ML20356A221
| ML20356A221 | |
| Person / Time | |
|---|---|
| Site: | EA-20006, EA-20007 |
| Issue date: | 12/17/2020 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 20-006-EA, 20-007-EA, ASLBP 21-969-01-EA-BD01, RAS 55916 | |
| Download: ML20356A221 (30) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Tennessee Valley Authority Docket Number:
EA-20-006 and EA-20-007 ASLBP Number:
21-969-01-EA-BD01 Location:
teleconference Date:
Thursday, December 17, 2020 Work Order No.:
NRC-1308 Pages 1-29 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
1 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 HEARING 6
x 7
In the Matter of: : Docket Nos. EA-20-006 8
TENNESSEE VALLEY : EA-20-007 9
AUTHORITY : ASLBP No. 21-969-01-EA-BD01 10 11 (Enforcement Action) :
12
x 13 Thursday, December 17, 2020 14 15 Teleconference 16 17 BEFORE:
18 PAUL S. RYERSON, Chair, Administrative Judge 19 E. ROY HAWKENS, Administrative Judge 20 DR. SUE H. ABREU, Administrative Judge 21 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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2 APPEARANCES:
1 On Behalf of Tennessee Valley Authority 2
MARY PATRICE BROWN, ESQ.
3 LAUREL LOOMIS RIMON, ESQ.
4 of:
O'Melveny & Myers, LLP 5
1625 Eye Street NW 6
Washington, D.C. 20006 7
mpbrown@omm.com 8
lrimon@omm.com 9
10 On Behalf of the Nuclear Regulatory Commission 11 SARA KIRKWOOD, ESQ.
12 JOE GILLESPIE, ESQ.
13 KEVIN ROACH, ESQ.
14 THOMAS STEINFELDT, ESQ.
15 of:
U.S. Nuclear Regulatory Commission 16 Office of the General Counsel 17 Mail Stop O-14A44 18 Washington, DC 20555-0001 19 sara.kirkwood@nrc.gov 20 joe.gillespie@nrc.gov 21 kevin.roach@nrc.gov 22 thomas.steinfeldt@nrc.gov 23 24 On Behalf of Erin Henderson and Tennessee Valley 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
3 Authority 1
TIMOTHY WALSH, ESQ.
2 MICHAEL LEPRE, ESQ.
3 of:
Pillsbury Winthrop Shaw Pittman, LLP 4
1200 17th Street NW 5
Washington, D.C. 20036 6
timothy.walsh@pillsburylaw.com 7
michael.lepre@pillsburylaw.com 8
9 10 11 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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4 P R O C E E D I N G S 1
2:02 p.m.
2 JUDGE RYERSON: Good afternoon, we are 3
here on TVA's request for hearing concerning an NRC 4
order that imposes a civil penalty in the amount of 5
$606,942. We also have a related petition from Erin 6
Henderson, either for hearing or to intervene in TVA's 7
hearing. I am Judge Ryerson. I am trained as a 8
lawyer and I chair the particular Atomic Safety and 9
Licensing Board that the NRC has assigned to -- to 10 this proceeding. My fellow Board Members are also on 11 the line. They include Judge Hawkens, who is also 12 trained as a lawyer, and Judge Abreu, who is a 13 technical member of the panel. She is a position with 14 a speciality in nuclear medicine, but she is also a 15 lawyer.
16 Before we take any appearances, I'd like 17 to go over a few administrative matters. First, 18 please identify yourself when speaking. It will make 19 life much easier for our reporter, and it will make 20 for a better transcript. This -- this proceeding will 21 be transcribed and there will be transcripts available 22
-- or a transcript will be available on the NRC 23 website within a few days. We've also made available 24 listen-only telephone lines so that interested members 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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5 of the public and the press can follow along in real 1
time.
2 I'll go over in detail how we want to 3
proceed after we take some appearances. With that in 4
mind, Judge Hawkens, do you have anything to add at 5
this point?
6 JUDGE HAWKENS: Judge Hawkens here. I 7
have nothing to add, Judge Ryerson, thank you.
8 JUDGE RYERSON: Thank you, Judge. And 9
Judge Abreu?
10 JUDGE ABREU: Judge Abreu here, and I have 11 nothing to add.
12 JUDGE RYERSON: Thank you. All right, 13 well let's take the appearances of Counsel, then, 14 starting with the NRC staff. Who do we have with us 15 today?
16 MS. KIRKWOOD: Thank you, Your Honor. This 17 is Sara Kirkwood for the NRC staff and I have on the 18 line my co-counsel, Joe Gillespie, Kevin Roach, and 19 Thomas Steinfeld.
20 JUDGE RYERSON: Okay, welcome. And Ms.
21 Kirkwood, will you be the primary speaker to whom I 22 should direct questions, if I have any?
23 MS. KIRKWOOD: Yes.
24 JUDGE RYERSON: Okay, thank you. And for 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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6 TVA, who do we have today?
1 MR. WALSH: Thank you, Your Honor. This 2
is Tim Walsh with Pillsbury. On the phone are my 3
colleagues with Pillsbury, Mike Lepre and also on the 4
phone are Mary Patt Brown and Laurel Rimon from the 5
law firm O'Melveny. We are Counsel for TVA in this 6
proceeding. And I just want to also note, too, that 7
Pillsbury is also counsel for Ms. Henderson in this 8
proceeding.
9 JUDGE RYERSON: Right, but not the 10 O'Melveny Firm, is that correct?
11 MR. WALSH: That is correct, Your Honor.
12 JUDGE RYERSON: Okay, thank you. Very 13 good. And I take it, Mr. Walsh, for both Henderson 14 and TVA I should direct any questions in the first 15 instance to you, is that right?
16 MR. WALSH: Yes, that's right thank you.
17 JUDGE RYERSON: All right. Thank you all 18 and welcome. The purpose of today's call is to help 19 the Board prepare an initial scheduling order. And as 20 we suggested in our December 11 order, it seemed a 21 sensible way to begin would be to start looking at the 22 terms of the very recent scheduling order in the Shea 23 proceeding, to which most of you also participated.
24 And I think we can see what changes might be made in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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7 that order and whether the parties agree on those 1
changes. So I think that discussion might possibly 2
answer the questions that we raise in our own December 3
11 order, but if not, we will take those up next. And 4
then after that we'd like to talk about the status of 5
the Henderson petition. And finally we want to give 6
the participants a chance to raise any other issues 7
that they want to, and -- and perhaps reach a decision 8
as to whether we need any further submissions before 9
the Board goes ahead and prepares a scheduling order.
10 Judge Hawkens, anything else before we 11 proceed?
12 JUDGE HAWKENS: Nothing here, Judge 13 Ryerson.
14 JUDGE RYERSON: Thank you. And Judge 15 Abreu?
16 JUDGE ABREU: Nothing from me.
17 JUDGE RYERSON: Okay, thank you. All 18 right, well let's -- let's look at this Shea 19 scheduling order. I think the first provisions that 20 bear upon this proceeding also deal with the -- the 21 protective order. And basically -- and we can talk 22 about the scheduling adjustments a little bit later --
23 but basically the parties seem to be in agreement, or 24 certainly the order says, that the parties should 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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8 submit a proposed protective order if they feel a need 1
for a protective order at least 15 days before the 2
deadline for making initial disclosures. And is that 3
acceptable to this group as well?
4 MR. WALSH: Your Honor, this is Tim Walsh 5
with Pillsbury. And just so you know, the staff 6
counsel, Ms. Kirkwood, and I -- we did speak earlier 7
this week on this question. So we did have a chance 8
to discuss and I think our positions are the same in 9
this proceeding as well -- that we opt to put one in 10 place so it's there if it's needed.
11 JUDGE RYERSON: Okay, that's fine. And --
12 and again, we'll probably ask for that, then, 15 days 13 before the initial disclosures. Let's see, the next 14 topic in the Shea order deals with the location of the 15 hearing. Again, we won't talk about timing quite yet.
16 But I think the -- the Shea order in effect says 17 everyone is in favor of an in-person hearing 18 somewhere, if one is possible. But if one is not 19 possible, despite the -- the new news about the 20 vaccine and so forth -- would have to do one remotely 21 with a video conference, most likely. And is that 22 agreeable to -- to the parties in this proceeding?
23 MR. WALSH: Yes, this is Tim Walsh again.
24 Yes, that's the same position here too as well.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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9 JUDGE RYERSON: Okay. And then, on 1
discovery -- let's see. In the Shea order, yes, the 2
parties -- the parties are -- it's anticipated that, 3
again, 15 days prior to initial disclosures the 4
parties will work on discovery stipulations with 5
basically, I think a -- a discovery schedule. And 6
let's just talk about that part of the proceeding. A 7
discovery schedule that would terminate mid-May or so 8
-- May 14 in Shea, yes. What do the parties in this 9
proceeding think about that schedule? When do you 10 think you'll be able to -- to achieve a stipulation?
11 MR. WALSH: Thank you, Your Honor. Yes, 12 we anticipate reaching agreement where we can on 13 discovery stipulations, though I don't think that 14 we're looking at the same dates at this point in time 15 between the two proceedings, but we will certainly 16 consult with the staff, as we do with any proceeding 17 involving discovery, on any stipulations or parameters 18 that would be appropriate for the proceeding. Sara, 19 I don't want to put words in your mouth, of course, 20 but I think that was our understanding from the call 21 earlier this week.
22 JUDGE RYERSON: Okay, let me -- let me ask 23 you generally about a couple of the questions about 24 the discovery that -- that you anticipate and that the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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10 NRC staff anticipates. First of all, wouldn't a lot 1
of it be duplicative -- essentially duplicative in the 2
Shea matter -- and in this matter, at least in part?
3 MR. WALSH: Thank you, Your Honor. This 4
is Mr. Walsh again. Mr. Shea's proceeding is 5
considerably more narrow than the -- at least, our 6
perspective is that it's more narrow than the TVA 7
matter. Mr. Shea's violation is a violation of 50.5, 8
deliberate misconduct. While that aspect is relevant 9
to violation 4 in the TVA proceedings, the severity 10 level of the violation was escalated. You know, TVA 11 is -- is facing the violations of 50.7 and other 12 deliberate misconduct escalation as well, too. So the 13 bottom line, from our perspective, is that we -- you 14 know, while there is some overlap, it's only a 15 portion. And a couple of the violations are totally 16 different and not relevant to Mr. Shea.
17 JUDGE RYERSON: Okay. Well still, you 18 think -- I mean, let me ask you first, and then I will 19 ask Ms. Kirkwood separately, but -- but is -- what's 20 today? We are in the middle of December. Well, let 21 me -- let me backtrack and ask, what sort of discovery 22 do you anticipate taking? I'm speaking -- I'm 23 speaking to you now Mr. Walsh and speaking to TVA. I 24 mean, unlike most of our proceedings, which are -- as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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11 you know, are under Subpart L -- Subpart G, which I 1
assume, by the way -- we didn't actually ask this, but 2
I assume everyone agrees this should be a Subpart G 3
proceeding you have the opportunity for 4
depositions. Do you plan to take depositions?
5 MR. WALSH: I'll take that in two parts.
6 Yes, we will be requesting a Subpart G proceeding.
7 And yes, we anticipate taking depositions at this 8
time.
9 JUDGE RYERSON: Okay. And how many 10 depositions do you -- do you expect at this time that 11 you would take?
12 MR. WALSH: Your Honor, it's too soon to 13 say at this point in time. You know, we haven't even 14 received the initial disclosures from the staff in the 15 Shea proceeding yet, and those aren't due until mid-16 February. And our expectation would be at that point 17 in time that they would identify one or more witnesses 18 for us to depose, and then we'll need to see from 19 there who they include on their list and who they 20 don't.
21 So it's too soon to say, even in the Shea 22 proceeding, let alone the TVA proceeding which 23 involves additional personnel -- from our perspective.
24 JUDGE RYERSON: Okay. Let me turn to Ms.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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12 Kirkwood for a moment. Ms. Kirkwood, do you -- do you 1
see a problem from the standpoint solely of the 2
staff's discovery of completing discovery by the same 3
date presently proposed in Shea -- that is, mid-May?
4 MS. KIRKWOOD: Yes, this is Sara Kirkwood 5
for the NRC staff. No, we -- we could go along with 6
that schedule. We'll -- the NRC staff, always tries 7
to be agreeable about discovery -- well, about 8
discovery schedules in enforcement cases, or any other 9
case. So we can -- we can go along with that, or we 10 can agree to a longer schedule.
11 JUDGE RYERSON: All right, thank you. Let 12 me ask you this, if you have -- if there are 13 depositions in this case, could the depositions be 14 common to both cases? Have you thought about that, 15 Mr. Shea?
16 MR. WALSH: Mr. Walsh here, some --
17 (Simultaneous speaking.)
18 JUDGE RYERSON: I'm sorry.
19 (Laughter.)
20 JUDGE RYERSON: You are also Mr. Shea's 21 Counsel. I'm sorry, yes.
22 MR. WALSH: Okay. Some could be, but 23 again, it's too soon for us to tell.
24 JUDGE RYERSON: Yes, okay. All right, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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13 well -- we may have to give some further thought to 1
that. I think, again, as you probably know, Mr. Walsh 2
-- and certainly Ms. Kirkwood knows -- we don't have 3
a lot of depositions in our proceedings The L -- L 4
part proceedings do not provide for depositions. So 5
they are a little bit unfamiliar to the NRC 6
procedurally. I mean, but they're in our rules, and 7
we then do have G, here, input. It's been a while, 8
think, since we actually had a G hearing, but one 9
thing -- one thing that I did want to emphasize up 10 front is if we do get to depositions, I think the 11 Board will try to make itself available by telephone 12 if there are disagreements among counsel. Hopefully 13 there are never disagreements on discovery among 14 counsel, but -- but often in depositions it's much, 15 much easier to resolve a disagreement while the 16 witness is right there by telephone, rather than file 17 motions and come back and all that sort of thing. But 18 we can give some further thought to -- to how to --
19 how to handle that.
20 Let me get to the big issue that was 21 hinted at -- or, actually exists in our -- in our 22 order. You know, you -- you folks know the facts here 23 better than we possibly do at this point. You know 24 the case better than we possibly do at this point.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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14 But at first glance, this seems, I think to all Board 1
Members, as a case where the objective outside 2
external facts may not be very much in dispute. This 3
is not a situation of a person claiming they were home 4
in bed, where somebody else says they are on the video 5
tape at the 7-11. The external facts may not at all 6
be in dispute. But don't issues of motivation, 7
intent, state of mind, and therefore the credibility 8
of live witnesses -- don't those dominate in this 9
proceeding? And if so, is summary disposition really 10 a realistic expectation in this case? And I'll --
11 I'll put that to you first, Mr. Walsh.
12 MR. WALSH: Thank you, Your Honor. You 13 know, I appreciate your question and again, looking at 14 your questions that you posed, it wasn't clear to us 15 whether you were suggesting that we could dispense 16 with summary disposition, but we don't think that's 17 the best approach at this time because we anticipate 18 being able to filing -- to be able to file summary 19 judgment on one or more or all of TVA's violations at 20 an appropriate time.
21 We're not in a position to say right now 22 for sure -- and again, that will depend on what we see 23 in discovery. But we do want to preserve that option 24 and have that built into the schedule.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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15 JUDGE RYERSON: Well, another approach of 1
course would be to preserve the option, but to proceed 2
with a schedule that proposes either you will decide 3
not to do that, or that the Board could decide your 4
summary disposition motion without calling for a 5
response. But we'll give that some thought. Ms.
6 Kirkwood, what's your view on summary disposition in 7
a case like this?
8 MS. KIRKWOOD: Your Honor, we -- the staff 9
would have no problem with dispensing with summary 10 disposition motions because we do think there are 11 issues of credibility.
12 JUDGE RYERSON: Okay. All right, well 13 we'll give it some thought. You know, it's 14 interesting to me how in administrative proceedings 15 such as this, the rules are often crafted to be 16 similar to the Federal Civil -- or to the Rules of 17 Civil Procedure in the Federal District Courts. But 18 those are mostly applied in jury cases. I think when 19 Federal Courts -- Federal District Courts have bench 20 trials, it is quite common to dispense with summary 21 disposition motions -- summary judgment motions in 22 that case -- simply on the theory that if you're -- if 23 you're going to have a bench-tried case with written 24 testimony, here we have both written direct and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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16 written rebuttal, that what you save by having a 1
summary disposition motion -- or by avoiding a trial 2
-- is not nearly as great as when what's at stake is 3
avoiding the complexity and length and complications 4
of a jury trial. But in any event, we will --
5 (Simultaneous speaking.)
6 MR. WALSH: Your Honor, if I may -- this 7
is Mr. Walsh, sorry.
8 JUDGE RYERSON: Yes -- yes.
9 MR. WALSH: I just want to point out that, 10 you know, from TVA's perspective, we believe that one 11 or more of these violations are fatally flawed as a 12 matter of law. And we certainly would anticipate 13 being able to successfully argue that, you know, not 14 withstanding any credibility determinations. So there 15 are some key legal questions here that we think should 16 be resolved in TVA's favor and that's primarily the 17 reason why we see summary disposition as a -- a viable 18 option on multiple of the violations that TVA has been 19 alleged to have done.
20 JUDGE RYERSON Okay. Well I understand 21 your position. I've also read your pleading on behalf 22 of Ms. Henderson and, you know, you say at page 28 23 that one of the reasons why she should be permitted to 24 participate in this proceeding is that she's in the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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17 best position to provide details regarding her intent, 1
which would be critical -- which would be a critical 2
issue in your works -- in TVA's proceedings. But I 3
see what you're saying. You're saying that maybe part 4
of this case, at least, could be disposed of as a 5
matter of law once -- once you've had discovery and 6
you see what the evidence is or isn't. And again, I 7
think -- I -- I think an option is to certainly allow 8
summary disposition motions to be filed, but to 9
reserve the option to decide it without calling for a 10 response if the Board feels that that's an appropriate 11 decision.
12 Anyway, let me -- let me move on for a 13 little bit here. Let's move on to the Henderson 14 petition itself. And -- and let me ask Ms. Kirkwood.
15 Do you know yet whether the staff is going to oppose 16 that petition?
17 MS. KIRKWOOD: Yes, Your Honor, the staff 18 opposes that petition.
19 JUDGE RYERSON: Okay. And your opposition 20 isn't due for little bit yet, as I recall.
21 MS. KIRKWOOD: Correct. It's due, I 22 think, December 28, maybe? It's right after the 23 holiday.
24 JUDGE RYERSON: Yes, right after the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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18 holiday.
1 MS. KIRKWOOD: We will try to mail it 2
earlier.
3 JUDGE RYERSON: So you'll think -- so we 4
clearly will have a decision to make about that 5
petition. You know, I think the Board is committed to 6
doing that as promptly as possible. I don't doubt --
7 we haven't seen it, obviously. There -- the 8
opposition, but we -- so I don't know whether we will 9
need an oral argument. But regardless of whether we 10 have an oral argument, we will try to decide that as 11 promptly as possible. So what I'm going to propose, 12 unless there's objection, is that we proceed with the 13 TVA action -- essentially without delay because of our 14 decision on the Henderson action.
15 In other words, you, Mr. Walsh, are here 16 on behalf of Ms. Henderson. You're participating in 17 everything. And so if we were to grant her 18 intervention petition, you wouldn't really have much 19 catch-up to do. And obviously, if we deny it, then it 20 doesn't really matter at that point. So that's --
21 that's what we would propose -- that's an objection to 22 do is to proceed for the moment without regard to how 23 we decide that because we're counting on your 24 participation representing her as well as representing 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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19 TVA at this point. Any -- any problems or -- or 1
cautions about that approach?
2 MR. WALSH: Thank you, Your Honor. Yes, 3
that should be fine. It makes sense to us.
4 JUDGE RYERSON: Okay. Okay, well let's --
5 let's put off for at least a moment where we go from 6
here. Let me ask, are there any other issues that --
7 that the parties or participants would like to talk 8
about on this call? Let me start with you, Mr. Shea 9
and as -- one issue will be whether -- whether and how 10 we structure any further filings about how our -- our 11 scheduling order ought to look. But other than that, 12 is there anything else we should be considering at 13 this point?
14 MR. WALSH: Thank you, Your Honor. From 15 our perspective of the time, no, I don't think there's 16 anything else that would warrant discussion on this 17 call.
18 JUDGE RYERSON: Okay. And Ms. Kirkwood, 19 anything else that you think we should be talking 20 about? Again, other than how we -- how we proceed 21 with the -- the schedule issue?
22 MS. KIRKWOOD: No, Your Honor. The staff 23 does not have anything else at this time.
24 JUDGE RYERSON: Okay, thank you. Well let 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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20 me -- let me talk -- talk out loud here on this call 1
with my fellow Board Members briefly. I guess one --
2 one option is simply to permit the parties a certain 3
period of time to file something about the schedule.
4 And then we can incorporate that as we see fit in 5
issuing an order. I think we understand the positions 6
of the parties now. But what's your -- what's your 7
view, Judge Hawkens? Should we -- should we provide, 8
do you think, for -- for some sort of further filing?
9 And then -- and then go from there?
10 JUDGE HAWKENS: Judge Ryerson, I'd be 11 inclined to invite the parties to try to come to an 12 agreement on an expedited draft scheduling order for 13 our consideration. And then we could issue one.
14 JUDGE RYERSON: Yes. And Judge Abreu?
15 Does that make sense to you?
16 JUDGE ABREU: It does.
17 JUDGE RYERSON: Okay. All right, let me 18
-- let me express a couple of thoughts. I think we 19 will give the parties some period of time to -- to --
20 to try to get together on an expedited scheduling 21 order. I think even if we contemplate summary 22 disposition motions in that order, I am not sure we 23 need a -- nearly a full five months between the close 24 of discovery and the first round of written testimony 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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21 in a -- in a hearing. I think we might well be able 1
to squeeze that into a bit of a shorter period of 2
time. And -- and again, the expedited discovery, you 3
may need more than 90 days, Mr. Walsh, but I am not 4
sure. I think the parties have been through an awful 5
lot and know a lot about each other's cases at this 6
point. So I am not sure how much additional time you 7
would need. But let's leave it this way -- with that 8
caveat. Don't you -- why don't the parties try to 9
agree on an expedited scheduling order. And I know we 10 have a -- Christmas and New Years coming up. How much 11 time would the parties like to -- to submit something 12 along those lines? Obviously, try to reach agreement 13 if you can and submit a joint submission. Or if you 14 can't reach agreement, then submit separate 15 submissions.
16 MR. WALSH: Thank you, Your Honor. This 17 is Mr. Walsh. First of all, I want to start by 18 saying, you know the -- the case against TVA is 19 significantly bigger, as I mentioned before, than that 20 against Mr. Shea. And so I don't want to leave this 21 call with the impression that we're aligned with an 22 expedited discovery schedule. There are multiple 23 violations. You're right, we do know the case inside 24 and out -- as, sure, does the staff. But we're also 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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22 obligated under the rules to make a significant amount 1
of information available to the staff in discovery.
2 And so I don't want to leave you with the impression 3
that it's going to be necessarily an easy task.
4 So we will certainly work with the staff.
5 And I -- I certainly think -- and Ms. Kirkwood and I 6
work together all the time on these proceedings. I 7
don't see any issue there. And I am sure we could get 8
together, you know -- you know, and submit something 9
to the Board on the other side of the New Year on a 10 proposed schedule. But I -- I certainly want to 11 caution the Board about imposing a -- what you're 12 calling an expedited schedule on this just because we 13 certainly want to meet our obligations here without 14 any undue haste in the matter.
15 JUDGE RYERSON: Understood, Mr. Walsh. I 16 do want to make a suggestion however about the two 17 proceedings. It seems preliminarily -- at least to 18 me, and I haven't really talked this at length with 19 the Board Members -- but that from -- you have two 20 clients here -- actually, or three clients -- but you 21
-- from Mr. Shea's standpoint, it would seem more fair 22 to him as an individual in many ways to have the TVA 23 proceeding go first. Do you -- do you agree with 24 that? Or am I -- am I misreading the state of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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23 affairs?
1 MR. WALSH: Well, without getting into any 2
sort of legal strategy issues, Your Honor, Mr. Shea is 3
the one facing a permanent ban here and -- and again, 4
his issue is a more narrow issue, whether or not he 5
engaged in deliberate misconduct. So from a personal 6
perspective, his interest is in getting this resolved 7
sooner rather than later as well. And the schedule we 8
agreed to in that proceeding is making sure that we're 9
able to do it right, and now in any rush.
10 JUDGE RYERSON: Okay. So you -- you are 11 not on behalf of Mr. Shea advocating that we 12 necessarily try -- attempt to -- to proceed with the 13 TVA case before Mr. Shea's case, is that right?
14 MR. WALSH: That is correct, Your Honor.
15 JUDGE RYERSON: Okay. Ms. Kirkwood, do 16 you have a feeling one way or another from the -- from 17 the NRC staff's point, is there a preference?
18 MS. KIRKWOOD: Your Honor, the issues are 19 substantially overlapping. And I -- I -- I mean, the 20 staff does view the discovery as duplicative between 21 the two cases. There are -- there are a couple of 22 issues that arise sort of in the same proceeding that 23 don't come up in the TVA proceeding. There are 24 definitely issues that arise in the TVA proceeding 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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24 that are not encompassed by the Shea order. I mean, 1
certainly in a logical sense, doing the whole TVA 2
proceeding first would then not leave very much for 3
the Shea proceeding. But --
4 JUDGE RYERSON: Would depend upon the 5
outcome, I suspect.
6 MS. KIRKWOOD: Yes.
7 JUDGE RYERSON: But in any event, you're 8
-- you're -- I guess my question to you is, are you 9
expressing a preference one way or the other? Other 10 than the logistics -- getting the case done -- do you 11
-- do you -- does the staff wish to proceed first on 12 the Shea case, or first on the TVA case? Or it sounds 13 like you're -- you're neutral.
14 MS. KIRKWOOD: If the staff had the option 15 to express a preference, we would prefer to proceed on 16 the TVA case first.
17 JUDGE RYERSON: Okay. Well again --
18 MS. KIRKWOOD: But that may or may not 19 happen.
20 JUDGE RYERSON: Okay. Well again, the --
21 the issue on the table is how long do the two of you 22 want to -- to try to get together on a -- what -- what 23 this Board would like to be an expedited schedule?
24 Reasonable but expedited schedule. And again, if you 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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25 can't reach agreement -- time to file separate 1
pleadings on that issue.
2 So what's -- what's -- what's, in your 3
view -- what's a reasonable period of time at this 4
time of year to do that?
5 MS. KIRKWOOD: We can talk -- I'm -- I'm 6
around. I don't think it takes very long to make a 7
schedule at all. Personally because, the staff will 8
basically agree to anything. So --
9 (Laughter.)
10 JUDGE RYERSON: You're very kind. How --
11 how -- well, ten days? Two weeks? What would you 12 like? If that -- that sounds reasonable to you, I 13 take it.
14 MS. KIRKWOOD: Yes, that's fine.
15 JUDGE RYERSON: Mr. Walsh, what's -- is 16 that -- is something in that order reasonable to you?
17 MR. WALSH: I'm looking at my calendar.
18 Again, my only hesitation is being able to work with 19 my clients over the holidays. And, you know, two 20 weeks from today is December 31st. I would prefer a 21 submittal be provided to the Board after the New Year 22 just to make sure we have sufficient time to --
23 consult appropriately with the parties.
24 JUDGE RYERSON: That makes sense. Why 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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26 don't we pick a date in the -- in the first week in 1
the new year. You pick one. Let's see.
2 MR. WALSH: Well then let's do -- if it's 3
going to be the first week in the new year, assuming 4
you don't also mean Friday, January 1, then I would 5
say Friday, January 8, just to give myself as much 6
time as -- as I might need.
7 JUDGE RYERSON: Okay. And that's clearly 8
agreeable to you, Ms. Kirkwood, based on what you said 9
before?
10 MS. KIRKWOOD: Yes, that's fine.
11 JUDGE RYERSON: Okay. Does that make 12 sense to my fellow Board Members? That we will wait 13 for ideally one proposed expedited schedule by the 14 8th? If failing that, competing schedules? Judge 15 Hawkens?
16 JUDGE HAWKENS: I have no problem with 17 that, Judge Ryerson.
18 JUDGE RYERSON: Thank you. And Judge 19 Abreu?
20 JUDGE ABREU: That sounds good to me, 21 Judge Ryerson.
22 JUDGE RYERSON: Excellent, thank you.
23 Let's see if we have anything else. No, I think --
24 (Simultaneous speaking.)
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27 MS. KIRKWOOD: Judge Ryerson? Could I 1
just -- briefly --
2 JUDGE RYERSON: Yes.
3 MS. KIRKWOOD: I'm sorry to interrupt you.
4 Could you possibly give some definition to what you 5
mean by expedited schedule? Because, as I said, the 6
staff will agree to anything. I don't want to agree 7
to something that the Board doesn't want us agreeing 8
to. So --
9 JUDGE RYERSON: Yes.
10 MS. KIRKWOOD: I don't know if you have a 11 parameter on that.
12 JUDGE RYERSON: Well, I -- I think -- and 13 again, I will encourage my colleagues to jump in if I 14 am misstating, but I think we would like to see a 15 hearing in the TVA matter before mid-December, which 16 is the present schedule in the Shea matter. That's a 17 long time away. Basically that's what, 11 months --
18 that's 11 months from now. So I think we -- we saw an 19 opportunity to essentially save three months -- three 20 and a half months if summary disposition motions were 21 dispensed with entirely.
And we were not 22 contemplating that there be an additional extension of 23 the discovery period. Frankly thought a lot of the 24 discovery might sort of proceed in tandem because it 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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28 was similar. But you know, we certainly could live 1
with a little more time on discovery. And we could 2
live with maybe a little bit more time on summary 3
disposition. I still remain -- I remain skeptical 4
myself that summary disposition is going to require a 5
lot of time. Because if it requires a lot of time, it 6
may not be worth doing compared to just going straight 7
to an evidentiary hearing. On the other hand, if --
8 if -- again, you folks know the case better than we 9
do. If there are parts of this case that it's going 10 to be just obvious that, yes, we can get rid of those 11 parts on summary disposition, well that -- that might 12 be something we can do very, very quickly.
13 So I guess, you know, those are the 14 considerations. And I would hope that the bottom line 15 would be a proposed in-person hearing before mid-16 November. But again, you know, you can -- you can 17 talk that through.
18 MS. KIRKWOOD: Thank you.
19 JUDGE RYERSON: Okay, Judge Hawkens?
20 Judge Abreu? Do you have any further thoughts on 21 that?
22 JUDGE HAWKENS: Judge Hawkens here. No 23 further thoughts.
24 JUDGE RYERSON: Thank you. Judge Abreu?
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29 JUDGE ABREU: I have no further thoughts.
1 JUDGE RYERSON: Okay. All right, well 2
unless anyone else has something further, I think that 3
concludes what we hoped to accomplish today. We'll 4
look forward to your -- hopefully your filing, if not 5
your filings, on January 8th. Everybody enjoy the 6
holidays. Stay safe. We stand adjourned.
7 (Whereupon, the above-entitled matter went 8
off the record at 2:38 p.m.)
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