ML20212M679
| ML20212M679 | |
| Person / Time | |
|---|---|
| Site: | Limerick, Diablo Canyon  |
| Issue date: | 08/22/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#386-531 OLA, NUDOCS 8608270022 | |
| Download: ML20212M679 (39) | |
Text
ORLGlNAL UN11ED STATES O
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO:
50-275 OLA 50-323 OLA DIABLO CANYON RERACK SCHEDULING O
LOCATION:
WASHINGTON, D.
C.
PAGES:
225 - 262 i
DATE:
FRIDAY, AUGUST 22, 1986 I
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ATOMIC SAFETY AND LICENSING BOARD b
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In the Matter of:
Docket numbers t
6 DIABLO CANYON RERACK SCHEDULING 50-275 OLA 2
7 50-323 OLA
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11 Friday, August 22, 1986 The telephone prehearing conference in the above-entitled matter convened at 1:30 p.m.
14 i 5
15 BEFORE:
l 16 i JUDGE B.
PAUL COTTER, Chairman j
Atomic Safety and Licensing Board r
U.S.
Nuclear Regulatory Commission 17 E
Washington, D. C.
20555 t
10 JUDGE GLENN O.
BRIGHT, Member Atomic Safety and Licensing Board 19 U.S.
Nuclear Regulatory Commission E
Washington, D.
C.
20555 20 I JUDGE JERRY HARBOUR, Member l
21 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission P
22 ]
Washington, D.
C.
20555 E
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226 APPEARANCES:
2 On behalf of the Applicant:
3 BRUCE NORTON, ESQ.
PHIL GRANT, ESQ.
4 Pacific Gas & Electric 77 Beale Street 5
San Francisco, California 94106 6
j On behalf of Mothers for Peace:
7 j l
NANCY CULZER 8
On behalf of the Sierra Club:
9 RICHARD FERGUSON On behalf of Mothers for Peace and the Sierra Club:
11 !
l DIANNE GRUENEICH r~
On behalf of CODES:
(.)3 13 LAURIE McDERMOTT 14 15 16 17 18 19 20 !
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2 JUDGE COTTER:
We will proceed on the record.
3 The reason the Board called this conference call wa's to set 4
an agenda for completing the preliminary steps necessary to 5
reach hearing.
We have received from individual parties a 6
report under Section 1 relating to contention 1-A of the 7
Sierra Club and understand that all but two sections of the 8
Sierra Club's contention 1-A has been resolved; is that 9
correct, Mr. Ferguson?
10 MR. FERGUSON:
Yes, that's correct.
11 MS. MC DERMOTT:
Judge Cotter, this is Laurel 12 McDermott.
Mr. Cotter, I would question how could these 13 contentions be resolved of f ~ the record with of f-the-record
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14 information?
15 JUDGE COTTER:
They are resolved as far as 16 Dr. Ferguson is concerned and so I assume he is withdrawing 17 them on that basis?
18 MS. MC DERMOTT:
This is a public proceeding; is 19 that correct?
20 JUDGE COTTER:
Have you been copied on the 21 correspondence between Pacific Gas & Electric and 22 Dr. Ferguson?
23 MS. MC DERMOTT:
Yes, I have.
Have you received 24 my copy that I sent on the 18th of August to you?
25 JUDGE COTTER:
I didn't understand what your
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concern was.
In the first place, this was not your
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contention and in the second, I understood you were 3
receiving copies of the exchange between Pacific Gas &
4 Electric and Dr. Ferguson.
5 MS. CULZER:
I can't represent I have received 6
all of the information because I have not, but I have 7
received some of the information between PG&E and 8
Dr. Ferguson.
However, my concern is that these are public 9
hearings and this information is to be resolved of f public 10 record.
11 JUDGE COTTER:
The question is whether 12 Dr. Ferguson wants to advance those contentions.-
It is my 13 understanding that he no longer wishes to advance the
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14 contentions, except for parts 3 and 4.
15 MS. CULZER:
May I ask a procedural question, 16 under what federal criteria this phone conference is being 17 held?
18 JUDGE COTTER:
It's under the general rules and 19 responsibilities of our licensing Board to expedite _ the 20 hearing.
It's simpler to do it this way than to try and 21 I
assemble all the parties in one place.
I 22 MS. CULZER:
Is this a prehearing conference?
23 JUDGE COTTER:
It's in the nature of a 1
24 scheduling conference, yes.
25 MS. CULZER:
This is a scheduling' conference, CE) l ACE-FEDERAL REPORTERS, INC.
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g) but we are resolving contentions?
2 JUDGE COTTER:
We are not resolving contentions.
3 Dr. Ferguson is withdrawing his.
4 MS. CULZER:
I did not hear what you said.
5 Dr. Ferguson is withdrawing his contentions?
They are not 6
being resolved, they are being withdrawn?
7 JUDGE COTTER:
That is my understanding.
Is 8
that correct, Dr. Ferguson?
9 MR. GRUENEICH:
I understood the contention was 10 being resolved and I didn't understand one of the purposes 11 was to make an assessment of whether we would actually 12 withdraw contentions.
13 JUDGE COTTER:
Who is speaking?
10
(_/
14 MS. GRUENEICH:
. tis is Diane Grueneich.
It 15 seems to me perhaps this is an issue we don't need to 16 resolve at this time, in that, as I understand it, the 17 purpose of this call is to determine what additional steps 18 we need to take, prior to the hearing, specifically with 19 regard to discovery.
It seems to me that with regard to 20 these particular contentions, we are in agreement that we 21 don't need to do further discovery on this and that it will 22 be a subsequent matter as to whether they are actually 23 withdrawn or whether some steps should be taken formally at 24 the hearing to make sure that the record shows how they
'i 25 have been resolved.
So I'm not sure that, in fact, we need O
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e-1 to resolve the issue at this time.
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JUDGE COTTER:
Well, I had asked for a joint 3
report from the parties,. seeking to resolve the contentions 4
which were'in the nature of requests for information.
5 Dr. Ferguson has written to the Board and said that he has 6
obtained the information that he needs with respect to all 7
but two parts of contention 1-A, and that, in his judgment, 8
all but those two parts are resolved and therefore there 9
does.not seem to be any need for us to pursue the matter 10 any further.
11 MS. MC DERMOTT:
This is Laurel McDermott, and I 12 believe there is a problem with the word " parties," because 13 the way I understand it is on the 27th of June there were
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14 no parties.
There were just petitioners.
That may have 15 left this proceeding open to interpretation as to what a 16 party was and who was supposed to be involved with these 17 contentions.
18 JUDGE COTTER:
No, there was no question, 19 Ms. McDermott.
The ruling of the Board on June 27 admitted 20 three parties.
One of those parties had several 21 contentions, one of which was contention 1-A, the Sierra 22 Club contention 1-A, and the Board directed the Sierra Club 23 to exchange information with PG&E, and to determine whether 24 they had sufficient information so that they did not need 25 to pursue contention 1-A any further.
They have since O,
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1 responded that they have obtained the information that they g%)
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2 need with respect to all but two portions of contention 1-A.
3 MS. MC DERMOTT:
I believe some of these 4
meetings took place on the 7th of May before there were any 5
parties to this proceeding.
6 JUDGE COTTER:
That's immaterial, Ms. McDermott.
7 The question is whether there's any need to pursue the 8
contentions originally filed and Dr. Ferguson indicated 9
there is not, except with respect to all but two portions 10 of contention 1-A.
-11 MR. FERGUSON:
I believe that we have quite a 12 few procedural problems that need to be sorted out before 13 we decide what does and does not need to be pursued in this
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14 proceeding, your Honor.
15 MR. MC GURREN:
Your Honor, this is Henry 16 McGurren, I wonder if she understands we are only talking 17 about Sierra Club contention 1-A, not all the other 18 contentions.
19 MR. FERGUSON:
I do understand that, but my l
20 problem is this is supposed to be a public hearing.
Where 21 is the public?
22 MR. CHANDLER:
Your Honor, this is Lawrence 23 Chandler.
One of the things that may not be clearly 24 understood by Ms. McDermott is that this Board's 25 responsibility in the context of a public hearing is to l
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l resolve the issues put forward by the parties and not to V}
2 engage in unlimited public hearings on each and every issue 3
not raised by the parties, unlike a routine construction 4
permit proceeding.
5 In that respect, then, if'a party is satisfied 6
that its concerns have been resolved through whatever 7
mechanism, that party is free to withdraw or seek to 8
withdraw issues that it considers to be resolved.
And that 9
the hearing, then, is limited to those issues which the 10 proponent of the issue wishes to continue to contend need 11 resolution through litigation.
12 In this instance, Dr. Ferguson isn't satisfied 13 that*several of the concerns he previously raised that have O'-
14 been adequately resolved and, therefore, we assume no 15 longer needs or wishes to pursue those through litigation 16 and, consistent with the Commission's regulations, then, it 17 is not something.this Board needs to litigate in the public 18 hearing.
19 MS. GRUENEICH:
Your Honor, this is Diane 1
20 Grueneich, again, the attorney.
I reiterate, again, we 21 received no notice that one purpose of this phone call 22 would be to ask us at this time to make a decision as to 23 which contentions we would withdraw or not withdraw.
I 24 have not had an opportunity to consult with my client and 25 at this time we are not prepared to make a statement on O
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1 voluntarily withdrawing any contentions since we have not
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2 received a notice.
3 MR. CHANDLER:
Mr. Chandler again, your Honor.
4 I'm not clear.
I know Ms. Grueneich is representing the 5
Mothers for Peace and I believe Sierra Club before the 9th 6
Circuit in some related litigation.
Frankly, I'm not aware 7
-- I have been out of the office -- I have not seen a 8
notice of Ms. Grueneich representing the Mothers for Peace 9
and Sierra Club in this proceeding.
10 MS. GRUENEICH:
It has been filed.
It has been 11 filed.
I have filed a notice of appearance with the NRC.
12 MS. CULZER:
When did you file it?
13 MS. GRUENEICH:
I filed it with the NRC.
I can 14 send copies.
15 MR. NORTON:
This is Bruce Norton, PG&E, we 16 never received a notice by Ms. Grueneich.
In fact, we were 17 curiously awaiting to see whether she would appear in the 18 NRC proceeding.
Today is the first indication we have had 19 that she is representing the Mothers for Peace.
20 MS. GRJENEICH:
Pardon?
21 JUDGE COTTER:
One at a time, please.
I didn't l
22 hear the end of what you said, Mr. Norton.
23 MR. NORTON:
I simply said today is the first 24 notice that we have had that Ms. Grueneich is, indeed, 25 representing the parties in these proceedings.
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We haven't received any copy of any notice (v}
2 either.
3 MS. GRUENEICH:
The notice was attached to the 4
application for stay that was filed with the NRC.
I'm 5
curious as to why no parties objected previously in that I 6
have signed documents that have been filed with the NRC.
7 If there is a formal objection to my continuing on this 8
conversation and if there is a wish a party be taken off 9
this conversation, I would like to know at this time.
10 Otherwise I will assume that I can participate.
11 MR. NORTON:
In the 9th Circuit, on August 19, 12 Mr. Lock specifically asked Dr. Ferguson if he was 13 represented by counsel because he felt he should be dealing Ak-14 with his counsel if he were,'and Dr. Ferguson said no, he 15 was not represented by counsel in these proceedings.
So 16 I'm a little more than confused by Ms. Grueneich's comments.
17 MS. GRUENEICH:
Mr. Norton, I'm here on the 18 phone.
I made the statement.
I'm representing counsel.
19 Is that clear?
20 MR. NORTON:
I know, but why should Dr. Ferguson tell us on the 13th that you were not representing him?
21 22 JUDGE COTTER:
All right, please.
I think the 23 representation that Ms. Grueneich has made at this point is 24 sufficient.
I also think that we have been pursuing a red 25 herring with respect to Ms. McDermott's understandings of O
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what action Dr. Ferguson has taken in his responding under V
2 the request for a joint report to this Board.
3 The reason that I raised the matter initially 4
was simply as a procedural matter to determine what issues 5
we had to address in order to reach hearing of this 6
proceeding.
7 I think we have aired that one out sufficiently, 8
and we will go now to the question of scheduling.
9 The Board would propose the following schedule, 10 in light of the fact that -- of the three or four 11 contentions that we now have in the proceeding.
You might 12 want to take out your pencils and make a note of this.
13 We would propose that discovery be completed by Ok-14 October 14th, that summary disposition motions, if any, tre 15 filed by October 31, and if summary dispositions are not 16 going to be filed by any party, that they so notify the 17 Board on that same date.
18 Thereafter, the parties may respond to whatever 19 summary disposition motions are filed on or before November 20 25.
The Staff response to the summary disposition motions 21 would be due December 9, and the Board would set as a 22 target date for ruling on any such motions, December 30.
23 We would then plan on receiving prefiled 24 testimony by January 19, with an eye to commencing the 25 hearing on February 3.
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Let me take the parties one at a time and obtain
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their comments on that.
Why don't we start with 3
Ms. McDermott?
4 MS. MC DERMOTT:
I was unable to hear all of the 5
dates -- this is McDermott -- starting with the 13 of 6
October -- 31 of October -- after that I was unable to keep 7
track of the dates.
8 JUDGE COTTER:
Let me repeat them.
9 After that, the parties' responses to motions 10 for summary disposition would be due November 25; the Staff 11 response to such motions would be due December 9; and the 12 Board would rule on the motions on December 30.
13 Thereafter, the parties would file prefiled Okl 14 testimony on January 19, and the hearing would commence on 15 February 3rd.
16 MR. MC GURREN:
Staff.
You said discovery were 17 be completed by the 14th.
Does that mean the discovery 18 would be filed or completed in terms of actually responses 19 to filed discovery be filed?
20 JUDGE COTTER:
All responses would be completed --
21 filed by October 14th.
22 MR. CHANDLER:
So that in other words, this is 23 Mr. Chandler, Mr. Chairman, discovery is requested to be 24 filed so as to permit responses within the time frames t
25 permitted by the regulations, by October 14th?
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JUDGE COTTER:
That's correct.
b 2
MR. CHANDLER:
Thank you.
3 MS. GRUENEICH: ~Mr. Chandler, could you identify 4
which party you are associated with?
5 MR. CHANDLER:
Yes, ma'am, I'm special 6
litigation counsel in the Office of General Counsel for the 7
U.S.
Nuclear Regulatory Commission Staff.
8 MS. GRUENEICH:
Thank you very much.
9 JUDGE COTTER:
Ms. McDermott,'have you gotten 10 the schedule now?
11 MS. MC DERMOTT:
I would like to know under what 12 regulation this is being conducted in less than 90 days?
13 JUDGE COTTER:
The parties can begin discovery 14 as soon as they were admitted to the proceeding, which was 15 June 27th.
The Board has the general responsibility to 16 manage the proceeding.
So they are offering this 17 scheduling initially to determine what the needs of the 18 parties are and what response you have.
19 MS. MC DERMOTT:
This is within the discovery 20 rules?
10 CFR?
21 I
JUDGE COTTER:
In general the discovery would be 22 conducted under that; yes.
23 Do you have any comment, Ms. McDermott?
24 MS. MC DERMOTT:
I do have a comment.
I'm 25 having difficulty phrasing it, because it appears to me (1)
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that official can take place within six weeks?
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JUDGE COTTER:
No.
From the time the parties 3
were admitted it would amount to about nine weeks, I 4
believe.
5 MS. MC DERMOTT:
My understanding was we needed 6
to have a prehearing conference to discuss discovery 7
procedures.
8 JUDGE COTTER:
No, normally discovery is 9
conducted voluntarily among the parties and the Board is 10 only involved if there's a dispute.
11 MS. MC DERMOTT:
I was informed by PG&E people 12 that this was undisputed and they were instructed not to 13 discuss information with me and therefore I was unable to 14 get the information.
15 JUDGE COTTER:
Who told you that, Ms. McDermott?
16 MS. MC DERMOTT:
I would have to go look at my 17 notes, your Honor, but I was told this was under litigation 18 and I was not to be given information until formal 19 discovery began.
20 JUDGE COTTER:
I suspect they simply wanted you 21 to give your requests for information in writing.
22 MS. MC DERMOTT:
I would not accept that 23 representation, your Honor.
24 MR. NORTON:
Your Honor, this is Bruce Norton 25 for PG&E.
As far as I know, I have never, nor has any O
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attorney for PG&E, Mr. Lock or Mr. Crane, ever been O
2 contacted by Mrs. McDermott requesting any information of 3
any kind at any time, period.
4 MS. MC DERMOTT:
I was given the fact that the 5
attorneys would not allow the people to discuss it with me 6
because there was litigation, your Honor.
7 JUDGE COTTER:
The point, Ms. McDermott, is this:
8 How much time do you think you need to complete any formal 9
discovery that you wish to undertake?
10 MS. MC DERMOTT:
I would expect at least 90 days, 11 your Honor.
12 JUDGE COTTER:
Why do you need 90 days?
13 MS. MC DERMOTT:
Because that was my
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14 understanding of what the regulations allowed.
If this is 15 taking the place of a prehearing conference, is 90 days 16 after the prehearing conference.
17 JUDGE COTTER:
That's not a hard and fast rule, 18 but the fact is you were admitted as a party June 27th, 19 that would be more than 90 days.
It would be 90 days in 20 two weeks.
21 MS. MC DERMOTT:
So you are not allowing me 90 22 days of the date of this conference?
23 JUDGE COTTER:
I'm asking you how much time you 24 need and why?
25 MS. MC DERMOTT:
Discovery is very dif ficult O
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with PG&E, your Honor, and 90 days is not a very long time
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2 to conduct a discovery and get responses that are 3
meaningful.
I have had a great deal of difficulty getting 4
the information I need within this proceeding.
We have an 5
institutional unavailability of documentation within this 6
proceeding.
7 JUDGE COTTER:
Have. you requested information A
8 from Mr. Norton, Ms. McDermott?
9 MS. MC DERMOTT:
Not from Mr. Norton.
I have 10 requested information from within the NRC, and we have not 11 even received all of that information.
12 MR. MC GURREN:
This is Henry J. McGurren of the 13 NRC Staff.
Ms. McDermott, was any request made to me?
14 MS. MC DERMOTT:
It was made to Mr. Sherwin, 15 Mr. McGurren, and that was on the 19th of June and I still 16 have not received all the information.
17 MR. MC GURREN:
We'll look into it and we'd 18 appreciate it if you would make your discovery requests of 19 the lawyers to myself.
20 JUDGE COTTER:
Ms. McDermott, discovery within a 21 proceeding has to go to the attorney representing the party.
22 You can't just call up anyone connected with the 23 organization.
24 MS. MC DERMOTT:
Thank you for that 25 clarification, Judge Cotter.
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JUDGE COTTER:
Thank you?
2 MS. MC DERMOTT:
I said thank you for that 3
clarification, for my need to go through the attorneys.
I 4
did not realize within the NRC that was something that was 5
necessary to be done.
I thought I could get information 6
from anyone within the NRC that I requested it from.
7 JUDGE COTTER:
Generally you can, but you are in 8
a formal proceeding and it's a lot faster if you go through 9
the attorneys who are familiar with it.
10 MS. MC DERMOTT:
I could not hear what you said.
11 It's faster?
12 JUDGE COTTER:
It's a lot faster to go through 13 the attorneys who are representing the parties in the
(
14 formal proceeding that you are now in.
15 MR. CHANDLER:
Mr. Chairman, this is 16 Mr. Chandler.
Ms. McDermott refers to a June 19th letter, 17 which in any event would have been submitted prior to her 18 admission as a party to this proceeding and thus prior to 19 any formal discovery being available as a vehicle to obtain 20 the information.
21 JUDGE COTTER:
I understand that, Mr. Chandler.
22 But right now I'm interested in getting discovery, whatever 23 is necessary, completed.
24 MR. CHANDLER:
We'll look into it and see what 25 can be provided to Ms. McDermott in response to that letter.
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JUDGE COTTER:
Good.
Ms. McDermott, if you have 2
any other requests, could you please get them out by the 3
beginning of next week?
4 MS. MC DERMOTT:
Any other requests to the NRC?
5 JUDGE COTTER:
To anyone.
6 MS. MC DERMOTT:
Judge Cotter?
7 JUDGE COTTER:
Yes.
8 MS. MC DERMOTT:
I'm not certain that I can 9
formulate all of my discovery requests by the first'of next 10 week, because I need to have responses to data requests 11 before I can get all of my data requests in.
12 JUDGE COTTER:
Mr. Chandler, is it possible for 13 you to get together with Ms. McDermott and find out what 14 she needs?
15 MR. CHANDLER:
We'll give Ms. McDermott a call 16 as soon as we are through, and we'll see what the situation 17 is.
We'll include Mr. Sherwin on the call, if he's 18 available this afternoon, and see what can be arranged.
19 JUDGE COTTER:
That would be good.
Perhaps you 20 could report to us by the end of next week as to exactly 21 what the status of Ms. McDermott's needs are.
22 MR. FERGUSON:
Yes, sir, we'll do that.
23 MR. CHANDLER:
I'm sorry, I didn't hear the last 24 part of what Ms. McDermott said.
JUDGE COTTER:
She wanted to know if she was to 25 l
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report as well.
I said yes.
Perhaps the two of you could f3 ty' 2
file a joint report.
3 MR. CHANDLER:
We'll be in touch with 4
Ms. McDermott and file a joint piece of paper and somehow 5
file a joint report with the Board.
6 JUDGE COTTER:
That will be good.
7 Mr. Norton, could you do something similar?
8 MR. NORTON:
We don't have any requests for any 9
information.
I don't know what you want me to do.
We have 10 no requests for any information from Ms. McDermott.
11 JUDGE COTTER:
I want you to, talk to 12 Ms. McDermott and find out whether she has any and whether 13 you can fill them without dragging this matter out.
A
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14 MR. NORTON:
We certainly have no intention of 15 dragging it out.
We would like to speed it up.
When we 16 receive a request we will promptly respond.
Be happy to.
17 JUDGE COTTER:
Mr. Norton, that's not exactly 18 responsive.
Obviously Ms. McDermott is not familiar with 19 the process.
If you wait for the right kind of a request 20 we are not going to get anywhere.
21 MR. NORTON:
I understand.
If she has a request I
22 of any kind, if she would call me or, you know -- we would 23 like to see it in writing and I would like to ask her to do 24 it in writing, but if she wants to call me to do it in 25 writing, fine, we'll cooperate in any way we can.
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I don't know how I can initiate her discovary,
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however, if you understand.
I can't call her up and start t
3 giving her information.
She has to ask for something first.
4 MS. MC DERMOTT:
May I have Mr. Norton's phone 5
number?
This is Laurie McDermott?
6 MR. NORTON:
Area code 415-768-4462.
7 MS. MC DERMOTT:
Thank you.
8 JUDGE COTTER:
What's a good time for her to 9
call, Mr. Norton?
10 MR. NORTON:
A secretary would be here if I'm 11 not.
I'm in and out of course.
She can call pretty much 12 any time.
No time is any better than any other time.
13 MR. CHANDLER:
May I request Ms. McDermott A
(_)
14 provide her phone number so we have the correct one for her?
15 MS. MC DERMOTT:
805-544-7295.
16 MR. CHANDLER:
Thank you, ma'am.
17 JUDGE COTTER:
All right.
Thank you.
18 Dr. Ferguson, how does that schedule sound to 19 you?
20 MR. FERGUSON:
It sounds a little brief for 21 discovery to me, too, sir.
I was also not aware that I 22 should have been directing questions on any issues other 23 l
than contention 1-A, as directed, and actually have waited 24 to make requests concerning the other contentions until the 25 rules for discovery were discussed, otherwise I would have 1
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started sooner.
As it is, between now and October 14th is 2
not a whole lot of time.
3 MS. GRUENEICH:
Your Honor, this is Diane 4
Grueneich.
I have had a chance to discuss a potential 5
schedule with both Dr. Ferguson and the Sierra Club.
It 6
might expedite, if I just discussed with you generally the 7
timing that we would be looking at, which would be that we 8
would be prepared to get out our data request 9
interrogatories by the end of September, essentially four 10 weeks from today.
11 I would then anticipate that all parties would 12 get out whatever interrogatories they would want.
13 We would be sending questions to both PG&E and
'th ss 14 the NRC Staff.
We would then anticipate that there would 15 be responses filed within 30 days.
Because of the 16 complexity of the matter, we would like to allow time for 17 follow-up interrogatories, if necessary.
We will be 18 prepared to get our follow-up responses out within two 19 weeks af ter the response -- our follow-up questions out 20 within two weeks after responses are filed, which would be,
21 I believe, approximately November 7th, with responses then 22 due two weeks thereafter, around November 21st.
23 We do anticipate the need for some depositions q
24 of the various consultants that both PG&E and the NRC Staff 25 have used, as well as those people within PG&E and the NRC
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I who have reviewed and authorized the calculations made by 2
the consultants.
And we would anticipate that we would 3
need to see responses to the interrogatories before 4
conducting the depositions.
5 We would be prepared to proceed with the 6
depositions approximately two weeks after the responses to 7
the interrogatories were received.
My notes show that 8
would be around December 7th.
That would basically 9
conclude the discovery portion of this case.
10 We are proposing, in addition, that because of 11 the complexities of the issue involved and the controversy, 12 that in this case there be independent. review of the safety 13 of the reracking, specifically focusing on the contentions.
(
14 We don't want to expand it beyond the reracking, but that 15 there be an independent review done by one of the national 16 laboratories.
At this time we are requesting that the NRC 17 itself make a formal request to the independent labs to 18 make an independent report on the safety.
We would look 19 for that lab report to be filed approximately a month after 20 discovery is completed, and then to conclude with the rest 21 I
of the schedule as you have set forth, in terms of having 22 prefiled testimony and the summary disposition and 23 responses and the Board decision on this.
24 MR. CHANDLER:
Have you completed?
This is 25 Mr. Chandler.
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Mr. Chairman, there are two matters that maybe
~
2 ought to be brought up right now.
One, I presume she means 3
Staff seek a review by an independent national laboratory.
4 I think the Staff will object to that, Mr. Chairman.
The 5
application for an amendment has received review by the 6
Staff as called for and we don't propose or -- that we go 7
forward to yet another review.
8 But, aside from that, let me mention one thing 9
that will bear generally, I think, on the Staff's ability 10 to meet the schedule, any schedule for tnat matter, but 11 bears particularly on what Ms. Grueneich was talking about 4
12 in terms of depositions.
13 I'm advised that several weeks ago the Staff's
()
14 consultant, Dr. Herrick, passed away.
Dr. Herrick was the 15 principal author of the analysis, the structural analysis 16 which forms a significant portion of the basis for the 17 Staff's safety evaluation report.
At this point in time, the Staff is trying to 18 19 accertain who can be obtained in Dr. Herrick's stead.
We 20 do not have an answer on that yet.
But, obviously, that 21 will have some baaring on our ability to move forward and 22 obviously on the ability of other parties to seek 23 depositions.
I 24 JUDGE COTTER:
How soon do you expect to resolve 25 that, Mr. Chandler?
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MR. CHANDLER:
I don't have an answer for you on
(-]
-v 2
that, Mr. Chairman.
We would be hopeful of being able to 3
meet the Board's schedule.
I can only commit to keep the 4
Board and parties advised of where this question stands as 5
very promptly as possible.
6 JUDGE COTTER:.
All right.
7 MS. CULZER:
Judge Cotter, this is Nancy Culzer.
8 The request for a review by one of the national 9
labs comes out of a couple of concerns.
One is that there 10 have been a number of things in the media in recent months 11 that concern us very much.
One is that Congress is 12 apparently about to cut the funding for finding a permanent 13 waste repository dramatically.
A few nights ago the report
()
14 was that they are cutting it more than 50 percent.
The 15 other is that the three states that have been selected for 16 a final repository have vowed a legal fight.
17 All of these things point towards longer-term 18 storage at plant sites than anybody wants or anybody 19 anticipated.
Our concern is that 1998 will be another date 20 that comes and goes and the wastes won't be removed and we 21 are very concerned that this proposal receive the most 22 independent and thorough analysis before it goes forward, 23 because once that waste is there, the chances are it will 24 be there a very long time.
25 JUDGE COTTER:
Well, it seems to me -- I have (E) j ACE-FEDERAL REPORTERS, INC.
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not examined the law of the question but my threshold
.f S
C/
2 reaction to the request for an independent study by a 3
national laboratory is that that is a matter of voluntary 4
compliance by the Commission.
Because otherwise the 5
Commission has satisfied its own regulations and I don't 6
know what authority we would have to order any such study.
7 MS. CULZER:
I don't know who has to do what.
I 8
think it would be a very important thing to do for all of 9
us concerned.
I would think that PG&E would want to make 10 sure, if that waste is going to be there beyond the 1998 11 date or 2007 date, that they would be very concerned, too.
12 We don't feel that this method of storing waste at plant 13 sites has been given enough scrutiny by any means.
()
14 MS. MC' DERMOTT:
Mr. Cotter, this is Laurel 15 McDermott.
If I may make a comment, Ms. Culzer, definitely 16 this is something the public would be interested in and I 17 think it would be important to carry on the conversation in 18 a public hearing.
I think this is something that we need 19 to discuss in a public forum.
20 JUDGE COTTER:
All right.
Mr. Norton, do you 21 have any comment on the scheduling?
22 MR. NORTON:
Yes, I do.
Preliminarily, I'm a 23 little confused.
If Ms. Grueneich is representing the 24 Mothers for Peace and the Sierra Club, is she not speaking 25 for Dr. Ferguson and the Mothers for Peace as to this (1)
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schedule also?
Because we went through Dr. Ferguson, then
,-)
V 2
we went through Ms. Grueneich, and they seem to be 3
different.
So I don't know whose schedule to respond to, 4
but I guess I'll respond to Ms. Grueneich's, because it's 5
the more expansive of the two.
6 We believe the hearing schedule proposed by.the 7
Board is acceptable.
We would like to ask that there be an 8
alternate schedule for earlier hearings if there are no 9
motions for summary disposition.
The schedule seems to 10 have approximately a month and a half in it for motions for 11 summary disposition.
If those motions -- if there were no 12 motions for summary disposition filed on the 31st, then 13 clearly we don't have to wait until the end of December,
(~
(_)/
14 which is two months, for the Board to rule on those motions 15 and we could move up the hearing, perhaps by as much as two 16 months.
So I would like to propose that as an alternative 17 schedule, if you will.
18 The reason this is important is that at the 19 moment the 9th Circuit has not ruled, and so we don't know 20 how they are going to rule.
But if they should rule in an 21 adverse decision to PG&E, and the eventual ruling of this 22 Board should be nonadverse to PG&E, Unit 2 is going to be 23 ready for refueling in April, and if modifications were to 24 be made to the Unit 2 spent fuel pool to achieve ALARA 25 considerations and economic considerations, that should be (1)
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done some approximately two months prior to the unicading 0,
f 2
of fuel.
3 So this hearing process, you know, if it could 4
be accomplished in that time frame, it would obviously, 5
from an ALARA standpoint, make sense to do so.
6 MS. MC DERMOTT:
If I may respond, this is 7
Laurie McDermott --
8 MR. NORTON:
Excuse me, I'm not done yet.
9 MS. MC DERMOTT I'm very sorry.
10 MR. NORTON:
Other than that, as far as the 11 discovery goes, Dr. Ferguson stated that, gee, he was 12 unaware that he could start discovery back in June, but 13 Ms. Grueneich maintains that she represented them back in
()
14 June and, therefore, they had an attorney who should be-15 familiar with the rules of discovery and I don't think it's 16 fair for them now to say, gee, we didn't know, so we didn't 17 do anything.
We have been sitting here for two months 18 doing nothing.
19 They have been represented by counsel since the 20 end of June, according to Ms. Grueneich, and they are 21 required to have knowledge of the rules of discovery.
We 22 shouldn't be penalized by delay because they haven't done 23 anything for two months.
And we will cooperate and answer any interrogatories that are served upon us as quickly as 24 25 we can.
And by that I mean we will not take the full O
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_g3 length of time we would normally be allowed to answer, 1
V 2
unless an interrogatory is so burdensome that it takes that 3
length of time, but we would cooperate in every way we can 4
to expedite this process.
5 JUDGE COTTER:
That would be good, Mr. Norton.
6 We can, I think, accommodate the request for an 7
alternate schedule as far as, in the event that no summary 8
disposition motions are filed.
9 MS. GRUENEICH:
Your Honor, this is Diane 10 drueneich.
Should I respond at this timo?
11 JUDGE COTTER:
If you wish.
12 MS. GRUENEICH:
Again, we request that the 13 discovery schedule that you have proposed be extended, that
()
14 it is simply not feasible for us to be able to get out the 15 set of interrogatories that we will need to get out and i
16 have the follow-up interrogatories and the depositions and 17 have all of that completed by October 14th.
~
18 In particular, given what Mr. Chandler has 19 informed all of us about today, that their consultant has 20 unfortunately passed away, that is going to take some time 21 for everybody to be able to identify who is going to be l
22 able to sponsor the calculations that he did.
Rather than 23 get in a situation now where we just simply don't have 24 enough time to have adequate discovery and, therefore, 25 unfairly prejudice all of our abilities in looking at this (1)
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information, we do request that we have a schedule that 7.-
k )/
2 allows enough time for discovery.
The time period that I 3
have set forth, I believe, is the only one that's really 4
feasible.
5 in addition, with regard to the time frame that 6
the Board proposed, I believe it only allowed two weeks 7
from receipt of discovery to file any motions for summary 8
dispositions, and we would anticipate that that probably 9
would likely pass one or two weeks.
10 MR. CHANDLER:
Your Honor, this is Mr. Chandler.
11 If I may respond briefly to one comment Ms. Grueneich made.
12 I would suggest that the death of Dr. Herrick 13 really need not be an impediment to any of the other
()
14 parties coming forward with certainly the first round of 15 discovery.
It certainly, most obviously would present an 16 impediment to a deposition.
But as to request for 17 production of documents or interrogatories, the Staff 18 safety evaluation and the attached report are a matter of 19 record and I don't see anything that would prevent the 20 parties from, if appropriate, seeking to file 21 interrogatories on the Staff.
We are willing to, at least 22 initially, go forward on a voluntary basis in that, without 23 rigidly adhering to the rigid requirements of the 24 regulations as to discovery against the Staff.
We'll soo 25 how that works.
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We would hope to be able to respond in a timely
-)
2 fashion, irrespective of Dr. Herrick's death.
3 Should that present a problem, then, of course, 4
ve.would undertake to advise the Board and parties of that, 5
but it certainly shouldn't present a problem to the parties 6
in terms of filing their discovery.
7 JUDGE COTTER:
Thank you, Mr. Chandler.
Could 8
you advise the Board what your best estimate is of how soon 9
you will obtain a replacement for Dr. Herrick?
Would it be 10 possible to do that by the end of next week?
11 MR. CHANDLER:
I can at least give you the 12 status on that, Mr. Chairman.
What I will do is advise the 13 Board chairman by phone and by confirming letter, copies to
()
14 all the parties, if that's acceptable.
15 JUDGE COTTER:
All right.
16 I think the Board has a feel for the positions 17 of the parties in this.
What we would anticipate doing is 18 issuing a scheduling order around the middle of next week, 19 which would attempt to take into consideration all the 20 factors which have been raised here.
Are there any further 21 comments?
22 MS. MC DERMOTT Yes, Mr. Cotter, this is Laurie 23 McDermott.
I would like to state that there are fact 24 witnesses that need access to the discovery documents and 25 that the discovery documents be a matter of public record O
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and accessible through the public document room.
2 JUDGE COTTER:
_They would be, Ms. McDermott.
3 Normally I expect they would be.
Is there a problem with 4
that?
5 MS. MC DERMOTT:
There is quite a time lag, your 6
Honor, and I think we need to have sent out here the 7
publicly available 480-Cs.which would take care of that 8
time lag.
9 JUDGE COTTER:
Say that last again?
I'm sorry?
10 MS. MC DERMOTT:
We have a time lag problem with 11 the local public document room and we need access to a --
12 to our local public document room and that would take care 13 of all of our time lag problem.
()
14 JUDGE COTTER:
48 what?
15 MS. MC DERMOTT:
48 ARAS, publicly available
)
16 microfiche.
I 17 MR. NORTON:
Mr. Chairman, I believe 18 Ms. McDermott is referring to the format on which documents 1
19 are provided to the local public document room.
20 JUDGE COTTER:
Thank you.
In this case, 21 Ms. McDermott, any correspondence would be directly from 22 the other parties to you and vice versa.
It would -- you 23 would be receiving it at the same time that the document l
the headquarters of the NRC would be receiving it.
24 room at I
25 MS. MC DERMOTT I'm talking about fact i
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witnesses that are not associated but need to be'able to g-C 2
enter into a public forum.
Fact witnesses who are not 3
associated with these parties.
4 JUDGE COTTER:
There will be no fact witnesses 5
not associated with the parties, Ms. McDermott.
6 MS. MC DERMOTT:
There will be no fact witnesses 7
that are not associated with the parties?
8 JUDGE COTTER:
That's correct.
9 MS. MC DERMOTT We seem to be having some kind 10 of a problem here --
11 JUDGE COTTER:
It may be your failure to 12 understand, Ms. McDermott, that any witnesses in this 13 proceeding will be those offered by the parties, such as O
U 14 yourself.
15 MS. MC DERMOTT:
All witnesses have to be 16 offered by the parties who are Intervenors?
17 JUDGE COTTER:
That's correct.
18 MS. MC DERMOTT We will offer them but we need 19 to have the information available through the local public 20 document room --
21 JUDGE COTTER:
You'll get it directly.
You i
22 won't need to go to the local public document room.
23 MS. MC DERMOTT:
We will rocoive personally all l of this discovery?
24 l
JUDGE COTTER:
Everything that you ask for.
25 l
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1 MS. MC DERMOTT:
Everything that CODES asks for r~
' (_/
2
-- we think this is getting into positions that I'm not 3
able to express on the telephone off the cuff, and there's 4
an extreme disadvantage not being an attorney, perhaps this 5
would be something that should be dealt with in. writing to 6
your Honor.
7 MR. MC GURREN:
Your Honor, our rules, 8
particularly 10 CFR2.741 and the rules which immediately 9
follow that rule spell out these very requirements dealing 10 with discovery and as well with admissions and presentation 11 of evidence in our proceedings, I think all of these 12 questions can be answered by these particular regulations.
13 This is Henry McGurren, your Honor.
()
14 JUDGE COTTER:
I believe that's correct, 15 Mr. McGurren.
16 Ms. McDermott, if you choose to intervene in a 17 proceeding without counsel, you still have responsibility 18 to act as a party under the rules.
19 MS. MC DERMOTT I have a question about the 20 2.715 limited appearance, where they fit into this 21 proceeding?
22 JUDGE COTTER:
Limited appearances probably will 23 be scheduled in connection with the proceedings, but 24 statements by persons at limited appearance are not a part 25 of the record of the proceeding.
They are not witnesses in O
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the proceeding.
-s 2
MS. MC DERMOTT:
But those persons are able to 3
call attention to problems, your Honor.
4 JUDGE COTTER:
Yes, they are.
5 MS. MC DERMOTT:
And they need access to these 6
documents.
7 JUDGE COTTER:
There's no requirement that they 8
have access to documents that are part of the litigation 9
beyond what is available through the public document room.
10 I'll do what I can to expedite getting materials 11 to the public document room.
12 MR. CHANDLER:
For your information, 13 Mr. Chairman, this is Mr. Chandler.
I am aware of the
(')
14 concern that Ms. McDermott raised.
There has been a 15 gentleman in the San Luis-Obispo area who frequently 16 communicates with the Staff about this very concern, and I 17 have spoken with the local public document room staff in 18 the agency.
They are making every effort to get documents 19 out there as promptly as possible, consistent with the 20 administrative requirements that are necessary for 21 accessing and duplicating documents.
22 JUDGE COTTER:
How long do they tell you that it 23 takes to get materials out there?
24 MR. CHANDLER:
It can take, in some instances,
(
25 several weeks, your Honor.
l ()
l I
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MS. MC DERMOTT:
There's a problem with the 7-b 2
local government officials responding to the Federal 3
Register notice of January of this year.
A letter was 4
directed to the secretary in response to the Federal 5
Register notice.
That letter has not been considered, has 6
not been docketed, but has been filed under general 7
correspondence.
We have serious problems with what are 8
documents in this proceeding.
9 JUDGE COTTER:
Could you send me a copy of the 10 letter, Ms. McDermott?
11 MS. MC DERMOTT:
Yes, I can, your Honor.
12 JUDGE COTTER:
That will be good.
The Board 13 will examine it and see what's the proper disposition.
()
14 MS. MC DERMOTT:
Would you want your copy to you 15 to yourself or all parties?
16 JUDGE COTTER:
Everything you send to the Board 17 should also go to all parties.
18 Is there anything further to take up?
19 MS. MC DERMOTT:
Have we decided on discovery to 20 the local public document room?
Have we decided that all 21 discovery does go to the local public document room?
22 JUDGE COTTER:
We can arrange that.
Is there 23 any problem with that from any of the parties?
24 MR. CHANDLER:
Mr. Chairman, copies of all 25 documents are provided by the office of the secretary, I l
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believe, through the local public document room staff, to 73U 2
the local public document room.
It is my understanding the 3
local public document rooms do not have available a 4
mechanism for accessing, indexing and handling directly 5
filed materials in any comprehensive way.
There could 6
really be no assurance it would all be available in any 7
event.
8 MS. MC DERMOTT:
Your Honor, does that mean that 9
this discovery information will not get to our local public 10 document room?
11 JUDGE COTTER:
No, it means that there may be 12 problems with it getting to the local PDR, or if it gets 13 there that it will simply be a mass of material that you'll
()
, 14 have to go through, because there's no one there to 15 organize it.
16 MR. CHANDLER:
It does go to the PDR, local PDR, 17 but it will take time.
But it will be available there.
18 MS. MC DERMOTT:
In the local public document 19 room in California?
20 MR. CHANDLER:
Yes, ma'am.
21 MR. NORTON:
But, in the meantime, all of it 22 will be directly available t'o Ms. McDermott.
23 MR. MC GURREN:
Your Honor, this is Diane 24 Grueneich again.
You are taking into consideration the 25 fact, in setting schedule, that, as you know, one of the I
(v~)
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-)
major concerns that we have is that there be an adequate 1
G' 2
public hearing on this issue.
That's why we found it 3
necessary to go to the 9th Circuit and obtain a stay on the 4
storage until there is an adequate and f air public hearing.
5 Therefore, we strongly urge you to consider setting the 6
schedule for discovery and hearing rather than looking just 7
to how to expedite this, to really try to take into account 8
as much as possible what is going to be necessary for us to 9
have a full-scale hearing.
Thank you.
10 JUDGE COTTER:
Is there anything further?
11 MS. MC DERMOTT:
Your Honor, Laurie McDermott 12 again.
I would like to have this transcript 13
- Federal-Expressed to the local public document room, if at th
(_)
14 all possible.
15 JUDGE COTTER:
You mentioned that earlier.
I'll 16 see whether that's possible.
17 MS. MC DERMOTT:
Thank you very much.
18 MS. CULZER:
Judge Cotter, Nancy Culzer.
I 19 would also request a copy of the transcript be sent to the 20 Mothers for Peace.
21 JUDGE COTTER:
You should request that of the 22 reporter.
23 MS. CULZER:
Okay.
24 MS. GRUENEICH:
Your Honor, do you have a name 25 or phone number for the reporter?
I had assumed we would (1) l ACE-FEDERAL REPORTERS, INC.
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receive a copy of the transcript automatically.
-s
_h 2
JUDGE COTTER:
No.
We do not have provisions j
3 for furnishing free transcripts to the party.
Each party 4
has to purchase their own.
Mr. Reporter, will you identify 5
yourself and give a phone number.
6 (Reporter complies.)
7 JUDGE COTTER:
Anything further, Ms. McDermott?
8 MS. MC DERMOTT:
I was looking over my notes and 9
came across a response of Mr. Norton about cost and l
10 scheduling, and I would note by federal regulations, cost 11 and scheduling cannot take precedence over safety matters.
12 JUDGE COTTER:
Thank you, Ms. McDermott.
13 Mr. Norton, anything further?
()
14 MR. NORTON:
No.
15 JUDGE COTTER:
Ms. Grueneich?
16 MS. GRUENEICH:
No.
17 JUDGE COTTER:
Mr. McGurren?
Mr. Chandler?.
18 MR. CHANDLER:
No, your Honor.
19 JUDGE COTTER:
We will get out some sort of 20 scheduling order towards the end of next week.
Thank you 21 very much.
22 I guess this telephone prehearing conference is 23 adjourned.
I 24 l
(Whereupon, at 2:55 p.m.,
the telephone l
25 conference was concluded.)
O ACE-FEDERAL REPORTERS, INC.
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CERTIFICATE OF OFFICIAL REPORTER
~
This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING:
DIABLO CANYON RERACK SCHEDULING DOCKET NO.:
50-275 OLA; 50-323 OLA PLACE:
WASIIINGTON,
D.
C.
'd DATE:
FRIDAY, AUGUST 22, 1986 i
were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
(sigt)
(TYPED JOEL ITNER Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation D
J
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