ML20205Q629
| ML20205Q629 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/02/1988 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#488-7508 OL, NUDOCS 8811090300 | |
| Download: ML20205Q629 (124) | |
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1 i UNITED STATES )
l O NUCLEAR REGULATORY COMMISSION l 1
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1 UllITED STATES 11UCLEAR REGULATORY COMMISSIOt1 i !
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ATOMIC SAFETY A11D LICENSIl1G BOARD '
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I l l In the Matter of ) l 1 ) Docket Nos, l
l PUBLIC SERVICE COMPANY OF ) 50-443-OL :
l NEW HAMPSHIRE, et al., ) 50-444-OL !
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) OFF-SITE EMERGENCY
! (SEABROOK STATION, UNITS 1 AND 2) ) PLAllNING STATUS CONFERE!1CE O
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) Page9: 14,737 through 14858 1
l Place: Bethesda, Maryland l
Date: November 2, 1988
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./o\' 0\ HERITAGE REPORTWG CORPORATION o m ,t e w r .
i 2st,sema.N.W ,S dsett I O WesMmeson, D.C. 30005 l
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e , co 14737 UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFOTY AND LICENSillG BOARO I
In the Matter oft )
) Docket Nos. j PUBLIC SERVICE COMPANY OF ) 50-443-OL llEW RANPSilIRE, et al., ) 50-444-OL :
) OFF-SITE EMERGENCY '
(SEADROOK STATION, UNITS 1 AND 2) ) PLANNING STATUS CONFEREtiCE Wednesday, flovember 2, 1988 Room 458 4350 East West liighway Bethesda, Maryland The above-entitled matter came on for hearing, pursuant to notice, at 2:04 p.m.
O DEFORE: JUDGE IVAll W. SMITH, CHAIRMAN Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 JUDGE JERRY llARBOUR, MEMBER Atomic Safety and Licensing Board U.S. Nuclear Regulatory Ccmmission Washington, D.C. 20555 JUDGE GUSTAVE A. LIllEllDERGER, JR., HEMDER Atomic Safety ond Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 lieritage Reporting Corporation (202) 628-4888 O .
- 14738 l
APPEARA? ICES :
For the Applicant:
TilOMAS G. DIGNAN, JR., ESQ.
JEFFREY P. TROUT, ESO.
Ropen & Gray j 225 Franklin Street Boston, MA 02110 For the NRC.itaff
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SHERWIN E. TURK, ESQ. I EDWARD REIS, ESQ.
ELAINE CllAN, ESQ.
Office of General Counsel
- U.S. Nuclear Regulatory Commission Washington, DC 20555 For the Fodoral Enorgy Manaqoment Acornys ,
H. JOSEPil FLYNN, ESQ.
Federal Emergency Management Agency 500 C Street, N.W.
Washington, DC 20472 For the Commonwealth of Massachusetts:
O aoti" c Ta^r'ce:'re One Ashburton Place eso- l i
19th Floor i Boston, Massachusetts 02108 l l
Iloritago Roporting Corporation (202) 628-4888
l 14739 r 1 PROCEEDINGS
() 2 2:04 p.m.
3 JUDGE SMITH: We're on the record now. This 4 conference was requested by Mr. Traficonto and we're taking ;
5 advantage of it to try to have a general discovery 6 conference. Mr. Traficonto has agreed to take the 7 responsibility of reprocenting in general, I understand, the 8 intervonors' position on these various issues, but not in i t
9 particular of course. Mr. Tre <nte? l j 10 MR. TRAFICONTE: Thank you, your Honor, and thank 11 you for scheduling this as promptly as you have. I have 12 requested this to handle three motions that Mass A.G. has ,
13 either filed on its own behalf, on its own behalf, or with l 14 other joint intervenors. They are the Mo' ion for an I 15 Extension of the Discovery Period, and separate motions to
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l 16 extend the time in which to file responses to the NRC's ,
i 17 draft first set of discovery requests, as well as an 1
18 extoncion of time to respond to the Applicant's dual set of 19 requests, interrogatories running from contentions 1
) 20 through 63.
l 21 In addition, the other matter that I know that 22 Mr. Flyr.n and I would Itke to have addressed, is a discovery i !
l 23 dispute that's arisen around a document request that Mass AG :
i 24 has served on FEMA, and its relationship to the deposition !
l 25 presently scheduled of Mr. Dono"an of FEMA for November 9th. l i
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.l 14740 1 JUDGE SMITil Well we have all of those pleadings
() 2 before us, although I cannot say that we have mastered them 3 all but they're here and we're prepared to begin discussing 4 them.
5 The first one I have here is the joint 6 intervonor's motion of October 25th. I guess that is pretty 7 much subsumed by your follow-up motion on the next day, 8 isn't it?
9 MR. TRAFICONTE: I would like to proceed and part 10 of it is just the difficulty of the foreign format. But I 11 would offer this objection. I have my say to say, and I'd 12 like to say it and then I will treat each of the motions 13 separately. Most of what I have to say really runs to the 14 three motions to extend time.
() 15 I would like to just be able to put my position on 16 the record, and then follow to the extent necessary, after 17 others have stated their say. Obviously we're having some 10 problem in not being able to be in persori on this, but I 19 don't know how else we could proceed.
20 I would -- I'd like to present our case, if you 21 will, on the three motions at the outset, reserving until 22 lator in the conference call stating our position on the 23 FEMA discovery.
24 JUDGE SMITH: All right go ahead, Mr. Traficonto.
25 MR. TRAFICONTE: All right.
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14741 1 MR. DIGNAN: Your Honor this kind of thing --
() 2 before we start, why are we getting the case, quote unquote, 3 presented for the first time instead of in the motion?
4 There was a motion made and the answer followed. Now if he 5 wishes and the Board wishes to grant him a rebuttal to my 6 answer, that's one thing.
7 Dut I don't understand this practice that we file 8 a motion, get a look at the opposition's views, I guess, and I
9 then we present the real motion on a real argument.
1 10 MR. TRAFICONTE Well, there's no --
I 11 JUDGE SMITH: All right, Mr. Dignan, the Board --
)
i 12 to the extent that we've reviewed the general subject metter
< 13 of discovery scheduling, we're reminded that this is a l
14 perennial problem that boards have, and that is we don't, j
(} 15 know very much about the dispute that we're c311ed upon to i 16 decido. We don't really know a lot about it.
] 17 Ropes and Gray'a, the applicant's rer.ponse to a
] 18 these motions, is pretty much as I understand it to the 1
- 19 effect well look, we agreed upon November 15.h. You have t
20 misstated the Board's ruling. Let's stick to November 15th
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21 and you ought to know what your case is about anyway, and 22 that's about all we got from your papers, and there has not
.l I 23 been any real explanation to the Board as to what the actual 1
24 discovery needs are.
25 MR. DIGNAN: Well, there's more to my response Neritage Reporting Corporation (202) 628-4888 O
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l 14742 l
l 1 than that, I hope your Honor.
() 2 JUDGE SMITH: Well, that's kind of my memory.
3 MR. DIGNAN: An argument from the State Attorney 4 General
- office that they haven't got enough manpower. '
5 JUDGE SMITH: Well, I remember that ton, right.
t 6 MR. DIGNAN: Which is the only reason you were '
7 given for granting the motion and the motion to file. The i
0 unly one. -
9 MR. TRAFICONTE: Well already I take it my 10 suggestion about me going first has been set aside. ,
11 (laughter) 12 JUDGE SMITH: Go ahead Mr. Traficonto.
13 MR. TRAFICONTE: I -- if I could get -- I'm not c 14 getting in to make now arguments. Actually what I intended ,
() 15 to do was simply hit the high point, and set the context, to f 16 try to make the context clearer so that the Board can >
17 decido, you know, however it is going to decido. [
t 18 JUDGE SMITH: Well, Mr. Dignan --
i 19 MR. TRAFIC0HTE: If you're prepared to decide on ,
i 20 the basis of the pleadings, you know, we can live with that.
21 I do think it would be helpful to discuss the situation that 22 has prompted the filing of these motions. !
23 JUDGE SMITH: All right. Mr. Dignan, if you want 24 us to rule on the pleadings, we will consider that, but f t
25 again the Board just does not know enough about the i
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14743 1 discovery needs and discovery prchlems that the parties have
() 2 to really make a ruling other than what might be just an 3 arbitrary ruling, give some time or not give time.
4 We hope that this would ta, this conference would 5 be in the nature of perhaps negotiations and Board 6 assistance in working these problems out. Let me begin -- I i l
7 might save you some trouble, Mr. Traficonte.
- 0 I don't think that the Massachusetts Attorney
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, 9 General's handling of what the Board's rulings were on the i 4 10 close of discovery was as careful as it should have been. I l r
11 don't think that there is any real dispute that the Board l L
12 had indicated its intention that discovery would close on 13 November 15th. !
) 14 I think that the session that Ms. Sneider relied F 15 upon in the transcript clearly indicated that we were
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16 talking about the possibility of having the discovery on an j 17 exercise closing and Mr. Dignan clarified then that he was 18 talking about a discovery request being out.
19 Dut our memorandum and order. If anybody !
20 understands the clear language there, said discovery would 1
21 close on November 15th and I'd appreciate it if you might i 22 convey to Ms. Sneider our request that she be very careful i 23 in observing the Board's time in chasing those things down f i
24 like that. [
25 MR. TRAPICONTE: Well, I will do that, your Honor, i
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f 14744 1 and I will for the record state that I have reviewed -- I
() 2 reviewed this motion before it was filed, but I will convey 3 your sentiments to her.
4 JUDGE SMITil Well, I would like for you to go 5 back and look at these papers snd see if you can really 6 stand by them, you know.
7 MR. TRAFICONTE: That I did not do. I personally i
8 did not do. ,
L 9 JUDGE SMITit: Well, I don't think that you would ;
10 support the argument if you really analyze those papers. l 11 MR. TRAFICONTE: Right. I did not go back and i 12 read the transcript, but I certainly read the pleading, but [
, l l 13 I will convey that to Ms. Sneider.
l 14 Let me begin, and I think I can be very brief. I l 15 hope I can be. The primary reason why we are at this
(]} j i 16 juncture and seeking additional time, the primary reason has (
l 17 to do with what we had labeled defensive discovery, running ;
j 10 to the State, running to the Commonwealth, from both the .
! 19 applicants and the rtaff, having to le with resources and :
l 2C procedures and plans that tlie Commonwealth has generated ;
21 with regard to both radiological and non-radiological '
i i 22 emergencies within the Seabrook Emergency Zone as well as i :
4 23 outside that Zone, both in the past and currently. i 24 The short answer to our problem is that in order l 9
25 to respond adequately to the discovery that we have ,
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1 14745 1 received, it has required us to contact -- to date it has t
() 2 requirod us to contact eight agencies that in the normal 3 course the AG's offico does not represent and certainly has 4 not been representing in this proceeding.
5 We had to contact the agencies. We had to alert 6 them to the scopo of the discovery. We've had to direct 7 their attention to their documents. We are now in the last 8 two weeks seeking from the Executive Branch of the 9 Commonwealth, we are reeking and I think we have now i
10 achieved the appointment on a temporary basis of two 11 individuals who are not lawyers who would be helpir.g the 12 AG's offico coordinato the vatious agency discovery
- 13 response.
14 This has simply been an undertaking that the Maes
(} 15 AG's office was not aware of the scope and the time and the 16 resources that wore 9o1.69 to be necessary of this in a wt' 17 that really does service to this case, and on that point /.
I la would just for the record want to indicate that our view in l '> that those motorials are relevant.
1 a
20 We are not -- we have not objected on the grounds 21 that these materials are not relevant, al though we have 22 sought, both irt negotiation with the applicants and the 23 staff, wo have sought some limitations on scope, 24 limitations, for example, ir; terms of the time f ramo for 25 document search, limitations in part on the location of Ilaritago Heporting Corporation (202) 628-4808
h 14746 L i
1 resources.
() 2 For example, we don't believe that resources on 3 the border of New York are necessarily relevant. But 4 generally and I don't think there's going to be much disputa 5 on this point, generally the position of the Hans AG's ;
I 6 office is that the discovery that we have can be understood 1
7 generally under the heading of ad bnc State response, what I
8 we would do or ccild do in the event of an emcrgency, in ,
9 light of our resources and pre-existing procedures. l r
10 Under that general heading, we had net said that 11 this material is not relevant. In fact, we think it is l 12 relevant, and wc think that a careful reading of the new .
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! 13 rule that we're all living with would indicate that the j 14 determination of the adequacy of a utility plan calls upon
() 15 the NRC to review the adequacy of that plan in combination with the expected State and local governmental resp?nse, and 16 1
l 17 we believe to do that, and I don't think that really there's 10 much dispute about this, to do that requires a reviev, of ;
la some fashion, of the very materials that we are gathering in i 20 light of the discovery that's served on us. !
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21 Now the second point 1 sould make is beyond the i L
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- 22 scopu of what's involved here. The second point I would !
I 23 make -- I would call careful attention to the dat.es on i
24 which, or starting with which, this discovery was served on i i
25 us, and just briefly would like to mention that the -- what f i
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i 14747 1 wo believe is the key discovery that has caused the delay or
() 2 for reasons, the key discovery that's causing us to seek 3 extensions of time, involves the applicant's first set of 4 discovery that was served on us on September 23rd -- strike
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5 that -- on August 31st, to which we began gathering 6 materials already in September, and then by September 23rd, 7 I personally had already contacted I believe four or five 8 agencies and made contacts with officials of those ager.cles 9 and began the discovery process.
10 Following upon the applicant's first set of 4
! 11 discovery, was a second set served on Oc?ober 14th, just i
12 about ten days ago or two weeks ago, and that second set a 13 which we have not responded to as yet is a document request i
] 14 which again gets into this general heading of seeking after 1
() 15 the ad hoc capabilities of the State, and is going to 16 require quite a bit of time in order to adequately respond
, 17 to it, j
18 JUDGE SMITH: Excuse me. May I interrupt you?
19 MR. TRATICONTE: Yes.
20 JUDGE SMITH: I was under the impression that the
! 21 second set followed on the first set, and was better -- was j 22 addressed or was better specified to cc ent i.o n s .
- 23 MR. TRAFICONTE
- Let me clacif e wc're clear, 24 because there is some ambiguity when I use the phrase second 25 set and first set. The applicants served on us a first set Heritago Reporting Corporation (202) 628-4888
b; 14748
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1 of interrogatories on August 31st, and we did object to some r'
(,s/ 2 of those questions, but we began the process, upon receipt 3 of that request, we began the process and to be 4 i>vertechnical'it was in response to the request number 4'in
'5 the applicant's first set of' interrogatories, and the 6 process of contacting agencies --
7 JUDGE SMIT!!: Would you characterize that?
8 MR. TPAFICONTE: Sure. I have it in front of me.
9 The fourth request in the very first set of document 10 requests put to us asked us to identify 'nd produce all 11 documents generated after January 1, 1980, that reflect or 12 refer to any emergency planning (other than that engaged in 13 by applicant) drafted or contemplated for the Massachusetts 14 ETZ, and then it goes on to indicate the planning documents 15 that they're seeking for this eight-year period is both
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16 radiological and non-radiological.
17 We objected in part, in terms of scope, but we did 18 begin the process of contacting agencies and having tb^.6 19 begin searching through their records for a response. That 20 document is what 7. laboled -- that, request comes out of the 21 first request for documents.
22 Now when I a minuto ago referred to the 23 applicant's second request, I am not talking about the dual 24 set of interrogatories that proceed contention by contention 25 asking us to set forth those facts and that evidence that wo Horitage Reporting Corporation (202) 628-4888
14749 1- have in support'of those contentions. I'm not talking'about 2 that dual set.
3 Instead, I am talking about another document, 4 filed on October 14th, and it's headed Applicant's Second 5 Request for Production of Documents, and it's fairly brief ,
6 in pages. But there are three requesta for production in 7 this-second request tnat themselves require, of course, that >
8 we transmit these downstream to the agencies that we are now 9 representing for the' purposes of this proceeding, and they 10 began of course gathe: ring and collecting the documents that
-11 are caught by the separate request.
-12 Now that's just, for the sake of completeness, 13 that is as we see it, is on the applicant's side of the 14 ledger. Now on the staff side of the ledger, we have, I 15 believe, a more extensive set of discovery. The'first set
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16 was filed on September 6th and the second -- strike that --
17 the third set was filed on October 6th, and I'm not going to 18 belabor the point by reading-any portion of either of those 19 requests. In our pleading we already set forth in a-20 footnote a sample.
But I don't think there's any dispute that the i 21
- 22 scope here, even after it's been limited by negotiation with 23 the staff, the scope of the task that we are presented with, l 24 in torms of fair and complete response, is quite enormous, 25 and we're engaged in it. We are engaged in it.
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14750 1 I bring all this up because although the discovery ;
() 2 period may have opened or may have been open since August, 3 the fact ~of the matter is that it is not really until mid-4 September, and then with regard to the staff's material, i 5 late September and into October, that the requests are put ,
6 to us that have prompted our, if you will, mareha? , che 7 agencies and contact people with those agencies to proceed 8 with the document gathering. ,
9 Now a third point I would make, beyond the scope 1
10 and the timing, is simply to reinforce the responsibility 11 that we have, the AG has. We cannot simply gather these 12 documents and turn them over in a wholesale fashion to the 13 other sido. Our view of this process is that of course we 3
14 must review these documents.
15 We want to review them to make sur, they're
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16 responsive. We want to review them for attorney-client 17 material. We want to review them for any other documents 18 that we would want to claim privilege on, and the problem -- ;
19 now we're just talking physical resource problems. The 20 process of document gathering from eight agencies that are I 21 located in differant physical locations, the gathering of 22 these documents and the review of these documents by an I
23 attorney who is familiar enough with the case to make l 24 judgments, intelligent judgments about them, is not an easy 25 matter.
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14751 1 1
1 It's a task that back in August when we last sat
() 2 down'together and tried to work out a discovery schedule, 3 it's a task that was not on any of our minds. It certainly 4 was not on mine. I don't believe it was on anyone else's.
5 And the scope of that task, in terms of it drawing resources 6 away from our capacity to conduct both our offenolve
-7 discovery as well as the other matters that as we all know 8 have been proceeding apace, including the exercise and now 9 the applicant's summary disposition motion on the legal 3
10 issues.
11 The loss of resources to the defensive discovery 12 has simply put us in a situation where we need additional 13 time to complete a process that we hoped very much to 14 complete by November 15th.
r 15 Now I just -- I want to conclude that thought, if
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16 you will, the points that have led us to this juncture. I !
17 want to conclude that simply with a little perspective on c
18 what's involved. We are here engaged in a fairly massive 19 litigation. When it's taken the term and it's gottan itself l t
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20 very heavily involved in the state resources, state 21 procedures, state personnel, etcetera, we're talking about a 22 lot of material and if we step back for a moment and get 23 some perspective on it, we're really right now looking at --
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- 24 we've been at this for probably six to seven weeks.
j 25 Six to seven weeks is not a long time for l
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1 conducting in an efficient way the kind of inquiry that l I) 2 we're making here, that I believe is legally relevant to.the 3 issues at hand. So I would say that, you know, seen from a 4 distance this is -- the kind of extension that we're seeking l
5 is not unreasonable.
6 But I'm almost done, so please everybody be 7 patient. I want to just make some very quick points in 8 response to the applicant's argument that this is a matter 9 of the Mass AG simply hiring more people. We have. We are.
10 We are going to hire more lawyers. We have a lawyer who is J
11 going to be beginning on November 14th. We're hiring that 12 lawyer for the very reasons that the applicant has indicated 13 that we should.
14 We agree. But lawyers are not walking down the 15 street in such a way that you can reach out, haul them in by
] (])
- 16 the neck and say hero you are. You're now working on the 17 Seabrook case. There's a time frame for the notification 1 18 and the evaluation and the interviewing, and we are hiring.
! 19 We may well be hiring another lawyer, two lawyers fairly i
- 20 shortly. So we're responding even on that very practical
, 21 scalo.
1 22 Secondly, we have as I mentioned, we have ten days l 23 ago, two wooks ago, wo have contacted officials in the 24 executive branch. We have called their attention. The 25 problem of the scope of this discovery, and our particular i
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1 problem of course, which is we don't represent these n
'g_). 2 agencies in the normal course, and we have sought to have-3 and are going to have two individuals appointed on a 4 temporary basis to work full-time helping the Mass AG's 5 office coordinate the discovery and response on the part of f 6 these eight agencies. This is something that we believe we 7 need, and again I think it's responsive to some of the 8 concerns that Mr. Dignan has raised.
1 9 The last point, and I want to just reinforce this.
10 We-have hired a lawyer who is on staff here who has been j 4
11 doing nothing other than this since approximately mid-12 . September. Now she's been doing it under my guidance, and j 13 with my help, so I would not say that it's only been one !
' f j 14 lawyer. It's been perhaps a lawyer and a third or a lawyer l 1 L 15 and maybe a half, although I reviewed the last three months I
(]) L l 16 and personally I think that I can't'perhaps say it's been a 17 full halflaf my time, but it's certainly been a substantial l t
18 part of my time, as I know Mr'. Turk can testify to. I have !
l i t 19 been involved in some portion of my time in the discovery, -
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- 20 as has Ms. Sneider in part. l i 21 All of this is the context, in addition to what 22 I've already mentioned, which is the exercise aspect of the [
l 23 case has proceeded apace and as well we have -- we have done j 1
24 our damndest, if you'll excuse it. We've done our damndest i "
l 25 to get the discovery out that we can get out, to get the l
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t 14754 1 ~ depositions that we believe we need scheduled, and as the
() 2 applicant and I guess all the parties know, the result has 3 been that over the next two weeks we have depositions' 4 scheduled practically on a daily basis.
5 So, we want the time. We absolutely have to have 6 it if we're going te do an adequate job. We think an 7 adequate job is nothing less than what the regulations call 8 for, and on that basis and as I said at the outset I'd like 9 to reserve my comments on the separate issue of the FEMA 10 discovery, which in a way may come back to be relevant to 11 this whole matter of the extension. But I would like to 12 reserve, just for the sake of clarity, my comments on that.
13 Those are the reasons that we are seeking this 14 time, and we think some relief should be granted. Thank 15 you.
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16 JUDGE SMITH: Mr. Dignan?
17 MR. DIGNAN: Your Honor, it was a longer and more 18 detailed version, but it comes down to the Attorney General 19 of this Commonwealtn filed a whole bunch of contentions.
20 Our interrogatories average out, as we see it, to slightly 21 under two interrogatories per contention or basis.
22 This is a big tough fight, but there are big, 23 tough stakes out there also. The Board will recall that at 24 the pre-hearing conference in your usual gentle way, 25 Mr. Chairman, you were kind enough to refer to me as Heritago Reporting Corporation (202) 628-4888 O .
14755 ;
1 exhibiting frustration, perhaps improperly on a courtroom
() 2 and certainly not directed'at the Board, but nevertheless 3 frustration.
4 You will recall how strongly I felt that this 5 discovery deadline should be imposed, and we should get this l 6 case moving. I am delighted to hear that I don't have to 7 argue further that this preposterous idea that the 15th was 8 somo dato by which we should stop asking questions, not have ,
9 it in, and I want the deadline enforced.
10 I see no excuse for -- whatever the excuse is'when i
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11 the intervenor is an underfunded volunteer group, if the 12 Attorney General of the Commonwealth of Massachusetts has 13 elected, as I said in my pleading, to make Seabrook a cause I 14 celebre for his office, and that's okay, that's his 15 privilege, but he's got to pick the freight up, and to say
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16 that now he's going to start hiring the legal staff he needs i 17 is no excuse.
4 18 I'm sorry, I cannot agree to an extension of this 19 deadline, and I think the deadline should be enforced.
- 20 JUDGE SMIT!!
- llow do we enforce it, Mr. Dignen?
i 21 MR. DIGNAN: What you do is enforce it by saying
! 22 on the 15th discovery -- koop in mind. If you extend this
! 23 deadline, you also put us in the position where if we file l 24 summary disposition motions, the answer will be you can't 25 grant summary disposition under the rules becausu discovery l
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14756 1 is still open and we need more discovery before we can
() 2' answer.
3 So there's no. question that this is going to be 4 real. delay down the line.
< 5 JUDGE SMITil I don't question that.
6 MR. DIGNAN: All right. The way to enforce it is 7 you put the deadline down and do the best they can to answer 8 it, and they take the penalties to the extent they don't 9 answer it.
10 JUDGE SMITil: All right now, is that satisfactory 11 to you?
12 MR. DIGNANt Yes.
13 JUDGE SMITil Now some of this discovery is 14 necessary, I understand it, for your affirmative case-in-Q 15 chief.
16 MR. DIGNAN: The discovery -- no, not all of it is 17 necessary for a proper case-in-chief.
18 JUDGE SMITH: Now, let's talk about dividing it 19 up.
20 MP. DIGNAN: If you have an answer as of the 15th, 21 I intend to use that through every benefit I have which is -
4 22 - includes summary disposition. If they haven't got the --
23 I'm not going to allow them to keep this evidence hidden, 24 and then use it on me later. I'm going to ask you to 25 enforce the rules of discovery in the normal way, which is tieritage Reporting Corporation (202) 628-4888 O .
14757 1 if they didn't produce it in discovery, they don't get to
() 2 use it in the trial.
3 JUDGE SMITH: Now that's no problem. That's no 4 problem. That is type of -- we can set a discovery deadline 5 which we think la possible, and impose sanctions if they 6 don't meet it. There's a larger area of sanctions that we 7 could select. I have other ideas on how we might approach 8 that.
9 But your problem as I see is you have also, and I 10 can't point to any particular interrogatory or document 11 request, but you and Mr. Turk have requested documents that 12 will support your case-in-chief, and if you don't have them 13 and the Attorney General doesn't produce them, that doesn't 14 help you any.
() 15 MR. DIGNAN: Your Honor? Your Honor, no. I'm not 16 concerned with that. I don't need documents to support my 17 case-in-chief. A lot of this discovery is to back them into 18 a position so I can use it on cross-examination.
19 JUDGE SMITH: Okay. Now some of the discovery, 20 some of the discovery asked for, as I understand it, what 21 other type of emergency planning documents are there? What 22 resources are there, that type of thing.
23 MR. DIGNAN: Right.
r 24 JUDGE SMITH: And that is what you need for your 25 case. That is not what Mr. Traficonte needs for his case, lleritage Reporting Corporation (202) 628-4888 O .
14758 1 MR. DIGNAN: Well, what I need to know for legal
() 2 purposes is to do they exist and what are they if they do, 3 and if the answer is he doesn't produce them, he can't use 4 them at trial. -
5 JUDGE SMIT 31: No, he doesn't want to use any 6 document that shows that they have a nice radiological 7 emergency plan sitting on the shelf up there. He doesn't' 8 'want any, does he?
9 MR. DIGNAN: Well, if the' record's unclear on 10 that, no.
11 JUDGE SMITH: But you do. You would like to have 12 that document?
I 13 MR. DIGNAN: I can prove the existence of their l 14 plan without all these documents.
15 JUDGE SMITil: Is this true?
(])
j 16 MR. DIGNAN: Your lionor, 1 guess the answer --
17 JUDGE SMITil Well now, if this is true, 18 Mr. Dignan, maybe we can do something.
- 19 MR. DIGNAN
- But the answer is simple here from 20 the applicant's point of view, provided that it's understand 21 that the full range of sanctions will be available, I want i 22 the discovery cut off, and'1f that means that I'm going to i
23 be in a fight later when he tries to use something that he
- 24 didn't produce, I expect to be backed up on it.
25 But I don't know of any other way to do this, i
j j floritage Reporting Corporation (202) 628-4888
() .
1
14759 1 I've talked with my client. They understand.- But you see i
( ). 2 the problem-is if the State is allowed to simply sit there 3 and say well, we can't do it so you've got to extend time, 4 that's just terribly costly to us, and I would rather have 5 the discovery enforced. ' think with nights and weekends 6 and overything through the 15th they probably can produce 7 most of this stuff anyway.
8 JUDGI; SMITH: I would really like to pin down the ;
9 point that I'r Jaking, and then we'll come back to resources 10 and best effort on their part and all that.
11 I want. pin down exactly what your position is~ with ,
I l 12 respect to inforniation that they have that you want on 13 discovery, portaining to your case-in-chief, your burden.of 14 proof.
15 MR. DIGNAN: Very simply, that they should take
(])
16 whatever it takes to get it out by the 15th. To the extent i
17 they fail to do it, they're going to pay an expense for it.
l 18 JUDGE SMITH: Well, you're not answering my 19 question.
20 MR. DIGNAN: Well, your Honor, I'm really trying i
21 to address it. I take it your question basically is don't I i i
22 understand that I could lose by your enforcing the deadline? l 23 JUDGE SMITH: Yes, what is -- ,
t 24 MR. DIGNAN: I can only lose in my judgment, and :
25 my judgment may be wrong, if the Board's intent is to having i T Heritage Reporting Corporation j (202) 628-4888 l l
14760 1 put on the deadline then not enforcing it. But my
(,) 2 understanding from the Board is that the Board is perfectly 3 willing to put on a deadline and enforce it with the full.
4 range of sanctions including such sanctions as are necessary 5 at trial, and with that understanding, I still insist on my 6 position, fully aware that there may be some document out 7 there.that doesn't get produced that it may turn out might 8 have helped mo 1. iter.
9 MR. TRAFICONTE: Your lionor, could I just 10 interject one very brief point, and it's picking up on 11 something that Mr. Dignan said, and maybe he misunderstood 12 or maybe he's hearing what I've said so far in his own very 13 distinctive way.
14 We are not, and I want to emphasize that word, we
() 15 are not and have not been sitting on our hands with regard 16 to the discovery that the staff and the applicants have hit 17 us with, and you know, on that point we are not in a 18 position, and this is not the perspective of Shoreham or 19 anything else, where we have stonewalled in any regard, and 20 are now at the close of the period saying well, you know, 21 maybe you do have a right to the stuff and now give us 22 additional time to go out and begin to get it.
23 That is not what has happened, and if need be I 24 would invite, but I can't imagine a more wasteful exercise 23 where that's concerned -- I would invite a hearing on the lieritage Reporting Corporation (202) 628-4888 O .
14761 1 issue, if need be, of what process and what steps we've
() 2 taken and when we've taken them and who's taken them and 3 what we've been doing since the discovery was served on us.
4 I just want to make that absolutely clear. We are 5 not in our present circumstance because of inaction by this 6 office until a very recent date. We responded when we got 7 the discovery. We assigned an attorney full time. We 3
8 contacted the agencies. Our view is that the discovery and 9 the request is so broad and so inclusive that it's simply a 10 time-consuming process to gather the relevant materials.
! 11 JUDGE SMITil: Okay, I'm going to want to talk 12 about that yet. I want to talk about it, but not yet, okay?
l 13 MR. TRAFICONTE: All right.
14 JUDGE SMITil I still want to make sure that all
() 15 the parties understand the point that the applicant, at j 16 least, as a discovery in party, is willing to take whatever 17 discovery can be produced by the deadline that either exists 18 now or reset, and depend upon the sanctions that the Board 19 might impose in the event that new evidence is presented by 20 the Attorney General and the intervenor later on. Now 21 before we move on --
22 MR. DIGNAN: And any sanctions that might be 23 imposed if for some reason wo can satisfy the Board that the 24 attempt to produce by the deadline was not as good faith and 25 expeditious as it should have been.
lieritage Reporting Corporation (202) 628 47,88 O
14762 1 JUDGE SMITH: Right. Itowever, our problem'now is
() 2 really prospectively --
3 MR. DIGNAN: Your Honor --
4 JUDGE SMITH: And I want to hear from Mr. Turk.
5 MR. TURK: I have one cuestion about this latter 6 point before I go into my own presentation of our position.
7 As I understand normal rules, if the Massachusetts Attorney 0 General during trial or his pre-trial testimony, seeks to 9 put on a case which he has not disclosed in discovery, by 10 the time discovery has closed, that case should be precluded 11 from being presented.
12 JUDGE SMITH: Yes, Mr. Turk. I haven't reached 13 that point yet.
14 MR. TURK Right.
15 JUDGE SMITil: I mean I'm aware of that. There's
(])
16 many ways that we can sanction that. That is one of them.
17 That's one of them. Another way is to make them at the lost 18 day of discovery come forward with a complete absolute trial 19 brief by which they are bound early, to pin down their 20 position, not only by the presentation of evidence in thstr 21 possession, but by presentation of position depending upon 22 that evidence. That is one of the -- not sanctions, but one 23 of the remedies that we might consider.
24 MR. TURK: Yes.
l 25 JUDGE SMITH: But in the meantime, is it your lloritage Reporting Corporation (202) 628-4888 O ,
i
14763 1 position that you're willing to live with any discovery
() 2 deadline that is imposed and when the Commonwealth of 3 Massachusetts has made its best, strong effort to produce 4 evidence which may use in your case-in-chief, are you 5 willing to live with that situation?
6 MR. TURK: The case of the staff?
7 JUDGE SMITil: Yes. Now see you've asked a lot of 8 questions, what could you do, what would you do, what might L
9 you do, could not do with all these things, and that seems 10 to me to go not to the Attorney General's case-in-chief, but 11 to the preparation of the adversary parties' case.
12 MR. DIGNAN: Well, your lionor --
13 MR. TURK: Well, in our case your Honor the staff 14 probably would not be putting on witnesses as to what the
() 15 State actually would do. But again, we would use that 16 evidence to impeach or to use in cross-examination or orner 17 purposes.
18 JUDGE SMITil Is that the general purpose of your 19 many, many discovery interrogatories?
20 MR. TURK: As a general matter, yes.
21 JUDGE SMIT!!: All right. Then cannot we possible 22 satisfy this problem by requiring the Attorney General on a 23 date to be discussed to como out with a complete statement 24 of their case together with the evidence upon which they 25 rely.
IIeritage Iteporting Cu paration (202) 628-48bi
- l 14764 ;
s 1 MR. TURK: And a -production of that evidence.
D
.(,) 2 JUDGE SMITH: And a production of-the evidence.
3 MR. TURK: Yes. Your Honor, I'd like to address 4 the motions for extension also before you reach a final your 5 final ruling on --
6 JUDGE SMITH: Well, we're not. I just wanted to 7 establish that point that the only discovery matters that we 8 have to worry about now are as Mr. Traficonte called, it 9 anticipatory or defensive and not needed to construct your 10 case-in-chief. That simplifies our problem I think 11 somewhat, and I think we've established that, haven't we 12 gentlemen?
13 MR. DIGNAN: Well, I missed -- the answer is yes 14 from the applicant's point of view, your Honor.
15 JUDGE SMITH: Well, Mr. Traficonte, if you didn't
(])
16 understand it, let me restate.
17 MR. TRAPICONTE: Yes please.
18 JUDGE SMITH: I just wanted to establish that 19 we've arrived at the point in this conference now where the 20 discovering parties, the NRC staff and the applicant, that 21 is, are -- have satisfied their needs for any cace-in-chief 22 that they may put on.
23 MR. REIS: Your Honor, this is Edward Reis of ths 24 staff. There's another point in what they could do and in 25 unswering those questions. It must be presumed under the Heritago Reporting Corporation (202) 628-4888 9
14765 1 Commiesion's rules, as we read it, that we can then use the s
) 2 presumption that they could carry out t:1e utility plan if it 3 is an adequate plan.
4 If they're not going to complete, what the 5 resources they have are, if they presume thac they havo tho
- 6 resources with which to carry out that plan.
7 JUDGE SMITH: Well, I don't know that I agree with 8 you there, Mr. Reis.
9 MR. TRAFICONTE: Can I just respond to this point, 10 that point, your Honor. I didn't know Mr. Reis was on the 11 line, but I appreciate the point. I am trying to make it 12 clear that we are trying to answer this discovery, and I'll 13 again invite, if this is an issue in anyone's mind, I invite 14 inquiry in what procedures we're adopted to discover and I^l 15 determine answers to these questions.
V 16 JUDGE SMITH: Well, Mr. Traficonto, I want to take 17 these issues one at a time.
18 MR. TRAFICONTE: Well all right. But I --
19 JUDGE SMITH: And I promiso you wo will return to 20 the point of recesses and good reasonable discovery and 21 overything else. But I do want to establish, to take the 22 discovery we're arguing about.
23 MR. TRAFICONTE: Well that's fine. But I hear a 24 lot of talk about sanctions on them because they've not been 25 doing anything.
Ilaritago Reporting Corporation (202) 628-4886
14766 1 JUDGE SMITil: Well we can talk about sanctions in
)_ 2 the abstract, as a means to determine that if as the staff' 3 and applicant say that they're only concerned about meeting 4 your case.
5 MR. TRAFICONTE: Yes.
6 JUDGE SMITil Then maybe sanctions would be, if (
t 7 required, would be a remedy and we need not beat to death 8 any further discovery if they're satisfied that they know ,
t 9 your case, which I didn't read the discovery request to say 10 that, to mean that. I thought they were still trying to il come up with evidence that there is, there are plans and 12 mechanisms and resources which the Commonwealth would bring [
l 13 to play in an emergency as a part of the applicant's case-14 in-chief. I thought that was a major thrust of discovery
() 15 yet. !
16 MR. TRAFICONTE: I think that just is very careful 17 reading the discovery on its face, if that's the point of 18 that discovery.
19 JUDGE SMITil But it's up to Mr. Dignan to say 20 that he's going to forsake that objective and he's 21 satisfied. f 22 MR. TRAFICONTE: But everytime he says he'll 23 forsake it, he says as long as you sanction us and not 24 permit us to put any of it into evidence if we haven't been 25 able to get it to them by the 15th of November, f l
Heritage Hoporting Corporation (202) 628-4888 O .
.+
14767 1 JUDGE SMITH: If -- that's right.
) 2 MR. TRAFICONTE Well, I'd take that position'too' 3 if I were Mr. Dignan.
4 JUDGE SMITH: Well now let's take an example of an 5 item of svidence that might be sought, and I haven't read 6 the discovery request well enough to know if it's.a good' 7 . example or not. ;
8 But let's say that they're asking for some type of 9 statement that a particular agency has some of their 10 resources, and some of the procedures and whatever, that ;
11 they would be brought to play in a radiological emergency. i
-' I
- 12 I would have thought that that.information is ;
3, ,
13 being sought, at least in part by the applicant, to support 14 their burden of proving that the presumption should apply. f
(]) 15 Now you want to quarrol with me about burden of proving a [
t 16 presumption should apply, but for the purpose of evidence, I L i
i 17 would have thought that would have boon a part of your case- [
18 in-chief. [
19 I can also see that it is something that is going l
l 20 to moot the Attorney General's claim lator on that they had !
i 21 no resources and they had no procedures. But in the i 22 meantime that's a quastion of -- that's why I think that you t
t j 23 may need this information, 24 Soo, you say sanctions will do the* job. But how l 25 does sanctions do the job when the answer is a negative, a Horitago Reporting Corporation (202) 628-4888
14768 1 void of information? If the Attorney General comes up with
~
() 2 a case that says we don't have anything except the potential 3 for ad hoc, how do you meet that without the evidence you're 4 seeking? How can a sanction do that? How can we prevent 5 them from putting on a case to reflect that there is a void 6 of resources to respond, and a void of preparatjon~and 7 planning to respond? Mr. Dignan?
8 MR. DIGNAN: Well, your Honor --
9 JUDGE SMITH: Do you understand that point?
10 MR. DIGNAN I want you to know that I'm not sure 11 that the kind of question you're referring to has really ,
12 been asked, but more importantly an honest negative doesn't 13 worry me. I'm assuming the Attorney General's evidence, 14 when it's put on, will be honest and if the honest answer is 15 that an agency doesn't have something, assuming that's
(])
16 relevant, I'll get the same answer at trial.
17 The void answers aren't what worries me. What la worries me is the pro answers, and the other thing that's 19 worrying --
20 JUDGE SMITH: Givo me an example of the pro 21 answer.
22 MR. DIGNAN: It's this. It is one thing for them 23 to claim they need a lot of time to pull some documents 24 together, and I understand I may not get a document that I 25 can't use. But there's no excuse for not answering the Horitago Hoporting Corporation (202) 628-4888
14769 1 interrogatories. That doesn't require them to search.a lot
() 2 of files or anything like that.
3 JUDGE SMITil: You want to talk about -- you want 4 to talk about the reasonableness of the discovery deadline S before the Board is satisfied that it knows what the'real 6 discovery dispute is. Mr. Reis raised the point if you're 7 satisfied, Mr. Dignan, I want to tell you the Board is not 8 satisfied.
9 MR. TURK: Your Honor, this is Sherwin Turk.
10 MR. DIGNAN: Not satisfied as to what, your Honor?
11 JUDGE SMITH: You persist, as all of you have, 12 coming back to the point is is the discovery period 13 reasonable. Itave they put in enough resources in coming up 14 with the information? I'm telling you that the Board sits 15'
(]) here right now not satisfied that it understands the 16 consequences of the Attorney General not' coming forward with 17 what you're requesting.
18
- MR. TURF Your Honor, if I can address that.very 19 briefly. This Sherwin Turk.
20 MR. DIGNAN: Woll, your lionor -- oh, I'm sorry.
21 MR. TURK: We have already received some discovery 22 response from the Massachusetts AG office, which does list 23 some of the resources they have at their disposal. Now in 24 addition, they've indicated to us that they have a large 25 quantity of documents gathered already for production to us, lieritage Reporting Corporation (202) 628-4888 O
4 14770 1 and I'm hoping that that documentation will demonstrate to
( 2 some extent the resources of the State.
3 I don't feel especially foreclosed at this point.
4 I mean I feel there's information either in my possession 5 now or promised to me and already gathered by Mass AG which 6 demonstrates a substantial number of resources available to 7 them.
8 MR. TRAFICONTE: Well, could I just respond to 9 that. Why did --
10 MR. TURK: 1.nd I'm -- I am not suggesting that 11 those documents not be produced to me. I'm not giving up l
12 the right to receive documents which have already been 13 gathered for production.
14 MR. TRAFICONTE: Well, or are being gathered,
() 15 right Mr. Turk?
16 MR. TURK: And which -- yes, and which will 17 continue to be gathered up until whatever the cutoff date 18 for dircovery ends up being.
19 MR. TRAFICONTE: Well that's your end. I think 20 that puts it in a nutshell. I think that puts it in a 21 nutshell. What we're talking about is the time necessary to i 22 complete the discovery that we are engaged in gathering ;
23 after negotiation on scope, etcetera. We are in the process 24 of doing what essentially tas parties, at least with regard 25 to the staff and the Mass AG, have agreed is relevant.
Heritage Hoporting Corporation I (202) 628-4888 l
s
l?
14771 1 What I'm basically trying to convey is the time
() 2 needed to complete a task that is before us, and I guess I 3 just missed the notion that -- what I don't hear in any of 4 my runners here is the notion that this is in itself a time-5 consuming procecs and we're trying to do it.
6 JUDGE SMITil: Gentlemen, the Board is going to, 7 have its way on this. We wish first to resolve the issue of 8 the need for discovery before we address the problem of the 9 time and the resourcee devoted to discovery. We insist upon 10 having our way.
11 MR. DIGNAN: Your lionor, I think one of.the --
12 JUDGE S!1ITH: Do you understand? Does everyone 13 understand that?
14 MR. TRAFICONTE: Right. At least --
() 15 MR. DIGNAN: I agree your Honor.
16 JUDGE SMITH: Do the people appreciate the turn of 17 irritation?
18 MR. TRAFICONTE: I agree your lionor.
19 MR. DIGNAN: Yes, your Honor. The point is this.
20 I guess where I'm having difficulty is this. The staff, it 21 is true, as near as I figure out has asked these kind of 22 resource questions you're talking about. I think ours, 23 though, is not.
24 Most of our questions -- now I can't say there 25 isn't one in there that isn't resource-directed. But.if you lloritago Hoporting Corporation (202) 628-4888 O
.it
.?,l 3
.14772 1- review our filing of October 14th, the little,one, it's ,
h 2 '- bacically you say this in your-basis. What's your basis for
'3 it?
4 It's not a request for resources from the State, s :
5 it's you tell us why you're saying this. Those kind of i 6 questions, and the documents that are asked'for are the 7 documents that they claim back up the assertion that, for 0 example, our -- let's do something.
r 9 I've made -- let m get an example of the kind of 10 question. It says -- e.s tiae July contention 31, we ask 11 please describe in detail all the specific purposes for- l
! 12 which intervenors assert that ORO "Emergency field i 13 personnel" need a "lateral network of communications j l 14 directly linking" them to each other, and identify r.11 Q 15 "emergency field personnel" whom intervenors assert have 16 that need. Please also state all the facts underlying your !
17 answer.
3 18 Now these are the kind of questions that we're [
f i 19 talking about here. They aren't what are your resources. [
20 They are yot. have filed your bill of complaint, Mr. !
t l
l 21 Plaintiff. Now what do you mean by it? And that's why I'm i 22 having difficulty talking, answering the way or directing 23 myself to the concern of the Board because these kind of
] f 24 questions I don't view as stuff I rieod for my affirmative
^
f 25 case. f I
l Ileritago Hoporting Corporation (202) 628-4888 r
f
- u. ,
nl 14773 1 What I need them for is as tne block for them r
2 introducing stuff I don't.know about.
3 MR. TRAFICONTE: Okay. Can I follow up, your !
4 Honor, on the same point, which has to do with what is the 5 need and who's need is it for this discovery. Mr. Dignan 6 has chosen an interrogatory from'one of the dual sets of ,
7 interrogatories that we had discussed earlier, and I want to l 8 reiterate that the argument that I had made has very little r 9 do with with the dual set, but instead has to do with'other 10 requests, and I would like to read two requests from the i
^
11 Applicant's Second Request for' Production of Documents that 12 served on us October 14th, exactly 30 days before the close 13 of discovery. ;
t 14 MR. DIGNAN: This is documents, not
() 15 intorrogatorios.
16 MR. TRAFICONTE: Yes, documents. l I
17 MR. DIGNAN: I understand that. - !
I 18 MR. TRAFICONTE: Okay. Now I'm going to read'the i I i 19 second and third requests. The second request reads any and 20 all documents reflecting or commenting on draft and/or final 21 policios of the Department of Public Safety, the l j 27 Massachusotts Civil Defenso Agency, and/or the Department of (
i 23 Public Ilealth regarding omergency planning and/or ;
1 24 radiological emergency responso planning. That's number 2. l t
1 25 Request number 3. Any and all documents i lloritngo Reporting Corporation (202) 628-4888 i
F h
l
.,. .- - - - - - . . . - - _ - - . - - ._ _ . - O
14774 1 reflecting or commenting on emergancy' plans, policies,.
() 2 guidance'o'r implemonting' procedures developed by any state 3 agency, department, commission.or authority, and I repeat, 4 there's no time limitation, no agency limitation, no: space 5 limitation, no kind of emergency limitation.
6 Those two requests'in and of themselves involve an 7 enormous amount of document gathering, document roview, 8 consultation with agencies and we received those two 9 requests on October 17th, some 13 or 14 days ago.
10 Now again, I don't think -- I am very surpriced 11 and quite frustrated, frankly, to hear Mr. Turk and 12 Mr. Dignan say that this is something that they need for 13 purposes of cross-examination. That's not what I read those 14 to be. These are extremely burdensome and broad requests that if they have anything to do with this case, it seems to
(]) 15 16 me they must have to do with what the state resources are 17 and what state procedures exist that would make up the ad 18 hoc response or make up, if you will, the bulk of this 19 responso. That's what I thought this was about.
20 JUDGE SMIT!!: That's what I did too.
21 MR. TRAFICONTE: Woll, and that's why I lead 22 emphasizing the relevance of this material and trying to get 23 people to pay attention to how much, how difficult it is to 24 complete the search.
25 I hear Mr. Turk and Mr. Dignan saying that this is lleritago Reporting Corporation (202) 628-4888
)
6 14775 1 assential. Well, if it's essential it's essential that's
, 2 basically -- been on which we've been expending an enormous
'3 amount of time and energy.
4 MR. TURK: I wasn't here, speaking for myself, I'd 5 say that's a side shell. I went to -- ;
6 MR. TRAFICONTE: But more importantly, not to void 7 Mr. Traficonte, but the fact is that's exactly what I want !
R those for, is cross-examination. You have to go back on ,
l 9 this case. *The theory of the Commonwealth of Massachusetts t i 10 as first expounded when they decided net to cooperate, is !
1 .
11 that it's "impossible to design a plan that'll take care of ,
) 12 Seabrook," first because I intend to hit him with documents t i
13 I know exist, in which there were favorable comments on the 14 early plan and that it was feasibic. [
O 15 ^ad that'= cro -exe=taettoa =eteriet- ' don't l l 16 need it for my direct case. I need it to hold in check 17 Massachusetts experts, f
18 JUDGE SMITH: Now what Pind of sanction would you 19 ask us to impose?
20 MR. DIGilAN:
For what?
i 21 JUDGE SMITH: In the event that -- in the event [
22 that they put on these experts. You do not have these !
t 23 documents, you never got them, because discovery closed and 24 the panel is there and you don't have the documents. What
{
25 are you goir.g to do?
f Heritage Reporting Corporation l (202) 628-4888 O .
{
f
14776 1 MR. DIGNAN: If I don't have the documents, and
(' - 2 the sanction would be to not take the experts' testimony.
3 JUDGE SMITH: How do you know the documents exist?
4 How cen we impose such a sanction?
5 MR. DIGNAN: That's my problem, to demonstrate it 6 to you.
7 JUDGE SMITH: And you're confident you can do 8 that?
9 MR. DIGNAN: It he hasn't produced them.
10 JUDGE SMITH: Okay.
11 MR. DIGNAN: I'm never confident I can do 12 anything, your Honor, but you've asked me as to what my 13 cosition is for reso.tving this discovery request, and that 14 is my position.
() 15 JUDGE SMITH: Mr. Turk?
16 MR. TURK: Your Honor, let me come back, first of 17 all, to the question of whether there's been a good faith.
18 JUDG: SMITH: Now let's begin hearing about thet 19 now, and unless anybody wants to add anything more about tne 20 purposes of the discovery disputo, I mean the discovery that 21 is in dispute.
22 MR. TURK: Well, just for the record --
23 JUDGE SMITH: Walt a minute, just a moment. Walt 24 a minute. Wait a minute. We're still on here. We're going 25 to break here.
Heritage Reportir.g Corporation (202) 628-4888
F 14777 1 (Off the record.)
, () 2- JUDGE SMITH: We're back on the record. Mr. Turk?
3 MR. TURK: Yes, your Honor.
4 MR. TRAFICONTE: Hello? I'm sorry. I wan.off for 5 a minute.
6 JUDGE SMITH: Well, so were we. Wa-were -- you 7 didn't miss any -- where were we when you left? I told Mr.
8 Turk if you wanted to go on to the subject matter new of 9 good faith effort or to comply with discovery request, we 10 are now prepared to leave the issue of the purpose of the 11 discovery that is in dispute. Did you catch that, 12 Mr. Traficonte?
'Is MR. TRAFICONTE: I did, your Honor. Thank you.
14 JUDGE SMITH: Okay, Mr. Turk?
15 MR. TURK: Your Honor, just if I can make myself j
(])
16 clear on the purpose of the staff's discovery. We have no l 17 present intention of calling witnesses in order to make out I 18 a case-in-chief. We would use the documents we requested j 19 for cross-examination, botn for impeachment and to makr
! 20 a case through cross-examination of any witnesses put 21 forward by the Mass AG. ,
22 JUDGE SMITH: All right.
23 MR. TURK: Now, if I can, let me come back to the 24 question of whether Mass AG has made a demonstrated good 25 faith attempt to comply with our discovery requests and Heritage Reporting Corporation (202) 628-4888 O .
14778 1 those of che applicant.
( 2 Your lionor, in my~past history I've been involved 3 in anti-trust litigation, and as I know you're familiar with 4 anti-trust. Generally, you often get into largo document 5 requnsts, and typically what is done in those kinds of 6 situations is not only what the lawyers for the party 7 responding tn discovery such as Mass AG, not only would 8 those lawyers gather documento, but they would also set up a 9 room where other lawyers for other parties could come and 10 e.vamine documents, and they might in fact permit files to be 11 searched in the first instance by the requesting parties, 12 subject to a rule on privilege. That's one approach that 13 was not used here.
14 Something else . hat was not done here by Mass AG
() 15 was ttilizing the efforts of lawyers employed by those eight 16 different agencies to respond to discovery. Although we've 17 heard about Mr. Traficonto's personal involvement and that 18 of one other person in his office in making this production, 19 we have not heard anything about the attorney capabilities i 20 of the eight agencies who are directly responding to the 21 discovery.
22 I don't see any reason why attorneys employed by '
23 those agencies could not have been enlisted in this effort, i
24 and certainly they would be the ones to be able to screen i 25 for privilege without having Albert or Mr. Traficonte t IIoritage Reporting Corporation (202) 628-4888 W- g
14779 1 involved in that effort, o
(_) 2 Also let me address the time with which the 3 responae commenced. Mr. Traficonte has acknowledged to us 4 that our initial set of int 7rrogatories were lost somewhere 5 in his office for approximately ten days before he found 6 them and started to develop his response. That's not a 7 fault of ours or the applicants. That's some kind of an i 8 error in his office for which we should not be held 9 accountable.
10 Also there's no indication why Mr. Traficonte 11 could not have enlisted a broad-scale effect within his own 12 office to respond to discovery. I don't know the resources 13 of the Massachusetts Attorney General's office, but it does 14 represent the sovereign State of Massachusetts. They do
() 15 have many lawyers employed, and they could have drafted some 16 people to como over and help with the effort. They have not 17 done that.
18 JUDGE SMITH: Taking the, Mr. Dignan and Mr. 1mrk.
19 at their words that they are now seeking documents to be 20 used solely as cross-examination, not for the purpose of 21 preparing their own direct testimony, and not for the 22 purpose of preparing their own case-in-chief, which I think ,
23 has been covered galte a bit.
24 MR. TURK: Except, your Honor, through cross- i 25 examination. ;
i I
lieritage Reporting Corporation (202) 628 4888 i
m
14780 1 JUDGE SMITH: Except through cross-examination.
) 2 How -- would either of you be prejudiced if we granted an 3 extension of time to respond to that discovery, but at the 4 same time required the parties to proceed with the next 5 phase, and that is since you don't need this discovery to 6 prepare your case-in-chief or your written testimony, we'll 7 just proceed without interval and give the Attorney General 8 the extra time it needs to contact the eight agencies. How 9 would that work?
10 MR. DIGNAN: Do I understand, your Honor, then 11 that the extension would only be for them to respond to the 12 document request outstanding against them, and that what it 13 would not have the offect of doing is precluding us from 14 filing summary disposition motions?
() 15 JUDGE SMITH: I didn't really plug the summary 16 disposition motion in there.
17 MR. DIGNAN: Well that's my major concern. If the 18 discovery -- in other rords, let me give you the other side 19 of this discovery. We've been asked somewhere between 150 20 and 200 questions, one of which incidentally was a question 21 that said give us your position on every contention, and 22 we've answered them, and we've had no motions to compel.
23 We have objected, but we think the objections were 24 pretty reasonaole and we can only assume the AG does too 25 because we've not been hit back with the n.otion to compel on Heritage Reporting Corporation (202) 628-4888
14781 1 anything, and we've given them our positions. The only
() 2 reservation we made is the reservation that you essentially I
3 make under rules that, you know, if you learn later that a :
L i
, 4 fact you stated was wrong, you can amend the answer and I'm 5 sure there will be a certain amount of that because there's ,
6 massive answers and we'll find some mistakes.
7 But we basically answered all the interrogatories. l O Now unless there's a general extension of discovery, come ;
i 9 November 15th we're in a position to start after the summary
- 10 disposition route, and not be faced with a response under 1
11 the rules that says we haven't completed our discovery.and 12 therefore we can't answer your motion for summary 3
13 disposition, and that is my main concern.
1
, 14 If all the AG wants here, but I have a feeling
() 15 since he wanted a general extension of discovery that's not I 16 all he wants, is from now until December whatever, to 17 complete producing documents to me, I've got no problem with 18 that.
19 JUDGE SMITH: All right. That's, I think, is 20 where we're going.
1
- 21 MR. TURK: But there's one other part of that, i
l 22 your lionor. The pending motions from Mass AG seek to extend
- 23 not only the time for their response to applicant and staff
(
24 discovery, they also look for an extension of time in which l
l 25 to make their own discovery requests.
I l Ileritage Reporting Corporation (202) 628-4888 i
l
14782 1 JUDGE SMITil Yes, we haven't talked about that
() 2 yet. He haven't come to that yet.
3 MR. TURK: I would certainly oppose that as 4 unsupported by anything in the past occurrence in this 5 proceeding.
6 Jute F' - De 9u see where we're going?
7 MR. 1 , sCONYos h ll, yes. I imagine I do. As 8 we said in our in6. , a t as I would -- I think I made 9 it quito clear ts ,, ob"?
aly in the first J.nstance we 10 need more time to go,ter the documents and do the defensive 11 discovery with regard to document requests, interrogatories, 12 and providing answers to the interrogatories that go 13 contention by contention.
14 That's why we filed the two separate motions in
() 15 addition to the motion for the extension of the discovery 16 period. Of course, there's an independent aspect there.
17 Sure, we need more time to complete, as I've said, to 18 complete the defensive part. We also seek an extension of 19 the time in which to do our own offensive discovery. That's 20 part of the relief that we're weeking.
21 Dut the short of it is that in the event that this !
22 is somehow divided up and we have more time to respond to 23 the defensive discovery, I would still request some period !
24 of time that motions for summary judgment are deferred until 25 we at least can clear the decks of our defensive discovery I
I lieritage Reporting Corporation 1 (202) 628-4888 l
l l i
14783 1 and can pay -- focus in on responding to the, at that time
(~)\
( 2 it would be responding to the summary disposition material.
3 JUDGE SMITil: Why are they sosial conriderations 4 and why do you have to clear the decks on your defensive 5 discovery duties before you complete your offenelve 6 discovery program?
7 MR. TRAFICONTE: The office is going -- we're 8 obviously going to do the best we can under any agenda 9 that's been set. We are not going to be able to respond to 10 the discovery that's been put upon us by November 15th, and 11 that's just a fact. It's a fact of nature.
12 JUDGE SMITH: Okay, but that doesn't meet my --
13 MR. TRAFICONTE : Well again, as I'm indicating, 14 we're seeking an extension of the entire discovery period
() 15 because part of our resources have been diverted and we 1G would like to do some follow p offense discovery.
17 If that 43 not permitted, if you do not grant bs 18 that relief, we would at least seek some period of time 19 before we would have to respond to summary disposition 20 materials, or at least until perhaps they're filed. It 21 doenn't matter to us whether it's some time in which to 22 respond to them or some time before they can be filed, 23 either way.
24 So that we would still be engaged in completing 25 the defensive discovery. That's still going to take fleritage Reporting Corporat. ion (202) 628-4888
14784 1 resources. We're still now, between now and November 15th,
() 2 we're basically -- or in fact we've extsnded it until 3 November 17th -- we essentially have a deposition ocheduled 4 practically every day, i 5 The notion that on December 18th or December -- .
6 strike that -- on November 18th or November 16th Mr. Dignan 7 intends tn hit us with summary disposition motions on 8 however number of contentions that he thinks such motions 9 might have merit, that doesn't solve -- in a sense it 10 doesn't resolve our difficulties at all, because we would 11 still in that same t!me period be trying to answer the 12 defensive discovery, and the energy and the resources that ;
13 it is taking.
i 14 We would have just completed a kind of madcap
() 15 discovery period of two weeks, you know, that we're into 16 right now, and immediately get hit with summary disposition 17 materials that we simply, at that point, be back before you r l
18 seeking additional time to digest the material we've already l f
19 received from the applicant, get up to the Seabrook station j 20 where vc have to go to see the documents that they're going '
21 to produce.
I l 22 The problem would etill be with us, and it would 23 still be part of the problem of the scope of the discovery 24 that's been flaying from both sides.
25 JUDGE SMITH: As I understand it, an important ;
a l
l I '
lieritage lleporting Corporation (202) 628-4888 i
i 14785 1 part of the delay in the Attorney General's response on es
(_) 2 defensive discovery is that there are some eight agencies 3 involved. They've already been contacted and those agencies 4 are not at work, coming up with the documents. Is that 5 correct?
6 MR. TRAFICONTE: Yes.
7 JUDGE SMITH: And answering interrogatorien. Is 8 that correct?
9 MR. TRAFICONTE: Yes.
10 JUDGE SMITH: All right. Now that process is L
11 already under way?
12 MR. TRAFICONTE: Yes.
13 JUDGE SMITH: Presumably those agencies are not 14 going to be involved in the offensive discovery by the
() 15 Massachusetts Attorney General?
16 MR. TRAFICONTE: But all are not, for the most 17 part, involved .in our offensive discovery.
18 JUDGE SMITH: So I think you're double-19 counting -- l 20 MR. TRAFICONTE: No, because attorneys from this l
21 office, however, have been involved in the defensive 22 discovery. Maybe I'm talking -- ,
23 MR. TURK: But you're not adding in Mr. Fierce, !
I 24 who apparently is conducting your offensive discovery 25 through deposition, j L
Heritage Reporting Corporation i (202) 628-4888 l
i
14786 1 MR. TRAF1 CONTE: Mr. Pierce at this juncture is 2 conducting the offensive discovery, is exclusively involved 3 in offensive discovery.
4 MR. TURK: Right. That's separate and apart from 5 yours and Ms. Talbott's participation in the defensive 6 discovery.
7 MR. TRAFICONTE: We have not been sitting on your 8 hands, your Honor, with regard to offensive discovery. We 9 have sent out -- but I don't know I'm happy with the point 10 of reinforcing this is, but we have done discovery. We're 11 doing it now. We have depositions scheduled.
12 JUDGE SMITH: I see them as being on different 13 tracks.
14 MR. TRAFICONTE: They may be.
() 15 JUDGE SMITH: I mean different resources.
16 MR. TRAFICONTE: They may in part involve 17 different lawyers and different resources.
18 JUDGE SMITH; Well then let's don't hootstrap the 19 defensive discovery onto the offensive or the vice-versa.
20 Don't bootstrap the offensive discovery onto the defensive 21 discovery.
22 MR. TRAFICONTE: Woll --
23 JUDGE SMITH: All right, they do seem to be 24 separate considerations, don't they?
25 MR. TRAFICONTE: In part they are.
Heritage Reporting Corporation (202) 628-4888 4
.t i
14787 1 JUDGE SMITH: But in part you presumably have to
) 2 at least supervise all aspects?
3 MR. TRAFICONTE: Well, that's also part of it.
4 And not only that, but the other aspect of it is that 5 Mr. Dignan is no doubt -- the bottom line for Mr. Dignan, 6 from what I have heard, is the date on which he can hit us 7 with summary disposition pleadings.
8 And I could see it from his point of view, and 9 that's not easy to but I can. He'd like to do that. Now 10 our point is the major aspect of seeking an extension of the 11 discovery period, the major focus of that, setting aside the 12 defensive problem and if we get some relief on the time in 13 which to answer the defensive problem, the major focus of 14 our concern is not additional offensive discovery. That is
() 15 not our concern.
16 Our primary concern is simply to have some period r 17 of time in wh4 :h to digest and review and come to comprehend 18 what it is we've learned through the offensive discovery 19 that we in fact will complete on or near November 15th. So 20 the point of --
21 JUDGE SMITH: Now wait a minute. You see, you 22 think that you will complete --
23 MR. TRAFICONTE: I'm making myself -- I don't know 24 if that's clear, but what I'm saying is that the purpose of 25 seeking the extension of the entire discovery period was Horitage Reporting Corporation (202) 628-4888 O .
14788 1 twofold.
() 2 JUDGE SMITH: Well, I wish you wouldn't loop them 3 together, though. I think we can give you some relief if 4 you won't -- if you would be more specific as to the 5 particular program where you need the relief.
6 MR. TRAFICONTE: Well, I can be very specific. I 7 can be very specific. We need relief in terms of some 8 additional time in which to respond to the dofensive 9 discovery that has been served upon us.
10 We need perhaps just an extra week or a few days 11 to complete offensive discovery that we would contemplate:
12 doing. Or if not --
13 JUDGE SMITil: Let me ask you this.
14 MR. TRAFICONTE: Well, let me finish because
() 15 there'n a third wing here to the point, and third point is 16 that the reason why we sought an extension for the whole 17 ball of wax is that we're terribly concerned that we be 18 given some time to digest what it is that we're just still 19 gathering in the way of offensive discovery by the office, 20 so that we can then prepare answers not only to -- I mean 21 the interrogatories that the applicant has hit us on is 22 basically contention by contention, state your case.
23 JUDGE SMITit State your case with respect to what 24 you're learning on offensive discovery?
25 MR. TRAFICONTE: Well, I mean, that would be part lleritago Reporting Corporation (202) 628-4888 O
14789 1 of an answer.
() 2 JUDGE SMITit: What do you say to that, Mr. Dignan?
3 MR. TRAFICONTE: Mr. Dignan is going to be hard-4 pressed to answer that since he's answered one of our 5 questions as to what his position is --
6 MR. DIGNAN It's an easy one to answer, your 7 lionor. What those interrogatories do is ask the complainant 8 what do you mean by paragraph 3. Now it's never been my 9 understanding that you have to completo your discovery 10 before you answer an interrngatory back there, i 11 If they learn something later in discovery that 12 they want to use, they use it and assuming I object they get 13 overruled on the grounds they didn't have it beforehand.
14 These are tie-down interrogatories, and we had already
() 15 answered a set without completing our discovery, and that 16 just does -- that's a non-starter.
17 MR. TRAFICONTE: It's not a non-starter. I'was 18 about to say that Mr. Dignan responded to one of.our similar 19 requests by stating that he would have to see what we say to 20 his discovery before he could answer it. lie couldn't --
21 MR. DIGNAN: That on only two interrogatories, and 22 those were two where the Board had assigned the burden of 23 proof to the Attorney General.
24 MR. TRAFICONTE: These are very classic 25 situations, your lionor, of having, you know, both sides say lieritage Reporting Corporation (202) 628-4888
14790 1 to the other what are you relying on, what are you relying
() 2 on, as offensive discovery is proceeding. The basic bottom 3 line is that the parties need -- at least this party -- I 4 mean the Mass AG needs to digest what is learned in order to 5 formulate answers with regard to the contentions.
6 JUDGE SMITH: How much time do you need for 7 offensive discovery?
8 MR. TRAFICONTE: Well, you know we --
9 MR. DIGNAN: Your Honor, could we before they 10 answer that, what offensive discovery is left? They've 11 asked interrogatories, we've answered them. They've asked 12 for document requests, we're going to produce that on --
13 tomorrow, which is the date, and there's another set of 14 interrogatories which we'll be answering -- we answered 15 yesterday in the mail, and that's it.
(])
16 It's my understanding I'll be seeing no more 17 interrogatories or document requests because the time to 18 have done that and still complete by the 15th is gone. I 19 understand the only offensive discovery left are these 20 depositions which are scheduled, and I have not squawked and 21 probably will not squawk, but they scheduled two of them for 22 after the 15th.
23 I don't understand there's any more offensive 24 discovery to be coming at us under the prior ruling of the 25 Board.
lieritage Reporting Corporation (202) 628-4888 O .
14791 1 MR. TRAFICONTE: Well, I can't quibble with that, O
(_/ ? your Honor. Obvious 1*/ under the prior ruling of the Board, 3 today's the 2nd of November. Wa can't squeeze 14 days 1.4 4 before the 15+.h, so we would be hard-pressed to get answers 5 to any interrogatories. We have scheduled two depositions 6 after --
7 JUDGE SMITH: Well, before you go to the 8 depositions, do you -- you do not have any additional 9 offonsive interrogatories or document requests in the works.
10 Is that correct?
11 MR. TRAFICONTE: No, the answer is that that is 12 not correct.
13 JUDGE SMITH: What do you have?
14 MR. TRAFICONTE: We have one set of
() 15 interrogatories that we have been working on and obviously 16 dependent upon what the Board's ruling is, we would not --
17 we haven't served them today obviously, because they 18 wouldn't have to be answered under the present ruling.
19 We have one set of interrogatories. We have a 20 follow-up set of document requests that reflect the 21 applicant's answers to our previous interrogatories, and we 22 have those two depositions presently scheduled for the 16th 23 and 17th, that Mr. Dignan appears not to have that much 24 difficulty with.
25 And we would be able to get the discovery out, the Heritage Reporting Corporation (202) 628-4888 O .
14792 1 one set of interrogatories and the request, we would be able 2 to get out hopefully this Friday. That was our intent.
3 JUDGE SMITil And that would require how much an 4 extension for offensive discovery?
5 MR. TRAFICONTE: That would require, you know, if 6 we hand-delivered it, I guess, it would require an extension 7 from the 15th of November until the 18th of November, in 8 ordor to provide them the adequate and requisite answer.
9 But --
10 JUDGE SMITil Now you have these presently 11 prepared?
12 MR. TRAFICONTE: We are presently working on them.
13 They're not ready to file today, no.
< 14 MR. DIGNAN: Your Honor, you know, cut back my
() 15 frustration level. The Board had an order out there that at i 16 least I thought was pretty clear. Discovery over by the 17 15th. Now they on their own have decided to schedule things 18 up so that the discovery won't be ready to go until Friday, 19 relying on a further extension. Now I just don't think this 20 conduct should be countenanced.
21 MR. TRAFICONTE: We're not relying on it. I don't 22 understand that point. If the Board does not grant us 23 relief, the discovery is not going to go out. What could be 24 clearer?
25 MR. DIGNAN: Well, I for one urge that the relief lieritage Reporting Corporation (202) 628-4888
14793 1 not be granted. We have answered a pile of interrogatories.
() 2 We've got a pile of documents ready to go. We've dons our 3 part over here. Where we are is ready to start moving 4 forward on summary disposition motions.
5 JUDGE SMITil When's the last date by which those 6 document requests, that document request and interrogatory 7 could have been submitted to meet our earlier schedule?
8 MR. TRAFICONTE: Probably yesterday.
9 JUDGE SMITil: Yesterday.
10 MR. DIGNAN: That's on interrogatories, and the .
11 document request would be some three weeks ago.
12 MR. TRAPICONTE: That's true. There's a !
13 difference if it's interrogatories or document requests. I 14 would just want to note that. I don't want to press too I would just want to note that part of this
(]) 15 hard on this.
16 document request I've described follows upon the answers to 17 the interrogatories that we received about a week ago, so --
18 JUDGE SMITit: Well, what I propose -- I'm not 19 ordering it. I propose for discussion that with respect to 20 the interrogatories, if you've got them prepared, send them 21 out. If we think that they're of a nature that you should 22 have had them out earlier, maybe we won't allow them. We'll 23 intercede and void them.
24 If they're the nature that are important to the (
25 case, really were follow-up in discovery, could not probably I Iltsritage Reporting Corporation (202) 628-4888 l
14794 1 have done much earlier, I don't think it's any big deal,
() 2 three days. Document requests -- you've got another problem 3 there. That's three weeks anc you can't have a self-4 fulfilling extension of time. That's a bigger problem.
5 MR. TRAFICONTE: I appreciate that. That's what I 6 need to come back to, the original focus of the motion. l 7 That is why we sought an extension of the entire period. I 8 mean I'm not being honest if I don't say that we could use 9 additional time for offensive discovery. That is clear.
10 And just so the record's clear, you know, it is l
11 not since we last addressed this issue, that the Mass AG's ;
12 office has been doing -- it's not that we haven't been busy, 13 and I don't think there's any point in going in any detail 14 on that point, but we certainly have been generating and '
() 15 abiding by all other procedural and substantive 16 requirements, and we have done a fair amount of work since 17 August on other matters in that. But we appreciate we live 18 by deadline.
19 JUDGE SMITH: Mr. Traficonte, what is the nature 20 of your interrogatories? Are they position type 21 interrogatories?
l 22 MR. TRAFICONTE: Well, for the major part they are ,
23 specific information-oriented interrogatories, and I don't i
[
24 think Mr. Dignan's going to quarrel with that. We certainly l t
25 did ask a general one that asked him for his position on .
i Heritage Reporting Corporation (202) 628-4888 l
14795 1 each contention.
() 2 But for the most part, the interrogatories are 3 contention by contention. We seek specific pieces of 4 information as to, for example, the training of various 5 staff and the schedule of that training and the testing of 6 that staff. We basically --
7 JUDGE SMITil That strikes me as being the type of 8 information that should have been asked early on.
9 MR. TRAFICONTE: In part, your lionor, I can't 10 quibble with that, 11 JUDGE SMITilt So it's not really follow-on.
12 MR. TRAFICONTE: Well what --
13 JUDGE SMITilt It's just you're getting around to 14 it late. It's not a second round. You're getting around to
() 15 it late. Is that it?
16 MR. TRAFICONTE: The part that is second round is 17 the part that is a document, the very brief document request 18 that picks up on the documents identified applicant's 19 answers to earlier sets of interrogatories of ours.
4 20 JUDGE SMIT!!: But I'm talking about the 21 interrogatories you're sending now.
22 MR. TRAFICONTE: They are the ones that we have
- 23 worked out over the last three days and that we just --
24 given permission that we would send out. I would not 25 contest the description of them as information that we could i
i I
l 11eritago Reporting Corporation (202) 628-4888
14796 1 have sought earlier, right.
() 2 JUDGE SMITH: All right. We're going to take a 3 break.
4 (Off the record.)
5 JUDGE SMITH: We're back on the record. Go ahead, t
6 Mr. Traficonte.- Is anybody there?
7 MR. TRAFICONTE: Yes. I'm listening, your Honor.
i 8 The major point and I want to come back to just wrap up the ;
9 grounds for seeking an extension of the entire period. As I 10 stated in part it was because we needed some substantial 11 timo to finish the defensive discovery. We seek obviously 12 whatever time that is reasonable to finish up our offensive.
13 But the major point is that we wanted to highlight 14 the difficulty in any schedule that would permit the l
1
() 15 applicant to file on the day after the 15th of November 16 summary disposition materials when our response to those 17 materials would involve a review and compilation and 18 digestion, really, of the information that we would only be 19 receiving answers to perhaps on that previous day. So it 20 would --
21 JUDGE SMITH: Well, wouldn't your relief then be 22 to --
23 MR. TRAFICONTE: Not if on dato certain on which 24 summary disposition -- yes, yes. There could a separate 25 form of relief running to that third point. I don't l
l l
lloritago Reporting Corporation (202) 628-4888
14797 1 disagree with that at all. -
2 JUDGE SMITH: What did you think I was saying?
3 MR. TRAFICONTE: I thought you were going to say 4 that the relief sought could be three different days, 5 running to three different things. When we would finish our 6 defensive, when we would have available to finish our 7 offensive, and when the applicant would be free to file his 8 summary disposition materials.
9 JUDGE SMITil: Well, that's not what I had in mind, 10 but assuming you're right on the three points, let's go to 11 the summary disposition. Rather than us making a blanket 12 ruling as to your problems of responding to summary 13 disposition, wouldn't it be better depending upon the nature i 14 of the motion for summary disposition, to seek relief,
() 15 particular relief?
15 MR. TRAFICONTE: Would it be better?
17 JUDGE SMITil: Yes.
18 MR. TRAFICONTE: It would be another alternative.
19 JUDGE SMITil Better designed to satisfy 20 everyone's needs.
21 MR. DIGNAN: Your Honor?
22 JUDGE SMITH: Yes.
23 MR. DIGNAN: Let me offer him a deal. Here's the 24 deal --
25 MR. TRAFICONTE: I've got my hand on my wallet, lleritage Reporting Corporation (202) 628-4888
l 14798 1 your Honor. I've got my hand on my wallet.
() 2 (Laughter) 3 MR. DIGNAN: Until December 15th to complete 4 answering the questions we've given them and to give us the 5 documents, and I will file no summary disposition motions 6 before December 1. That's an offer.
7 JUDGE SMITH: Say that again, Mr. Dignan, would 8 you please?
l 9 MR. DIGNAN: All discovery against us is over.
10 That is to say, other than the depositions that are 11 presently scheduled, and the fact +, hat we've got some 12 responses due this week that we know about. In other words, '
i
. t 13 no further interrogatories against us. No further document i
14 requests against us. No further deposicions beyond those
() 15 already noticed and set up.
16 Number 2 is I won't file any summary disposition !
17 motions until Decemt er 1 or later, and number 3 is he can 18 have until December 15th to get us those documents and I 19 don't care, the answers to our interrogatories also.
20 JUDGE SMITH: The defensive ones you mean? l 21 MR. DIGNAN: Yes, the defensive ones. The ones ;
[
22 wu've got out againht him. t
[
23 JUDGE SMITH: Yes, right.
24 MR. DIGNAN How I don't know whether Mr. Turk i i
25 would agree with that from the staff point of view, but I'm
[
t Heritage Reporting Corporation *
(202) 628-4888 f
i
14799 1 willing to offer that from the applicant's point of view.
2 MS. CllAN: Your lionor, the staff agrees.
3 MR. TURK: That was not Mr. Turk, but I certainly 4 don't challenge Ms. Chan. She has a nicer speaking voice.
5 MR. DIGNAN: Well, your llonor, if we're --
6 MR. TURK: Your lionor, I would presume that the 7 December 15th date offered by Mr. Dignan in response to 8 interrogatories and production of documents would apply also 9 to the staff's discovery requests which are outstanding.
10 JUDGE SMITH: I think we're hung up over the 11 summary disposition and offencive discovery.
12 MR. TRAFICONTE: How if I could -- Lt sounds like 13 we're negotiating and horse trading a little bit, so let me 14 just --
() 15 MR. DIGNAN: No, no, no. That's my offer.
16 MR. TRAPICONTE: Okay. Well then let me make 17 mino.
18 MR. DIGNAN: And if you don't take it I'm going 19 back to my original position.
20 MR. TRAFICONTE: All right, well let me make my --
21 I recall that we sought an extension of the entire period 22 until January 15th, and through this process I've learned 23 that perhaps the solution is a tripartite one, and I guess I 24 would propose that the offensive discovery period, that we 25 be permitted by -- we be permitted November 7th, until itoritage Reporting Corporation (202) 628-4888
14800 1 November 7th, which is next Monday, to file Mr. Dignan r
()) 2 Can --
3 MR. DIGNAN: No, your Honor I will not agree to 4 any further discovery egainst us. The Board may order it--
5 JUDGE SMITH: See him through.
6 MR. TRAFICONTE: Well, I just -- I mean apparently 7 the offer will not be accepted by Mr. Dignan. But let me l 8 just make it anyway, which is that we be given for offensive l l
9 discovery purposes November 7th to filing of follow-up 10 documents requests and a brief set of interrogatories, that l 11 we be given until -- I'm looking at my calendar, but I would j 12 chose December 19th to complete the defensive discovery that 13 is outstanding, and that Mr. Dignan would hold his filing on 14 summary disposition until December 19th. !
i
() 15 JUDGE SMITH: What is it, Mr. Dignan. Now you 16 agree to defer summary disposition to December lat. What is 17 it that you're giving?
18 MR. DIGNAN: Nell, because he says he doesn't want 19 me to come in on summary dispo11 tion on November 15th or i l
20 16th if that was the cutoff date, and I was saying if he l 21 wants to be assured of that, I'll give him the 15 days. ,
22 JUDGE SMITil: But you've given him no additional !
i 23 offensive discovery. You haven't given him anything. l 24 HR. DIGNAM: Your Honor, I'm not going to agree to I 25 give him any more. The discovery should have been done by f floritage Reporting Corporation !
(202) 628-4888 l
l I
I 14801 i I the 15th. !
2 JUDGE SMITH: I'm trying to understand what you're l 3 giving him now. l 4 MR. DIGNAN: I said what I want for getting what 5 I'm getting, which is to agree to extensions of the 6 defensive discovory doadline, agreeing not to file summary )
l 7 dispositions, but what I want back for it is discovery is I (
8 over. Th t's the deal I'm offering him, against us, which r i t l 9 is 10 under this deadline. ;
10 JUDGE SMITH: Yes, but I would like it if anybody 11 could explain to me how anybody, how you are giving away l t
12 anything or how Mr. Traficonto is advantaged by your 13 agreement not to -- t 14 MR. DIGNAN: Hold to the original discovery I O is ae aitue- 1 cea rite r erv ai eo ittoa ottoa-16 November 16th. I can demand that his discovery be in o.i 17 November 15th, the best he can do, and I still hold my right 18 not to answer any further discovery.
19 MR. TRAFICOtiTt: t If I could clarify it, your 29 lionor . The present circumstance is about as black as it 21 could get, and Mr. Dignan's offer would make it a slightly 22 brighter shade of black.
23 MR. DIGNAN: It might be blacker shade of gray.
24 JUDGE SMITil Well, Mr. Dignan if we were to grant 25 Mr. Traficonte a total of, as he's requesting -- well, he's lleritago Reporting Corporation (202) 628-4868
l 14802 1 requested a total of seven days' extension for offensive
() 2 interrogatories, if we were to grant him say three of those 3 days, four of those days, how would you be affected in your j 4 summary disposition?
5 MR. DIGNAN: Decauso, your lionor -- well, if it's 6 going to Le only the interrogatories, the answer is first of 7 all he's siz9ady admitted to you that the interrogatory part 0 of his case could have been asked a long time ago.
9 JUDGE SMITH: The document request -- the 10 interrogatory.
11 MR. DIGNAN: The inter:rogatories he's admitted are 12 not interrogatories that couldn't have boon asked already.
13 It's the document request that's follow-up. The document 14 request takes a 30-day period in. The interrogatories also,
() 15 if you allow them, take in at least a 14-day period and I 16 don't know what they are or how long it's going to take or 17 whether I'll need an extension and during all that ti, the 18 easy answer to any summary disposition request is I haven't 19 completed my discovery yet.
20 JUDGE SMITilt Okay now, the Board inclination, 21 Mr. Traticonte, was to give you some relief on offensive 22 discovery on interrogatories, none on documents, and with 23 that in mind, what do you say about Mr. Dignan's offer?
24 MR. TRAFICONTCt (pause) The baoic problem I have 25 with it, your Honor, is the fact of the matter is that as lluritage Reporting Corporation (202) 628-4888
l' .
14803 1 long as -- J'm sorty -- as long as we would be attempting to
() 2 complete the defensivo discovery on what date that would be 3 and I take it his offer was December 15th, wo would simply 4 want to have the summary disposition materials como in, you 5 know, on that day or after that day.
6 That's just a resourco, you know, point that we 7 would -- that just -- I haven't given you all the detail, 8 but that would just be an essential part of any kind of 9 coherent capacity wo have to respond. We would --
1 10 MR. DIGNAN: All right, I'll offer you unother 1 11 deal. December 15th to completo your defensivo discovery 12 and I won't file any summary dispositions before that date.
13 MR. TRAFICONTE: Well that fell far from what I i
- 14 said. I said December 19th, and I did that primarily
() 15 because I was calculating the response time and trying to j 16 push it at least through the Christinas vacation so that, you 17 know, that we wouldn't immediately be seeking more than 20 i 18 days just because of the Christmas holiday. That was my j 19 only calculation for moving your offer of the 15th to the 20 19th.
21 MR. DIGNAN: Listen John. Get overybody back from 22 the key states, put them to work and you'll be able to make 23 up.
24 MR. TRAFICONTE: I wonder There will be no I
25 longer any key states as we all know.
l Iloritage Reporting Corporation (202) f>28-4888
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,.v 4 r j/- ' I. \ ;,
-14804' I 1 (Laughter) l 2 MR. DIGNAN: Your Honor, that's a private
'3 Ms*,. . .cs joke.
4 R. TRAFICONTE: Well, the joke's on everybody.
5 JUDGE SMITH: There ja a problem of getting the 6 necessary affidavits I would assume and so forth'.
7 MR. TRAFICONTU: No, Christmas. Tha:,'s what we're
/c 8 Imagining. Obviously the material that'we would be then 9 preparing woula be issue-oriented in major part., and it ,
10 would require coordination and we'd very li*o:1y be back 11 asking for an additional week to ten days to complete our 12 response. So --
13 JUDGE SMITil: Do I understand you to be saying 14 then, Mr. Traficonte, that you would accept Mr. Dignan's
() 15 offer of settlement if the date were the 19th? That is, no 16 more offensive discovery?
17 MR. TRAFICONTE: No more offensive discovery at 18 all, and December 19, we're given until December 19th to j 19 complete defensive discovery and summary disposition would [
20 come in after that date.
21 JUDGE SMITI: On that date. l 22 MR. TRAFICONTE: On thar Jato. Hell, I'm inclined l 23 to agree to it if there's a pofnt and perhaps there is a 24 point in light of discussing the 20-day rule on response, J 25 because I'm now looking at my calendar and I'm realizing Ileritage Reporting Corporation (202) 628-4888 A
i
-g--,, - - - - - , - - - - - , - . - - - < , - - -. , . , , - , + - - , -,
14805 1 that the Christmas situation is'perhaps a little bit more 2 serious than I thought. If Mr. Dignan would serve us on1the 3 19th -- 6
'4 MR. TURK: Well, why can't you just handle that at 5 the time?
6 JUDGE SMITH: Yes, why don't you take -- take the 7 offer, Mr. Traficonte, if you can use it, because I don't' 8 want to give'a blanket ruling in advance that you need extra 9 time for summary disposition responses.
10 MR. TRAFICONTE: All right, okay.
11 JUDGE SMITH: If you need it, seek it but. justify 12 it.
13 ,
MR. TRAFICONTE: Okay.
14 JUDGE SMITH: In the context of the p.rticular 15
(]) summary disposition motion. .
16 MR. TRAFICONTE: You'll have some of them but not 17 all of them. That's fine.
4 18 JUDGE SMITH: Okay.
J 19 MR. TRAFICONTE: That's fine.
l 20 JUDGE SMITH: I think we've agreed then, haven't
! 21 we? ,
22 MR. DIGNAN: I haven't agreed to the 19th.
i 23 JUDGE SMITH: You haven't? ;
24 MR. DIGNAN: I guess I will.
25 JUDGE SMITH: I'm going to nudge you that way.
i i Horitago Hoporting Corporation (202) 628-4888
I 14806-MR. DIGNAN: The tone of irritation reached me..
1 2 JUDGE SMITil It's not that any more. It's nudge.
3 MR. TRAFICONTE: If not, the next word's going to 4 be so ordered.
5 JUDGE SMITH: It was nudge, not push. Is that 6 agreed now? You can agree reluctantly if that satisfies 7 your client's --
8 MR. DIGNAN: Yes. I' understand that the order 9 then is the discovery is over against us, except for that 10 which we're now going to answer and the depositions?
11 JUDGE SMITil Yes.
12 MR. DIGNAN: That defensive discovery will be 13 comp.leted by the 19th, that is their responses, and that I 14 will not file any summary disposition motions before the
() 15 19th.
16 JUDGE SMITil: That's correct.
17 MR. TRAFICONTE: Yes, that's correct.
18 MR. DIGNAN: This does not put off the track, as I 19 understand it, the one summary disposition motion that has i
20 been flied and which Mr. Traficonto is due to respond 21 shortly?
22 JUDGE SMITil No. That's separate.
23 MR. TRAFICONTE: That is separate, yes.
24 MR. DIGNAll t I'm agreeable to that, your lionor.
4 25 JUDGE SMITil Okay, let's let the record show
,' iloritage Reporting Corporation (202) 628-4888 l.
14807 1 Mr. Dignan that you agreed reluctantly under duress and 2 screaming, or whatever you --
31 MR. DIGNAN: That doesn't help, your Honor, 4 because I've still got to go see the Board of Directors 5 tomorrow.
6 JUDGE SMITH: Okay. And you too, Mr. Traficonte.
7 Mr. Turk or Ms. Chan?
8 MR. TURK: Your Honor, we have no objection to 9 that.
10 JUDGE SMITil: All right.
11 MR. TURK: Presuming, of course, that it applies 12 also to the staff.
13 JUDGE SMITil Yes.
14 MR. TURK: No more offensive discovery'against the
() 15 staff and responses to ours are to be in no later than 16 December 19th to existing requests.
17 JUDGE SMITil: Okay.
18 MR. TURK: And hopefully we even get some things 19 sooner.
20 MR. TRAFICONTE: Oh yes, that's right. This is 21 the date by which we would have to complete, but we 22 obviously could get it out to you in -- before that, and we 23 would make documents available to you certainly well before 1
24 that.
.)
25 JUDGE SMITil And that does assume, Mr.
IIeritage Reporting Corporation (202) 628-4888
[}
,a ..
14808 t: ,
1 Traficonte, that you do your best.
2 MR. TRAFICOETE: Yes, your' Honor.
1 3 MR. TURK: Your Honor, I have one single thing I'd 4' like to note, and that is we have not yet decided whether or
-5 not, on behalf of the sto.ff, we're going to seek any
~6 deposition discovery against Mass AG, and I assume chat the 7 time for that still continues to run until the 15th of 8 November.
'9 MR. TRAFICONTE: Well, mayb' 1+e'll address that 30 point, because I understand most of today's discussion to 11 mean that the 15th represents the close of discovery.
12 JUDGE SMITH: That's right.
13 MR. DIGNAN: Well, if a notico came out on the 14 3rd, you take the deposition on the 10th.
() 15 MR. TRAPICONTE: Well, fine. I just -- as long as 16 Mr. Turk is clear on that.
17 MR. TURK: I understand that.
18 JUDGE SMITH: Okay, now.
19 MR. TURK: Unless of course Mr. Traficonte's 20 willing to give us until the~19th of December to take the 21 depositions.
, 22 MR. TRAFICONTE: I don't think so.
23 MR. TURK: Do it by any time?
24 MR. TRAFICONTE: Not from this assistant attorney 25 general.
Heritage Reporting Corporation (202) 628-4888
p 14809 1- JUDGE SMITH: All right, what did you just decide
( )' 2 about your depositions?
3 MR. TURK: Well, your Honor, we have not decided 4 if we're going to take any,-but if we do, we will take the 5 depositions before November 15th.
6 JUDGE SMITH: A111right, or notice them or take 7 them?
8 MR. TURK: Well, we'll definitely notice them 9 before the 15th, and the question is what's the return date 10 on it?
11 JUDGE SMITH: Yes. All right.
12 MR. TURK: And I guess I'm.asking Mr. Traficonte 13 if he would agree to some extension of the 15th or the'date 14 to take the depositions?
() 15 MR. TRAFICONTE: (laughter) 16 MR. TURK: Part of this request is necessitated--
17 MR. TRAFICONTE: I'm totally enjoying the fact 18 that you're requesting time from me.
19 MR. TURK: Well, part of the reason that I'm 20 requesting that is because we have -- we're still waiting to -
21 get the documents. We're waiting to have them gathered.
l 22 We're still waiting for a completion on interrogatory 23 answers, and normally the depositions will not be held until 24 we get completed responses to the documents and 25 interrogatory discovery.
Ileritage Reporting Corporation (202) 628-4888 4
C' <
14810 1 So we're at a disadvantage in going forward'with j
( .2 depositions without the ammunition in our hands to get a .
3 meaningful deposition.
4 JUDGE SMITH: I don't think anybody should be-5 expected to agree or disagree on a blanket basis. You're 6 not asking for any relief, are you?
7 MR. TURK: No.
8 JUDGE SMITH: All right. Let's move on then to 9 the next' item. Does everyone agree?
10 MR. TRAFICONTE: Your Honor, the next item that I 11 have is the FEMA material.
12 JUDGE SMIT 11: Yes.
13 MR. TRAFICONTE: And maybe the decision we've'come 14 to or the agreement we've reached is perhaps might resolve
() 15 this, at least in part.
16 MR. FLYNN: I would suggest that I be allowed to i 17 go forward, since it's in my motion --
18 MR. DIGNAN: Just so nobody misunderstands, I do 19 not believe the agreement resolves the FEMA thing from the
,, 20 applicant's point of view.
21 MR. TRAFICONTE: Well, let me just make a point.
22 The agreement that we've already -- that I have juct made 23 with regard to no final discovery out of this office 24 obviously does not have to do with FEHA. Is that --
25 MR. DIGNAN: I agree you haven't agreed to that, lieritage Reporting Corporation (202) 628-4888
14811 1 MR. TRAFICONTE: Okay, all right.
!)
s_ 2 MR. FLYNN: I was hoping you had, but --
3 MR. TRAFICONTE: No, no. I'm sorry if that was 4 unclear. We just hadn't turned to *.e FEMA thing. I 5 thought we were talking about discovery from us on the 6 applicants and staff.
7 JUDGE SMITil: All right. Yes, that was my 8 understanding. <
9 MR. TRAFICONTE: Okay.
10 MR. FLYNN: All right.
11 JUDGE SMITil dr. Flynn.
12 MR. DIGNAN: Your lionor, would it be possible to 13 have a two minute recess.
14 JUDGE SMITilt Sure, delighted.
( ,) 15 MR. DIGNAN: One minute recess, or frankly just 16 long enough to get down to a men's room?
17 JUDGE SMITil Good idea, whatever room.
18 (whereupon, a short recess was taken.)
19 JUDGE SMITil: All right, we're on the record. Mr.
20 Flynn?
21 MR. FLYNN: Yes, your lionor. I would like to 22 address my motion and as has been suggested earlier, the 23 previous discussion has not disposed of all the issues in my 24 motion. I would like to begin by reporting that 25 Mr. Traficonto and I have had a discussion and some of the lieritago Iteporting Corporation (202) 628-4888 O .
_ s _ .- - - - . . -
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2 14812-1 issues have been resolved.
() 2 I'm more concerned with scope objections than I am
- 3 on the relief from the deadline imposed.
4 JUDGE SMITH: Would you spea,k up please?
5 MR. 7LYNN: Yes, I'm sorry. Mr. Traficonte and I 6 have already figured out that if the -- my motion is granted 7 on much of the scope objections that I have raised, then the 8 amount of material which I have to produce is greatly 9 reduced, and there are many things which I am prepared to 10 produce right now, or I shouldn't say many. It's actually 11 fairly small in volume, but I'll get into that'in a moment.
12 You have agreed that the deposition will take 13 place on the 9th and that I will produce those documents 14 which are available which I have not objected to or which lll 15 the Board indicates my objection is not well-founded. Now, 16 having -- and we will produce those documents either by 17 Friday of this week or Monday of next week so that has them 18 in time for the deposition.
19 Now having said that, here's the question of my 20 scope objection to be decided by the Board or worked out by 21 the Commission or the Board. And I think it is an 22 objection. The request that I found to be most flagrant had 23 to do with a request for information about the selection of 24 Richard Donovan as our chairman, SPMC.
25 Now I've already indicated to Mr. Traficonte, he IIeritage Reporting Corporation l (202) 628-4888 r
1
14813 1 certainly is entitled to know what Mr. Donovan's O(_/ 2 qualifications are, and I've already in prior. conversations 3 offered to give him Mr. Donovan's resume. To get into any 4 internal discussion within FEMA about why he might be a 5 better-chairman than anyone else, a comparison of Mr. t 6 Donovan's qualifications with anyone else's qualifications, 7 or anything in that line strikes me es an unnecessary ^and-l 8 inappropriate invasion of the internal workings of FEMA.
t 9- It is not necessary for Mr. Traficonte's case to 10 be able to compare Donovan's qualifications with anyone ,
11 else's qualifications to be able to make an argument that 12 Mr. Donovan is not as expert as we ought to be or entitled 13 to as great weight as he'd like to see it. That is a.
14 discrete question. It really has nothing to do with the'
() 15 comparison of his qualifications to anyone else's 16 qualifications, or the process that FEMA went through in i 17 selecting him to handle this task.
18 Now there's a similar objection to the i 19 deliberations or the comments or the documents that were 20 before FEMA. To be very concrete about it, FEMA hasn't 21 change its regulations in the recent past, at least not as !
22 they relate to a logical emergency response program has i 23 changed its guidance that goes 654 FEMA / Rep 1.
24 JUDGE SMITH: Just a minute. Mr. Flynn, you need 25 to keep your voice as high -- in the volume as much as you i Horitage Reporting Corporation (202) 628-4888
_+ - , , _ . -- . - - , - - . . ..-..a - -,-
4 14814 l 1 can?
j
{^T ss/ 2 MR. FLYNN: Yes, your Honor.
l 3 JUDGE SMITH: You're trailing off at the'end of 4 your thoughts.
5 MR. FLYNN: Yes, the thought that I was expressing 6 a moment ago had to do with what guidance FEMA had altered.
7 in the recent past, and the one document which all the 8 parties are aware of. is Supplement 1 to Reg OG34/ FEMA Rep 1, 9 R-E-P, and that guidance is an implementation of~the HRC's 10 change in its regulations.
11 Very straightforward, it simply translates into 12 practical application the changes in the NRC regulations, 13 and I submit that it serves no purpose to inquire into the 14 reasons for the change. First of all, they're perfectly
() 15 plain from the document itself, but I also submit that to 16 inquire into the thought process, the deliberation that went 17 into decided those changes ~really amounts to a challenge to 18 the NRC rule, which the rules of procedure that this Board 19 is operating under don't permit.
l 20 And I further would argue that that request is l 21 symptomatic or symbolic of the tenor of all of the requests, l 22 and that is to make FEMA's process the focus of the hearing i
l 23 rather than the adequacy of the SPMC, the Seabrook plans for 24 Massachusetts communities.
25 It certainly is a legitimate issue, an appropriate lieritage Reporting Corporation (202) 628-4888
14815' 1 issue for SAG's office to explore and discover what FEMA's I )- 2 position is, how did it arrive at its position. But to go 3 into how FEMA's policy is established and policy issues have 4 not be raised in the contentions, have not been raised in 5 the discovery, is inappropriate.
6 And then my objections also --
7 JUDGE SMITH: Then you're saying that the request 8 with respect to Supplement 1 is irrelevant?
9 MR. FLYNN: Yes.
10 JUDGE SMITH: There are no contentions which would 11 as to which that would relate?
12 MR. FLYNN: Yes. That is my position.
13 JUDGE SMITH: Well, I'm surprised.
14 MR. FLYNN: The issue --
15 JUDGE SMITH: I don't have that document before
(])
16 me, but I'm surprised that that is the case, given the 17 number and extraordinary reach of the contentions.
18 MR. FLYNN: I don't want to be understand.to say 19 that it doesn't apply. What I'm saying is that the validity 20 of the document is not an issue.
21 JUDGE SMITH: Well, were the contentions in any 22 way be judged by the document?
23 MR. FLYNN: Well, they would. FEMA's evaluation 24 of the plan depends heavily on that document. In fact, 25 almost entirely. The evaluation process that we went Heritage Reporting Corporation (202) 628-4888 O
L- , ; ;
14816
~11 'through was to compare a plan, page by page and line by
()' 2 line, against the elements, the planning standards and the 3 elements of that document, Supplement 1.to new Reg 0654 FEMA 4 Rep ~1.
5 But I'm saying that to inquire into how did it get 6 to be written,in the way'that it is challenges our 7 policymaking, our thought process. It goes to the validity t
8 of the guidance. I don't think that's appropriate. I don't 9 think that's an issue that is before the Board.
10 The other major objection that I had went~to the 11 deliberative process privilege. We argued this before~ ,
12 during the New Hampshire Radiological Emergency Response 13 Plan phase of the hearings, and my recollection is that it ;
14 was resolved not by order of the Board but by a strong
.() 15 suggestion of the Board that resulted in agreement among the 16 parties, matters that were sought to be discovered or I 17 inquired into at trial were permitted.
18 But it is FEMA's policy to assert the deliberative 19 process privilege, and that we have a concern. We have seen 20 negative results from the weakening of our poeition by 21 disclosing details of the deliberations, both within FEMA 22 and within the RACs, the regional assistance committee. We 23 are now seeing that the discussion within the RAC is 24 stinted. It's not as candid as it should be.
25 We are seeing in fact the chilling effect that the Heritage Reporting Corporation (202) 628-4888 O
14817 1 deliberative process privilege is designed to prevent, and
() 2 therefore we are continuing to assert deliberative process 3 privilege and that forms the basis of my objection for many 4 of the documents that have been requested, specifically 5 communications to and from the regional assistance 6 committee, comments from the members of the regional 7 assistance committee on the plan that FEMA reviewed, and-8 communications from other agencies not specifically on the 9 draft plan reviews but on the subject of the plan.
t 10 And closely reJated to that is another broad ,
11 category of discovery requests which goes to contact with 12 other government agencies and other governments, such as the -
13 State of New Hampshire, the Governor of New Hampshire, and 14 there's also a request for documentation of contacts with
() 15 the White House.
16 Now I'm not representing that there are such 17 documents or that there were such contacts, but the request 18 itself is objectionable. It may go to deliberative process 19 but whether or not those contacts formed a part of the 20 decisions that were made and the evaluation of the plan, 21 they are objectionable for another reason, and that is that :
22 they go directly to the so-called corrupt process or the so- ,
23 called undue influence theory that was litigated at length 24 in the prior hearing.
25 Those are my terme. I'm not representing that floritago neporting Corporation I (202) 628-4888 v--t m--.---e. r . - - - - - - - - - - - - , , , - , - . . - , - - - - -
14818 l
'I anyone else has adopted those terms as identifying their -
'T
() 2 theories. And as a way of referring the Board to a portion 3- of the litigation that consumed enormous amounts of time and 4 in my view, at least, and I expressed this at the time, were 5 quito irrelevant. There's nothing in the record of this 6 phase of the hearing to date which suggests that it would be 7 appropriate to go into those questions all over again.
8 It strikes me as simply a fishing expedition to -
9 try to discover whether there were any such contacts which 10 might be complained of, which might be con,, rued outside of i 11 the normal process or arm-twisting or whatever the 12 intervenors want to make of it, and a case hasn't been made 13 that that's something that is already in the case or ought 14 to be in the case.
The last objection that I want to raise at this
(]) 15 16 time, subject to rebuttal to what Mr. Traficonte will have 17 to say is that he has asked for telephone logs, travel 18 records, and basically an account of Mr. Donovan's time, and 19 I again submit that that does not go to the question which ,
20 is before the Board, or which is the proper subject of l t
21 discovery, namely FEMA's position and the substantiation of 22 FEMA's position. That is again an unnecessary and undue 23 invasion of our internal processes.
24 JUDGE SMITH: Mr. Traficonto?
25 MR. FLYNN: That concludes my remarks at this i
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14819 1 time.
() 2 JUDGE SMITH: Mr. Traficonte?
-3 MR. .TRAFICONTE: .Yes, thank you your Honor. I 4 -don't think the disagreement here is as broad as I initially 5 did when-I first read through Mr. Flynn's filing. Let's s 6 start with the corrupt process undue influence theory, which 7 is, I think, a fairly apt way of-putting some of the-focus 8 on FEMA that did devour quite a bit of time in New 9 Hampshire.
10 The purpose of the document request that I had 11 . faxed to him on October 19th-in fact did not have that as 12 its primary focus. I'm not even sure it was a secondary 13 focus. There is no question that there is a portion of one 14 of'the 11 requests that seek any communications between the
() 15 Governor of New Hampshire - and FEMA regarding the :SPMC, .and 16 there's a similar request with regard to the White ~ House.
17 Those two separate, separable requests conceivably 18 could be seen as -- or even more inconceivably -- could be 19 seen as a pursuit of the corrupt influence theory. The last 20 of it frankly is my effort to seek what Mr. Flynn has 21 already, it seems to me, indicated on the record is 22 permissible discovery, which is how did FEMA arrive at its 23 position.
24 That's to say, it is permissible for an intervenor 25 to -- or for a licensee or an applicant for that matter, if Heritage Reporting Corporation (202) 628-4888
)
~
a.
14820 1 FEMA were on the other side -- to seek to challenge the FEMA
() 2 position on the adequacy of a plan by trying to
- of,t!'e .
3 issue of what weight should be given to it. Now in part 4 that's a function of what appears in the FEMA review on its
~
5 face, but it also necessarily must include some 6 investigation, some permissible investigation into how FEMA 7 as a matter of a process evolved its position.
8 And it is not -- we do not move forward in thjs 9 regard on some theory that that process was corrupt. But 10 instead we'ro soeking to determine what it was, simply what 11 the process was. So for example, I have learned -- at least 12 I think I've learned from Mr. Flynn -- that this process, 13 PEMA's review of the SPMC is in fact or was in fact 14 different from the normal process that it used with regard
(]) 15 to, or it has used in the past, with regard to a State plan 16 generated by the State or local government.
17 JUDGE SMITH: Well, isn't that necessarily the
)
a 18 case with the Sup 1 and the --
19 MR. TRAFICOllTE : Well, let me just be a little bit 20 more precise. Different not simply with regard to the 21 criteria document, against which it measures the adequacy, 22 but different with regard the staffing of FEMA, of its
- j. 23 personnol, different with regard to the use of the RAC and 24 filtering of the input by the RAC into the FEMA review.
25 I believe that what we have in this instanco is l lloritage Reporting Corporation l (202) 628-4888
r 14821 1 really a one-person production here. I think that
'C 2 Mr. Donovan, for whatever reason, is really the sole author 3 of the_ FEMA position, and that the RAC is a very, very 4 secondary, had very, very secondary input if any input into 5 the actual formation of the relevant judgments of adequacy.
6 And again, I have had no discovery on them so you 7 have to take some of this as simply the sense that I have 8 gotten from conversations with Mr. Flynn. I'm not sure 9 Mr. Flynn disagrees with me, that I have a right to inquire 10 of Mr. Donovan and through document requests, into the 11 nature of the process that PEMA used.
12 I think the problem here is where is the line.to 13 be drawn,.and part of my hesitation -- I don't know, and I 14 answered my own question by saying I don't know. And it
() 15 seems to me part of the problem for the Board is that Mr.
16 Flynn has gotten a document request which I hope the Board 17 has an opportunity to look at, and he's run the flag up and 18 said basically that he's not going to give up any of it.
19 And we just think that that can't be right, that 20 some of this is clearly well within the scope of permissible 21 discovery on FEMA, and some of it perhaps crosses that line 22 on some thoory that is not going to something more, which we 23 don't yet know, but for present purposes, crosses the line 24 into impermissible discovery.
25 That's fine. We can live with that, but we lleritago Reporting Corporation (202) 628-4888
14822 1 haven't heard Mr. Flynn say anything that would justify
() 2 essentially providing Mr. Donovan for a deposition and 3 handing us his resume and handing us the final report and 4 then saying well, he's ready to be, you know, make your 5 inquiry. Tnat's all the discovery of us you're going to 6 get.
7 That's just not in line with existing practice in 8 NRC emergency planning cases, where discovery on FEMA was 9 had by intervenors and for that matter by applicants. Now, 10 and I'll just bo brief on that point, we don't all need to 11 be reminded of the scope of the discovery permitted the 12 applicants. In fact it included a voir dire of Mr. Tannis.
13 We don't need to be reminded of the scope of the discovery 14 permitted the applicants on FEMA, initially, in an answer
()
15 proceeding, and you know we're really asking for, you know, 16 equal time.
17 I mean obviously in this instance FEMA has found ;
18 the utility plan adequate. You want to inquire how. We all 19 know that FEMA took the position in April of 1987, took the .
20 public position that utility planning is not going to be l 21 inadoquato under its view of the regulations. It's 22 obviously changed its mind. We want to make some inquiry as 23 to the basis that it has for arriving at the conclusion that !
- 24 this plan is adequate.
l 25 So I think what we have here is a line drawing i
( lloritage Reporting Corporation ,.
(202) 628-4888 l
14823 1 exercise, and I just can't imagine the line can be drawn
) 2 where Mr. Flynn would have it, which would give us 3 Mr. Donovan in the flesh and his resume, and the FEMA report 4 as we received it on October 21st and nothing more. And 5 maybe it's a matter of going through this in a more request 6 by request basis, but I just -- I think that many of this 7 are just unobjectionable on their face.
8 MR. FLYNN: May I respond, your Honor?
9 JUDGE SMITH: Mr. Flynn.
10 MR. TRAFICONTF May I make one further point, 11 your Honor, before Mr. Flynn responds, because it might be 12 connected to this. Wo intend, we intend and I think-13 hopefully by tomorrow to serve interrogatories on FEMA, and 14 I say that because much of the discussion we've had here'
() 15 this afternoon concerning the schedule I purposely left FEMA 16 out of the picture and we understand that technically that 17 would not able -- that would not be in before the deadline 18 of the 15th, but we didn't even get the report until I think 19 October 17th or' October 18th, and we've reviewed it and have 20 some follow-up interrogatories.
21 So another aspect of the concern we have is that 22 we be permitted some reasonable time here to complete the 23 discovery, to whatever extent the Board views it as 24 permissible discovery.
25 JUDGE SMITil Mr. Flynn.
Heritage Reporting corporation (202) 628-4888
4 14824 1 MR. FLYNN: Yes. On that last point your Honor, 2 let me just point out that we complied with the schedule 3 which we announced at the pre-hearing conference. It 4 shouldn't have come as any surprise that the report arrived 5 when it did.
6 MR. TRAFICONTE: I'm going to tell you what is a 7 surprise. I'm just indicating that we didn't get it until 8 the 18th of October.
9 JUDGE SMITH: This is the easy part. Let's talk 10 about the hard part.
11 MR. TRAFICONTE: All right.
12 HR. FLYNN: Very good. I don't agree with 13 Mr. Traficonte's characterization that what I have told him 14 about the process that we went through is different from any
() 15 other process that we've ever used, different from what he's 16 used to.
17 But I'm saying for the record that I don't accept 18 that characterization. I think there is a way to draw the 19 line which meets my needs and allows him what is 20 permissible. Yes, I agree that it is appropriate for him to 21 inquire who did FEMA talk to, when, what was the process, 22 where did you go. what did you look at in order to evaluate 23 the SPMC.
24 That is not the same as saying what did those RAC 25 members tell you in the RAC meeting? What comments did they lleritage Reporting Corporation (202) 628-4888
- f8
1 14825 1 submit to you in writing? .That process.doesn't apply to-2 non-governmental bodies. It is a public policy argument.
- 3. Iti's an application. of public policy, and there's abundant 4 case law, much of which I cited in my brief, what that 5 policy is.
6 7
8 9
10 11 12 13 14 O"
16 17 18 19 20 21 22 23 24 25 lloritago Itoporting Corporation (202) 628-4888 O .
14826 1 My point here is that that can be observed and 2 still give Mr. Traficonte the discovery that he is looking 3 for out of process.
4 I would also like to point out the wide-ranging 5 discovery I just referred to a few moments ago --
6 JUDGE SMITil Excuse me, Mr. Flynn. Are you utsing 7 a speaker phone?
8 MR. FLYNN: No, Your Honor, I'm not.
9 JUDGE SMITH: There is something causing your 10 voice to cut out as if thoro's an' electronic mute there. It 11 must be you; you'll have to keep your voice up because we're 12 missing a part of almost every sentence.
13 JUDGE HARBOUR: The beginning of a sentence after 14 pauses.
() 15 MR. FLYNN: After which?
16 JUDGE HARBOUR: Pauses.
17 JUDGE SMITil: Pauses.
18 MR. FLYNN: Oh, I went on then to talk about the 19 voir dire in the New flampshire hearings, the wide ranging 20 discovery connected with those hearings, and went on to 21 start to point out that that was very different from the 22 situation that we are faced with here. The Board expressed 23 repeated concern about not understanding what FEMA's 24 position was.
25 In this case, our position has already been llerit. age Reporting Corporation
[} (202) 628-4888
14827 1 disclosed through this report which has been served on all (f 2 the parties. Our position will be consistent. It is not I 3 hard to fcthom. The evaluation of the plan represents a 4 very straightforward comparison of the plan against pending 5 standards of NUREG 654.
6 There can be challenges as indeed there will be to 7 our judgment, but that is not the same situation as having 8 unclear positions before the Board. The inquiry here 9 should be what is FEMA's position, what or when they hope to 10 complete its evaluation of the plan, what is the basis for 11 its judgment.
12 I submit that all of that is proper discovery and 13 is in issue. But beyond that is the caveat that the 14 deliberative process privilege applies. I submit that the
() 15 rest of what the Attorney General's offico has requested is 16 really off on a different subject.
17 JUDGE SMITH: Certainly it's not a different 18 subject, Mr. Flynn. It's, this is the same argument I heard 19 you make up in New Ha npshire that it's not relevant. Well, 20 it is relevant. It'o not a different subject; it is the 21 same subject. Tho question is being all of that, should it 22 bo protected by the deliberativo process privilogo, or is it 23 protected. That's the question.
24 MR. FLYNN: Well, it certainly is an issue before 25 you right now, yes.
Horitago Reporting Corporation
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14828 1 MR. TURK: Your Honor, can;I speak for the Staff?
) 2 JUDGE _ SMITH: 'Yes,'we'd be pleased to hear from 3 you.
4 MR. TURK: I would support Mr. Flynn's request for.
S the maintenance of the deliberative process privilege.
6 First, I'd like to note that again, in this stage of the 7 proceeding, it seems as if Mass A.G. wants to try to make a 8 case in which FEMA is the focus of attention, rather than 9 the adequacy of the plan.
10 And that really is the central issue, that is, 11 whether the SPMC is adequate. It's established precedent 12 when it comes to Staff reviews and FERs that the focus of a 4
13 hearing really should be on whether or not an FSAR or 14 application is adequate and the focus should not be on
(]) 15 whether the staff review or evaluation was performed
- 16 adequately, 17 There's a slight' difference here in which 10 Massachusetts is faced with having to try to overcome'the l 19 burden of rebutting -- excuse me, that didn't come out quite 20 clearly.
21 Massachusetts has the burden of having to rebut l
i 22 the presumption that FEMA's finding is correct. That does a
23 not mean that they should be allow to overcome the privilege j 24 as to RAC deliberations. I would have no objection if they 25 inquire as to whether or not the RAC supported the views i
1
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_____._-.3_
l-14829 1 expressed by Mr. Donovan. ;
2 And only if there is an indication that there was 3 disagreement or that the view of Mr. Donovan and FEMA was 4 not supported by the RAC, would they then come to you and !
5 say, we need more discovery for one or another Isasons. Or l 6 you should permit a broader inquiry as to exactly what the ;
7 RAC member said. ,
- 8 But I don't feel that they should be able to.-
f 9 overcome that privilege right now at the outset. ,
10 And there's something else that should be i t 11 mentioned in contrast to what happ9ned in the New Hampshire 5 12 hearings. As the Board may r:.:all, back then there was a --
13 well, two things happened, essentially. i f
- 14 One, there was a statement in testimony flied by FEMA that implied that the RAC supported the view of FEMA i
O 15 r
16 and there was some indication in the possession of other l
2 17 persons that that was not correct, that there was a chance (
I 18 there to impeach or to try to overcome that statement by r
19 FEMA, that there was some basis to try to make that attempt !
) -
20 to overcome it. So far, we have nothing like that here in l
! 21 the review of the SPMC.
I 22 And secondly, in the New flampshite case, there was 23 a question as to the credibility of the witness, the l
24 particular witness who was then appearing on behalf of FEMA. [
! 25 And that's not an issue here. So whatever grounds may have f i :
j
! IIeritago Reporting Corporation (202) 628-4888 l
i l
c
+
14830 ,
1 existed in the New Hampshire phase for overcoming the
() 2 privilege simply has not been demonstrated to have occurred 3 at this time.
4 JUDGE SMITM Under your approach, Mr. Turk, it 5 never could become ann issue because the-parties would never 6 find out about it.
7 I think --
l, 8 MR. TURK: Under my approach, they'd be able to 9 ask, as Mr. Flynn suggested, what was the process by which i
10 FEMA reached its dec*mion, did they consult the RAC, did 11 they have meetings, did the PAC provide their views, did 12 FEMA consider those views. And I would go so far as to 13 permit the final question, that is, were those viewr l 14 consistent with the views of FEMA.
1 15 JUOGE SMITil: But you would not have them inquire i
(])
l 16 into the reasoning employed by the individual RAC members?
i 17 MR. TURK: No.
i 18 JUDGE SMITH: You*wouldn't do that?'
l i
19 MR. TURK: No. Absent any suggestion that the
! 20 FEMA witness is not telling the truth, or that there's a l 21 reason to doubt the truthfulness of his testimony, I l
i 22 wouldn't allow it to go further.
i 23 JUDGE SMITil Well, that's what discovery's fort j 24 to test the truthfulness of potential witnesses.
25 MR. TURK: There's a balancing, Your Honor. Thero v
Horitago Hoporting Corporation (202) 628-4888
14831 1 is a privilege to be protected. And you have to balance the 3
(3
(_) 2 need for maintaining that privilege against the need of a 3 party in litigation.
4 JUDGE SMITH: Yes, that's correct. But we haven't 5 come to that; you're not making that argument, yet.
6 MR. TURK: I am making that argument. I'm saying 7 there's been no demonstration of any need to overcome the 8 privilege, and therefore the privilege should be allowed to 9 stand.
10 MR. TRAFICONTEt Well, if I could just address il that very point. I understand from Mr. Flynn that Mr.
l l 12 Donovan is going to be the sole FEMA witness. I also l
l 13 understand that Mr. Donovan has had whatever contacts FEMA l
11 has had with the RAC, they have been by and through Mr.
l
() 15 Donovan.
16 If I follow the thrust of Mr. Turk's ingenious 17 argument, I'm supposed to ask Mr. Donovan if Mt Donovan le 18 telling the truth when Mr. Donovan tells us what the RAC has 19 told him. I just, the circularity just dictates tlat 20 something's wrong and that I should be able to have some, 21 you know, limited though it may be and I'm certainly not 22 holding up that it should be an unlimitea, you know, go in 23 there and get everything that they possibly have in the way 24 of communications, but we should be permitted some inquiry 25 as to what went into the procesi. and what forms the basis of Horitago Reporting Corporation
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3-14V32 1 Mr. Donovan's judgments on the adequacy of the plan, n
(_) 2 MR. TURK: Well, Your Honor, they have that 3 already. They have the report which talks about the 4 different matter. that were considered and why the plan is 5 considered adequate. And in depositions, they can challenge 6 Mr. Lonovan ar<d ask hl.n, for instance, did you consider the 7 location of the personnel who'll be relied upon for one or 8 another function.
9 JUDGE SMITH: Let me make some factual inquiries 10 here. Thc posture here is a littlu bit different. "he let -
11 time, we pointed out to Mr. Flynn and Mr. Thomas that i 12 FEMA's going to come to the hearing depending upon the value 13 to be obtained from the RAC advice, then they re going to 14 have to permit some inquiry into the soundness of that
() 15 advice. And that .is pretty much what Mr. Flynn ducided, 16 that maybe they would allow some inquiry into it. And then i 17 there were other considerations.
18 But it seems to me that we have a situation here 19 which is somewhat similar to -- I thought maybe Mr. Flynn 20 would have citea it but I don't see it -- it's Sears v. NLRB i
21 (National Labor ". elations Board) in which you have the case 22 of the NLRB general counsel -- if not general counsel, 23 another legal officer; general counsel, I believe -- who in 24 the first instance makes a determination whether there's an 25 unfair labor practice. If he decides that there is n'ne, Heritage Reporting Corporation (202) 628-4888
)
14833 I then that ends the matter, and that becomes the decision of n)
(_ 2 the NLRB as to which the deliberative process would apply.
3 If he decides that there is an unfair labor 4 practice, he brings his case and must prove it factually.
5 And in that event, the deliberative process privilege would 6 stand and there woulo be no benefit or need to set it aside 7 because the case would have to stand or fall on its legal 8 and factual merits.
9 In this instance, FEMA's going to bring Mr Donovan 10 to the hearing, and their decision is whatevor it is. And 11 typically traditionally it would fit the deliberative 12 procese privilege; that they have arrived at a policy 13 position as an Agency, and they're ready to defend it on its 14 discoverable factual merits.
() 15 Now, where things get complicated is where FEMA 16 says, hey, we've got a neat littje RAC here that supports 17 us. If that's given any weight at all, then the vall'I.ty of 18 the RAC advice has to be probed. The underlying difficulty 19 we have here is that the concept of a FEMA rebuttable 20 presumption in NRC rules is by and large unworkable. I 21 mean, not unworkable, but it becomes by and large irrelevant 22 as we get into any of these cases.
23 I'm inclined to think that the RAC advice is 24 important to FEMA and the deliberative process should be l 25 preserved. But then again, I'm inclined to think also that l
l l Heritage Reporting Corporation j s (202) 628-4888 l
l
14834 1 the RAC should be forgotten in this proceeding, because
() 2 they're not going to be there to testify. Their rationale 3 is not going to be probed. The value of their advice cannot 4 he tested.
5 It is of no value to us. It is ne value to the 6 evidentiary record. It is no value to the Courts on appeal.
7 It is no value to anybody if'it cannot be tested and probed.
8 Now, I think just exactly as we said a year ago, 9 just about a year ago -- more than a year ago -- I said to 10 Mr. Flynn, if you're going to come in with yoral FEMA 11 rebuttable presumption and you're going to come in with your 12 RAC, it's not going to get you anyplace unless you can 13 defend it. And nothing has changed.
14 MR. FLYNN: Your Honor, I detect a question in
() 15 there about what is our posture in this phase of the hearing 16 with respect to the RAC. And it's different than it was in 17 the last phase. I'm happy to share with everybody on this 18 conference call what I told Mr. Traficonte the other day, 19 And that is, what Mr. Donovan did was, as the plan 20 was subm,itted to him, he did field verification of 21 overything that he was capable of verifying. He drafted the 22 RAC report which is a different process than some of the 23 other RAC chairmen, although not all of them. He submitted 24 the draft review of the SPMC to the RAC, asked for comments.
25 The volume of comments was somewhat briefer than Inoritage Iteporting Corporation (202) 628-4888
14835 1 it would be had he waited for them to do the drafting. They
() 2 met a couple of times around the draft and the end product 3 was the result.
4 I'd be happy to represent --
5 JUDGE SMITH: And that's the end result you're 6 going to present in the hearing?
7 Mit . FLYNN: Yes.
8 JUDGE SMITH: Then how can ycu have the 9 deliberative process you're going to depend upon. Or are 10 you going to in any way point to RAC and ask us to give its 11 counseling to Mr. Donovan any weight in this proceeding?,
12 MR. FLYNN: No, and that's my point, Your Honor.
13 It happens that we followed that process. That is what our 14 regulations call for us to do. But that doest. ., but we are
() 15 not asking the Board to give our opinion greater weight 16 because we consulted the RAC, not at all.
17 Mr. Donovan is, I'm satisfied as counsel for FEMA 18 that Mr. Donovan is the best witness we can put forward,.and 19 he's perfectly capable of defending FEMA's conclusions on 20 the strength of his own qualifications and the work that he 21 did.
22 JUDGE SMITilt So your position this time is 180 23 degrees different. The last time I asked you if you were 1
24 going to depend upon the RAC review, you said, yeah. And 25 then I said, well you better, if you're going to, you have Heritage Reporting Corporation l (202) 628-4888
14836 1 to allow it to be probed. This time the RAC is out of it.
(_3) 2 Is that correct?
3 MR. FLYNN: Well, I'm not -- it's not 180 degrees 4 difference, and I had to assign a number. But what I'm 5 saying is we did consider the RAC views. It means something 6 to FEMA that the RAC agrees with us, but I'm not asking the 7 Board to attach any weight to that.
8 JUDGE SMITil Well, yes. You don't even, as far 9 as I can see, you don't even want us to know about it, 10 right? There's no reason for us to even know it.
11 MR. FLYNN: Go into that, yes.
12 JUDGE SMITil Right. And that would be your 13 litigative position in the case?
14 MR. FLYNN: Yes.
() 15 MR. TFAFICONTE: Well, Your lionor, I'd just like 16 to -- well, I have a covole of follow-up points on this 17 development.
18 MR. TURK: John, if you would, could you hold and 19 let me --
20 MR. TRAFICONTE: Sure.
21 MR. TURK: -- add to what Joe said and then maybe 22 you could respond to both of us.
23 MR. TRAFICONTE: Sure.
24 MR. TURK: Your lionor, as was disclosed in the New 25 llampshire litigation, the RAC is advisory to FEMA. FEMA can lieritage Reporting Corporation (202) 628-4886
}
2 14837 1 take their advice or disregard.their advice, or do v whatever '4
() 2 they want with it. So I don't see any problem in.Mr. Flynn 3 saying to you that FEMA is relying on the views and on the 4 testimony of Mr. Donovan. Not that they disregarded the RAC 5 or didn't go through the process of RAC consultation, but 6 Erin is proceeding to present FEMA's views and that's what 7 they're going to do'.
8 MR. TRAFICONTE: Well, that makes Mr. Turk's 9 comment tries to do away with Mr. Flynn's comment. It's 10 either different or it isn't. It sounds to me like FEMA's 11 taking the position that this time we really are getting a 12 different kind of process. We've got a one person. Mr.
13 Donovan has come in, he's come in from Washington. He's 14 been assigned this task and he's conducte( his review. And
() 15 the FEMA report is really just his report.
16 MR. TURK: Mr. Flynn did not say that. Mr. Flynn 17 indicated that he did draft the report and sent it to the 18 RAC to collect their comments.
19 MR. TRAFICONTE: But Mr. Flynn also said that the 20 advise of the RAC is of no legal significance whatsoever.
21 MR. TURK: He said that in the New Hampshire 22 proceeding, as well.
23 JUDGE SMITH: No, he didn't. That's not my 24 memory.
25 MR. TURK: I remember an argument, Your Honor. In Heritage Reporting Corporation (202) 628-4888
14838 1 fact, Mr. Thomas was the one who espoused it chiefly. And I (O
.,_) 2 believo FEMA --
3 JUDGE SMITil No have already had offered in this 4 case and rocoived into evidence, Mr.-Thomas' testimony.
5 MR. TURK: That's right, which has specifically 6 referenced the RAC.
7 JUDGE SMITil Yes, right.
8 MR. TURK: That's the way they phrased it~1ast 9 time. They're not phrasing it that way in their testimony, 10 Well, I haven't seen their testimony, but I presume based on 11 what was just said, that the testimony will como in and say 12 that the RAC told us and that's what we're doing.
13 JUDGE SMITil Well, I think that we can perhaps '
14 agree that Mr. Flynn was somewhat vugue -- and I don't want
() 15 to use the word, evasive, but'he was not as responsive as 16 other attorneys I've soon, when the Board pressed him on the 17 role of the RAC in the proceeding. They seem to'try to have ,
18 the best of both worlds.
19 MR. FLYNN: Your lionor, I will accept that 20 characterizatien. But I would like to point out in my own 21 defense that it took me some time to understand where it's 22 concern was.
23 JUDGE SMITil: Yes. And if they did not have a 24 meeting of the niinds, then there was a problem. But I 25 understood the situation to be thet the only reason we would j lieritage Reporting Corporation (202) 628-4888 O
N
14839 1 inquire into the underlying process of the RAC was because
() 2 it was part and parcel of FEMA's position. And otherwise,.
3 as we said at that time, we recognized the very important 4 value of the deliberative process privilege.
5 And it is important in that you have an obligation 6 to weigh it. If you want to preserve the deliberative ,
l 7 process privilege and the value of that advice, then you 8 can't take advantage of it in litigation. And that's we 9 were and now I think you're coming around to where, l 10 practically speaking, you should have been to begin with.
11 MR. FLYNN: Well, it also happens that the -- ,
12 well, there were two things that are differents one is the :
13 process is somewhat different. That's -- ,
14 JUDGE SMITH: Wait a minute. Wait. l
() 15 That's Mr. Flynn. I 16 All right, go ahead, Mr. Flynn.
17 MR. FLYNN: Yes. What I started to say that Id 18 like to point out there are two things which are different 19 this time, 20 One is that the RAC Chairman drafted the report j
- 21 and is the principal author of the report, of the plan.
22 That's one difference.
4 23 And the other is that evidence which we intend to 24 present, the testimony which we intend to present doesn't 25 depend for its effectiveness or its weight on what RAC said.
4 huritage Reporting Corporation (202) 628-4888
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11040 1 They're offering Mr. Donovan as the spokes person for FEMA (m,) 2 as the person who developed the position and is the one most 3 able to explain it.
4 JUDGE SMITH: All right. We're going to . the 5 Board's --
6 MR. TURK: Mr. Flynn, you have to confirm one ,
7 thing. Mr. Donovan did consult with the RAC.
8 MR. FLYNN: Yes, I've said that several times.
9 MR. TURK: Yes.
10 MR. FLYNN: That's essential. I mean, we did that 11 because we always do that. But that's not part of the case 12 that we're presenting.
13 MR. TURK: Yes. I at least understand that, Your 14 Honor. I don't know if Mr. Traficonte does.
() 15 MR. TRAFICONTE: I was just sitting here in my own 16 mind, forming a proposed finding of fact, Your Honor. Which 17 was that, based on discovery, we would urge that the Board 18 disregard or give no weight to the FEMA position. Because 19 contrary to its normal deliberative and collegial process of 20 getting the expertise of upwards of I think it's eight or 21 nine other Federal agencies, each with separate expertise, 22 when it came to a utility plan for Seabrook, they decided to 23 bring in one of their own members. appoint him RAC chairman, ;
24 and he basically did the whole thing himself.
25 And they, for their part, would just as soon not '
Heritage Reporting Corporation (202) 628-4888 O .
14841 1 hsve us inquire in any way as to what input he received from
) 2 those agencies who are supposed to be more expert than FEMA 3 on various parts of planning.
4 JUDGE SMITH: Is Mr. Donovan --
5 HR. TRAFICONTE: This is the problem I hear.
6 JUDGE SMITH: Is Mr. Donovan Mr. Thomas' successor 7 as the Cnief of tho Radiological and Natural Hazards 8 Division?
9 MR. FLYNN: No. He is detailed to Region One.
10 llis home is in the State of Washington. In fact, he lives 11 there if he hasn't moved to the East Coast. He has other 12 duties in the State of Washington, but he's detailed to 13 FEMA's Region I office for the matters pertaining to' 14 Seabrook.
() 15 MR. TURK: He is also, Your Honor, the RAC 16 Chairman of FEMA Region 10 which is located in the State of 17 Washington.
18 MR. FLYNN: That's correct.
19 MR. TURK: llis normal responsibilities are to 20 Chair the RAC and to review plans.
21 JUDGE SMITil: Is he, he's representing the views 22 of the Federal Emergancy Management Agency in this 23 proceeding?
24 MR. FLYNN: Yes.
25 JUDGE SMITil Regardless of what his position is IIeritage Reporting Corporation
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14842 1 with respect to the RAC?
() 2 MR. FLYNN: Yes.
3 JUDGE SMITH: He could have been perhaps not the 4 Chairman of RAC, and still have been selected for that, just 5 as Mr. Keller was?.
6 MR. FLYNN: Yes.
7 JUDGE SMITH: Is that correct?
8 MR. TURK: Well, -- Your Honor, this is Sherwin 9 Turk. I won't attempt to speak for Joe Flynn but there's a 10 difference. Mr. Donovan's normal duties include the review 11 of off-site emergency plans and presenting the technical 12 positions on behalf of FEMA with respect to those plans.
13 Mr. Keller, by contrast, was an outside consultant 14 omployed by a DOE laboratory.
() 15 JUDGE SMITH: But nevertheless, he had no 16 responsibility with respect to RAC but he came there and he 17 presented the technical position of FEMA as to which the 18 parties urge that the Board find to be not rebutted under 19 Section 47(a)(2).
20 MR. FLYNN: There may be a misunderstanding here.
21 It is not irrelevant that he was RAC Chairman. He, that's
' the position to which he was assigned, to which he was given 22 23 --
24 JUDGE SMITH: You mean Donovan? Donovan?
25 MR. FLYNN: To Donovan.
Heritage Reporting Corporation (202) 628-4888 I
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14843 1 JUDGE SMITH: It's not relevant or it is relevant?
'2 MR. FLYNN: Well, --
i 3 MR. TURK: He said it was relevant.
4 MR. FLYNN: -- it's relevant in the sense that 5 that is the vehicle by which he got involved in the review l 6 of this plan.
7 MR. TRAFICONTE: That isn't just a contingent 8 fact, is it, Mr. Flynn? That's what I can't understand; 9 I'm sharing the --
10 MR. FLYNN: Well, it's confusing because we've got 11 three different people trying to interpret this three ,
- 12 different ways, I think. All I am saying is that the Board 13 shouldn't give Mr. Donovan's testimony any greater weight ;
14 than he deserves because of the persuasiveness of his O 15 testimony because he happens to have consulted the RAC, or .
16 because he happened to have been the RAC Chairman. ,
17 JUDGE SMITil And'you're saying that this presence j 18 there as a witness does not depend upon him being a RAC 19 Chairman. Now, they're related but it doesn't depend upon 20 it.
21 MR. FLYNN: I think that's what I'm saying. Part j 22 of the reason he was chosen as our witness was he, more than :
23 any other person, has been involved with the review of that 1 i
24 plan. j i
25 JUDGE SMITH: Well, I think we have a Sears v. t l i lloritage Roporting Corporation (202) 628-4888 F
N
14844 1 NLRB situation here, f3 ~
(,) 2 MR. TRAFICONTE: Your Honor, I did not hear that 3 sentence. Could you repeat that?
4 JUDGE SMITH: Well, I'm alluding to the case, I 5 haven't seen it cited lately but it's a case, when FEMA 6 arrives at its final position and is willing to defend it in 7 the hearing on the factual merit.s, on the logical merits, 8 the advice it receives from its advisors should be 9 privileged.
10 Now, if fella receives f actual information f rom 11 RAC, factual information from its advisors as to which it 12 puts into its testimony and conclusions, that's another 13 matter. But if it's simply a matter of advice, helping FEMA 14 understand the situation, and then FEMA in turn defends its
() 15 position on the factual and logical merits, you have a sears 16 v. NLRB situation. Which, if I'm not mistaken is, and I ,
17 don't have a cite for you, but I think it was decided on the 18 same day that Gruman v. Renegotiation Board was decided in 19 1975. And you can probably find it riglt next to there in 20 the U.S. Reports.
21 Aren't you all familiar with this case?
22 MR. TRAFICONTE: I have to admit, Your Honor, that !
23 I'm not. But I think I get the thrust of it as you've i
24 described it. Factual input cannot be concealed or not 25 disclosed under some theory of deliberative process, haritage Reporting Corporation (202) 628-4888 2
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14845 1 JUDGE SMITH: Factual, and that's not my point.
() 2 However, what you're saying is true. Factual input cannot L
3 be hid under the deliberative process. j 4 MR. TRAFICONTE: Right, right.
5 JUDGE SMITH: Pure advice to the FEMA official who i
, 6 then must defend his position with or without that advice,
+
7 with or without it, who then must defend his position based i
8 upon the factual and logical merits is entitled to that 9 privilege, to protect the availability of that advice. l 10 MR. FLYNN: I will represent that that'is the !
11 situation that we have. We are not coming to the hearing or l 12 to the deposition with actual information which we gleaned i 1
13 from the other RAC members. It was the advice of the type j 14 that you suggested as the alternative.
() 15 JUDGE SMITil: As a matter of fact, it is important 16 that tho advice available to the FEMA officials, bo it bad 17 advice, good advice, any kind of advice, and it can be !
l 18 consistent with or inconsistent with its final position, and !
19 still must be protected. .
f 4 i l 20 MR. FLYNN: Your lionor, I would agree with that, !
a :
i 21 but I'd like one clarification. When Mr. Traficonte i i I 22 indicated that factual inputs cannot be hidden, with which 23 Your Honor agreed -- [
24 JUDGE SMITil That's right.
t 25 MR. FLYNN: -- I have no troubic with that as long [
l !
I j lieritage Reporting Corporation l (202) 628-4888 j i ;
i
~ . _ . _ _ _ , _ _ _ _
g 1 .
14846 1 as we understand that when RAC members give advice, it's
() 2- based upon the facts and considers the facts that is known 3 to --
4 JUDGE SMITH: That's different.
4 5 MR. FLYNN: Right, but in other words, the advice 6 may say, look at these particular facts of which you are 7 already aware, and here's my view of how that affects your 8 decision.
9 JUDGE SMITH: Yes, here we're talking about --
10 MR. FLYNN: You can't withhold that whole thing if
- 11 the facts ere already present, that's just a restatement of i 12 facts in promulgation of the advice.
13 JUDGE SMITH: Remember the Costel case, you know,
! 14 the Costel -- well, you ought to. It's up there in New i
() 15 llampshire, the Costel v. EPA case where he got his advice 16 off the record with new factual info. What I'm saying is, i
17 if the RAC gave advice which advice was predicated upon the 18 facts made known in this case, and made known and made j 19 available in this case, the nature of that advice is to be 20 protected.
, 21 If Mr. Donovan is going to come to the hearing 22 with factual input, say from the meteorologist there, you i
i 23 know, now meteorological information or whatever, then the l
24 fact that it is an advisory group does not protect it. It 25 is a legitimate source of discovery.
Ileritage Reporting Corporation (202) 628-4888
14847 1 It is advice and not any factual input which is
() 2 protected.
3 JUDGE SMITil: Now, you have as you say, a dog, in 4 this fight, Mr. Dignan. We want to hear from you, too.
5 MR. DIGNAN: I'm not sure that I can add much 6 except to say that I agree the request is too broad. I 7 wanted to be clear on one thing.
8 As I understand it, if Mr. Flynn loses all the way 4
9 here -- I'm not saying he should or will -- al.', he's asking 10 for is to the 18th to produce documents?
11 JUDGE SMITil: No, no, lie wants a ruling on 12 several items here and the time, we didn't even get to the 13 time.
14 MR. DIGNAN: No, my point is what he wants, the
() 15 most he wants is the 18th, and since I have said I r ,'t 16 file any disposition motions until the 19th or ay, at that 17 point I really ceased to have a dog in the figr,'
18 JUDGE SMITil: Okay.
19 MR. DIGNAN: I agrue entirely with the position 20 that Mr. Flynn is taking in terms of the breadth of this 21 business and the relevancy of such things as the White !!ouse 22 and that sort of thing. But I don't want to bore you by 23 repeating it.
24 JUDGE SMITH: All right. Now, as to the RAC, our 25 ruling is this.
lieritage Reporting Corporation (202) 623-4888
14848 1 That based upon your representation that Mr.
( ). 2 Donovan's testimony representing FEMA will stand or fall on 3 J +. 4 own factual merits and its own logic, without regard to 4 the RAC advice, we will rule that the RAC advice is covered 5 by the deliberative process privilege.
6 with respect to communications from Governor 7 Sunnunu and the white House, it may not have been your 8 intention, Mr. Traficonte, but had you not explained that, 9 we would have thought that perhaps there was the corrupt 10 process underlying that. And we're not going to support 11 discovery under that theory.
12 As it turned out, FEMA's final position in the 13 earlier phase through Mr. Keller is the, just as the Board 14 predicted from the first day of this hearing, is the input
() 15 from FEMA that we found to be valuable. We anticipate that 16 Mr. Donovan's testimony will have to stand or fall upon his 17 logic, the factual predicates for it, and his legatory 18 analysis.
19 I think that the last hearing demonstrated that 20 FEMA's findings do have to stand upon their own merits if 21 they're going to be of any value in a contested proceeding, 22 as this one is.
23 Now, what do we have left?
24 MR. TRAFICONTE: Well, Your lionor, quite a bit.
25 As I said at the outset, I think that certainly we wanted Iteritage Iteporting Corporation (202) 628-4888
14849 1 RAC input documents. But if you just pass your way through
() 2 the request, and there's still other material that I:
3 continue to believe that is not protected by deliberative 4 process.
5 JUDGE SMITH: Okay, right. We're coming to Supp 6 1, now. And.I don't know how to handle that one. I mean, 7 that's --
8 MR. TRAFICONTE: It seems to me it would be.part 9 of regulatory analysis that you were just outlining.
10 JUDGE SMITH: Well, the difficulty with NUREG 0654 11 and PEMA 1 are no mere than staff guidance as to which the 12 Doard is not bound, but hes become the universal study by 13 which emergency plans are judged, even the parties, there's 14 not even much dispute in this because even interveners site
() 15 the standards of 0654, and the Commission has repeatedly 16 referred to NUREG "554 as a basis in their adjudications for 17 arriving at various conclusions.
18 So NUREG 0654 has almost achieved the status, or 19 at least the persuasive value of a regulation. Now, Supp 1, 20 I don't know about that. That's different. I mean, Supp 1 21 is the product, as far as I can see, of some NRC Staff 22 n, embers and some FEMA Staff members, and nothing more, 23 absolutely not one thing more. It is just their view.
24 If FEMA has used Supp 1 as a criteria and a 25 standard for its evaluation, if they don't want anybody to Heritago Reporting Corporation (202) 628-4888
14850 1 go behind Supp 1, well, then that might put a limit on the
() 2 value that can be given to FEMA's evaluation. If they're 3 going to depend upon 1+, I think that the analysis 4 underlying it should be provided.
5 I don't know. To us, as it stands right now, it's 6 just another paper, an<; thor picco of paper.
7 MR. TURK: Your Honor, this is Sherwin Turk.
8 I don't agree with that. From what I understand 9 about this discovery from the Mass A.G.'s offico, what it 10 looks to do is to get at the background of NUREG 0654, Supp.
11 1. That's simply not an issue. If the Board is correct, 12 and I think they definitely are, that NUREG 0654 is a.
13 guidance document and indeed Supp 1 is a guidance document, 14 the Mass A.G.'s approach should be to try to show that there
() 15 are some other means of compliance with NRC regulations 16 apart from NUREG 0654, Supp 1.
17 It simply doesn't matter why Supp 1 was drafted.
18 The issue is hcw do you satisfy the regulaticns. Supp.1 19 providos you a guidance as to one motbod of compliance. The 20 Mass A.G. may decide they want to show some other means.
l 21 JUDGE SMITil: All right. Well, let me say this.
22 The Supp 1, say it's equivalent to a regulatory guide.
23 MR. TURK: And it is, Your lionor.
24 JUDGE SMITil: All right, with respect to the 25 applicants, the NRC Staff and FEMA could not be heard to say lloritage Reporting Corporation (202) 628-4888
14851 1 that if they moet the requirements of Supp 1, they do not 2
() 2 comply with the regulations. ,
3 MR. TURK: I'm sorry?
4 JUDGE SMITH: With respect to the license 5 applicant or the license holder, and when NRC puts out a 6 regulatory guide or a guidance document, they will be pretty 7 well stuck with that guidance viz a viz the license holder ,
8 or the license applicant.
9 MR. FLYNN: Yes, Your Honor, that is our position.
10 JUDGE SMITH: Right.
11 MR. TURK: I'm not sure I understand it, Your '
12 !!onor .
13 JUDGE SMITit Well, not with respect to a third 14 party, in my view. Who is giving this guidance? Uho is the
() 15 guider, who is the guide on this, on Supp l? Who? What's 16 his name?
17 MR. FLYNN: I would like to address that. I want 18 to be sure t!.at you understand the evolution of Supp 1.
19 When the NRC changed the rule, that is, 50.47C.1, the ,
i 20 provision for utility sponsored plans, the problem became l l
21 how you apply NUREG 0354 to a utility sponsored plan. There l L
22 are things in NUREG 0654 that obviously pertain to State and !
23 local governments and those governments only. !
I 24 The evolution of Supp 1 was in adaptation of NUREG [
25 0654 so that those references or those requirements that 4
8 l lioritage Report ' ceporation (202) '
i i
_ _ _ _ _ _ . _ _ - . - _ _ _ _ - . - - _ _ _ - _ _ _ - . _ . . - . _ . . . _ . -_ . .., ~
14852
-1 could not be made to apply to utilities were removed. And
() 2 that's what it was, it was an adaptation.
3 MR. TURK: If I can clarify that a little bit, 4 Your Honor?
5 As I recall, it was FEMA's request that there be 6 an additional guidance document developed beyond 0654 which 7 deletes statements such as "state and local government are 8 responsible to do something" and instead made specific 9 reference that those requirements are to be subsumed by 10 utilities. It really was a sort of a typographical
- 11 correction of 0654 to specifically reference utilities.
12 JUDGE SMITH: We understand where it came from.
13 MR. TURK: But in fact, it is a guidance document 14 and if an applicant demonstrates that it complies with 0654,
() 15 Supp 1, then in my view, that's good enough to satisfy the 16 regulations.
17 JUDGE SMITH: Well, that is with tespect to the 18 NRC Staff, but not with respect to an intervenor.
19 MR. TURK: Well, the intervenor's option at that 20 point is to say, wait u minute, the regulations state 21 something different from -- or, I'm sorry, the regulations 22 specify something which cannot be fulfilled except in some 23 other matter.
24 JUDGE SMITH: Well, do you believe an intervenor 25 is bound by the Staff's interpretation of the regulation Heritage Reporting Corporation (202) 628-4888
14853 1 through a guidance document? Where's their hearing?
() 2 MR. TURK: As I recall the use of guidance 3 documaats in our proceeding, the guidance document 4 establishes one means to comply with the regulations.
5 JUDGE SMITH: With respect to --
6 MR. TURK: And only to comply with it, it's one 7 means.
8 JUDGE SMITH: Oh, yes, what you say is correct, 9 Mr. Turk, but only with respect to the Staff and the license 10 holder.
11 MR. TURK: And with respect to the Commission, 12 itself.
13 JUDGE SMITH: No.
14 MR. TURK: The argument that applicant i 15 demonstrates that it complies with our guidance documents.
(])
16 And the Commission has a basis to say, that's enough under 17 our regulations.
18 MR. FLYNN: I understand your point to.be, Your 19 Honor, that the interveners are free to argue that the' 20 standard should be something else or the interpretation of 21 the regulation should be something other than what is 22 announced in the guide, in the regulatory guide.
23 JUDGE SMITH: That's what I believe.
24 MR. FLYNN: We would accept that as a correct 25 statement of the law.
Heritage Reporting Corporation (202) 628-4888 O
i
14854 1 JUDGE SMITH: They are free to argue that even
() 2 though you comply with Supp 1, you do not comply with the 3 regulation.
4 MR. FLYNN: Yes. That is a legitimate argument.
5 JUDGE SMITH: And I think it is a correct one, 6 valid one. But that doesn't handle the whole problem as, 7 again, what are we going to do with Supp 1 at the hearing?
8 We've always accepted NUREG 0654, largely because 9 of its inherent logic and because of its long tradition and 10 because of the Commission's express blessing of it. I don't 11 see where that is on Supp 1. That's the problem. And I 12 don't know how important it is.
13 We can read the regulation as well as the authors 14 of Supp 1. That's different. Supp 1 tends to be a
() 15 regulation interpretation while NUREG 0654 is the basis for 16 the regulation in a large respect.
17 MR. TURK: Your Honor, as I recall Supp 1, and I 18 don't have it in front of me; I'm out of the offico at this 19 time, that it really does nothing more than rimply makes the 20 specific mention of utilities. And really it doesn't add 21 any kind of a requirement or any kind of a guidance beyond 22 specifically referring to utilities in lieu of the prior 23 reference to state and local governments.
24 JUDGE SMITH: Exactly, Mr. Turk. And I view Supp 25 1, as far as the NRC is conces~ned, as saying, you, the NRC
, Heritage Reporting Corporation (202) 628-4888
t 14855 I staff, the NRC St, t arr ars say to a licensee'that if you L O 2 comgiv with Suge 1 - -
11 deem reu as havine comg11ed with ;
3 the respective regulation. It says, we will, you, as the 4 Staff, not the NRC Commissioners in an adjudicatory sense. !
5 It is not a regulation. That you do not bind interveners l
, 6 with that or foreclose yourself from contending otherwise in
- 7 any adjudication. f 8 MR. TRAFICONTE
- Your Honor, could we go off the l 9 record for just. about 30 seconds? !
t 10 JUDGE SMITH: Yes. You mean you want to ta1k to f l 11 us off the record.
1 12 MR. TRAFICONTE: Well, I'd like to talk to the 13 whole group of us off the record.
l 14 JUDGE SMITil All right, off the record.
15 (Discussion held off the record.)
j 16 JUDGE SMITils (Back on the record.)
j 17 We've already ruled on the RAC. We're not going 18 to give you Mr. Donovan's telephone logs. I don't see that I
[
- 19 that's going to lead to anything at all that's going to help 1 20 We're not going to
) you, considering our ruling on the RAC.
{
f 21 support a corrupt process through discovery.
f I 22 We will not arrive at any conclusion on tho' I
23 regulatory significance of Supp 1, other than my general 24 discussion of it, except we will rule that we don't need 25 Supp 1 in a contested proceeding with interveners to the l Heritoge Reporting Corporation (202) 628-4888 O !
I i
k
r 14856 l
1 extent, as I read it, and I'll go back and read it again, it .j l () 2 is-simply an interpretation of a regulation as to which ;
L 3 we're bound to interpret ourselves. So therefore, any j 4 discovery into the background of it is not likely to lead to f
~
i 5 ovidence that you can uso. r L
6 And I'm going to read Supp 1 again and see if 7 that's correct. That's different from the basic document !
8 which has a lot of technical bases in it. So that will be l 9 our ru)fng. We won't require production of the underlying l i !
t 10 rationale of Supp 1 at this time. ,
4 11 We'll return to it after we look at it. '
I
- i l 12 And I think that pretty well takes care of the j 1
13 dispute.
14 MR. FLYNN: There was the question about documents ,
]
- () 15 relating to the selection of Mr. Donovan? f 16 JUDGE SMITil That's out.
j 17 MR. FLYNN: Okay. :
. t 18 Now, what's the time scale? l i !
! 19 MR. FLYNN: There's no problom. We can comply i l !'
- 20 with the remaining discovery requests in time for the 21 deposition on the 9th.
- 22 MR. TRAFICONTE
- Now, let's see if I understand 23 the scope of the ruling.
)
l 24 Mr. Flynn, are you interproting the ruling to be j 25 that you'll be satisfying this request if you give me the lloritage Reporting Corporation (202) 628-4888 O .
e
14857 I
l! I resume of Mr. Donovan and --
() 2 MR. FLYNN: No, we -- John, I told you the other 3 day, we'll give you Lne resume plus the records of our 4 correspondence with Now Hampshire. There may be some other 5 things, too. I'll have to go through and look at what we 6 have. But you'll get that much at least.
7 JUDGE SMITH: All right. Now, I think we've come 8 far enough that if you can't resolve it on what we've ruled, 9 you can ask for an off-the-record telephone conference 10 tomorrow with just the two of you, which we can set up 11 immediately.
12 Would that be all right?
13 MR. TRAFICONTE: That's fine.
1 14 JUDGE SMITH: Then Mr. Traficonte can go on, okay?
l l
() 15 Anything further this evening?
16 MR. TURK: Your Honor, just to note one thing for 17 the record. There is a pending motion for summary 18 disposition filed by the applicants which Mr. Traficonto has 19 asked for an extension of until, response until November 20 7th, and the Staff had asked for November 21, two weeks 21 after the Mass A.C.'s response.
22 JUDGE SMITH: Okay. Now, Mr. Traficonte, bef or e 23 you leave, when I gave Mr. Turk that extension on the 24 telephone, I pointed out that if he supports the Applicant's 25 Motion for Summary Disposition, you get another round if he Heritage Reporting Corpo.stion (202) 628-4888 O .
4 14858 1 raises any riew -- if he supports it, you get another round.
() 2 MR. TURK: To the extent to which I raise new 3 arguments not covered by the applicant.
4 JUDGE SMITH: Yes. And if you don't raise new ;
5 arguments, why're you going to do it?
6 MR. TURK: I'd like to think my writing carries 7 somo persuasion in thic, Your Honor.
8 JUDGE SMITH: Well, then, there you go, you see.
9 Tho bottor you are, t he moro Mr. Traficonto gots another 10 shot at it. But you read the rule, just that we're 11 cognizant of it. :
12 Anything further7 13 All right, we're adjourned. Thank you very much.
14 (Whereupon, at 5:00 p.m., the hearing in this
() 15 matter was concluded.)
lo t
17 j t
18 i
19 i 20 21 l 22 23 28 25 Heritagu Reporting Corporation p3 (202) 628-4888 l U
1 CERTIFICATE 2
() 3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter of:
5 Name:
50-443-OL OFP SITE 7 Docket Number: 50-444-OL E!!ERGENCY PLANNING 8 Place: Bothesda, !!aryland 9 Dates November 2, 1988 10 were held as herein appears, and that this is the orJginal i
) 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Commission taken stenographically by me and, 13 thereafter reduced to typewriting by me or under the direction 14 of the court reporting company, and that the transcript is a 15 true and accurate record of the foregoing proceedings.
16 /S/ ' f. ( cv-e 4 17 (Signature typed): K. C. SEKANDER 18 Official Reporter f
19 Heritage Reporting Corporation 20 21 22 23 24 25 Heritage Reoorting Corporation (202) 628-48W8 O
.