ML20205H012
| ML20205H012 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/08/1985 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#485-182 OL-2, NUDOCS 8511130413 | |
| Download: ML20205H012 (64) | |
Text
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.o UNITED STATES a
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO: 5 0-445-OL2 50-446-OL2 TEXAS UTILITIES GENERATING COMPANY, et al.
(Comanche Peak Steam Electric Station, Units 1 and 2)
TELEPHONE CONFERENCE LOCATION: WASHINGTON, D.
C.
PAGES:
24080 - 24144
~
DATE:
FRIDAY, NOVEMBER 8, 1985 7R-6I (ale quA maw
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444 North CapitolStreet Washington, D.C. 20001
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CR25054.0 24080 OMT/cjg 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x In the Matter of:
5 TEXAS UTILITIES GENERATING COMPANY, Docket No. 50-445-OL2 6
et al.
50-446-OL2 (Comanche Peak Steam Electric 7
Station, Units 1 and 2) 8 9
Ace-Federal Reporters, Inc.
Suite 402 10 444 North Capitol Street Washington, D.
C.
11 Friday, November 8, 1985 12
')
13 The telephone conference in the above-entitled 14 matter convened at 10:45 a.m.
15 BEFORE:
16 JUDGE PETER BLOCH, Chairman 17 Atomic Safety and Licensing Board 18 JUDGE KENNETH A.
McCOLLUM Member Atomic Safety and Licensing Board 19 20 21 22 23 24 6-F 1 Reporters, Inc.
25
-- continued --
24081 1
APPEARANCES:
2 On behalf of the Applicants:
3 THOMAS G.
DIGNAN, JR.,
ESQ.
ROBERT K. GAD, III, ESQ.
4 Ropes & Gray 225 Franklin Street 5
Boston, Massachusetts 02110 ROBERT A. WOOLDRIDGE, ESQ.
0 WILLIAM A.
HORIN, ESQ.
Bishop, Liberman, Cook, 7
Purcell & Reynolds 1200 Seventeenth Street, N. W.
8 Washington, D.
C.
20036 9
On behalf of Citizens Association fr und Energy:
10 ANTHONY Z.
ROISMAN, ESQ.
II BILLIE GARDE, ESQ.
JUANITA ELLIS 12 Trial Lawyers for Public Justice 2000 P Street, N.W.
,_s i
13 Suite 611 x
Washington, D.
C.
14 On behalf of the Nuclear Regulatory 15 Commission Staff:
i i
16 STUART A.
TREBY, ESQ.
i MR. CHANDLER 17 MR. BACHMANN Office of the Executive Legal Director 18 United States Nuclear Regulatory Commission 19 Washington, D.
C.
20555 20 21 22 23 9
24 Moderm Reporte,s, Inc.
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P R O C;E E D I N G S 2
JUDGE BLOCH:
This is Peter Bloch, Chairman of 3
the Atomic Safety and Licensing Board for the Comanche Peak 4
. Steam Electric Station case, Dockets 1 and 2.
5 Dr. McCollum, are you with us?
6 JUDGE MC COLLUM:
I sm, yes.
7 JUDGE BLOCH:
Dr. McCollum is with me this 8
morning.
He is on the Licensing Board in the main docket.
'i i' 9
The purpose of today's conference is to consider a motion being presented by Applicants to postpone the 10 11 prehearing conference scheduled for Dallas, Texas, this 12 coming Tuesday.
- (~)
13
.Since it's Applicant's motion, I'll call on uj 14 Mr. Wooldridge.
15 MR. ROISMAN:
Mr. Chairman?
16 JUDGE-BLOCH:
Yes.
17 MR. ROISMAN:
This is Mr. Roisman.
18 Before the Applicant speaks, I would simply like
-19 to note for the record, my objection to the Applicant's 20 proceeding by oral motion with nothing but a statement that 21 they intended to do it, given to us,.ru) statement of reasons 22 or explanation or justification given, and we've had no 23 opportunity to prepare.
Applicants seem to have no 24 difficulty in filing overnight motions to certify Board
- (j
.25 orders, and it seems to me that they have had notice of this ACE-FEDERAL REPORTERS, INC.
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prehearing conference for a long time.
And we object to the 2
procedure.
We do not believe there's any justification for 3
having an oral motion.
4 JUDGE BLOCH:
We will keep that in mind, 5
Mr. Roisman, as we consider the argument'on the motion 6
itself,' your argument that you have been disadvantaged 7
because'there is no written motion.
8 MR. ROISMAN:
And right, and we have no idea and 9
won't know until Mr. Wooldridge speaks here now what basis 10 the Applicants have.
11 JUDGE BLOCH:
Okay.
Mr. Wooldridge.
12 MR. WOOLDRIDGE:
Your Honor, we believe --
([ );
13 speaking for the Applicants, that a short postponement of 14 this prehearing would be appropriate.
I am not suggesting 15 an extended period of time.
16 We would also suggest that in any event, that as 17 it relates to the specific mattars that Judge Bloch 18 mentioned to me as proposed agenda items, the dai before 19 yesterday, there really is no need for the hearing at all on 20
~those issues, as far a formal oral argument type 21 submission.
22 Let me briefly address the three items that are 23 on the agenda and explain our views.
24 I'll take that in reverse order, as it relates to
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25 the Board's stated concern about some of the sampling ACE-FEDERAL REPORTERS, INC.
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methodologies tha t --
2 HMR. ROISMAN:
Excuse me, Mr. Chairman, I'm sorry
.3
^to interrupt Mr. Wooldridge, but I want to be clear. 'Are we 4
having a second oral motion now to reconsider the Board's 5
_ order directing that there be a prehearing conference, or is 6
the only item on the agenda whether it should be postponed?
7 JUDGE BLOCH:
Mr. Roisman, I understand that a
possible problem, because at least one of the points that 9
Mr. Wooldridge just made his point that was made in writing
- 1 10 by the Applicant.
I'd like to hear him out and see what the 11 motion is.
12 MR. ROISMAN:
All right.
Okay.
I'm sorry to
~
(s) 13 interrupt.
14 JUDGE BLOCH:
Mr. Wooldridge.
15 MR. WOOLDRIDGE:
The third item on the proposed 16 agenda has to do with the sampling methodologies of the 17 Comanche Peak Response Team and the Board's concern that 18 relates to that.
It is our belief that, in any event, we 19 could not properly and fully respond to that in the short 20 time provided from the time we learned of that Board concern 21 until the prehearing conference or: Tuesday.
Those are very 22 complicated matters, in which a substantial amount of time 23 has been spent in meetings with the NRC in *he process of 24 addressing Staff concerns that relate to some of those same
(
25 issues.
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JUDGE BLOCH:
Mr. Wooldridge, we appreciate that, 2
and of course, in mentioning that we have that concern, the 3
only purpose for doing it was in case the point turned to be 4
trivial and the Board was misguided in thinking it was 5
important.
So we did not intend to insist you make a 6
presentation on Tuesday.
7 MR. WOOLDRIDGE:
Well, it would be our suggestion 8
that, if the Board so desires, that it, in a memorandum, 9
express its concern and allow the parties an opportunity to 10 respond to it, within some certain period of time.
11 JUDGE BLOCH:
That is our plan, 12 MR. WOOLDRIDGE:
Okay.
~'
/
13 JUDGE BLOCH:
And on the other items, 14 Mr. Wooldridge?
15 MR. WOOLDRIDGE:
The other two items, the first 16 having to do with the Docket 1 discovery issues, it appears 17 to us, your Honor, that the vast majority of the individual 18 items to be considered, are contained in the five sets of 19 interrogatories filed by Miss Ellis, having to do with the 20 Board's order on credibility.
We have found that it's 21 really not possible for us to effectively negotiate among 22 us, a response to those issues, considering the fact that 23 there is a stay order outstanding on those five sets of 24 issues, and considering also that -- without be presumptious 25 that the positions we have are that a Board order on the ACE-FEDERAL REPORTERS, INC.
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1 motion for-reconsideration of credibility, would be out in 2
the not-to-distant future.
.3 JUDGE BLOCH:
But that depends on when the 4
Applicants are going to respond with the paper that was the
- S
' subject of the stay.
6 MR. WOOLDRIDGE:
Yes, sir, and it is my
-7 understanding that that is due and will be filed the first 13
~ part of next week, and I'll ask Bill Horin if that's 9
correct.
10 MR. HORIN:
That's correct, your Honor.
.11 JUDGE BLOCH:- Thank you.
12 MR. WOOLDRIDGE:
That is a major issue, and that
]
)
.13 is a major part of the discovery items in - Docket 1.
Another 14 piece of. the discovery items in Docket I deals with the 15 microport items.
The Applicant will respond to those 16
. issues, so I don' t see any need for an argument on that.
I 17 think the Board's latest order is depositive of those.
18 The only other item remaining is the discovery of 19 CPRT' documents.
We have had some conversations with Miss 20 Ellis about those, and our concerns relate more to timing 21 than they do to the extent of the discovery that is to be
~
22 allowed and we're prepared to meet further with her.
23 MRS. ELLIS:
I'm sorry.
I couldn't hear that 24 last statement.
/
25 JUDGE BLOCH:
He said he was prepared to meet ACE-FEDERAL REPORTERS, INC.
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further with you on the question of timing, that they would 2
not -- am I correct, Mr. Wooldridge?
You're not contesting 3
the substance of those interrogatories?
4 MR. WOOLDRIDGE :
For all practical purposes, your 5
Honor, we're not.
We have proposed that all of the 6
documentation supporting the CPRT efforts will be made 7
available tor discovery.
The only real issue is whether or 8
not discovery on individual isolated items should take place 9
while the actual process is ongoing, as opposed to when 10 results of reports on individual items have been completed, 11 We're prepared to go further with that.
That is, 12 in my view, a very narrow item and certainly, by itself, J )
13 wouldn not justify, you know, bringing all the parties to 14 Dallas for a prehearing conference.
15 JUDGE BLOCH:
And does that also mean that 16 there's no contest about questions being asked about the 17 people who are constituting the Max team?
18 MR. WGOLDRIDGE:
The CPRT team?
19 JUDGE BLOCH:
Yes.
20 MR. WOOLDRIDGE:
Tha t's correct, your Honor.
21 JUDGE BLOCH:
I'm sorry.
The CPRT team.
Okay.
22 MR. WOOLDRIDGE:
That brings us to the Docket 2 23 discovery.
It is our belief -- I guess I'll separate that 24 three ways, Judge.
25 First of all, our position that relates to ACE-FEDERAL P.EPORTERS, INC.
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jurisdictional issues is intertwined with the issues that 2
are now before the Appeals Board of the directed o
3 certification motion that was filed.
And I think everyone 4
knows our position on that, and we know everyone else's 5
position.
6 JUDGE BLOCH:
- Okay, I'm sorry.
You're talking 7
about the motion that was denied this motion?
8 MR. WOOLDRIDGE:
No, I'm talking about the second 9
motion, your Honor, the one to which the Board --
10 JUDGE BLOCH:
That's only procedural.
The only 11 question there is whether we consider it in both dockets, or 12 they've got to refile it in the other docket.
m 13 MR. WOOLDRIDGE:
I think you're correct, your 14 Honor, from the standpoint that there are procedural issues 15 involved, and that is whether we have a "one case theory" 16 and whether or not the opportunity is afforded for the two 17 sides of the case participation to have discovery in both 18 dockets.
The relevancy of those issues in Docket 2.
That 19 is still a matter that is before the Appeals Board.
20 JUDGE BLOCH:
Okty, now if I understood the brief 21 correctly, it stated that, with respect to discovery, the 22 standard is that directed certification is not proper, that 23 the principal matter that was being addressed had to do with 24 7^%
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25 MR. WOOLORIDGE:
That's correct.
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'l' JUDGE BLOCH:
So --
2 MR.-WOOLDRIDGE:
You're right about that, but 3
what that appeals Board does or does not do with that 4
matter, we.believe will be directive-to all us from the 5
standpoint of how this ' case it to be pursued in the future.
.6 JUDGE BLOCH:
So basically what you want in this 7
instance is for us to have -- to issue, in effect, a stay on 8
your obligation to respond during the pendancy of the 9
directed certification motion?
10 MR. WOOLDRIDGE:
I haven't asked for it, Judge, 11 if that'is the effect of it, and I guess that's what we're 12 doing.
I really think that there is no need, or that it is j
.13 not timely for us to have a prehearing on that next Tuesday,
~
14 without regard to the directed certification.
15 JUDGE BLOCH:
See, your obligation to respond has E16 not been lif ted by the motion-for directed certification.
17 MR. WOOLDRIDGE:
I understand that, Judge, no 18 question.
19 JUDGE BLOCH:
And on the interrogatory question, 20 I wouldn' t be inclined to do that, because I consider the
'21 directed certification on interrogatories to be frivolous,.
22 and so I would not delay any response on that portion of the
~23 motion.
24 MR. WOOLDRIDGE:
Well, what we have, in that U
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1 think that it's necessary nor is it dependent upon.the
.2
~ directed' certification, because we have your Honor's order 3
of October 29, which addresses a number of 'our objections.
4 In' my. conversations with Billie Garde in Grandberry, I think 5
'it's recognized that it does not address all' of the L6 objections, and she is in the_ process of preparing a listing.
7 of those that not. addressed, 'with the idea in mind of filing a motion to com'el on those, and I think that's something
'8 p
9 that'.we can-work out, but failing to work it out, I think 10 the Board'can rule on the motion to compel and our response 11 thereto, without the' necessity of a prehearing conference.
12 It's certainly up to the Board, but I think there
{}
13
-are some of those issues that are not ripe for 14 consideration.
15 JUDGE BLOCH:
Now Mr. Wooldridge, on the whole 16 first set, in which you're raising the question of ripeness, l'7 because of the stay on credibility interrogatories, I am 18 interested in'whether that objection is being pursued by
~19 you, in light of the fact that there are going to be changes 12 0 made by you in the summary disposition motions themselves.
21 I mean, is it really a live issue that they should not be 22 permitted to pursue further questions about summary 23 disposition.
I'm interested in the relationship between the 24 fact that you're going to change those motions and the f act
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25 that you think that somehow the interrogatories about those, ACE. FEDERAL REPORTERS, INC.
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that are related to those motions shouldn' t be answered.
2 MR. WOOLDRIDG8:
Judge, let me respond to it this 3
way.
4 Those five sets of interrogatories, what gave 5
rise to them initially was this Board's ruling on 6
credibility, and that was why they were permitted and our 7
motion for consideration was what gave rise to the stay.
8 Following that, the Board asked us to go ahead 9
and make an effort to respond to those issues which we felt 10 would not go away, by virtue of everything that is to happen 11 in these hearings hereafter.
12 We have done -- I understand in conversation with
)
13 Miss Ellis yesterday that she disagrees with our position on 14 some of thobe, but we do not know which ones she disagrees 15 with.
16 JUDGE BLOCH:
Well, I guess what I'm asking you 17 is, have you considered the relationship between those 18 interrogatories and the changes you're making in your 19 summary disposition motion, with respect to whether you 20 should be voluntarily turning over information?
21 MR. WOOLDRIDGE:
I'll ask Mr. Horin to respond to 22 that.
I frankly have not considered it in that light, since 23 the summary dispositions have been withdrawn.
24 MR. HORIN:
Mr. Chairman, the filing next week is c
25 corrections to the affidavits.
The answers that we've u
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provided to the credibility interrogatories from Mrs. Ellis
_O 2
included and recognized information that was -- that had 3
come to our attention up to the time we provided the answers 4
that may give rise to the need to correct some of the 5
6 So from the standpoint of whether our original 7
answers accommodated whatever changes might be made to the 8
affidavit, they did, certainly up to the point in which we 9
filed those answers, with respect t o --
10 JUDGE BLOCH:
I don' t understand that.
Could you 11 say that in a little bit plainer language.
12 MR. HORIN:
The answers to Mrs. Ellis'
()
13 credibility interrogatories --
14 JUDGE BLOCH:
Yes.
15 MR. HORIN:
took into account, the possibility 16 that corrections would be made to the affidavits.
Those 17 answers reflected, to the best of our knowledge, at the time 18 we filed them, information which would give rise to 19 corrections in the affidavit, and information which will be 20 reflected in the piece to be filed next week.
21 I guess if the Board is questioning whether the 22 answers took into account information that gave rise to 23 corrections to the af fidavit, my answer is, yes, they did, 24 certainly up to the point in which we filed those answers.
25 JUDGE BLOCH:
Go how would you characterize the ACE-FEDERAL REPORTERS, INC.
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responding, and you're waiting for Board action?
-3 MR. HORIN:
There were several interrogatories
~
4 that dealt with matters that either did not relate to an
'5 Applicant's opinions, issues that would remain for
'6 consideration ~ in the proceeding, even in light of the CPRT 7
activities and development since Mrs. Ellis filed the 8
interrogatories in the first place.
9 JUDGE BLOCH:
So those are right, really.
We 10 could decide whether or not those are relevant, because they 11
. are not af fected by the response you are about to make.
12 MR. HORIN:
The response we're about to make
(}
13 next week.
They're not af fected, in the sense, that the 14 subject matters would not be the same; however, they are 15 certainly af fected by the Board's disposition of our motion 16 for reconsideration.
17 JUDGE BLOCH:
Okay.
They would be affected --
18 now, wait a second.
I'm not sure.
19 Suppose we -- suppose that we denied the motion W uldn't you still be arguing that 20 for reconsideration?
o 21 those questions are irrelevant?
22 MR. HORIN:
We would have to address that on a 23 question-by-question basis.
24 JUDGE BLOCH:
Okay.
They would all, as a (q
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for reconsideration, but it's not clear that they would be O
2 allowed anyway.
3 MR. HORIN:
Correct.
4 JUDGE BLOCH:
Okay.
That's your position.
5 MR. HORIN:
Yes.
6 JUDGE BLOCH:
Okay.
Mr. Wooldridge, do you want 7
to continue?
8 MR. ROISMAN:
Mr. Chairman, this is Mr'. Roisman.
9 JUDGE BLOCH:
Yes.
10 MR. ROISMAN:
I j ust wanted to let you and the 11 parties know that I have had Ms. Garde join the telephone 12 conversation.
Since Mr. Wooldridge had made some
[
13 representations regarding his conversations with her, I 14 thought it was important.
15 JUDGE BLOCH:
Would you spell her name for the 16 reporter.
17 MR. ROISMAN:
Yes.
It's Billie -- B-1-1-i-e 18 Ga rd e -- G-a- r-d-e.
19 JUDGE BLOCH:
Thank you.
l 20 Okay.
Mr. Wooldridge, would you,like to conclude 21 your argment?
22 MR. WOOLDRIDGE:
Your Honor, I have nothing 23 further.
24 JUDGE BLOCH:
Thank you.
25 Whichever CASE representative would like to go ACE-FEDERAL REPORTERS, INC.
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1 first.
2
- M RS. ELLIS:
Why don' t you go ahead, Tony.
3
~ MR. ROISMAN:
All right.
This is Mr. Roi sman,
4 with respect to Docket 2.
5 M RS. ELLIS:
Can you think a little louder.
I 6
can't hear you.
7 MR. ROISMAN:
I'm sorry.
With respect to Docket
'8 2.
9 It seems to me, Mr. Chairman, that what 10 Mr. Wooldridge has said with regard to the pendancy of the 11 current directed certification motion has absolutely nothing 12 to do' with the question of discovery in Docket 2.
The
()_
13_
question, to the extent that I can understand it from the 14 directed certification motion, which does not at any place 15 set out what the question is, appears to be whether or not, 16 it was appropriate for the Board to state that evidence 17 developed in one docket and relevant to that docket could be 18 used in the other docket, if it were also relevant in the 19 other docket, and that the parties would identify what they 20 were going to use at the time they did propose findings of 21 fact.
22 Putting aside the question of whether the order 23 of the Board on the 6th mooted that question, and that 24 question is, now the Appeal Board seems to be asking the
())
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25 Applicants to address that, the f act of the matter is that ACE-FEDERAL REPORTERS, INC.
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>LIVEbw-1 it doesn't have anything to.do with the questions that we 2
- have pending in Docket 2, which are based on the October 3
-29th order, undeniably relevant in Docket 2, because the.
<4 Applicant has tried its directed certification on the 5
question of what-is relevant in Docket 2 and they have lost, 6
and.whether this is one case or two case, which, f7 incidentally, no one quarrels with.
We've all said it's one
'8 case, has nothing to do with it at all.
The Applicants and 4
9 Mr. ;Wooldridge's argument make no explanation of how there
.10 was a connection between the two.
11 Secondly, we feel that the sort of -- the generic 12
~ response, well, we' re going to answer some questions, and
~
({. 13 therefore, we don' t think there are any problems,' is not an 14 answer. Mr. Horin called me yesterday, as a result of the 15 conversation that Mr. Wooldridge had with Ms. Garde, in 16 order to get a final CASE position in Docket 2, regarding a 17 -proposal, basically that Applicants would answer nothing 18 until'the Appeal 1 Board's directed certification decision had 19 been reached, and at that time, I indicated to Mr. Horin .20 that that our position was and still remains that the 21 Applicant want to propose to resolve the current road. block 22 on discovery, they should put something in writing, and that. 23 we will consider it. 24-We will leave that option open until noon on }3 d,/ 25 Monday. We will consider anything we get on noon on Monday, u ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800 336-6646
r 0540'01 16 24097 LIVEbw 1 and if we consider that all of our concerns or the 2 significant number of them are going to be addressed, then 3 we will not think it necessary, for purposes of Docket 2, to 4 be down in Dallas, but we have been burned many too many 5 times by the kind of generalities that Mr. Wooldridge has 6 stated in the phone conversation today, that, yes, we' re 7 going to answer it, and we now recognize it. The objections 8 aren' t valid, or any of that kind of stuff. 9 It has never worked out. We want it in writing. 10 11 12 m 14 15 16 17 18 19 20 21 22 23 24 q 1_' 25 ACE. FEDERAL REPORTERS. INC. 202 347 3700 Nationwide Coserage 800 336-6646
10540~02 01 24098 OMT/bc 11= We'want-it in writing. w 2. JUDGE ~BLOCH: Let me interrupt. Let me y 3-interrupt,:Mr.-Wooldridge? Let me interrupt for a second. 4 Mr. Wooldridge? 5: MR.'WOOLDRIDGE: Yes. '6 JUDGE BLOCH: Is the only. thing between the 7L applicant and answering-the Docket 2 interrogatories the 8-determination on whether it's one docket or two? 9 MR. WOOLDRIDGE: Well, it's the determination of. 10-what.is relevant in one docket versus another, and what are -11 .the issues in one docket versus another. f{} 11 2 JUDGE BLOCH: No, is it conceded that it's L13- . relevant? That the' interrogatories are relevant to the case ~ '14 under the Board's orders and concerns? And the only 9 15 question is' direct certification on separate cases for the '16 . purpose of interrogatories? i 17-MR. WOOLDRIDGE: Judge, I can't, I really can't I L 18-answer that. You know, I can't take them all and address L (' 19-them all from that standpoint. You know, I know there are a 20 number of them that we feel are duplicative of earlier 1 . requests. I don't know whether Mr. Gad is on the phone or 2 22 not with Mr. Dignan. Maybe he can address that better than 23 I'can,,because he is working on all those. ~ ) 24 But, as far as addressing each and every one of 25. them, I would hesitate to say. ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800-336-6646
F-1 '0540 02102 24099 1l'OMT/bc' -1 -JUDGE BLOCH: Mr. Gad, how do you -- f( v-I N/' 2 MR. WOOLDRIDGE: I would hesitate to be global'in 3 .my response in light of Mr. Roisman's comment. You know, I L4-don't...I don't want to mislead anybody. 5 JUDGE-BLOCH: Mr. Gad,.can you characterize the 6-position of:the applicants on that? 7 MR.-GAD: 'I had a little trouble hearing, your 8: Honor. It must have had something to-do with the CPRT 9 interrogatories because that is where I've been spending my 10 time. 'll-The one thing that I do recall in a conversation -12 with Ms. Garde on...I've lost track... Wednesday, I guess itt !(') -13 was, was that with respect to the so-called Docket 2 ' s_/ '14 interrogatories, there were a set of those -- a set of the 1 .15 objections to those that had been resolved by the Board's 16 Order, this Board's Order, and there were a set that had 17 not. 18 The last I heard on that issue, which is really 1 19 not'my issue, the last I heard in that session was that 20 Mr. Wooldridge and Ms. Garde were goi.tg to sit down and make
- 21 a list of, hopefully, an agreed-upon list of, objections 22; that still required Board action, even assuming that no 23 petitions for direct certification had ever been filed.
12 4 I did not hear clearly a question going to the A(_) 25 CPRT discovery. ACE FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coverage 800-336 6646
m '05'40 02'03 24100 OMT/bc 1 JUDGE BLOCH: And so, Mr. Wooldridge, I guess I'm 2 left with the belief that we don't know the extent to which 3 the Board might be able to act on the Docket 2 request on -4 ' Tuesday, because we don't know the extent to which they 5 depend solely on the separate docket theory. 6 MR. WOOLDRIDGE: That's correct, your Honor. And 7 we also do not know what the parties positions are about 8 which one of those has been resolved by your Order of 9 October 29, and which of those objections have r.vt been 10 resolved. 11 And Ms. Garde said that she had worked up a 12 schedule of what she believed those to be and suggested that (~) 13 that be addressed by a motion to compel; also tried to do v 14 the same thing. But there has not been a communication '15 since that meeting on Wednesday, discussing Ms._ Garde, 16_ principally because I think she's taking a final this 17 morning. Maybe has already taken it. 18 JUDGE BLOCH: Taken a what? 19 MR. WOOLDRIDGE: We really do not know. I think 20 that's my point, your Honor. We don't know where we stand 21 on those issues. But I don't think that it is right to 22 address them, I guess is my view, until such time that that 23 is formally before the Board. Or if it is right, that it '4 would not be inappropriate for the Board to go ahead and 2 '( I 25 rule on it without the necessity of oral arguments. We're ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 80 4 336 6646
10540"02 04 24101 I LOMT/bc 1 not asking for them. 7]'- ' 2-JUDGE BLOCH: Okay. Mr. Roisman, would you '~ -3 Leontinue? 4 MR.-ROISMAN: Yes, Mr. Chairman. -5 I still'must say, and I just want to reiterate 6 this, it is impossible for me to understand how .7 Mr. Wooldridge draws from the second directed certification
- 8 motion, particularly in the face of the denial of the first 9
on.the Palo Verde footnote 9 basis, which is the meritless 10-basis, that there is still an issue as to what are the 11 issues in-Docket 2 in front of the Appeal Board. 12 The Appeal Board had in front of it, it first ]) 13 directed certification,.the opportunity to rule on whether 14 or.not for instance the conduct of past management was a 15 relevant issue in Docket 2. The Appeal Board has held that 16 .the directed certification of that issue is meritless by its 17 citations of Palo Verde case. 18 This Board, in its October 29th order, and many 19 earlier orders, has made abundantly clear that the past R20 management's conduct is relevant to this present case in 21 Docket 2. 22 There's nothing in the new directed certification 23 motion that relates to that question at all. That question 24 relates to the mechanics of moving evidence between two t () 25 dockets, not to what are the issues in the two dockets. ACE-FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800 336 6646
n [054'0:02105 24102 9,1 J0MT/bc .l. And so I don't see how it has any bearing on it. 'b 3# 2 With.regar'd to the conversations 1between.Ms. Garde.and 13 Mr.-Wooldridge, the first thing I would do is ask Billie:- 4
- Billie, is there anything you want to add to what 5
those conversations'were? 6 MS. GARDE: Yes. Now,-I did not hear maybe the 7. first.five or 10 minutes of the conversation. 8' JUDGE BLOCH: We cannot hear you. 9 MS. GARDE: Can you hear me now? 10 JUDGE BLOCH: Yes. 11 MS. GARDE: Okay. I did not hear the first five 12 .or 10 minutes of the conference call.
- But,
.r. Wooldridge, M (') ~ .13 my recollection of our conversation was that there is v 14 approximately 24 document requests in Docket 2. 15 Of those, according to my looking at your ~16 objections, all but five of them have been resolved. The 17 ' objections have been resolved by the Board's order on the ~18 relevancy question, which has also now been decided by the 19 Appeals Board. -20 As to the other five, there are separate -21 objections. For example, the safe team questions, you've 22
- taken the position that that information is not available to
'23 the case based on some privacy considerations, except for 24 .those that you may go through and deem relevant to
- [f 25 harrassment/ intimidation.of the interrogatcries of March of ACE FEDERAL REPORTERS, INC.
202 347 3700 ' Nationwide Coverase 800 336-6646
m, ~ - '0540~02 06: 24103 -li ' OMT/bc l' 1'84.
- ('y 2-On about five, there are' separate objections (3-
- above and beyondithe relevancy objection that you waived. ~4- _ What I said to.you was that, as a premise to any kind of '5 discussions:at all, uncooperation would come from a, you 6 know,' iron-clad commitment-that you would now answer the 7 questions -- not that you would raise any other objections 8 or any other delays. 9 And.that if that stipulation could be put in g 10 writing, we may have a discussion point. But, as you also 11' know, I was without Mr..Roisman there and.had to go back and 12 talk to him about all of these matters. j [ f 13 JUDGE BLOCH: It's now getting very dif ficult, 14 Billie,-if you could speak up some more?- 1- .15 MS. GARDE: Okay. Well, the only other-16 concluding comment was that my conversation with L 17 Mr. Wooldridge, and, Tony, maybe you can rasay what they 18 didn't hear,.that I said; was that I had to go_back and talk 19 to Mr. Roisman about-.our position. And as a premise, it was 20 that Mr. Wooldridge would agree to substantively answer the 21-questions. 22 And I don't hear that's what he's saying now. 23 MR. ROISMAN: Mr. Chairman, this is Mr. Roisman. '24 First of all, did anybody not hear anything that-j ) 25 ACE FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coverage 900 336-6646
24104 540 02 07 Billie said that I ought to reiterate? OMT/bc 1 the chairman had JUDGE BLOCH: I think that 2 incidentally, she's'the
- And, difficulty with Ms. Garde.
3 I think I only person we're referring to by first name. 4 Let's stop that. 5 sta ted that. together I think I had difficulty putting it 6 because it was just barely audible. 7 Well, basically, what MR. ROISMAN: All right. 8 she had said two things to Ms. Garde pointed out was that 9 i Mr. Wooldridge in the conversations that he did not ment on 10 and that one thing that he said in his reiteration of them, 11 that she said was not said. 12 number she said was that, The two things that 13 ' She was getting ? she was not acting on behalf of case. 14 i
- one, and the final i
15 ! information from Mr. Wooldridge, and determinations would be made after she and I spoke, 16 any further conversation should be held with 17 that, in fact, resulted in the phonecall yesterday from And that 18 me. 19 Mr. Horin. that Mr. Wooldridge had indicated Number two, 20 i s with that the applicant was prepared to answer the quest on 21 respect to a certain group of matters that were essentially 42 h covered by the question of relevancy, depending upon t e 23 I outcome of certification, directed certification, what 24 the one that was denied this morning. 25 will call number one, ACE-FEDERAL REPORTERS, INC. 800 336-6646 Nationwide Coverage 202 347-3700
0540 02 08 24105 1 OMT/bc 1 JUDGE BLOCH: Let's stop a second. That was 19 2 of 24 questions if Ms. Garde was correct. 3 Mr. Wooldridge, do you agree about that? 4 MR. WOOLDRIDGE: Judge, what we've gotten into at 5 this point is d'.scussions that we had with Ms. Garde and 6 with Mr. Roisman to try to resolve issues without the Board 7 being involved in it. 8 JUDGE BLOCH: Just a second. Nothing happened, 9 and -- 10 MR. WOOLDRIDGE: And we're not able to resolve 11 those issues. 12 JUDGE BLOCH: If I understand, I think the Board 13 had trouble hearing you. 14 MS. ELLIS: Yes, I think they just lost you. 15 JUDGE BLOCH: Mr. Wooldridge, are you there? 16 MR. WOOLDRIDGE: Yes, sir. 17 JUDGE BLOCH: All right, I can hear you fine now. 18 MR. WOOLDRIDGE: Did you hear my comment in 19 response to Mr. Roisman? 20 MS. ELLIS: Excuse me. Maybe we ought to be sure 21 everybody's still on. 22 JUDGE BLOCH: Off the record. 23 (Discussion off the record.) 24 MR. ROISMAN: Mr. Roisman's still on. 25 Ms. Garde's still on. ACE. FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800 336 6646
0540 02 09 24106 1 OMT/bc 1 MS. ELLIS: Okay. 2 JUDGE BLOCH: Mr. Meby? 3 MR. TREBY: Ms. Chandler's here. Mr. Treby as ,, ell. 4 w 5 JUDGE BLOCH: All right, so let's go back on the 4 6 record. 7 Mr. Wooldridge, we got the first two sentences 8 and then you faded. 9 MR. WOOLDRIDGE: Well, I think that was all I 10 was...I think two sentences about encompassed it. But what 11 we're getting into at this point is informal discussions to 12 try to resolve the matter that we had with Ms. Garde and 13 Mr. Roisman relating to what we may or may not be willing to 14 do, and what kind of stipulations we may or may not agree 15 to. 16 The bottom line of that is that the parties were 17 not able to agree. I don't think it's appropriate for us to 18 get into the details of that. 19 JUDGE BLOCH: That was what the Board was 20 interested in.- We really want to know whether there are 21 -matters to consider in Dallas on Tuesday. And it sounds to 22 me like what you're saying is there are disagreements and 23 there are things to resolve. 24 MR. ROISMAN: Mr. Chairman, that was going to be 25 my bottom line. This is Mr. Roisman again. Is that, yes, l ACE FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverase M 33 H 646
0540 02 10 24107~ l OMT/bc 1 we didn't agree.. We do not agree. We do not agree even on 2 the-fundamental principles of what are the issues that this 3 Board has resolved. 4 And-that's certainly one of the reasons, as our 5 filing made clear, that we wanted a prehearing conference. 6 JUDGE BLOCH: Okay. Are you finished, 7 Mr. Roisman? 8 MR. ROISMAN: Let me just doublecheck. Yes, I 9 believe that covers our response to the...now, again, I'm 10 assuming the only issue that is before us is the issue of 11 whether we should postpone the prehearing conference. 12 JUDGE BLOCH: That's correct. 13 MR. ROISMAN: I do not consider it to be a motion 14 for reconsideration of the Board's order directing a 15 prehearing conference. 16 JUDGE BLOCH: 'Mrs. Ellis? 17 MS. ELLIS: Yes, sir. First, I'd like to. mention 18 that I'm not sure that I understood Mr. Wooldridge 19 correctly, if he was saying items.that he addressed were the 20 only items for the agenda. 21 The items which we considered to be included-in 22 the agenda ~are on pages 12 and 13 of the. pleading that we 23 -filed on' October 26th, which includes more than just these 24 .five credibility requests and includes more than the answers 25 to our August 27th request. And... ACE FEDERAL REPORTERS, INC. 202 347 3700 - Nationwide Coverage 800-336-6646
0540 02 11 24108 1 OMT/bc 1 JUDGE BLOCH: Stop there. 2 Mr. Wooldridge, is that different from your 3 understanding? 4 MR. WOOLDRIDGE: Yes, your Honor. I think we 5 need some clarification from the Board on that. It's my 6 understanding that the items that are to be on the agenda 7 are the ones that you mentioned to me over the phone on 8 Wednesday. If there are to be additional items added to the 9 agenda, we certainly need to know about it. 10 JUDGE BLOCH: It was to be all of the 11 interrogatories mentioned in Mrs. Ellis' filing. 12 MR. WOOLDRIDGE:- Well, she-has a lot of other j 13 questions that are not just answers to interrogatories or l'. objections thereto. 4 15 JUDGE BLOCH: Mrs. Ellis, would you clarify that? 16 I was only planning to address discovery requests. 17 MS. ELLIS: All right. There are some other 18 proposed items and I don't know if it was ever clear to me 19 whether or not those were going to be included. I think 20 we'll probably have a full agenda without these. In our 21 ., we had mentioned a f,ew specific things. 22 One of our concerns was what we perceived to be 23 the applicant's refusal to recognize that credibility is at 24 issue in these proceedings, which can be addressed I think 25 in the context of the responses to the interrogatories. ACE-FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coverage 800 336 4646 I
0540 02 12 24109 1 OMT/bc 1 JUDGE BLOCH: Okay, their position on that is 2 that your credibility in interrogatories depend on that 3 special reopening of discovery that the Board ordered. 4 MS. ELLIS: Yes. I'll address that in a little 5 more detail later. 6 The second item on our Attachment 3 was that we 4 7 need clarification from the Board and from the applicant as 8 to the proper way to proceed with discovery from six...and I 9 think that's something that does need to be included. It 10 does have to t with discovery. 11 JUDGE BLOCH: Well, I don't understand. You just 12 file requests...you just file...I see. There's a problem as 13 to whether you can file interrogatories that Signa will 14 respond to. 15 MS. ELLIS: Right. Right. And... 16 JUDGE BLOCH: Do the applicant's have a position 17 on that? 18 MR. WOOLDRIDGE: Your Honor, it's our belief that 19 all of the discovery request that relate to the applicant's 20 witnesses ought to come to the applicant as opposed to 21 coming direct to Signa. If it is appropriate discovery. 22 MS. ELLIS: You see, this is one of our 23 problems. And, as I mentioned, in this, in one instanca, 24 the applicants did respond and we did file interrogatories. 25 In another instance, they did not respond and said that we ACE FEDERAL REPORTERS, INC. 202 347-1700 Nationwide Coverap - M316464
0540 02 13 24110 1 OMT/bc 1 should go directly to Signa. 2 MR. WOOLDRIDGE: Well, I'm not aware of that. 3 MS. ELLIS: So you might need to review that, 4 , Bob, and... 5 MR. WOOLDRIDGE: I have no problem about that, 6 Juanita. We can discuss that. 7 JUDGE BLOCH: All right. Please continue, 8 Mrs. Ellis. 9 MS. ELLIS: All right. The third item was the 10 applicant's position and the position of the Board regarding 11 discoveries of applicant's third party consultants, members 12 of the CPRT, and so forth. And I think we need to get clear 13 what is being answered. When we ask a question, the 14 applicants have said in their response to our August 27th I 15 interrogatories that they are ignoring some of the wording l I 16 which we put in there, which asks specifically that all of 17 their agents of consultants, everybody be included in their 18 answer. 19 They said that they are ignoring that. This 20 leaves us in the position of not knowing whether or not 21 we're getting information which people, for instance, not 22 just from the CPRT but as an example... 23 JUDGE BLOCH: Okay, so their objection to the 24 generality of your introductory language is something you 25 contest? ACE. FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coverase 90 4 336-6646
0540 02 14 24111 1 OMT/bc 1 MS. ELLIS: Yes. 2 JUDGE BLOCH: Okay. Continue. 3 MS. ELLIS: Okay, that's another matter which I 4 ,think needs to be addressed and resolved. 5 JUDGE BLOCH: All right, Mr. Wooldridge, do you 6 want to comment on that? 7 MR. WOOLDRIDGE: I don't think there's anything 8 before the Board in the way of a motion relating to that, 9 your Honor. 10 JUDGE BLOCH: Case hasn't filed a motion to 11 compel on that? 12 MR. WOOLDRIDGE: No, they haven't, not to my 13 knowledge. 14 MS. ELLIS: 'It was my understanding that we were 15 going to address, and just a moment, let me check my notes 16 here -- as the Board is aware, I have for sometime taped all 17 of the previous, you know, the off the record conference 18 calls whenever I can get to the tape recorder. And I did 19 tape that particular conference call on October 15th. 20 My notes state that Judge Bloch ended up deciding 21 that there were no needs for further responses on pending 22 discovery requests or motions for protective order and that 23 we're going to put them in the docket of the prehearing 24 conference, unless the parties feel we can agree on them. 25 And that we will handle everything that's currently opon on ACE. FEDERAL REPORTERS, INC. 202 347 3700 Nanonwide Coverase 8001364M6
0540 02 15 24112 1; OMT/bc 1 discovery at the prehearing conference, unless the Board 2 rules on some of them before then. <3 JUDGE BLOCH: And the reason for that is that we 4 Aad been going under an informal procedure of consultation, 5 which I guess I had felt broke down. 6 MS. ELLIS: Yes. 7 JUDGE BLOCH: Mr. Wooldridge, we're not going to 8 require that there be a motion to compel in order to 9 consider whether or not to direct. 10 MR. WOOLDRIDGE: That's fine, your Honor, just as 11 long as we know what the issues are that we're going to be 12 faced with and enough time to be able to respond to them. 13 JUDGE BLOCH: Mrs. Ellis? 14 MR. DIGNAN: Your Honor, this is Tom Dignan in 15 Boston. 16 JUDGE BLOCH: Yes, sir. 17 MR. DIGNAN: If it is the Board's ruling that no 18 motion to compel is necessary to take up discovery matters 19 leading to formal ruling, I would respectfully request the 20 Board articulate that in a written record order. i 21 MR. ROISMAN: Mr. Chairman, this is Mr. Roisman. 22 JUDGE BLOCH: It's on the record, Mr. Dignan. I 23 just said it on the record. 24 MR. ROISMAN: Mr. Chairman, this is Mr. Roisman. 25 I assume that under the rules under which this conference ACE FEDERAL REPORTERS, INC. 202 147 3700 Nasionwide Coversee m))6 #46
1 0540 02 16 24113 i a 1 OMT/bc 1 call is taking place _that oral motions are in order. And I 4 2 -don't think there is any doubt that Ms. Juanita Ellis has 3 made an oral motion, if her written statement of issues for 4 .ghe prehearing conference was not itself already a motion on 5 that issue. f 6 Just so that we're not dealing with a nonmotion 7 issue, we're dealing with an issue which was motioned in the l 8 same way this prehearing conference was, orally. 9 JUDGE BLOCH: Mrs.-Ellis, please continue. 10 MS. ELLIS: All right. Item 4 of Attachment 3 11 reflects the fact that we had not had an opportunity at that l 12 time to respond to the answers from the applicants on the 13 August 27th interrogatories, which I believe was dated l l 14 October 22nd was their response, i 15 Since that time, I have sent to the applicants by j 16 Federal Express Overnight to Mr. Gad and to Bill Horin, who 17 were the main ones working on this, and~by first glance to 18 the rest of the service list, itemization similar to our 19, where we set forth the specific items that we 4 20 are concerned about and which we believe we need to have 21 some resolution. 3 22 I'll get back to that in just a moment. I want 23 to continue with this list. The fifth item on the list 24 concerns what we perceive to be applicants ignoring the fact t 25 that there are design issues in these proceedings. I want i i ACE. FEDERAL REPORTERS, INC. l 202 347 3700 Naionwide Coversee 800 336 4 646
0540 02 17 24114 1 OMT/bc. l' to be sure that when we get responses to all of our 2 interrogatories, they are including answers that do have to 3 do with design. 4 I was concerned especially about the pleading to, 5 the Appeal Board, where there was no mention of design 6 whatsoever. And I just want to be very clear that, 7 especially since we do have new attorneys for the applicants 8 on board, that they are fully aware that design is an issue 9 in this proceeding -- 10 JUDGE BLOCH: Ms. Ellis, I'm sorry, but you've 1 11 lost me because I'm not aware of anywhere that they've 12 denied that design is an issue. L 13 MS. ELLIS: Okay. 14 2 15 16 17 18 19 20 21 22 23 24 25 ACE FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coverage 8(53366H6
0540 03 01 24115 1 OMTbur. 1 MRS. ELLIS:. Item 6 is regarding Unit 2. 2 We have received no responses from applicants on 3 Unit 2 whatsoever, and obviously this is a -- 4 JUDGE BLOCH: What kinds of questions were there 5 about Unit 27 6 MRS. ELLIS: We had asked some specific questions 7 as to -- I forget the specific ones, but in our fourth set, 8 I believe it is, we asked questions regarding Richman 9 inserts. 10 I don't remember any of the others. I think 11 there were some about Richman inserts specifically that come 12 to mind. 13 But there are no answers as to Unit 2 in any of 14 the responses. 15 JUDGE BLOCH: Those were contested because.they 16 relate to our reopening discovery on the misrepresentation 17 question? 18 MR. WOOLDRIDGE: That is correct. 19 JUDGE BLOCH: That was Mr. Wooldridge who said 20 "That is correct"? 21 MR. WOOLDRIDGE: Yes. 22 JUDGE BLOCH: So they are not contesting anything 23 separately about Unit 2, Mrs. Ellis? 24 MRS. ELLIS: Yes, in their answers, they did, 25 your Honor. ACE. FEDERAL REPORTERS, INC. 202 347 3700 Nasionwide Coverage 800 336 4646
i 0540 03 02 24116 1 OMTbur 1 JUDGE BLOCH: They did. There are separate 2 objections that has to do with Unit 27 3 MRS. ELLIS: I think they have said that -- if 4 ,7ou can hold just a second, I think I can find an example 5 for you. 6 (Pause.) 7 No, I am sorry. On the Richman inserts, it was 8 not one of the ones. 9 Just a moment. 10 on that one they stated it was not ripe for 11 response. 12 JUDGE BLOCH: Well, why don't we go on with that? 13 I don't think, from my recollection, that I have ever seen 14 any special objection on Unit 2. 15 MRS. ELLIS: Okay. 16 JUDGE BLOCH: One being valid. i 17 MRS. ELLIS: Okay, I will -- I think that their i i 18 wording was that they objected -- well, wait just a moment. i. 19 I can come back to that later. 20 Okay, the next item on the Attachment 3 is 21 something that I think can be done possibly right here, that 22 we would like to get a firm commitment from the Board and 23 the parties that future hearings will be held either in 24 Dallas or Arlington rather than Ft. Worth. 25 JUDGE BLOCH: That has nothing to do with why we ACE FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coverage 800 33&M46
0540 03 03 24117 1 OMTbur 1 are holding a hearing. 2 MRS. ELLIS: Item 8 is regarding samples 3 contesting and any other aspect of testimony whose 4 gredibility they decide. Now, that has to do not only with 5 the argument the applicants are making regarding 6 credibility, but also there is a continuing disagreement as 7 to what the Board intended, and I think the Board may be 8 able to clarify that right now. 9 JUDGE BLOCH: This just has to do with the fact 10 that -- the applicants had conceded that they would answer 11 about sampling. 12 Is there something special about this one 13 interrogatory, you think, Mrs. Ellis? 14 MRS. ELLIS: Yes. There are several 15 interrogatories that are in question where we need to know 16 from the Board whether, as Case understands it, the Board 17 means when they say samples, testing, or any other aspect of 18 testimony, whether regarding testing they meant actual 19 physical testing, as the applicants maintains, or, as Case 20 maintains, analytical testing, which is done before you 21 actually go or sometimes in lieu o.f actual physical 22 testing. 23 And perhaps the Board could clarify that for us. 24 But there is a continuing disagreement regarding several 25 questions in that regard as well as the credibility issue. ACE FEDERAL REPORTERS, INC. i 202 M7 3700 Nationwide Coverser 8(n33MM6
0540 03 04 24118 i 1 OMTbur 1 Did I make myself clear as to what -- 2 JUDGE BLOCH: Yes, you did. I don't think that 3 is a tough issue, but I don't want.to resolve it in the 4 gourse of a motion to postpone. 5 MRS. ELLIS: Okay. 6 The ninth item is what is the legal status of a 7 statement made by a party in a motion or paper where the 8 Board responds to that statement before the opposing party 9 has a chance to file anything? 10 JUDGE BLOCH: Well, that is rather easy, and it 11 has got nothing to do with the motion either. We will 12 sometimes do that when wo think the party won't be ~ 13 prejudiced by not'having a chance to respond. 14 If you feel aggrieved by the order, you file a l 15 motion to reconsider, and we consider that. 16 MRS. ELLIS: Right. 17 okay, in other words, the only thing really that 18 is -- as I understand it -- the failure of the party to say 19 anything -- you know, to respond -- is irrelevant to any. s 20 future rights to argue that issue. I'am'just a little r 21 concerned about the appeal board or the appeal process, so ,i 22 that we are not prejudiced by -- 23 JUDGE BLOCH: I think if you want to reserve 24 appeal rights and you have not-responded, you ought to file 25 a motion to reconsider. ACE FEDERAL lbPORTERS, INC. 202 347 3700 Nationwide Comose FE336 6646
0540 03 05 24119 1 OMTbur 1 MRS. ELLIS: I beg your pardon? 2 JUDGE BLOCH: If you want to reserve appeal 3 rights, I would a(vise that you ought to have it on the 4 . record, and therefore if we have issued an order before you 5 responded, you should file a motion to reconsider and have 6 it on the record. 7 MR. ROISMAN: Mr. Chairman, this is Mr. Roisman. 8 If I could just clarify what I think is the concern of 9 Mrs. Ellis on this point. 10 It is not so much with the results, which is what 11 a motion for reconsideration would address, but it is to 12 something which this Board and other-boards have been fairly 13 clear about, and that is that you don't file motions with 14 regard to reasoning. 15 But sometimes the reasoning appears to make 16 assumptions about the status of the case. 17 VOICE: We are having difficulty hearing. 18 MR. ROISMAN: Sometimes the filing of a board 19 order includes reasoning which a party disagrees with, and 20 all Mrs. Ellis is concerned about is that if the B'oard has 21 reasoning in there while reaching,a result that she is in 22 agreement with but the reasoning she thinks is in error, 23 does she have to file a motion for reconsideration about the 24 reasoning if she never previously had a chance to file any 25 paper with regard to the motion, and if she doesn't, does ACE. FEDERAL REPORTERS. INC. 202 347 3700 Nationwide Cowage M3%fM6
0540 03-06 24120 1 OMTbur-1 the Board's reasoning later become a binding precedent that 2 interferes with her ability to challenge it either in a 3 subsequent board order or on appeal? 4 .s. JUDGE BLOCH: And that, of course, is a good 5 legal process question, and I will bet that you could advise 6 her on that, Mr. Roisman. i 7 (Laughter.) 8 JUDGE BLOCH: So,.Mrs. Ellis, what else? 9 MRS.-ELLIS: Okay, let's see, Item No. 11 is 10 clarification that the Board's statement in the first 11 paragraph of page 2 of its October 2nd memorandum and order, 12 applicant's motion for modification, which states: l 13 "Intervenors must submit new issues 14 in a timely manner when information 15 relevant to those matters raises 16 their suspicions." 17 That that is not meant to supersede and replace 18 the Board's previous position that evidence should be j 19 presented in a controlled, organized fashion and not in a 20 series of drips and drams. 21 JUDGE BLOCH: We are only talking about the 4 22 standards for the admission of new contentions thero, 23 Mrs. Ellis. 24 MRS. ELLIS: Right. 25 Okay, that -- perhaps I need to file something i ACE FEDERAL REPORTERS, INC. 202 347 3700 -_ _ ' Nationwide Coverage 800 33H646
0540 03 07 24121 1 OMTbur 1 else differently. This is not necessarily part of the 2 prehearing conference, I suppose. 3 The 12th one is limitations on applicants of what 4 they will supply and when they will supply it. For 5 instance, normally we do not receive any handwritten notes, 6 and this is -- there are things along that line that we need 7 to clarify and be sure that applicants are supplying 8 everything that we have actually asked for. 9 JUDGE BLOCH: Basically, you have a conflict with 10 the applicants over your need to get documents prior to l 11 final action by the CPRT, is that true? 12 MRS. ELLIS: Yes, that is one of the basic 13 issues. It applies to other things as well, where normally 14 we do not receive things like handwritten notes. 1 15 l JUDGE BLOCH: Could I ask you: on paper what is t 16 the status of that particular issue? You have requested 17 these other drafts, and what has the applicant done? l 18 i MRS. ELLIS: Are you talking now about the 19 specific ones in response to our August 27th? i 20 JUDGE BLOCH: Where it is raised?, 21 MRS. ELLIS: That is certainly one of the 22 issues. 23 JUDGE BLOCH: And the applicants said they would l 24 not give drafts prior to final documents? 25 MRS. ELLIS: Right, right. l ACE. FEDERAL REPORTERS, INC. 341 3700 Nationwide Coverapr 800 336 M46 202
0540 03 08 24122 2 OMTbur 1 JUDGE BLOCH: And, Mr. Wooldridge, is that your 2 understanding, also? 3 MR. WOOLDRIDGE: Your Honor, let Mr. Gad respond 4 .to that, if you could. 5 JUDGE BLOCH: Yes, sir. 6 MR. GAD: Putting aside the fact that I sent 7 Mrs. Ellis a letter suggesting that we could work out a 8 procedure on this and I haven't heard back, what the 9 interrogatories say is that the CPRT process cannot function 10 .if the files are subject to in-process review. It is just a 11 physical, practical constraint. You have to shut down that 12 work for days, and you will delay it. 13 What we have told Mrs. Ellis is that without the 14 need for discovery documents, as soon as each one of the 15 quanta of work, called an ISAP, is finished, then the whole 16 file will be shipped to Dallas, everything that is in it 17 will be shipped to Dallas and made available to her. 18 The only issue on this one is tiniing, and it is a 19 question of -- amongst other things, it is a question of 20 whether or not discovery is going to slow down the finishing 21 of this pr.acess or whether we are. going to finish the 22 process and then discovery. 23 So that is the objection that has been made 24 several places. 25 MR. ROISMAN1 Mr. Chairman, this is Mr. Roisman. ACE. FEDERAL REPORTERS, INC. 202-347 3700 NationwWe Coverage 800 336-4646
0540 03 09 24123 1 OMTbur 1 I might add that is also a Docket 2 issue. I don't think 2 Mr. Gad has accurately reflected what the dispute is about, 3 but this call is not to decide anything except that.we 4 should have our chance to make that argument next Tuesday 5 and that we would like to make it then. 6 MR. GAD: Mr. Roisman is correct. I am not 7 addressing any Docket 2 issues, your Honor. This is the 8 only one I am addressing. 9 JUDGE BLOCH: Thank you, Mr. Gad. 10 Mrs. Ellis. 11 MRS. ELLIS: Yes, I would like to point out that 12 there are other matters which are raised in the agenda items 13, themselves. I have completed the Attachment 3, but there 14 are issues there which I think are probably properly 1 15 included in the prehear ing conference. But there, in 16 addition, other items wh).ch are listed on pages 12 and 13 of 17 our October 26th response. 18 JUDGE BLOCH: Do they have to do with discovery 19 questions? 20 MRS. ELLIS: Yes, they include such things as 21 applicants' August 12th, '85 and other informal responses -- 20 oh, I am sorry, you did say you were going to answer the MAC 23 report. 24 Let me skip to the next.one. The August 7th 25 letter and an August 7th request for supplementation of ACE. FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coverage 80 M W l646
0540 03 10 24124 1 OMTbur 1 applicants' answers to previous Case's discovery requests. 2 I have received some information from 3 Mr. Wooldridge informally regarding that, which I frankly 4 have not had the opportunity to really review and analyze. 5 But there are, as I understand it from a brief reading of 6 that, certain items which the applicants are objecting to 7 supplementing. ~ 8 Is that correct, Mr. Wooldridge? 9 MR. WOOLDRIDGE: Yes, that is correct. 10 MRS. ELLIS: This is one -- 11 MR. WOOLDRIDGE: Your Honor -- 12 JUDGE BLOCH: Was that objection made before or 13 after our last ruling? 1 14 l MR. WOOLDRIDGE: Well, the problem, your Honor, 15 is that what we have here is a lot of Case's expressions of i 16 concern, and we really don't know what the position is on 17 those from the standpoint of Case. 18 We think, rather than to express a general 19 concern about the extent of our response, whether it be 20 formal or informal and whether it be by some motion to , 21 compel, some appropriate fashion, we need a specific issue 22 raised and an opportunity to address the specific issue 23 rather than to discuss in a global form some kind of a 24 concern that is raised. I 25 We really do not know what Case's position is on i ACE FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coversee M 3364M6
0540 03 11 24125 1 OMTbur 1 a number of these issues. 2 MRS. ELLIS: I would like to state that I have 3 offered to meet with the applicants on Monday before the 4 .prehearing conference to see if we can alleviate some of 5 these things. 6. JUDGE BLOCH: If we were to go ahead, have the l 7 applicants accepted that? f 8 MR. WOOLDRIDGE: No, but I would have no problem 9 with doing so. j 10 JUDGE BLOCH: It could shorten things up. 1 j 11 Mrs. Ellis, let me ask you before you complete. 12 To what extent would the conference be shortened and its 13 productivity harmed if we were to agree with Mr. Wooldridge 14 that items related to a misrepresentation order.should not l 15 be taken up at this time? 16 MRS..ELLIS: 1[ think that clearly our due process '17 rights would be damaged. We have tried for -- you know, for l 18 months -- we have filed these interrogatoriea months ago. 19 They should have been answered already, and certainly there J' 20 are issues such as cable-tray supports, for instance, which a I 21 the applicants say are not ripe, that they don't it is going 22 to survive als an issue about the particular~ things we have 1 23 asked. ) 24 JUDGE BLOCH: Okay, if you thought that you had 25 valid rights to answers regardless of the misrepresentation l l ACE FEDERAL REPORTERS, INC. 202 347 3700 . Natioewide Coverser 800 336 4646 4
0540 03 12 24126 1 'OMTbur 1 order, are there a substantial number of those that you 2 think you have the right to answers to regardless of the 3 misrepresentation order? 4 MRS. ELLIS: Yes, I think there are many of them, 5 especially in our fourth set and probably our fifth set, 6 also. 7 MR. WOOLDRIDGE: Your Honor, we don't know what 8 those are, and we don't know the basis for her position on 9 them. That is our point. 10 MRS. ELLIS: I think that the Board -- 11 MR. ROISMAN: Mr. Chairman, this is Mr. Roisman. 12 JUDGE BLOCH: Yes. 13 MR. ROISMAN: Although Mr. Wooldridge is talking 14 primarily about Docket 1 -- 15 MR. WOOLDRIDGE: Yes, I am. 16 MR. ROISMAN: -- the principle that he is talking 17 about is equally applicable in Docket 2. 18 The principle-is that Mr. Wooldridge has known 19 since the day that the party filed their statements 20 indicating that there should be a prehearing conference 21 exactly what we thought should be,in the prehearing 22 conference because we filed it. 23 Mr. Wooldridge has made no effort except in the 24 last couple of days when the deadline was claarly upon him, 25 nor han any other of the applicants' multiple counsel, to ACE FEDERAL REPORTERS INC. 202-M7 3700 Nationwide Coverage 800 3m
0540 03 13 24127 1 OMTbur 1 get any further clarification, to get pinned down in any 2 further way. 3 Certainly in our docket th.y have not, and this 4 . effort now at the eleventh hour, without having filed 5 anything with the Board to essentially reconsider the motion 6 for a prehearing conferonce, after they lost on their 7 original position that there shouldn't be one, should be 8 rejected out of hand. We shouldn't have to spend this much 9 time on the telephone call to deal with a groundless 10 motion. 11 MR. WOOLDRIDGE: Your Honor -- 12 MR. ROISMAN: Mr. Wooldridge sat on his rights, 13 and now he is crying about it. Let him come to the hearing 14 on Tuesday. 15 MR. WOOLDRIDGE: Your Honor -- 16 MR. ROISMAN: We have offered to talk to them 17 whenover they wanted. We have indicated to them that if 18 they want to give us an offer, put it in writing, and we 19 will consider it. 20 And we stand by that. 21 JUDGE BLOCH: Mr. Roism,an,-I think you rested 22 before. 23 So, Mr. Wooldridgw, if you would briefly have a 24 time for rebuttal to that. 25 MR. CHANDLER: Mr. Chairman, would you like to ACE FEDERAL REPORTERS, INC. ,202 347 3700 '4ationwide Coverage 800 334 Me6 L -_ _ -
0540 03 14 24128 1 OMTbur 1 hear from the staff before Mr. Wooldridge replies, or -- 2 JUDGE BLOCH: No, I am going to hear from the 3 staff last, but I just think we need a special remedy 4 .because of Mr. Roisman's repeated argument. 5 MR. CHANDLER: All right. 6 MR. WOOLDRIDGE: Your Honor, we not only do not 7 know exactly what was in this prehearing conference when the 8 order was issued, I don't know exactly what is in this 9 prehearing conference even as we speak right now. 10 We have had a number of things filed and a number 11 of requests by Mrs. Ellis for matters to be taken up in that 12 prehearing conference, on which there has been no motion 13 filed and on which we do not know what the issue is or what 14 the position is on that issue and have not had an 15 opportunity to address it or to respond to it. 16 That is the short of it. 17 JUDGE BLOCH: And if we should go ahead with this 18 hearing, Mr. Wooldridge, you of course will have the 19 opportunity to note for the record ways in which you feel 20 prejudiced by having been informed for the first time at the 21 hearing, and we certainly will pay due consideration to 22 those requests. 23 MR. WOOLDRIDGE: Well, I just want to clarify our 24 position in light of Mr. Roisman's comments. 25 JUDGE BLOCH: Yes. ACE. FEDERAL REPORTERS, INC. 202 347 3700 Naionwide Coversee 800 3 4 % 46 L
i 0540 03 15 24129 1 OMTbur 1 MR. DIGNAN: Your Honor? 2 JUDGE BLOCH: Who-is that? 3 MR. DIGNAN: This is Tom Dignan, up in Boston. 4 JUDGE BLOCH: Yes, sir. 5 MR.,DIGNAN: May I be indulged? I realize you 6 have allowed Mr. Woodridge a rebuttal, but then again Case 7 has had a couple of shots. 8 And I would like to put before you the gentle 9 case of those who are going to fly the furthest to Dallas. 10 When the bottom line is all done here, if I heard 11 everyone correctly, what really is on the agenda for Dallas, 12 assuming this prehearing conference goes forward, is a bunch 13 of issues over discovery to be allowed or not to be 14 allowed. 15 MRS. ELLIS: Excuse me just one moment. 16 Could we take a break for just a moment? 17 MR. DIGNAN: Excuse me. May I finish, your 18 Honor? 19 MRS. ELLIS: I need to change my tape on my 20 recorder. I only had an hour tape, and I didn't think it 21 would go this long. 22 JUDGE BLOCH: Okay, let's have 15 seconds for 23 that, Mrs. Ellis. I am sorry, and I will allow that. 24 MRS. ELLIS: All right, I will be right back. 25 MR. DIGNAN: I hope Mrs. Ellis has a beeper on ACE FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coversee 800 3 4 6646
I l 0540 03 lo 24130 1 OMTbur 1 that. 2 (Laughter.) 3 MR. ROISHAN: You don't need it in Texas. 4 JUDGE BLOCH: And you don't need it for -- I 5 don't know if you need it or not. 6 (Laughter.) 7 MR. DIGNAN: You need it as a matter of federal 8
- law, so...
9 (Pause.) 10 JUDGE BLOCH: Okay, Mrs. Ellis? 11 M RS. ELLIS: All right, I am sorry. 12 MR. DIGNAN: Okay. Now, your Honor, as I 13 indicated, the bottom line is we are going to have a lot of 14 discovery disputes. 15 Now, I fully understood the order -- and I meant 16 no disrespect by making sure this is of record. I had i 17 forgotten we were on the record here, and I apologize. 18 But the point is I would like you to reconsider 19 that order. But even if it is your view that you do not 20 wish to reconsider it; that is, that you will not require 21 the formal filing of a motion to compel, the fact of the 22 matter is that, wholly apart from NRC practice or anything 23 else, if it is one thing I have learned in practicing this 24 game for maybe 20 years of law, the most unrewarding day in 25 a courtroom is an oral argument on discovery matters. ACE-FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coverage 8%)3m
0540 03 17 24131 1 OMTbur 1 Now, I understand there are disputes that have 2 arisen in this case prior to the time I had ever got there 3 as to whether people do or do not obey orders of the Board, 4 .but I can assure you of one thing. My habit in life is to 5 obey board orders. I may appeal them, but I obey them. 6 Now, it does seem to me that we are in a posture 7 here where, right, wrong, or indifferent, this side of the 8 table is in a considerable amount of doubt in precisely what 9 some, at least parts, of the other side of the table really 10 are looking for. 11 We may be stupid, we may not understand anything, 12 but it would help a great deal if we went back to the 13 procedure where a motion to compel was filed, a written 14 response was given, and then, frankly, the Board rules 15 rather than flying everybody down to Texas to hear further 16 argument. 17 It is a lot easier for a judge to rule on 18 discovery when he or she does it with a piece of paper in 19 front of him or her to decide what the problems are and how 20 they should be ruled or.. 21 22 23 24 25 ACE. FEDERAL REPORTERS, INC. 202 347 3700 Naionwule Coverese 800136 4M6
N 0540 04 01 24132 1 OMT/bc 1 MR. DIGNAN: Discovery rulings, we all know -2 basically, are a discretionary matter on which there is no 3 appeal anyway. And so it really seems to me that before we 4 . pack everybody up on this long weekend and fly down to 5 Dallas, much as I love Dallas, we ought to consider the idea 6 of getting these things in writing, letting the Board rule 7 and the applicants will obey the orders; because, right now, 8 all I see is a long discussion that is going to be' unfocused 9 at the start for lack of a precise motion. And we're not 10 under any time pressure in this case at this point. 11 JUDGE BLOCH: Mr. Dignan, thank you. That was a 12 repeat of a written argument that I've. heard already, and 13 why don't we bypass the rest of the argument by 14 Mr. Wooldridge and let Mrs. Ellis finish. 15 MS. ELLIS: All right. Regarding the CPRT 16 interrogatories, as they're referred to, in the applicant's I 17 October 22nd responses to our August 27th interrogatories, .18 as I mentioned, Case has sent by. Overnight ' Delivery tx) the 19 applicant a specific listing similar to what we did with our Atta'chment*2 to our original pleadings, a specific listing 20 21 of the problem areas that we see that need to - be resolved. 22 There are listings by. category of applicant's 23 objections.. Many of them, they state, are not. relevant to 24 contingent 5. Another is that there is no pending 25 litigation regarding the adequacy of the CPRT program plan ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800 336 4646
l 0540 04 02 24133 2 OMT/bc 1 before the Board. And that CPRT ef forts and personnel are 2 not relevant to contingent 5. 3 Another is that the concern which has been 4 .mentined -- 5 JUDGE BLOCH: -Is that still a position of 6 applicants-in this case? 7 MR. DIGNAN: Your Honor, you have to focus on the 8 specific question there. 9 THE REPORTER: Excuse me. Who is this? 10 MR. DIGNAN: This was a call for the 11 qualifications of people, some of whom are in place, some of 12 whom are not in place, and some of whom are undoubtedly 13 going to change between now and when the results of the CPRT 14 expert testimony is put before the Board. 15 The point of that objection was that it is not 16 right until this thing is offered, it will ultimately be a 17-glump of expert testimony, it is not right to ask about the 18 qualifications of people who may or may not yet be in 19 place. 20 JUDGE BLOCH: Because you don't know whether or 21 not they'll be witnesses and you don't know what role 22 they'll play in the study? 23 MR. DIGNAN: Because the...that's exactly right. 24 The effort is in process. It hasn't been completed. It has 25 a ways to go yet. ACE-FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverase 800 3364646
t i '0540 04 03 24134 l .1 OMT/bc 1 JUDGE BLOCH:.Okay. Mrs. Ellis, please 2 continue. 3 MS. ELLIS: All right. The third item has to do .with their providing them when the files are ready for 4 5 inclusion in'the CPRT central files, which we've already 6 discussed somewhat before. There are many of those. 7 Another is...another objection is that it's 1 j 8 calling for documents not presently in existence. And I l 9 believe the Board's order has taken care of that one, has it 10 not? 11 JUDGE BLOCH: I believe it has. 12. -MS. ELLIS: All-right. ,Another is that they're 13 objecting to providing information or documents arising out 14 of the safety program. l. 15 Another is applicable to Docket 2 and whether or i i 16 not that has been resolved by the. Board's order, we think, 17 in any event, it is applicable'to Docket 1 also. t l 18 And there are several where we're not sure + 19 whether or not they're providing documents in the possession 1 20 of applicant's consultants, which we have asked for. And 21 because of the wording:of -- { '22 JUDGE BLOCH: Yes,-you mentioned that already. f' 23 MS. ELLIS:.Right, okay.. Another category.is 24 they're overly' broad, excessively burdensome, overly. vague i 25 and/or insufficiently specific. l L ACE-FEDERAL REPORTERS,'INC. i 202-347-3100 Nationwide Coverase 800 33H646 (
0540 04 04 24135 2 OMT/bc 1 Another invokes the attorney-client privilege. 2 There are a couple that Case just not consider to be 3 responsive to the question. 4 Another is that we need additional information or 5 clarification. There were a couple that were answered "to 6 be supplied later", which we have not received yet. And one 7 appears to refer back to a wrong response. 8 But we have specifically for the members the 9 questions involved with each one of those for the applicant, 10 so they should have that in hand this morning. 11 MR. GADS: Your Honor? 12 JUDGE BLOCH: Who is speaking? 13 MR. GADS: This is Bob Gads. 14 JUDGE BLOCH: Yes, sir? 15 MR. GADS: On this question of whether or not 16 this list of things is ripe for efficient resolution in a 17 prehearing conference next Tuesday, I don't know whether the 18 Board has seen the piece of paper to which -- bonds, but at 19 least insofar as -- refers, I'm sorry. At least insofar as 20 the deals with the CPRT interrogatories, the 827 set, what 21 it consists of is a restatement or, paraphrase of objections 22 made, and then a list of the:interrogatorieg that made the 23 objection. 24 That really does little to advance the precision l 25 of the issue that the Board is going to have to respond to. l ACE. FEDERAL REPORTERS, INC. 202-347-3700 Nationwide Coverage 800 336 6646
0540 04 05 24136 1 OMT/bc 1 And if I may, I'd like to put forth an example. 2 JUDGE BLOCH: No, I don't think we need that, I 3 understand your position very well. Thank you. 4 Ms. Ellis, could you conclude? 5 MS. ELLIS: All right. That's one of the reasons 6 we suggest a meeting on Monday. Let's see, I think I've 7 already covered the rest of the items which we consider to 8 be on the agenda, on pages 12 and 13. Do I need to go into 9 more specifics on those? There are others. 10 JUDGE BLOCH: I don't think you do. 11 MS. ELLIS: All right. 12 JUDGE BLOCH: Can you wrap up? I 13 MS. ELLIS: Yes. One of the things that we feel, i i 14 and as Mr. Roisman I think alluded to somewhat, is that in I 15 the conference call on October 15th, the Board stated very l 1 16 specifically that everything in discovery would be taken up 17 at the prehearing conference. 18 We consider what we have found on October 26th to 19 be in effect a motion to compel, if you will. Certainly, I 20 think that the applicants have been on notice since that 21 time of our concern. 22 JUDGE BLOCH: Okay. 23 MS. ELLIS: One other thing. 24 JUDGE BLOCH: Yes. 25 MS. ELLIS: Regarding the motion to compel, I ACE FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coserase 800 3M 6646
0540 04 06 24137 1 OMT/bc 1 must point out that it is not Case that has deviated from 2 the rules of practice and procedure regarding motion to 3 compel, applicants have not had to comply with the 4 . requirements of 10 CFR in this regard for months. And I 5 think it's a little late for applicants to compel that 6 JUDGE BLOCH: What do you mean by that? 7 MS. ELLIS: -- that we go back to that. 8 JUDGE BLOCH: What do you mean by that? 9 MS. ELLIS: Well, they have not had to respond 10 within the timeframe, for instance, set down in the -- you 11 know, they have had plenty of time to respond to these 12 specific interrogatories, what the issues are. They have 13 not been required to follow the timeframe within which 14 normally you would have -- what is it? -- 14 days to answer 15 interrogatories and 30 days to -- 16 JUDGE BLOCH: Well, isn't that because of the 17 stay that the Board issued? 18 MS. ELLIS: Beg your pardon? 19 JUDGE BLOCH: Isn't that because of the stay that 20 the Board issued _with respect to the credibility 21 interrogatories? 22 MS. ELLIS: And I'm not being critical of the 23 Board's order, I'm just pointing out that I don't think it's 24 really fair on the part of applicants to, after they have 25 had all this time, to now suddenly come in and start saying ACE. FEDERAL REPORTERS, INC. 202 347-3700 Nationwide Coverase 800 336 6646 ]
l 0540 04 07 24138 1 OMT/bc 1 let's go back to the rules of practice and procedure, let's 2-have a motion to compel in writing, especially with order 3 during the prehearing conference on October 15th. 4 JUDGE BLOCH: Thank you. Mr. Chandler? 5 MR. CHANDLER: Thank you, Mr. Chairman. 6 Mr. Chairman, I think, to start off with our 7 bottom line, we certainly have no objection to a reasonably 8 short postponement of the prehearing conference scheduled 9 now for Tuesday. I think, in light of what the Board has 10 said with respect to the third item originally proposed for 11 its agenda, the questions on the sampling, we think that's i 12 an appropriate way of disposing of the issue, quite 13 frankly. We consider it to be more appropriately a matter I 1 14 of evidence, something we would, in the ordinary course of i 15 the proceeding, have dealt with in that fashion. 16 But if the Board wishes and sets it forth in a 17 memorandum in order to the parties, explaining its concerns, 18 we will respond. 19 The first of the other items, the discovery in 20 Docket 1, we've previously indicated that that's largely a dispute between the applicants in, Case over discovery, and 21 22 we do not intend to inject ourselves into that particular 23 dispute. 24 I point out that just given the nature and length 25 and confusion evidenced by the discussion we've been going ACE FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coverage 800-336 6646
0540 04 08 24139 1 OMT/bc 1 on, there seems to be an ample menu-for the Board and 2 parties to consume, at least in a one day prehearing 3 conference. 4 But, at the same time, the number of loose ends 5 also indicates that it seems there are few items that ought 6 to be clarified in each of the party's respective minds 7 before going to a prehearing conference. 8 Perhaps Mrs. Ellis' latest submittal might assist 9 in doing that. We haven't seen it yet. We'd look forward 10 to seeing it before going into a prehearing conference. 11 On the other hand, we'd have no objection if the 12 discovery dispute between the applicants and Case are 13 resolved in writing either. 14 The second discovery matter, that related to 15 Docket 2, I think presents a somewhat different situation t 16 for the staff. Although it's generally a discovery 17 question, I think it does bear, as we understand the 18 questions, it does bear on the relevance and, as a result, 19 perhaps on the scope and issues in Docket 2, in spite of the 20 Board's most recent orders on that, the October 31 order, in 21 particular. 22 But it is a matter which the' staff will likely 23 have something to say something about. So we think a 24 prehearing on that issue certainly would be worthwhile. 25 Another item which was not alluded to by the ACE-FEDERAL REPORTERS, INC. 202.M7 3700 Nationwide Coverage 800 336 4 646
0540 04 09 24140 1 OMT/bc 1 Board in its agenda, which was passed on to the parties the 2 other day, which I think we feel strongly ought to be 3 entertained at a prehearing conference, and it's more 4 .important in light of what Mr. Dignan said a moment ago, is 5 really what the schedule in this proceeding ought to be, at 6 least as we understand it at this point in time. 7 The applicant has an ongoing program. I think it 8 would be very useful to the Board and certainly to all the 9 parties to have some understanding of how that effort is 10 proceeding so we can judge what kind of time constraints 1 i 11 ought to be reasonably imposed on the parties in the conduct 12 of discovery and would be appropriately entertained by the 13 Board in considering future hearings -- at least the 14 schedule as it's known and projected at this point in time. 15 Those, at least those two matters, we think can 16 be productively entertained at a prehearing conference. 17 But, at the same time, given the state of affairs on 18 discovery and we think it would be not unreasonable to delay 19 that prehearing conference, but certainly not more than a 20 couple of weeks. 21 JUDGE BLOCH: Thank you,, Mr. Chandler. 22 The Board is prepared to rule. Mr. McCollum 23 hasn't had a chance to consult with the chairman as yet. 24 So if he has comments to add, or wishes to ask the chairman 25 to reconsider, he's invited to do so at the end of the ACE. FEDERAL REPORTERS, INC. 202 347 3700 Nationwide Coverage 80 N 3 H 646
0540 04 10 24141 1 OMT/bc 1 order. 2 MR. CHANDLER: Mr. Chairman? 3 JUDGE BLOCH: Yes. 4 MR. CHANDLER: Before the Board rules -- this is 5 Mr. Chandler again -- I would point out that the staff has 6 tentatively scheduled to have another public meeting in 7 Texas. I believe it's on December 2nd and 3rd. Excuse 8 me... December 2nd and 3rd. And with that in mind, we would 9 propose that if the Board accedes to the request for a 10 postponement, that they might consider doing it to follow 11 those public meetings. 12 I'd advise the Board explicitly of those dates, 13 but I believe they're the 2nd and 3rd now. 14 JUDGE BLOCH: Thank you, Mr. Chandler. 15 The Board has considered the motion to postpone 16 and it has decided to proceed with the scheduled prehearing 17 conference. The reasons for doing that include our belief 18 that at least some of the applicants' answers to i 19 interrogatories show a reluctance to accommodate the current 20 discovery needs of Case. 21 We're in particular con,cerned with ways of 22 allowing Case to have information now so that long delays 23 will not be'necessary later. 24 We're also concerned about some of the specific 25 responses that we think could usefully be discussed. In ACE FEDERAL REPORTERS, INC. 202-347 3700 Nationwide Coverage 800 33 6 6646 L
. ~ - l 0540 04 11 24142 i-2- OMT/bc 1 'the course.of this motion, it's also become clear to us that ? j 2 there's another need. That relates to the difficulty the 3 applicants have in understanding the specific nature of the i-4 objections that Case has; given the fact that Case is 5 representative in Docket 1 as a lay representative, we 6 believe it will be useful to have this conference on Tuesday 7 so that there will be a reason for there to be much greater specification given to the position of Case on discovery. 8 9 It's not unusual for a Board to provide special 10 opportunity in order to accommodate the needs of a party i j 11 that is not represented by a professional advocate. l 12 For those two reasons, we will deny the motion to postpone and we'll proceed on Tuesday. If, for some reason, 13 1 14 prior to Tuesday, the parties should reach an accommodation 15 that-makes the hearing unnecessary, the chairman may be 16 reached at home. And I will give my home telephone number i ~ 17 after we conclude the record. 1 18 Dr. McCollum? l-19 MR. MCCOLLUM: I concur.- i 20 JUDGE BLOCH: Thank you. 21 The hearing is adjo'trne,d. 22 -MR. WOOLDRIDGE: May I ask a point of I - 23 clarification, your Honor? l 24 JUDGE BLOCH: All right.- Well, we're on the 25 record, sure. l ACE. FEDERAL REPORTERS,' INC. - 302 347-3700 Neuonwide Coverser 800 336 eN6
0540'04 12 24143 1 OMT/bc 1 MR. WOOLDRIDGE: Can you advise us as to whether 2 or not these recent matters should have been filed in 3 letters from Ms. Ellis, or to be addressed formally in the 4 prehearing conference? 5 JUDGE BLOCH: Which letters are we referring to? 6 MR. WOOLDRIDGE: Well, I haven't read it yet but 7 I understand there's one today. Also, I would -- 8 JUDGE BLOCH: I would say that it should be a i 9 part of it only_if it is directly relevant to what we've had 10 before and somehow it fits everybody understanding Case's 11 position. 12 No, I don't think you should have to respond to 13 new material that you're given today for the first time. 14 We'll take a pragmatic view of what'ever that letter is. 15 MS. ELLIS: If I may interject, I can clarify 16 what that letter is. 17 JUDGE BLOCH: I don't think it's necessary, i 18 Mrs. Ellis. 19 Is there some strong reason why it is necessary, 20 Mrs. Ellis? 21 MS. ELLIS: I just wanted to say, it's nothing 22 new. It's just further clarification of what we've talked 23 about. 24 JUDGE BLOCH: Okay, and we can look at it to 25 decide whether it's a surprise or whether it's just helpful ACE-FEDERAL REPORTERS, INC. 202 347 3700 NationsMe Coverage 800 3 M 6646
I 0540 04 13 24144 i 1 OMT/bc 1 in refining things. 2 The hearing is adjourned. My home telephone 3 number is 363-9133. That's in Washington, D. C. Area code 4 202. 5 Thank you. 6 (Chorus of "Thank you, Mr. Chairman.) 7 (Whereupon, at 12:05 p.m., the Teleconference was 8 concluded.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ACE-FEDERAL REPORTERS, INC. 2 O 347-3700 Nationwide Coverage 800 3 %.4646
CERTIFICATE OF OFFICIAL REPORTER This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of: NAME OF PROCEEDING: TEXAS UTILITIES GENERATING COMPANY, et al. (Comanche Peak Steam Electric Station, 3 Units 1 and 2) DOCKET NO.: 50-445-OL2; 50-446-OL2 l r PLACE: WASHINGTON, D. C. J DATE: FRIDAY, NOVEMBER 8, 1985 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission. Isigt) M .kam b (TYPED) M JOSEPH D. MAGGIO Official Reporter ACE-FEDERAL REPORTERS, INC. Reporter's Affiliation -. - OF a. .}}