If we have got 9 a license today" -- 10 JUDGE BLOCH: Why is that relevant? 11 MR. ROISMAN: It's relevant because it means that 12 all the work that's being done at the plant site is being -s (,h-13 done not because they're trying to defend against a 14 lawsuit, this isn't like your traditional tort suit, they 15 would have had to do all that work because of their ongoing 16 obligations unrelated to licensing hearings, thus none of 17 the experts are being prepared solely for purposes of 18 litigation. 19 JUDGE BLOCH: Is the Kerr-McGee case the ona 20 you're relying on'for your nonlitigating expert? 21 MR. GAD: Actually I rely on 26 B-4, the trilogy, 22 of the cases unanimous about its applicability. Your Honor 23 will find that Kerr-McGee dealt with the assertion that, 3 24 you know, if you're in there for two roles but one of them 25 is plainly in anticipation of litigation, ergo you're TATE REPORTING SERVICE, (713) 222-7177
24295 1 outside of the scope of the rule. They dealt with that 2 directly and said no, no way, that's not the rule. 3 Again, there's nothing really before the Board, 4 because as I told you, I know of no such situation, I think 5 it's unlikely in the extreme there would be such 5 6 situation; Your Honor has explored the fact that unrelated 7 to the discovery, if the hypothesis fell in, it would be 8 disclosed for other reasons. 9 So I would like to suggest respectfully and with 10 some temerity but perhaps not enough temerity that it's an 11 academic issue. 12 MR. ROISMAN: Mr. Chairman, if I may, I just want ( 13 to give two examples. 14 That appear to be relevant to the issues and not 15 apparently within the scope of this CPRT. One of them is 16 contained in a letter dated Octover 30th, 1985 from signa 17 to Mr. W. G. Counsel and on Page 2 of 9 of the attachment 18 to that letter, they are referencing a deficiency that they 19 found that had no tag with respect to that deficiency, they 20 looked at the inspection report package, they found a 21 problem, they said why did the two struts have the same 22 serial number, please explain the apparent discrepancy and 23 reason for the occurrence. L() 24 In effect, Signa carrying out its duties, 25 identifies a previously undetected QA/QC deficiency. There TATE REPORTING SERVICE, (713) 222-7177
24296 1 would be one example. kl 2 The second one is a letter from Texas Utilities 3 to Mr. Counsel to Mr. Hunter in Arlington, Texas, these are 4 the NRC office of inspection and enforcement; advising them 5 that he had verbally notified Mr. Hunnicutt of a deficiency 6 regarding the possibly impact of previously unconsidered 7 weight on the electrical raceway support system imposed by 8 the installation of separation barrier and radiant energy 9 shield material. 10 Here's another piece of a problem previously 11 undetected by the Applicants. They went ahead and did a 12 change, no one detected the fact that, didn't look -- 13 apparently looked into the fact that the change created w~ 14 another saftey problem. This also appear to be outside the 15 CPRT. 16 Now, that kind of deficiency are deficiencies 17 which at least in Docket 2, bear on the question of whether 18 the system is working or not. And on Docket 1, Mrs. Ellis' 19 interest in it is, she's concerned whether the plant has 20 been built properly. 21 JUDGE BLOCH: I was not particularly influenced 22 by what Mr. Roisman just said. But what I'd like to do is 23 to leave the ruling that I made with the understanding that ) 24 if there is actually a specific instance where you have a 7L 25 nonlitigating expert, someone who was hired for litigation TATE REPORTING SERVICE, (713) 222-7177
24297 1 purposes only and you therefore have a situation where you h)s \\- 2 think you have privilege, you'll notify the Board of the 3 existance of the situation and we'll rule at that time. 4 MR. GAD: Might we notify the Board in camara 5 under those circumstances? You might want to read the case 6 first, because the case says the vice there is just pure 7 disclosure of the existance and identity of -- 8 MR. CHANDLER: Mr. Chairman, before the Board 9 rules, I'd like to be heard for one moment. 10 MR. ROISMAN: I wanted -- does he mean in camera, 11 ex parte or does he mean simply in camera -- 12 MR. GAD: I meant ex parte. 13 MR. ROISMAN: I object. 14 JUDGE BLOCH: I don't take things ex parte. 15 MR. GAD: Your Honor's ruling is that we can 16 never avail ourselves of the privilege that 26 (b)4 17 creates, to hire a non-testifying expert and keep it to 18 ourselves. 19 JUDGE BLOCH: Just tell us -- no, after the 20 report is done, if you choose not to disclose it, you'll 21 notify us that a report has been done and the circumstances, 22 surrounding it and then the Board will rule as to whether 23 -- all right. What you want to do is to raise it in o() 7 24 advance then. If you're going to hire such a nonlitigating 25 expert in advance -- TATE REPORTING SERVICE, (713) 222-7177
24,298 1 MR. GAD: The rule Your Honor says that -- again, "/ 2 you know, I hate to do this because it's going to sound 3 like it's the biggest constitutional issue to come down in 4 a long time. I believe it to be just about academic, 5 nonetheless. 6 JUDGE BLOCH: It doesn't sound that way to me, it 7 sounds like you're planning to hire experts and you are 8 worried about -- 9 MR. GAD: That's exactly what I'm afraid of, 10 that's what it sounds like, and we have no such intention. 11 The problem is that Your Honor is at this point foreclosing 12 a reasonalby significant aspect of the lawyer's privilege. 13 And you know, unlikely as it might be that we'd ever avail 14 ourselves of it, if I -- if I sit here and be quiet, that 15 will be taken as a representation that we've acquiesced in 16 this foreclose and I'm not confident in doing that. 17 So that's why we've got a problem. Your Honor 18 perhaps might want to consider this rule and consider the 19 implications of what you've asked us to agree to and maybe 20 we can visit it again. 21 JUDGE BLOCH: We may do that. 22 MR. CHANDLER: Mr. Chairman, while I'm not 23 sure -- I am sure that I don't wholly agree with Mr. -{ ) 24 Roisman's definition of the scope of discovery under the 25 Commissions regulations, I'm not sure I wholly agree with TATE REPORTING SERVICE, (713) 222-7177
24299 1 what Mr. Gad was suggesting the role of the CPRT is, as he y K/ 2 was just explaining. 3 I think the Commission's decision in McGuire, 4 ALAB 143, may have some bearing on whether the Applicant 5 has a duty to disclose some of the information of the kind 6 the Board was speculating about. 7 MR. GAD: This is the problem, this kind of 8 discussion. I was not getting into the question of whether 9 or not either by virtue of the company holding a 10 construction permit or the company having a pending 11 application for an operating license or frankly the most 12 glaring limitation of all, us having filed our appearances (T3 V 13 before the Board, I simply wasn't addressing the question \\ 14 of whether that requires disclosure of adverse information 15 relevant to what's going on or the application from 16 whatever source. I wasn't addressing that question. 17 MR. ROISMAN: Mr. Chairman, let me propose a 18 resolution to this. As you know, Mr. Gad has no piece of 19 paper that he filed in front of the Board on this issues. 20 We have nothing. I don't see any reason for us to deal 21 with it in the abstract. We will, within the next ten 22 days, file a request for discovery that will clearly put 23 the issue before you. { ) 24 I believe that the ruling that is referred to, 25 that the rule itself and the history of it will show that TATE REPORTING SERVICE, (713) 222-7177
24300 1 this is a bugaboo. But we will make a discovery request \\- 2 that will make crystal clear that we do want to know all 3 the people who they have hired to look at any issues that 4 may arguably be relevant in the case whether it is CPRT or 5 not and he can make his argument and the Staff will make 6 their argument and the Board can rule at that time. 7 JUDGE BLOCH: I'm bet Mr. Gad likes that idea, 8 too. 9 MR. GAD: Sure, Your Honor. 10 JUDGE BLOCH: Let's do it that way. 11 MR. GAD: Back on track? 12 JUDGE BLOCH: Yes. (,br)/ 13 MR. GAD: I believe we're up to E-22, with 14 respect to which I'll simply advise the Board that there is 15 a typographical error in the answer. I believe it's a 16 reasonably obvious one, but the antecedent reference should 17 be E-8 not E-3. My secretary will hear about that one. 18 I believe that the next one that we're up to 19 is -- 20 JUDGE BLOCH: Let my silence not acquiesce in how 21 you may talk to your secretary. 22 MR. GAD: So noted, Your Honor. Shouldn't do 23 that to me when I've got these lists. !( ) 24 I believe the next one that we're up to is E-29. 25 No, I'm sorry, that's withdrawn pro tem. TATE REPORTING SERVICE, (713) 222-7177
24301 1 MS. ELLIS: E-24, I think. 2 MR. GAD: 24? 3 MS. ELLIS: That was one that was to be provided. 4 MR. GAD: Oh, yes, that's the other half of a 5 pair with E-15. 6 MS. ELLIS: I think the next is E-32, which 7 provides a change. 8 MR. GAD: There's no pending controversy on E-32 9 that I'm aware of. 10 I believe the next one is E-40 and frankly my 11 notes leave me uncertain as to whether or not E -- no, I 12 think E-40 has been. withdrawn. Am I correct on that? E-40 ( 13 wasn't even on the list. 14 MS. ELLIS: No. 15 MR. GAD: There we go. 16 Next ones are F-2 and F-3. I think that's been 17 resolved this morning. I believe Ms. Ellis wishes to argue 18 the matter. 19 MS. ELLIS: I think F-3 and F-4. I think F-2 was 20 argued. 21 JUDGE BLOCH: F-2 was what? 22 MS. ELLIS: Was all right. 23 MR. GAD: What did I say? A>(J 24 MR. WOOLDRIDGE: You said 2 and 3. 25 MR. GAD: I believe it's F-3 and F-4 Ms. Ellis TATE REPORTING SERVICE, (713) 222-7177
24302 1 wants to press. I think they were resolved this morning. A 2 If I said something different, I misspoke. 3 JUDGE BLOCH: Resolved how? 4 MR. GAD: This is all in-process CPRT materials 5 except that some of the webster materials are in the 6 central files, those that underlie Appendix D, or should 7 be. 8 MS. ELLIS: I take it that Applicants are 9 withdrawing their objection that it isn't specific enough? 10 MR. GAD: No, the question as framed is 11 deficient. I believe the answer is nonetheless responsive. 12 MR. GAD: On G-1, Your Honor, we have reached an 13 agreement to the following effect, the response -- I'm 14 sorry, this is on both G-1 and 2 -- the response where it 15 says CPSES QA/QC, will be modified to read "CPSES 16 Construction, Design or QA/QC;" and with that modification, 17 I believe C.A.S.E. is satisfied. 18 MS. ELLIS: And I believe on G-1, you had stated 19 that there was no such list; is that correct?. 20 MR. GAD: Oh, I'm sorry. On G-1 the question, 21 parsed a bit more precisely than we did when we responded,, 22 calls for the list of the contracts and we offered the 23 contracts. There is no separate list. ) 24 And I believe that brings us down to the H 25 series. The H series were actually not on Mrs. Ellis' list TATE REPORTING SERVICE, (713) 222-7177
24303 1 of November 7th, but I don't intend to stand on any ( 'T j s/ 2 objection on that ground. 3 Ms. Ellis wish6s to argue H-3. 4 MS. ELLIS: I think that the only thing that we 5 were concerned about is that that should be updated, and I 6 believe you indicated to make a best effort to do so. 7 JUDGE BLOCH: Under the Boards' order, that would 8 be an ongoing obligation. 9 MS. ELLIS: Our concern there is -- 10 JUDGE BLOCH: Is that right -- Mr. Gad, you shook 11 your head no. 12 MR. GAD: No, I didn't, Your Honor. That doesn't .p C3-) 13 really bother me. Let me tell you what the problem is. If 14 you've got a little tiny one like this, okay? Some day, 15 someone might actually respond to this thing and just 16 forget about an obligation to -- to supplement on this 17 interrogatory. That's why I frame it in terms of best 18 efforts. 19 I don't fight it. But if it's a big one everyone 20 will remember; if'it's a little one, there's a real risk of 21 it being forgotten and I just don't want to see somebody 22 least of all myself, crucified over it, and that's the 23 problem. ) 24 MS. ELLIS: This also has to do with the next one 25 which is H -- TATE REPORTING SERVICE, (713) 222-7177
24304 1 JUDGE BLOCH: The Board isn't planning any b) '( 2 crucifictions. 3 MR. GAD: That is a big relief, Your Honor. 4 MS. ELLIS: This also has to do with H-6, which 5 is the next one, and it's related to it. 6 Our problem here and what we're trying to 7 alleviate, is that from time to time, we have complete 8 documents from Signa, sometimes six, eight, ten, twelve 9 months from the time that the Applicants have done them. 10 It's not always clear exactly when they were sent to Signa. 11 But many times, the information which we received from 12 Signa is very old and we're trying tc alleviate that by ( b> 13 having the Applicants, if they would agree to do so, send 14 copies to us at the same time they answer Signa's 15 substantive questions. 16 Now I'm not talking about when Signa calls up 17 and says, "We want drawing so and so." That's not the kind 18 of information we're after. What I'm talking about is 19 where Signa has posed certain questions and the Applicants 20 are answering substantively to those specific questions 21 about specific things, some of the answers are maybe half 22 an inch or an inch thick. 23 JUDGE BLOCH: You've been getting them from Signa ( ) 24 and you want to get them from Applicants instead. 25 MS. ELLIS: Right, because of the timing. We do TATE REPORTING SERVICE, (713) 222-7177
24305 1 get them from Signa eventually but as I say, six, eight, "ss/ 2 ten, twelve months later isn't that much help. 3 JUDGE BLOCH: So this basically is a request for 4 documents provided to Signa in response to substantive 5 design questions. 6 MS. ELLIS: Right. At the same time they're sent 7 to Signa. 8 MR'. GAD: In the future. 9 JUDGE BLOCH: Yes. 10 MR. GAD: Here's my problem with this, Your 11 Honor, and this is a practical problem or perhaps you might 12 call it a process problem. D~J 13 One, we're talking about making an arrangement, 14 an informal arrangement, to try to cure this problem, 15 frankly that's one thing. But if you're talking about 16 discovery, with all of the pains and penalties and 17 ramifications of blowing it, then the rules require a far 18 greater degree of precision. I mean the tougher the l l 19 penalty, the more precise the obligation has to be so that l 20 you can measure someone's response. In the context of l 21 discovery, a request, you know, "Put me on the mailing list., 22 in the future," that just is not discovery within the 23 meaning of the rules of practice. ) 24 JUDGE BLOCH: Okay. The Board interpreted it 25 somewhat to require that documents being sent to Signa in TATE REPORTING SERVICE, (713) 222-7177
r 24306 1 response to substantive design requests should be sent as \\> 2 part of the request for documents to C.A.S.E. Is that 3 really vague or difficult or -- 4 MR. GAD: No, it is very difficult because what 5 you've done is to create an obligation that unlike 6 discovery, should be very easy to make sure that you've 7 either done it or not. You have a concrete list, you say 8 to somebody "Do this," he's got to come back and check it 9 all off. 10 Now you're telling someone to remember to do 11 something in the future. That I submit to you is why the 12 Rules of Practice have never contemplated either a 13 discovery request or practically an order on a discovery 14 request that instead of telling to you give up something 15 that you have right now, says, " Remember to do this when it 16 arises in the future." 17 JUDGE BLOCH: Okay, now I understand, of course, 18 that the obligation to do something like that may be more 19 difficult to keep track of. But when we did issue an order 20 to that effect, I' thought I was citing a section of the 21 rules to the effect that authorized that. That that is, i f, 22 there's a request for a document that's not in existence, 23 that you'll nevertheless consider it a continuing request. ) 24 And I did cite the discovery rule on that as authorizing 25 the Board to order that. TATE REPORTING SERVICE, (713) 222-7177
l 24307 1 MR. GAD: Are you talking about the 7 2 supplementation rule, Your Honor? 3 JUDGE BLOCH: Yes. 4 MR. GAD: I respectfully suggest to you that is 5 not supplementation. Supplementation is doing it again; it 6 means having -- in the normal course, it means getting a 7 second request. But even if you put it on the calendar it 8 means on a date certain you get out the old things and you 9 tell somebody, "Now update all of your responses, start 10 with A-1 and go through Z-99" or whatever they are. 11 JUDGE BLOCH: How is that different. This is a 12 request for documents, some of which already exist -- (0 (>J 13 MR. GAD: No, they do not. That was the answer 14 to G-4 or H-4. 15 JUDGE BLOCH: You've already sent -- they already 16 have design documents. They got them through a different 17 route. This is a request for -- 18 JUDGE MC COLLOM: This is H-6. 19 JUDGE BLOCH: Excuse me? 20 JUDGE MC COLLOM: H-6. 21 JUDGE BLOCH: You're not going to resupply 22 documents that are already provided by Signa, that's 23 ridiculous. ) 24 MR. GAD: No, I don't think they're asking for 25 that. Frankly, Your Honor, this is a mailing list request. TATE REPORTING SERVICE, (713) 222-7177
24308 ) 1 1 JUDGE BLOCH: How is a mailing list request s' 2 different for a request for a document that you don't have 3 now but will come into existence. 4 MR. GAD: That's not supplementation. 5 Supplementation is answer a question over again in a 6 precise time just the way the question was framed the first 7 time. 8 JUDGE BLOCH: So suppose the request was supply 9 documents that you have provided to Signa in response to 10 substantive design requests and now answer that question 11 again three months from now. 12 MR. GAD: If we put it on the same two months b' N-13 schedule we put the other one on so I can hold someone 14 accountable to it, then I'm significantly less 15 uncomfortable because I have control. 16 JUDGE BLOCH: Okay, so your real problem is the 17 schedule for response rather than the nature of the 18 request. 19 MR. GAD: And doing it off a schedule, doing it i 20 when it happens, that's where you run into -- 21 JUDGE BLOCH: Okay. So you are supplementing 22 your other responses, which is on a two-month schedule, I 23 believe we agreed to before? You'll handle this one also. 1 o() <^ 34 MS. ELLIS: Judge Bloch, just for the record, I 25 don't think it's necessarily mine to argue at this point, TATE REPORTING SERVICE, (713) 222-7177
24309 1 but I think also the fact that signa is a Board witness and \\_) 2 under certain -- 3 JUDGE BLOCH: Who is? 4 MS. ELLIS: Signa -- 5 JUDGE BLOCH: Yes. 6 MS. ELLIS: -- is a Board witness, under certain 7 protocol requirements, I think that from that consideration 8 also, we should be provided with documents in a timely 9 fashion. Otherwise I think that it would improper for 10 Applicants to provide Signa with substantive information 11 and C.A.S.E. be deprived of that information for a lengthy 12 period of time. I just want to make that point. ( 13 JUDGE BLOCH: I didn't understand the point. 14 MS. ELLIS: Okay. Signa is operating under 15 certain protocol. They regularly send us-Telecoms and so 16 forth of their communications with the Applicants. 17 When we are deprived of six, eight, ten, twelve 18 months of substantive information which the Applicants have 19 sent to signa, I don't know that ex parte would be the 20 correct term for this particular procedure but we would 21 consider that to be outside of the protocol, because we 22 have been deprived of that information, didn't know that it 23 had been received by Signa. So to that extent, I think ,f 24 that might also bear on this. o) 25 JUDGE BLOCH: We're talking about updating every TATE REPORTING SERVICE, (713) 222-7177
24310 1 two months. Mr. Gad, if you want to be really helpful, 2 what you could do is ask Mr. Beck to do this and then on 3 your two month check you could see whether he's done it. 4 MR. GAD: I'm perfectly willing to do that, Your 5 Honor, as long as that undertaking is regarded as not 6 subject to all sorts of terrible things if in the course, 7 ordinary course of human events, it's forgotten. 8 JUDGE BLOCH: Your concept of the kind of hearing ~ 9 I'm running is different from my concept of the kind of 10 hearing'I'm running. 11 MR. GAD: You won't mind if I demur on that one, 12 Your Honor. 13 JUDGE BLOCH: We haven't hung anyone by their 14 toes yet. 15 All right. Are we done with this list? 16 MR. GAD: Your Honor, I believe that there is now 17 resolved all issues presented by the 8-27 interrogatories; l 18 Ms. Ellis does not. I 19 JUDGE BLOCH: Okay Ms. Ellis. I 20 MS. ELLIS: I want to mention for the record that 21 we have been concerned that many of the Applicants 22 interrogatories gave the impression, at least to us, that 23 they were saying to come down and look at everything and on ) 24 many of the interrogatories, they said that they would e 25 provide them if and when they exist in effect and to the TATE REPORTING SERVICE, (713) 222-7177
24311 1 extent that they exist without saying whether or not they 2 exist. And our concern is that they should be more 3 specific and answer the questions as to whether or not they 4 exist rather than -- 5 JUDGE BLOCH: As an example, which answer is the 6 problem for you? 7 MS. ELLIS: I'm having trouble finding any 8 specific one. 9 I don't think I really need to give you an 10 , example to complete what I was going to say. I just wanted 11 to point out that the Applicants have now clarified that 12 when we do go down and look at documents if we say we want es 13 to look at the answer to F-3, that they will have those e 14 marked so that we can find them. It wasn't clear from some 15 of their answers that that was going to be the case and I 16 just wanted to point that out to the Board. 17 The second thing is that Mr. Gad has indicated 18 that I should contact him by phone whenever we want to look 19 at documents. I've mentioned a concern that we would like 20 to have a local contact because I've already had one 21 occasion when I was unable to reach him for, well from 22 Thursday until Tuesday of the following week, at all; 23 unable to contact him whatsoever. ) 24 He has indicated that he hopes that he's taken 25 care of that with a beeper and I've indicated that I would TATE REPORTING SERVICE, (713) 222-7177
24312 1 try to assist hin, but I wanted to, for the record, state 2 that we may well be back if we're running into problems 3 with that. And I'd like -- 4 JUDGE BLOCH: Will Mr. Gad know in advance the 5 days you're going to be at the plant so he'll be 6 particularly able to respond to that need? 7 MS. ELLIS: I will try to contact him as soon as 8 I can. I'm concerned about not being able to reach him, is 9 my only concern. 10 MR. GAD: The procedure, Your Honor, is somewhat 11 standard procedure for all the stuff we've agreed to give 12 now, is that Ms. Ellis calls me; she gives me a couple of ()/> 13 days that she'd rather do it on; I call the people -- and 14 it will be in Dallas, not at the plant site -- who are 15 going to run this show; find out which of those days is 16 acceptable to them, not necessarily that I be present, only 17 that it be coordinated. All of the documents will be 18 produced for inspection and copying in Dallas. 19 MS. ELLIS: I've handed out to everyone except 20 the Applicants a copy of our November 7th letter which we 21 sent them overnight, it's referred to the' conference call 22 on Friday. 23 On Attachment 4 to that, which is the third page, ) 24 I believe, we had gone through similar to the manner that 25 we had on our Attachment 2 to our October 26th response; TATE REPORTING SERVICE, (713) 222-7177
24313 1 provided a listing by specific objections. hTl 2-Now, as I understand what Applicants have said i 3 about'the objections, about relevancy, well, I guess one of 4 the problems is I'm not sure what they said about 5 relevancy. To me -- 6 JUDGE BLOCH: I'm not sure I understand what the 7 question is. We've gone through each of the 8 interrogatories, reached a satisfactory resolution. What 9 difference is it -- 10 MS. ELLIS: With the exception, as I mentioned at 11 the very beginning, with the exception of the things that 12 we have at the end. Mr. Gad wanted to go through those one 13 by one. This does not include this specific deal which is 14 also something which needs to be considered. 15 JUDGE BLOCH: Well, I'm not sure why. If we've 16 gone through each of the interrogatories and we've reached 17 a reasonable settlement of each interrogatory, what general 18 principals could possibly be left? 19 MS. ELLIS: Okay. There are -- if objections are 20 entered on these -- to me the purpose of an objection is to 21 indicate that you're not agreeing that you have to provide, 22 the information. Once an objection is raised, it appears 23 to be appropriate that the Board rule on it one way or 24 another. 25-JUDGE BLOCH: The only thing I'm interested in TATE REPORTING SERVICE, (713) 222-7'77
24314 1 doing is resolving actual disputes about information. To b"'# 2 the extent that there are hypothetical or theoretical 3 discussions, I'm just not interested. Well, maybe 4 intellectually interested. 5 MS. ELLIS: I guess the next thing is to discuss 6 certain statements the Applicants October 22nd responses. 7 On Page 2, under " General Responses," under Item 1, 8 Applicants stated that they are disregarding the 9 instructions contained in our paragraphs numbered 1, 2 and 10 4 through 7. And in regard to that -- 11 JUDGE BLOCH: Hold on one second. Let me get 12 that introductory language before me. O J 7 13 MS. ELLIS: Yes, the introductory language is the 14 August 27th interrogatories. 15 JUDGE BLOCH: Okay, Continue. 16 MS. ELLIS: Number one states that each 17 interrogatory should be answered fully in writing under 18 cath or affirmation and should include a sworn statement of 19 truthfulness of the answer signed by the specific 20 individual who answered and has personal knowledge of the 21 matter under discussion. 22 I'd like to point out first that the wording that 23 we've used here is for the most part been modified somewhat i r( ) 24 through the years, but primarily this is wording which V 25 we've used in these proceedings for years. And the TATE REPORTING SERVICE, (713) 222-7177
24315 1 Applicants have not objected to it prior to this time. 2 JUDGE BLOCH: Am I also correct that they have 3 haven't done it? 4 MS. ELLIS: Well, we thought they were doing it, 5 if they were not, we'd like to know. 6 JUDGE BLOCH: I don't remember that they've been 7 filing under oath and affirmations. They have, generally? 8 MS. ELLIS: Yes, yes, sir. 9 JUDGE BLOCH: At any rate, what's the 10 authority -- they're not contesting that you don't have the 11 right to do that. Is that right? 12 MR. GAD: Answers to interrogatories directed to 13 a corporation are indeed required to be under oath. It is 14 not required, however, that you single out one witness for 15 each question. Indeed, in real life it's usually not 16 possible. 17 Instruction No. 1, 7, and I'll be candid with i 18 you, I don't know whether it was just ignored in silence i 19 than previously or what was done, instruction No. 1 20 purports to change the Rules of Practice, such an 21 instruction is not valid. i 22 JUDGE BLOCH: And the way it does it is to i f 23 require that the specific individual with knowledge { ) 24 answers? 25 MR. GAD: He converts them into interrogatories TATE REPORTING SERVICE, (713) 222-7177
24316 1 as to individual people as to interrogatories to the 3 2 organization. The only vice, our response is that we made 3 in here. 4 JUDGE BLOCH: So your practice is to respond to 5 what extent do you respond under oath or affirmation? 6 MR. GAD: There's one person selected who's 7 responsible for getting these answers. Generally speaking, 8 he has personal knowledge albeit not in minute detail of 9 the area covered and when their CPRT interrogatories, 10 that's fairly easy. 11 He might consult with any number of people; he 12 might review records, he might do any number of things. 13 Hef_s_not necessarily a competent witness in the sense of 14 personal knowledge on each and every answer nor are we 15 required to supply a competent witness on each and every 16 answer. 17 The rules do not so provide, and interestingly 18 enough, the case that was distributed this morning deals 19 with this assertion as well and rejects it. And I don't 20 want to suggest that that's the only one; there's lots of 21 cases out there. i l 22 MR. ROISMAN: Mr. Chairman, since that also bears 23 on the answers that we get, can I just state what my r0 24 understandine is2 25 Mr. Gad is correct that the Applicant may answer l l TATE REPORTING SERVICE, (713) 222-7177 t.
24317 1 as they have on the set that we have in front of us from O\\2 2 Mr. Terry, I think, Terry Tyler, has signed, but that a 3 legitimate instruction request would be to identify the 4 persons who do have personal knowledge of each and every 5 answer, and that we are entitled to know that for purposes 6 of subsequent depositions or calling adverse witnesses 7 during the course of the hearing, that the Rule 33, which 8 the Federal Rule that Mr. Gad was relying on, merely says 9 that they don't have to answer each question, identifying a 10 particular person and have him, you know, sign his name and 11 say "I swear that that answer is right," they can use a 12 common person such as they have used here. But we're ( 13 entitled to know who has got personal knowledge in your 14 organization. 15 JUDGE BLOCH: Mr. Gad, do you agree with that? 16 MR. GAD: No, Your Honor. I believe that's also 17 covered in that case. That's just the same as specifying 18 one person as responsible for each answer. That is not 19 required and indeed in real life it can't be done. 20 If I direct -- if you propound interrogatories to 21 a corporation, if by doing so you are entitled to an 22 extract of all the knowledge that is available do the 23 corporation, then we address the fact that corporations G N,/ 24 can't speak or think but only act through people, then what y 25 is being suggested of all times is not possible as this TATE REPORTING SERVICE, (713) 222-7177
24318 1 case observes, and is not required. Mr. Roisman, I gather, N/ 2 is arguing instruction No. 6 of the instructions that we 3 gave notice were invalid. 4 JUDGE BLOCH: Why is six not possible? 5 MR. GAD: I said oftentimes it's not possible 6 because there is no one person who possess the entirety of 7 an answer. You're calling for corporate knowledge when you 8 serve an interrogatory on a corporation. 9 JUDGE BLOCH: So if it was said identify the 10 persons who know about each answer, that would be possible. 11 MR. GAD: It might or it might not be. There is 12 no requirement to do that in answering interrogatorries. 7'3 13 There is a provision in the Federal Rules for what's kr.own 14 as " witness sense," that is to say identify persons known 15 to you who have knowledge of "X" topics. There are no 16 witness sense in this set. 17 JUDGE BLOCH: Well, No. 6 could be interpreted 18 that way, though? 19 MR. GAD: As other 57 interrogatories? 20 JUDGE BLOCH: As a request for the witnesses who 21 ' have the information that you're relying on. 22 MR. GAD: It hasn't been so interpreted, I 23 believe the case that you have in front of you suggests r~ f 24 that's not how it ought to be interpreted. g) 25 In all events, you can't interpret it as pinning TATE REPORTING SERVICE, (713) 222-7177
24319 1 us down to who is going to defend answers to ) 2 interrogatories, and now ycu're starting to tred very 3 nicely into the proposition that you're trying to force us 4 to designate who our expert witnesses are, will be, before 5 we're ready to do so. 6 I suggest to Your Honor again, this is just about 7 in the relm of the academic; but the request of 8 interrogatories propounded to a corporation was an 9 innovation in 1938, been around for a long time, and 10 there's a large corpus juris on the subject. 11 JUDGE BLOCH: The request for the names of f 12 individuals who have specific kinds of informa. tion is an 13 allowable request. Isn't that correct? 14 MR. GAD: If it is focused and specific. If you 15 superimpose that on this set, I imagine it would take 16 months to come up with a comprehensive list and an 17 extraordinary amount of original research going out and 18 asking people what they know. 19 JUDGE BLOCH: It seems to me that when Terry 20 Tyler answered each of these questions, he had to know 21 where the information came from. All he'd have to do is 22 write down what he knew then. 23 MR. GAD: That would not be an exclusive list of 24 who are the people who had relevant knowledge which is -- 25 JUDGE BLOCH: No, just the person providing each TATE REPORTING SERVICE, (713) 222-7177
24320 1 answer. In other words -- 2 MR. WOOLDRIDGE: Maybe it wasn't a person, Your 3 Honor, maybe it was a record. 4 JUDGE BLOCH: Okay. You could do that, instead. 5 MR. GAD: There's no such requirement. All he is 6 required to do is to swear to you that this is based on his 7 personal knowledge to the extent he has any; to the extent 8 that he doesn't, it's based on information available to the 9 corporation which he is willing to tell you he believes is 10 accurate. 11 Again, the Federal Rules are significantly more 12 explicit on this, and the Federal Rule, I believe, governs. ( 27 13 This is not a novel topic. 14 MR. ROISMAN: We've been limiting our discovery 15 so far to document production; we're shortly going to start 16 doing interrogatories. 17 The objected-to instruction will be in there and 18 we intend to pursue each and every answer for each and 19 every instruction and Mr. Gad apparently will be careful to 20 make sure that he objects to each and every instruction. 21 So again I suggest that instead of us discussing 22 it here, without them having raised it as an objection and 23 C.A.S.E. having briefed it, with regard to a motion to (I) 24 compel or an opposition or protective order, you'll have an 25 opportunity to see it. I don't have to state very long TATE REPORTING SERVICE, (713) 222-7177 -w
24321 1 that I don't agree with Mr. Gad is reading his cases ss 2 correctly but I'll address that when it's presented. And 3 that's for Docket 2; I don't know whether Ms. Ellis may 4 already have the issue in Docket 1 and I don't know whether 5 Mr. Gad has raised the objection in Docket 1 as he's 6 presented it here. So it may be right there. But it's not 7 ripe in Docket 2. 8 MS. ELLIS: And in Docket 1, it appears that we 9 have a problem with this set of interrogatories. And it 10 wasn't as an objection, it was just as a statement that 11 they've disregarded the instructions. 12 JUDGE BLOCH: What's the next point that you'd 13 like me to take up, Ms. Ellis. I think.that it would 14 probably make sense to do what Mr. Roisman suggests. I do 15 have, and it seems to me that when you file material that's 16 relevant for both dockets, probably should be filed in both 17 dockets. 18 MR. ROISMAN: When we file discovery -- 19 JUDGE BLOCH: When you file a request that's 20 relevant to both dockets, it would be preferable if you 21 filed in it both dockets. So for example, if you're 22 requesting the names of individuals who have information or 23 the names of documents that were relied on, unless you only n( ) 24 intend it to be in Docket 2, it should be filed for both 25 dockets. TATE REPORTING SERVICE, (713) 222-7177
24322 1 MR. ROISMAN: I think what we have done before 2 and I don't know whether you want us to do it that way or -3 not, is, you know, basically we have had just one set of 4 discovery requests outstanding in Docket 2, that May 28th 5 informal letter and then the September 9th reiteration of 6 that with some modification. 7 Ms. Ellis has separately filed a statement saying 8 in effect "Me too, I think all those questions are relevant 9 to me." 10 Are you suggesting that we actually put a Docket 11 1 and Docket 2 heading on it or -- 12 JUDGE BLOCH: Providing it's clear that it's in k 13 both dockets, I don't care about the form of how we know 14 that. 15 MR. ROISMAN: We tried to do that and conversely 16 we've tried to identify, as I believe we did on, I believe 17 it was the MAC report discovery that Ms. Ellis did, that we 18 considered the answers relevant in Docket 2 as well as 19 Docket 1. But as we promised in our filing in response to 20 the Boards' request to the parties to address that issue on 21 the same docket filing, we're making greater efforts to be. 22 coordinating in the future. 23 JUDGE BLOCH: Ms. Ellis, are there other specific ) 24 instructions that you feel should have been adhered to? 25 MS. ELLIS: I think that No. 2 is very similar, TATE REPORTING SERVICE, (713) 222-7177
24323 1 where we~ set forth "each-interrogatory or documents hs. it-) 2 response should contain all pertinent information known to" 3 -- and we listed various people that we wanted included 4 there. 5 JUDGE BLOCH: So what would you like the Board to 6 do about that? 7 MS. ELLIS: Perhaps it would be better to file 8 something in writing, a motion to compel, regarding this 9 specific set of interrogatories, and.put before the Board 10 the specific items. 11 I would point out to the Board that Items 4, 5, 6 12 and 7, also are being disregarded by the Applicants by ('?3 i_/ 13 their own statement. And we will address them in that 14 format. 15 JUDGE BLOCH: You'll file a motion stating why 16 some or all of these things should be honored in responses? 17 MS. ELLIS: Yes. Unless the Board, you know, la unless the Board wants to -- 19 JUDGE BLOCH: No, that's fine. My only concern l 20 is that it sounds' likes something that someone who's 21 graduated from law school would be better at. And you i 22 sometimes manage to do things like that, but it sounds 23 difficult. I would urge that you try to pick out the }} 24 things that are most important to you, and that where you 25 may have overreached in some of those instructions, that TATE REPORTING SERVICE, (713) 222-7177
24324 1 you might be aware of that. () \\- 2 MS. ELLIS: I believe that concludes the August 3 27th, the answers to our August 27th interrogatories. 4 JUDGE BLOCH: Okay. My judgment is that based on 5 the progress today, that going on to other sets of 6 interrogatories at this point, that are covered by the 7 misrepresentation order, would not be fruitful. Are there 8 other interrogatories not covered by the misrepresentation 9 order? 10 MS. ELLIS: Regarding the MAC report, it's our 11 understanding from the conference call on Friday that the 12 Applicants will respond to that, I was just wondering if we l3 ('1 / ( 13 could get a commitment as to time. 14 JUDGE BLOCH: I did not hear what you said after 15 "MAC report." 16 MS. ELLIS: On the MAC report, it's my 17 understanding that the Applicants have stated they will 18 respond in accordance with the Boards' order to the rest of ) 19 the items to which they had objected on the MAC report, and 20 I would like to see if we can get a commitment from the 21 Applicants as to the timing of that, of such response. 22 JUDGE BLOCH: What did the order say? 23 MR. WOOLDRIDGE: It started the date -- with the ) 24 date of the order for a response, Your Honor, and we intend 25 to try to comply with that unless we have difficulty 4 TATE REPORTING SERVICE, (713) 222-7177
24325 1 obtaining affidavits from outsiders that were within the x/ 2 scope of your -- 3 JUDGE BLOCH: Then you'd request an extension. 4 MR. WOOLDRIDGE: Right. 5 JUDGE BLOCH: Is that it, Ms. Ellis? 6 MS. ELLIS: No, there is some more. 7 JUDGE BLOCH: Let the record reflect that Dr. 8 McCollom is leaving. 9 MS. ELLIS: I guess that the next item would be 10 C.A.S.E.'s August 7, '85 letter to Messrs. Wulerton and 11-Mizuno regarding Interrogatory 5, C.A.S.E.'s June 24th '85 12 interrogatories to Applicants regarding the MAC report, ( 13 this was regarding the Boards' order on the MAC report, 14 which asks that we try to work something out concerning 15 C.A.S.E.'s legitimate needs for some class of information, 16 overall QA/QC reports or audits or engineering audits or 17 whatever and we have sent something to the Applicants and 18 Staff to which we have gotten no response as to what we can 19 expect on that. And I think the Board probably needs to 20 help us out on that. 21 JUDGE BLOCH: What's Applicants view of the 22 status of this matter? 23 MR. HORIN: Mr. Chairman, Applicants ) 24 understanding is that the questions to which Ms. Ellis 25 refers deal simply with whether or not prior discovery TATE REPORTING SERVICE, (713) 222-7177
24326 1 requests, in other words those requests filed, sets 1 .r) \\_/ 2 through 20 -- 3 MS. ELLIS: Excuse me, just a minute. I think 4 you're looking at the wrong letter, wrong August 7th 5 letter. There are two. One of them was a request for 6 supplementations. This is a different -- 7 MR. HORIN: Perhaps we will let Ms. Ellis explain 8 what her problem is with the particular concern. 9 JUDGE BLOCH: She's requesting a specific 10 definition of the kinds of reports that would be covered in 11 Applicants supplementation response, is that what you're 12 saying? 13 MS. ELLIS: No. No. Let me preface this a 14 little bit. This refers to our August 7th lettei to 15 Messrs. Wulerton and Mizuno and the subject Interrogatory 16 5, a C.A.S.E.'s June 24th interrogatories to application 17 and request to produce regarding the MAC report and issues 18 raised by the MAC report. 19 In the Licensing Boards' July 22nd memorandum and 20 order, (Motions Related to the MAC report). The Board 21 struck C.A.S.E.'s interrogatory No. 5 in its entirety but 22 stated quote "However, the parties are encouraged to 23 discuss whether C.A.S.E. has legitimate needs for some 24 class of information that C.A.S.E. had defined in a more (]) 25 precise manner. If C.A.S.E. has such needs and cannot TATE REPORTING SERVICE, (713) 222-7177
24327 1 obtain agreements to those needs, it may file more precise () 2 interoggatories on this subject within fifteen days of the 3 dates of the issuance of this order," end quote. 4 And in talking with the Applicants and the Staff, 5 I felt that it would be preferable to send something in 6 writing which I did. 7 JUDGE BLOCH: She sent a letter and what's the 8 status of this matter? Do you have the letter? 9 MR. HORIN: I don't have a copy of that letter, 10 MR. WOOLDRIDGE: Not that August 7th letter, but 11 it was my understanding that it was involved in this entire 12 question of the supplementation of earlier response. D( _j 13 JUDGE BLOCH: So what you want is a response from-14 the Applicants about the description of what should be 15 covered. Is that right? 16 MR. WOOLDRIDGE: I thought we filed a letter in 17 response to that -- 18 MR. HORIN: Mr. Chairman, might I add something? 19 Mr. Wooldridge responded to that letter in a letter to Ms. 20 Ellis dated October 14th, it was not copied to the service 21 list. 22 JUDGE BLOCH: Do you have an October 14th 23 response? 24 ns. ELLIS: That still has to do with the } 25 supplementation. What I'm talking about has nothing to do TATE REPORTING SERVICE, (713) 222-7177
24328 l 1 with supplementation requests which was also unfortunately p I, 2 filed the same day. 3 JUDGE BLOCH: Let's handle this in a cooperat'ive l 4 fashion by talking to one another about this off the record 5 and I'll expect some prompt resolution of it. 6 MS. ELLIS: Can we take just a moment so I can 7 show them this letter? 8 JUDGE BLOCH: Let's not do that now. It's clear 9 something is not being communicated. 10 MS. ELLIS: I would point out that has been 11 listed on Page 12 of C.A.S.E.'s October 26th responses to 12 the Boards' October 15th request in addition to one of our () 13 supplementations. 114 MR. CHANDLER: Mr. Chairman, for the record, we 15 generally recall receiving that letter, I'm not sure why 16 the Staff was copied. The best of our recollection, Ms. 17 Ellis did not speak with Mr. Mizuno about the matter. But 18 it is largely a matter between the Applicant and C.A.S.E. 19 and I don't expect we'd be involved. 20 MR. HORIN: Mr. Chairman, Ms. Ellis is correct, 4 21 that this this letter is listed in her, what is it, October 22 26th pleading. Applicants were under the impression that i l 23 her concern, although she didn't go into it in that 24 pleading, that her concern had to do with the } 25 supplementation question. If she has other concern now i TATE REPORTING SERVICE, (713) 222-7177 i
24329 1 we're not aware of it. I think the Boards' suggestion to O() pursue this informally with Ms. Ellis is well advised. 2' 3 JUDGE BLOCH: Why don't you tell us what it is 4 you want the Applicants to do about this? 5 MS. ELLIS: We'd like to, per the Boards' order, 6 we presented the kind of interrogatories that we felt went 7 to the specific issues that we were concerned with. 8 JUDGE BLOCH: So there are interrogatories in 9 that letter? 10 MS. ELLIS: Yes, uh-huh. This is the kind of 11 information which we are requesting. 12 JUDGE BLOCH: Mr. Horin, is this something that () 13 you've seen or not seen. 14 MR. HORIN: We've seen that letter. I don't have 15 a copy of it with me right now. 16 JUDGE BLOCH: Okay. 17 MR. HORIN: My understanding was different from 18 Mrs. Ellis' to what the question was. 19 MR. WOOLDRIDGE: Mine too. 20 MR. HORIN: I honestly believe if we sat down and 21 talked -- 22 JUDGE BLOCH: Talk afterwards. 23 Ms. Ellis, next point. 24 MS. ELLIS: I believe that the Applicants -- 25 THE COURT REPORTER: Ma'am, speak up, please. TATE REPORTING SERVICE, (713) 222-7177
c- } 24330 1 MS. ELLIS: I believe that C.A.S.E. and the \\ - (,) 2 Applicants probably need to talk further. I believe it 3 will save time if we talk further before pursuing the next 4 item which is the request for supplementation. 5 Mr. Wooldridge has said something during the last 6 couple of weeks which I have not had adequate to time to 7 really sit down and have time review so I think it would be 8 preferable probably to pursue that before we come back 9 before the Board. 10 Did I understand the Board to say that you 11 thought it would be best not to get into the sets on the 12 credibility? () 13 JUDGE BLOCH: Yes. 14 MS. ELLIS: On Attachment 3 to our October 26th 15 response, there were some other specific matters which are 16 more generic in nature but have to do with the discovery 17 process. 18 Number 1 had primarily to do with the first sets 19 on credibility so we'll skip those for now. 20 No. 2 had to do with Signa and discovery from 21 Signa. c 22 JUDGE BLOCH: So we have no specific 23 interrogatories that involve that right now, though. 24 MS. ELLIS: Yes. Our concern was that in one 25 instance, the Applicants had responded on behalf of Signa TATE REFORTING SERVICE, (713) 222-7177
24331 1 and another instance, they had said we needed to go direct () 2 to Signa rather than through the Applicants. And we 3 understand that the Applicants' position is that any 4 interrogatories directed to their consultants or any of 5 their employees or contractors should go through the 6 Applicants. 7 But this is a little bit different situation 8 because Signa is a Board witness. So we thought it was 9 appropriate to address this to the Board and have the Board 10 decide the best way in which to handle discovery with 11 Signa. 12 Now, so far we have not really filed extensive () 13 interrogatories or requests for documents with Signa with 14 the exception of a few things, very few. We do expect to 15 be doing more of that and we'd like the Board guidance on 16 how that should be pursued. 17 JUDGE BLOCH: So there's no live question right 18 now? 19 MS. ELLIS: Other than -- 20 JUDGE BLOCH: I suggest -- why don't you talk to 21 the Applicants and find out what they prefer and then 22 decide what to do. 23 Incidently I'd like to state that the Signa is a ep 24 board witness in a very narrow sense. We haven't OJ 25 undertaken to pay any of their witness fees. TATE REPORTING SERVICE, (713) 222-7177
24332 1 MR. WOOLDRIDGE: We were going to get that (_) 2 together this afternoon and mail it to you, Your Honor. 3 MS. ELLIS: I believe that most of the rest of 4 these do have to do with credibility interrogatories and 5 they will be best addressed at a later time. 6 May we inquire as to when the Board anticipates 7 that might be? 8 JUDGE BLOCH: We're going to review the 9 Applicants' filing which we understand is probably on my 10 desk right now. Is that right? 11 MR. HORIN: If not on it now, on its way to your 12 office. () 13 MR. ROISMAN: As I understood, it was due to be 14 filed yesterday under the Boards' order. 4 15 MR. HORIN: Two weeks would have been today. 16 JUDGE BLOCH: Well, yesterday was a holiday. 4 17 The Board would like to thank the parties for 18 their cooperation today. We believe that it would be 4 19 helpful in the future -- does the Staff have a comment? 20 MR. CHANDLER: We had one additional matter we 21 did wish the raise. 22 JUDGE BLOCH: Let's do that. 23 MR. CHANDLER: That would be a request for 24 clarification of the Boards' November 6, 1985 memorandum, (7] O 25 fair warning of citations of the docket. TATE REPORTING SERVICE, (713) 222-7177
24333 1 While we recognize and appreciate the Boards' O) ( 2 efforts to clarify its October 31 order, the Staff finds 3 that perhaps additional clarification would be helpful to 4 the parties, certainly speaking for the Staff, it would be 5 helpful to the Staff. 6 Particularly the language in the second and third 7 sentences on the first page, I believe leaving somewhat 8 unclear as to on whom the burden will rest to provide 9 notification and further the timing with which that 10 notification is to be given. 11 JUDGE BLOCH: Okay. Refresh our memory, 12 notification of what? () 13 MR. CHANDLER: In its October 31, 1985 order, on 14 the part one procedural matters, the Board had ruled 15 that -- lost my place -- 16 JUDGE BLOCH: We haven't specified the specific 17 procedure to be followed on that. And we will do that 18 later. We had a procedure in Docket 2 for filing 19 preliminary findings of fact prior to hearing, and I'd 20 anticipate that there would be some timely method of 21 noticing parties of what you intend to use so that they 22 would be able to rebut it. 23 MR. CHANDLER: If the Boards are intending to set 24 forth those procedures in a subsequent order, I think the ) 25 Staff would be just as happy of waiting until that order TATE REPORTING SERVICE, (713) 222-7177
24334 1 and see whether any further clarification is necessary ( ) 2 or -- 3 JUDGE BLOCH: What we anticipate is that as we 4 approach the next hearing, we'll be able to resolve it 5 among ourselves as to whatever efficient method the parties 6 can suggest and the Board will agree to it. The purpose is 7 to'put everyone on notice. 8 Mr. Roisman? 9 MR. ROISMAN: Mr. Chairman, I don't understand. 10 The scope of this proceeding was carefully limited by the 11 Board to discovery. This document that Mr. Chandler has 12 raised sua sponte, has a response dated of December the 7th (( ) 13 as which you've invited all of us to comment on this. I 14 don't understand why Mr. Chandler would now be asking for 15 some oral ruling from one member of a four group of Board 16 instead of filing something in writing. 17 MR. CHANDLER: On the contrary I wasn't asking 18 for a ruling, Mr. Roisman. I was just bringing something 19 to the Boards' attention at this point. 20 JUDGE BLOCH: At any rate, the damage has been 21 done, the Board's responded and I see no problem. If you 1 22 have been somehow prejudiced, Mr. Roisman, I expect we 23 will -- 24 MR. ROISMAN: The thing is that C.A.S.E. is ) 25 frequently pummeled by the Staff and Applicant with doing TATE REPORTING SERVICE, (713) 222-7177
24335 1 everything to the letter, and it does seem to me that that qj is honored in breech by everyone but C.A.S.E. I think we 2 3 come closer to following these procedures. 4 I just find it irksome. I don't understand, 5 we're all lawyers here and Ms. Ellis has done this, we 6 would have given some leeway, Mr. Chandler is a lawyer, he 7 can read the documents, he knows what the Boards' order is 8 today and I don't know why we should have to have that come 9 up in the course of a discovery prehearing conference as to 10 a document which has in it a built in date for the parties 11 to -- 12 JUDGE BLOCH: Mr. Chandler, there's no reason for k() 13 you to respond. Mr. Roisman's irksomeness is noted. And I 14 think the matter is handled. 15 Ms. Ellis, is this necessary? 16 MS. ELLIS: Yes. 17 JUDGE BLOCH: Yes. 18 MS. ELLIS: For record I would just like to make 19 clear that there are other matters included in our October 20 26th filing or in other things that we've filed since then 21 which we will be discussing with the Applicants and which 22 we might have pursued further in these proceedings, but I 23 felt really we're better handled perhaps in writing before 24 the Board, I just wanted to make clear that our not raising 25 them here doesn't mean that we're through with them and TATE REPORTING SERVICE, (713) 222-7177
24336 1 we're not waiving our rights. y ^) 2 JUDGE BLOCH: I'd like to comment that when 4 3 discovery matters come up in the-future, it seems to be 4 helpful to all the parties to have a sense that the Board 5 is about to act on them. 6 So if the parties were to file interrogatories 7 and requesting motions with the awareness that the Board is 8 about to act on them and if they were to respond to 9 interrogatories with the awareness that the Board is about 10 to act on them, my sense is we'd have far fewer discovery 11 problems hanging around for a long period of time. 12 I'd like to urge the parties to take seriously () 13 the responsibility both to frame and to respond to 14 interrogatories annd discovery requests, and then it may 15 not be necessary for us to come to Dallas very often to 16 talk about such matters that can be narrowed to the point 17 where it's easy for the Board to act upon them. 18 Today's hearing is adjourned. 19 20 21 22 23 .k 25 TATE REPORTING SERVICE, (713) 222-7177 1
.sf= 1 THE STATE OF TEXAS: 2 COUNTY OF HARRIS: 3 4 I, R. Patrick Tate, CSR #1730 and Notary Public in and 5 for the State of Texas, do hereby certify that the facts as 6 stated by me in the caption hereto are true; that the above 7 and foregoing proceedings were had before and the same were 8 thereafter reduced to typewriting by me or under my 9 direction and supervision. 10 I further certify I am neither counsel of or 11 related to any party or-have any financial interest in the 12 outcome of this case, and that the above and foregoing () 13 transcript of proceedings, as set forth in typewriting, is 14 a full, true and correct transcript of the proceedings had 15 at the time set forth in the caption hereof. 16 In testimony whereof, witness my hand, this 15th 17 day of November, 1985. 18 l l 19 0 ,!si-m 20 i R'. Pa'trlck Tate, CSR #1730 ~ 21 Notary Public in and for the State of Texas 22 My Commission Expires: 10-27-88 l' 23 ( 25 i J f TATE REPORTING SERVICE, (713) 222-7177 L}}