ML20235T702
| ML20235T702 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/20/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#387-4106 CPA, NUDOCS 8707220241 | |
| Download: ML20235T702 (73) | |
Text
_ - -
OR GINAL O
. UNITED STATES NUCLEAR. REGULATORY COMMISSION
-IN THE MATTER OF:
DOCKET NO: 50-445-CPA TEXAS UTILITIES GENERATING COMPANY, et al.
(Comanche Peak Steam Electric Station, Units 1 and 2)
TELEPHONE CONFERFNCC x,s LOCATION:
WASHINGTON, D.
C.
PAGES:
24892 -
24962 DATE:
MONDAY, JULY 20, 1987-0 ACE-FEDERAL REPORTERS, INC.
O Official Reporters 444 North Capitol Street Washington, D.C. 20001 8707220241 870720 (202)347-3700 l
5 ADOCK 0500 PDR NATIONWIDE COVERACE l
(_.
~CR31766.0 l
.MPB/sjg 24892 1-UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION ORE THE ATOMIC SAFETY AND LICENSING BOARD 3
-x-4 In the Matter of:
Docket No. 50-445-CPA 5
TEXAS UTILITIES GENERATING 6
COMPANY, et al.
TELEPHONE CONFERENCE (Comanche Peak Steam Electric Station, Units 1 and 2) 8
_ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x 9
Ace-Federal Reporters, Inc.
10 Suite 402 444 North Capitol Street Washington, D.
C.
12 Monday, July 20, 1987 13 l The telephone conference in the above-entitled matter 14 convened at 2:00 p.m.
15 BEFORE:
16 17 JUDGE PETER BLOCH, Chairman Atomic Safety & Licensing Board 4
18 l U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 lo JUDGE WALTER JORDAN, Member Atomic Safety & Licensing Board 20 U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 21 JUDGE KENNETH A.
McCOLLUM, Member 2 2 ',
Atomic Safety & Licensing Board l
U.S.
Nuclear Regulatory Commission I
Washington, D.
C.
20555 23i O,
24 25 ACE FEDERAL REPORTERS, INC.
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24893 1
APPEARANCES:
2 On behalf of the Applicant:
3 -
ROBERT K.
GAD, III, ESQ.
THOMAS G.
DIGNAN, ESQ.
4 WILLIAM S.
EGGELING, ESQ.
Ropes & Gray 5
225 Franklin Street Boston, Massachusetts 02110 6
On behalf of Citizens Association 7
for Sound Energy (CASE):
8 BILLIE GARDE, ESQ.
ANTHONY Z.
ROISMAN, ESQ.
9 Trial Lawyers for Public Justice 10 2000 P Street, N.W.
Suite 611 Washington, D.
C.
JUANITA ELLIS r-12 President, CASE
(
Dallas, Texas 13 14 On behalf of Nuclear Regulatory Commission Staff:
15 LAWRENCE J.
CHANDLER, ESQ.
GEARY MIZUNO, ESQ.
16 COLLEEN WOODHEAD, ESQ.
Nuclear Regulatory Commission 17 Washington, D.
C.
20555 18 19 20 21 22 23 24 25 ACE FEDERAL REPORTERS, INC.
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PRO,CEEDINGS
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2 (2:05 p.m.)
3 JUDGE BLOCH:
This is Peter'Bloch, Chairman of 4
'the Atomic Safety and Licensing Board, in the matter of 5
Texas Utilities Electric Company, et al., Comanche Poak 6
Steam Electric Station, Unit k,ConstructionPermit 7
Amendment Case, Docket No. 50-445.
8 The purpose of today's call is for oral argument 9
concerning an application for stay of our June 22, 1987 10 order.
11 The application had been filed by Texas 12 Utilities, et al., on July 13, 1987.
It accompanied a 13 motion for reconsideration of the Board's order of June 22, i
14 1987, filed on the same date.
l 15 Our decision for which reconsideration is sought 16 is designated as LBP 87-20.
17 I would appreciate it if the parties would l
1 18 identify themselves for the record, beginning with j
19 Applicants.
20 MR. EGGELING:
Yes, your Honor, this is William 21 S.
Eggeling, E-g g-e-1-i-n g, of the law firm of Ropes, 22 R-o-p-e-s,
& Gray, Boston, Massachusetts.
23 JUDGE BLOCH:
For the Interveners?
l
{
24 MR. ROISMAN:
Mr. Chairman, th.is is Anthony 25 Roisman, R-o-i-s-m-a-n.
With me on the line at another ACE. FEDERAL REPORTERS, INC.
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location is Billie, B-i-1-1-i-e, Garde, G-a-r-d-e, for the
(_)
2 Intervenor.
3 MS. ELLIS:
I am Juanita Ellis, E-1-1-1-s, I
4 President of CASE, the Citizens Association for Sound
{
)
5 Energy.
l l
~
l:
6 MR. CHANDLER:
For the Staff of the Nuclear
)
7 Regulatory Commission, Lawrence Chandler.
With ne is Mr.
8 Geary, G-e-a-r-y, Mizuno, M-i-z-u-n-o, and Ms. Colleen 9
Woodhead, W-o-o-d-h-e-a-d, of the Office of General Counsel, I
10 Nuclear Regulatory Commission.
11 Mr. Mizuno will speak to the Applicants' 12 application for a stay,
()
13 JUDGE BLOCH:, Good.
14 When the Board spoke to the parties prior to 15 ccmmencing this conference, it explained that it is going to 16 make a brief preliminary statement by way of clarification 17 of LBP 87-20.
This is by way of preliminary clarification 18 and is of course subject to the discussions of the parties 19 and subsequent decisions by the Board.
I 20 What we have noticed is that'on pa.ge 6 of our 21 opinion there is a key sentence in the paragraph labeled 22 III, Conclusions.
The key sentence begins:
23 "Nevertheless, we also find 24 that Applicants are obligated 25 to supply to Joint Interveners
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1 all information and all admissions ggpbur 2
-- and a conluding clause -
"(relative 3
to Appendix B requirements and 4
determinations and supplied to 5
CRESAP)."
6 And then there is a footnote 12.
7 The Board in its discussions is quite clear that 8
the phrase " relative to Appendin B requirements and clause 9
determinations and supplied to CRESAP" is a controlling 10 clause and that everything in the sentence preceding that 11 clause is limited in that it must be relevant to Appendix B 12 requirements and cause determinations and supplied to 13 CRESAP.
14 So whatever is to be produced must meet the dual 15 requirements of this last clause of the sentence.
16 In addition, footnote 12 was intended to be 17 explanatory of what we meant by Appendix B requirements and 18 ause determinations.
It explains that Applicants are 19 expected to have a comprehensive system for keeping track of 20 serious concerns of any responsible person, including CRESAP 21 i
employees or agents or consultants hired by Applicants' 22 lawyers with access to information about this plant.
23 In that footnote we were attempting to explain l
24 that we think that the obligation to look at deficiencies I
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25 and cause is a very important one and that Applicants must ACE FEDERAL REPORTERS, INC.
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1 be aware of deficiencies and cause from wherever the ss 2
information is obta.ned, and some of the information that i
3 might contain that information is-the information discussed 4
in the preliminary clauses of the "Nevertheless" sentence.
5 I won't have to read that for you now because we 6
all have access to it.
7 We find that there is a little bit of an 8
ambiguity in the discovery phase as to how the determination 9
is to be made about what is relevant to deficiencies or 10 cause, and in its discussions the Board concluded that there 11 should be some liberality on the part of the Applicants in 12 interpreting that so that if there was a reasonable
(
13 interpretation that the information is related to 14 deficiencies or cause, that at the discovery phase it ought j
15 to be produced.
16 We note that this interpretation may be 17 consistent with footnote 5 of Applicants' brief, which 18 states that -- in its last sentence -- or next to last 19
. sentence that:
20 "It may be that the Board 21 intended to go no further 22 than assuring that any such 23 Items which may have had 24 their genesis in the f'
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are made available in V
2 accordance with normal 3
procedures."
4 The "any such items" appears to refer back to 5
significant conditions adverse to quality.
What is 6
ambibguous us to whether the Board and the Applicants are-in 7
agreement is whether the Applicants realize the emphasis the 8
Board has placed on cause determinations.
9 We think the obligation is not only to dispose of 10 serious conditions but information relevant to cause 11 determinations which could lead to the discovery of patterns 12 or causes that lead to suspicicas about other parts of the
)
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13 plant.
I 14 Dr. Jordsn, would you like to clarify any further 15 the 6iscussion the Board has had?
16 Dr. Jordan, 1-can barely hear you.
If you can-17 speak very loud, the reporter might hear you.
18 DR. JORDAN:
Very well.
I will try to speak f
l 19 loudly and very slowly, too.
20 My chief concern was....
21 JUDGE BLOCH:
Let me see what you are trying to 22 say, Dr. Jerdan, and you will correct me and I will relate 23 it to the reporter.
24 Dr. Jordan says he has a concern that the parties j
25 were told that this is a stay preceeding, and he is I
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concerned that they have the proper lawyers available to fbur 2
discuss the extent to which the Board really is addressing 3
merits.
4 Dr. Jordan, is there anything else other than 5
that?
6 DR. JORDAN:
That Is it.
7 JUDGE BLOCH:
Okay.
So that said, I would 8
appreciate it if the Applicants would use up to ten minutes, 9
from which they could reserve a few minutes if they would 10 like for rebuttal, so that they can present their argument 11 for the stay in light of the Board's statement.
12 ;
MR. EGGELING:
Your Honor, for the record thic is
( )
13 Bill Eggeling.
14 The first thing I would like to do is introduce 15 my associate, David Barkland, B-a-r-k-1-a-n-d, to pick up 16 the extension phone here in my office so that he can also 17 listen in and help confirm for me later the confusions or 18 problems I have with regard to what is said.
19 Is that acceptable?
20 JUDGE BLOCH:
Yes.
We will welcome Mr. Barkland.
21 MR. EGGELING:
The problem I have discovered --
22 perhaps we can try this for a moment.
It draws electricity 23 to use the microphone, and eventually with this many people 24 on the line Dr. Jordan's problem will be greatly amplified.
/'~N l
(,)
25 JUDGE BLOCH:
I have noticed that, also.
So you ACE-FEDERAL REPOhTERS, INC.
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MR. EGGELING:
Well, then I am going to go ahead.
3 I really don't have much of a choice.
4 JUDGE BLOCH:
Okay.
I will let the ten minutes 5
start from now.
6 MR. EGGELING:
All'right.
On that I am also 7
going to make another preliminary statement just for the 8
record.
9 As we discussed before the reporter came, through 10 some form of communication there -- which I haven't yet had 11 an opportunity to discover.
My first notice of this o
12 conference call was only about a moment before your call n
i )
13 came in.
Therefore, I am less prepared than I might 14 otherwise have been.
I will certainly try to address the 15 statements made as I understand them.
16 JUDGE BLOCH:
Well, let me ask before you 17 continue.
I guess what I don't think is fair to the other 18 parties is that we go ahead with the understanding that you 19 don' t know whether you are going to be able to adequately 20 represent your client.
That seems to be sort of an unfair 21 l
position because where do we go after we are done?
22 It seems to me you have got to say I am ready to 23 proceed now or not unless the Interveners feel otherwise.
24 MR. ROISMAN:
This is Mr. Roisman.
,.(_)
25 Mr. Chairman, I agree with you.
He should either j
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speak now or we will do it at another time.
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MR. EGGELING:
Well, as I understand the Board's i
(
I 3
request, I didn't want to say it that way because I don't 4
wish to trap the Board into this after it has made its
]
5 preliminary statement, but I frankly would like at least a 6
short period of time to review my briefs to be sure that I 7
have clearly in mind the issues.
I have pulled out the 8
file.
9 JUDGE BLOCH:
Well, let's go off the record.
10 (Discussion off the record.)
11 JUDGE BLOCH:
Back on the record.
12 For the convenience of Mr. Eggeling, who was not e
()x 13 fully informed of the purpose of this conference in time to 14 be prepared for it, we have just concluded a break of a 15 little under one hour, and we are prepared to resume with 16 our considerations at this time.
17 Mr. Eggeling, you have 20 minutes -- excuse me, 18 10 minutes.
19 MR. EGGELING:
Thank you, your Honor.
20 Your Honor, as I understand it, the issue 21 presented for discussion today is limited to the application 22 for stay.
23 It was recognized by your Honor's introductory 24 statements as well as I think by the parties that to some c(y 25 degree concerns about a stay have implications of the merits ACE-FEDERAL REPORTERS, INC.
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1 issuos, and to some degree my addressing the stay will b
2
.probably infringe upon those slightly.
3 I am going to endeavor as much as possible to not-4
' treat, however, the merits issues directly but only insofar 5
as they are essentially related to the stay application and, 6
in particular, as they may apply to the clarifying or at 7
least interpretive statements that your Honor gave before 8
the break with regard to the sentence that begins on page 6 9
of the Board's current opinion.
10 As I understand it, the Board's discussions 11 earlier on the record focus upon the latter part of the 12 sentence that begins on page 7 of the opinion concerning its
()
13 finding --
14 JUDGE BLOCH:
That begins on page 6?
15 MR. EGGELING:
Excuse me, you are correct, your 16 Honor.
i 11
-- on page 6 concerning its finding that 18 information relevant to Appendix B requirements and cause 19 determinations and supplied to CRESAP are the central part 20 of the coercive effects of the order regarding discovery and 21 at least what the Board wanted to address during the stay 22 application.
23 With that understanding, I will start at the back 24 end as supplied to CRESAP.
I do understand -- at least I 25 think I do, and it has been the essential tool that we have
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used for trying to decide what existed that wasn't quite i
2 captured by the order and where we believe the law was 1
3 consistent with the Board's order'and where we concluded 4
that it was not.
5 There is another cut that comes right after that, 6
however, that is at least observed in our motion, and that 7
-is that there are at least three categories of information 8
that can be under the " supplied to CRESAP" test and then 9
treated by the relevant two Appendix B clause requirements, 10-et cetera.
l 11 JUDGE BLOCH:
That is conjunctive, you know.
It 12
~has to be both.
n(-)
13 MR. EGGELING:
I do.
I understand that exactly, 14 and the point I am making for purposes of this discussion, 15 which I don't propose to dwell on much longer than to make 16 them, is tht.t the tests in our view as to law may be quite 17 different with regard to which of those three categories is 18 particularly called into question.
19 For example, there are purely historical 20 documents.
CRESAP came and asked questions about documents 21 or seeking information that it thought might be relevant to 22 its job, which wam in no way the same as the discussions in i
23 the Board's order, and those documents were compiled and 24 suppliad to CRESAP, thereby meeting the first of the tests.
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not those to which we maintain any work product privilege (G
2 with regard to them.
If Mr. Roisman or any of the other 3
Interveners have asked for them in the past or in the future 4
by any properly worded document production request, they 5
will be provided.
6 What is claimed to be the subject of the work 7
product privilege -- and we believe law is fairly uniform on 8
it -- is the selection process.
Those which were selected 9
out particularly for CRESAP, those which were compiled in 10 response to its questions are at the heart of that work 11 product and they are not entitled to get the compilations.
12 I believe Mr. Roisman has made virtually
(
13 identical arguments in the past with regard to the documents 14 that he or Ms. Ellis or others may have copied from the 15 Comanche Peal files or the witnesses may have selected.
16 JUDGE BLOCH:
Is the problem that in some sense 17 these historical documents are relevant to Appendix B cause 18 determinations?
19 MR. EGGELING:
Well, I am leaving that for a 20 second.
Frankly, the short answer that I am going to take 21 the remainder of my time on -- I am going to save some, I 22 hope, for any further questions that come up -- is that I 23 really have no idea of what relevance Appendix B cause 24 requirements mean, and that is why it is fairly difficult to 25 deal with that.
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JUDGE BLOCH:
Well, let's slow down a little bit 2
because I attempted a little bit to explain my view about
-3 that.
4 Part of it is of course obvious.
If it is 5
something that covers the existence of a deficiency, a new 6'
deficiency, then it should result in a report that is in the 7
deficiency system and it ought to be included.
8 And then there is another level, which is there 9
have been deficiencies found in the plant and maybe a 10 pattern of deficiencies, and the Applicants are carefully 11 looking for explanations and somehow this is an explanation 12 for a pattern of deficiency.
13 Those are the two categories that I think of 14 about relevance of Appendix B or the cause determinations.
15 MR. EGGELING:
Werl, I respectf ully submit that I 16 do not think those categories are capable of being bounded 17 around any particular set of information.
18 If the first proposition is -- and this is where 19 I think we were going with our footnote 5 and to some degree 20 answers your Honor's original question about the degree of
~21 congruency or the degree of continued dispute between the 22 Board's interpretation and what we offered in the footnotes 23 you referred to, and that is what is discussed here or what i
24 is intended is whatever Appendix B requires, that then we t
25 agree there is no problem.
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1 hppendix B requires, and is very specific, that I
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2 there shall be determinations of cause -- it is in this 3
Section 60 -- to assure the cause"of the condition is 4
determined, the identification of it is done in the 5
following away.
The cause, et cetera, shall be documented 6
and reported, et cetera.
7 Those are all there.
8 JUDGE BLOCH:
Well, let me ask a hypothetical.
9 You determine the cause, say, of a paint deficiency and it 10 is all documented, and now you hire a company for a 11 consultant report and in their inquiry they find out that 12 some of your own officials now say something different.
13 Now, that might not be in your file that related 14 to your determination of cause.
What is your obligation 15 with respect to this information coming from your own 16 officials?
17 MR. EGGELING:
The obligation would be that those 18 officials were required to disclose it and write a new 19 document generating the genesis of a new study of it as soon 20 as they said, gee, maybe this is the cause or, gee, maybe 21 this is the cause of a significant condition adverse to 22 quality.
23 But the obligation is upon the employees and 24 agents who do it.
I (3
1
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i 25 JUDGE BLOCH:
How about on the company?
Suppose ACE FEDERAL REPORTERS, INC.
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- 1 the company finds out, let's say, in the process of 2
reviewing;the dipcovcey requests that'there is new 13~
information about something that has been previously
'4'
' determined.
s 5
Now, don't they also have to assure themselves it 6
is properly. included in the system for cause?
7 MR. EGGELING:
The company is no more than a 8
' collection of individuals, your Honor.
The company is not a 9
. magic entity.
Certaitily it has to do that, but it does that 10 through human beings who perceive things, say. things, read 11 things, or write things.
12-JUDGE BLOCH:
Okay.
So.in looking over the 13 materials supplied to CREcTF and the documents supplied.to
.\\
14 CRESAP, if-the lawyers founa information relevant to cause 15 could they track down to see that in fact that resulted in 16 some new information that is now being considered?
'l 17 MR. EGGELING:
Again, I am not with you in a way 18,
that I think would be helpful to answer that question 19 directly.
I hate to sound evasive, but there are a couple 20 of assumptions in that statement that I think differs so j
'21 greatly from mine that I would have difficulty answering.
22 JUDGE BLOCH:
What are the assumptions or the 23 differences?
I 1
24 MR. EGGELING:
The assumption that a relevant to 25' cause determination in some way provides a test by which one' I
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can figure something out.
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Let's assume that someone says today or yesterday 3
that, gee, this appears to be a significant condition 4
adverse to quality and a whole series of processes were put I
5 into motion and ultimately a document has to be written 6
which not only prevents that, takes care of this condition, 7
but determines the underlying cause, write it all up and 8
report how that cause has been solved so that it won't 9
happen again, and that is everyone's duty and that is done.
10 And what we are suggesting is that that must be 11 done in the case of this information as well.
There is no 12 problem, but the fact that one can hypothesize any number of A-iJ 13 alternative causes that really aren't the cause -- we are s
14 just hypothesizing.
Golly, what if this related to?
It 15 might change your views.
That would become a springboard 16 for invading any number of recognized privileges in areas 17 which so f ar as I submit no one conceives of Appendix B as 18 going.
19 Por example, if you assume that any information 20 out there in the world might have something to do with some 21 alternative cause, you would be looking in every employee's 22 wastebasket, you would be monitoring their telephone 23 conversations, you would be following them home to see 24 whether over a few drinks they tell somebody something they i
(
25 haven't properly done there.
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You would be theoretically invading the priest's
%)
2 penitence privilege by bugging the confessional end, to use 3
something a little more specific ~and close to the. point, 4
that you would be requiring the disclosure of everything 5
that they say in their proper role as an emplcyee or agent 6
of TU Electric to TU Electric s attorneys in the course of 7
its preparation for trial.
8' There is no question that that information is 9
shielded by the attorney / client privilege.
They may have a 10 similar obligation to ge right out before or after and put 11 that information into the corrective action system and get 12 it working and see that it is carried out, but you cannot
,O 13 use the fact that such information might exist'as a basis 14 for disregarding a privilege that is fairly well ershrined 15 in the law.
16 And it is our submission that the work product 17 p'rivilege is just as enshrined in the law, both as a matter 18 of history, of course, as your Honor knows -- perhaps Dr.
I 19 Jordan does.
It goes well back before Hickman and is a 20 common law antecedent, but it has also specifically been 21 granted in the Commission's regulations.
22 And the notion that there might be some other 23 basis for cause, whatever that may be, doesn't become a 24 force by which one can sweep away the work product O
25 privilege, and I respectfully submit that that notion of 1
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cause or even the notion of relevant to don't provide tools C/
2 upon which one can make intelligent decisions, objective 3
decisions as to what information must not be disclosed.
4 For instance, if you look at the Joint 5
Interveners' brief, Mr. Roisman's I guess, one of the recent 6
ones on this case, his notion of cause is -- and I am not 7
criticizing him for it.
That is his litigation stance and 8
his position, but it is virtually unlimited.
One should 9
look at every financial decision and everything else because 10 in some way it might have something to do with the pressures 11 that help to develop some understanding of the factors he i
12 quotes.in the CRESAP audit, to develop an understanding of 13 the primary factors causing cost and schedule changes.
14 From there one can hypothesize that coat and 15 schedule changes or the financial pressures on there somehow 16 were some underlying cause for some hypothesized underlying 17 management decision, for some hypothesized underlying effect 18 that the management decision caused, down to the cause of a 19 widget not being painted the proper color.
20 There is really no limit to the notionc. of 21 relevant to or related to cause determinations such as I 22 understand to be in the Board's order as originally written 23 and as I understood it to be clarified or attempted to be 24 clarified today.
h'--
25 JUDGE BLOCH:
What was the limitation that you l
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anticipated in footnote 57 There was some way of limiting 1
u 2
it that you felt would be okay?
3 MR. EGGELING:
Well, I~think there are two, and I 4
frankly don't know exactly how the second would be 5
implemented because one of the problems you have is that the 6
people that the CRESAP people would have interviewed -- and 1
7 let me go back to the position I said before, that there are 8
three categories of documents.
9 With regard to historical documents, if there is 10 some way to produce those without disclosing the search and 11.
compilation process, the essence of the work produc t, dince i
12 the Interveners can have those that is a mechanical problem
(~'
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13 which might or might not be solvable.
I t'nink it la 14 solvable.
15 The next are the documents actually created by TU 16 employees, still sitting within their possession, and in 17 response I think those could probably be screened in theory 18 by TU Electric OA/QC people, people who would understand and 19 be able to identify anything that said, here I am, I am a i
20 significant condition adverse to quality or, here I am, I 21 have received one or, here I am, I perceive a problem that 22 caused a significant condition adverse to quality.
l 23 JUDGE BLOCH:
Along those lines, have those l
24 documents been screened from the standpoint of whether they 25 are relevant to other discovery requests?
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MR. EGGELING:.. Relevant'to other discovery --
2 JUDGE BLOCH:
Prior ones that have to -be updated; q
3.
in 'other words, where you ~ disclosed information to of ficials.
1 4
and-said one thing'and the new statements to CRESAP'may have l.
'S been: inconsistent.
)
6 MR. EGGELING:
I would say not if I understand j
7-the question.. The' documents:are work product and have not 8
been screened against anything other than all ~ people who 9
have created the documents or participated with the 10 documents -- for the most part it is the'same group -- know' 11-what has been said, and that is the point I was getting to-
'12 when I said in theory.
O 13 JooGE eLOCH:
I underseend.
14 What I am asking is if it is possible that some 15 of'those statementa that were given to CRESAP are 1
16; inconsistent with information that you have already provided j
17 to Interveners so that they now constitute fresh information 18 that go to the truth of what you previously disclosed?-
19 MR. EGGELING:
I don't know how to answer the s
20 question "possible."
21-JUDGE BLOCH:
You just haven' t looked at ' it?
22 MR. EGGELING:
I have not looked at them, nor do
.q
- 23 I think anyone has screened them, the' history of every 24
' written statement.
I do think that the people who wrote 25 them or sign them are the same. people who are answering ACE-FEDERAL REPORTERS, INC.
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- questions' today or have answered them in the past and are li j
2 giving the same answers.
'3 The' point'I was getting~to is --
i i
4 JUDGE;BLOCH:
Giving the same answers, you.are 5
correct.
There is no obligation to update.
- Clearly, 6
though, if they were different answers,-there would be, 7.
isn't that' correct?
8 MR. EGGELING:
I' don't know if'that is true or 9
not..
No, I wouldn't necessarily say it was true at all.
10 Dealing with your hypothesis, the hypothesis is 11 that on X date we gave an answer to the-Interveners. Hon 12 some other date, either before'or after'X date, which is the-13
' basic hypothesis, there is something that looks like a 14 different answer in the CRESAP file.
15 I have no obligation to update the - answer to the 16 Interveners unless I conclude that it is wrong.
It may be 17 that the CRESAP answer was wrong.
Maybe the CRESAP 18 information was really responding to.a slightly different 19 quesation that was clarified by an oral. statement over a 20 telephone or whatever and'looking at the document you would 21.
eventually sort it out.
22 It is only if I conclude that information given-23 to the Interveners in' a previous discovery request is 24 violative of the supplementation requirements in the 25 regulations that I have t either supplement or change.
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JUDGE BLOCH:
Okay.
j'^)3 bur l
2 MR. EGGELING:
But the point I was -- to finish l
3 that point, which is fairly important -- the theoretical 4
screening that we were just talking about, whether we do it 5
along your line of questioning or the part I was talking 6
about on OA/0C and Appendix B, it is being done by the same 7
people.
The same people who originally generated the 8
documents are the same people who are going to make this 9
review.
10 And as I said, although in theory it can be done, 11 I suppose, I don't see any purpose in it since, if they had 12 identified or spotted anything, they would have already put
()
13 it into their calculations or already dealt with it.
It 14 would already be in the correction action system, and that 15 would be the same.
16 The third grouping, to go back to my starting 17 place, is the information crally given to CRESAP which only 18 existed in CRESAP's possession and only in the form of some 19 interview notes which have not been seen by anybody from TU 20 Electric.
21 But those again, to the extent that somebody sat 22 in a room and said, gee, I. have a significant condition 23 adverse to quality here, they had a duty to immediately come 24 back and treat that, and I have no reason for believing --
25 and I suggest the Board has no reason for hypothesizing --
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that that was not done.
That sort of hypothesizing is not a 2
basis for disregarding the work --
3 JUDGE BLOCH:
CRESAP was not informed that cne of 4
their obligations was to report deficiencies and causes of 5
deficiencies?
6 MR. EGGELING:
No, I believe that is not true, 7
your Honor.
They are not under Part 21.
They are not a
certified as a -- and I don't know the terminology.
I' 9
apologize to everyone who does.
Probably everybody on the 10 phone does but I -- but they are not someone whose work was 11 certified as having any such implications relevant and they 1
12 are under no such duty.
r k>)
13 They have no such training.
They are basically 14 people, who put together management financial decisions.
15 They wouldn't know, as I understand it, a pure OA/0C issue, 16 whether or not this procedural checklist works or doesn't 17 work, if they stumbled across it, and they were not subject 18 to that requirement as to othar contractors any more in fact i
19 than would I, and I interview agents of TU Electric all the
]
20 time.
21 And certainly if someone says to me, boy, this is 22 a quality name or this is a company like that, I say to 23 them, you know, you have got this legal obligation, I assume 24 you have taken care of it.
And I get a "yes, yes, Roger, I')
25 out."
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2 that-doesn't trigger any of those things,_I wouldn't
.3 recognize it from.. the wall in - my of fice, nor.do I. run and
{
4 try to figure it out nor, I suggest, that given the 5
attorney / client privilege am I obligated to do.so, and I am 6
- quite certain that no one is entitled to force' discovery on f
.7 that information from me based on the possibility that 8
somebody might put this piece together with this. piece and 9
see some different picture with regard 'to history.
10.
JUDGE BLOCH:
We have run about double the time.
11 MR. EGGELING:
I apologize.
12 JUDGE BLOCH:
Okay.
I have asked questions, and 13 I Tfeel it is time well spent.
14 How much time do you need?
15 MR. EGGELING:
I think I can probably stop 16 because I think I have touched on most of my points one way 17 or the other and they are.in the brief.
18-JUDGE BLOCH:
We have read the brief, I assure 19 you.
20 MR. EGGELING:
The onc thing that I would 21 observe, to try to sum up with regard to the issue that is 7
22 presented as the Board presented it, it has to do with the 23 application for the stay.
p.
24 The application for the stay has four fairly well 25 stated tests.
I think it is perfectly clear that any i
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2 product privilege would cause irreparable harm.
Once it is 3
out'of the bottle it can't be put~back in.
4 The fact that the Board's analysis of the forces 5
supposedly disregarding the work product privilege and 6
requiring protection and materials clearly covered by it 7
does not seem to have any counterpart in previous decisions 8
or in the regulations.
9 It suggests at least -- and I won't hammer it 10 home whnn it is in our brief -- but it suggests at least 11 that the decision is very novel, and I think the Board 12 should stay whatever cause and ef fects there are until we 13 have had a full chance to study that and study all the
-14 authorities to see whether in fact it can be made congruent 15 with the other authority, and 7. submit it can't.
16-JUDGE BLOCH:
Okay.
Well, thank you.
17 Mr. Roisman, we would allow you up to 20 minutes, i
i 18 though I am not sure you need them.
19 MR. ROISMAN:
Okay, thank you, Mr. Chairman.
20 Ms. Garde will assist me at appropriate moments 21 with regard to the underlying questions.
22 JUDGE BLOCH:
My apology to your client in 23 calling you CASE when you are not that.
24 MR. ROISMAN:
That is right, but I understand k
25 that it is CASE and Miti Gregory together that are being ACE. FEDERAL REPORTERS, INC.
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l u
2 JUDGE BLOCH:
That is right.
That is correct.
3 MR. ROISMAN:
Part of ~the difficulty that I got 4
with che Applicants' motion for a stay is that the thrust of 5
it seems to be that they will be -- based upon a motion for 6
reconsideration that they are clearly right, and this is the 7
most briefed issue that we. have had before the Licensing 8
Board on discovery of which I am aware.
9 I took the time today to go back and take a look 10 and just see what that meant.
11 In February of '87 the Applicants filed three and 12 a half pages of objections to Set 5.
On the 18th they filed k'~/
's 13 three pages of objections to Set 6.
On March the 18th they 14 filed 24 pages of brief in support, and on the 18th of May 15 they filed 21 more pages of brief.
16 I don't think there is anything to reconsider 17 here.
I think this is an obvious -- either a delay tactic 18 or a tactic designed to sap the energy of counsel for Miti 19 Gregory and CASE on a point that is already well briefed.
20 There is nothing new for this Board to look at.
21 The Board looked at it.
It had the benefit of all the 22 pleadings by the parties.
It decided against the utility.
23 That is the end of the matter, in our j udgment.
There is no 24 reason to consider it, and obviously there is no need for a O
25 stay.
\\
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ur.
1 If the Board thinks that there is anything that 2..
'should be reconsidered in what the Applicant filed, -we could 3
certainly ask the Board to apply the standard. applied 4
vehemently in most licensing proceedings against 5
Interveners, which is litigation.
6 JUDGE BLOCH:
Mr. Roisman, I am losing you.
7 MR. ROISMAN:
If any Intervenor party were 8
allowed.to have what are in effect four briefs on the merits 9
on a point, you could be assured that some Licensing Board, 10 Appeal Board, or the Commissioners themselves would ring
-11 with a statement-about delaying the proceeding.
12 That is precisely what this utility is doing L
13 here.
The matter is over.
They have lost.
They should 14 take their licks and go home.
15 They argue that they will receive some sort of 16 terrible irreparable injury if it should occur that the 17 documents that we have sought are actually turned over to 18 us.
As to all the historical documents, they raise one 19 objection only.
They say we will learn the selection 20 process.
.21 Now, what is the selection process they claim we 22 will learn?
It is the process by which they selected the 23 documents to give to an independent auditor who Mr. Eggeling 24 just told us about a moment ago, who wouldn't know a safety
-O.
25 matter if they. fell over it on the street.
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Now, it is inconceivable to us that there is any gggpbur 2
secret contained in that that Applicants' lawyer could 3
possibly be disclosing to us.
They should be answering the 4
prudency auditor's question, only there is no selection 5
process in that.
6 The auditors asked them a question, they gave 7
them an answer.
They gave them documents.
8 Has the auditor got a secret process that gives 9
him title to keep?
10 We don't see how that could apply either.
By 11 definition the only value to this audit is that it is 12 inde pendent.
If it is not independent, it is just another 13 audit.
They don't have any way to prepare it.
14 Now, the auaitor doesn' t have any selection 15 process which discloses litigation strategy.
They aren't a 16 litigant, and they don' t have a litigation strategy.
They 17 are just auditing the prudency of this company.
So their 18 selection process can't possibly be subject to protection.
19 Third, as the Board is probably aware --
20 JUDGE BLOCH:
That is an argument that we are 21 incorrect in considering work product privilege at all, is 22 that correct?
23 MR. ROISMAN:
Well, it is an argument that*says 24 if you decided that this was work product you certainly 25 couldn't have decided it on the basis that it was the ACE FEDERAL REPORTERS, INC,
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7660 01 01 24921 bur 1
selection process that was engaged in by CRESAP.
Our 2'
original discovery request, which was not by any means 3
granted in full, asked for some other information. which you 4
did not give us on Phase II, and some of what we asked for 5
in there might arguably have been the utilities' lawyers' 6
selection process, but not what.we are now arguing about.
7 The three categories of things that Mr. Eggeling defined are 8
not in that category.
9 JUDGE BLOCH:
Mr. Roisman, could you tell me 10 whether the Board's decisions are novel?
11 MR. ROISMAN:
No, I didn't see anything in there 12 that seemed to be novel, Mr. Chairman.
It seemed to me all O
13 the Board was saying, rather, I thought, unexceptionably and 14 rather consistent with the Commission's practice, is that if 15 a utility has in its possession or any of its agents 16 information which is directly relevant to a safety issue 17 that is pending before a board it ought to be turned over to 18 the parties.
19 We have got the issue.
There is no question 20 about that.
It is a contention in the proceeding.
That has 21 been affirmed by the Appeal Board, and these matters are 22 clearly relevant to that.
There is no argument that we are 23 asking for irrelevant data except to the extent that we 24 would have been interpreted to do that the Board dealt with l
Cr 4
25 that.
You said we couldn't have the financial in forma tion l
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JUDGE BLOCH:
Now, in the context of work product 3'
privilege, do we.have any precedent that'says that if it is 4
relevant to safety it it turned over, even if it is related s
5 to-work. product privilege?-
6-
-MR. ROISMAN:- The closest thing that I can find -
7 at this point is the Commiscion's most recent decision in 8
the rather notorious case of Houston Lighting & Power 9
Company seeking enforcement of the subpoena issued against 10, myt co-counsel B.illie Garde, who in a different capacity is 11 alleged to have in her. possession what is undoubtedly 12 attorney work product material; namely, data that she s'^^)
13 gathe' red from her clients related to alleged safety problems 14 at the Houston Lighting & Power Company's plant in So th 15 Texas.
16 That Commission decision, which enforces the 17 subpoena' and denies the motion to quash, is dated -- served 18 July 15th of 1987, and there is no --
1 19 JUDGE BLOCH:
July 15?
20 MR. ROISMAN:
'87.
There is no NRC number on it, 21 at least -- I mean, I have the slip opinion.
I assume it 22 will have an NRC number, but it doesn't have one now.
23 JUDGE BLOCH:
I am not familiar with that 24 decision.
'g-)3
(
25 Mr. Eggeling, are you?
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~ 1 MR. EGGELING:
No, your Honor, I am not.
2' MR. ROISMAN:
Well, what the Commission had 3
before.it, Mr. Chairman, the pertinent part is that the L
4 Commission in the' document states that they don't know that 5
they-have enough information in front of them to' decide 6
whether Ms. Garde has an attorney work product or whether 7.
she has an attorney / client relationship, and then they go on 8
~to discuss the application of both.of those doctrines,
. 91 indicating that they believe that the safety considerations 10 are sufficiently important that they must be allowed to go 11' ahead with this very, very broad subpoena that has' been
.,4 12 filed for the information which Ms. Garde allegedly had in V.:
13 her possession.
14 And while it is not -- and I don't mean to 15 pretend to tell you that it is "right on point -- what it
- 16 does' indicate is that the Commission, when faced with the 17 kind of arguments which the staff presented there, which was 18 this is safety information, i t is in the possession of 19 somebody else, we can't properly license a nuclear plant 20 without' having all the relevant safety information in our 21 possession, that the Commission is really articulating the 22
.same principle which this Board had articulated in its order 23' of June the 22nd, which is the principle that it takes an 7m-24 enormous amount to overcome the Commission's pressure to get b.
25' safety information.
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~
That seems to me of course -- I guess the ggpbur 2
argument was in some way persuasive to the Board -- that it the Boa'd should decide for the 3
would not be logical that r
4 safety of the public, of people living literally within l
5 hundreds of miles of this planc, whether the planc should be I e 6
allowed to operate or not, but not have in its possession ui '
7 admittedly relevant infonnation en a critical safety 8
question and that there must be a way to deal with that
[
9 problem.
10 Now, we don't have to get to the hard questions 11 that Ms. Garde's case raises because we don't have a direct 12 communication between a lawyer preparing a case and an 13 expert.
We have the precise opposite.
We have the 14
, communication to nonlawyers operating independently from 15 nonlawyers; namely, the people who are employees of TU 16 Electric, the people who entered the historical documents 17 and answered written questions chat were put to them by the 18 people from CRESAP.
19 MS. GARDE:
This is Billie Garde.
20 Let me alsc --
21 JUDGE BLOCH:
Ms. Garde, could you speak a bit
,s 22 louder?
You are very faint.
23 MS. GARDE:
Yes.
I j ust wanted to bring to the 24 attention of the Board -- and perhaps Mr. Roisman, once I O
25 remind him, can explain it.
Otherwise, I will -- the other ACE-FEDERAL REPORTERS, INC.
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(,) bur-1 precedent that I am aware of in this area which more goes to 2
the CRESAP interview as well as those issues, and that was 3
the decision in Midland.
4 Mr. Roisman, I think I sent you a copy some years 5
ago, in which the Commission decided that information in the 6
hands of a third party at that time, the person holding the 7
information or the organization holding the information plus 8
the government.'s accountability project had to be turned 9
over in a licensing hearing, and that was the Midland case, 10 Consumers Power Company.
11 VOICE:
GAP was not a party in the case, was it?
12 MS. GARDE:
GAP was not a party, but it had taken O
interviewsofworkars, and the Board in that case deemed 13 14 that that information was relevant.
15 Again, it was a subpaena situation where the 16 licensee or the Applicant, Consumers Power Company, was 17 attempting to get the information and the information was 18 ordered to be disclosed by the Commission.
19 JUDGE BLOCH:
But there is no work product 20 privilege because there is no party involved, is that 21 correct?
There was no litigation for which that was 22 collected?
23 MR. ROISMAN:
Well, I would say it is similar to 24 this situation, your Honor, because although admittedly 25 unauthorized, GAP was performing the role of an independent ACE-FEDERAL REPORTERS, }NC.
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auditor, and that is exactly what CRESAP is doing.
It is fbur 2
performing the role of an independent auditor.
3 I would concede we would have a different, 4
although I already argued it and we are not going to argue 5
again, it is an admittedly different situation if we were 6
asking to have the TUEC lawyers' developed processes i
7 disclosed, but what the Board has limited us to is what 8
CRESAP came up with.
What historical documents were 9
produced to answer CRESAP's questions, not what historical 10 documents were produced to answer counsel's questions?
11 JUDGE BLOCH:
And you are saying that there is no 12 evidence that we have of the questions developed by CRESAP lh 13 were at the direction of the lawyers?
14 MR. ROISMAN:
Absolutely.
In fact, the whole 15 theory of the prudency audit was to have somebody 16 independently do this.
17 JUDGE BLOCH:
What about the fact that they were 18 hired as nontestifying witnesses and therefore they are 19 covered by the privilege?
20 MR. ROISMAN:
I think the short answer to that 21 is -- and I was going to put down the third point here on 4
the question of historical documents and the selection 22 23 process -- TUEC requires CASE as a condition of disclosure 24 of documents to CASE that we provide them with our selection 25 process.
We have to read documents at their offices that we
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individually request.
We have to have them copy the J
2 documents for us.
3 So I am not real sympathetic to the idea that 4
there is something magic about the selection process.
5 Moreover, with all due respect, I have briefed 6
and argued and I believe persuaded you once already with 7
much more time to prepare than we had here.
I did not 8
receive these papers until I returned from a trip last week.
9 So I have had relatively little time to take a look at them.
10 But the point is that this -- we are not saying 11 that we don't have work product at all.
We are saying that 12 whatever we have got -- whatever you have already ruled we
~~()
13 have not asked for reconsideration of that, but whatever we 14 have got the utility is being asked to turn over must be 15 clearly at the very periphery of anything, and we have to 16 balance against it a remarkable need, and that brings me 17 really to the second point I wanted to make.
18 The reason that Mr. Eggeling is having so much 19 trouble with the Board's definition is the reason that these 20 two Interveners are opposing the construction permit 21 extension.
It is because this utility has the most unique 22 and bizarre explanation of what the Commission's regulations 23 mean ever seen on the face of this earth, and Mr. Eggeling 24 can't take a common sense statement like whatever things you
-s
/
)
25 are supposed to produce under Appendix B because he probably ACE FEDERAL REPORTERS, INC.
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'l can't get a straight answer from his client as to what they 2
think they are supposed to produce under Appendix B.
3 Now, what we are reallp dealing with here is 4
their unwillingness to now disclose that when their prudency 5
auditors, who said to them, I am sure, something to the
~
6 effect that if you want a rollable document from us you had 7
better be up front and straight, don't play any games, that 8
they really were turning over to the prudency auditors an 9
answer to what were fundamentally the same kinds of 10 questions that Appendix B, the cause determination 11 requirements, involved.
12 Markedly different material, and that is what
(~}
\\
13 they are trying to protect.
They are trying to protect the 14 fact that they tell a different story to their different 15 audiences, and that is what this fight is all about.
16 If they want to keep the selection process secret 17 from us, let them add another 500 documents.
How do we know 18 which 500 they added?
Just give us all the documents that 19 they turned over to CRESAP and 500 more.
The selection 20 process will be hidden.
We don' t know where it is.
21 With regard to the statements that were made by 22 people from the company itself to questions that were raised 23 by CRESAP, here again we are not talking about information 24 that is in the possession of CRESAP, the so-called 25 nontestifying experts.
We are talking about information ACE FEDERAL REPORTERS, INC.
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that was in the possession of the answerer, and his or her 2
statements represent admissions within the meaning of 3
exception to the hearsay rule, admissions within.the meaning 4
of the Commission's regulations allowing the request for 5
admissions by parties, and they represent statements 6
potentially against interest,-all of which are discoverable, 7
none of which have any privileges to them because they don't 8
come from nontestifying experts.
9 We want to know what they said to CRESAP.
If 10 they don't want to tr 11 us what CRESAP said --
11 JUDGE BLOCH:
And the argument about 12 confidentiality, the understanding of confidentiality --
(}
13 MR. ROISMAN:
Take their names off.
14 JUDGE BLOCH:
So you want to have the names off?
I don't care if I have their names 16 right now.
I will argue later if I have got a statement 17 that seems overwhelmingly important, if I want to know who 18 did that or who said that.
19 Dut they can indicate this is -- they can l
20 indicate this comes from upper management, this comes from 21 some employee down the line.
I would be interested to see 22 that argument about confidentiality.
After almost 50 pages 23 of briefs, I don't remember ever seeing that before.
I 24 never remember seeing anybody's affidavit telling me that
()
25 there was a confidentiality agreement, and I never saw any
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confidentiality agreement.
2 JUDGE BLOCH:
Were they valid anyway?
Would it 3
be valid?
Would it be somehow valid?
4 MR. ROISMAN:
Well, I must say I am troubled, and l
5 on this score I may end up a little more on the Applicants' 1
6 side of this issue.
7 I am troubled by the prospect that if you go to 8
somebody, whether formally or inf ormally, with a court order
'r otherwise, and say you tell me everything you have got to 9
o 10 tell me and I won't tell anybody.
l 11 If they have got such an understanding with the 12 people who talk to them, if the President of TUEC talked to
()
13 the CRESAP auditors with the understanding that it was 14 confidential, not that it wouldn't be disclosed to me or you 15 but that it wouldn't be disclosed and that no one would know 16 that he is the one that said, look, if it is really X, Y,
17 and Z back there and they did a bad thing, I would be 18 reluctant to say they must bring that unless it had to be 19 done for purposes of making the case, and even then it may 20 be that it would be disclosed in camera and only to the 21 Board.
22 JUDGE BLOCH:
Okay.
We have now gone over -- we
,2: 3 are close to going over the 20-minute time.
24 How much time would you take to complete?
()
25 MR. ROISMAN:
I really don't need any more than ACE-FEDERAL REPORTERS, INC.
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MPBb'ur l'
that, except to say this:
2 The issue has been briefed, the case of Miti 3
Gregory is conceded, there is no reason for this issue to be
'4 reconsidered.
5 The Board very substantially limited the 6
discovery request, and what is-left that the Board has said 7
we are entitled to it is uniquely. inappropriate to being 8
held back from disclosure to us in this proceeding.
It does 9
go to the heart.
10 When one reads the prudency audit description, i
l 11 the prudency audit is an attempt by the prudency auditors to 12 answer the questions or a large piece of the questions that
~
13 this licensing hearing is designed to do, and if nothing
[}-
14 else, knowing how differently the utility may have answered 15 those questions when it was done in the confines of the 16 present inquiry, versus how they answered when they made 17 Appendix B filings or filings of this order in answer to our 18 discovery, will go very directly to the difficult issue that 19 we have to prove in order to prevail in this case, and that 20 is that the company had an improper loading and that they 21 intended to do terrible things.
22 This really hamstrings us very, very severely.
23 JUDGE BLOCH:
Thank you, Mr. Roisman.
24 Loos that complete the Joint Interveners'
()
25 presentation?
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MR. ROISMAN:
Yes.
2 JUDGE BLOCH:
Thank you.
3 Mr. Mizuno, we are particularly interested in 4
what plans the Staff has to review these materials and what a
5 their comments are on the discovery dispute.
I 6
MR. MIZUNO:
Well, as far as the Staff is 7
concerned, I do not know of any plans by the Staff to review 8
these materials that are being sought by CASE.
9 If necessary, we could ask Mr. Grimes to give you r
10 a more definitive answer on that, but at this time Staff 11 counsel is not aware of any plans by the Staff to look at 12 the materials.
h 13 JUDGE BLOCH:
Well, is the Staff scill having 14 under study the question of management responsibility for 15 deficiencies.
16 MR. CHANDLER:
I am sorry, Mr. Chairman.
In what 17 context?
In the context of the former --
18 JUDGE BLOCH:
In any context is the Staff looking 19 at the question of whether there is a pattern of 20 deficiencies either in design or construction as a result of 21 management practices?
22 At one point we actually started to get into a 23 hearing about that as part of the -- I am trying to think of 24 it -- the coercion argument, and the Staff said it wasn't O
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final view on that.
U 2
Do you know whether the Staf f is still looking at 3
management's contributions to patterns of deficiencies?
4 MR. CHANDLER:
Not as an independent issue, Mr.
5 Chairman.
I think the Staff -- I am trying to recall the 6
date -- we did advise the Board and the parties sometime 7
back that the individual effort that the Staff had 8
undertaken under what we had referred to as the Contention 5 9
had been disbanded as a result of the more broadly based and i
10 larger undertaking represented through the CPRT and more 11 obviously through the corrective action program.
12 So the Staff was not continuing to examine this
()
13
-issue as an independent element.
14 JUDGE BLOCH:
I don't know why you added.that at 15 the end.
It is either examining or not.
You said not as an 16 independent element.
17 MR. CHANDLER:
Not as an independent element l
18 within the context of this proceedirg, but I was going to 19 add to that, Mr. Chairman, that nonetheless management l
20 competence is an issue that the Staff has outside of this 21 hearing process looked at and will continue ') look at.
22 JUDGE BLOCH:
Well, you do not kno, with respect 23 to that concern that Staf f is going to look at the CRESAP 24 documents?
()
25 MR. CHANDLER:
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that we tried to convey through our earlier response, and 2
it was-that the Staff is interested in the activ'ities of 3
CRESAP and would be anticipating that information would be 4
provided by the Applicant consistent with its obligations 5
under McGuire and/or Vepco, the North Anna decisions.
6 JUDGE BLOCH:
Okay.'
7 Now, if the Staff looks at those documents, how i
8 would it feel about the Interveners' right to see documents 9
that relate to either deficiencies or causes of 10 deficiencies?
11 MR. CHANDLER:
I think now we are getting into 12 the area, Mr. Chairman, wnere we have sort of consistently
()
13 begged off in the context of dircovery, and I think we will 14 continue to do so.
15 The Applicants may assert a privilege, and the 16 Intervenor may assert that it is an improperly advanced 17 privilege as something that we have not taken a view on, and 18 I think we will maintain that position at this time.
19 JUDGE BLOCH:
Okay, so you don't want to comment 20 on that.
21 N ow, the hypothetical I asked is whether you know 22 what you do if the Interveners requested the same 23 information from you.
You say it is dependent on the 24 coverage of the Applicant?
O A/
25 MR. CHANDLER:
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which the information was submitted to the Staff.
In other 2
words, as we pointed out in our earlier pleading, certain 3
information is withholdable.
For example --
4 JUDGE BLOCH:
It is basically similar to an FOIA 5
question?
6 MR. CHANDLER:
That is how I was going to 7
respond, by saying under FOIA there may be appropriate 8
extensions which may be advanced by the Staff.
We would 9
have to look at it at that point in time.
10 JUDGE BLOCH:
Mr. Eggeling, do you have any brief 11 rebuttal?
12 MR. EGGELING:
Yes, your Honor, very brief.
( })
13 First, I would like to take my hat off to Mr.
14 Roisman and Ms. Garde for taking a case which, so far ac I l
15 can understand it, they argued our position and lost, for I
16 the proposition that we know how to lose as well.
f i
17 I haven't seen the South Texas case.
Obviously,
)
18 I will endeavor to get a copy of it when this is over, and I 19 guess I would ask the Board if it would be appropriate to 20 send in some form of written communication if in fact I 21 think it is material to the points made and that I have 1
22 something to say about it different than what Mr. Roisman 23 said about it.
24 JUDGE BLOCH:
Would you tell me now what your
()
25 practical needs are in terms of a stay?
What is the ACE. FEDERAL REPORTERS, INC.
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1 earliest time at which you might have documents you have to 2'
turn over so that the stay is needed?
3 MR. EGGELING:
I am not sure I understand the 4
question, your Honor.
I am sorry.
5 JUDGE BLOCH:
Well, obviously your obligation is 6
to promptly turn over documents that respond to the Board's 7
order.
8 MR. EGGELING:
Correct.
9 JUDGE BLOCH:
That is going to take you some 10 time.
Until you have assembled them and studied them you
.11 don't need a stay.
12 MR. EGGELING:
Well, I suppose that depends on --
13 I am not sure that is accurate, your Honor.
Let's go back 14 to my three categories.
Let me make just a quick note to 15 myself because I will forget what I was going to do for 16 rebuttal.
17 But I want to field your question as it comes.
18 The three categories are historical documents.
l 19 Mr. Roisman suggested that in some way he would'be willing 20 to simply see the historical documents as long as what we 21 maintain is a work product privilege and what he has 22 previously maintained was it as well; that is, the selection 23 process and the compilation of piles is somehow preserved.
24 That can be done, I should think, in a relatively short 25 period of time if it can be done at all.
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1.
I am not sure adding 500 documents is the way to
)
2 do it, but I could probably find some way.to jumble up the.
3 filed documents and add some documents,.and that could be 4
done.
5 The other two categories of documents are both 6
completely. work product and completely covered by what we 7
assert in our privilege, and therefore I guess in the first 8
place the question of stay, we need a stay because any l
9 disclosure of them would violate the privilege.
10 JUDGE BLOCH:
Except have you examined that yet 11 with respect to the cri'teria the Board laid out, with 12 respect to whether or not you believe they are relevant to
(~)3 Appendix B determinations of cause or deficiencies?
13 14 MR. EGGELING:
No, I have not.
I still -- and I 15 am sorry to say -- 1 still do not understand that criteria 16 as one that I could apply objectively in accordance with 17 either its meaning outside the scope of litigation or as 18 pointed out in Section 3 of our motion as being consistent 19 with the cases regarding objective tests and then the proper 20 roles of an advocate.
21 JUDGE BLOCH:
So your view is even if we refuse 22 the stay you wouldn't turn anything over because you don't 23 know how to do it?
l 24 MR. EGGELING:
I don't know.
What I do is 25 obviously what my client instructs me to do.
My client wil'1
()
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be advised with respect to all of its options and penalties.
O 2
I cannot predict what they will do.
3 JUDGE BLOCH:
I don't know that we need a stay.
4 It sounds to me like you are saying you might not do 5
anything, anyway.
6 MR. EGGELING:
Oh, -I think that is not true at 7
all, your Honor.
I think the law is universal, that if a l
8 party is entitled to a stay at a particular court, whether 9
it be as a result of an injunction or discovery or whatever
(
)
10 else, it is entitled to that stay based upon the standards
{
11 laid down, so that it is not forced to either take an appeal 12 or, if this was Superior Court, to take the risk of a
{ '}
13 contempt sanction because that becomes then the only way to 14 preserve its rights, as the attorneys did in Hickman.
You 15 can't be put to that choice just because you might make it.
16 That is not the law.
17 JUDGE BLOCH:
Let me make it a little clearer.
I 18 What I am considering in my mind is whether or not to grant 19 a temporary stay to protect you from turning over the 20 documents.
But my understanding is that even if you were to j
l 21 start now in good faith to apply the standard as contained 22 in the order as well as you could, however confused that is, i
1 23 you wouldn't have any documents f or some period of time, 24 anyway.
e()
25 I don't know why you need a stay.
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MR. EGGELING:
I need a stay pending the Board's O
2 reconsideration of its order which, I have submitted in my 3
brief by the collection of attorneys, is erroneous, and to 4
carry out any coercive aspects of that order until the Board 5
determines whether in fact it committed error and whether in 6
fact that order should be withdrawn and/or changed, that is y
7 why I need a stay.
8 JUDGE BLOCH:
But the burden, as I understend it, 9
would be examining the documents with respect to the 10 standards of the Board, not losing the privilege because 11 there would be a period of time for examining the documents.
12 We are talking, therefore, only about a burden of complying, 13 an economic problem, not the loss of the privilege.
ggg 14 If we were to decide, let's say, in the raxt 15 three or four days, you wouldn't turn over anything within 16 that time period anyway.
17 MR. EGGELING:
If I am following your Honor, we 18 are dealing with what I put in the category two documents; 19 that is, the ones that are created by TU for --
n 20 JUDGE BLOCH:
But category one I understand there i
21 was kind of a meeting of the minds about.
You can't come up 22 with a mechanism for not disclosing the selection process?
23 MR. EGGELING:
It is foreseeable that could be 24 done.
It is conceivable that that is the sort of thing that lll 25 would take a little bit of time, but not very much time.
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JUDGE BLOCH:
And on category two you wguld have 2
to design a system for examining the documents from the 3
standpoint of Appendix B, and it would take some time to 4
apply that.
/ [
5 Now, designing and implementing the system is not 6
the kind of irreparable injury that I understand to be the 7
purpose of the stay.
It is the turning over of the 8
documents themselves which would be irreparably lost, which 9
I understand might be the subject of the stay.
10 MR. EGGELING:
At your level of hypothesis I 11 agree with you completely.
I am not sure about its 12 application, but at your level, which is the re is a process (gg 13 of studying the documents to comply with a determination 14 which may or may not be a correct determination, which may 15 or may not be changed or reviewed or whatever f urther, is 16 not irreparable harm within the meaning of the V
17 communications.
I agree with you.
18 JUDGE BLOCH:
All right.
So if we were to decide 19 the motion for reconsideration within three or four days, my 20 understanding is you don't need a stay?
21 MR. EGGELING:
Probably based upon this 22 transcript.
23 As I said in the footnote in the application for 24 stay, one concern is that the order -- and I know that the lll 25 Board was trying to be helpful and has moved the process ACE-FEDERAL REPORTERS, INC.
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along -- but an order which says you shall comply promptly k) 2 does not give me the kind of clarity with which I can say on 3
.X day, on X hour you will be in violation.
4 That is why we have applied for a stay.
5 JUDGE BLOCH:
We were of course allowing some 6'
leeway.
7 MR. EGGELING:
Precisely, but ifLI had not 8
applied for a stay and had not achieved it by some date, the 9
subjectivity of that produces risk.
10 JUDGE BLOCH:
And my recollection is that there 11 actually was an understanding that the Applicants were doing 12 this work.
(),
13 Am I wrong, Mr. Roisman?
14 MR. ROISMAN:
No, that is correct, your Honor.
I 15 believe we got you on the telephone while Mr. Eggeling and I 16 talked to each other, and it was our understanding that --
17 JUDGE BLOCH:
Then you are agreeing to extend the 18 time to file the papers that have not been filed would not 19 stop the Applicants from preparing for disclosure subject to
)
20 whatever claims they wanted to make for a stay or otherwise?
21 MR. EGGELING:
That is right, and we have 22 complied with that exactly.
I have spent a significant 23 amount of time, as have a large number of other people, 24 ascertaining exactly what documents there are, ascertaining
()
25 the categories that we described, ascertaining the ways in 1
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2 ascertaining, for example, whether the treatment of category-3 one was in any way possible.
4 How could we possibly go about making the 5
historical documents available without disclosing those 6
things which are essential to our attorney work product 7
argument and which we do not intend to give up because we 8
believe the regulation gives us --
9 JUDGE BLOCH:
Does the work, however difficult, j
10 also include categorizing the category two documents by 11 whether or not they have to be turned over under the court's 12 order?
i 13
'MR.
EGGELING:
Has it yet?
No.
(}'
14
. JUDGE BLOCH:
Okay.
And that is because you 15 haven't gotten to that phase yet?
l 16 MR. EGGELING:
That is probably true, but it is 17 also true that because in both finding out exactly what the 18 categories were, looking at category two, measuring it 19 against the existing authorities on what work product is and 20 the regulations, we believe that the Board had to be in 21 error in ordering category two to be produced.
22 We asserted that in our motion for 23 reconsideration and sought a stay once we concluded tnat 24 that was our right -- exactly as Mr. Roisman said,
-(]J 25 consistent with our original agreement.
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JUDGE BLOCH:
I don't understand that the 2
application for a stay -- that that would work.
3 MR. EGGELING:
I don't understand that that 4
necessarily stops the work.
The work has not continued 5
having filed the application because I don't know where to 6
go from here.
7 As I said before, the test that we originally 8
understood was not a test that we could apply.
With the 9
interpretation today, I am hoping to get this transcript, 10 which I have probably made more difficult by talking tco l
l 11 fast, but if someone can help me unde'rstand that who l
12 understands what the documents are, then we would presumably 13 proceed on figuring out if that can be made.
14 As I said earlier in answer to your Honor's 15 question during my direct argument, I was not clear that I i
16 personally still knew how to make those cuts.
17 JUDGE BLOCH:
Okay.
I am really not clear as to 18 whether Applicants believe that the standard is applicable 19 or whether it is difficult, what the Applicants' position is i
I 20 on the standard the Board actually laid out.
I guess you l
21 don't know.
If I understand what you have just said, you l
l 22 haven't conferred with your client to the point where you l
23 know whether the standard can be reasonably applied.
j 24 MR. EGGELING:
If what you are saying is the O
2s standard by which you think you have particularly addressed ACE-FEDERAL REPORTERS, INC.
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and focused upon in this conference call back at 2:30, that i
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is correct.- I have spoken to no one.
I have not had time 3
to speak with anyone with regard to whether there was a 4
clarification that would allow for some further way to work 5
on these documents.
6 JUDGE BLOCH:
Is that'much different from the 7
understanding you had baforehand of what the order meant?
8 MR. EGGELING:
Clarified and made more definite.
9 Some things that we had hoped we understood correctly with 10 regard to, as you pointed out, the conjunctive part of the 11 supplied to CRESAP part as well as what.the cause 12 determination might mean.
(])
13 We had frankly hoped -- and then that is what 5
14' was about -- that perhaps the relevant to cause 15 determinations meant nothing more than those things which 16 Appendix B required us to do.
17 We need to be sure that the things that Appendix 18 B required -- everything here would say, yes, Appendix B has 19 been complied with or, golly gee, I have got to file a 20 5055(e) here.
If that was what it meant, that was 21 something, too.
22 I think your Honor has still suggested something 23 different from those tesis.
He has suggested something a I
24 good deal broader, whic) we were hoping, as we interpreted j
()
25 it, was not what the Board intended.
That was why we moved ACE FEDEPAL REPORTERS, INC.
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for either clarification or reconsideration because of the
~
2 possibility we are reading the Board incorrectly.
3 JUDGE BLOCH:
Dr. Jordan, do you have any 4
questions you want to ask?
5 DR. JORDAN:
Yes, I am here.
I hear you.
6 JUDGE BLOCH:
If you have any questions, I will 7
relay them.
8 DR. JORDAN:
All right.
9 No, I don't think I have any questions to ask 10 right now.
11 JUDGE BLOCH:
All right, Dr. Jordan has no 12 questions.
({}
13 MR. EGGELING:
I never got to do my rebuttal, 14 your Honor.
15 JUDGE BLOCH:
Oh, I thought you had.
I am sorry 16 about that.
17 MR. EGGELING:
No.
18 JUDGE BLOCH:
All right.
Rebuttal is limited to 19 new material that was raised by the others.
20 MR. EGGELING:
Yes, your Honor.
That is fine.
21 The only couple of observations that I will make, 22 Mr. Roisman several times suggested in his argument -- and 23 it was somewhat new to me -- that if this in fact had been 24 questions or answars or anything else developed by TU
()
25 lawyers or directed by or something like that, that if they ACE-FEDERAL REPORTERS, INC.
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1 were involved in the process in that way somehow the work V
2 product privilege would be struck differently and he would 3
be much less troubled by it.
4 I have to suggest, I guess -- I hope my brief 5
covered this -- that that is simply inconsistent with the
~
6 regulation.
The regulation makes very clear that there is a 7
work product. privilege which attaches to things prepared in 8
anticipation of or for the hearing by or for another party, 9
representative (including his attorney, consultant, surety, 10 indemnitor, assurer or agent).
11 The cases are legion that it is not limited by 12 any means to an attorney, and these people are clearly
()
13 within the test set forth there, and th'e regulation goes on 14 to provide that it is only upon the showing of substantial 15 need and undue hardship may the Interveners override that
-16 privilege.
17 Mr. Roisman made one other point which I thought 18 was a good one except in its application to the f acts here.
19 His point was that the important information was not that of 20 CRESAP's and not that received by CRESAP or in CRESAP's 21 knowledge or mind or whatever, but rather it was the 22 information in the possession in the sense of knowledge or 23 in some cases the hands, I guess, of TU employees.
24 That is perfectly correct.
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that has any bearing on the question, since CRESAP by 2
definition was never around when anything important 3
happened, and the fact is that, as the cases made completely 4
clear, Mr. Roisman and his client, or both the Interveners 5
-- I apologize for disregarding Ms. Ellis --
have the duty 6
and responsibility to establish substantial need and undue 7
hardship, and to do so they have the right to take the 8
depositions, use interrogatories, anything else to ask 9
exactly the sorts of questions that they are interested in 10 if they come up with exactly the question that CRESAP worded 11 to these people.
12 So in the end it doesn't matter what it is.
They
~
13 get the answer exactly and accurately as any responding
('a}
14 party makes under any set of rules, and that provides them 15 with they have.
Until they have at least made the effort to 16 do that and until they have shown that that is incapable of 17 producing information that is adequate for their purposes, 18 they cannot meet the standards of the cases.
19 They cannot meet the standards specifically set 20 forth under the Commission's regulations about substantial 21 need and undue hardship, and they cannot -- and again the 22 cases on this are legion and completely unbroken -- they 23 cannot suggest, as Mr. Roisman did, I think quite 24 inappropriately, that in fact there is information out there
()
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. statements.
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2 What really is trying to be shown here is 3
something that is in fact adverse.to what would eventually 4'
be said, that there
's nidden information, and for that 5
reason, which he makes up out of whole cloth, he is 6
therefore entitled to disregar'd the work product privilege.
7 The cases without a single dissent that.is not 8
permissible.
'9 JUDGE BLOCH:
Okay.
10 Mr. Roisman, there is'an imbalance of time here, 11 and I know you are leaving at 4:30.
If you have brief 12.
rebuttal only on the new rebuttal, you may do that.
.(])
13 MR. ROISMAN:
Thank you, Mr. Chairman.
I only 14 wanted to speak just to the last point that was being made, 15 that the history of case in Miti Gregory discovery is the 16 history of the frustration of these Interveners attempting 17 to get the. information which we believe the utility much 18 more freely and fully has provided to CRESAP, and the best 19 example of that is to go back and look at Miti Gregory 20 Discovery Request No. 5, for which we received over a period 21 of a couple of months responses from the utility, the thrust 22 of which was essentially tell us aoout all the things that 23 TRT found which you hadn't previously found and when did you 24 first learn of them and what did you do with them.
()
25 With all due respect to Mr. Eggeling, who ace. FEDERAL REPORTERS, INC.
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provided those responses, that kind of question, that kind 2
of information I am simply incapable of believing that the 3
Board can lock at the record of this case and say there must 4
be something funny here that they provided no more than the 5
dribble that was provided to us in response to what must 6
have been a very similar question.
The prudency audit was 7
asking the same thing.
It wanted to know, finding out about 8
this problem that TRT made a big thing about, what did you 9
do when you first found out about it, why didn't it get 10 addressed until just 1986 or 1985, or whenever it was.
11 JUDGE BLOCH:
So how do you feel about the 12 Board's question of the obligation to update and amplify
'}
13 based on what is now available for CRESAP?
14 MR. ROISMAN:
We are obviously left in this 15 position that Mr. Eggeling has pointed out, that we are 16 making suppositions about bad things and improper conduct, 17 and I think that they have a great deal of information 18 which, if they were to respond to our discovery request 19 today in light of what they turned over to CRESAP, they 20 would have to supplement.
21 I suggest that as long as they keep a blackout on 22 what they gave to CRESAP all they can ask you to do is to 23 apply judgment.
I can't give you any specifics that would l
l 24 illustrate my point except to wonder if CRESAP had no more I
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It has got U
2 to be. It just doesn't make sense.
3 And, you know, this discovery dispute that we are 4
.in is a wonderful case study of the difficulty that we have 5
in getting information from the utilities from the original 6
objection to the motion for the protective' order to the 7
opposition to our motion to compel to the surrebutal plea to 8
that to the motion for reconsideration.
9 We are six months from the discovery request 10 filed, and we don't have a shred of evidence, nothing, 11 zippo.
12 Again, I just wanted to point out that the
(])
13 prudency auditor is not an agent.
They are an independent 14 contractor by definition, as much of a contract that we 15 have, which is the request for proposal, don't even fit into 10 that category.
17 JUDGE BLOCH:
Okay.
Now, Mr. Roisman, one of 18 your concerns here is that your Miti Gregory Discovery 5 in 19 your opinion wasn't fully responded to in light of what 20 Applicants must know, is that correct?
21 MR. ROISMAN:
That is one of the bases that I 22 have for believing that there is a lot more awaiting answers 23 to questions and responding to Mr. Eggeling's argument that 24 the prudency audit materials couldn't be made available to f) 25 us unless we made a real effort to try to get them i
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JUDGE BLOCH:
Mr. Eggeling, do you know at this 3
time whether the responses are adequate in light of what the 4
Company knows?
5 MR. EGGELING:
Whether the responses --
6 JUDGE BLOCH:
To Miti Gregory 5.
7 MR. EGGELING:
Well, certainly our position is 8
that they are with the exception of those in which there may 9
be errors.
I can tell the Board I have two things on my 10 desk in which it is our belief that, just as there were some 11 other things that a couple of months ago I called Mr.
12 Roisman and I copied the Board that were discovered in 13 continuing work that there was a factual error.
{)
14 There is, I think, at least one possible factual 15 error that may be affected with regard to an existing 16 answer, and that is being studied by me and a number of 17 other people trying to figure out whether it is an error or 18 whether the document that has now been discovered has 19 nothing to do with the CRESAP audit or was discovered 20 through through that or any other way, discovered through 21 our normal attempts to answer questions fully, may indicate 22 that that answer has to be changed.
23
- That is why I am hesitant.
Other than that, the 24 answer is of course yes.
()
25 JUDGE BLOCH:
What if you just found out a lot ace FEDERAL REPORTERS, INC.
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more?
Would you in the course of looking at the CRESAP Lj 2
stuff be concerned about whether your answer really is very 3
incomplete in light of what you now kaow?
4 MR. EGGELING:
I guess I haven't followed your 5
question, your Honor 6
JUDGE BLOCH:
Well,'would you have any objection 7
if we were to grant the stay, to saying that during the time 8
period of the stay you nevertheless look back at Miti 9
Gregory 5 to see whether in light of the information that 10 you now have through the CRESAP documents whether the 11 answers were reasonably complete and then you would 12 supplement them if they were not?
ym
(,)
13 MR. EGGELING:
I must say I would have to"put the 14 interrogatories out and stop a minute.
I am trying to get 15 myself in the same groove, your Honor, and I feel I am not 16 on the same basis.
17 Your Honor is asking if I would go and look at 18 all the documents provided to CRESAP and, having looked at 19 all the documents provided to CRESAP, I would make some 20 independent determination as to whether the answers given --
21 JUDGE BLOCH:
The same kind of determination you 22 would have made initially when you got the interrogatory if 23 you had the new information available to you.
24 In other words, would you be answering them in a s-)
25 more comprehensive way, and if so, would you supplement them ACE. FEDERAL REPORTERS, INC i
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to do that?
2 That way you wouldn't be disclosing anything that b
3 was the process of CRESAP; you would just be using 4
information in order to more fully answer questions already 5
submitted?
6 MR. EGGELING:
I guess -- again I am hedging Sf 7
because I have a sense that I don't fully understand that.
8 JUDGE BLOCil:
Okay.
I don't understand the 9
problem you have got understanding it.
10 MR. EGGELING:
I guess it is twofold.
One is how 11 I go about and look at -- category one are all historic 12 documents.
We have had them all along.
13 UUDGE BLOCH:
Category one is no longer in 14 question because, if I understand, there are mechanical ways 15 of retaining the CRESAP process and still giving them 16 historical documents.
17 MR. EGGELING:
I think that is possible.
18 JUDGE BLOCH:
It sounds to me like it is.
So we 19 are concerned with category two, and here the question is 20 could you review category two information from the 21 standpoint of have you fully answered Miti Gregory 5, which 22 has already been filed, in light of the information that you 23 now have in the documents that you have reflected so that we 24 can be assured that there is a full answer to existing O
i 25 discovery requests in light of the information that is ACE-FEDERAL REPORTERS, INC.
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available?
2 MR. EGGELING:
If a full answer is the standard 3-that the regulations require --
4 JUDGE BLOCH:
The required answer.
5 MR. EGGELING:
-- that the answer, if erroneous, 6
must be changed, et cetera, I-believe that is possible.
I 7
guess I would want to be sure when I said that to someone in 8
Dallas they understood it.
9 JUDGE BLOCH:
More in terms of a continuing 10 interrogatory, which at one point we determined that because 11 of the complexity of a nuclear power case of this kind that 12 if you got fresh information you would consider it as
(')';
13 refiled, and I believe we have authority under the rules.
14 The question is if you were to receive those 15 documents that request now in light of the CRESAP docunarts, 16 would you just assure us that you have now filed the 17 complete answer in light.of ' hat you now know?
18 MR. EGGELING:
I believe that is possible.
I 19 guess 1 would want to hedge and say I might have to call you 20 tomorrow and find out if there is some problem that I don't 21 foresee.
22 I should also say the reason I believe that is 23 possible is reflective of what I think to be an error in 24 your Honor's assumption, and that is timing.
The answers to
()
25 the Miti Gregory interrogatories given and produced by f
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interviews, et cetera, of the same people who would have had
()
2 any input into the so-called category two CRESAP documents 3
. were all produced well af ter the CRESAP documents were 4
produced.
5
'It seems unlikely -- it is not like the CRESAP 6
stuff came last week and we an'swered the Miti Gregory 7
interrogatories eight months ago and here is some new 8
information.
To that degree, if that was what was in 9
your --
10 JUDGE BLOCH:
I want to bypass that.
I want to 11 say suppose the Board ordered that you consider those 12 documents, those interrogatories being filed now, that if
()
13 you have any difficulty, you are just making sure that you 14 gave reasonable answers pursuant to the regulations as if 15 they were filed right now.
16 MR. EGGELING:
I cannot think of any as I sit 17 here.
18 MR. ROISMAN:
Mr. Chairman, this is Mr. Roisman.
19 The last exchange just raised a possible 20 ambiguity that was also raised as I looked at the 21 Applicants' documents.
1 just want to make sure I 22 understand this.
j l
23 I guess I am asking you, but I would like an i
)
l 24 answer directly.
Does Mr. Eggeling take the position that
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-the documents in categories two and three would have been l
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used as the answer to Miti Gregory 5, Interrogatory No. 5, r
)
~'
2 or that those documents, one of which is a document 3
generated and delivered to CRESAP.-- the other is a document 4
generated by CRESAP -- that those were not reviewed in 5
preparation for answering interrogatories?
6 I wasn't sure of th'e answer.
7 JUDGE BLOCH:
I am not sure why we need an answer 8
if we are willing to consider that they are filed now and 9
that those documents would be reviewed.
10 Is there a reason for us to get an answer to 11 that, Mr. Roisman?
12 MR. ROISMAN:
Noc if he is going to do that.
)
13, JUDGE BLCCH:' Okay.
My understanding is ha is 14 willing to do'that.
15 The Board seems inclined to order that they do do 16 that.
So I don't think he needs to answer as to what he did 17 in the past.
18 MR. EGGELING:
That is good because I didn't hear 19 all of Mr. Roisman's long hypothetical, and I would have had 20 to have him restate what the question was.
4 JUDGE BLOCH:
He was trying to find out whether 21 22 or not you had reviewed the CRESAP documents in the course 23 of responding to Miti Gregory 5, and what I said was I am
} 24 n<:t sure.vhy we need to know that.
em n
(_)
' 25 MR. EGGELING:
Nor would I know whether I could ACE-FEDERAL REPORTERS, INC.
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answer that.
It is not my job to review them individually.
l
\\-)
2 JUDGE BLOCH:
Okay.
3 MR. ROISMAN:
Are we clear what we mean by Miti 4
Gregory 5?
It happens that the interrogatory in dispute 1
5 here is also No. 5.
Could you more clearly identify that?
6 JUDGE BLOCH:
Could you more clearly identify 7
exactly what it is that you raised that the Board then 8
followed up on?
1 9
MR. EGGELING:
Yes.
Just a moment, Mr. Chairman.
J 10 We are talking about the 12/30/86 Miti Gregory 11 Interrogatory and Request f or Pro duction of Documents, Set 12 5; in particular, Questions 1, 2,
3, and 4 of that set.
()
13 JUDGE BLOCH:
Let me ask you, Mr. Roisman, if we 14 were to order what we just suggested, would that then make 15 the rest of what we are considering moot or not?
16 MR. ROISMAN:
No, your Honor, because we have 17 been pillared and posted on the definition of cisputes in 18 this case, and I want very much to know what this utility 19 turned over or what information it gave to CRESAP because I i
20 think that we will discover that in answering what any 21 reasonable person would call essentially identical questions 3
22 they produce different information.
23 JUDGE BLOCH:
Okay.
The Board will take this 24 matter under advisement and plans to meet tomorrow morning
(
25 early, and if it decides to issue the stay it will notify ACE-FEDERAL REPORTERS, INC.
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the parties by telephone.
2 I want to thank the parties for their 3
participation and -- oh, there is'one matter.
4 Ms. Ellis, you wanted something clarified on the 5
record about Applicants' position on another interrogatory 6
set.
I MR. EGGELING:
Your Honor, before you change 7
8 position on another topic --
9 JUDGE BLOCH:
Yes.
10 MR. EGGELING:
Mr. Eggeling again for the 11 reporter.
12 I simply did not have in front of me what
()
13 questions Mr. Roisman was just referring to.
I sent someone 14 to find them.
I would like to see them before we ring off 15 so I would be sure I would have some grasp as to what he was 16 just talking about in case I need any clarification.
17 JUDGE BLOCH:
All right.
Why don't we wait?
18 MR. ROISMAN:
I have about ten minutes past the 19 time I am supposed to have disappeared here.
20 I am more than happy to have Ms. Garde or Ms.
21 Ellis be the representative for any further conversations.
22 If I may be excused, thank you.
23 JUDGE BLOCH:
We will wait on that.
Maybe while 24 you are waiting for that, Mr. Eggeling, you could make your 25 statement.
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MR. EGGELING:
I think I know what the question 2
is.
3 Ms. Ellis asked what the current status was of 4
the expected reply date for the Applicants' respcnses to 5
interrogatories.
I believe they are set 12, and they are 6
the subject of a Board order granting a motion to compel, 7
and I told her that I did not currently know, but it is my 8
understanding that the answers continue to be in process, 9
and at least since I began the effort this morning, I have 10 not yet learned exactly when it is expected that those 11 responses will be ready for filing.
12 JUDGE BLOCH:
Okay.
When you find out, will you
(}
13 notify Ms. Ellis?
14 MR. EGGELING:
Oh, yes.
We bave an understanding 15 that we will send them immediately.
She will get them 16 within very few hours after that.
She will get them when 17 they are ready.
18 MS. ELLIS:
I am not sure it was mentioned for 19 the record there.
The Board's order was dated March 16, 20 1987, and I would like to note that I think that we are a 21 little more concerned about getting these because the CPRT 22 plan of Revision 4 -- I think it is a little more pressing 23 than it has been in the past, and that is why I raised it.
24 MR. EGGELING:
I understand, and from our
/m(j) 25 standpoint we are doing everything.
I wish I could tell you
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what the holdup is, but I cannot.
%)
2 JUDGE BLOCH:
Was there a time certain in our 3
order?
4 MR. EGGELING:
No.
5 JUDGE BLOCH:
Was the language, what, " prompt"?
6 MR. EGGELING:
I don't remember.
7 MS. ELLIS:
I believe that it was really 8
indicated that the interrogatories should be considered to 9
have been served at the time this order is served, but we 10 have realized that the Applicants had a lot to deal with and 11 we haven't really pushed them for this until now.
12 We are becoming a little more concerned because
}
13 of the CPRT plans.
We want to do things, and we need the 14 information a little more quickly than we might have in the 15 past.
16 JUDGE BLOCH:
Okay.
17 Mr. Eggeling, have you come up with your 18 necessary interrogatories?
19 MR. EGGELING:
No, your Honor.
I have two 20 associates sitting over here on the floor looking through a 21 looseleaf binder in front of them, and they can't find it.
22 JUDGE BLOCH:
I know the feeling.
Maybe we could 23 handle it that we will have a supplementary conversation 24 tomorrow if it turns out that we have a problem.
)
25 MR. EGGELING:
Perhaps that is better if that is 1
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fine.
2 Could I also simply observe that if I understood 3
your Honor's indication it was that you will be moving on 4
the stay application tomorrow?
5 JUDGE BLOCH:
I expect that we probably will.
6 MR. EGGELING:
I had asked the question earlier, 7
and obviously between now and tomorrow there will not be an 8
opportunity, but if on the merits, depending upon the way in 9
which the Board disposes of these matters, the South Texas 10 case that Mr. Roisman referred to is relevant to the f
11 argument that there is or is not law on this point favorable 12 to their position, whether I would be given an opportunity
(~'l 13 to observe how I read that case.
v 14 I don't know whether to ask for time or not until 15 I see it.
16 JUDGE BLOCH:
We would be inclined -- there is a 17 citation, is that right?
18 Ms. Garde, has that been cited previously?
19 MS. GARDE:
No.
I received from Mr. Roisman --
20 JUDGE BLOCH:
If we consider the precedent to be l
l l
21 adverse to the Applicants' position, we would give you an 22 opportunity to respond.
23 MR. EGGELING:
Thank you, your Honor.
24 JUDGE BLOCH:
Thank you.
The hearing is
/~N
(_)
25 adjourned.
{
i i
)
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(Whereupoil, at 4:45 p.m.,
the telephone
.V 2
conference was adjourned.)
3 4
5 6
7 8
9
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24 25 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:
TEXAS UTILITIES GENERATING COMPANY, et al.
(Comanche Peak Steam Electric Station, Units 1 and.2)
DOCKET NO.:
50-445-CPA
, PLACE:
WASHINGTON, D.
C.
DATE:
MONDAY, JULY 20, 1987 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
9 tsigt)
NN.
(TYPED)
MADELON P.
BLOOM i
Official Reporter l
ACE-FEDERAL REPORTERS, INC.
I Reporter's Affiliation
)
l 1
O i
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