ML20205G146
| ML20205G146 | |
| Person / Time | |
|---|---|
| Site: | Yankee Rowe |
| Issue date: | 03/31/1999 |
| From: | NRC |
| To: | |
| References | |
| CON-#299-20194 LA-R, NUDOCS 9904070149 | |
| Download: ML20205G146 (47) | |
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J.DATO : : F: Wednesday, March 31,1999 PAGES: 283 - 329 ~
jSY ANN'RILEY & ASSOCIATES, LTD.
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1025 Connecticut Avenue,NW, Suite 1014 b
Washington,' D.C.- 20036
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UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
X 4
In the Matter of:
5 TELEPHONE CONFERENCE 6
YANKEE ATOMIC ELECTRIC COMPANY 7
(YANKEE NUCLEAR POWER STATION) 8
-X 9
U.S. Nuclear Regulatory Commission 10 TWFN 3rd Floor B51 11 11545 Rockville Pike i
12 Rockville, MD i
13 Wednesday, March 31, 1999 l
14 The above-entitled matter'came on for telephone 15 conference, pursuant to notice, at 10:04 a.m.
16 APPEARANCES:
17 On behalf of the Licensing Board:
18 CHARLES BECHHOEFER, Chairman 19 THOMS MURPHY 20
' TOM ELLERMAN 21 LEE DEWEY 22-On Behalf of the Licensee:
23 THOMAS DIGNAN 24 ROBERT GAD 25' ROPES & GRAY
[\\
ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C.
20036 (202) 842-0034
284 1.
APPEARANCES:
[ Continued]
2 On Behalf of the Intervenor, New England Coalition on 3
Nuclear Pollution (NECNP).:
4 JONATRAN M. BLOCK 5
On Behalf of the Citizens Awareness Network (CAN) :
6 DEBORAH KATZ 7
On Behalf of the Franklin Regional Council of Governments 8
(FRCOG):
1 9
SAMUEL LOVEJOY 10 On behalf of the Nuclear Regulatory Commission:
11 ANN HODGDON 12 MARY ZOBLER 13 r-'
14 1
(
15 16 17 18 l
19 20 21 22 23 24 25 ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C.
20036 (202) 842-0034
.\\
285 1
PROCEEDINGS
(
2 (10:04 a.m.)
3 CHAIRMAN BECHHOEFER:
Good morning ladies and 4
gentlemen.
Is every -- I want to check who is on the line, 5
at the moment, and I'll guess I'll read from those, who are 6
supposed to be here.
7 First, from the licensee,.Mr. Dignan or Gad or 8
both?
9 MR. GAD:
Good morning, Judge Bechhoefer.
Both of 10 us are here in Bonn, and we have you loud and clear.
11 CHAIRMAN BECHHOEFER:
Okay.
Is Mr. Block on?
12 MR. BLOCK:
Yes, Your Honoi.
I'm here in Vermont.
13 CHAIRMAN BECHHOEFER:
Okay.
Ms. Katz?
)
14 MR. BLOCK:
She doesn't appear to be here, Your O
15 Honor.
16 CHAIRMAN BECHHOEFER:
Does anybody know whether 17 she planned on being here?
18 MR. BLOCK:
Yes.
She had called me yesterday and 19 said she did.
20 MR. GAD:
For what it's worth, Your Honor, we were 21 unable to get long distance service from Boston to 22 Washington.
There's some sort of a problem.
We had this 23
. problem last night.
I'm actually coming in via our T-1 into 24 our D.C.
exchange.
Did you have trouble, Don?
i 25 THE SPEAKER:
No, I got a direct connection.
(_
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Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington,-D.C. 20036 (202) 842-0034
c-1 286
-1 CHAIRMAN BECHHOEFER:
And what about Mr. Lovejoy f(
2 or Laipson?
~
'3 MR. LOVEJOY:
Good morning, Your Honor.
I'm up 4
here in Greenfield.
5 CHAIRMAN BECHHOEFER:
Okay.
And I take it you 6
were able to get in?
7 MR. LOVEJOY:
I have a second line here and, I
8_
actually, it's the fax machine and it's still eating paper.
9 But, when it opens, I mean, I can try calling Debbie from 10 here and see whether -- you know, what exactly is going on.
11 When I called that number you gave us, I had no idea what it 12 meant to use a password bridge and I just sort of intuited 13 that I would key in a number and wait and everything worked.
14 Debbie may not be quite so intuitive about this phone thing, 15 that would be my cuess, 16 MR. GAD:
Oh, Jonathan, if you could figure it 17 out, she can.
18 MR. LOVEJOY:
I guess she can, but both she and I 19 occasionally have problems with machines going into 20 rebellion against us.
It's the red eye streak in us, you 21 know.
22 CHAIRMAN BECHHOEFER:
And the other person, who 23 spoke -- who I understand was going to be on, is Mr. Davis 24 from the GrTenfield Recorder..
25 MR. BLOCK:
We don't seem to have him either, Your AliN RILEY & ASSOCIATES, LTD.
Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C.
20036 (202) 842-0034 u
m 287 1
Honor.
-Q.
2-CHAIRMAN BECHHOEFER:
He had requested to our 3
public affairs. office that he be included.
I guess I called 4
you all about that and everybody I talked to.had no 5
objection.
So, I said it was'okay.
But, he has to call in, 6-in order to --
7 JUDGE MURPHY:
Yeah.
8 CHAIRMAN BECHHOEFER:
How about the staff?
Ann 9
Hodgdon or the other staff members, are you on?
10 MS. HODGDON:
Yes.
I have a number of people with 11 me.
Would you like me to identify them?
12 CHAIRMAN BECHHOEFER:
Yen 13 MS. HODGDON:
Okay.
I'm Ann Hodgdon from the NRC f 'N 14 staff, and with me is Marianne Zobler, who is also NRC staff e
.V-15
. counsel; and I, also, have Larry Pittiglio; and --
16 MR. BLOCK:
Could you spell that?
f 17 MS. HODGDON:
P-I-t-t-I-g-1-I-o.
18 MR. BLOCK:
P-I-t-t-I-g-1-I-o.
19 MS. HODGDON:
Okay?
l 20' MR. BLOCK:
Yeah.
21 MS. HODGDON:
And I have Mark Fairtile, i
22 F-a-I-r-t-I-1-e; and I have Mike Masnik, M-a-s-n-I-k.
23-MR. BLOCK:
Great; thank you.
24 MR. GAD:
We're all outnumbered.
25
[ Laughter.]
\\s)
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288 1
CHAIRMAN BECHHOEFER:
And here, we have myself, 2
Judge Murphy, and Judge Ellerman.
3 JUDGE MURPHY:
No, we don't.
4 CHAIRMAN BECHHOEFER:
Oh, Judge Ellerman, he's in 5
Are you on, Tom?
6 JUDGE MURPHY:
I'm going to leave and see if I can 7
get Katz and Ellerman on.
8 CHAIRMAN BECHHOEFER:
Okay.
Okay, time out for a 9
moment.
Judge Murphy is going to go out and see if he can l
10 get Judge Ellerman.
And I know Judge Ellerman is there, 11 because we were talking to him a few minutes ago, so --
12 MR. GAD:
The lady that I spoke with at --
13 THE SPEAKER:
Here comes someone, 14 MS. KATZ:
Hi.
e-k 15 CHAIRMAN BECHHOEFER:
Hello?
l 16 MS. KATZ:
Hello?
)
17 MR. BLOCK:
Identify yourself, please.
18 MS. KATZ:
This is Deborah Katz from the Citizens q
19 Awareness Network.
20 CHAIRMAN BECHHOEFER:
Okay.
21 MR. BLOCK:
Welcome aboard.
22 CHAIRMAN BECHHOEFER:
Okay, we're still trying to 23 get one other -- Judge Ellerman is not on yet, so we're 24 trying to get him on.
Everybody else is here.
And as I 25 said,.Mr. Richie Davis had inquired and I had said lasc j
i l
(,_3j ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C.
20036 (202) 842-0034
289 1
night to our public affairs that he could come on.
- But,
(~h
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2 he's not here either, apparently.
3 MR. BLOCK:
Your Honor, I just got a message from 4
the Greenfield Reporter that they are attempting to call in 5
and so far haven't been able to get a circuit to get in.
6-CHAIRMAN BECHHOEFER:
Oh, okay.
7 MR. BLOCK:
They are trying.
8 CHAIRMAN BECHHOEFER:
Okay.
We'll wait a minute.
9 So, we're sorry it didn't go through all immediately, but --
10 (Pause.]
11 MR. BLOCK:
Did we get Judge Ellerman on?
i 12 CHAIRMAN BECHHOEFER:
Not yet.
We're trying.
13 We're not sure why.
I know he's at his home, because we l
14 talked to him about 15 or 20 minutes ago.
Y 15 MR. LOVEJOY:
He might be looking through the 16 video phone hookup.
17 MR. GAD:
Just for chance, if there's a motion in i
18 support of moving the venue to North Carolina, I'm inclined 19 to support it.
20
[ Laughter.]
21 (Pause.1 22 JUDGE MURPHY:
Judge Ellerman?
23.
JUDGE ELLERMAN:
Yes, I'm here.
24 JUDGE MURPHY:
Great.
I think we've got everybody 25 now.
ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C.
20036 (202) 842-0034
r
.290 1
CHAIRMAN BECHHOEFER:
Well, the Reporter didn't 4O
\\~/
2 make it, yet; but if he gets on, so be it.
I might say this 3
conference -- telephone conference is being recorded.
There 4
will be a transcript available.
5 The major purpose of this call was to set some 6
schedules for the proceeding for discovery, that type of 7
thing.
But',~in addition, we may say a few words about -- we 8
received a motion by fax and I think everybody did receive 9
this from the licensee.
And we were considering -- we think 10 we should perhaps have substantive responses, unless people 11 are prepared to address it all today, but substantive 12 responses would probably be desirable -- written responses, 13 I should say.
And we were going to include in our 14 scheduling a scheduling for filing that.
15 But, to start -- is someone else trying to get on 16 now?
17 MR. DAVIS:
Yes, this is Richey Davis calling from 18 the Reporter.
19 CHAIRMAN BECHHOEFER:
Oh, okay.
Yes, well, we 20 expected you.
21 MR. DAVIS:
I had some trouble getting through.
22 CHAIRMAN BECHHOEFER:
You haven't heard very much 23
-yet.
We've identified ourselves, but --
24 MR. DAVIS:
Oh, okay.
25 CHAIRMAN BECHHOEFER:
I mean, you haven't missed l
l IJRJ RILEY & ASSOCIATES, LTD.
Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C.
20036 (202) 842-0034
291 1-much,.I should say.
~~
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MR. DAVIS:
It was just a lot of trouble coming 3
through.
4 CHAIRMAN BECHHOEFER:
Yeah, you weren't the only 5
one, who had some trouble getting through.
I had said that 6
we're here to set schedules for the rest of the proceeding 7
and we, also, think we'll include in the schedule time for 8
response, at least, to.the motion that we got yesterday, I 9
guess it was, by fax, and I -- but everybody -- all the 10 parties have received that.
11 And the motion, itself -- should we talk about the 12 motion?
Okay, are the staff and the other parties prepared, 13 at this time, to respond to that motion or should we set a schedule?
tO 14 15 MS. HODGDON:
The staff would prefer to respond in 16 writing.
17 CHAIRMAN BECHHOEFER:
Right.
18 MS. HODGDON:
This is Ann Hodgdon.
19 CHAIRMAN BECHHOEFER:
Right; right, right.
20' MR. LOVEJOY:
Mr. Lovejoy, Your Honor.
I agree 21 with staff.
It would be -- we would appreciate time to 22 answer in writing.
23 CHAIRMAN BECHHOEFER:
Okay.
Well, as part of our 24 schedule then, we will include some dates.
In fact, we were 25 thinking for the date of response, if the parties could get ANN RILEY & ASSOCIATES, LTD.
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something in our hands -- this is fairly short, but tell us I\\
2 if it's too short -- by close of. business Friday, April 9.
,3 MS. ZOBLER:
That's next Friday.
Not this Friday, 4
but the following Friday?
5 CHAIRMAN BECHHOEFER:
That's correct.
That will 6
be in our hands, but it could be faxed or --
7 MS. ZOBLER:.Okay.
8 CIIAIRMAN BECHHOEFER:
-- e-mailed, tor that 9
matter.
10 MR. BLOCK:
I'm going to try to e-mail it, at this 11 point, if other people are.
I don't know how difficult that 12 would be for all of us.
But, if people are willing to give 13 it an experiment, you know, I think it may be worth trying.
14 MR. LOVEJOY:
Absolutely, keeping Melissa out of n%/
15 the way.
16 CHAIRMAN BECHHOEFER:
Yeah.
17 MS. HODGDON:
I agree.
18 CHAIRMAN BECHHOEFER:
Well, I understand that you 19 have to be using Word for it to really -- now, I don't know 20 whether you all use Word or not; most of us don't, at the 21 office, at least.
22 MR. LOVEJOY:
I do, so I guess I -- that's why 23 now, I'm agreeable to it.
Before, it was more difficult.
I 24 don't know how -- what the situation is at Ropes & Gray, but 25 maybe you guys could give us some idea.
I mean, would it be ANN RILEY & ASSOCIATES, LTD.
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reasonable to try sending files to you and see if this will
{
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2 work?
3 MR. GAD:
Historically, the lesson has been that 4
~ they're not bad as courtesies, but they are not reliable as 5
the obligation fulfilling filing.
6 MR. BLOCK:
I hear you; okay.
7 MR. GAD:
And incompatibilities, system failures, 8
the fact that you're e-mail from Vermont to Boston could go 9
via Denmark or, for that matter, Siberia, and a whole bunch 10 of other reasons.
So, I think it's not a bad thing to 11 experiment with, but I think that the fax followed by the 1
12 paper ought to be the filing of record --
13 MR. BLOCK:
Right.
f-14 MR. GAD:
-- of which that's going to glitch out 15 and then have problems.
16 MR. BLOCK:
Let me ask, I think what would be 17 useful --
18 CHAIRMAN BECHHOEFER:
I might say that when we say 19 "in our hands," we would certainly accept the fax for that 20 purpose anyway.
And if you put a paper copy in the mail --
21 MR. BLOCK:
Great.
i 22 CHAIRMAN BECHHOEFER:
-- that's better.
But --
23 MR. BLOCK:
We would do that.
But, Judge, to try 24 the -- to try an experiment with the e-mail, if people could 25 send each other their addresses by fax, just write your O
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e-mail address on a fax sheet and send.it to the other r.
2 parties, and then we would be able to assemble them and try 3
them.
But the other thing that's useful is to know what i
i 4
word processing program you use.
And the key there is, I 5
can write a. motion and then save it on my desktop, so to 6
speak, in any number of different kinds of programs.
And 7
then if that is sent as an attached file, theoretically, you 8
should be able to open it much more easily than if I send 9
you a Microsoft Word file and your program has to struggle-10.
opening that.
11 MR. GAD:
The common denominator, John, is that 12 it's Word Perfect 5.1.
13 MR. BLOCK:
Word Perfect 5.0?
14 MR. GAD:
5.1.
15 MR. BLOCK:
5.1; okay, fine.
16 MR. GAD:
One of the difficulties with this idea, 17 however, is that when you try to do what you just announced, 18 number one, your program will not do it faithfully; and 19 number two, it's going to change formats.
20 MR. BLOCK:
I agree that there are those problems 21 and I do agree with you, Bob, that this is just to see if we 22 can communicate that way, because it would help, you know, 23 speed up things, especially when we get to sending messages 24 back and forth in discovery.
But, I agree that there are a 25 lot of limitations.
So, maybe the thing to do would be to O) g, ANN RILEY & ASSOCIATES, LTD.
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ask the Judge here to get a consensus as to whether we
~
k-2 should spend any time doing this or not, and, if not, I 3
certainly would let this go by the boards.
'4 JUDGE MURPHY:
This is Judge Murphy.
We've had 5
quite a bit of experience with receiving filings by e-mail 6
in other cases, and, generally, it works as Mr. Gad 7
explained, and that is that_the e-mail copy basically 8
fulfills the copy that should be_in by the deadline set by 9
the Board or by the presiding officer, and then allows the 10 parties to put the paper copy in the mail, at the same time.
11 That's worked out fairly well.
12 We use Word Perfect 8 in our~ offices, and we have 13 had no problem with translating other word processing 2
14 programs.
As Mr. Gad says, you don't get all of the format, 15 but you get most of the words and it gives us an opportunity 16 to start working on this case basically five days earlier 17 than you would, if you waited for the paper copy.
So, an 18 e-mail courtesy copy or a faxed courtesy copy by the close 19 of business of the date that we set would be very helpful to 20 us.
I suspect it would be to the parties, too.
21 CHAIRMAN BECHHOEFER.:
Okay.
Is that April 9 date 22 that I mentioned satisfactory?
i 23 MR. BLOCK:
Satisfactory to us, Your Honor.
24 MS. KATZ:
Yes, it's satisfactory to us.
25 MR. LOVEJOY:
Satisfactory to us, Your Honor.
O-ANN RILEY & ASSOCIATES, LTD.
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Thank you.
2 MS. HODGDON:
It's satisfactory to the staff.
3 MR. GAD:
I don't think I get a vote.
4
[ Laughter. ]
5 CHAIRMAN BECHHOEFER:
Okay.
Now, to go on to the 6
schedules for the proceeding, generally.
We were thinking 7
that discovery -- formal discovery will start today or 8
tomorrow.
And we were thinking that about roughly 60 days 9
would be sufficient for everything.
10 And I might say, Lee Dewey, the counsel to the 11 panel, has just walked in the door and is now here, as well.
12 We were thinking 60 days would be reasonable and 13 sufficient for discovery, and it would take into account the 14 Commission's desire to speed up cases, that type of thing.
k 15 Would that be satisfactory, then, to all the parties?
And I 16 don't think the difference in discovery would matter much, 1
17 whether the contention four was in or out, the timing of 18 discovery.
So --
19 MR. BLOCK:
Well, from our point of view, in my 20 coalition -- this is Jon Block -- we had been hoping for a 21 longer period of discovery.
In fact, what we contemplated 22 was approximately 120 days and we felt that a 60-day period i
23 is rather truncated and that given the nature of the 24 material, our experience the last time we had discovery, and 25 it was limited to 30 days in a single matter, was that it ANN RILEY & ASSOCIATES, LTD.
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was hardly enough' time to really began to assimilate the 2
material and to get into any dept with'it.
3 I can't see having four contentions and be able to 3
4 get the amount of material necessary and deal with it.
I 5
don't know how CAN views this or Franklin County, but I just 6
see it as a practical matter, that if you have an initial j
7 set of questions P.nd then you have~ to follow up cx1 some of 8
them because they're objections or they're not answered, 9
that you might be able to get a round-and-a-half or almost 10 two in a 60-day period, but that would be about it.
11 And here, I just don't see how we could get 12 through it all, in that period of time.
I don't see it as 13 being a realistic approach to deal with this really fairly.
14 MS. KATZ:
This is Deb Katz from CAN.
We concur 15 with Jon Block on this, Your Honor.
We're really concerned i
16 that we won't have enough time to go over the material or 17 have our expert go over the material and allow us to go in 18 depth into the issues, which concern the clean-up of this 19 side.
So, we believe that the process, in fact, should be 20 longer, as well.
21 MR. LOVEJOY:
Your Honor, this is Sam Lovejoy from 22 Franklin Region.
And I would concur with the two 23 interveners, because among other things, our application for 24 some financing to assist us was rejected and we are purely 25 operating on a volunteer basis.
And I think our ability to ANN RILEY & ASSOCIATES, LTD.
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- digest, order to assist the process, everything that's 2
going to be involved with discovery, 60 days is on the
- L impossible scale-And if this is going to work in some 4
smooth manner, where everybody is sort of on the same page, 5
I think a little bit longer might save, in the long run, 6
putting a little more emphasis on the beginning and making 7
it digestible and logical than waiting a long time -- and
-8 doing it in.a short period of time and then spinning our 9
. wheels with objections and.all kinds of things through the 10 process.
11 MR. BLOCK:
Your Honor, Jon Block.
I wanted to 12 add something to what I said that may be of help, too.
In 13 the hearing process, we had gone into the absence of an EA i
g-s 14 and the staff indicated that one was going to be 15 forthcoming.
I really feel pretty strong, looking at those 16 four contentions, that they really would -- it would be 17 extremely helpfu1 to have that material and would certainly 18 end up giving -- given that you indicated that, you know, it 19 would be possible to raise contentions after that came out,.
20 based on what's there, and perhaps end up, depending on how 21 late it was in this process, with a whole reopening or new 22 set of contentions coming up.
23 It would seem to me efficient, from the point of 24 view of the panel, the staff, the licensee, and certainly 25 ourselves, to try to get a handle on when that's going to
~O
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1 come out and allow, in our schedule, a reasonable period of 2
time to have that; reevaluate what discovery we've had, in i
3' light of what's in it; and be able to move on that, so that l
4 we wouldn't end up having, in a sense, a proceeding after a 4
>5 proceeding or-two successive proceedings.
And I throw that
~6 out, because I think it would be helpful in trying to 7
structure a schedule that will satisfy everybody's needs and 8
be efficient.
9 CHAIRMAN BECHHOEFER:
Ms. Hodgdon, does staff have 10 any idea or do any of the. staff people, who are on the line, 11 have any idea about the schedule for the assessment?
12 MS. HODGDON:
I know exactly when it's going to 13 be, because the project manager, Mr. Fairtile, has just 14 written me a note.
So, that's the answer, the issuance'is I
15 apparently imminent and I 16 CHAIRMAN BECHHOEFER:
Imminent now, you mean?
17 MR. FAIRTILE:
It's ready to go into the register.
1 18 CHAIRMAN BECHHOEFER:
Oh, okay.
19 MR. HODGDON:
That was Mr. Fairtile, who just 20 spoke.
Iss. nce is expected quite shortly.
21 Mk. GAD:
Your Honor, would you like to hear from 22 Yankee?
23 CHAIRMAN BECHHOEFER:
Yes, we would.
24 MR. GAD:
I think, Your Honor, 120 days would be 25 way too long for this. type of proceeding for the contentions ANN RILEY & ASSOCIATES, LTD.
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that are presently admitted, and I don't think you've
()
2 fashioned a discovery schedule with respect to what might 3
.may be later.
I think it's -- in response to Mr. Block's 4-observation about the last case, that the last case was, in 5
essence, an implementation case; that is to say, the 6
material that 7
CHAIRMAN BECHHOEFER:
Could you " peak a little 8
louder?
9 MR. GAD:
The last case was essentially an 10 implementation case.
And during that, CAN requested and 11 received a bunch of very detailed data about what was 12 actually happening in the field and how many person rems it 13 involved.
I remind everyone that this case is not about 14 implementation, it's only about a plant.
And putting aside 15 for the moment what contention four might mean, the other 16 three admitted contentions are quite contained.
17 The basic design standard, I think, for a 18 discovery schedule is that it should allow for, in essence, 19
.two rounds of discovery; i.e.,
ask questions or seek 20 documents, get a response, and then if you think one is 21 necessary, ask a follow-on.
Now, the discovery schedule, 22 that is to say the number of days, is the day for the last 23 request.
So, the amount of time is to -- from t v
to 24 write your first request, get the responses, which are 25
.normally due in 10 days, take a look at them, and then write (0 '
1 y.
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fD your second round requests.
/
2 And I submit to Your Honor that a 45-day period is 3
more than adequate for two rounds of discovery, with the 4
stipulation that it would be enlarged on a day-for-day 5
basis, if -- and I don't expect this to happen, but it's 6
- possible -- if Yankee needs an enlargement of the time to l
7 respond.
So a 45-day schedule, assuming that we get our 8
things in during the time that'the rules provide, and if we 9
need x extra days, then you would add x to the period of 10 time for follow-on discovery, and that way you get your two 11 rounds in.
And I submit to Your Honor that that is the 12-design -- that ought to be the design criterion for a 13 discovery schedule.
fN 14
-MR. 7 LOCK:
Well, from my point of view, that's P
15 very convenient to you, that you're the one that triggers 16 whether any extra time is involved for getting information.
17 As far as we're concerned, we would like to see the 18 beginning of this be a period of informal discovery and to 19 begin with, to ask the judges to direct the staff, if 20 they're going to agree to participate in such a thing, to 21 put together packets that provide all the material that 22 they've assembled to use the judgment that they made in the 23 forthcoming EA and all of the material that they used to 24 make their judgment in the finding of no significant hazards 25 consideration for this project.
And that would give us a O
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good baseline.
2 1As far as your facility goes, we would really like 3
toltalk about getting some kind of permission to work with
~
4 you,.to get some people that we select to go on site, and
,5 use some of the new x-ray technology they're using in i
6 archeology to check out some burial areas -- potential 7
burialLareas, and.maybe get some probe sampling done, get 8
some equipment in there to do it, and really get to the' 9
bottom'of whether.there's anything buried there and exactly j
10 where it is, what it is, and what the hydro-geologic flows 11 would be going through that aren.
12 So, those are the kind of concerns that we have.
13 I don't know what concerns Franklin County or Debbie might 14 have, in that way.
But, we might began by structuring an 15 informal discovery period that would allow us to get at some
.16 of the information about the history of spills, leaks, and 17 the existence of on-site burial.
Those are the things that 18 really do interest us, in being able to adequately deal with
.19 the contentions.that we have on board now.
20 MR. GAD:
Your Honor, may I make an observation?
21 CHAIRMAN BECHHOEI'ER:
Yes.
22 MR. GAD:
The last round, I think, has illustrated 23.
an issue that the Board is going to have to confront.
3 24 Discovery, by definition, is limited to the admitted 25 contentions.
'The notion that we should have an extensive l
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exploration of what the staff or anyone else might have
\\
2 done, with respect'to there are no significant hazards 3
finding, demonstrates a desire'to do discovery that's not 4
within the scope.
Likewise, with respect to the EA, which 5
hasn't even been published yet, there will be no discovery i
6 on the EA, unless and until it's published and a. contention 7
-has been propounded and admitted on.
8 And finally, it'seems to me that the concept is 9
out there that discovery amounts to going on site and doing 10 some sort of implementation review or implementation 11
' verification or implementation duplication.
And once again,.
12_
that does not go back to the admitted contentions, all of7 13 which go to.the adequacy of the plan -- statement of the 14 plan.
So, I think that the divergence of a coefficient here
~
eg 15 derives from the fact that we may be operating off different 16 formulas.
17 MS. KATZ:
This is Deb Katz from CAN.
I want to 18 ~
support what Jon Block has said and, also, support the idea 19 of informal discovery, which'we had, in fact, in the 20 Yankee-Rowe case.
We are concerned with the judgtaents that 21 were made for both the environmental assessments and the no 22 significant hazards.
And I think they, in fact, pertain to 23 the issues that are on the table.that we're looking at.
24 And the issue, I don't think it's just an f
25 implementation, but we need an understanding of how Yankee n
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intends to look for the leaks and spills and what has taken
,s f
i
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2 place, that may be, in fact, undocumented, an important 3
issue to us and want clarification of that, in terms of 4
understanding their process.
5 MR. GAD:
Once again, Your Honor, if you -- the 6
aspiration of being helpful, I would remind the Board on 7
page 28 of the slip opinion -- I don't have the published 8
one -- the slip opinion of CLI 98-21, the Commission ruled 9
"the staff has no significant consideration determination 10 and issues pertaining to it," that was a quote, Out of 11 Bounds.
12 Finally, the idea that one probes the methodology 13 at the LPP level of methodology statement, by going on the g ~g 14 site and using equipment, I think is a false premise.
')
15 MR. BLOCK:
Jon Block here.
What they ruled Qut i
16 of Bounds was raising contentions about or questioning the l
r 17 determination.
We're not questioning the determination.
We 18 just felt that in order to try to get through this 19 expeditiously, if the Board and all of the parties were able l
20 to have in front of them what the staff used and assembled 21 to make its determination, then it would put us in the l
22 position perhaps to say, gee, we're wrong.
And I'm just 23 offering things, by way of informal discovery, that could be i
24 yielded up by the staff; cooperation that we could get from 25 your people, in getting to look at, you know, various UORs i
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and radiation incident reports and any spill document, any 2
documentation on burial, that, you know, might get rid of us 3
very quickly'.
4
.I'm trying to be reasonable and try to offer a 5
methodology that would, in fact, allow for a rapid j
6 determination of the cause before_.us.
So, that's where my 7
suggestions are coming from; certainly not to question the 8
staff's determination, but rather to look for any kind of j
9 helpful baseline that it would provide to us, in dealing 10 with the contentions, which I would agree deal with the
-11 methodology.
But the way you can question a methodology is 12' by-independently verifying whether.the subject matter is, in 13-fact, there or not.
And that's where we're coming from.
14 MS. KATZ:
We think it's really important to get v
15 documentation on it, so -- this'is Deb Katz.
And, you know, 16 Yankee acknowledged in a 1966 report, over 441,500 gallons, 17 you know, of water.had gone through the ion exchange pit, 18 down into the ground.
And this is an example of what we're 19 concerned about, in terms of the groundwater on-site and 20 off, in terms of how that site might be contaminated.
And 21 we feel getting information on that and getting Yankee's 22 documentation of that is'an essential part of understanding 23 the kind of clean-up that can take place to protect our 24
, community.
I 25 MR. GAD:
Once again, Your Honor, I think the i
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lines -- the issue is fairly squarely -- the issue is fairly
.t 2
' squarely -- this is hard to say fast -- the issue is fairly i
l 3
clearly presented.
What is proposed here is discovery, with l
4 respect to implementation data, on site dath, and the like.
5 That really is, I think, not within the scope of the 6
admitted contention.
7 And the discovery is limited to the admitted 8
contentions.
I go back to the original assertion that you j
9 design this thing, so that it has the opportunity for one 1
10 round of discovery and one round of follow-up, if the 11 responses to the initial discovery are thought.uadequate.
12 And assuming that Yankee is in a position to respond within 13 the time that the rules provide, then 45 days is ample to i
14 achieve that objective, j
7s
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15 MS. HODGDON:
For the staff --
16 CHAIRMAN BECHHOEFER.
Yeah, I was going to just
]
17 ask what's the staff's view.
18 MS. HODGDON:
-- I think it's about time that the 19 staff spoke regarding this matter.
20 CHAIRMAN BECHHOEFER:
Right.
21 MS. HODGDON:
Generally, the discovery rules are i
22 in Part 2, production of NRC records and documents, 23 discovery in the proceeding, and Mr. Gad is correct in 24 saying that discovery must be limited to admitted 25 contentions.
Beyond that, I recommend not just the
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regulations, but the policy statement that the Commission
-2 put out in September of 1998, I think that's CLI 98-12, l
l 3
which just reiterates a number of matters regarding
~4 expedition in these proceedings and what's appropriate and 5
what's not..
And in there, it said that the Board should' 6
only allow -- should allow only a single round of discovery 7
regarding admitted contentions related to the SER or the 8.
SES.
And the discovery, respective to each of these 9
documents, should commence shortly after its issuance.
10 So, that's -- I believe that informal discovery --
11 my understanding of it may be somewhat different.
But, if 12 the scope is changed by the informality, then we would have 13 to oppose informality of discovery.
I mean, it seems to me 14 that the discovery, as contemplated by the Commission's 15 rules, have to be limited to the admitted contentions.
16 MR. BLOCK:
Can the panel issue subpoenas?
17 CHAIRMAN BECHHOEFER:
Yes, we can.
18 MR. BLOCK:
It can.
Well, good, I -- and I think 19 a good approach would be that we'll set up some depositions i
20 of the staff people involved and maybe we can get our 21 information that way.
And maybe that would be the most 22 expeditious way to do it.
23 As for your quotation on a single round, not 24 having the opinion in front of me, my experience now tells 25 me, without it in front #of me, without having the policy l +
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statement:here, unless~_the Board wants to rule on this, I'm 2
_not' going to take your' word for the representation of what's 3
~in=it.
And, you know,.are they talking about a single round 4'
on each of those documents?
On both of the documents?
I'd i
5 have to see it.
i 6
And, also, just because they say it, s
..n't mean 7
that it's due process reasonable.
I'm'still bent out of 8
shape about the way this whole thing commenced --
9 MS. HODGDON:
May I --
10 MR. PLOCK:
-- beginning with the public meeting, 11 where my people weren't given an adequate opportunity to 12 have the documents in hand.
Even-before they made their 13 filing requesting a hearing, they didn't have basic l
14 documents in hand.
So, that's where we're coming from right j
15 now.
16 MS. HODGDON:
May I remind Mr. Block, Your Honor, 17 that the staff public meeting is not a matter before this 18 Board and never was.
19 CHAIRMAN BECHHOEFER:
I think we held that 20 -
specifically --
21 MS. HODGDON:
That the Commission --
22 CHAIRMAN-BECHHOEFER:
-- in the report of the 23 Commission.
24 MS. HODGDON:
Mr. Block is wasting our time with
-25
-- by continuing this argument, and, further, that he has an c
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obligation to read the Commission's regulations.
I would be 2
happy to fax him a copy of this policy statement and to 3
point out to him that this Board is bound by that policy 4
statement.
5 MR. LOVEJOY:
Your Honor,-this is Mr. Lovejoy.
If 6
I could just jump in here for a quick second?
7 CHAIRMAN BECHHOEFER:
I might say the policy 8
statement is just that, a policy statement.
It isn't a 9
regulation as such, but it provides some gui'ance about how 10 we ought to be interpreting requirements for a hearing.
11 There's one aspect of it that I am already likely 12 to follow, unless I can be convinced otherwise, and that-is 13 not to have summary disposition motions.
The Commission has 14-much came out against that and I sort of agree with it.
It 15 usually doesn't accomplish much for the amount of time it 16 takes.
So, we would probably not include anything for 17 summary disposition.
18 MS. HODGDON:
Judge Bechhoefer, staff again, could 19 I speak to that?
20 CHAIRMAN BECHHOEFER:
Yes.
21 MS. HODGDON:
Mr. Block is apparently not familiar 22 with the policy statement.
I would like to read what the 23 policy statement says, regarding summary disposition.
It 24 says, " Board should forego the use of motions for summary 25 disposition, except if in a written finding, that such a
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issues to be decided or otherwise expedite the proceeding."
3 And I would represent that I just read from the policy 4
statement.
5 CHAIRMAN BECHHOEFER:
Right.
Yeah, that's 6
correct.
That's what I had in mind.
I don't have it in 7
front of me now, but that's what I was ? peaking about.
8 MR. BLOCK:
Could you read the quote about the 9
discovery periods, Ann, as long as you have it in front of 10 you?
11 MS. HODGDON:
Discovery management is two columns.
12 I'm not going to read the whole thing.
But, I will re-read 13 what I read before, if that's what the request is, with the
]
1 14 Board's permission.
It says, "The Board should allow only a j
gsg
\\s l 15 single round of discovery regarding embedded contentions f
16 related to the SER or the SES, and the discovery with 17 respect to each document should commence shortly after its 18 issuance."
1 19 MR. BLOCK:
But does that -- Judge, could the 20 panel explain whether that would apply in this case?
Are we 21 dealing here with the SER or the SES?
22 CHAIRMAN BECHHOEFER:
Well, environmental 23 assessment is similar in nature.
24 MS. HODGDON:
Judge Bechhoefer, would you like the 25 staff to address that?
si)
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CHAIRMAN BECHHOEFER:
Yes, yes, why don't you.
2 MS. HODGDON:
I.would just recapitulate my 3
understanding
- what the rules are regarding this.
The interveners -- the petitioners can't very well put in 4
5 contention on the SER and the SES, because those documents 6
will not generally have been issued at the time of the 7
hearing conference.
And so those contentions are considered
{
8 to be late filed and have to meet the requirements for the 9
late filed contentions, except that, generally, there will 10 be good cause in the documents not having been issued at the 11 time.
However, to the extent that there's nothing new in 12 them, they're not available for contentions.
In other 13 words, if the environmental assessment merely reechoes 14 whatever the environmental report says, then the contention
\\_./ -
15 should have been on the environmental report.
That would be 16 also true for the SER, that -- in other words, it could be 7
'17 that thera might not even be material for new contentions on 18 the staff's documents, but it could also be that there might 19 be.
But, in any event, the petitioners, or interveners, in 20 this case, are -- may file on those documents.
21 JUDGE MURPHY:
Ms. Hodgdon, this is Judge Murphy.
22 Is the SER going to be issued simultaneous with the EA and 23 the Federal Register notice?
24 MS. HODGDON:
No, it's not -- can't be 25 simultaneous.
It would have to follow it by at least a day.
j ANN RILEY & ASSOCIATES, LTD.
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84 b34 j
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But -- the EA has to proceed the SE by at least, I should
()
2 say.
But, in any event, it appears that the environmental 3
assessment will'be available in three or four working days 4
and that the SE will not be out until the end of April.
5.
JUDGE MURPHY:
Okay, thank you.
6 MR. BLOCK:
I guess, Judge -- Jon Block here --
7 that that didn't really answer my question, because it 8
. sounded from what Ms. Hodgdon was saying, that this policy 9
statement would be applying to those circumstances where 10 expedition would make sense, where you already had a 11 proceeding going on and then additional. late file 12 contentions would be applied to the production of SER and 13 SES,after you have already started.
And you wouldn't want 14 to have a whole group of rounds of discovery, when you would J
\\~ /
15 be limited, as she pointed out, to things that were new in 16 those documents.
And so, I don't see how this sheds any 17 light on the issue of how much time we should structure, at 18 this point, in the onset of discovery on these four 19 contentions; rather, it seems to be addressed to a different 20 set of circumstances, where it might make sense to introduce 21 some expedition.
22 I know that a recent rule that had been filed
'23 dealing with, I think it's fuel proceedings, it might be the 24 fuel facilities and fuel pools, and you may know the section 25 better than I, but that talks of expedited discovery, in
()
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terms of the 60' day period, as I understand it.
So, it p~s 2
would seem to me that here, you know, 60 days would be an 3
extremely truncated period of time.
4 MS. HODGDON:
I was speaking to the general issue l
5 of discovery against the staff.
And I think I was l
6 specifically responding to some kind of an idea that l
7 subpoenas against the staff witnesses might be issued, and 8
the staff hadn't even put out its documents.
And all I was 9
saying was that certainly, the regulations and the policy 10 statement don't contemplate that.
11 MR. BLOCK:
Well, I would object to the use of the 12 word "against," you know.
It's just a question of 13 compelling evidence.
I' don't see it as being for or against
-s 14 anybody, just to obtain evidence for the proceeding.
g V'
15 MS. HODGDON:
Subpoenas -- I'm scrry, subpoenas to 16 the staff.
Did I mis-speak?
I meant to' subpoena the staff, 17 and I certainly meant no good flavor; supboenas for the 18 testimony of staff witnesses, i
19 MR. BLOCK:
Thank you.
20 MS. ZOBLER:
Your Honor, this is Mary Zobler, with 21 the staff.
I just wanted to put on the record, if it wasn't
'22 clear, that we would not disagree with a 60-day discovery 23 period.
And all the discussion we're having now just leads 24 me'to'suggest that maybe a period of informal discovery 25 wouldn't be very effective, in light of the disagreements we O
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already are having.
I think a more formal process, at l
2 least, provides a mechanism where if true discovery disputes 3
actually' exist, after they've been formally written down, we 4
can then have a procedure where the Board could resolve 5
those discovery disputes.
6 MS. HODGDON:
I'm sorry, I may have failed to 7
speak to that.
Actually, the staff was going to ask for a 8
shcrter period of discovery or was going to suggest it.
So, 9
60 days is certainly as much as the staff wvuld think was 10 appropriate, in this instance.
So, that would be the case.
11 Also, I would point out that the staff, because it 12 represents -- is a public agency, that we are required --
13 all of our documents are public and, therefore, our SERs, 14 our SESS, and our environmental assessments attached to 15 those documents are relevant to their preparation,~or at 16 least, if it's obvious, anc we try to make them as user 17 friendly as possible.
So, I mean, I think that we 18 contemplate very little discovery -- I don't want to use the,
19 word "against" again -- but very little discovery addressed 20 to the staff, because the staff is required by law to make 21 public its documentation.
L 22 I suppose that that all comes out to saying, you 23 wor.'t need as much discovery against the staf f and it would 24 be to no avail that you won't get much out of the staff, 25 because everything will be in the documents.
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MS. ZOBLER:
Also, the staff is willing, at the 2
time that the EA is actually finalized and forwarded to the 3
Federal Register, to previde directly to tla intervenors 4
copies of the EA.
5 MR. GAD:
And the licensee?
6 MS. ZOBLER:
And the liCEilsee, of Course.
7 MR. LOVEJOY:
Your Honor, tilis is Mr. Lovej oy.
I 8
would just like to make a short comment, that somehow I 9
think we're sort of losing the forest for the trees here.
10 We're really -- I don't think it is the policy -- belief of 11 the Commission that you strip the judges panel of their own 12 discretion.
We're talking about the public health and 13 safety of the public.
We're talkin3 about a 'cind of ur asual 14 proceeding.
This is the first commercial nuclear plant to 15 be decommissioned.
I think the public is looking for a 16 wholesome process here.
And 1 think to truncate it is 17 simply a huge mistake, in that if, in the course of 18 discovery, it looks like it can be quickened, perhaps that I
y 19 is something that should be entertained.
Perhaps, also, in
)8
'O reverse, if it looks like discovery should be extended, 21 maybe that should be entertained.
22 But, I think to start with the notion that, you 23 know, it s 30, 45, 60 days -- perhaps I could suggest that 24 we would go along with 60 days, once the SE1 is sent out; or 25 that a cericd of informal discovery occur once the EA is ANN RILEY & ASSOCIATES, LTD.
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filed'and then we discuss whether it should be 45, 60, 90, P
2 120 days.
But to start at the beginning with two citizens groups and a governmental entity with no money, other than 4
' volunteer assistance,.to try and review all of this stuff, 5
and1I do imagine it's going to be a lot of material, to be 6
able to digest 11t so that the hearing process perhaps will 7
be run efficiently, is a huge mistake.
8-MR. GAD:
May I make an observation?
9 CHAIRMAN BECHHOEFER:
Yes.
10 EMR. GAD:
I hope this will be helpful, though I 11
. guess I must confess to some doubts up front.
A good deal 12 of the discussion in the last few minutes, I think is 13 utterly irrelevant to the issue the.t is in front of Your
]
14 Honor.
What I believe the agenda item appropriately to be 15 is the discovery period that ought to be attached to the 16' admitted contentions, the ones that are before us now.
What 17 might happen down the pike with respect to the environmental 1
18 assessment or the safety evaluation report is immaterial to 19 that question.
Whether or not an intervenor has sufficient 20 funds in that intervenor's view is immaterial.
Whether this 21 is the first contested proceeding of this agency or about 22 the one millionth contested proceeding of this agency all 21 subject to the same rule is irrelevant.
24 The notion is:
what ought the discovery period be 25 for the contentions that have been admitted.
On that point, O-ANN RILEY & ASSOCIATES, LTD.
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I submit to you that the design criterion is, as I said 2
earlier, enough time for an initial round of discovery, 3
follow-on round of discovery.
Forty-five days is more.than 4
adequate.
And if we slide, then it will slide day-for-day.
5 MR. BLOCK:
Hello?
6 MS. HODGDON:
Staff, again.
The staff does not --
7 MR.. GAD:
I heard a bunch of people talking at 8-once.
Ie somebody missing?
9 MS. HODGDON:
I'm sorry, I stopped, because I l
i 10 heard the judges talking.
So, I would just like to say that 11
.the staff agreed with Mr. Gad, regarding what this round of 12
. discovery is about.
And perhaps I wasn't too clear in 13 saying that discovery to the staff was on if documents, 14 which have'not yet been issued and, therefore, this -- I 15 mean, there may or may not be'such, depending on whether
'16 content!.Oi:s on the staff's document are admitted.
But, I 17.
suppose I was really talking about whether that could be 18-concurrent, in such an event.
But, nevertheless, we don't 19-
'need to address that today; that's. correct.
20 ~
MR. GAD:
I keep hearing clicks.
Am I still 21 connected?
22 MR. BLOCK:
I was asking the same thing myself, 23 Bob.
24 MR. HODGDON:
Did we lose the Board?
25 CHAIRMAN BECHHOEFER:
No.
We're on, but we want ANN RILEY & ASSOCIATES, LTD.
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to discuss this, because we would like to reach a decision
)
2 today.
It will be published in an order later on.
But, we 3
would like discovery to start and we have to approve it 4
before it does.
5 MR. GAD:
I think the clicks we were hearing was 6
when Your Honor went on mute.
I'm sorry.
7 CHAIRMAN BECHHOEFER:
Yeah.
8 MR. BLOCK:
Your Honor?
9 CHAIRMAN BECHHOEFER:
Yes.
10 MR. BLOCK:
Would it be reasonable to have the 11 discovery period begin after the filing deadline of next 12 Friday, that is it would start the following Monday?
13 MS. KATZ:
That would help.
i 14 MR. LOVEJOY:
Just to clarify, Jon, you're
-~
\\l 15 speaking about the filing dealing of April 9th?
16 MR. BLOCK:
Cor ect.
17 CHAIRMAN BECHHOEFER:
That's just on the motion.
18 MR. BLOCK:
Right.
And I'm suggesting that 19 discovery should start wi.
service on Monday.
20 MR. GAD:
Forty-tive days running from Monday?
21 MR. BLOCK:
Yeah -- well, no.
I'm not acceding to 22 your 45 days.
I'm waiting to hear what the Board has to 23 say.
But, I'm saying that whatever it is, given that we --
24 the three parties, who would be answering your motion, all 25 acceded to what the Judge characterized as a short time for
/N
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an answer, that it's reasonable that we not be formulating
il 2
discovery at the same time.
3 MS. KATZ:
We agree.
It would be really hard --
4 CHAIRMAN BECHHOEFER:
I'm going to go off for a 5
moment.
6
[ Discussion off the record.)
7 CHAIRMAN BECHHOEFER:
Okay, we're back on.
We 8
have figured out a tentative schedule.
The only thing we'll 9
have to ask Judge Ellerman, would you be available the week 10 of August 16th thrcugh 23rd for a hearing?
j 11 JUDGE ELLERMAN:
Would I be available tae week of
~2 August 16th?
l 13 MR. GAD:
Bob Gad, here.
I will not be available 14 for that week.
15 CHAIRMAN BECHHOEFER:
Because, we've got a lot of 16 weeks that are -- yeah.
17 JUDGE MURPHY:
Okay.
Find out when he is going to 18 b
available.
19 CHAIRMAN BECHHOEFER:
Well, when could you --
20 because, we were -- what we were going to propose -- in 21 fact, we've decided that there should be the 60-day period, 22 but that shouldn't start until April 9.
And we calculated 23 that would end June 11, which is a Friday.
And then, we 24 would have contemplated testimony -- prepared testimony
'25 filed by -- well, for the August date, it would be_ July (O)
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1 30th, but depending on hearing availability of people 2
available.
3.
MR. GAD:
You said the week August 16 to 23, 4
correct?
5 CHAIRMAN BECHHOEFER:
Yeah.
6 MS. ZOBLER:
I wouldn't be available that week.
7 THE SPEAKER:
That week is NG for me.
8 CHAIRMAN BECHHOEFER:
Okay.
1 9
MR. GAD:
Your Honor?
10 CHAIRMAN BECHHOEFER:
Pardon?
l 11 MR. GAD:
Let me make one -- I'm sorry, Bob Gad, 1
12 Yankee.
If I may, let me make one observation that may 13 counsel towards doing this step-by-step, starting with 14 discovery and not necessarily fixing yet --
S d-15 MR. LOVEJOY:
Mr. Gad, please speak up.
I can't 16 hear' him.
17 MR. GAD:
Okay.
I think that's in your phone 18 line, but I'll try.
19 MR. LOVEJOY:
You're doing better.
{
i 20 CHAIRMAN BECHHOEFER:
You have to get closer to 21 the phone, I think, Mr. Gad.
22 MR. GAD:
Okay.
I am fully aware of the 23 Commission's most recent policy statement and its 24 observations with respect to summary disposition motions.
I 25 might observe that the universe of such motions includes b
\\m,/
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those that are sometimes called surgical strike motions and 2
those that are sometimes called carpet bombing motions.
And 3
I think that the Commission's observations were directed to 4
the latter.
But, I'll tell you up front, that it is part of 5
our contemplation, following the close of discovery, and 6
given the nature of at least admitted contentions one 7
through three, that they will be quite ripe for a summary 8
disposition motion that will, in fact, be not only 9
consistent with the Commission's rules, but with the policy 10 statement, which does not exclude all such motions, but only 11 says that people ought to be a little discriminating about 12 them.
13 So, I guess what I'm going to suggest is if we set z
14
-the discovery schedule now and maybe wait a couple of days 15 after the close of discovery.
The notion of setting dates 16 for the filing of pre-filed testimony and evidentiary 17 hearings might be a little premature.
18 And I sort of got sidetracked.
I am out, Your 19 Honors, the week -- that week that includes the 21st, all j
20 right, so that's the week of the 16th, as you mentioned, I
21 could be available the following week, except, of courso, 22 I'll be out of the office that prior week and so you sort of 23 don't like to hit the ground running.
24 MR. BLOCK:
Well, I'm available the week that the 25 Court is describing, but I'm not available the following ANN RILEY & ASSOCIATES, LTD.
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week.
g p %,)
a 2
MS. HODGDON:
I'm not available the following week 3.
l 4
CHAIRMAN ESCHHOEFER:
We're going to go off --
5 MS. HODGDON:
-- mostly, I'm not available.
6 MR. LOVEJOY:
Your Honor, this is Mr. Lovejoy.
If 1
l 7
I-could.just like may one tactical suggestion.
It was just 1
-8 pointed out to me that the Franklin County courthouse has no l
i 9
air conditioning and does not expect to have it until next 10 year, at the earliest.
And so if there's going to be a i
l 11 hearing in a public location, either we ought to think about 12 the courthouse in September and not August, which is a l
13 nightmare, I can personally testify to; or that the hearing 14 would have to be moved to.another public location.
)
15 MR. FAIRTILE:
This is Mark Fairtile.
I think the 16 meetings in the courthouse in the summertime in the evening, 17 1 don't know if the Board would contemplate an evening f
18 session, but it's comfortable enough.
19 Mk. LOVEJOY:
That's true in the evening.
l 20 MR. GAD:
Again, I di(*a' t mean to make a maj or 21 destruction.
If Your Honor wants to set ~a deadline for a 22 hearing and then back up to pre-file testimony, I think the 23 hearing should begin the week right after Labor Day, as a 24 practical matter.
The-last couple of weeks in August 25 probably have all sorts of problems and I'm af: aid I had to l
("%
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323 1
Identify one of caem.
2 MS. ZOBLER:
We would agree with that.
{
3 MR. BLOCK:
We would also.
4 MR. LOVEJOY:
Absolutely.
j 5
MS. HODGDON:
I suppose.the staff should say that 6
it agrees also.
But, actually, no matter when the hearing 7
is scheduled, the staff will be there.
8
[ Laughter.]
9 JUDGE ELLERMANi This is Judge Ellerman.
I'm 10 going to have to leave this conversation, as a result of a 11 prior commitment.
Chuck, let me give you my schedule, as 12 you make these arrangements.
- 3 CHAIRMAN BECHHOEFER:
Okay.
14 JUDGE ELLERMAN:
I can make any arrangements O5 15 needed to meet any date in August.
In September, I-am 16 unavailable the 16th through the 25th.
I can, again, j
17 rearrange my schedule to accommodate any other time.
18 JUDGE MURPHY:
Okay, thanks.
19 JUDGE ELLERMAN:
I'll be leaving this conversation 20 now Thank you.
.21 MR. BLOCK:
Good day, Judge.
l 22 CHAIRMAN BECHHOEFER:
Okay.
I 23 (Pause.]
j l
24 CHAIRMAN BECHHOEFER:
Okay.
Well, we'll 25 tentatively set the earliest we can do in September is r~')
1 L\\ /
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the last week, I think it is.
What are those dates -- the 2
27th through the 30th and through October 1st.
So, we'll 3'
tentatively set that and then 15 days earlier, the prepared 4
testimony would be filed.
And we'might make that a little 5
bit more, because it would be helpful to the Board to be 6
able tc look at it, have it at least have it in our hands 7
15 days before the hearing starts.
So, what dae.e is that?
8-MR. DAD:
That would be, Your Honor, about -- Your 9
Honor, that would work out to be the 12th, which is a 10 Sunday.
So, you might want to back that up to 8th, 9th, or 11~
10th, Wednesday through Friday.
)
12 JUDGE MURPHY:
Let's make it the 10th.
13 CHAIRMAN BECHHOEFER:
Yeah, 10th of September for 14 the prepared testimony.
O 15 MR. GAD:
Fine.
16 MS. HODGDON:
Good.
17 MR. LOVEJOY:
Your Honor, this is Mr. Lovejoy, 18 Might I ask a question?
Since the hearing date has slipped 19 backwards a month, that perhaps if I could just suggest that 20 a 60-day discovery period not be set in stone, but be 21 somewhat flexible, based on the results of the 60-day 22 period.
23 CHAIRMAN BECHHOEFER:
Well, it's technically more 1
24 than 60 days, because we're not starting it until April 9th.
-25 MR. LOVEJOY:
No, I recognize that.
J
)
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CHAIRMAN BECHHOEFER:
And so preparation for 7
k 2
discovery can start anytime.
As far as we're concerned, you 3
all can start informal discovery earlier, if you choose.
i 4
But, the formal discovery period will start April 9th and go 5'
fo) 60 days.
I think that's consistent with the 6
Conanission's views.
I don't think we should allow any more 7
than that.
So --
i 8
(Pause.)
9 CHAIRMAN BECHHOEFER:
Okay.
I guess that's the 10 official schedule for the moment.
But, we would note that
-11 if the licensee seeks summary disposition, they should file 12 beforehand.
A1.d after discovery is complete, a mot. ion 13 explaining why it would be desirable, why the issues are i
14 amenable to summary disposition.
And that would be in full, 1
15 too, because I don't want to have to find that certain facts 16' are not in dispute and certain others maybe and, therefore, 17 a small portion of the contention is out or in, as the. case 18 may be.
And I don't think that process is appropriate and 19 it takes a lot of manpower, a lot of work to do it.
And I 20 don't think the interveners would have the -- necessarily 21 would have the manpower to handle both that and the 22 preparation of their testimony.
So, that's why I'm very 23 much inclined against it.
But if the applicant wishes to 24 file a motion seeking it, and if it would be able to dispose 25 of everything in the case, then perhaps we would consider
)
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it.
But, we're very much inclined to not allow it.
-s 2
MR. GAD:
Message received, Your Honor.
3 CHAIRMAN BECHHOEFER:
And I might say that the 4
date -- the proposed hearing date would again fall back, if 5
we have to work on -- summary disposition can take about six 6
weeks to give it a fair treatment and to give everybody a i
7 chance to respond, etc.
8 MR. GAD:
Your Honor, that sort of depends on what 9
the issue is.
10 CHAIRMAN BECHHOEFER:
Well, everybody still has x 11 days to respond and have to prepare affidavits and all that 12 kind of stuff.
It's -- and the Board has to have some time 13 to prenare a decision.
So, anyway, we would reiterate, 14 however, that we would encourage settlement of these 15 contentions and we think that -- we said so before and I 16 still think it may be a possibility.
So, think about that, 17 too.
18 JUDGE MURPHY:
Silence.
19 CRAIRMAN BECHHOEFER:
Silence.
20 MR. GAD:
No, that's -- I think it was probably 21 Judge Murphy, but whoever made the observation, don't 22-misjudge it.
The fact of the matter is, Your Honors, there 23 have been discussions and I assume that they will continue.
24 But, you have to understand that when you have gaps as large 25 as you have heard bits of this morning, that process takes a ANN RILEY & ASSOCIATES, LTD.
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little bit of t'ork, if it's going to succeed at all, and s
2 oftenoit doesn't.
3.
. JUDGE MURPHY:
We understand that and all we're 4
doing is encouraging you to continue.
5
'MR. GAD:.Actually, one of the great facilitators 6
of settlement is issue narrowing that sometimes arises out 7
of the summary judgment or' summary disposition process.
8 MR. BLOCK: 7 was speaking for my clients in the 9
discussions I've had with the executive committee of the 10 Board.
It's reasonable to provide assurances to the other 11 parties and the licensee and the staff and the panel that, 12 you know, we wouldn't stop seeking possible settlement and 13 wouldn't stop discussing any reasonable proposals right up 14 to before trial, if that's the way it works out.
And I 15 agree with Mr. Gad, sometimes whatever it takes to narrow 16 the issues.is what's necessary-tx) arrive at a reasonable 17 settlement.
So,.we continue to be open and we'll try to i
18 remain open, as long as things are reasonable.
19-CRAIRMAN BECHHOEFER:
Okay.
Probably, at least 20
.immediately before the hearing, we'll have another 21 pre-hearing conference.
But, only -- in person one, only to 22 tell people.how to mark their documents and that type of 23 thing.
24.
MS. HODGDON:
Okay.
25 MR. BLOCK:
Judge, might I ask another question?
-ANN RILEY & ASSOCIATES, LTD.
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'1:
If in'the course of discover we run into some difficulties
-s
\\/
2 and hav'e to seek motions to compel, is it the Board's 3
judgment in advance-that there'would be no arguments on 4
these; they would be simply.on written submissions?
Or how 5
would we' deal with that?
P 6
CHAIRMAN.BECHHOEFER:
No.
We'll have to see 7
what's involved.
We might convene in a conference call, 8
such as this, to handle that.
9 -
MR. BLOCK:
Thank you.
10 CHAIRMAN BECHHOEFER:
It just depends on what's 11 involved.
12-MR. BLOCK:
Okay, thank you.
I just wanted to 13 have some sense, because for us, I know it's the same for g-~g 14 Debbie and I don't know how Sam would handle this at all, V
15 but for me, dealing with my clients, it's a budgeting issue.
16 And I'm not asking for any special consideration for that, 17 but just an advanced understanding of whether, you know, we 18-might need'to go down to D.C.
or not, so that I can prepare 19 my clients for the economic shock involved in adding that to 20 our budget.
21 CHAIRMAN BECHHOEFER:
Well, we would normally do 22 that by telephone.
We wouldn't usually require you to come 23 to D.C.
24 MR. BLOCK:
Okay.
25 CHAIRMAN BECHHOEFER:
- _So, we would convene in a ANN RILEY & ASSOCIATES, LTD.
Court Reporters 1025 Connecticut Avenue, NW, Suite 1014 Washington, D.C.
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conferenca like we are doing now.
2 MR. BLOCK: -Great.
.3 CHAIRMAN BECHHOEFER:
Anything further that 4
anybody wishes to raise?
Otherwise, have a nice. day.
5 LMR..LOVEJOY:
Thank you, very much, Your Honor.
6 MS. KATZ:
Okay, bye.
1 7'
CHAIRMAN DECHHOEFER:
We will issue an order 8
confirming'the schedule, as soon as we can.
We'll also, as
)
9 soon as we get the responses to the motion before us now, 10 the licensee's motion, we'll rule on that, as soon as wa
{
l 11 can, as well.
1 12 So, we enjoyed speaking with you today.
13
[Whereupon, at 11:26 a.m., the conference was 14 concluded.]
g J
15 16 17 18 19 20 21 22 23 24 25 A
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TELEPHONE CONFERENCE i
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