ML11144A028
| ML11144A028 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/19/2011 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, NRC-911, RAS E-534 | |
| Download: ML11144A028 (55) | |
Text
Ph'rs Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Entergy Nuclear Operations Indian Point Nulcear Generating Plant DOCKETED May23, 2011 (8:30 a.m.)
OFFICE OF SECRETARY RULEMAKINGS AND Docket Number: 50-247-LR and 50-286-LR ADJUDICATIONS STAFF ASLBP Number: 07-858-03-LR-BDO1 Location: (telephone conference)
Date: Thursday, May 19, 2011 Work Order No.: NRC-911 Pages 901-954 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433
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901 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3
4 ATOMIC SAFETY AND LICENSING BOARD PANEL 5
6 PRE-HEARING CONFERENCE 7
8 -------------------- x 9 IN THE MATTER OF:
10 ENTERGY NUCLEAR Docket Nos. 50-247-LR 11 OPERATIONS, INC. and 50-286-LR 12 (Indian Point Nuclear ASLB No.
13 Generating Units 2 and 3): 07-858-03-LR-BDO1 14 --------------------- x 15 Thursday, May 19, 2011 16 17 The above-entitled matter came on for 18 pre-hearing conference, pursuant to notice, at 19 3:00 p.m Eastern Daylight Time, via teleconference.
20 BEFORE:
21 LAWRENCE G. McDADE, Chairman 22 DR. KAYE D. LATHROP, Administrative Judge 23 RICHARD E. WARDWELL, Administrative Judge 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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902 1 APPEARANCES:
2 On Behalf of NRC:
3 SHERWIN TURK, ESQ.
4 BETH MIZUNO, ESQ.
5 of: Office of the General Counsel 6 Mail Stop - 0-15 D21 7 U.S. Nuclear Regulatory Commission 8 Washington, D.C. 20555 9
10 On Behalf of Entergy Nuclear Operations, Inc.:
11 MARTIN O'NEILL, ESQ.
12 JONATHAN RUND, ESQ.
13 of: Morgan, Lewis & Bockius 14 1000 Louisiana Street 15 Suite 400 16 Houston, Texas 77002 17 (713) 890-5710 18 19 On Behalf of the Intervenor, Riverkeeper:
20 PHILLIP MUSEGAAS, ESQ.
21 DEBORAH BRANCATO, ESQ.
22 Riverkeeper 23 20 Secor Avenue 24 Ossining, New York 10562 25 1-800-217-4837 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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903 1 On Behalf of the State of New York:
2 JANICE A. DEAN, ESQ.
3 JOHN SIPOS, ESQ.
4 ADAM DOBSON, ESQ.
5 LISA FEINER, ESQ.
6 ANTHONY ROYCEMAN, ESQ.
7 Office of the Attorney General 8 The Capital 9 Albany, New York 12224 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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904 1 P-R-O-C-E-E-D-I-N-G-S 2 (3:05 p.m.)
3 CHAIRMAN McDADE: This is Judge McDade.
4 With me are Judge Wardwell and Judge Lathrop. We are 5 ready to proceed in the matter of the Entergy Nuclear 6 Operations, Inc. Indian Point Nuclear Generating Units 7 2 and 3, Docket Numbers 50-247-LR and 50-286-LR.
8 We have before us a motion to compel. The 9 motion to compel was filed by New York State seeking 10 documents from the NRC staff, documents that it 11 believes, according to its papers, should have been 12 provided pursuant to Section 3.36(b).
13 We have been advised that there have been 14 certain discussions between New York and the staff 15 with regard to the matters subject to the motion to 16 compel, and we want to find out what the status of 17 those discussions have been.
18 But before that, I just want to mention 19 very briefly on the record this particular status 20 conference hearing was held at relatively short 21 notice. There is the possibility -- there was, there 22 remains the possibility that we will be discussing 23 sensitive matters, possibly matters that are subject 24 to privilege.
25 We have not provided a line for the public NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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905 1 to call in to this particular hearing because of the 2 sensitive and potentially privileged matters that are 3 going to be discussed. We have advised all of the 4 parties and interested government entities who are 5 involved in this particular litigation about the 6 hearing, so that they could be parties to this 7 proceeding.
8 We have been advised that New York State, 9 the NRC, Entergy, Riverkeeper, and the Town of 10 Cortland -- there is also a representative from Sandia 11 Laboratories on the line. We have not been advised if 12 there is anybody else, although they have been 13 informed of this, that wish to participate.
14 Is there anybody on the line from any 15 entity other than ones that I have just announced.
16 (No response.)
17 Apparently not. Let's go down the list 18 just to create the record. From the NRC staff, who is 19 representing the NRC staff at this?
20 MR. TURK: Your Honor, my name is Sherwin 21 Turk. I am joined today by Beth Mizuno and David 22 Roth, lawyers in my office; as well as Brian Newell, 23 a paralegal who has been helping us with document 24 production; David Wrona, Tina Ghosh, Andrew 25 Stuyvenberg, and Andrew Imboden.
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906 1 CHAIRMAN McDADE: At the conclusion of 2 this, would you please advise the Court Reporter of 3 the spellings of the names of those individuals?
4 MR. TURK: I would be happy to do that, 5 Your Honor.
6 CHAIRMAN McDADE: From New York State, Ms.
7 Dean?
8 MS. DEAN: Janice Dean, John Sipos, Adam 9 Dobson, and also here in New York City is Assistant 10 Attorney General Lisa Feiner.
11 CHAIRMAN McDADE: Okay. Thank you. And 12 again, also, if you could provide the spellings of 13 those names to the Court Reporter.
14 Representing Entergy, Mr. O'Neill?
15 MR. O'NEILL: Yes. This is Martin O'Neill 16 with Morgan, Lewis & Bockius in Houston, Texas. And 17 joining me on the call is John Rund, also with Morgan, 18 Lewis & Bockius, in Washington, D.C. We are counsel 19 for the Applicant, Entergy.
20 CHAIRMAN McDADE: And for Riverkeeper?
21 MR. MUSEGAAS: Yes, Your Honor. It's 22 Phillip Musegaas and Deborah Brancato, attorneys for 23 Riverkeeper on this case. Thank you.
24 CHAIRMAN McDADE: Okay. Thank you. And 25 the Town of Cortland?
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907 1 MR. ROSARO: Yes. Daniel Rosaro and 2 Jessica Alban from Sye, Pagent, Rosell representing 3 the Town of Cortland.
4 CHAIRMAN McDADE: Okay. Thank you. And 5 we were advised Mr. Jones from Sandia Laboratory is on 6 the line?
7 MR. JONES: Yes. That's Joe Jones from 8 Sandia National Laboratories.
9 CHAIRMAN McDADE: Okay. Thank you, Mr.
10 Jones.
11 MS. DEAN: Judge McDade, it's Janice Dean 12 from the State of New York. I omitted Anthony 13 Royceman, who is also on the line on behalf of the 14 State.
15 CHAIRMAN McDADE: Thank you.
16 MS. DEAN: Thank you.
17 CHAIRMAN McDADE: I guess the first 18 question is to the State of New York. You filed the 19 motion to compel. Has the matter been resolved to 20 your satisfaction?
21 MS. DEAN: I would say we are 98 percent 22 of the way there, and I will let Mr. Turk speak in 23 just a minute about a supplemental filing that he will 24 be making. Once that filing is made and we review it, 25 I believe we will be set with resolving this matter.
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908 1 CHAIRMAN McDADE: Okay. Can you advise me 2 what the nature of the resolution is?
3 MS. DEAN: The NRC staff will be providing 4 to the State the primary documents that the state was 5 seeking. At this point, it looks like that will 6 address the State's most immediate concerns with the 7 motion, such that the Board will not need to render a 8 decision.
9 CHAIRMAN McDADE: Okay. When you are 10 talking about the primary documents, let me ask, Mr.
11 Turk, can you identify the documents that you will be 12 providing?
13 MR. TURK: I can do that in -- yes, Your 14 Honor, I can. I may be somewhat general, because I 15 don't have specific dates in front of me. But if you 16 will permit me, I will describe to you the nature of 17 the agreement, subject to, of course, the State's 18 verification once we have produced the log that I am 19 going to describe. So if I may proceed?
20 CHAIRMAN McDADE: Please.
21 MR. TURK: Your Honor, first I want to 22 note my thanks to you and the other Board members, 23 first of all, for offering up today to the State and 24 the staff to have this argument before you, because I 25 think the documents that we filed and that the State NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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909 1 has filed do raise questions that require serious 2 thought. And I think the oral argument was a very 3 good idea for resolving those issues.
4 And I thank you, secondly, for agreeing to 5 postpone the time for this conference by two hours, 6 from 1:00 p.m. today to 3:00 p.m., and I appreciate 7 the graciousness you showed in that accommodation.
8 What we have attempted to do in response 9 to the State's motion to compel is to identify what it 10 is that we can give the State without injuring our 11 ability to protect the deliberative process. You may 12 have seen in our response to the motion to compel that 13 the staff takes very seriously its ability to protect 14 its internal discussions. It is a privilege, as we 15 pointed out, that is well recognized in American 16 jurisprudence. It has been upheld by the Supreme 17 Court, and it is a privilege that the Commission and 18 the NRC staff have recognized and claimed in the past.
19 What we have agreed to give to the State, 20 notwithstanding our claim of privilege, are the 21 quantitative analysis performed by Sandia. That was 22 a WINMACCS run of weather data. We will be providing 23 a zip file to them. We will also provide to the State 24 other final iterations of documents received from 25 Sandia or ISL.
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910 1 And, in brief, those would be ISL's last 2 transmission of Appendix G for the draft SEIS, 3 assuming we can find the last one. And, in fact, it 4 may be that the State and we can agree that that is 5 not even necessary if they are satisfied that 6 Appendix G of the draft SEIS is the final document.
7 In addition, Sandia had developed a 8 qualitative assessment -- that is, an evaluation of 9 words -- of other weather computer codes -- CALPUFF 10 and AERMOD. We will be providing the final or the 11 last iteration of that assessment, as well as some 12 data files of population figures and meteorological 13 data.
14 Now, I have to tell you that in responding 15 to the State's motion the staff made an extraordinary 16 effort to be sure that we have all of the documents in 17 our possession that we are obliged to produce under 18 our document disclosure obligations. The staff and 19 Sandia have previously searched our files and thought 20 that we had complete accounting of documents. But, 21 again, in response to the motion, we undertook to 22 search again and again, several times again, to be 23 sure we have everything.
24 Inexplicably, there was a zip file that 25 was not identified in our Appendix C to our response NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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911 1 to the State's motion to compel. That zip file will 2 be provided to the Board for its in camera review and 3 will be listed in a corrected Appendix C that we are 4 attempting to finalize now. It may be that we cannot 5 finalize it today. It may not go out until tomorrow.
6 But that -- the documents in that zip file 7 will be identified, and the Board will get them, as 8 well as some other documents that did not appear in 9 Appendix C, although we have tried our best to make 10 sure we captured everything.
11 And f want to say that there is no excuse 12 for not having perfect performance, but the time 13 constraints for responding to the motion to compel and 14 making sure that our appendices were complete were 15 really overwhelming, so that errors apparently have 16 happened in our ability to assure that our listing of 17 documents was complete. But we believe that with the 18 corrections that I will be making, that the staff will 19 be making in corrected Appendix C, that everything 20 will have been listed or identified as privilege.
21 CHAIRMAN McDADE: Can you, Mr. Turk, give 22 us a quick idea of the kinds of documents that are on 23 this zip drive you are going to be providing?
24 MR. TURK: Yes. We had received from 25 Sandia late in April a zip file that contained the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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912 1 WINMACCS runs that they had developed. That was an 2 assessment they made of the weather data which Entergy 3 had provided.
4 And, incidentally, that is the run that 5 led to the discovery that there was some discrepancy 6 in Entergy's weather data. So we'll be providing the 7 WINMACCS run as well as some documents associated with 8 that run. They will be listed in the Appendix C as 9 corrected, so that the Board will actually have them 10 to review.
11 In addition, there are some other 12 documents that we will be providing which I believe 13 have been disclosed previously. We need to verify 14 whether or not we have listed the other documents in 15 our physics log. If we have, then I will not include 16 them in the Appendix C as corrected.
17 But part of our agreement with the State 18 of New York will be that we will give them the final 19 documents, and we will identify -- well, before we 20 give them to the State, we will identify which 21 documents they are in whatever log we have previously 22 identified them, so that the State will see what it is 23 we are giving them, we will talk with them, and 24 hopefully at that point we will reach a final 25 agreement.
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913 1 Perhaps I should back up just to tell you 2 what it is that I have offered to give the State and 3 the concern they have expressed and how I have 4 addressed that.
5 CHAIRMAN McDADE: Please.
6 MR. TURK: In my communications with the 7 State in the past day, commencing this morning, I 8 offered to give the State the most recent version of 9 Sandia's analysis, and that had previously been 10 identified as DPP, David Peter Peter,18-005. And 11 that is the document that contains Sandia's analysis, 12 which has been cited in the FSEIS.
13 Secondly, I offered to give the State 14 Sandia's WINMACCS run of the weather data, and that, 15 by the way, is what I just referred to as being in the 16 zip file.
17 Third, I offered to give them Sandia's 18 quantitative population comparisons, and that is where 19 Sandia compared different population projections with 20 -- using different sources.
21 And, finally, I offered to give them 22 Sandia's assessment of the AERMOD and CALPUFF computer 23 codes. And I also indicated that if we ever find 24 ISL's final report to us, we will produce that, too.
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914 1 in the draft SEIS, and earlier iterations of that, 2 which was essentially the ISL deliverable.
3 CHAIRMAN McDADE: And the document -- this 4 is Judge McDade again. The document you're referring 5 to is identified as a January 8, 2010, pre-decisional 6 draft of 18-005?
7 MR. TURK: Exactly.
8 CHAIRMAN McDADE: Okay. Let me ask --
9 there are some other documents, and you have it listed 10 on Appendix A, and it's page 7 of Appendix A -- DPP-11 26-012.
12 MR. TURK: Let me turn to that.
13 ADMIN. JUDGE WARDWELL: The question he's 14 asking -- this is Judge Wardwell -- I think -- is that 15 the last document you talked about, the comparison 16 between CALPUFF, ATMOS, and AERMOD?
17 MR. TURK: It's either 12 or -- DPP-27-12 18 or 17. And I should mention on the record, the State, 19 in their reply to our answer, in a footnote indicated 20 that there was a numbering problem in the log, and 21 that that should have been listed as -- Janice, am I 22 right on that? Is that the one that you said was --
23 MS. DEAN: Yes.
24 MR. TURK: -- listed incorrectly?
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915 1 between 12 and 17.
2 ADMIN. JUDGE WARDWELL: It was originally 3 listed as 17. Then, you corrected it, Mr. Turk, and 4 changed it to 12. And I gather that is still in 5 dispute, so there is -- are there still both numbers 6 to it, or is 12 the correct number now?
7 MR. TURK: If I may have just a moment, 8 Your Honor.
9 (Pause.)
10 ADMIN. JUDGE WARDWELL: 17 is the old 11 number; 12 is what it was corrected to the last time, 12 in your last correction submittal.
13 MR. TURK: Your Honor, could you tell me 14 the date that appears on the front of that document?
15 Is that June 14?
16 ADMIN. JUDGE WARDWELL: Yes. June 14th is 17 the analysis from Sandia, but the document date in 18 your log is 1/31/2011, because that's when the e-mail 19 that this document is listed under was sent with this 20 as an attachment.
21 MR. TURK: So, Your Honor, you do have the 22 e-mail. You'll see that's forwarding a document that 23 was dated June 14 --
24 ADMIN. JUDGE WARDWELL: Correct.
25 MR. TURK: -- 2010. It is the report of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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916 1 June 14, 2010, that we will include among the 2 documents we produce.
3 ADMIN. JUDGE WARDWELL: Well, that is what 4 is of interest, considering the e-mail didn't say 5 anything except, "Here is the report."
6 MR. TURK: Okay. So, Your Honor, when I 7 mentioned the fourth item before about Sandia's 8 assessment of the AERMOD and CALPUFF computer code, 9 that is in fact the document that I am talking about, 10 the report that is attached to that e-mail.
11 CHAIRMAN McDADE: Okay. Now, this is 12 Judge McDade again. Going back, one of the documents 13 you did provide, NIA-001, which was on Appendix B, 14 page 1, it's a Statement of Work. Statement of Work 15 lists various deliverables on I believe page 6 of that 16 document.
17 In our review of the documents that were 18 provided, we did not find any final version of the 19 "deliverables" listed on this particular document.
20 And I just want to make sure I understand what you are 21 saying is you have not been able to find a final 22 document of the deliverables that you are representing 23 that the most recent -- the last version of that were 24 those that you just described in 18-005 and 26-012.
25 Is that correct?
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917 1 MR. TURK: Your Honor, I would love to 2 answer yes or no, but I want to make sure I understand 3 your question. What I'm looking at in NIA-001 is the 4 -- I guess the tasking request, the tasking order, for 5 Sandia's work. There are no deliverables that we have 6 that I am not producing to the State. I will give 7 them the deliverables, which were essentially that 8 DPP-18-005, and -- did you mention the one about the 9 population projection?
10 In any event, whatever it is that we have, 11 the latest iteration of whatever substantive analysis 12 that was done by Sandia, we will be producing to the 13 State.
14 CHAIRMAN McDADE: Okay. I understand.
15 And all I'm trying to clarify is the documents that we 16 have reviewed, that you represent you will be 17 furnishing to the State, and appear to be responsive 18 to the State's request, are listed as drafts. And 19 what I'm trying to determine is whether or not, after 20 these drafts -- and the last one, for example, on 005 21 is dated January 8, 2010 -- that there was no final 22 document made from this draft that was then utilized 23 in the preparation of the final environmental impact 24 statement, that for whatever reason this is where the 25 buck stopped, with this January 8 draft.
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918 1 MR. TURK: You are correct in everything 2 you just said. And by explanation, let me mention, as 3 we pointed out in our answer to the motion to compel, 4 Sandia was not retained to help with the SEIS. They 5 were retained to address the State's contentions in 6 the hearing.
7 There was no final from Sandia. The final 8 would be whatever statement of position we ultimately 9 filed with testimony in the hearing. So everything up 10 to that point is draft. So we are providing the 1i document even though it is draft, because we 12 understand the State's interest in getting the full 13 details of Sandia's assessment. So we will provide 14 that.
15 CHAIRMAN McDADE: This is Judge McDade 16 again. In the contract that you all had with Sandia, 17 it lists as a deliverable a technical letter report, 18 draft and final, and that is what I'm trying to -- and 19 just to confirm -- and I believe that you said it --
20 is there are a number of drafts leading up to that 21 January 8th document, which is listed as a draft, that 22 there is no "final" of that technical report listed as 23 a deliverable on the Statement of Work, NIA-001.
24 And I think you said that's correct, that 25 you have not been able to find any document after NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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919 1 that. Am I correct in my understanding?
2 MR. TURK: Your Honor, you were correct up 3 until your last sentence. There was no final from 4 Sandia. The latest iteration was the January 8, 2010, 5 document.
6 CHAIRMAN McDADE: Okay.
7 MR. TURK: That is the technical report 8 that is covered by the contract.
9 ADMIN. JUDGE WARDWELL: Okay. Let's move 10 on, then, to --
11 MR. TURK: What I had said we could not 12 find had to do with ISL.
13 ADMIN. JUDGE WARDWELL: That's where I was 14 going to move next.
15 MR. TURK: Okay.
16 ADMIN. JUDGE WARDWELL: This is Judge 17 Wardwell. That ISL also had two Statements of Work 18 and contracts with you, of which there were two 19 deliverables required from those. And, furthermore, 20 in the Harrison affidavit, ISL is reported to have 21 delivered a preliminary evaluation and a final 22 evaluation on or before December 2008. Those are the 23 documents that you cannot find. Is that correct?
24 MR. TURK: We cannot find a stand-alone 25 document that you could label as that deliverable.
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920 1 However, what ISL's role was in the process was to 2 work on Appendix G of the draft SEIS. Okay? And --
3 ADMIN. JUDGE WARDWELL: And --
4 MR. TURK: May I continue?
5 ADMIN. JUDGE WARDWELL: Yes.
6 MR. TURK: The last iteration of their 7 work that we can find was June 13, 2008. After that 8 date, the staff continued to input to the document, so 9 that the -- I'm sorry, the draft SEIS reflected the 10 final staff iteration of this joint effort, of 11 Appendix G, which is a joint effort of ISL with staff 12 input.
13 June 13, 2008, was the last document that 14 we can find that was an ISL iteration. And by the 15 way, even that iteration reflected inputs from the 16 staff leading up to that point.
17 ADMIN. JUDGE WARDWELL: Who was the 18 primary author, original author, of Appendix G? Was 19 it ISL or was it staff? To initiate this particular 20 writing.
21 MR. TURK: It was a mix, Your Honor.
22 ADMIN. JUDGE WARDWELL: What was the basis 23 for the statement in the Harrison affidavit that ISL 24 delivered its preliminary and final on or before 25 December 2008?
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921 1 MR. TURK: That's a reference to this 2 document that I just referred to, the last iteration 3 of which is June of 2008.
4 CHAIRMAN McDADE: Okay. Mr. Turk, this is 5 Judge McDade again. Is the document you're referring 6 to DPP-00-380? It's on Appendix A at page 3?
7 MR. TURK: Just one minute, Your Honor.
8 MS. MIZUNO: I'm sorry. This is Beth 9 Mizuno. Could you repeat the cite again? I'm sorry, 10 I didn't get it.
11 CHAIRMAN McDADE: DPP-00-380.
12 MR. TURK: Just one minute, Your Honor.
13 MS. MIZUNO: Thank you.
14 MR. TURK: Your Honor, what you are 15 referring to, as you'll note, was an e-mail from Bob 16 Palla, Robert Palla, back to ISL transmitting a 17 revision to Appendix G. That was dated July 24, '08.
18 That post-dates what we had received from ISL.
19 The ISL documents -- the one marked DPP-20 00-315 -- and that was an e-mail from Ali Azarm, A-Z-21 A-R-M, to Robert Palla dated June 13, 2008.
22 ADMIN. JUDGE WARDWELL: Okay. And that is 23 what you're going to be providing?
24 MR. TURK: If -- we can provide that, Your 25 Honor. As you will see by looking at the file, the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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922 1 actual document is an iteration that is a draft 2 iteration of Appendix G in the draft SEIS, which was 3 superseded by the final version of that document in 4 the draft SEIS issued on December 20, '08.
5 So I personally would say there is no need 6 for the State to have it, and, frankly, I would not 7 like to waive privilege on the draft that led up to 8 this final document which was December 2008, the draft 9 SEIS.
10 ADMIN. JUDGE WARDWELL: Well, when you 11 started off this conversation, you said you were going 12 to give them the ILS -- the ISL Appendix G last 13 version that they contributed to.
14 MR. TURK: No, I hedged that, Your Honor.
15 I said unless the State and we can agree that they 16 don't need it or that we don't have to produce it.
17 ADMIN. JUDGE WARDWELL: Sure.
18 MR. TURK: So I did not say that I 19 definitely will be giving it. I would like to 20 withhold it, because the State has the final version 21 of the document. And there is no reason for us to 22 have to disclose a draft.
23 ADMIN. JUDGE WARDWELL: But as it stands 24 now, you and the State are still talking about that, 25 whether that will be submitted or not. Is that a fair NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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923 1 assessment?
2 MR. TURK: That's correct.
3 CHAIRMAN McDADE: Okay. I would kind of 4 like to resolve what we can, and basically to resolve 5 everything today, so that this thing doesn't linger 6 and we don't have to revisit this.
7 MR. TURK: Okay.
8 CHAIRMAN McDADE: As --
9 MR. TURK: Your Honor, if I can continue 10 with my summary of what it is that we have reached 11 agreement on with the State? I indicated that after 12 I made my proposal to State we had some discussions.
13 In these discussions, I indicated several things, 14 which I can put on the record today.
15 And that is that, number one, Sandia's 16 only computer run, their only computer analysis, was 17 the WINMACCS run, which we are going to be producing.
18 I also indicated that we are not aware of any computer 19 runs that have been conducted by ISL, and that we had 20 not found any final report from them. All we have are 21 these iterations of Appendix G.
22 And I also indicated that the draft SEIS 23 presents the ISL final work product. If we can find 24 something that is a stand-alone document after that 25 June 13th date, we will produce it. But at this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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924 1 point, it is just that iteration which was later 2 modified by the staff, which is the last document we 3 can find from ISL.
4 I also indicated that in producing 5 documents to the State we would not waive our -- we do 6 not intend to waive and would not be waiving our 7 privilege claims for other documents. And also, Your 8 Honors, if you notice in DPP-18-005, which is in 9 Appendix A, Your Honors, if you look at page 15 of 10 that document, going onto page 16, at the bottom of 11 page 16 you'll see something that says, "Follow-on 12 approach. It is recommended that additional 13 activities be performed in preparation for potential 14 hearing," and then it goes on to list what 15 recommendations Sandia made.
16 We will be withholding that section of the 17 document, because that neither reflects an analysis 18 that was done by Sandia or any work done by the staff, 19 but, rather, is simply a proposal for work to get 20 ready for hearings. And in my discussion with the 21 State, I indicated that we would be withholding that 22 section, and Ms. Dean indicated that the State would 23 accept that withholding, so when we produced this 24 document that would be withheld.
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925 1 "follow-on approach" to the end of the items shown on 2 page 16, the last item shown on page 16.
3 And I also, in my offer to the State to 4 produce these documents, I indicated that in doing so 5 we would not be waiving our privilege for any other 6 document, but the documents we produced, we're doing 7 so in order to accommodate the State's request, but 8 without a waiver of our privilege rights.
9 The State responded to me by asking us 10 whether my proposal included everything bulleted on 11 pages 12 to 14 of the State's motion. And you may 12 recall that in the State's motion they listed a number 13 of items quoting from the final SEIS Appendix G.
14 And I responded to her that -- that, yes, 15 the document DPP-18-005 presents Sandia's analysis of 16 all of those items listed at pages 12 to 14 of the 17 State's motion. And I also indicated that the only 18 other documents that were generated or reviewed by 19 Sandia are the other files that I will be giving the 20 State, or the documents that are actually identified 21 in DPP-18-005, which Sandia listed as documents they 22 looked at in preparing their analysis.
23 Now, the State, of course, had some 24 concern that without seeing a listing of all the 25 documents we are giving they couldn't finalize an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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926 1 agreement, and we, therefore, told the State that we 2 will produce to the Board the additional documents 3 that we had not yet identified in Appendix C, and that 4 we will give the State a copy of the corrected 5 Appendix C, and also that we will identify where the 6 documents are listed in whatever appendix we have 7 provided previously or that we will be providing 8 shortly, so the State can see which documents they 9 are.
10 And hopefully by Monday or Tuesday of next 11 week we will reach a final agreement, and we can 12 report success to the Board.
13 ADMIN. JUDGE WARDWELL: Mr. Turk, in 14 regards to DPP-18-005, that draft version of Sandia's 15 report, there -- did you ask Sandia whether or not, if 16 that was finalized, they would anticipate adding any 17 attachments or appendices to that? Because as it 18 stands now, there are none of those there.
19 It's strictly the written report, which 20 usually -- oftentimes you will find appendices and 21 attachments applied to final versions that provide 22 more information in regards to the background 23 materials and possibly sample calculations or any 24 analyses, approaches, that might have been taken.
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927 1 add any of those, and whether they are now existing in 2 other files that are presently on the logs, the 3 privilege logs?
4 MR. TURK: No. We view this as a complete 5 document that was not intended to have appendices and 6 would not have appendices.
7 ADMIN. JUDGE WARDWELL: Okay. Thank you.
8 CHAIRMAN McDADE: Okay. Going back to the 9 question that I asked earlier trying to resolve --
10 before we went off on a bit of a tangent there, with 11 regard to the ISL, that in the original work order, 12 which is NIA-002, dated June 22, 2007, it indicates 13 there as a deliverable a final TER on page 4 of that 14 document. It appears that that is what is being 15 requested.
16 As I understood -- and, again, we can't 17 direct that something be produced if it doesn't exist 18 and never existed. You indicated that the last 19 version in response to this particular work order, ISL 20 produced this draft of Appendix G, which you are 21 turning over. Is it your representation that there is 22 no final TER?
23 MR. TURK: To the best of my knowledge, 24 there is no final TER, and the last document that we 25 received was the June 13 document.
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928 1 And let me explain also, the person who 2 was responsible for reviewing ISL's work has retired.
3 So I think I may have mentioned before, we have 4 searched his files, and we have not found any other 5 documents. But I can assure you that ISL's work was 6 to develop Appendix G with that assistance, that 7 input. And the final product is what is in the draft 8 SEIS.
9 It was -- I am informed that you will not 10 find any document, even if we find a later iteration 11 of what they sent us in June of 2008, it would just be 12 that, it would be another iteration of that document.
13 It would not be a stand-alone document that we would 14 be able to find.
15 That's our best understanding of the 16 documents that exist within our possession or control.
17 CHAIRMAN McDADE: Okay. There's a couple 18 of other questions I have with regard to specific 19 documents. IC-023, which is on page 6 of Appendix B, 20 and the cover document here is dated January 19th.
21 MR. TURK: I'm sorry. May I have the 22 number again?
23 CHAIRMAN McDADE: It's on Appendix B, 24 page 6, IC-023.
25 MR. TURK: I have the document.
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929 1 CHAIRMAN McDADE: Okay. Can you tell me 2 what that is and whether this is one of the documents 3 you are going to be turning over? It apparently is 4 dated -- and, again, it is difficult to tell from the 5 document when it is dated, because all we have is the 6 date of transmission. But it is after the January 8th 7 date, January 8, 2010, date.
8 MR. TURK: Okay. You may have noticed, 9 Your Honor, in our answer to the State's motion to 10 compel that I indicated that Sandia prepared an 11 assessment of the State's contentions, which they gave 12 to us, and the staff drew upon that in developing the 13 Appendix G discussion.
14 So this appears to be exactly that, where 15 we had received Sandia's report, and this e-mail from 16 Mr. Palla, fax from Mr. Jones at Sandia and also to 17 Brian Harris of the Office of General Counsel, was Bob 18 Palla's -- Robert Palla's preparation of the input for 19 Appendix G based upon the work that Sandia had done.
20 CHAIRMAN McDADE: So what your 21 representation is is this is not a report from Sandia, 22 but rather this is internal documentation done by the 23 NRC after receipt of the January 8, 2010, document 24 from Sandia.
25 MR. TURK: Exactly correct.
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930 1 CHAIRMAN McDADE: Okay. Next, with regard 2 to Appendix C, page 12, you have a document NIA --
3 MR. TURK: I'm sorry. Just give me a 4 little time just to get the right book. Okay, go 5 ahead.
6 CHAIRMAN McDADE: Appendix C, page 12, 7 NIA-067. And the document here is an e-mail dated 8 March 25, 2010, but it has attached to it another 9 document.
10 MR. TURK: Okay.
11 CHAIRMAN McDADE: Is that document 12 something that was prepared by Sandia? And is that a 13 document that you are going to be furnishing? It 14 makes reference to Task 2 from the original work 15 order.
16 MR. TURK: Your Honor, Task 2 was never 17 performed. Task 1 was the report that shows up in 18 DPP-18-005. Task 2 had to do with what additional 19 work the staff might ask Sandia to do in preparation 20 for hearing.
21 CHAIRMAN McDADE: Okay. So specifically, 22 Mr. Turk, what you are representing is this document 23 that I made reference to, and it talks about various 24 tasks, to perform various analyses, and we do not have 25 copies of any of these. Your representation is that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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931 1 the reason that you have not furnished those, that 2 they are not either furnished to New York or listed on 3 your log, is that the analysis and the activities 4 listed here were never actually done.
5 MR. TURK: That's correct.
6 CHAIRMAN McDADE: Okay.
7 MR. TURK: This was a draft proposal for 8 preparation to go forward to hearing, and this --
9 CHAIRMAN McDADE: Okay.
10 MR. TURK: -- the work that was proposed 11 in this document was not performed.
12 CHAIRMAN McDADE: Okay. The next is on 13 Appendix C, page 12, NIA-070.
14 MR. TURK: I have the document.
15 CHAIRMAN McDADE: Okay. Here it says, 16 "Activities identified in the Task 1 report, follow-on 17 approach." And, again, it lists various analyses, 18 calculations, comparisons. And is it your 19 representation that we do not have copies of those 20 analyses, calculations, comparisons, because they 21 weren't done?
22 MR. TURK: That is correct. And I would 23 also point out, just so you can understand where this 24 documents fits in with other documents, the listing of 25 activities that are proposed in this document are, it NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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932 1 seems to me, identical to what was listed at pages 15 2 to 16 of the follow-on approach in DPP-18-005, with 3 the addition of that list of runs that might be 4 conducted. But, in fact, those -- the additional work 5 was not performed.
6 CHAIRMAN McDADE: Okay. Judge Wardwell, 7 do you have any additional questions for the staff?
8 ADMIN. JUDGE WARDWELL: I do not.
9 CHAIRMAN McDADE: Judge Lathrop?
10 ADMIN. JUDGE LATHROP: I do not.
11 CHAIRMAN McDADE: Ms. Dean, for New York, 12 do you have any questions based on the discussions 13 that have gone on so far?
14 MS. DEAN: I don't. I do have two 15 observations, if the Board would allow.
16 CHAIRMAN McDADE: Please.
17 MS. DEAN: And you have illuminated a 18 couple of new pieces of information that we were not 19 aware of, and I'll note that we did feel that this 20 motion was important, in large part because we were 21 not able to ascertain from the staff logs what the 22 documents were, and we could not correlate the 23 documents that we were seeing referenced in the FSEIS 24 with the logs.
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933 1 to a certain degree, although, as we noted in our 2 reply, there is more information provided to the Board 3 in the appendices than was provided to us on staff 4 logs. So we are learning this sort of in-motion 5 practice.
6 But the lack of what I'll state is sort of 7 a confusing part of this can be illustrated by one 8 thing that you just noted, which is that 067 is not 9 listed here as having an attachment. And I'll note 10 also that from our perspective, looking at these logs, 11 it appeared to us that, back to the issue of the 12 Sandia report at DPP-18-005, there is at IC-027 a 13 later document dated June 30th that, you know, again 14 without -- we have not looked at the documents, 15 looking at the log it would appear to us that that is 16 a later Task 1 report.
17 So that type of confusion leads us to 18 being unable, as yet, to commit to the settlement that 19 the staff has proposed, because we remain uncertain 20 about exactly which documents for the logs that we 21 have are being produced. And as we understand it, 22 certain documents which have not yet been logged will 23 also be produced.
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934 1 that the State sought -- and just for clarification, 2 as Mr. Turk has represented, the State does not seek 3 what we are calling draft, you know, wordsmithing, 4 draft language that -- of a final version that ended 5 up into the FSEIS.
6 We do, however, seek the analyses, and in 7 particular the data, and we did lay those out on 8 pages 12 to 14 of our motion. It is staff's 9 representation that we will be getting all of those, 10 and our experts have expressed particular concern 11 about the decontamination cost factor analysis, the 12 population analysis, and similar factual analyses.
13 It is our understanding from staff that 14 when we get the documents staff is contemplating 15 turning over, we will be getting everything that we 16 sought on pages 12 to 14. And if that is the case, 17 the State will be amenable to staff's settlement 18 offer.
19 I note that the State and staff do have a 20 differing view of staff's disclosure obligations, 21 particularly in light of, as we have briefed 10 CFR 22 2.1202(b) (3), which we believe extends staff 23 obligations into the realm of 2.3.36(a) as a party.
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935 1 experts would be required to turn over all of the 2 documents they looked at as parties have been doing to 3 date.
4 But in light of judicial economy, and, in 5 particular, in light of the very impending testimony 6 date, we are looking to resolve this matter, 7 recognizing that certain of those issues do remain 8 outstanding.
9 CHAIRMAN McDADE: Okay. This is Judge 10 McDade again. A couple of things perhaps by way of 11 guidance here. One, there has been a number of 12 discussions or statements with regard to the privilege 13 and a desire not to waive privilege. Let me sort of 14 explain the Board's view as far as the operation of 15 the work product privilege in this particular context 16 and sort of guiding our view of it.
17 Ordinarily, and just sort of -- if we take 18 away the word "ordinarily," work that is done in 19 anticipation of litigation is not going to be subject 20 to disclosure to the opposing party. It appears from 21 our view that the Sandia reviews were initiated on --
22 by staff counsel to assist in the particular 23 litigation.
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936 1 conclusions, theories, concerning the litigation.
2 These reports do not any information that would 3 provide any insight into the mental impressions, legal 4 opinions, conclusions, theories, concerning the 5 litigation of counsel.
6 Given the fact that they were used -- and 7 totally appropriately, I think -- in the preparation 8 of the final environmental impact statement, they now 9 had a use, and would have had to have been prepared, 10 in our view, independent of their role in the 11 litigation in this particular hearing.
12 And, therefore, the limited privilege 13 under the work product would not be applicable to 14 them, particularly since they do not address the more 15 advanced and the more protected part of the work 16 product having to do with the attorney's assessment 17 and thought process. That's number one, and to use 18 that by way of guidance in your further discussions 19 between the parties with regard to the documents.
20 The second has to do with our review of 21 the Appendix A, B, and C that were presented in this 22 matter. Quite frankly, you know, we have been trying 23 to decide what to do with it. And the problem is, any 24 kind of a privilege log, it is supposed to provide 25 adequate information so that an opposing party can NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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937 1 look at the log and make a reasoned determination as 2 to whether or not the claim of privilege is 3 appropriate and whether or not they want to challenge 4 it.
5 As we look through these appendices, and 6 without actually having the documents in front of us 7 in our in camera review, we have to find that it is 8 very difficult to determine what is there based on 9 what is described in the document.
10 As Judge Wardwell mentioned earlier -- you 11 know, and I'd just turn to DPP-26-12 -- if you looked 12 at what is in the log it appears that this is a 13 document from January 2011, and one would think that 14 it would have nothing whatsoever to do with the final 15 environmental impact statement, because it is after 16 that date.
17 But nevertheless, it actually is just an 18 e-mail that forwards the documents from a year 19 earlier. You know, so -- and I do want to say in 20 saying this, in looking at these, there certainly does 21 not appear to be -- and I don't want to even create 22 the impression that there has been any intent on the 23 part of the staff to mislead anybody with regard to 24 the documents on this particular list.
25 As we go through the documents, it does NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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938 1 not appear that there is anything that should have 2 been turned over that was intentionally hidden or 3 misrepresented in any way. And, for example, although 4 that particular document that Judge Wardwell made 5 reference to has a misleading date, the same document 6 is described with the appropriate date in IC -- you 7 know, in an earlier document. I don't have the number 8 right in front of me.
9 But, likewise, as you go through that, 10 just the next document on the list, DPP-26-17, it 11 talks about internal discussions of SAMA analysis.
12 Well, actually, all it is is the transmission of an 13 Entergy document, which makes up the entire content 14 there. There is no analysis. There is no internal 15 discussion. It's just transmitting an Entergy 16 document.
17 And from the standpoint of trying to 18 determine, I am assuming that that document has 19 already been furnished to you as part of the 3.36(b) 20 discovery, but New York and the other litigants here 21 would have no way of knowing it. The next two 22 documents down,26-024, 26-025, talk about internal 23 discussions. Well, they actually just forward 24 publicly available documents, pleadings, you know, in 25 this particular case.
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939 1 So as you go through the description of 2 the documents, it is very difficult for someone to 3 determine whether or not you want to challenge -- and 4 just picking up another log, Appendix C, NIA-007.
5 It's listed as internal transmission identifying 6 documents in support of work task regarding impact of 7 IP contentions on SAMA.
8 Well, in fact, it is an electronic version 9 of the MAC code that was prepared by Entergy. Now, I 10 know there was some discussion earlier on as to 11 whether or not that is discoverable. It may well 12 already have been discovered, turned over, 'either by 13 Entergy or by the NRC staff.
14 But, again, from the description in this 15 particular log, it makes it extremely difficult for 16 anybody who doesn't actually have the documents in 17 front of them, as we did, to determine what they are, 18 that you have e-mails that are identified that really 19 the only value of it is to the attachment to the 20 e-mail. That is the important thing. And it is just 21 listed as an e-mail from which nobody could determine 22 whether or not that would be a document that they 23 wanted to forward.
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940 1 from the staff that this would be an inappropriate 2 date, say by June 2nd, to go through Appendix A, B, 3 and C, look at the documents, and turn these documents 4 into what should be on a privileged log where the 5 content of the document that is attached is adequately 6 described, again without divulging privileged 7 information, but to describe it in such a way that 8 someone could make a knowing decision as to whether to 9 challenge it.
10 Now, I don't want to suggest to any of the 11 parties that there appear to be any smoking guns here.
12 Quite frankly, we don't think that when you review 13 these documents you are going to be looking for 14 anything further. But it just -- the first question 15 was whether or not we just simply tell you, "Look, we 16 have looked at this," rely on the Board to have made 17 this determination.
18 But I think you, as litigants in this 19 particular matter, have a right in representing your 20 clients to look at an appropriate log and make those 21 decisions yourself as to whether or not you -- there 22 is anything further on here that you would want to 23 seek. And, again, I don't want to suggest to you that 24 you should be seeking anything further on here, but 25 just that I believe that it is appropriate for you to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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941 1 make that determination yourself rather than for the 2 Board just simply to tell you, "Don't worry about it."
3 Any questions, Mr. Turk, with regard to 4 what the Board wants?
5 MR. TURK: I have some comments and a 6 question, Your Honor. First, starting with the last 7 document you mentioned, the NIA-007, the reason that 8 appears in a -- as a privileged document is because of 9 the words in the cover transmittal of July 14, 2009.
10 That's on page 1 of NIA-007.
11 CHAIRMAN McDADE: And, Mr. Turk, I don't 12 want a lot of comments with regard to this. What I'm 13 saying is, for anybody looking at this document, 14 looking at the log, they would have no way of knowing 15 that a 200-some-odd-page electronic version of the MAC 16 code that was prepared by Entergy was included there.
17 And I'm not saying that the claim of privilege to this 18 is not appropriate.
19 What I'm saying is that anybody looking at 20 this particular log would not know what is included in 21 the document NIA-007, and that the log should be 22 sufficiently detailed so somebody looking at it is 23 going to know what is included in the document, so 24 that they can make an informed decision as to whether 25 or not to seek some or all of that document.
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942 1 It could well be that New York or some of 2 the other litigants, although I believe we have talked 3 about this one in the past, that there was an 4 electronic version of the MAC code prepared by Entergy 5 that was furnished to the NRC staff. What I'm saying 6 is that these logs have to be sufficiently detailed so 7 that somebody looking at the log, without having 8 access to the document, knows what is there as opposed 9 to, you know, just simply taking it on faith.
10 Again, an internal transmission, a 11 discussion on an e-mail between persons within the 12 agency, may well be privileged, and it may well be 13 that the documents attached to it would be privileged.
14 But what I'm saying is the log needs to be 15 sufficiently detailed, so that someone looking at the 16 log knows what is there, someone who doesn't have 17 access to the documents, and that is what we are 18 directing that you do by the 2nd of June.
19 MR. TURK: In brief response, I agree with 20 you 100 percent. I don't have any problem with doing 21 as you requested, that we go back through these 22 appendices and augment our description of the 23 documents and the attachments.
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943 1 to believe that they haven't received the important 2 information. So I wanted to comment on NIA-007.
3 Page 1 is the privileged information. Page 2, as 4 you'll notice, has an e-mail from me to Robert Palla 5 transmitting what Jonathan Rund had transmitted to me 6 and to counsel for the State.
7 And that long document that is attached is 8 in fact the Entergy transmittal of July 9, 2009, which 9 has all of the data which was then provided to the 10 State and to the staff, and from the staff to Sandia.
11 It is the cover memo that is the basis for the 12 assertion of privilege. Anything substantive the 13 State in fact has, because that was Entergy's 14 transmittal to the State and to the staff previously.
15 So, Your Honor, in brief, we will augment 16 the description of documents that are withheld under 17 a claim of privilege. The person who will be 18 primarily involved in handling that is not in the 19 office. He won't be back until the middle of next 20 week.
21 So I would like to ask that you give us 22 one additional week to make sure we can complete the 23 task with -- the task with accuracy, because, frankly, 24 I am tired of having to come back to you with 25 corrections. I would like to give you a complete NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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944 1 product that we have full confidence in.
2 CHAIRMAN McDADE: And we would prefer that 3 as well, and I don't think the 9th of June is 4 unreasonable under the circumstances. And, again, I 5 did not want to -- and particularly in this regard, 6 mislead the other litigants. If this were a situation 7 where in review of the appendices we felt that matters 8 were being intentionally hidden, or that there were 9 documents that are not appropriately privileged, 10 nevertheless, are hidden under a claim of privilege, 11 our reaction would be very different.
12 Why we are doing this is, however, because 13 we believe that the litigants should have the 14 opportunity to review an appropriate log themselves 15 rather than just simply relying on a review by the 16 Board. And that is why we are directing that this be 17 done.
18 MS. DEAN: Judge McDade, Janice Dean from 19 the State. The State would request that staff prepare 20 similarly detailed privilege logs on a going-forward 21 basis in their hearing index updates as well. As I 22 noted, Appendices A, B, and C contain more 23 information, and I'll note particularly the risk at 24 the end of the document, which is a field not present 25 in staff's disclosures to date.
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945 1 We would not seek at this time any 2 revisions of hearing index documents prepared to date, 3 but would request that the staff use a similar format 4 going forward.
5 CHAIRMAN McDADE: Well, I think based on 6 the discussion we have had here this afternoon, the 7 staff is well aware of what the Board thinks is the 8 minimum required on these kinds of logs, and I'm sure 9 that the staff will take that into consideration as 10 they prepare them in the future.
11 If, in the future, you look at anything 12 and believe that you need additional information, the, 13 you know, discussion with the staff initially, with 14 the possibility of a motion to compel. We are hopeful 15 that that doesn't happen, because we are right now 16 moving towards a hearing. And what we don't want to 17 do is to get sidetracked on disclosure disputes that 18 would have any potential to delay the hearing, you 19 know, which has already been -- you know, this matter 20 has been proceeding for a considerable period.
21 Anything further from New York, Ms. Dean?
22 MS. DEAN: No. Thank you, Your Honor.
23 MR. TURK: Your Honor, I would like to 24 make a note of one more item if I can.
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946 1 to the logs, or is this something else? Because I've 2 got a comment I would like to make on the logs.
3 MR. TURK: This has to do with the log.
4 ADMIN. JUDGE WARDWELL: Go ahead.
5 MR. TURK: Your Honors may have noticed 6 that in Supplement 26 to our disclosure, dated 7 March 31, 2011, which was the subject of a correction 8 on May 12, 2011 -- again, this is Supplement 30 -- I'm 9 sorry, Supplement 26 -- there were a number of 10 documents there which have an A designation within the 11 ADAMS, ML identification number.
12 And I think a lot of the frustration that 13 I have heard expressed today, either by the Board or 14 by the State, has to do with documents that have that 15 A designation in the ML number.
16 And by brief explanation, the staff has 17 routinely been producing all documents that we're 18 aware of in our disclosure log. After the State 19 repeatedly claimed that they could not find documents, 20 we undertook -- our technical staff undertook to try 21 to find what was the problem, why they were not able 22 to find documents.
23 We then discovered that documents which we 24 thought had been produced by ADAMS, or the NRC's ADAMS 25 system, had in fact been placed into an exception NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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947 1 file, which we were not aware had happened. And those 2 documents have the A designation, because after we 3 discovered that they had been withheld, we arranged to 4 make sure that they could get produced, and that's why 5 the log for Supplement 26 was as long as it was, and 6 why there are so many A designations.
7 And I think a lot of the frustration that 8 the State has expressed has to do with the documents 9 in that particular disclosure log, Supplement 10 Number 26.
11 ADMIN. JUDGE WARDWELL: Thank you for 12 that, Mr. Turk. I will -- this is Judge Wardwell. I 13 will add on my observations with frustrations of 14 dealing with looking through these logs.
15 And I think my problem that I ran across 16 has been pointed out by the examples that have been 17 brought up, and that deals with the fact that so many 18 of these documents are e-mails with attachments. And 19 yet the only thing that really makes the log is the 20 e-mail, both in regards to the document date and in 21 regards to the comment that pertains to that document.
22 And I think as you go through this review 23 you might consider either splitting it into two, 24 talking -- you know, listing one as the e-mail and the 25 other as the attachment, or at least provide NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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948 1 information in regards to the attachment on the same 2 line as the e-mail is, because there are different 3 dates and there are different issues that are being 4 covered, both by -- in regards to the comment section.
5 I know that would have assisted me as I plowed my way 6 through this stuff.
7 MR. TURK: What I think I'd like to 8 undertake, Your Honor, is to make sure that the 9 description of whatever the cover e-mail or 10 transmittal item is is accurate, and that the 11 attachments are also accurately described, perhaps not 12 to the same level of detail.
13 For instance, if a letter from Joe to Sam 14 attaches a document prepared by Bob, I wouldn't want 15 to have to then go through all of the characteristics 16 of the Bob document, as to who he sent it to. You 17 might get a slightly less comprehensive discussion 18 than the cover e-mail, but it --
19 CHAIRMAN McDADE: Well, Mr. Turk --
20 MR. TURK: -- in formation about the 21 attachments, but somebody --
22 CHAIRMAN McDADE: Mr. Turk?
23 MR. TURK: -- our logs will have enough 24 information to understand the basis for withholding.
25 Thanks.
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949 1 CHAIRMAN McDADE: Mr. Turk, this is Judge 2 McDade. We went through this in great detail. I 3 don't know how it could be any clearer. What we are 4 saying is the logs have to be adequately detailed so 5 that someone looking at the log can make a 6 determination of what is there. So that they -- and 7 when it was dated and -- so they can make their own 8 determination as to whether or not they believe that 9 the document is appropriately claimed as privileged, 10 and whether or not they wish to challenge it.
11 It may well be that they don't believe 12 it's privileged, but looking at the document they have 13 no need or desire for it.
14 MR. TURK: I agree with you 100 percent, 15 Your Honor. I have no -- I have no dispute with you 16 on that.
17 CHAIRMAN McDADE: Okay. Anything further 18 from the staff, Mr. Turk?
19 MR. TURK: No, just to sum up what we will 20 be doing next. Tomorrow I hope to file with you a 21 corrected Appendix C and to provide a disk with the 22 additional documents that we have not yet provided to 23 you in our previous disclosures.
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950 1 or Tuesday of next week, we and the State will talk 2 and reach final agreement.
3 CHAIRMAN McDADE: Anything further from 4 New York, Ms. Dean or --
5 MS. DEAN: No. Thank you, Judge.
6 CHAIRMAN McDADE: Entergy has been 7 extremely quiet in this. Do you have anything to add 8 before we ring off? Mr. O'Neill or --
9 MR. O'NEILL: Just two quick comments, 10 Your Honor. First, Entergy obviously has been very 11 much a bystander in this dispute, which we view as 12 being fundamentally between two other parties, the 13 State and the staff. But we really do appreciate the 14 Board allowing us to participate on the call. It has 15 been very helpful, from my perspective.
16 And the second point is really a question.
17 Assuming the parties -- the NRC staff, New York State, 18 and the Board -- reach full agreement as to what is to 19 be produced, will those documents ultimately be made 20 available in ADAMS, or otherwise available to the 21 applicant? Or are they being provided under some 22 stipulation of confidentiality?
23 CHAIRMAN McDADE: Well, at this point, I 24 am assuming that they would be provided only to the 25 parties in this particular proceeding. If any of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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951 1 parties believe that they should be disseminated more 2 broadly, they can so notify the Board, and we will 3 look at them on a case-by-case basis.
4 As Mr. Turk indicated, there are certain 5 documents they are turning over, that they are not 6 necessarily waiving the claim of privilege on, but 7 they are not going to contest it, and we are not going 8 to release those documents without a very specific 9 review of those documents. All of the parties have 10 signed a protective order or have -- are signed on to 11 the protective order. So at least at this point the 12 documents are only going to be disseminated within the 13 parties to the litigation.
14 MR. O'NEILL: Okay. So that would include 15 Entergy, then, as a party to the litigation. Okay.
16 MR. TURK: And, Your Honor, I would say 17 that we will produce to Entergy whatever we produce to 18 the State. I don't see a need for a broader 19 disclosure, since other parties are part of the 20 litigation of the same contentions.
21 MR. O'NEILL: Oh, that's fine from my 22 perspective. I am, obviously, just inquiring on 23 behalf of the applicant, so I understand.
24 MS. DEAN: From the State's perspective,I 25 am happy to abide by the Board's preference and look NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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952 1 the documents over. But from our perspective, these 2 are not privileged documents. These are -- and I 3 believe the Board has acknowledge as much today --
4 when analyses become part of the FSEIS, they are no 5 longer privileged.
6 So we will look these over, but my view 7 would be, as to those actual, you know, particular 8 calculations, for example, the decontamination cost 9 factor analysis, our experts will be working with 10 those, and, in our view, those should be freely 11 discussed in expert testimony, attached, if necessary, 12 without reservation and without proprietary notation, 13 but certainly -- and I'll say from the outset that our 14 intention here was not to seek any, as we said, you 15 know, draft, any opinion documents.
16 We are primarily looking for those 17 analyses that, again, form the foundation of 18 statements made in the FSEIS. But perhaps what we 19 will do when we get the documents is contact staff and 20 the Board and clarify our understanding once we have 21 seen the actual documentation.
22 MR. TURK: Your Honor, to the Staff we 23 will consider whether or not the documents should be 24 placed in full public availability, but we just 25 haven't reached that point yet. And I'll point out to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
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953 1 the State -- and I mentioned in our conversation --
2 whatever the staff referred to in the FSEIS will be 3 produced to the State, and it is essentially -- the 4 cost comparison is in the DP-018-005. So they will be 5 getting that.
6 MS. DEAN: Yes, that's my understanding.
7 And it's for that reason that I don't -- I don't know 8 that there's a privilege assertion that attaches to 9 that, but that it would have to be handled as a 10 proprietary document and testimony.
11 CHAIRMAN McDADE: Okay. We will be happy 12 to look at whether these documents can be placed into 13 full public disclosure in ADAMS.
14 ADMIN. JUDGE WARDWELL: And if there's any 15 issue with regard to that, if the staff believes that 16 any of these documents shouldn't be, then the staff 17 will notify us and ask that they placed under 18 protection. But absent that, they can treated as Ms.
19 Dean suggested.
20 CHAIRMAN McDADE: I think that's all that 21 we have for right now. Does anyone on the line have 22 anything further? Judge Lathrop, anything further?
23 ADMIN. JUDGE LATHROP: No, I don't.
24 CHAIRMAN McDADE: Judge Wardwell?
25 ADMIN. JUDGE WARDWELL: I am all set.
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954 1 CHAIRMAN McDADE: Okay. Thank you. Thank 2 you, all.
3 (Whereupon, at 4:13 p.m., the proceedings 4 in the foregoing matter were concluded.)
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