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