ML20205J185
| ML20205J185 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 01/27/1986 |
| From: | Atomic Safety and Licensing Board Panel, NRC COMMISSION (OCM) |
| To: | |
| References | |
| CON-#186-961 OL, NUDOCS 8601300115 | |
| Download: ML20205J185 (97) | |
Text
0 OlG1AL O
UN11ED STATES NUCLEAR REGULATORY COMMISSION IN Tile M ATTER OF:
DOCKET NO: 50-456 50-457 C0!O!O!."dEALTl! EDISON COMPANY (Braidwood Station, Units 1 and 2)
O LOCATION:
DETl!ESDA, MAltYLA!1D l' AGES:
565 - 660 DATE:
t!O!; DAY, JANUARY 27, 1986
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i ACE-FEDERAL REPORTERS, INC.
Offkul Regvrtm 444 North Cottol Street Wehington, L).C. 20001 O\\)
(202)3 7 3700 NAflONWIDE COVIRACI:
CR2573920 DAV/sjg 565 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
BEFORE T!!E ATOMIC SAFETY AND LICENSING DOARD 4
- - - - - - - - - - - - - - - - - - -x S
In the Matter of:
I Docket No. 50-456 0
COMMONWEALTli EDISON COMPANY 50-457 I
7 (Draidwood Station, Unita 1 and 2) 8 l
e
- - - - - - - - - - - - - - - - - - -x i
l 9I I
Nuclear Regulatory Comminnion i
i 0 East-West Highway 10 3
Fif th Floor floaring Room i
Dothesda, Maryland 11 l l
12 4 Monday, January 27, 1986
/,,i o
's 1 The prohouring conference in the abovo-ontitled matter 93 ;
convened at 2:15 p.m.
g IS DEFORE:
l 16 l l
JUDGE IIERDERT GROSSMAN, Chairman Atomic Safoty and Liconning Doard 379l U.S. Nuclear Regulatory Comminnion l
Washington, D. C.
JUDGE RICl!ARD P. COLE, Mambor 19 Atomic Safoty and Liconning Board j
U.S. Nuclear Regulatory Commincion 20 l Washington, D. C.
21 JUDGE A. DIXON CALLIllAN, Mombor Atomic Safety and Liconning Board i
U.S. Nuclear Regulatory Comminoion 22 Washington, D. C.
23 24 w r m n.ime
..,sae, continued --
23
566 I
APPEARANCES:
O 2
On behalf of the Applicant:
3 MICHAEL I. MILLER, ESQ.
Isham, Lincoln & Beale 4
Three First National Plaza Chicago, Illinois 60602 JOSEPH GALLO, ESQ.
6
- Isham, Lincoln & Beale 1120 Connecticut Avenue, N.W.
7 Suite 840 Washington, D. C.
20036 8
On behalf of the Nuclear Regulatory Commission Staffs 9
STUART TREBY, ESQ.
10 U.
S. Nuclear Regulatory Commission 7335 Old Georgetown Road l
11 Bethesda, Maryland 20014 l
t On behalf of the Intervenors 12
()
ROBERT GUILD, ESQ.
13 Business and Professional People for the Public Interest 14 109 North Dearborn Chicago, Illinois 60602 15 16 17 Il 19 20 21 22 23 24 Aarfees,el Rose,ters, im.
25
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PROCEEDINGS 2
JUDGE GROSSMAN:
The prehearing conference will 3
come to order in the Braidwood Stations 1 and 2.
4 This prehearing conference was called at the 5
behest of counsel who wish to discuss the scheduling 6
problems that we seem to be having.
7 Would Mr. Miller care to tell us what the 8
problems are that he sees?
9 MR. MILLFR:
Yes, sir.
I'd be happy to.
10 For the record, my name is Michael I.
Miller of 11 the law firm of Isham, Lincoln & Beale, Chicago, Illinois.
12 With me is Joseph Gallo, my partner, who is in our
()
13 Washington office.
14 JUDGE GROSSMAN:
Excuse me for a second.
I might 15 as nell have the other counsel identify themselves.
l 16 Mr. Guild.
17 MR. GUILD:
Mr. Chairman, my name is Robert 18 Guild, with Business and Professional People for the Public 19 Interest, 109 N.
Dearborn,
Chicago, Illinois, Suite 1300.
20 Zip 60602.
21 I represent the Intervenor, Rorem, et al.
22 MR. TREBY:
My name is Stuart A. Treby, Assistant 23 Chief Hearing Counsel, representing the Staff.
With me is 24 Mr. Greg A. Berry, Staff Counsel, also representing the 25 Staff.
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JUDGE GROSSMAN:
Thenk you.
Mr. Miller?,
2 MR. MILLER:
Thank you, Judge Grossman.
3 What the Board has before it are essent.1311y 4
three competing proposals with respect to schedule. " Ours 5
was filed first, and proposes essentially that the parties 6
devote themselves.in the next three to four weeks to a 7
conclusion of the discovery process which has been ongoing 8
since July of 1985, proposes that, in effect, prefiled 9
direct testimony be submitted on March 18, ano that the 10 hearing commence April lst.
11 What we have from the Intervenors in response is, 12 in my judgment, quite an extended schedule which calls for 13 an April 15th date for concluding depositions and a hearing 14 start date of May 20th.
15 The Staff is somewhat in between.
They adopt 16 l most of our interim dates, call for the standard filing of I
17 '
direct testimony and suggest a hearing start date of April l
18 15th.
19 I'd like to address really what the major 20 milestones have been in prehearing preparation up to this 21 point and try to give the Board a little bit of a flavor of 22 where we've been and where we are now.
i I
23 The contention, as you know, is really quite an 24 extension one, and it does, in numerous of its subparts, l
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25 implicate three major corrective actions that have been Au:E-FEDERAL REPORTERS, INC.
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ongoing at the Braidwood site.
Certainly, over the last 2
year, in some cases before that,.these are what's called the 3
8205 retroinspections, which are the inspections of 4
safety-related mechanical equipment, the material 5
traceability issue for pipinng and for correded pipe 6
resolution, which deals with certain pipe that had been 7
chemically cleaned and the minimum wall. thickness has got to 8
be less than the material specification, as a result.
9 It has been the Applicant's burden, really, to 10 bring those issues to a point where there could be a written 11 exposition of the results of those three programs, where 12 effective discovery be undertaken with respect to those
()
13 j programs, where the Staff would have an opportunity to 14 evaluate the prog' rams and formulate its own position.
15 And in the period from November until early this 16 month, we have been working hard to complete the programs 17 and prepare documentation of their results.
18 The last program was submitted on January 13th.
19 That was the report on the 8205 retroinspection of 20 safety-related mechanical equipment.
21 The others, the corroded pipe report, was 22 submitted about that time in January.
23 JUDGE GROSSMAN:
You mean '86.
24 MR. MILLER:- I beg your pardon.
Thank you.
I'm 23 still in last year.
i l
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The MTV report ~was submitted-in November 1985.'
2 We have responded t'o extensive written interrogatories and 3
requests to produce documents, and we were served -- well, I 4
received it in this morning's mail before I came here --
5 a third set of interrogatories from the Intervenors.
6 In' addition, we have received the Intervenors' 7
response to our second set of interrogatories, and I'd like 8
to briefly discuss those two documents, because I think they 9
shed still further light on where*the burdens are in this 10 proceeding and why we believe our schedule is preferable..
11 JUDGE GROSSMAN:
Excuse for a'second.
I think 12 that everybody has filed their respective third set of
()
13 interrogatories, and that we have no further sets that are 14 contemplated.
15 '
Is that correct?
Mr. Treby?
16 MR. TREBY:
Staff.does not contemplate filing any 17 additional interrogatpries.
We did not file a third set.
18 JUDGE GROSSMAN:
Mr. Guild, that is your final
\\
19 l set of interrogatories?
There's no question about any 20 further ones?
21 MR. GUILD:
We certainly hope so, and the l
22 schedule that we suggest does not assume a third set.
I 23 sort of wait with some caution to see.how Mr. Miller will 24 characterize my third set, and I leave it to the Board 25 whether or not it will be _ responsive.
The answer will give t
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the information I believe I need, but I think you're 2
. correct, Judge.
We assume our schedule includes that third 3
set.
And what comes later by way of discovery is document 4
review and production and some depositions.
5 MR. MILLER:
To respond fully to your question, 6
Judge Grossman, we filed what' I believe was our second set 7
early this month.
Mr. Guild responded.
We do not 8
contemplate any further interrogatories.tx) the Intervenors 9
nor to the NRC Staff.
10 JUDGE GROSSMAN:
Thank you.
11 MR. MILLER:
Let me address the Answers to 12 Interrogatories first, because cne of the questions that we
()
13 asked was, please identify all-witnesses.
I 14 Well, once again, as we did in August,-when he 15 answered the first set, Mr. Guild, on behalf of his client, 16 has stated that there are no present intentions on the part 17 of the Intervenors to call any of the individuals or any 18 individual as part of its direct-case.
19 In response to the first set, they identified 20 members of Commonwealth Edison and Staff personnel, whom 21 they said they might call as essentially adverse witnesses 22 and proceed as if by way of cross-examination.
23 So the Intervenors do not presently contemplate 24 that their hearing preparation is necesssarily going to 25 include the submission of any prefiled direct testimony.
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The third set of Interrogatories.that-we've 2
received today, on very quick reading, once again. deals with 3
extremely broad concepts that apparently have been known to 4
the Intervenors for sometime.
That is, we are still getting 5
questions in written form which ask about our responses to 6
the 8205 inspection report, the 8309 inspection report.
7 There is a further question that asks us to 8
describe every oral communication that any of Commonwealth 9
Edison's employees or agents has had about any aspect of the 10 contention.
What we were promised from Mr. Guild was a 11' focused set of third' Interrogatories.
What we have is, in 12 my judgment, an extremely broad and not very well-focused
)
13 I set of Interrogatories at all.
14 l So I will say that he has no had two sets of l
15 Interrogatories, which essentially covered the same ground.
16 I believe we can respond to this third set largely by 17 incorporating our answers and our document production to 18 earlier sets in response to those Interrogatories.
Most 19
' telling, however, is that with the exception of the 8205 20 inspection report and the 8308 inspection report, which 21 account for~perhaps one-third to two-fifths of the 22 sub-contention items,'there has been virtually no discovery
)
23 with respect to the remaining contention items, including i
24 the contention items as to which we moved for summary 25 disposition.
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In my judgment, your Honor, this simply confirms 2
the fact that it is the Applicant that is going to have to 3
undertake the major preparatory work, along with the Staff, 4
in getting ready for these hearings, and that it is simply 5
unrealistic to believe that the additional time that
.6 Mr. Guild suggests is going to be productive of anything.
7 We are essentially going to have a hearing in 8
which the Intervenors are going to be cross-examining Staff 9
and Applicant witnesses.
10 JUDGE GROSSMAN:
Mr. Miller, do you understand 11 that you're in a somewhat different position than the 12 Intervenors and so is the Staff, with regard to your own 13 staf5ing.
Your client already has a staf f of experts and so 14 does the Staff, and of course, the Intervenor has to go out 15 and look for experts.
And I'm sure you're aware of that.
16 So that~to indicate that you have all that preparation 17 really doesn't say that much, because that's the nature of 18 your client, that you would have the information available 19 to you, and you would have the staff of experts, though, of 20 course, you may wish to seek.some additional ones.
i 21 But you're not starting out from scratch, and 22 that's something we're aware of too.
23 MR. MILLER:
Yes, sir.
I agree with you.
24 I'd just like to observe that one of the bases on O
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quality assurance was the expectation that the Intervenors 2
would retain witnesses and would provide some expert 3
assistance to the Board in the resolution of the quality 4-assurance issue.
5 We are now approximately eight or nine months 6
from when the Board voiced those expectations in its 7
prehearing conference order, and we still have a position by-8 the Intervenors that the only experts that they have 9
. consulted are not those that they expect to call at trial.
10 Therefore, then declined to identify them in 11 response to our Interrogatories.
12 I would also like to observe, Judge Grossman,
)
13 j that while.there is perhaps some disparity in the resources l
14 that are available to the Intervenors and the Applicant, 15 that's a fact of life.
It is nonetheless our burden, which 16 we must bear here, it is certainly perfectly proper under 17 '
NRC practice, indeed, I think we've all participated in 18 l hearings in which the Intervenors never call a witness and 19 simply proceed by way of cross-examination.
20 That may very well be how Mr. Guild wished to 21 proceed on behalf of his client in this proceeding as well.
22 He's entitled to do that, obviously.
My point is simply 23 that additional time is not going to be productive of 24 anything other than delay, unnecessary delay, in my 25 judgment.
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We can proceed with these hearings, have the key 2
depositions that are needed to prepare all parties to 3
conduct an effective cross-examination, and then we ought to 4
let the hearings-begin, because what's not begun can't be 5
concluded in any reasonable time.
6 In our. initial motion and in our response to 7
Mr. Guild's motion, we referred to Commonwealth Edison's 8
currently estimated date for loading fuel.
I bring that 9
subject up with some diffidence.
I note fuel load dates are 10 not a matter that necessarily concerns the Board, except 11 insofar as they may be an aid'to scheduling the hearings.
~
12 I'd like to state for the record, however, that 13 l Commonwealth Edison Company is dead serious about this fuel 14 I load date.
15 We refer in our response to the Intervenor's 16 suggestions to the proposal that we made to our local state 17 regulatory commission, the Illinois Commerce Commission, 18 regarding the voluntary cap on expenditures that the company -
19 can recover through its ratemaking process.
In my I
20 l experience, it is counterproductive for the hearing process 1
21 to proceed with the pressure -- I guess that's the only way 22 I can phrase it or characterize -- of a fuel 1oad date.
I 23 I know'that tit's pressure on the applicant, certainly.
We e
f 24 want the Board to take whatever time it requires to have the O
25 hearings, to hear the evidence, to receive the proposed l
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findings and decide the case on the basis of the evidence
-2 before it.
That will occur, obviously, regardless of which 3
schedu'le is adopted.
But it seems to be consistent with 4
what I understand NRC policy to be, to have these 5
proceedings go forward, not on what's referred to as an 6
impacted basis, but on one in which there is ample time to 7
hearing and decide the matter.
8 I bel-leve that our schedule, the schedule we have 9
proposed, will accomplish that.
And the one that the 10 Intervenor proposes is simply-going to, in my judgment, kill 11 a lot of time in the months of March and April and try and 12 compress everything at the back end.
p
~
Mr. Miller, can *you tell me now 13 JUDGE GROSSMAN:
14 why you new schedule now departs so radically from the one 15 you had suggested as part of your discussions with opposing 16 counsel?
17 MR. MILLER:
Yes, sir.
There are two reasons.
18 There were two milestones in the schedule that 19 was discussed in December that drovc all the substantive 20 l dates.
The first was the issuance of the 8205 report.
The 1
21 December schedule that was discussed by the parties had a 22 date of January 22nd as the target for the issuance of a 23 report by Commonwealth Edison Company.
We' improved on that 24 by nine days.
We really exerted ourselves over the holiday O
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anticipated.
2 The second pacing item were the motions for
.3 summary disposition.
There had been the -- the December 4
discussions had suggested January -- well, there was a 5
disputo as to what date in January would be the last day on 6
which those motions could be filed.
Again we exerted 7'
ourselves and filed them approximately 28 days earlier than 8
we had suggested as a deadline.
9 Now we were mindful of the fact that this did 10 occur over the Christmas holidays.
We received requests 11 from both the Staff and the Intervenors for an extension of 12 time to respond, and we've accommodated them.
The motions 13 were voluminous.
I think they ara a preview of the kind of 14
. detailed treatment that at least the Applicant believes is 15 going to be necess'ary, in order to bear a burden of proof on 16 these many issues that we have to deal with.
17,
So the amount of titte necessary to respond to 18 them had to be extented, and vc did so.
But it is those two 19 scheduling milestones which we believe we've improved upon, 20 that now allow us to suggest a series of dates that are 21 significantly advanced over what we've been discussing in 22 December of 1985.
23 I shculd point' out that' our original proposal in 24 December contemplated a-hearing start date of April-15th.
25 We basically suggested improving on that by approximately 26 two weeks.
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JUDGE GROSSMAN:
I believe that date should be 2
April 22nd.
3 MR. MILLER:
There were discussions.
If you look 4
at Attachment B, to the Intervenors' motion to revise the 5
hearing schedtite, you will see the typed date.
The first 4
-6 typed date is April 15th.
That was our original proposal 7
for the start of the hearings.
8 In discussions we did talk about a hearing start 9
date of April 22nd to accommodate the other parties.
None-10 of those eventuated in any agreement.
11 JUDGE GROSSMAN:
Does that conclude your 12 comments?
13 hR. MILLER:
Yes, sir, it does.
14 1 JUDGE GROSSMAN:
Mr. Guild.
15 MR. GUILD:
We woul'd like to be heard this 16 afternoon on two basis issues.
l 17 We would ask the Board to consider' carefully and l
18 seriously our motion for sanctions.
We can take it up at 19 this point or later.
20 But our view is that the conduct of counsel for 21 Applicant has been in derogation of his commitments to this 22 Board and its commitments of just reasonable conduct towards 23 an adversary, particularly in light of the prior commitments 24 to reach an agreement among the parties on events leading to O
25 the hearing schedule.
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We are prepared to engage in aggressive and sharp 2
litigation if necessary, Judge.
3 The problem here is that we were, in our 4
judgment, unfairly lulled into the belief that matters of
'5 great importance to all parties would be established on the 6
basis of agreement or, at the very least, where. agreement 7
was not available, that there would be a clear statement to 8
opposing counsel that agreement would not be honored and j
9 that parties should guard themselves at their. peril for the j
10 eventuation of-the aggressive litigation tactics that we 11 then found.
12 That is one point.
I would like to address that
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13 in some detail.
14 The second point is I hope that we can come out 15 this afternoon with a meeting of the minds of all the 16 parties in an effort to resolve the apparent differences and 17 a firm schedule, and I hope that that can be done with a 18 minimum of adversity among the parties becauce I think --
19 hopefully, the outcome of our sanctions requested, Judge, 20 will be getting us back on the track we were on in early 21 December.
22 That, I think, is the track we must be on in 23 order to be able to shoulder what is going to be very 24 difficult burdens for all counsel, all parties, and for this 25 Board.
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I hope we can approach those amicably in future, 2
and I am prepared to do so.
3 In essence, Judge, we think that what we have 4
proposed by way of a schedule is the schedule that came out 5
of the agreement of the parties, with the only adjustment
'6 reflecting intervening events.
We think that even 7
Applicant's time saving, which I have heard of now for the
-8 first time, as the basis for their revised schedule from 9
Mr. Miller are illusory or at other parties' expense.
~
10 I would note that the Company says, well, we got 11 our 8205 report out nine days early.
The prior schedule 12 agreements had always committed to a final report on the 13 f 8205 issue as the milestone.
14 I would note'even the Staff's characterization of 15 !
the report that came out the 13th of January is "a written 16 progrom description and partial results."
17 <
That is not the basis for triggering the 18 opportunity that Intervenors'must have in having a fair 19 opportunity of discovery of the most critical corrective 20 action program in this case.
21 The second time savings that I hear Mr. Miller 22 speak of is the time that Edison has saved by filing out of 23 turn these voluminous summary disposition motions a month in 24 advance and putting us and the Staff to the burden of O
25 diverting our hearing preparation plans and efforts into ACE-FEDERAL REPORTERS, INC.
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1 what counsel for Staff I think rightly characterizes as 2
largely a wasteful and unproductive paper shuffling 3
exercise, of generating stacks of responsive pleadings to 4
the motions for summary disposition that are premature and 5
not the efficient way of narrowing the issues and providing 6
for an efficient. hearing.
7 We believe that the minimum fair date -- and we 8
made concessions in the discussions leading to what we 9
believe was a firm agreement in December -- the minimum date 10 that Intervenors require in order to shoulder our 11 responsibility, if not burden in a technical sense, is the 12 20th of May.
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13 As recently as last week, counsel for the NRC 14 Staff assured me that the Staff would maintain their 15 commitment, as proposed earlier, to a May 7th start date for 16 hearing, at least in some recognition that you can't shave 17 time from what was agreed tc before December, given
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18 '
intervening events.
19 I am very troubled --~and communicated this to 20 Staff counsel -- with their receding further from what I 21 viewed as a commitment in their most recent filing, where 22 they show an April 15 date.
23 But even that, Mr. Chairman and members of the 24 Board, is hardly much of a promise, given the fact that the 25 Staff only tells us that they may be ready for hearing then ACE-FEDERAL REPORTERS, INC.
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adjourned further hearings.
3 Well, what is the exercise about then if al1~this 4
leads to simply an artificial hearing start date to satisfy 5
Commonwealth Edison's' planners?
6 The schedule proposals, Judge, that we entered 7
into in. good faith and that were adopted by this Board --
8 and I direct your attention specifically to the joint motion 9
of the 18th of October -- the outstanding official schedule 10 i in this case shortly thereafter adopted by the Board called 11 for the following milestones on discovery on the corrective 12,
action program which Edison claims drives'their schedule.
1
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13 That is the 8205 safety-related equipment.
14 They will say they will have a report out the 15 15th of November.
They will say there will be a Staff i
16 '
position a month later and that we would have an additional 17 week to complete discovery on that issue.
18 j All told, the period of. time under the schedule l
19 l that now is outstanding in this case from issuance of the 20 Applicant's final report on that corrective action program 21 is a period of 66 days until discovery ends on that 22 corrective action program plus an additional 21 days to 23 depose witnesses who have been subsequently identified by 24 the Staff and Applicant on that corrective action program.
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approved by the Board, therefore, there is a period of more 2
than 60 days for formal written discovery on safety-related 3
equipment and 20 more days for witness depositions.
4 We simply cannot shoehorn that acknowledged fair 5
opportunity for discovery on the most important corrective 6
action program into either Applicant or the Staff's more 7
recent revised schedule.
It can't be done.
8 The only way the Staff saves time on their 9
schedule is they recede from the earlier commitment approved 10 by this Board in November' again -- I am sorry -- in 11 October.
The reasonable opportunity for discovery for 12 Intervenors would consist of an opportunity to have
()
13 d.iscovery of not only Applicant's final report on corrective 14 action programs but a final written Staff position.
15 So the milestones I referred to you earlier that 16 reduced 87 days of discovery on safety-related equipment 17 were milestones from, first, a final report by Applicant 18 and, secondly, a written position by the Staff.
19 That written position, Judge, was going to be in 20 one of two forms as we understood it.
It would either be in 21 an inspection report which formally closed out the item, and 22 that has been the Staff's practice in this case, is to take 23 an item of noncompliance or open or unresolved iten point by 24 point, review it, and issue a formal published inspection 25 report.
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conduct discovery on, and that has been the practice 2
heretofore.
3 The report comes out on a matter in controversy.
4 Either Applicant or Intervenor notices depositions, and we 5
examine the inspectors to inquire about the basis for their
~
6 conclusions.
7 Either a report then, or prefiled written 8
testimony in the event the Staff was willing to forego a 9,
report *and would say we will stand behind testimony as our 10 final written position on this issue, then that will be what 11 your target is for discovery.
12 But we are given neither of those as the basis
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13 for discovery in either the Applicant or the, Staff's current 14 scheduling proposals.
15 We think, Judge, that the short and long of it is 16' that what has happened in this case so far is that the 17 licensee has sought and been given without any dispute six 18 months of delay in order for it to do what it said it had to 19 do to this licensing board back before the contention was 20 admitted.
That was get a final corrective action program 21 in, have it open for Staf f review, and have a final Staff 22 position on it.
23 They have got six more months built in now to 24 have dono that, and presumably they are in a position where 25 they are ready to defend the safety of the facility.
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Now, largely the ball is in Intervenors' court to 2
have a fair opportunity -- as committed to by other parties, 3
to have a fair discovery on these corrective action 4
programs, and suddenly we see the licensee receding from 5
their schedule commitments and Staff at least acquiescing in 6
that position.
7 We have heard now for the first time Applicant's 8
position that what it really boils down to is BPI is just l
9 wasting time and that this Board should find as a eatter.of 10 law that we don't need an opportunity for discovery.
In 11 essence, we only get what we have got so far.
The rest is 12 simply wasted motion is the way I understood it to be
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13 characterized.
j 14 It may well be that because of some of the 2
15 factors that were discussed between counsel and the Chair 16 our case will substantially will come out of the mouths of a
17 witnesses who are employed by the licensee.
It may well be 4
18 that a substantial part of our case will come out of the
{
19 30,000 pieces of paper that we have been shuf fling, that are l
20 the record of quality assurance at Braidwood.
21 I would say that we have not waived our rights to 22 put up an affirmative case.
23 Mr. Miller may have -forgotten that we have 24 committed already to offering as witnesses in this 25 proceeding quality control inspectors on the harassment ACE FEDERAL REPORTERS, INC.
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issue, a former quality control engineer who is a former 2
inspector for the Comstock Company as part of the Comstock 3
case, as well as, he points out, a number of Edison 4
employees who presumably are adverse witnesses.
5 But whether we present a witness that we go out 6
and retain or whether we put up our case through the mouths 7
of their employees and through their written record, it 8
seems to me that this Board should shy from finding that 9
that' stands for the proposition that we should not be 10 afforded either a fair opportunity for discovery or, more 11 particul arly, the opportunity for discovery that the 12 Applicant and Staff have already told us we should have and
()
13 !
committed to.
14 JUDGE GROSSMAN:
Excuse me, Mr. Guild.
15 With regard to the motions for summary j
16 disposition that have already been filed, I take it you have 17 l concluded discovery on that, haven't you?
i 18 MR. GUILD:
No, sir, that is absolutely not i
19 correct.
20 The characterization by licensee in their filing 21 is, well, these are matters that I guess the book has been 22 closed on in one way or another.
23 One of the matters -- for example, for the first i
24 time in the pleadings attached to the motion for summary l
25 disposition, they tell us that they have just developed a ACE. FEDERAL REPORTERS, INC.
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new corrective action program that hasn' t even started', to 2
cur knowledge -- at least they haven't told us if it has.
3 This has to do with Comstock electrical reinspections -- and 4
that we should simply trust that that program will be 5
carried out the way it was described.
' ~
We hadn't even had an opportunity to know that 6
7 that program existed, let alone conduct fair discovery on 8
it.
9 The best we have gotten out of licensee so far is i
10 there is going to be some special program to address these 11 issues, but the first we heard of the program itself was in 12 their pleadings supporting summary disposition.
13 So in part, Judge, what licensee is going to see 14 in response to a ndmber of those summary disposition motions 15 is they are going to see:
16 Here are the 20 witnesses you presented testimony 1
17 for supporting your motion for summary disposition.
As to 18 I this one, this one, and this one, this is the'first we hear
~
1 j
19 '
that you are going to do this to fix this problem, and we 20 would like an opportunity to conduct a deposition of that d
21 gentleman or to have a report he alludes to or to review the i
22 documentatior,that he for the first time identified.
l l
23 JUDGE GROSSMAN:
Have you set up your discovery I
l 24 yet on the matters that were presented to you in the motions 25 for summaiy disposition?
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MR. GUILD:
No, sir.
2 Set up in the sense that we believe that our 3
existing written discovery and interrogatories, the two sets 4
that were outstanding when we got the summary disposition 5
motions, called for evidence on those issues, yes, indeed, 6
and so we have that.
7 But as to the new matter, the matter which 8
genuinely we can't take a position on as far as whether 9
there is a matter in dispute or not, we believe under the 10 rules we are entitled to say here is why we don't know and 11 can't say, Judges, and here is what we need to know in order 12 to be able to take a position.
()
13 In many instances, that is what we are going to 14 have to say because their summary disposition came, by 15 Applicant's count, a month prematurely and by our count at 16 least a month and a half prematurely.
We haven't had a 17 chance fairly to do discovery on those issues.
18 l JUDGE GROSSMAN:
Well, you have had those motions 19 for summary disposition or the motion for summary 20 disposition in 14 or so parts for over a month now.
I 21 assume you are interested in taking cepositions with regard 22 to the matters raised here.
23 Have you scheduled these depositions?
24 MR. GUILD:
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from those motions what further information is needed, 2
including what witnesses should be deposed, is one that 3
really comes at the tail-end of the process.
4 I am here today -- and I stopped working on the 5
summary disrositien to catch a plano this morning.
I 6
carried half of it with me today.
I am going to get on the 7
plane and work on it on the way back, and I am going to do 8
nothing but through the end of the week, Judge.
9 So, no, we have not formally said we are going to 10 have to take depositions on these things.
11 In whatever conversations I have had with counsel 12 for both licensee and the Staff, I have certainly 13 communica,ted the same point as a general proposition, and I 14 don't think that comes as any surprise to them.
15 j
16 17 18 l
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JUDGE GROSSMAN:
Are there any depositions 2
scheduled for the beginning of February?
3 MR. GUILD:
There are.
There.are depositions 4
sometime tomorrow, as I understand.
And there are 5
depositions beginning the middle of next week.
I think I 6
just got notices for at least two by applicant.
l 7
And, of course, we intend to resume the 8
deposition schedule that we were involved in prior to l
9 Christmas.
There are a n, umber of adjourned depositions.
i j
10 There are a number of depositions that, because of i
l 11 intervening events with agreement of counsel, we deferred, l
12 but we've given notice.of back in November.
13 i So, yes, there's some ongoing process.
An,d to 14 leave the impression that either today we've been sitting on 15 our tails idly, or that we intend to sit on our tails idly 16 hereafter is just false.
And it is a little hard to
[
17 imagine, given I think the battle scars that we all have.
18 JUDGE GROSSMAN:
Our questions aren' t directed 4
19 towards whose at fault, but towards how much time you need 20 in order to prepare.
And the question is:
21 What kind of preparation do you still need with 22 regard to your responses for motions for summary disposition 23 that you can't take within a very short time?
24 MR. GUILD:
Judge, this is an informal response.
O 25 I'm trying to do the best I can to respond.
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in preparation and to trying to take a position on 14, 15, 2
16, however you count the numbers of subparts, 20 witnesses 3
and 300 pages of testimony is a process that's going to take 4
every minute that the board is kind enough to give us in the 5
extension of time.
6 But I largely agree with what I understand the 7
staff's position to be on this and that is that summary-8 disposition, because of its timing in this case 9
particularly, but also because of its character generally, 10 is.really not going to accomplish what the rules call for it 11 to do and what I understood the licensee to say it was 12 trying to do.
And that is, eliminate issues that weren't
()
13 l genuinely in dispute.
14 Admissions sound like a much more efficient way 15 of doing that, if that's the proposal by the staf f.
But, in 16 answer to your question directly, how much more time is it 17 going to take, it's going to take a lot of time.
18 How much more work is-it going to take to be able 19 to exercise our rights under the summary disposition rule, 20 and that is joint ef fect that licensee says in not in 21 dispute is it's going to take a lot of work and a lot of 22 time.
23 There are 20 witnesses whom they've put up, many 24 of whom we haven' t deposed -- not that we've had a chance 25 to.
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testimony on that particular subpart of the contention.
2 It's a mammoth job, Judge, and there's no doubt about the 3
fact that this is a very extensive contention.
4 I don't disagree with the position that's 5j fundamentally being advocated by the licensee.
And that is, 6
many of the issues that are parts of that contention are not 7
disputed and will not be the subject of hearing.
8 But it's a far cry from that observation to say 9
that we should simply surrender on 15 subparts of the 10 contention without a fair chance of knowing whether or not 11 there's a real problem there.
12 And, Ju'dge, for example, it may be that out of 15
()
13 of the facts that licensee says are not in dispute, 14 of 14 them are either ones that we don' t have any reason to doubt 15 their word on or know affirmatively to be true, because 16 we've looked at the paperwork.
17 But the fifteenth may say:
Trust us that we did 18 a good job on our program, or will do a good job, or have 19 confidence that our review was effective and there's a 20 judgmental term that requires a lot of evidence to back it 21 up.
j 22 And as to that last fact, it may well be the only 23 legitimate position to take.
But we dispute that.
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of what they put forward.
In that case, have we saved any 2
time at all through going through the exercise that we've 3
already been shouldering, in part, during the last month.
4 We're doing an awful lot of other things in this 5
case trying to move ahead and respond to other things that 6
licensee has put before us.
7 Will it really accomplish the purpose that 8
anybody thinks should be accomplished?
Or, instead, will it 9
do what I fear is licensee's real goal in this, is to simply 10 bottle up the efforts of the intervenors from what they i
11 understood and knew was our commitment during the 12 intervening period between the.end of the first week in
()
13 December -- I'm sorry, between December 19th, when we 14 answered the Commission's questions in this proceeding, and
]
15 the second week in January.
And that was responsibly 16 digest, review and analyze the voluminous responses to the 17 second set of interrogatories.
They're still coming in, J
18 documents underlying those answers, where they refer to 19 documents that have yet to be identified in substantial 20 part.
21 I'm not faulting licensee for that but to suggest 22 that the door is closed and we're now being dilatory for not 23 moving ahead is just false.
1 24 I had a conversation with one of counsel's
()
25 associates yesterday or the day before, Friday.
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the effect:
Did I miss it?
Or did you give me the list of 2
documents that you say I should have access to, underlying 3
all your corrective programs?
Because that's the subject of 4
the second set of discovery that came in during early 5
December.
6 And I said:
Did I just miss it in the shuffle?
7 The answer was:
No, you didn' t miss it.
It 8
hasn't come yet, but it's going to come very soon.
We 9
haven't come to it.
10 Well, fine.
But that means I don't even get a l
11 chance to begin reviewing those documen'ts until I have them 12 identified.
And that identification has not yet happened.
()
13 So we're just not'.done and there's no fair reason 14 why the licensee or this board should think fairly that we 15 should be done, with a fair chance for reviewing these 16 corrective action programs.
17 For instance, when I get safety-related 18 equipment,. Judge, which came out the 13t. of December, and I 19 gave it.a read, and I gave it a read before I sent over the 20 last set of interrogatories, I sure would have liked to have 21 been able to have given it a very thorough read and then 22 spend a day or two reviewing the documents behind it, to 23 have that narrowly focused set of interrogatories that it's 24 true, I did say I wanted to submit t'o Mr. Miller.
C's/
T i
25 And it's true it's not as narrow and focused as l
j l
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it ought to be.
But it is because when I got that document 2
on the 13th of January, I was in the midst of responding to 3
300 pages of testimony on summary disposition and 4
interrogatories had been served on me two days before.
5 So, you know, it really is not being productive 6
in terms of moving this case forward to have halted 7
unilaterally the way licensee or applicant did.
It really 8
has disrupted this party to a great extent to find out just 9
what's called for in~ reviewing that safety-related equipment 10 final report.
It's a'very thin document.
I don't even know 11 whether or not the staf f is accurate in their I
12 characterization that it's program description and partial
()
13 results, or whether it's what I understand Mr. Miller to be 14 calling a final report.
15 And not knowing the answer to those questions, 16 I'm really pretty much unprepared to be able to tell you how 17 much discovery is called for in order to be able to know 18 whether that effectively' addresses the first and most 19 fundamental corrective action program in this case.
l 20 That's why my steam generator reactor heat 21 removal pumps were put-in with six foot cheater bars in this 22 case.
23 So I'm sort of digressing here, Judge, but I'm 24 sorry I can't be more responsive to the question how much 25 time, how much more is needed.
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One point I do want to emphasize again though is 2
in both the licensee's and the staff's position, I now see 3
a change that seems to suggest that no longer is the 4
intervenor entitled to a written staff position and then a 5
reasonable opportunity to discover the staff position.
6 And perhaps no longer are we entitled to a final 7
report.- Again, the last agreed upon schedule in this case 8
submitted to the board called for 28 days for the staff to
~
9 produce a written position on the 8205 issue, and then 38 10 days _for written discovery, and then another 21 days for 11 depositions.
12 That's, if not the ironclad minimum, it certainly
()
13 represents the understanding of the parties at the time 14 about what kind of time it would take to do an adequate job 15 of discovery on the most important issue in this case.
16 Its true there were other competing things going 17 on at the time, but I'm just trying to say it's just a 18 little too facile for licensee to suggest that all we have 19 to do is look at the prefiled testimony, or for the NRC to l
20 suddenly just drop out of the program the notion of-written i
21 staff positions, that we'll have a fair chance to review.
j 22 Let me just sunmarize by saying I think, without 23 touching at this point on our motion for sanctions, we i
24 believe that the schedule sequence that was ordered by-this 25 board and agreed to by the parties in October fairly sets ACE-FEDERAL REPORTERS, INC.
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forth what the sequence of events should be that will lead C/
2 to an efficient hearing.
3 That's been departed from radically, I think is 4
the correct term, in licensee's revised schedule.
And 5
somewhat less drastically, but still drasticelly, in what 6
the NRC responded by way of reply.
7 We believe it should be adherred to.
Our 8
proposal tries to adhere to it, given the agreement in early 9
December and the intervening two weeks with no credit'at all 10 for, I think, the negative effects, the loss of time that's 11 occurred because we've been diverted since then.
12 We've had to come here and have to respond to
(~)
13 summary disposition and interrogatories that are largely a i
14 waste of time.
So we would reserve an opportunity at the 15 ;
board's pleasure to speak to the sanctions of the matter, 16 but we'd like to get this schedule back on track.
And we'd 17 like to at least understand the parties and their counsel 18 will be held to what they represent among each other, and 19 that people should meet their obligations, yes, but 20 particularly their obligations to treat each other with some 21 fairness and sense of courtesy and recognition of the l
22 commitments and reliances that other parties have 'made.
23 JUDGE GROSSMAN:
Does that conclude your remarks?
24 MR. GUILD:
I does, Judge.
()
25 JUDGE GROSSMAN:
Mr. Treby.
1 l
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MR. TREBY:
Yes, Judge.Grossman.
The staff 2
believes-it's unfortunate that we all have to be here today 3
to talk about scheduling matters.
In the past, we have been 4
able to reach some sort of agreement.
5 And it is unfortunate that that is not the case 6
here.
But that, in fact, does appear to be the fact.
We 7
had a schedule that had been worked out in October.
And for 8~
various reasons, that schedule is not the final schedule.
9 And we did have some discussions at'the beginning of 10 December to see what kind of schedules the parties cou1d
~
11 work out.
c 12 During those discussions, which I think are
()
13 fairly characterized by Attachment B of the inte.rvenors' 14 filing, the parties were unable to reach agreement as to 15 schedule.
16 At that time, it was indicated that we had not 17 reached agreement.
18 JUDGE GROSSMAN:
Hadn' t you reached some 19 agreement within limits?
]
20 MR. TREBY:
That's not the case, sir.
We had l
\\
21 talked about certain dates as they are indicated on -the side l
22 there.
But those were dates that were' dependent upon final 23 agreement between the parties, and there were no partial 24 agreements.
There~was no stipulation reached that, well, we 25 can't agree on these dates but we'll agree on other dates.
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JUDGE GROSSMAN:
I know you didn't have a
.2 completed contract here.
But wasn't there some general 3
agreement as to what the differences were between the 4
parties?
5 MR. TREBY:
I believe'that's a fair statement.
~
6 There was an indication of what the differences. ware, but no 7
agreement was reached.
And I don' t think that any party -
8 could then' rely on the fact that, well, we had narrowed the 9
issues and, therefore,inaybe on some areas there was 10 agreement that there was a schedule.
11 JUDGE GROSSMAN:
Weren't the parties _ relying on 12 the fact that they had agreed within certain limits,.in view
()
13 '
of the fact that there was an outstanding Board Order that 14 said:
Other times which the parties disregarded by 15 themselves, wasn't it disregarding of those time limits 16 based on the fact that.there was some mutual agreement by 17 the parties within certain limits?
18 MR. TREBY:
Not on the part-of the staff.
I 19 can' t speak for the other parties.
But the staff did 20 mention to counse for the applicants, at least, that this 21 was a problem that we were now going beyond the dates that 22 were in the Board's Order and that we needed to take some 23 sort of action.
24 And I think we were contemplating that in 25 December.
But, aside from that, there was no agreement t
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reached 2
JUDGE GROSSMAN:
I'm not criticizing the parties 3
for not abiding by those time limits, assuming the parties 4
had some sort of tentative agreement among themselves.
5 But, in the absence of agreement, then.I think, 6
you know, it really isn't appropriate to disregard what the 4
7 Board had said.
And so I believe that there must have been 8
some assumption made by each of the parties that there was 9
some minimum agreement there, however it is characterized 10 now in the respective pleadings.
11 And I would suggest that that's the only proper 12 basis for the parties to have gone ahead and done what they 13 did in disregarding the prior Board Order.
14 But, I don' t mean to interrupt your talk, 15 Mr. Treby.
16 MR. TREBY:
Well, in any event, the parties were 17 not able to subsequently get together in December because of 18 certain intervening actions.
And you must remember that, at 19 this time, when the parties ~ were discussing the schedule, 20 '
they wdre also in the process of conducting depositions.
21 There was a full schedule of depositions 22 underway.
All parties were in Chicago, involved in those 23 depositions.
And continued to be involved in those 24 depositions until the Order of the Commission was received, O'
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certain responses from the parties.
4 2
.At that point, the deposition schedule was 3
suspended and the parties went about-their business of 4
responding to the Commission's inquiries.
There was really 5
little contact amongst all parties after that until sometime 6
late in December when the motions for summary disposition 7
had been filed and we were.then discussing a request for an 8
extension of time to respond to the motions for summary 9
disposition.
i 10 So that, while we had had some discussions early 11 in December, intervening events occurred and there were no 12 followup discussions about the schedule, at_least not O
13 emonose a11 earee parties at the eame time.
14 There may have been individual discussions' 15 between two parties, but there were no three-party 16 discussions.
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Be that as it-may, since that date various events 2
have occurred.
3 The motions for summary dispos.ition have been 4
filed.
The Applicant has filed its reports..
5 JUDGE GROSSMAN:' I take it, by the way, Staff had 6
no warning about the ' filing of the motions for summary 7
disposition?
8 MR. TREBY:
That is correct.
As we indicated in 9
our filing, we had no advance knowledge they were going to IL-be filed on December 20th.
11 JUDGE GROSSMAN:
Could you also tell me why Staff 12 has now changed f rom its proposed schedule to a much more
()
13 abbreviated schedule leadi.ng up to hearing?
14 MR. TREBY:
Yes.
As I have indicated event's have 15 occurred which were not contemplated on December 6th.
1 16 One event which occurred ~is that the motions for 17 summary disposition had not been filed.
When we were 18 discussing a schedule on December 6th, it was the Staff's 19 view that we ought to finish all interrogatory discovery 20 before the filing of motions for summary disposition.
21 Therefore, that was why we had suggested the 22 dates of January 10th as the last day for the filing of 23 interrogatories and January 24th as the answers for it and 24 then motions for summary disposition to be filed on January 25 27th.
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-1 The Applicants were very adamant that they were 2
not going to go beyond -January 15th as the date for the 3
filing of motions for summary disposition.
4 As I said, that is now'past history because 5
motions for summary disposition in fact have been filed on 6
December 20th with a response date due of January 31 as 7
opposed to proposed dates.
8 If you look at Attachment B of some dates in 9
February, be it February 12th to February 26th, if you gave 10 effect to the change that we have been talking about on 11 December 6th.
12 JUDGE GROSSMAN:
Is it also true that part of the
,()
13 ;
reason for the change is, as suggested by Mr. Guild, that 14 you no longer are allowing for discovery of Staff reports?
15 MR. TREBY:
No -- well, first of all, if you look 16 at Attachment A, which is Mr. Guild's proposed schedule, 17 there is nothing on that schedule that talks about discovery 18 of Staff reports.
19 JUDGE GROSSMAN:
I think his point is that that 20 is implicit in the scheduling.
21 MR. TREBY:
I don't see how it is implicit'in the 22 scheduling.
There is nothing on that Schedule A that 23 indicates the filing'of a Staff report and discovery 24 thereafter.
25 i In fact, all that is on Attachment A is that the
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last date for interrogatories be January 24th with answers 2
on February 7th, and we incorporated those dates in the 3
schedule that we filed.
4 Thereafter, there is nothing about further 1
5 interrogatories in Mr. Guild's schedule.
There is provision 6
for depositions, which we believe is an acceptable discovery 7
means of finding out further information about the positions 8
of the potential witnesses.
9 JUDGE GROSSMAN:
Do you believe that Mr. Guild 10 will have suf ficient time to complete his examination and 11 discovery on the motions for summary disposition, to file by
/
4 12 this Thursday, or whenever it is?
()
13 MR. TREBY:
I a,m not sure that that is an issue 14 before us.
Mr. Guild is competent counsel.
If he believed 15 '
that he needed to take discovery on the testimony that was 16 filed in support of the motions for summary disposition, he 17 could have sought depositions.
18 I mean, to come in today, which is January 27th, 19 four days before the filing is due to tell us that he is 20 going to seek some discovery and then to say is that 21 sufficient time, I don't think four days is sufficient time, 22 no.
23 JUDGE GROSSMAN:
Well, I am talking about the 24 time that was available to Mr. Guild from the' filing of the
/'S
/
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()DAVbur-1 Commission action and the preparatfbn needed for that and 2
also_the other discovery that had already been. scheduled, 3
what was subsequently scheduled by Applicant.
4 The question is not whether you ought to speak to
~
5 Mr. Guild but what you as a party believe would be 6
reasonable to afford Mr. Guild so that he can adequately 7
respond to the motions for summary disposit' ion.
8 MR. TREBY:
I believe we are in the same position 9
as Mr. Guild.
We have to file responses to those motions 10 for summary disposition.
We believe that we will be able to 11 do that on January 31.
12 JUDGE GROSSMAN:
Of course, it is easier to agree O)
(_
13 with motions for summary disposition than to oppose them.
14 MR. TREBY:
I am not sure that we are going to 15 agree with all of those motions for summary disposition or 16 that Guild will oppose everything.
It is hard for me to 17 speculate as to what is going to come in next Friday.
~18 l But, Mr. Chairman, you must remember, this 19 contention was admitted sometime in June or July of '85.
We
~
20 i have had many months of discovery on these issues, and at 21 this time to be talking about further discovery when, again, i
22 I don't even see anything included on Attachment A -- there 23 is no indication on Attachment A that there is going to be 24 further discovery on motions for summary disposition -- I 25 ouess all I can say is that there has been time in the past ACE-FEDERAL REPORTERS, INC.
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to take necessary discovery, and for me to speculate as to 2
the need for additional discovery at this time, in my view, 3
I am not sure that any is necessary to file a response to 4
the motion for summary disposition.
5 Again, one needs to determine .en one files an 6
answer to the motion for summary disposition as an 7
indication of whether or not there is any genuine dispute as 8
to a material issue.
That can be responded to perhaps 9
without discovery.
10 JUDGE GROSSMAN:
Mr. Treby, could you also tell 11 us whether your proposed schedule is a realistic one, 12 considering the fact that there are staff reports that have I
()
13 not yet been issued and that there is a tendency for 14 slippage?
15 MR. TREBY:
I have been advised by the Staff that 16 this is a feasible schedule that they can meet.
17 To be very candid with you, when I had been 18 discussing schedules with my client earlier, I had generally 19 talked in terms of the one that is Attachment B to the 20 Intervenors' schedules that is, with the Staff filing its 21 testimony on April 18th and the hearing beginning on May 22 6th.
23 When it came time for the Staff to file its 24 response to the Board, I consulted with the Staff as to what 25 the schedule would be and suggested to them that schedule.
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They indicated to me that they could improve upon 2
tnat schedule and that the schedule I should file is the one 3
that I did file.
4 So based on that, what I can tell you is that my 5
client tells me that the schedule we have filed is a 6
feasible one that they would be able to meet.
7 JUDGE GROSSMAN:
Let me say if that materializes 8
this case will be singular as far as that goes.
9 MR. TREBY:
That is right.
10 Now, in saying that, the client did indicate --
11 because one of the things I had proposed was that with my 12 original schedule we would have to have completed everything 13 with absolutely no exceptions and be prepared to go to 14 continuous hearings if we were going to meet the scheduled 15 anticipated fuel loading date, giving due consideration to 16 the time period for filing proposed findings and the time 17 period for the Board to reach its decision -- the client 18 indicated that while they believed that this is feasible and 19 they expected to have everything done, they were not 20 prepared for me to make an ironclad agreement, and that is 21 why there is-some language in there to the extent that in 22 the event something is not completed that it could be filed
-23 at some time during the process of the hearing.
24 JUDGE GROSSMAN:
How far.has Staff gone in O
25 verifying that fuel loading date of September 30th,1986 ACE. FEDERAL REPORTERS, INC.
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that we have heard about?
2 MR. TREBY:
Are you talking about one of these 3
committees that goes out?
4 JUDGE CROSSMAN:
Is there such?
5 MR. TREBY:
I don't believe there is such a 6
committee.
Let me consult'with the project manager, 7
its. Janice Stevens, who is at counsel's table.
8 (Discussion off the record.)
9 MR. TREBY:
I have gotten quite a bit of 10 in fo rma tion.
11
('Laug h te r. )
12 JUDGE GROSSMAN:
Do you need more time?
O)
(_
13 MR. TREBY:
No.
We are ready to go.
14 The first thing is that I understand the staff 15 that used to go out and conduct these inspections to 16 determine the reasonableness of fuel load dates has really 17 been dispersed, and it is now done by a combination of 18 regional people and NRR project people, who go out to 19 determine whether or not a proposed fuel load date is 20 reasonable or not.
21 What has not been done in the recent past, 22 however, the advice that NRR has received from regional 23 people in the fairly recent past is that those regional 24 people who are onsite and who have been conducting various 25 inspections do believe that the fuel load date proposed by ACE FEDERAL REPORTERS, INC.
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2 JUDGE GROSSMAN:
Did you have something further 3
to tell him?
4 MS. STEVENS:
No, that is fine.
5 MR. TREBY:
Well, with that background, then, 6
number one, the Staff assures me that this is a feasible 7
schedule, and, number two, the reason why the schedule has 8
changed is because circumstances have changed, and I don't j
9 believe that there any binding agreements on any parties 10 that there would be periods of time between one step to 11 another step, but rather that those are matters that need to 12 be negotiated each time the schedule is changed.
13 The Staff submits that its proposed schedule is a 14 realistic one and should be adopted.
15 It, number one, accepts the dates that the 16 Intervenors proposed with regard to the filing of 17 interrogatories and the responses to those interrogatories.
18 The next step that the Staff believes is 19 necessary is the identification of witnesses.
The reason we 20 believe that all parties need to identify their witnesses by j
21 the date of January 31 that we propose is because the 22 schedule also contemplates a period of time for 23 depositions.
Unless we know who the witnerses are, there is 24 no way that we can propecly compl-te depositions of the 25 people.
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Now, while I do not have in hand the list of the 2
Applicant's witnesses, I noted that in the response they 3
filed with regard to the schedule they indicated that it was 4
being filed and Applicant's counsel informed me that in fact 5
they did file it on the 24th.
6 I don't know whether it is the fault of my 7
mailroom or the Federal Express, whatever means they used to 8
get it to me, but I suspect that I will have that list 9
certainly by January 31.
10 The Staff intends to file its list of witnesses 11 by January 31, and we believe that the Intervenors should be 12 able to file their list of witnesses by January 31.
()
13 Again, this contention was admitted in this 14 proceeding seven to eight months ago.
At that time the 15 Intervenors stated that they were in the process of 16 consulting with potential experts to be their witnesses, and 17 it seems to me that suf ficient time has passed that we l
l 18 should know what witnesses, if any, the Intervenors intend 19 to put on.
20 As has already been mentioned earlier today, 21 there is no requirement they give us witnesses, but we think 22 that we are entitled to know who their witnesses are so that 23 we can have appropriate discovery rights, either through --
24 well, principally through depositions in the event they do O
25 intend to call witnesses.
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The next step that we believe is appropriate, and 2
which we propose in our schedule, is the process of filing 3
of admissions.
We believe there are a number of subsidiary 4
issues that are raised by these various subparts of this 5
contention which are not really in dispute amongst the 6
parties.
7 To the extent that we can narrow those and 8
through the process of admissions get those things out of 9
the way, it will be helpful to the hearing process.
So we 10 intend to seek admissions from the other parties.
11 JUDGE GROSSMAN:
Mr. Treby, why do you believe it 12 is helpful to have a deadline on requests for admissions?
O 12 uaaer ea rea r 1 aut oa i
n emiet a to 111-14 up until trial, and when you are focusing more narrowly 15 l towards the end of preparation for trial, you usually find 16 it helpful to get last minute admissions to obviate the 17 necessity for bringing in your own witnesses on certain 18 things.
19 l Why do you think we ought to depart from that 20 practice and set a deadline here?
21 MR. TREBY:
Well, the principal reason is the 22 preparation of written direct testimony that is common in 23 our proceedie.gs and may not be common in the judicial 24 proceedings that you have reference to.
25 It is true that if you'get an admission close to ACE. FEDERAL REPORTERS, INC.
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1 the date of trial you can perhaps modify the direct 2-examination, which is usually oral, of your witness.
But 3
here.we are dealing with approximately 66 subparts of this 4
admitted contention.
5 We are going to be preparing written testimony 6
over a period of time.
Unless wo have narrowed the subje'ts c
7 of that written testimony, there is no way we can feasibly 8
prepare it.
9 JUDGE GROSSMAN:
I am not suggesting that you not 10 submit requests at this time or in a few weeks.
What I am j
11 suggesting is that perhaps a deadline on submitting or 12 filing requests for admissions would not be that helpful,
(')
(-
13 l sincu you otherwise would be permitted to continue up until 14 the time of hearing.
15 MR. TREBY:
That would be fine, except again, as 16 I say, it might result in modification of the prefiled 17 testimony.
i 18 Our schedule provides for answers to be filed on 19 '
February 21, and we propose that the Applicants, for 20 instance, file their testimony on March 18th.
That is less 21 than~30 calendar days, and it is probably no more than 20 22 working days between them, and to the extent you would have 23 to make necessary modifications, it seems to me that that is i
24 not a particularly large amount of time to accommodate
()
l 25 whatever the responses to admissions might be.
)
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I do concede though that the testimony could be i
2 filed that none of these things are admitted to, and then go 3
through some process of modifying the testimony at hearing.
4 But it seems to me that that might be more complicated'than l
5 the value'you would get from the admissions at that point.
6 The next step that we believe is necessary, 7
again, so that we can have ~ adequate time to prepare our 8
profiled testimony, is to have an end to discovery, that is, I
9 an end to depositions.
And we propose a February 21 date 10 for that purpose, which essentially gives us a month, a I
11 calendar month -- a few days less for the applicant, a few 12 days more for the intervenors and the staf f -- to prepare
(
13 3 their written tes,timony.
14 Again, if you exclude weekends, it does not seem 15 l that that is a particularly excessive amount of time to be
~
16 l working on the preparation of testimony, again, given the 17 fact that there will be anywhere from 50 plus to 66 issues 18 that need to be addresse'. by written testimony.
19 The reason for the staggered filing of direct 20 testimony was, number one, the applicants indicated that 21' they could meet this March 18th date of filing testimony, i
22 but the more important reason was that the applicants, as j
23 they have indicated, do carry the burden of proof in this 24 proceeding.
O 25 Since they have the burden of proof, it is i
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possible that it may be helpful to see the way they're going 2
to be presenting their testimony.
By that, I don' t mean the 3
actual testimony on each of the issues, but whether they are 4
in some way connecting subpart one and subpart five and 5
subpart eight, or something or other, to be put in in 6
certain packages.
7 With that information, the other parties could 8
take account of that and perhaps do something with their 9
testimony so th~at we have like packages of profiled 10 testimony, and so can take issues together rather than 11 having the applicants put on a panel that's going to discuss 12 issues 1, 7 and 15 and the staf f puts on a panel that's
()
13 l going to be discussing issues 3, 7 and 15.
So they're not 14 comparable.
15 '
And with regard to the commencement of hearing, 16 that's just the necessary additional time after the 17 prefiling of testimony.
18 JUDGE GROSSMAN:
Does that conclude your remarks, 19 Mr. Treby?
20 MR. TREDY:
Yes.
21 JUDGE GROSSMAN:
Mr. Miller.
22 MR. MILLER:
Thank you, Judge Grossman.
I'd like 23 to respond briefly.
24 First of all, let me advise the Board that the 25 Federal Express has fallen down with respect to delivery of ACE. FEDERAL REPORTERS, INC.
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our identification of witness response, with respect to the 2
Board as well, I apologize.
3 We did in fact file our answers to the 4
intervenors' general interrogatories, which had, in essence, 5
asked for the identification of witnessos and a brief 6
summary of their testimony, and so on.
We've met that 7
commitment, as we indicated in our proposed schedule.
8 I'd like to also try and clear up the question of 9
whether the report on the 8205 issue is the partial results 10 or is the full report.
I'd like to state for the record 11 that it is the report on the 8205 retro-inspection of 12 safety-related mechanical equipment and, in addition, 13 contains an appendix that deals with the other issue of the i
l 14 8205 inspection report, the steam generator bulk issue.
15 The characterization of that document as the 16 partial resulta, I believe, is found for the first time in 17 Mr. Treby's pleading.
I can only speculate as to how that 18 happened.
The cover letter that accompanies the report says 19 that the detailed etuipment packages, that is, the 20 documentation packages for each piece of equipment -- which l
21 include the detailed results of the retro-inspections -- are 22 available at the Braidwood site for inspection.
l 23 And perhaps from that it was extrapolated that i
24 the report was only partial results.
The equipment packages 25 themselves are quite voluminous and it would have 3ust been ACE. FEDERAL REPORTERS, INC..
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unwieldy to nave them all attached to the report itself.
2 Your Honor, I'd like to now turn to the reasons 3
that have been expressed by Mr. Guild as to why he needs 4
more time.
There have been a number of them.
5 I think he stated at various times this afternoon 6
that he didn't know how he could have taken any depositions 7
in the period following December 5th essentially until the 8
end of January, that he has really been overwhelmed by the 9
summary disposition pleading as well as our interrogatories.
10 Let me deal with the interrogatories first.
11 We've had a number of discussions with ruspect to those 12 interrogatories.
They are essentially identical to the set
()
13 of intorrogatories that we filed in August.
14 Mr. Guild responded to them at that point in 15 timer in the December timeframe, he was asked by me whether 16 or not he would have supplementation of the responses now 17 l that he had had extensive discovery.
And he said he would 18 consider it, but he was unwilling to commit to do so.
19,
One of my associates sent Mr. Guild a letter 20 l asking him if he would commit to updating those responses.
21 There was no answer to the letter.
We were running up 22 against a deadline that, again, we had imposed on 23 ourselves.
And so the interrogatories were filed on that 24 basis.
O 25 We got the answers today.
They appear to be ACE. FEDERAL REPORTERS, INC.
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cssentially copies of the August responses.
Again, not 2
giving us a great deal of information, but responses are on 3
file.
In fact, I think that the real problem here is that 4
we have a contention that has multiple subparts and deals 5
with, in some instances, complex, technical issues and the 6
inter 9enors have simply not been willing, for whatever I
7 reason, to devote the necessary time and effort to getting 8
ready to address the issues that they have presented to the 9'
Board in a timely fashioni 10 Let me give you two examples.
I have asked 11 Mr. Guild on a number of occasions if he would please see 12 whether there weren't additional returnees available in
()
13 1 BPI's offices, two of whom who have entered appearances in 14 l this case, to support a deposition program, which did not i
l 15 involve highly technical and complex issues.
16 That was our depositions of some of the Comstock 17 quality control inspectors.
Mr. Guild has said that there 18 is no one else available.
And I confirmed that position 19 1 with Mr. Castle, who is also one of the attorneys in BPI, 20 i who has filed his appearance in this proceeding.
21 So it all rests on Mr. Guild's shoulders.
- And, 22 frankly, I don't think any one individual is capable of 23 participating meaningful in all aspects of this proceeding.
24 We hear for the first time today that Mr. Guild O
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items, as to which he requested and obtained, with our 2
consent, an extension of time, until January 31st, to 3
answer.
4 Now, on January 31st, we're going to be 5
confronted with a statement that he can' t respond because he 6
needs additional time.
7 JUDGE GROSSMAN:
Mr. Guild didn' t request that 8
time.
I suggested that he might need that time.
And the 9
most, I believe, Mr. Guild said was that he might.
I just 10 want to set the record straight on that.
11 MR. MILLER:
All right.
I stand corrected.
I 12 In addition, Mr. Guild stated on the record
(
13 today, and stated in his' pleadings, that it was contemplated I
14 that the period from December 19th to January 10th would be 15 l spent by him in intensive document review.
And that that-16 would kind of allow him and the other parties to gather 17 themselves, if you will, for the final discovery effort.
18 Yet, in a telephone conversation with me, 19 Mr. Guild said that, in fact, at least 10 days of that 20 l period was spent on a f amily vacation.
I don't begrudge 21 Mr. Guild his vacations, I really don't.
But what I do 22 begrudge him is the fact that the schedule that he proposes 23 is one that is simply tailored to his convenience.
And that 24 is not fair to the Board and the parties.
It is
, O 25 inconsistent with the Commission's state of policy on how t
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these proceedings ought to be run.
And we simply must have t
2 a commitment of additional resources on the part of the 3
intervenors in this case, or, in my judgment, we are simp 1/
4 never going to get a satisfactory conclusion of discovery 5
when Mr. Guild is not saying that his rights have somehow 6
been abridged because chere are still three or four 7
depositions out there that have to be taken.
8 I think it is going to be appropriate to have 9
more than one track of depositions going at the same time.
10 We're prepared to support that.
11 I've not discussed this with the staff.
I don' t 12 know whether they are agreeable to such a process or not,
(
13 but that is the only way, in my judgment, that the l
l 14 discovery, which all the parties are entitled to, is going 1
l 15 to get completed on any sort of a timetable that is 1
16 consistent with an orderly hearing process.
17 JUDGE GROSSK\\N:
Let me say, the last time that 18 we had a number of simultaneous depositions in a proceeding, 19 I don' t think was a sery successful endeavor.
I'm sure 20 Mr. Treby is as familiar with that as I am.
21 MR. GALLO:
De don't plan to replicate Comanche i
l 22 Peak.
23 (Laughter.)
24 JUDGE GROSSMAN:
I would hope not.
25 MR. MILLER:
Let me say there is one issue, the ACE. FEDERAL REPORTERS, INC.
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harrassment, that really stands apart from the technical 3
issues.
By and large, it involves different witnesses and, 4
in my judgment, is, in fact, amenable to two-track 5
treatment.
6 That is, there are a number of technical issues 7
as to which discovery has begun, as it has with respect to 8
the inspector issue.
But I believe that they could be 9
accommodated simultaneously.
10 with respect to the corrective action programs 11 that are directly involved in the hearing process, 12 particularly the 8205 issue, Mr. Guild has been involved in 13 extensive discovery on that issue almost from day one.
14 He has had access to volumes of documents on that 15 program -- on the causes of it, on the investigations of 16 it.
He has taken extensive depositions of staff and 17 applicant witnesses and has developed, in my judgment again, 18 autte a bit of information.
19 What he has not done, and what he has not been 20 able to do until January 13th, is to discover further with 21 respect to the results of the retro-inspection ef fort.
But 22 he has been fully informed through the discovery process 23 with respect to the scope of that ef fort, the program for 24 retro-inspections and, indeed, has had some access to in O
25 progress results from the fall of 1985.
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Similarly, he refers to a new corrective action 2
program, of which he just became aware in our filings on the 3
motion for summary disposition.
4 I sympathize with Mr. Guild.
There's been a lot 1
5 of paper produced in this proceeding.
But, if he looks 6
carefully at answers to interrogatories that have been on 7
file since the fall of last year, he will see that that 8
program is referred to and it has been, I think, the subject 9
of examination by him in a number of depositions.
I i
10 So we have here, as I say, I think, is just and 11 adequate resources being put to the task that is before all 12 j of us and the thing, the process that contemplates the
(
13 !
filing of prepared direct testimony really, if you will, 14 accommodates to a large extent the problems that Mr. Guild 15 says he faces.
Cross-examination before the Board is a 16 useful adjunct to the discovery techniques that have been i
17 L used prior to the time the hearing begins.
18 And while I'm not suggesting by any measure of 19 means that the cross-examination before the Board serves as 20 a substitute for discovery, I am suggesting that, for a 21 party that presently contemplates not calling any witnesses 22 of its own, that the time that has been requested for 23 discovery is simply excessive.
24 Finally, I'd like to address the question of the O
I kl 25 request for admissions.
I do not share the staff's ACE. FEDERAL REPORTERS, INC.
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optimism that requests for admissions will serve 2
significantly to advance the course of the hearing or narrow 3
its focus.
In my experience, there is kind of a process of 4
natural selection that takes place as the prepared direct 5
testimony is admitted and considered by the parties and the 6
Board.
7 Those issues that are truly in controversy and 8
that are of interest to both the parties and the Board 9
receive extended treatment as appropriate in the cross-10 examination process.
11 Those that do not are not the subject of cross-12 examination and appear as essentially unprotested findings s
13 of fact in both the proposed, findings of fact as submitted 14 by the parties and, ultimately, the judicial decision of the 15 Licensing Board.
16 In my experience, requests for admissions are 17 ;
typically an exercise in which attorneys are very deeply 18 l involved and there is a great deal of careful wordsmithing l
19 i both in the preparation of the requests themselves and in 20 the preparation of the responses.
21 I think that it will be a diversion of the 22 parties' energies.
And Mr. Treby hasn' t taken any 23 additional time in the schedule for that, but I just offer 24 that by way of observation.
7.-
~'
25 In my judgment, discovery cutoff, except for ACE. FEDERAL REPORTERS, INC.
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depositions, ought to include both written' interrogatories 2
and the requests for admissions.
3 4
5 6
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8 9
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17 18 s
19 20 4
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JUDGE GROSSMAN:
Mr. Treby, could you illuminate 2
this for me, as to whether there is any comparable provision 3
in the NRC Regulations as there is in the Federal Rules with 4
regard tx) costs being assessed for approving matters that a 5
party would not admit in a request. for admissions?
6 I assume there isn't, or I would have heard about 7
that.
8 MR. TREBY:
I am not aware of any such 9
provision.
10 JUDGE GROSSMAN:
In federal courts, about the 11 only reason anyone admits to a request for admissions is the
'12 fact that if they don't they might be assessed costs for 13 I having proved something that_should have been admitted in l
I i
14 l the first place.
l 15 i But without a comparable provision, I don' t find 16 that requests for admissions are really going to accomplish 17 very much.
18 But that is just an observation.
19 Mr. Miller?
20 MR. MILLER:
I would just like to urge that since 21 Mr. Treby has suggested that there may be the need for 22 sequential filing of Staff testimony, that we consider such I
i 23 a procedure.
l 24 We would suggest that it be accommodated within 25 the schedule that we propose; that is, that the Staff file i
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as much testimony as it' can by mid-March and that the
(
2 hearings begin on April 1st.
3 I would assume there may well be rebuttal 4
testimony, in any event, which is going to have to be 5
submitted, and of course we may very well want to avail 6
ourselves of that opportunity as well.
7 But again I urge that the Board adopt our 8
schedule.
9 JUDGE GROSSMAN:
Does that c6nclude your remarks?
10 MR. MILLER:
Yes, sir.
I am sorry.
1 11 '
JUDGE GROSSMAN:
Mr. Guild.
12 MR. GUILD:
Thank you, Mr. Chairman.
()
13 I would like to direct the Board's attention to 14 the October 18th joint motion.
It is the last pleadings 15 that were joined by the parties attached to the schedule.
16 On page 3 of that document, these are the 17 underlying agreements or understandings that the Board 18 approved when they approved the dates, the schedule, and 19 there is an attachment at that page.
The following 20 understanding, A, is recited:
21 "It is assumed that the corrective 22 action programs referred to above 23 will be completed by the Applicant 24 and a final written position O
25 developed by the NRC Staff in ACE-FEDERAL REPORTERS, INC.
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sufficient time to permit the 2
conduct of discovery within the 3
established deadlines.
Should 4
this assumption prove incorrect 5
in the future, counsel for the 6,
respective parties'are prepared 7
on an informal basis to adjust 8
the discovery deadlines to provide.
9 for such discovery."
10 That is the crux of what we believe to be not 11 only the commitment of the parties but the measure of what 12 is a reasonable opportunity for Intervenors to prepare and 13 l file its case.
14 I submit to.you it is consistent with the 15 understanding which we reached from day one in this case.
16 It was recited in the October 18th document because it 17 underlies the sequencing of the milestone dates that were 18 agreed to in that document, and that same understanding was 19 the understanding that I had when I called Mr. Miller on the 20 17th of December and said, Mike, I am prepared to make 21 representations to the Commission as to the status of our 22 schedule agreement in this case.
23 I again emphasized the dates that I understood, l
24 and I did that because I wanted to make sure my notes were i O l
25 correct as to the range of dates we had.
He agreed-that ACE-FEDERAL REPORTERS, INC.
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that was correct and that we had proceeded from October 18th 2
until December 17th with the understanding that all parties 3
were agreed to, that it was approved by this Board, as I 4
just read to you.
5 Well, on and off for six days -- I went off for 6
six days for Christmas vacation af ter flying to Washington, 7
after I talked to Mike Miller to attend a deposition with 8
Joe Gallo the next. day.
I sat around with him all day over 9
at the Phillips Building.
Not a peep out of him about the 10 schedule.
Not a peep.
11 I go off on my Christmas vacation after having 12 committed to writing my verification of the status of our
()
13 I agreement with Mr. Miller, and I recited to the best of my 14 ability what I understood that status'to be in my filing 15 with the Commission.
I quoted that to you.
16 I filed that on the 19th of December and went off 17 on vacation for six days.
Little did I know, because Mike 18 Miller didn't tell me on the 17th when I~ talked to him on 19 the phone that that day he was signing. a three-inch stack of 20 14 motions for summary disposition, with 300 pages of 21 testimony and 20 witnesses.
22
'All he had to do was tell~me, Bob, we are under 23 the gun, we can't stick with this agreements, the deals are-24 off, and, by the way, you should_ expect that there is a n.
k-
~25 package coming to you.
Just common. courtesy would have 1
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called for that because I tell him when something is 2
coming.
I don't have to.
3 He didn't have to as a matter of law or provision 4
of the rules, but I submit to you, as part of the 5
commitments that he made for his client, he did.
6 Now, I go off on vacation and I tell the folks in 7
the office who see stacks of paper come from Isham, Lincoln 8
& Beale at least once a day -- I mean_there are papers that 9
come every day and they are thick -- that there is nothing 10 due until the 10th of January because we had to sch'edule our 11 staff, too, over there, you know, the clerical assistance I 12 am going to need, and people do go off.
13 I did not find out'unt.il the 30th of December 14 that for 10 days, sitting on my desk, delivered by messenger 15 on the 20th was this stack of paper.
Mr. Gallo didn't tell 16 me on the 18th to expect it.
Mr. Miller didn't tell me on 17 the 17th.
There was no call on the 20th, saying, Bob, by 18 the way, we just served you today a piece of paper.
19 l Any reasonable lawyer is going to understand that 20 if we serve something on the 20th of December under the 21 circumstances of this case, that they are really going to j
22 catch us with out pants down.
i 23 JUDGE-GROSSMAN:
Excuse me, Mr. Miller.
I 24 haven't asked you yet, but since you have asked for the
.(
1 l
25 hearing here, why is it that no one mentioned to either ACE-FEDERAL REPORTERS, INC.
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Staff or'Intervenor that you were contemplating getting in 2
motions for summary disposition notwithstanding the schedule 3
that had been discussed?
4 MR. MILLER:
Your Honor, Mr. Gallo and I and our 5
client shared a sense of extreme frustration at the end of 6
our discussions with both the Intervenors and the Staff on 7
several points.
8 There had been a range of starting dates that 9
were discussed.
We were at the' earlier end.
Mr. Guild and 10 Mr. Treby were at the later end.
11 l There were also a number of unknowns, all of h
12 which had the potential for further stretching out the
()
I 13 schedule.
14 Mr. Treby at that point in time was not willing i
15 to commit to a date when the Staff'would file a response to 16 our 8205 report.
17 Mr. Guild's position was without that.
All the 18 dates after that event are subject to change.
19 Mr. ' Guild took the position that because of 1
20 '
Commonwealth Edison's efforts to seek Commission review of 21 the admission of the contention that up to.four weeks would 22 have to be added to any schedule that we have been 23 discussing.
24 There was simply no~ agreement at -that point 'in 25 time on where we were going with the schedule.
We'did not
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call because it seemed to us that the sched'ule under wh'ich 2
we had been operating and the proposals that we had 3
discussed in our December 5th meeting talked about the 4
summary-disposition filings as being a deadline.
In that.
5 circumstance it did not seem necessary to give advance 6
warning.
7 I will say that we were conscious of the fact 8
that this was occurring over the Christmas holidays.
The 9
rules call for a 20-day response time, and we knew full well 10 that it was simply not reasonable, given the time of year 11 and the nature of the filings, to expect that the parties 12 would respond on the schedule provided in the rules.
}
. 13 j I don't know, I can't recall whether Mr. Treby or 14 Mr. Guild called first, but there was not an issue about 15 giving them the time that they felt was necessary.
There 16 was not an argument with either one about the date that was 17 requested.
18 i Both of them asked for the 31st.
I believe 19 Mr. Guild called me and asked if he could have the same time 1
20 '
that the Staff had asked for.
21 But the short answer is that we did not inform 22 the Staff and Intervenors of our intentions because we did 23 not believe that we were under an obligation to do so, and, 24 '
indeed, as I say,.the preexisting schedule and the schedule O
25 proposal talked about summary disposition as a deadline, ACE-FEDERAL REPORTERS, INC.
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which in my judgment it had always been contemplated that as 2
to some issues we would move at our discretion.
3 One further footnote on this.
We did not move 4
with the limited exception of a portion of the issues that 5
were identified in respect to the Report 8309 on contention 6
items, as to which there is any ongoing discovery or any 7
indication from Mr. Guild or the Staff that they 8
contemplated initiating discovery.
9 There are some of these issues, your Honors, 10 which are simply -- well, -I don' t mean to characterize them 11 unfairly, but they are picked at random out of a variety of 12 NRC Staff inspection reports.
Having identified them'in the
(
13 contention and asked an interrogatory about them, the 14 Intervenors have simply not ' pursued them further.. They deal 15 with a variety of miscellaneous open items and items of 16 noncompliance.
17 It was an effort on.our part, if you will, to 18 clean up the contention, to focus the Board and the parties' 19 l intention on what we believe to be the key issues, those I
20 that are involved in the 8205 inspection report, the major 21 ones that are involved in the 8309 inspection report, which 22 led us to file the motion for summary disposition when we 23 did.
24.
JUDGE GROSSMAN:
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that you would be.in a stronger position arguing for an 2
abbreviated schedule had you mentioned that summary 3
disposition motion in advance than coming in here now and 4
being basically accused of sandbagging them for not having 5-mentioned that?
6 MR. MILLERI Your question implies that I would 7
have been.
8 (Laughter.)
9 JUDGE GROSSMAN:
I guess it was a rhetorical 10 question.
11 MR. GALLO:
I can respond to that.
The answer is 12 "no."
O' i
13 l The Intervenors -- if we had objected to the 14 Intervenors' request for additional time or otherwise 15 opposed what they determined for themselves to be a 16 reasonable time to respond to the motion, then perhaps your 17 observation, your Honor, is correct.
18 But the Intervenor, upon receiving the motion, 19 assessed how much time he needed for response to the 20 motion.
It was a time longer than provided for in the.
i 21 rules.
He asked for it and he got it without objection.
j 22 I don't see what the question of surprise has to 23 do with it.
24 JUDGE GROSSMAN:
I don't want to belabor the O
25 point, but you know, there was mention of the fact that it l
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was vacation time.
2 MR. GALLO:
We knew nothing about any vacation.
3 As far as we understood, Mr. Guild was. going to be poring 4
over documents-during that whole period of time and that 5
when he got the motion on the 20th he.uould be in his office
~
6 when the messenger got there with it, and therefore he would 7
be aware of.it on the 20th.
8 We knew of no vacation through the 21st, -2nd, 9
- -3rd or however those six days spanned.
10 so I really think that the situation may have 11 been unfortunate, but the Board should recognize that we 12 were arguing about nine days in the schedule.
It translates
()
13 into two weeks, as we say in the response to the motions for 14 sanctions in the Intervenors' revised schedule, that as you 15 I add on the other elements necessary to reach a decision in 16 this case it translates into two weeks.
I 17 We are arguing about -- our date was-the 15th,
\\
. 18 '
the Intervenors' date and the Staff's date were the 27th.
19 We are arguing about nine days.
20 The Intervenors and the staff were adamant that 21 they would sit on the 27th.
We were.without a remedy 22 because by the time we effectively. attempted to get Board 23 intercession on those nine days the time was running.
24 On top of that, the Commission's responses for 25 the answers to those ' questions were upon us.
We had.tx) take ACE-FEDERAL REPORTERS, INC.
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some kind of aggressive action.
That'is what we did.
1 2
This wasn't a party whereby we were operating by 3
what Mr. Guild refers to as prior agreements.
We tried hard 4
to get an agreement.
I tried hard to get an agreement on 5
December 6th, even went so far as to say, look, you file 6
your interrogatories, Mr. Guild, we won't-file'ours, but we 7
will answer yours anyhow.
8 That approach fell through because Mr. Treby 9j wouldn't make a similar offer, for whatever his reasons 10 are.
I am sure they.are good ones. -But it wasn' t as if we 11 didn't try to make this thing work.
We did.
It failed.
12 There was no schedule, contrary to what Mr. Guild N
13 says.
14 On the 18th of October, I told him there was no 15 schedule as a result of the fact that we could get no 16 agreement.on the' pivotal question of filing these motions 17 l for summary disposition.
I 18 JUDGE GROSSMAN:
Mr. Guildh 19 {
MR. GUILD:
Let me turn to the motion for i
20 sanctions because frankly, Judge, I am not prepared to 21 proceed on this case on the assumption that parties are 22 dealing in good faith with one another, as I think they were 23 committed to up until the point when -- yes, we were l
24 sandbagged.
(
l 25 I believe that a lawyer has a responsibility I
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under the Canon of Ethics, under the Code of Professional 2
Responsibility to not sandbag his adversary, and the rule 3
that spells that out, if you will, is the DR that is cited 4
for reference because I wanted to be just a little bit less 5
direct and less accusa;ory in our pleading.
6 That says that you really can't sucker your 7-adversary by adopting a course of conduct towards him or her 8
on which your adversary relies to their detriment and then 9
sticking it to them without at least giving them fair notice 10 that you intend to recede from that common custom of 11 courtesy and established pattern of practice.
12 Now, I said that because it seems to me -- in
()
13 f act, we had a binding agreement that was adopted by this-14 Board in the form of an order -- but it seems to me.it is 15 more than just a matter of courtesy or intelligent tactics.
16 It is a matter of ethical conduct among counsel.
17 <
Now, I just want to be able to go forward in this 18 case, and there is a whole little list of things where there 19 is sort of an edge on Mr. Miller's voice to suggest some ill 20 l motive or lack of diligence or bad character on my part or 21 on BPI's part.
~22 Let's just drop it.
23 I simply want to understand on what basis the 24 parties are expected to deal in the future in this case, 25 and in all seriousness that is why Intervenors put forward ACE-FEDERAL REPORTERS, INC.
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tais moeien ter eanctions, becaese it is 3ese simotv une ir 2
to sucker one's opposition by telling them that you are 3
going to be nice and everything is going to be worked out by 4
agreement.
5 This is Joe Gallo's language in the 18th 6
submittal:
7
" Parties are prepared on an 8
informal basis to adjust 9
discovery deadlines to provide 10 for such discovery."
11 12 13 1
14 1
15 16 a
i 17 18 19 20 l l
21 22 23 24 O
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If you're going to stop being reasonable and deal 2
informally and, as the Board Chairman pointed out, we've 3
gone for a period at the date of this last deposition, the 4
6th, when we last discussed scheduling among all the 5
parties, for at least four days beyond the deadline for 6
discovery, at the date of the 17th, triree weeks.
If you're 7
going to depart, you've got an obligation, and one that I 8
certainly feel bound by, to tell and adversary the deal's 9
off.
I've had clients who've said to me, Judge, you're 10 being too-soft, you're not pushing hard enough in a case.
11 And they tell me, you know, Bob, we expect ycu to get a 12 little tougher.
You're being too nice to these guys.
13 (J
I represent my client in the say they want me to
~ <
14 l represent them, but what I don't do is, I dont act to the i
15 l detriment of my colleagues, even my adversaries, l
16 notwithstanding how much heat my client puts on me to take a 17, position in litigation, not without having the courtesy and 18 I think the ethical as required by the code of professional 19 responsibility to call my adversary and say, listen, the i
2C '
heat's on me, Mike, Joe, they tell me I can't stick with 21 this agreement.
We've got to back out.
We've got.to recede 22 from it.
We're under the crutch.
23 i Well, all I hear is, calling this a stack of 24 pacer.
And I was really caught with my pants down.
It was l
(j 25 10 days before I found out it even existed.
I got back on a i
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plane, zipped right back.
I actually had Federal Express 2
drop me that the next day, and I was reading it constantly.
3 Okay.
I then get, on the 9th of January, a press 4-release of Commonwealth Edison, quoting Mike Wallace, the 5
Project Manager, accusing Intervenors of engaging in -- let 6
me absolutely precise about-this language, a history of 7
deliberate delay tactics in the nuclear licensing process.
8 There's never been any such claim that I'm aware of by 9
Edison to this Board.
I expect I would have been the first 10 to hear about it, if I was being called dilatory, up until 11 this point, but I can only surmise that someone at 12 Commonwealth Edison decides, because, well, yes, the' heat is
(]}
13 on them at the Illinois Commerce Commission, that they're 14 going to make the Intervenors out to be th'e bad guys in this 15 time.
16 So what they do is submit what's been alluded to 17 now in this pleading as the voluntary cap proposal, capping 18 the costs of the plant at the most recent projected costs 19 that Edison came up with in November.
That cap of $5'.02 l
20' billion happens to be $1 billion over the cap that the 21 hearing examiner proposed, on the basis of the record in the 22 case.
And Edison's proposal came as a comment for exception 23 to the hearing examiner's proposal.
The cap has got holes 24 all through it.
It's like a sieve, because, in fact,'the
()
25 cap has the caveat that no costs that are incurred that are ACE-FEDERAL REPORTERS, INC.
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fault of BPI, because of their intervention in this b
2 licensing proceeding, such be charged to stockholders of 3
Commonwealth Edison.
They should be borne by ratepayers, so 4
the cap lifts for each day of delay that they claim is the 5
necessary product of us even intervening in this case, not a 6
question of whether we get another day today as the result 7
of our schedule proposal, but Edison's position is that 8
having intervened in the case, having exercised our rights 9
under the law and the Constitution to be heard defending our 10 interests in this proceeding, we have caused them' delay, and 11 so they level and the Commerce Commission, they say, the 12 exception,is, a BPI-caused delay, r
/-)
13 '
I can only understand the conduct between the
(_/
I 14 !
17th cf December and the 18th of December and during the I
15 l ensuing months up until this point, as a result of a 16 deliberate tactial decision on the part of Edison to try to i
17 paint us as the boogyman in the case before the Commerce 18 i Commission.
19 BPI, in fact, is a party to a proceeding before 20 l the State Licensing Commission.
Inevitably, they impact one 21 another.
We sort of live in a fantasyland, if we assume 22 they don't, but the fact of the matter is that I am primary 23 counsel in this licensing proceeding.
It's true that 24 Mr. Castle, who is the general counsel of VPI and
()
25 Mr. Wright, who is the staff attorney, work more than most ACE-FEDERAL REPORTERS, INC.
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lawyers I know do on their other professional commitments.
2 Both of them give when they can to this proceeding.
3 But I venture-to say that BPI has committed more 4
resources to the nuclear licensing process in the Byron 5
proceeding, which two members of this Board will participate 6
in,, and this proceeding than all but a handful of 7
intervenors in the history of this Commission's 8
proceedings, and that we've behaved professionally, and the 9
adjudicatory boards have. found so.
10 So I do resent, and it sort of raises the level i
11 or lowers the level of debate to make it sort of an ad l
12 hominem attack back and forth about the good faith of,each
' (}
13 other and whether or not BPI is being dilatory.
14 But I ask in seriousness that the motion for 15 sanctions represents an ef fort to try to say that there are 16 certain kinds of behavior by a party that are just outside 17 the bounds'of what's acceptable, and it's true the 18!
Commission wants to move licensing proceedings along and get 19 them done, but the Commission is obligated, and has
~20 recognized that, yes, efforts to expedite thJt licensing 21 have to be with due regard to fairness and the opportunity 22 for all parties to participate.
1 i
l 23l We would ask this Board to. strongly -- I'm 24 fishing for a word, but to speak against the kind of i
()
25 practices that we believe are not disputed at this point.
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Whether Joe Gallo said what on a certain day or didn't say 2
what on a certain day, is really beyond the point.
The fact 3
of the matter is, we submitted what we believe to represent 4
the status of matters to the Commission, and that document 5
was filed the 19th of December.
l 6i There's been no offort by a licensee or NRC Staff 1
7 i
to dispute our representation or characterization of the 8
status of matters, and if we hadn' t signed the gilt-edged 9
agreement, there have been plenty of times in this case in 10 the past where we've operated for weeks without doing so, 11 because we'd entered a general. agreement to act like 12 l gentlemen and to operate on the basis of informal l
(~/;
13 l representation.
\\_
14 I think those kinds of sharp practices are 15 beyond the pale.
They're not.the way I practice law, and 16 !
they're not the way my colleagues practice law where I'come 17 from.
If they are to be the way this case is litigated by 18 adverse counsel, I'd certainly like that to be clearly 19 I stated now in a decision by this Board, and I'll expect.
20 !
That's really all I have to say on the sanctions 21 question.
I think that the measured remedy under sanctions, i
22 even though, yes, the statement of policy really is designed 23 and focused on intervenors, sanctions for intervenors, you 24 don't talk about dismissing parties from a proceeding and f%
()
25 apply that sanction to people who are applying for ACE-FEDERAL REPORTERS, INC.
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licenses.
2 It doesn' t make much sense.
It might be a 3
appropriate, but unlikely to ever happen.
So when you talk 4
about sanctions, you really are talking about pressing 5
intervening parties to move cases forward.
We think this is 6
the kind of case, if there ever was one, where there ought 7
to be a clear statement by a licensing board that an 8
applicant has gone too far.
9 We think the remedy ought to be that their 10 mostion for summary disposition be dismissed.
We think they 11 ought to be barred from summary disposition.
We' frankly 12 don't think they're going to gain much by doing it.
We've
()
13 tried to state that.
That's not because we do not and have 14 not made a good faith and rather time-consuming effort to I
15 join in them point for point, in what they filed.
We will 16.
and we have.
But we think that it's unlikely to gain much i
17 for this proceeding, so it's probably not much loss to 18 Edison, but we think the statement ought to say that there 19 ought to be some kind of penalty attached to this conduct, 20!
and that penalty ought to be that they not gain the tactical-21 advantage that they sought, and that means dismissing 22, summary disposition.
23 We included that as part of our schedule, because 24 we think the Staff ought to have an opportunity to do that,
()
25 if it wants to.
We' re not af raid of joining to the issues i
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or meeting with them.
We just want a fair chance of 2
discovery before.
3 We want the cart in front of the horse where it 4
belongs, instead of the other way around.
I 5j With regard to our schedule, we think it's a 6
simple matter of requiring other parties to honor the 7'
agreement they've already entered into.
The only variable 8
that I see is this two-week delay that's included as a 9
consequence of the Commission questions.
The Commission 10 questions, as you recall, are the result of the Licensee or 11 the Applicant seeking by petition for review, to review one 12 more time a decision which has been rejected by the
('N 13 i Licensing Board twice and the Fuel Board once, to seek L)
{
14 l interlocutory review of the decision to admit cont'entions.
I 15 ;
Staf f joined them.
I didn't want to have to i
16 l spend two weeks addressing that question.
The Commission k
17,8 directed us to, as a result of Licensee's action at that i
18 !
time, whether you add the two weeks or not, which I think is 19 ]
really a minimum fair addition, just hold them to the 20 !
agreement that they made before Christmas, and it's 21 reflected in our pleadings.
22 Just a highlight on the merits, why I think the 1
23 '
revised proposals by the Licensee and the Staff are unfair.
24 They now propose, the company proposesd a February 24th date
()
25 l for the conclusion of all discovery, depositions, witnesses, j
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and the Staff, the 21st of February, considerably less than-2
'a month, as Mr. Treby referred to.
Our proposal is April' 3
15th for that date.
4 Well, the proposal by Edison in November, af ter 5
it had had its through going review of its construction 6
sch'edule and budget, af ter it had selected December 30,'86 7
fuel load date, the proposal for the end of our opportunity j
8 for~ discovery was. March 17th.
So at the time, Edison well 9
understood it -would take us at least into mid-March to 10 complete a reasonable opportunity for discovery, if you add 11 onto that the reasonable two-week of time, because of the 12 Commission filing, you come up -- I'm sorry, you add on to
] ()
13 the April 15th deadline -- I'm trying to add it.
I'm using i
14 the date ---but the design of our schedule was to simply add 1
15 two weeks to the agreement we had before Christmas.. And I 16j think 'it's reflected generally by the Staff position on our l
l 17!
Attachment B and B-1 in the typed form.
18 I've yet to hear Mr. Treby join directly the j
19
. point I was raising, which was that the. agreement back in 20 October was that we would have a reasonable opportunity of 21 discovering a final-written position of the NRC Staf.!.
22 Again I always understood that to be inspection l
23 reports or prefiled testimony, but that the reasonable 24 opportunity for discovery came after that final position,
()
25 and that again, as for something for th>3 most important ACE-FEDERAL REPORTERS, INC.
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7390 07 09 645 DAVbw 1-corrective action program, that is, safety-related 2
equipment, after the Staff's written' position, we have a 3
period of 38 days in the October schedule, to conduct 4
discovery.
5 Why that no longer represents a reasonable 6
opportunity for discussion we have yet to hear from Licensee 7
or the Staff, except to say, you know, that they asked the 8
Board to make the generic finding that Intervenors don't i
i 9
deserve discovery, Deceuse we' re going to put up a case on 10 cross-examination.
We need until af ter discovery is over to 11 identify witnesses because, yes, the most important 12 correctivo action program that was done has only been I
("}
13 i reported on last week, and how am I going to know whether or 14 ;l I shoIlld try to wring from my employees the resources
%s not 15lj that are called for to retain an expert to present testimony 1
16 I on the most important corrective action, until we've had a 17 !
chance to conduct discovery on it.
18 I really haven't had that, Judge, and it's just 19 beginning, in terms of the results of our effort.
4 20 l I'll be happy to address any questions, but I've 1
21 '
tried to cover a number of smaller points that the parties 22 have raised.
23 l We believe our schedule is reasonable.
We l
1 24 l believe it's consistent with the understandings of the
-s
(
')
25 '
parties before the breach by Applicant.
We think that i
us I
l l
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sanctions are warranted, and we ask the Board to adopt our 2
schedule proposal and to impose the sanctions, as we've 3
suggested in our motion.
4 JUDGE GROSSMAN:
Does that conclude your 5
statement?
6 MR. GUILD:
It does.
7 JUDGE GROSSMAN:
Mr. Treby.
8 MR. TREBY:
With regard to the question of 1
9 sanctions, the, Staff has addressed that in its written 10 filing, and I don't think we need to expand much upon that.
11; That's really a matter between the Intervenors and the l
12l Applicant.
I would just indicate, as we said in our filing, I
(}
13 that we don't believe there was an agreement, so therefore, 14l we don't think there can be an accusation that the 15j Applicants have not lived up to some agreement that was 1
16l reached ahead of time.
l 17l And I guess I would point out that the lang.iage 18l for the filing of motions for summary disposition says 19l deadline.
That doesn't mean that some things can't be filed i
20i ahead of time, and as a matter of. fact, that was mentioned i
21l very briefly during our discussions of the schedules, but in i
22 all candor, it wasn't focused upon.
23l Well, I'm not going to defend the Applicant's 24 filing method on the 20th.
I would just say that I don't
/'
(_-)
25 think there was an agreement.
Therefore, I don't think l
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sanctions are warranted, although as we indicated in our 2
pleadings, we think it would have been a courteous act to 3
notify counsel of the filing, particularly in the season of 4
the year.
5 In sum, we don't believe sanctions should be 6l imposed.
- 7. J With regard to a schedule, I do agree with Mr
}
l 8l Guild that we do need to know what is our schedule going to I
9l be in this proceeding.
I would urge the Board to adopt a,
10 schedule before we leave today, so that all parties know 11 what are their various deadlines for their proceeding.
I 12 1 I don't believe that the Staff is required to
('3 13' provide Mr. Guild a written statement of our position on the
%)
k 14 l corrective actions.
15 i Again, we've heard numerous times, the burden of 16 proof is on the Applicant.
The Applicant has submitted 17 their report as to what kind of corrective actions they have 18 and whether or not they have a OA program.
And the Staff's 19 !
views will be contained in an inspection report.
I don't 20 ;
believe that there's any regulation that requires or l
21 provides for anybody to tell the Staff what date it must 22 issue its inspection report.
The Staff certainly intents to I
23 l issue an inspection report on the filings by the Applicant 24ll with regard to their 8205 matters.
We certainly intend that
(^j's 25 that's going to be issued in time for parties to take their x-ACE-FEDERAL REPORTERS, INC.
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positions, if they wish, and certainly, we will be putting 2
witnesses on the stand that can be cross-examined.
3 I think that's all that is required of the Staff 4
and that no one can impose upon us some burden that we do 5
something more, to the extent that at some early point, we 6
may have reached some sort of agreement, that agreement has 7
expired.
9 10 11; 12 O
i 14l 15 16 17 18 191 20 21 22 23 24 O
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JUDGE GROSSMAN:
This Board certainly isn't going 2
to make any kind of statement imposing a ' deadline on the 3
staff's inspection report.
4 Is there anything further before we take a recess 5
and tell you what the Board action is going to be?
6 JUDGE COLE:
Mr. Treby, do you have any estimates 7
of when the staff inspection reports on the 8205 issue of 8
the reports will be completed?
.9 MR. TREBY:
We received it on January 13th.
It i
10 is possible portions of it may have been received earlier j
11 l than that.
That's why there is this language about partial 12 filing.
I'would expect that the staff ought to be able~to 13 issue an inspection report within 30 days.
[}
14 JUDGE COLE:
Thank you.
15 !
MR. TREBY:
But, again, I can make no ironclad i
16,
agreements.
I 17 l MR. MILLER:
Is that 30 days fron today?
I 18 !
JUDGE GROSSMAN:
Mr. Guild.
19 i MR. GUILD:
I only ask, Judge,.if the staff i
20 L received a partial report, why didn' t the intervenor receive 21 a partial report as well?
If licensee is genuinely trying 22' t,o move this case along and has given us what they've got, 23 it accuses us of being dilatory.
I've seen nothing until 24 that' document came out, and I've had outstandir.g
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25 interrogatories since July that have asked what the results 1
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of corrective action were.
2 MR. MILLER:
There may be a semantic confusion 3
here.
Mr. Guild has been given full access to documentation l
4 on the 8205 program and yet I'm not certain as to what 5
Mr. Treby is referring.
6 But I would like to assure the Board and 7;
Mr. Guild that there has not been any withholding of I
8, information, or what Mr. Treby characterizes as partial 9
results.
I do not believe there's been any withholding of 10 that sort of information from intervenors.
11 MS. STEVENS:
Excuse me.
This is Jan Stevens, 12 the project manager.
All final results were submitted in
'()
13, your last submittal, January 13th.
The confusion is some of I
14' the results were previously submitted, earlier.
There were 15 some results that were previously submitted, but all final 16 results were submitted in your final submittal of 17; January 13th.
18!
MR. MILLER:
Excuse me.
Might I consult?
19; (Pause.)
i 20l MR. MILLER:
Judge Grossman, I believe.that the 21 NRC inspector attached to Region III has come and looked at 221 underlying data from time to time.
That data has been l
l l
23 available through the discovery process since it was 24 generated.
Some of it has been X-stamped for probably
()
25 years, so I don't think there was anything that was held ACE-FEDERAL REPORTERS,-INC.
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back.
So I don't think there was anything that was held 2
back.
3 MR. GUILD:
Judge, the problem goes back to 1982, 4
so I'm sure that there has been stuff that's been X-stamped 5
for years.
My problem is that I'm told that there have been 6
documents on the Braidwood site that I can expect.
7l I sent out a request on the 13th of December 8
asking for copies of dockets to be provided.
I've hea rd 9
nothing from the licensee for almost a month.
I called on 10 the 10th of December and asked where are the documents.
11 They say, Well,-they'll be reproduced and up here a week 12 from now.
(v~}
13 l Well, a week from now was last week.
And I to you ' hat I've been doing other things since 14 represent t
15 1 then.
16 JUDGE GROSSMAN:
Mr. Miller,_when will those 17 documents be made available?
18 MR. MILLER:
Your Honor, I think Mr. Guild has 19 now switched from 8205 documents to P cap documents, I i
20,
- believe, l
21 MR. GUILD:
If we' re referring to the same 22 documents, Mike, which you said.that have been available at 23 the site and available for inspection for years, I'm asking 24 where are the documents that I asked for that were on this
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- 25 corrective action program, in writing, on the 13th of ACE-FEDERAL REPORTERS, INC.
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December?
2 JUDGE GROSSMAN:
Without going any further into 3
this, I believe you've indicated that whatever you had in 4
the nature of what was discussed now will be made available 5
to Mr. Guild.
6 MR. MILLER:
To my knowledge, it has been made 7
available.
8 I should also add, since we're talking about 9
courtesy, that we really have, in my judgment, literally 10 gono the extra mile in terms of p'roviding transportation'for 11 Mr. Guild to the site, and otherwise accommodating him.
12 This has not been an acrymonious type of situation between
(])
13l counsel.
14f It is for that reason that claims of sharp 15 practice and, frankly, discourtesy, really come as a very i
16!
unwelcome surprise.
It is not as if things have been done 17 by the applicant which are underhanded, or which smack of 18j doing things of f the record that somehow work to the 19 prej udice of another party.
20i I think that all counsel in these proceedings and I
21 the Board have had experience with Mr. Gallo.
He is an i
22 extremely direct and forthright individual.
And he 23 announced both to Mr. Treby -- p'erhaps it was one of 24 Mr. Treby's colleagues -- and Mr. Guild at the conclusion of
( ()
25 the scheduled discussions on December 6th that there was no l
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schedule.
That was as plain as it can be.
He repeated that
{
2 to'Mr. Guild in response to a question, and Mr. Guild, I 3
think we all recall, was a little bit uneasy about the fact 4
that technically we were operating in derogation of the 5
Board's Order which had set the schedule.
i 6
Mr. Guild, sharing that uneasiness perhaps, asked 7
Mr. Gallo again in a deposition on the 18th.
And Mr. Gallo 8
again directly told him there is no schedule.
Now, I do not 9
regard the public filing on the record and accommodation of 10 request for extensions that were decided on at the 11 discretion of both parties as smacking of sharp practice or 12 discourtesy.
And I suggest the bottom line is that I don't 13 believe sanctions are appropriate at all.
14 I would urge the Board not to entertain the 15 intervenor's motion.
16 JUDGE GROSSMAN:
Mr. Guild, did you have i
I 17 I something further?
18 MR. GUILD:
I only want to close by saying that I 19 do think that all counsel have behaved properly generally in 20 this litigation, and I don't think it has been acrymonious.
21 That'perhaps in a nutshell is why it was so damaging and so 22 untoward for the events that were recited.
23
-Mr Gallo certainly never left me -- if he said 24 there's no agreement, he said it in a paragraph that said O
25 set we'11 rea117 work to Get one and we 11 de eack in to ch I
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next week.
\\_.)
2 I was left with the complete understanding of 3
what I represented to the Commission, and it was just a 4
matter of another phonecall to work out what we had.
5 I want to return to the-days of yesteryear, 6
Mr. Chairman, and hope that the Board will provide me some 7I assistance in getting all the lawyers back where we were
'8 before December.
I JUDGE GROSSMAN:
We'll take a five-minute 9
10 recess.
ll i (Recess.)
12 JUDGE GROSSMAN:
We're back in session.
~( )
13 The Board will rule on the matters before it.
-14 with regard to sanctions, we'll deny sanctions.
15 However, we do note that there was a departure from the 16i amicable relationship that existed prior to this matter 17!
arising and we would encourage the parties to return to it,-
18 whether or not what was apparently understood by all the 19 parties could be characterized as an agreement.
20 The next time around, of course, we'll look a 21 little more carefully at whether there was an actual 22 violation of the agreement.
Hopefully, that won' t occur.
23 We are setting a schedule now, the bottom line 24 being that we're aiming for the hearing to commence on
(
25 May 6th, with two weeks of hearing then, one. week off, and ACE-FEDUR AL REPORTERS, INC.
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then a return to hearings the week of May 19th.
There won't 2
be hearings because there are scheduling difficulties.
3 In arriving at that date, we did take into 4
account a tentative agreement, at least within a range, by 5
.the parties and we have weighe'd into that the fact that 6
there were the early motions for summary disposition, which 7
should ease the schedule somewhat.
8' And on the other hand, there was a Commission 9
action-which impacted on the schedule.
And we also took 10 into account -the fact that we don' t want a fragmented case 11 put.on by staff, as it appears it might be if we were to set 12 an earlier date.
(}
13 i Now, leading up to'the May 6th date, we have had-14 the last filings.for interrogatories, so there are no more 15 that will be permitted.
16 The deadline for answering these interrogatories 17 will be as the parties agreed, February 7th.
The deadline 18 for filing answers to the motions for a summary disposition 19 will be set for February 18th.
That will give the i
20l intervenor some time to respond to those voluminous 21 motions.
22 The deadline for the identification of all the QA
, 23 witnesses is set for February 28th, which is 10 days after 24 the answers to the motions for summary disposition, which
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25 ought to focus the parties' attention on the needs.for ACE-FEDERAL REPORTERS, INC.
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hearing.
2 The parties will then have until. March 17th to 3
conclude their depositions, that being two and a half weeks 4
after the identification of the witnesses.
The target date 5
for the Board ruling on summary disposition would be
'6 March 28th.
The applicant's deadline for filing direct' 7
testimony is set for April llth.
And.that of the staff and 8
intervenors for April 18th.
9 Mr. Miller, is there any problem with that?
10 I assume there is no objection to your having 11 your prefiled testimony in a week' earlier than the other 12 parties.
O 13r an a ' tea:
3=a e oco e ea, it eee to me thee c
i 14l the suggestion of sequential filing was made by Mr. Treby in' 15 response to his own perceived need of having the additional 16 week.
We now have a period of time that I think is two 17 weeks beyond the date that he said he needed.
I 18' Once again, the intervenor has not identified any l
'19l witnesses.
I would'strongly urge that there be simultaneous 20j filings, as is the custom ordinarily in these proceedings, 21 and that the additional week at least be used to back up the 22 date for the start of the hearings by seven days.
23 MR. TREBY:
.Mr. Chairman, the staff asked for 24 sequential filings not because we needed additional time to O
G 25 file our direct testimony, but because we thoug ht it would i
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be helpful to see the applicant's method of presentation so 2
that we could have our presentation in some ways match up.
3 JUDGE GROSSMAN:
I agree with that.
I think it 4
would focus everything better to have that done and cut 5
hearing time by having that done.
Applicant is going to 6
have to prepare its full case in any event.
So this would 7i obviate the necessity for staff preparing a duplication of I
8' some of applicant's case to.the extent that it agrees with 9
applicant's position.
10 l MR. GALLO:
One footnote, Judge Grossman, if I 11 could interject.
Since the staff and the intervenors will 12 have a week essentially to place rebuttal type testimony in 13,
their direct testimony, that we be given the opportunity 14 during the course of the hearings to file rebuttal testimony i
15 +
against that testimony.
16 JUDGE GROSSMAN:
You certainly are entitled to i
17 i rebuttal, and I don't see how it would create any additional I
18l problem.
It gives them some extra time with regard to 19 preparing their case, but they would in any event be putting 20i their cases on before you have to resort to your rebuttal 21 testimony.
22l I think, if you think about it, you will see that 23l you are not prejudiced except to the extent that you have i
24 seven less days to prepare your case.
(]
25 In any event, we would then have April 28th for ACE-FEDERAL REPORTERS, INC.
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motions to strike testimony.
2 That completes the scheduling that we have.
We 3
have not set a deadline for requests for admissions.
We 4
would allow additions notwithstanding discovery being 5
completed.
6 However, we would expect that there is not going l
7l to be some wholesale dumping of requests on any party at the 8
time the parties are preparing for the hearing that might 9
necessitate rescheduling the hearing.
10 So that we would urge that only appropriate 11 requests for admissions be served and not any extraneous 12 ones that are only going to waste time.
O 13l MR. M1ctER=
Judoe Grossman, is it the 8eerd -
14 con'templation that we would resume, it would probably'be May 15 27th.
May 26th is Memorial Day.
And that we would then run 16 continuously until the hearings are concluded?
17 JUDGE GROSSMAN:
I was expecting that it would be 18 over that week.
No.
We will attempt to run continuously.
19 We have some other matters that could occupy us on the first 20' week of June, but I will discuss this with my Board members 21 and I think that we will have to make some sacrifices to 22 this Board hearing instead.
23 So we're contemplating running continuously other 24 than the one week I mentioned.
25)
MR. MILLER:
Thank you.
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JUDGE GROSSMAN:
Mr. Guild.
2 MR. GUILD:
The applicant's proposal takes us 3
beyond the hearing start date.
In discussions among the 4
parties, we decided it might be wiser to wait until down the 5
road to see what the exact sequence should be.
6 I only note that applicant's proposal does not 7
include a reply opportunity for intervenors.
There's no 8
response by intervenors to what the NRC staff files, however 9,
you want to characterize it.
I i
10 I think through some device intervenors ought to 11 be able to comment on staff's position to the extent staff i
12 is supporting licensee,.which I expect they may.
13 In any event, I would simply urge the Board to
(}
14 not take up that issue at this point and to deal with post-15 hearings matters closer'to the hearing date.
16 JUDGE GROSSMAN:
We don't intend to take it up at l
17 f this po' int, but I would certainly expect that every party 18 I would have the right to reply to the initial briefing of I
I 19l another party.
20!
MR. GALLO:
Judge Grossman, could I just speak l
21 two sentences to that?
We attempted to negotiate i
22l simultaneous filing of findings of. fact, with everyone i
23 '
having reply rights with the parties.
We were 24 unsuccessful.
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25 Thoroforo,'wo reverted to the rule.
The NRC l
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rule does not permit intervenors to reply-to the staff's
'Y]J 2
findings.
The sequence is:
applicant, et cetera, et 3
cetera, final reply from the applicant.
4 JUDGE GROSSMAN:
I will have to refer back to the 5
rules before we go further.into the matter.
Thank you for 6
informing me of that, Mr. Gallo.
7 I take it there is no further business and we can 8!
conclude the prehearing conference.
9 MR. MILLER:
Your Honor, there is one further 10 matter.
I have scheduled certain depositions to take place 11 the rest of this week.
I have cancelled all of them prior 12 to today, including today, so that we might resolve this, O
13 9"e=tio" e ao~ re o"<cee are going to be allocated to this 14' hearing by the intervenors; because it seems to me that that 15j is the issue at hand.
16i Mr. Guild had told me repeatedly --
i 17 MR. GUILD:
I'll make it short, Mr. Miller.
I'll 18, be at the depositions if you reschedule them, if the date 19 for sumniary disposition has changed..
20:
JUDGE GROSSMAN:
Thank you.
The hearing has l
21 concluded.
22 (Whereupon, at 4:55 p.m.,
the hearing was 23l concluded.)
25
-l ACE-FEDERAL REPORTERS, INC..
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CERTIFICATE OF OFFICIAL REPORTER O
This is to certify that the attached proceedings - before the UNITED STATES NUCLEAR REGULATORY COMMISSION' in the matter of:
NAME OF PROCEEDING: COMMONWEALTH EDISON COMPANY (Braidwood Station, Units 1 and 2) i i
J DOCKET NO.:
50-456, 50-457 PLACE:-
BETHESDA, MARYLAND DATE:
MONDAY, JANUARY 27, 1986 were held as herein appears, and.that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
(sigt) /
(TYPED)
DAVID L.
HOFFMAN Official Reporter ACE-FEDFRAL REPQRTERS, INC.*
f Reporter s Affillation 1
i- 0 1
1 3
3
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