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Transcript of 830809 Hearing in Rockford,Il.Pp 7,232-7,303
	ML20024E497
Person / Time
Site:	Byron
Issue date:	08/09/1983
From:	; Atomic Safety and Licensing Board Panel
To:	;
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{{#Wiki_filter:_.. l O b i O """'a s'^'== a r ^==='c^ 1 NUCLEAR REGULATORY COMMISSION i In the matter of: CO?d!ONWEALTH EDISON COMPANY Docket No. 50-454 OL (Byron Nuclear Power Station, 50-455 OL Units 1 & 2) I O t Location: Rockford, Illinois Pages: 7232 - 7303 Date: Tuesday, August 9, 1983 O

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t 7232 arl RILEY t -(,) 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2 BEFORE THE ATOMIC SAFETY & LICENSING BOARD 3 4 - - - - - - - - - - - - - - - - - - - -x 5 In the matter of: ocket Nos. O 6 CCMMONWEALTH EDISON COMPANY 7 (Byron Nuclear Power Station, Units 1 and 2) 8 - - - - - - - - - - - - - - - - - - - -x 9 10 Courtroom 270 Federal Building 11 211 South Court Street Rockford, Illinois 12 Tuesday, August 9, 1983 13 N/ 14 Hearing in the above-entitled matter convened 15 at 2:00 p.m., in open session, pursuant to notice.

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g 16 BEFORE: v b 17 g JUDGE IVAN SMITH, 18 Chairman, Atomic Safety & Licensing Board. o 3 19 JUDGE A. DIXON CALLIHAN, g Member, Atomic Safety & Licensing Board. 20 p [ JUDGE RICHARD COLE, g 21 Member, Atomic Safety & Licensing Board. a E a 22 s} 23 e 24 25 4 T V w

7233 ar2 + 1 APPEARANCES: 2 On behalf of the Applicant: 3 MICHAEL MILLER, ESQ. 4 BRUCE BECKER, ESQ. Isham, Lincoln & Beale 5 Three First National Plaza Chicago, Illinois 60603 6 L / On behalf of the NRC Staff: 8 STEVEN GOLDBERG, ESO. MITZI YOUNG, ESQ. 9 U.S. Nuclear Regulatory Commission Office of the Executive Legal Director 10 Washington, D.C. 20555 11 On behalf of Intervenors DAARE/ SAFE and 12 Rockford League of Women Voters: ') JANE WHICHER, ESO. 13 Business And Professional People for s/ I4 the Public Interest 4 109 N.

Dearborn Street,

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\\ 7234 ar3 1 QQHIE, HIE 2 Witness: Di ect Cross Redirect Recross Board 3 4 5 6 7 [None.] 8 9 10 11 12 13 ,c) EXH IBI - - - - - -.T S 15 m i bo g 16 y [None.] 8* 17 8 18 o 5 19 3 20 A g 21 g 22 E 23 24 i l 25 l l ,O) I i 'd

A 7235 jl 1-1 1~ P R0 CE ED I NG S 2 JUDGE SMITH: Before we begin, I'd like to 3 introduce Mr. Steve Crocker, sitting in the witness stand, d who has'just recently joined the panel as a law clerk. And j 5 he will be' working on this case until its conclusion. 6 And if you have occasion to inquire of the Board L 7' and we're not available, you can call Mr. Crocker, and he will 3 try to get the information for you. Y Can vou haar ce all right? 4 10 MS. WHICHE3: I'm hr.vfng a 1ittle trouble. II" JUDGE SMITH: Usually my.loudmouthedness will 3 12 carry the day, but I don't seem to be doing it today. 13 (Discussion off the record.) Id JUDGE SMITH: Before we b'egin the business ~ 1 ~15 schedule for today, is there any 7_ , related preliminary G g 16 business? I '{. i 17 MR. BECKER: Yes, Your' Honor. For the record, I'd 8 j 18 like to'make a comment on the date of filing of the findings. ~ 19 Last week -- I believe it was Wednesday -- we 20 1 earned that Mr. Miller would be out of town at the end of'the 3 L 21 week land would not be able to review the findings prepared on y j-g 22 ' behalf of'the Applicant. 8-23 Therefore, Ifcontacted'each of the. parties, g 24 Intervenor, and NRC~counselfand asked if they any objection-25 to our bringing.the findings with us to Rockford today'and i ' v s

7236 jl 1=2 y y_) I giving them, in hand, to the other parties. The parties did 2 not have objection. 3 I then learned that Judge Smith and Judge Cole 4-4 were unavailable. 5 I spoke to Judge Calliahn,.who informed me he.had 6 no objection to that procedure and suggested I contact 7 Judge Lazo. I did so. He said he thought this procedure B was fine and we could file it today and suggested I go on the 4 9 record with this statement. 10 JUDGE SMITH: Thank you. 11 Have you done that? 12 MR. BECKER: They are out in another room, and they 13 are about to brought in. b '%s 14 JUDGE SMITH: We also received findings from the 15 Staff. S: 16 Is any member of the Applicant's counsel able v 8* 17 to address the late-filed or the corrected proposed findings 8 18 of the League of Women Voters on the steam generator tube g a . { 19 integrity? %j 20 MR. MILLER: Judge Smith..I'm not completely E g 21 familiar with it. I believe that our position is spelled.out-E g 22 in the paper that we filed. I don't know whether it was 8 23 denominated a motion or to strike. I'm not certain, unless g 2 24 the Board wishes it, that any additional argument is warranted 25 If you do feel that some additional comments ought eN.

jl 1-3 7237 . ( I to be made on the record, I would like leave to do it tomorrow 2 morning. 3 JUDGE SMITH: Okay. I wonder if you could find out 4 if the League's pleading of August the 2nd changes your 5 position. It does seem to us to go far to answer to answer 4 6 your complaints. 7 MR. MILLER: I will report back to you tomorrow l 8 morning if that's okay. l 9 l JUDGE SFITH: That would be fine. 10 Thank you. 11 Is there any other preliminary business? 12 (No response.) 13 Yesterday perhaps -- Mr.. Miller, you were gs (N 14 present yesterday. Perhaps you can give us a report, if you 15 will, as.to what happened at the position for --.the arguments 4 g 16 for petition of the temporary restraining orcer? v 17 MR. MILLER: Yes, sir. I was not present. 8 18 Ms. Whicher, I believe, was. But she can.certainly supplement, g a h 19 contradict, or whatever. %j 20 MS. WHICHER: I'll be glad to fill in. U s l 21 MR. MILLER: The matter came on before t g 22 Judge'Nordberg of the United States District Court forcthe 8 23 . Northern District of Illinois, sitting as the emergency judge 8. 24 in the District'in Chicago. l 25 This was done because of the absence from Chicago V e.t J.

j jl 1-4 7238 ) 1 of the two judges to whom the two cases are assigned, one case 2 having'been filed on behalf of the Rockford newspapers, the 3 other on behalf of the American Civil Liberties Union, d A temporary restraining order was sought restrain-5 ing the conduct of any in camera evidentiary hearings. 6 The bacis for the motion for temporary restraining 7 order was an asserted conflict between the conduct of 8 in camera hearings by the Atomic Safety and Licensing Board 4 9 and the requirements of the so-called government in the-10 Sunshine Act. II There was extended argument; and there was, at the f 12 conclusion of it, no order entered by Judge Nordberg. 13 It was the understanding of all the parties Id and, I believe, the Judge -- that there was no complaint about 15 the Board considering ex parte material that the Staff might 4 K .g 16 submit to it for consideration under 2.744, in accordance 1 17 with the' motion that's pending before the Board. 8 18 JUDGE SMITH: In private? o 19 MR. MILLER: In private. .i h: 20 And it was only directed -- the arguments tofthe .=g - 21 parties and the Court's interest was directed toward the I 22 j conduct of-an evidentiary hearing in. camera. 8 23 g I think that there are really four steps that 2 24 Judge Nordberg considered. 25 .The first was this ex parte receipt of documents. O. V I e y ne-, r a c -n-

7239 j1 1-5. I He, then -- 2 MS. WHICHER: This is the part you weren't there,. -= 3 These are the four steps which your attorney put forward that d you were going to do. 5 JUDGE SMITH: Which we gave him. 6 MR. MILLER: Right. 7 JUDGE S M IT14 : So, perhaps I can report on that. 8 (Laughteer.) 9 MR. MILLER: That would be probably very 10 appropriate. II In'any event, Judge Nordberg did, as I understand 12 it, request that no ex parte evidentiary hearing be held 13 before he had an opportunity to rule on the pending motions. Id And he has set a hearing tomorrow at 2:30 p.m. -- In Chicago, 15 if necessary -- to provide us al'1 with a prompt ruling should 'S 16 the four steps that you are about to describe take place and 17 o - camera evidentiary hearing is contemplated. an in o 18 N 7s that a fair summary? MS. WHICHER: I hate to admit it 'but that's a f fair summary. 20 21 JUDGE SMITH: I have a different understanding. 22 l MS. WHICHER: Let'me just add to what Mr. Miller 8 23 3 said. 2 . 24 The Court indicated yesterday that.although the 25 matter is set for 2:00 or 2:30-tomorrow, it will be continued. fY l %) l (, J .n.-

-jlil:6 7240 I-until Thursday and Friday if necessary. 2 In case.the Board decides to hold an in camera 3 evidentiary session, the Judge will have it on his docket d ~ able to make a ruling on the temporary and hopefully be 5 rest'aining order issue. r 6 MR. HICKEY: I can also say that the Judge said this Court, as well as any other Judge.of this Court, would 4 0 take a dim view of the NRC going in camera in view of the 9 pendingretitions and cases that were pending without a hearing; 10 from the Judge. II JUDGE SMITH: All right. 12 None of the relaters of those arguments stated my 3 understanding of~what happened. Let me state what I.under-stand. 15 MS. WHICHER: Excuse me, Judge Smith. S 16 Is your microphone on? 0' I7 MR. HICKEY: There's no way to hook it up. It used 8 18 f to be hooked up to a dictating machine,-I guess. _a h 39 JUDGE SMITH: The United States District Attorney I 20 t. was told by.me that there were potentially_four steps which 21 would be of_ interest to the Court and to'the parties seeking E-22 the TRO. 8 23 s. The first step would befthe in camera presentation 8 24 end 1 by the Staff with no other party present. 25 [Q g c-5 y y up-ns-,--y J 9 4 3 .,-y .,,----g t

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7241 AR2rgi ,(,) 1 I understand that noone disputed that before the 2 court; however, you reserved your right to argue to us. Ms. 3 Whicher, that that is not an appropriate proceeding. 4 MS. WHICHER: Yes. 5 JUDGE SMITH: So, as far as Judge Nordberg is con-6 cerned, all of the parties there agreed that that could go 7 ahead. 8 MR. HICKEY: In c amera? Not in c amera? I didn't 9 understand that. Go ahead, Judge. 10 JUDGE SMITH: In cacera is private. 11 MR. HICKEY: What you say what the Staff has asked 12 for, I think, is in Camera and exclusively so; in any event, 13 we, of course, could not object to that as -- the Rockford , - ~, ( } k/ 14 newspapers could not object to the exclusive remedy which he 15 asked for. E { I-6 In other words, that you would go into session + 8* 17 without the parties. o l 18 JUDGE SMITH: Right. I E 19 MR. HICKEY: But in c mera affects the public, and a } 20 I understood specifically that the judge said that this court I g 21 as well as any other judge sitting in this U.S. district could i 22 take a dim view if the NRC went into camera. 3 f 23 JUDGE SMITH: Well, I think we'd better define what in 8s 24 meant by in gamera. The Staff had petitioned this Board to 25 be heard in c mera, that is, without public attendance and a I v

'A2 rg2 2 7242 5 1 without the participation of any other party to address the 4 2 disputed information, the information that they think should 1 3 not be presented. 4 Our counsel, the United States district attorney, 5 informs me that noone objected to that approach before Judge i 6 Nordberg. a 7 HR. HICKEY: You were misinformed, Your Honor. i 8 MR. MILLER: I disagree. I think everybody was 9 absolutely crystal clear that thic preliminary step of having 10 what I would call an ex parte consideration of the evidence by 11 the Board to determine whether it was relevant material to any 12 issue in this proceeding and privileged was not claimed by 13 anyone to be subject to the requirements o'f the Sunshine Act 14 and was not the subject of any. request for a temporary restrair 15 ing order before Judge Nordberg. 16 MR. HICKEY: You were there and this was, I think, 17' -made crystal clear, certainly while I was in the courtroom. i o { 18 MS.-WHICHER: Your Honor,.I did not take a position .3 { 19 before Judge Nordberg with respect to the proposed in c.ame ra k 20 ex parte consideration of evidence. However..I have not y -t l 21 waived my right to make arguments-as ~to the propriety of that I 22 procedure. g I 5 23 JUDGE SMITH: What is your understanding as to ~ the 8w l 24 agreement of the parties and the judge's ruling yesterday as i 25 to'that first step? l' \\ O -.. ~.. -

AR2rg3 7243 () 1 MS. WHICHER: 1 don't think there was an agreement 2 of parties, Your Honor. 3 JUDGE SMITH: Well, three of the lawyers present d recall it, and it was a point according to our counsel which 5 was very carefully explained. O MR. HICKEY: No, Your Honor, we have got to dis-7 l tinguish, Steve, between exclusive ex parte, as you call it -- 8 JUDGC SMITH: Right. ? M P.. LICKEY: and as they called it in their 10 petition, I think, and we also have to distinguish that from II in gamera. 12 JUDGE SMITH: All right, that's the problem. We 13 want to explain the terms. gs Id MR. HICKEY: I-understand'the; judge said'there will 15 be no further proceedings on the in camera hearing unless we S 16 go to hearing on Wednesday. 17 JUDGE SMITH: 'I'm only going to Step One now..and g , 18 there are four steps.and you will not know our.viewJand our A I9 ~ was presented to the court until I complete my view of what I-20 remarks. .21 MR. HICKEY: That'sfright. 22 j. JUDGE SMITH: But ~first I want to establish that. '8 s . 23 t he '. f i r s t step -- now, you can give.it.whatever label you 2d wish -- but'the first step will be'that the NRC' Staff and no: ~ 25 other~parpy.in-a room from which the-public is barred will'

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'AR2rg4 7244 1 4 () 1 present their explanation of the need for protection. ] 2 Did you agree to that? Give it whatever label you 3 wish, but did you agree to that approach? 4 MR. HICKEY: I cannot object to the exclusive, as 5 Steve'put it in his petition, exclusive ex parte. I am object-6 ing to going in. camera. 7 JUDGE SillTH : All right, you are objecting to the 6 word in damera. 9

lR. HICKEY:

Right. { 10 JUDGE SMITH: Step Two, then, would be after the 11 Staff exclusively and in private ex parte imforms.us of the 12 reasons why they wish to protect information and when and if 13 the Board determines that this information must be made available h \\' 14 to the parties, we would then schedule this very week an ln 15 camera presentation by the Staff and its witnesses as to the f 16 nature of their protected information and their plans for pre-4 17 senting it. 8 18 g It was that session that Phase Number Two, to which a e 39 the court referred he would be unhappy if it.was -- I don't g I 20 know the judge -- he'd be unhappy if we proceeded without 24 g 21 hours notice. t 22 g Are we in agreement at that point? 23 MR. HICKEY: I want to say this, that I~cannot a .8 24 speak for the Commonwealth or the intervenors on the ex parte 25 part, you know, that's their problem. \\ l ~ ~v y

AR 2rg5 -7245 N d 1 JUDGE SMITH: We're trying to establish what 2 happened before Judge Nordberg yesterday. 3 MS. WHICHER: Your Honor, if I may, it is not my 4 recollection of the proceedings before Judge Nordberg yesterday 5 that the U.S. atterney said that Step Two would occur this 6 week. 7 JUDGE SMITH: We d o r. ' t know that it will. 8 MR. HICKEY: He said that he didn't think it V

would, i

10 MR. MILLER: The second step is reported to me -11 because this took place in the afternoon when.I was unable to 12 attend the session, was that there would be simply an in .comera 13 conference with-the parties to decide.on the procedure for g i 14 handling any evidence the Board determined to be material and 15 relevant. g 16 JUDGE SMITH: Step Two is not an evidentiary pre-4 17 sentation. Step Two is assuming during Step One the Board 8 18 decides that there must be-further in esmera proceedings with 3e. ~ 19 the parties participating, and there would be sort of a pre-a I. 20 hearing conference in camera; with the public barred: that. 21 would be Step Two, and that_we would hope to have this week. t 22 g MS. WHICHER: And that is -- my-rec,ollection was 8 23 it was not indicated to Judge'Nordberg that evenLthat step a 8. ~24 would occur'this week. The first' step is probably today. 25 JUDGE SMITH: Then that was a: -- not only a . f3 ( ) \\_t i(. ~ ,n -c

_ ~_ CAR 2rg6 i-(ms I failure of our communication, but I think an unlikely event, 2 because otherwise assuming that the parties had all agreed to 3 an exclusive, private presentation by the Staff, we have all d understood from the very beginning that we would not reach any 5 in Camera evidence this week. We have all understood that, 6 that we would not have an evidentiary presentation this week. 7 I am distinguishing now between an evidentiary presentation and 8 a discussion of the forthcoming evidence among the parties. It is my understanding that Judge Nordberg, before 10 we have -- maybe it's not as restrictive as I thought, maybe he's just refe~rring to evidence, but let me complete'the four 12 steps. 13 s The third step would be a pre-hearing exchange of Id information in. camera, or protected, and the fourth step would 15 be the actual evidentiary presentation, which I told the' United 3 End 2. States district attorney could not happen before September. 16 8-17 e 18 a 19 - i 4 { 20 e i e 2' W 22 y 23 8' . 24 25

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3-1 jl 7247 p-) (s, 1 Because we have already discussed that there's no 2 time during this month for that to happen, now, notwithstandin 3 what the Court said, do any parties -- not all of the d plaintiffs in that TRO are present, are they? 5 MR. HICKEY: No, they're not, Your Honor. 6 MS. WHICHER: No, Your Honor. 7 I have committed to notifying the attorney for 8 the ACLU of what this Board indicates this afternoon. 9 JUDGE SMITH: Well, we're put in a difficnir 10 position. Il The parties came away from that TRO with inconsismn t 12 memories of it, a poor appreciation of what was going to I3 ,7 .s happen. And now, not all the plaintiffs are around to \\- Id express their feelings on it. 15 Do the parties -- were you a plaintiff in that 16 case? 8 17 MR. MILLER: No, sir, we're an intervening 8 18 y defendant. I k 19 JUDGE SMITH: I was talking to Ms. Whicher. tj 20 MS. WHICHER: I can't see your eyes because of the I 21 g reflection. 22 j JUDGE SMITH: You can't hear me, and you can't a h 23 see me. I feel very' inadequate. 2 24 (Laughter.) 25 MS. WHICHER: -I can hear you now. I just couldn't .f x / \\.._)\\

7248 ji 3:2 I tell you were looking at me. 2 I have intervened in that case as an attorney for 3 the League and DARRE/ SAFE and Business and Professional Peoplc 4 for the P u b l i c e. Interest. 5 JUDGE SMITH: So, we do have confusion. 6 However, I do think it is workable, because given 4 7 the plaintiffs in the TRO case, the greatest benefit, if we 8 should decide after the Staff's private presentation to us i 9 that there must be further in camera proceedings, we can 10 comply with the Court's request and not have even an 11 in camera attorneys' discussion without 24 hours' notice 12 because we have other business. 13 Then, there's the other eventuality and that is, \\ 14 under the Commission's new policy statement which was issued 15 last week, if we should decide after the Staff's private 4 16 presentation that they must proceed with in camera evidence. 8* 17 and a discussion, they may petition directly to the Commission, 8 18 - g In that event, we are estopped. And certainly we s 19 would accept the Staff's presentation here today that they -- -j 20 we would not require them to actually petition, but we would

l 21 allow them to invoke that privilege.

And that would moot the t 22 whole consideration. g 8 ~ Judge, can I comment? 23 MR. GOLDBERG: m_ g. 24 I was briefed.by Assistant U.S. Attorney 25 Keith Seiffert on what transpired at the judicial session, and O i --w e ~ s + v g y y

Tjli3-3 ~ 7249 1 I I don't really feel I have anything.to add on that. 1 2 But I did want to clarify the motion, since it 3 may bear on the disposition. d The presentation that the Staff has offered to + l 5 make' to the Board in what I'm going to call, for want of a j 6 better word, an " informational presentation," rather than an 7 " evidentiary presentation," is one prompted by the Board's 8 request for details-about the pending inspection into~ number a 9-of allegations. 10 We are prepared to provide the Board with whatever 11 information it wants concerning those matters. This could 12 include information in documentary form, as well as oral form. 13 It is the information that we understood the Board to want. 14 Now, as we. understand the provisions-in 2.744 and 15 the Commission policy statement, if,' at the conclusion of that Sg 16 theT nformation is presentation, the Board decides.that i Y 37 relevant and unprivileged, it can order disclosure to the ou 18 _g

parties, s

19 JUDGE SMITH: Necessary to the decision. .t 20 3 MR. GOLDBERG: If it is relevant and privileged. n ~ g 21 it must find that'it's necessary.to the decision in order to X-22 3 require disclosure. 8 23 JUDGE SMITH: Yes. _g 24 MR. GOLDBERG: And it was-our understanding we 25 j. would present whatever information would. enable the Board to b ..m,% ,..~-.,& f ,.9 i .y 4 w,, m --,-m y

Ejl 3-4 7250 /N (,/ 1 make that determination, so that it can decide whether or not i 2 the matters warrant adjudicatory consideration. 3 And if, at the conclusion of that presentation, l 4 which would be not only to further expound on the privilege 5 claim, for which we have provided the factual substantiation e in the form of the affidavit from the original administrator, 7 but that the information is also necessary to a decision so l 8 as to require some future evidentiary session, not only the 9 former -- not only to review the validity of the privilege 10 claim -- given that, as I say, I cannot shed any further light 11 on what transpired at the hearing on the TRO complaint, other i 12 than to say it was my understanding from Assistant U.S. 13 Attorney Seiffert that he committed -- he did not commit to O 14 refrain from holding an in camera session for the exclusive 15 receipt of information by the Board on any time frame. i 16 But I did understand him to say that they would b* 17 that the NRC would voluntarily abstain from holding such o { 18 a session for-Uednesday to enable the litigants to reappear, a -{ 19 And, of course, I had told Mr. Seiffert, both l 20 before and at the conclusion of his hearing in Chicago, that

l 21 we did have a public session calendar that we felt should go E

- g 22 forward and that, if ~ time permitted, the Board could receive ? 8 23 the in camera information from the Staff at the conclusion of 2 24 the week or whenever else it could be conveniently scheduled. l 25 And on that score, since the submission of our m' ( i-V

jl.3-5 7251 1 motion, I have conferred with the Office in Investigations, 2 and they are prepared to proceed with the provision of 3 information to the Board exclusively, on the same basis as 4 the Staff is prepared to proceed and on the same conditions. 5 JUDGE SMITH: Are they present today? 6 MR. GOLDBERG: They are not present today. But 7 they can be assembled on 24 hours' notice to make that 8 presentation and provide whatever information the Board 9 desires. 10 Now, I guess, to further comment on what I 11 understood to be your first comment, and that is the 12 availability under the Commission's policy statement to 13 seek immediate Commission review, that will obviously depend \\b 14 on what information is elicited in the in camera session and 15 what the Board's decision is; if it decides there should be 0 g 16 some party dissemination, what restrictions are placed on it. i 17 We'll just have to judge from the nature of the 1 8 18 information elicited and the arrangements under which the g 19 Board feels that it should be supplied to other parties. -} 20 g So, I don't think we can say right now, at the t'I 21

outset, they're we're'necessarily going to follow papers.

I 22 It's going to have to be evaluated at the time we see what l 8 23 information is actually imparted. g 24 MS. WHICHER: Judge Smith,.may I be heard? I 25 JUDGE SMITH: Yes, I am aware that. parties have not ('1 \\ (_- i F W

~. ' Ejl!3-6 7252 1 s I had a chance to respond to the petition. I'm aware of that. 2 MS. WHICHER: Well, you're going to hear me out, 0 'o I can wait. 4 I assume'that you will allow the parties to respond f 5 to this motion. 6 JUDGE SMITH: Yes, certainly. 7 And we'll take that up as the very next. order of 8 business. I just wanted.to complete discussion of scheduling 9 q possibilities. 10 1 had hoped, when we learned about the Commission's .11 policy statement and. Judge Nordberg's I don't know what 12 you call what'he'said, i 13 MR. MILLER: They are reallyEcomments and i %s 14 suggestions. 15 MR. HICKEY: Your Honor, unfortunately, as S 16 Mik Mil er and Jane kn w, laymen,' including Judge Nordberg, 5 k I 17 don't understand the Nuclear'Regulaory Commission, the 8 18 whole statute, the whole thing. .So, we spent part of g .a I 19 yesterday reaffirming to the Court what everybody knows from 'I 20 g constant reading and what Your Honors know. And then he b 21 adjourned at' noon. I 22' g And at that time, we were - all in agreement 'B t i '8' L g Keith Seiffert, represen' ting _the'-District' Attorney, said[he'd ' 23 ' 1 -g 24 .have to_ check with his client. 25 we were all-in atreement.that we.would wait.-- in ( 1 o i I

ji 3-7 7253 , ) I other words, that we would not hurry or that Staff 'somebody 2 would not hurry with the in camera proceedings. 3 We adjourned at noon -- 12:00 or 1:00 o' clock, 1 4 guess.it was. We were back at 2:20. And Steve had talked 5 to somebody -- I don't know who -- and said he could not 6 agree. So that we did not have an agreement at that time, 7 then, to defer any in camera proceedings. 8 JUDGE SMITH: Well, I'm going to put it in the 9 proper context. 10 The United States District Attorney, Mr. Seiffert, 11 representing us, as a Board, secondarily, and the United 12 States Nuclear Regulatory Commission primarily, consulted 13 with the General Counsel and myself yesterday. t 14 We both advised him that, as his clients, neither 15 of us was willing, voluntarily, to make any stipulation or 5 4 16 agreement to defer our legitimate business here this week, i 17 that we will proceed. 8 18 g We also informed him, however, that there is some 3 19 flexibility. And we do have public testimony to receive. I 20 g My allusion to what Judge Nordberg did or said is 4. p l 21 because I am confused. I know it's not a threat; judges W 22 don't threaten people. But it seems to be some kind of a g 5 23 4 3 warning on behalf of him and all the judges of the District. o 24 However, it is mooted, because the plan that.we have would-be 25 -.after we hear your response to the motion, would-be, this-D]. t w w %M r ~ =1

ji 3-8 7254 /~5 (_) I afternoon,=would be to listen to the Staff's private presentaq 2 tion and, if possible, determine, either this afternoon or l 3 first thing tomorrow, that we want, then, to have an d in camera lawyers' conference that would be put off till the 5-end 'of the week, because we do have the priority problem of 6 Setting the evidence which is ready to be presented going 7 first. And that's the best time for the conference anyway. 8 MR. HICKEY: I'think Judge Nordberg's problem 9 was that I explained to him at 2:00 o' clock you may say -- or 10 anybody might say -- "We'll go into in camera session." I / II cannot get to Chicago because we have no judge here. And 12 this judge here, the U.S. District Court Judge from Rockford. 13 g is on vacation. So, we have to pursue our remedies, if there '-) a Id are any, with the emergency judge, 15 Judge Nordberg ceases to be an e me r g e n c'y judge, as S g 16 I understand it, Friday. And there's a new judge coming on k* 17 which will be the emergency judge for another two weeks. And 8 18 g it's too bad because Judge Reskowski has one case, 3 19-Judge Moran has the case, which is the ACLU case,'and those .20 have got to ultimately decided one way or the other. And ] g 21 -then it's'got to go to the Circuit Court of Appeals. t 22 .[ What we're faced with is the Hunt case, as 8 23 your Honors know. And_neither Judge Nordberg -- I think I 24 .can safely say ---nor are we, the Plaintiffs, particularly 25 enamored of the Hunt case, because the Judge went on. /T - t1 - a p y

3-9 31 7255 I unfortunately, to ramble after he rendered his decision. And 2 by rambling, of course, he got into difficulty. 3 JUDGE SMITH: Then, there's one other aspect of it, f 4 of course, and that is if, as a matter of accommodation to 5 counsel, you ask us'to arrange our schedule wo that you would 6 have time to pursue your TRO, we.would, as we judiciously are, f 7 extending that courtesy, but that's a different matter. 8 MR. HICKEY: I understand that. And I thank you end 3 9 for it. 10 11 12 13 f 14 15 1 ef I8 i 1-7 !e 18 o a 19-r4 h 20 = ' k 21 r 22 e 5-23 l 24 i 25 - O) ,v i i -e- -e .v- ,.~3_,,..,,, ..,.,yy ,,j,, __j

AR'/rgi 7256 /m t ( ) 1 MR. GOLDBERG; May I clarify one thing for the record? I was 2 not consulted by Mr. Seiffert during the pendancy of the hearing, 3 although, as you indicated, Judge Smith, he did indicate to 4 me that both our Office of General Counsel and yourself were 5 consulted with respect to the Agency position. I was not 6 consulted and did not indicate to him a position on the timin$ 7 of any session. 8 JUDGE SMITH: All right. Now, I think if you want 9 to argue the motion, that would be the Staff's motion -- 10 MS. WHICHER: Of August the 5th. 11 JUDGE SMITH: Yes. Proceed, argue it in your own way, 12 any way you wish. 13 fs MS. WHICHER: Judge Smith, Intervenors League of / ( ') k 14 Women Voters and their DAARE/ SAFE suggest that the Staff's 15 motion ought to be denied. The Staff has yet to make the 5 i 16 showing which this Board ordered it to make and which the k* 17 Appeal Board ordered it to make concerning the factual basis 8 18 for its decision not to disclose the documents and particu-g 3 ( { 19 larly its concern regarding investigatory materials. h h 20 Our objection to the documents and to testimonial 21 tvidence stands on different footing, although the policy and 22 the reason I have just stated to the Court apply to both.NRC g 23 regulation 2.744 goes only to documents. It does not deal 24 at all in any respect with any information, any evidence, any 25 potential evidence other than documents. To apply 2.744 to 7-~ f

.AR4rg2 7257 A() I testimonial situations precludes parties to the proceeding 2 from any possibility of cross-examining, of making arguments + 3 based on the demeanor of witnesses, whereas the document will 4 always exist in the same state. 5 In other words, if the Board takes live testimony 6 from witnesses, the moment of cross-examination is gone 7 forever. 8 JUDGE SMITH: Wait a minute. Clarify that. I 9 cannot envision that situation arising. f 10 MS. WHICHER: If the Board takes life testimony, 11 ex parte in camera -- 1 12 JUDGE SMITH: No, no..that is not a part of Staff's; 13 motion. j-q 1 ws 14 MS. WHICHER: Then I misread the -- 15 MR. GOLDBERG: Judge, that's what I tried to clarify,

. g 16 because I think the Board envisions a'two-pronged approach V

4 8 "1 17 here, one further information on-the privilege claim ~ and one 8 18 further information on the substance of the allegation, e 19 Now, this Board has maintained an. interest in = h 20 knowing the substance of.the allegations under inspection. 2 21 Now the Staff has decided in light-of the Commission policy j I ~ _22 statement, which clearly governs the procedure; advanced by l g-a { 23 the Staff to provide that information -- now, as I say, thac's 2 4 24 what I said' This would.be an in f erinational session;- this 25 would provide the Board with enoughJinformation to decide the O) \\-

7258 AR4rgj 1 ) i ry ( .i i validity of the privilege claim and also decide whether that x_/ 2 information is necessary for a decision so as to require an 3 evidentiary session at some point in the future in which 4 that information could be developed. 5 As you know, our original concern was that we not 6 provide any information until the conclusion of the inspectior.. 7 However, in light of the policy statement and the invitation 8 of the Board in its stay decision and the valid observations 9 made by the Appeal Board, we filed a motion for reconsidera-10 tion before this Board for it to reconsider the matter in 11 which it would receive the information which it indicated it 12 desired. 13 Now, I think that that information would rise to [,_) \\s ) 14 the level of testimony only if the Board decided that there 15 would be a future evidentiary session concerning those 5 s 16 inspections. e k 17 JUDGE SMITH; And then I would expect that that testi-- 8 e 18 mony be ex parte in private, would be repreated then in a 19 subsequent in camera evidentiary presentation. } 20 MR. GOLDBERG: Well, let me say further, that we e 21 are prepared to have that session transcribed so that when 22 the need for exclusivity is removed that so c a.n the matters g 23 that have transpired be removed, so that there is a record 2 24 that could follow the case through. 25 JUDGE SMITH: All right, Ms. Whicher? tN k ) v i

AR$:g4 7259 I 1 MS. WHICHER: The Staff has cited absolutely no 2 authority for the hearing in camera ex parte, witness testi-3 mony and indeed-to my knowledge, there is none. All cited 4 4 authority by the Staff deals with in camera but not ex parte 4 5 testimony. I think this is an entirely - inapprop'riate procedure 6 with respect to both the documents and.the live testimony in 7 this case. 8 I have argued both here before this Board as well as 9 before the Appeal Board that there are, or at least appear to 10 the disclosure of which would threaten the Staff' s be, no facts 11 investigation because the target and the scope of this investi 12 gation have been publicly testified-to-at length, beginning 4 13 /"' with the general statement by the Staff in February and culmin-k_ s 14 ating in Mr. Hughes' day-long testimony before this Board on 15 May 26th. k 16 I notice in their brief to this Court, the Staff 1-17 i has carefully stopped short of responding at all to that U .c 18 g argument. They.have not ma.de the statement -- they have not 19 [. dealt at all with the fact that there's been. extensive public 20 f disclosure of these allegations. l 21 g Funther, I wish to' point out to the Board tha t both g 22 the Staff motion and'the Kepler affidavit.are just as con-a f 23 g clusoryLand just as nonspecific as the arguments made before. 24 the Board.and before the Appeal Board. -25 . the basis of-those nonspecific and conclusory. -On u(7 t 4- ,e , + +, - -,.y g .w-- e

j' ARY:g5' 7260 F l i ) I statements, the Appeal Board affirmed-this Board's order and 2 gave the Staff a second chance to come up with facts. We 4 3 still have none. We still have predicatory language, it j 4 could' affect, it could impact, and never a clear statement. 5 I don't think the Staff has made a showing first. 6 I don't think it can make a statement to hold testimonial 7 evidence in camera, ex parte; and second, it has not made l 8 a showing sufficient under-2.744. a 9 JUDGE SMITH: Have you addressed the Commission's 10 policy. statement,'which, incidentally, is somewhat ambiguous 11 in i ts language. It could be read as being a prospective' 12 policy statement, however the Chairman of~our panel has con-13 sulted with the General Counsel, who was present when'the i 14 Commission took this action, as was our Chairman, and the p 15 Commission's policy statement is intended to be interim q g 16 directions to the Board and the Staff and the Office of -%~ 3 17 Investigations, and we are bound by that. statement. 8 18

g Moreover, I have Secretary Child's memorandum to the 8

39 g- . Executive Director-of Operations and. the General Counsel of 1, .g. 20 g. August'3rd, 1983, referring to the Commission's1 action as E2-21 interim guidance, so that it's immediately: effective and we e I g 22 . are bound by it. g. 23 As I understand the~Commiss' ion's p'olicy, pendingethe .r th 24 adoption of a final policy, no distinction.is being~made 25 between 1 document s 'as -compared to information in. general hJ H i -1 + y .a y -+e w c n,,,,.. --4 ic"'.%

. ARefrg6 - 7261 .(,O) 1 I did not read it with that distinction in mind or J bu-2 2 try to make that distinction, but as I look at it now, the 3 Commission is directing Boards to receive first in camera, 4 ex parte the Staff's discussion. 5 MS. WHICHER: May I respond to that? 6 JUDGE SMITH: Yes, please. 7 MS. WHICHER: Judge Smith, my reading on the lain 8 face of this statement of policy, the current practice is set t 9 forth and Boards are directed to follow that current practice. 10 Receipt of in camera, ex parte testimonial evidence is not 11 approved. The Staff has cited no authority, no case where 12 this'has been done. The policy statement speaks of informa-13 tion. V) 14 JUDGE SMITH: Yes. 15 MS. WHICHER: It does not talk in terms of testimony, S g 16 The policy statement -- to give your, reading to the policy v k 17 statement would mean overruling or sidestepping or ignoring o } 18 2.744 altogether, and I don't think that's what the Commissior, a 19 had in mind, i f 20 The Commission is directing people to. continue into e E 21 the present policies and testimonial' evidence is not one of I 22 g those. policies. e ~ 23 JUDGE SMITH: Mr. Miller? 8 24 MR. MILLER: Judge Smith, by'and large, I agree with . 25 Ms. Whicher. I believe.that -- however, I believe that the u y w o a w -<w-- ,7 +,-r s" .+4 y { ov+-

AR '+g7 - 7262 4 ) 1 Staff has made the appropriate showing with respect to docu-2 ments relating to the investigations to invoke the provi-4 3 sions of Section 2.744-and have this Board consider in private i d without any other person being present the claim of privilege 5 the materiality of the documents, and once a tentative decision 6 would be reached by the three judges as to disclosure, 7 whether it would be necessary to the outcome of this pro-8 ceeding. 2.744 is a regulation. The Commission's statement of I 9 policy is a statement of policy and I am confident that had to the Commission wised to create such a large chhnge in the ex 11 parte communications to a licensing board, that it would have 12 promulgated a regulation even if it was an interim one. 13 It seems to me that this was fairly carefully crafted \\- Id as a statement of policy, perhaps to obviate judicial review i 15 l or for some other reason, but I do not -- you know, you have g 3 16 already stated that you regard yourself as bound by it. I i k 17 really question, just as a matter of law, whether statements 8 18 g of policy which speak in words that are not -- the verb is 3 i e 39 g a very interesting one. It says they should.first be pre-t 20 .sented to the Board. It does not say they shall first be r 21 presented to the Board. 22 g 1 don't. regard this as a mandatory -.that is the O 23 g statement of policy -- as a mandatory procedure that all 2 24 Boards must follow, and I'd like to review, just.for the 25 End 4. record, really, where.we are. a

~ 7263 -j l 5-1 O(,/ I We are really considering the tip of the tail of a 2 what's.been a very, very large dog in terms of an issue that 3 has occupied the attention of the parties and the Board over d a period of many weeks of testimony. 5 It seems to me that, given the incomplete nature 6 of the Staff's investigation on matters that are probably 7 very tangential to the contention as formed by the 8 Intervenors, that the Board should consider the documents 9 and the documents alone, without a characterization of those 10 documents by any person. II It is clear that the investigations are incomplete. 12 What the Board hears is necessarily going to be an incomplete 13 assessment of the significance of the documents and of the g-s Id status of the investigation. 15 e I believe that that'is unfair, not only to S 16 l Intervenors, but to the Applicant as well. 8* 17 Characterizations may be made of these documents 8 18 g to the Board which will affect the Board's perception of 3 f 19 evidence - that it will later hear'from the Applicant on matters 20 that are already scheduled. At least there is that possibilit:r. .r E 21 And I just think the basic notions of due process E 22 j keep us from having this sort of ex parte communication by a 23 witness. 24 To you gentlemen, who-are the triers of fact, I 25 think it would be -- another bit of information.that we ought n a n Q,/. 4 s +- w + re r-= r. e + s y

.jl.5-2I 7264 I to have from the Staff which may be'of assistance to the 2 . Board is when are these investigations going to be concluded? 3 When will all this information be ava'ilable to the public? d There is some indication,at least some of the 5 pape'rs the Staff filed, that they.will, in any event, present 6 these investigations to the Licensing Board and there will be 7 an adjudicatory hearing on them. 8 - On behalf of Commonwealth Edison Company, I protest 9 that procedure. 10 I think we are amost done with this quality II assurance issue. These documents and the incomplete 12 investigation should be recorded.by the Board as in the nature 13 of almost supplementing or reopening the record. And the 14 Board ought to consider carefully whether, given the massive 15 testimony which has already been adduced on this record and 16 3 the evidentiary presentations which are going to made this i s I 17 ~ and consider week, whether you ought to go the next step l 8 18 g what -- you know, an in camera session. s 19 I truly believe that'all 2.744 contemplates.is a g-20 subnission of documents. The Board should come to those = l 21 documents without the characterization on them of any party 22 and make a judgment as to whether or not further evidentiary -5 23 s . proceedings are warranted based on what the documents show. 8 24 MR. COLDBERG: Can I. comment on some-of the points 25 made? I' v

{jl,5-3 7265 l f \\,j) _1 JUDGE SMITH: Yes. 2 MR. GOLDBERG: In the first instance, as I l 'ndicated, the Board has requested information concerning 3 i 4 ongoing Staff inspections. 'S The Staff is prepared to provide that information 6 in whatever form, to whatever degree the Board wants, to r .7 enable it to determine the necessity for an ajudicatory 8 session concerning those inspections on their conclusion. 9 We have.never taken the position that the pending 10 inspectionsfmust be the subject of adjudication. That is a 11 decision for the Board to make. 12 We have agreed to provide the Board with informatio n i 13 concerning those inspections despite our maintaining the 14 position that premature, unrestricted' disclosure would 5 ~ compromise those inspections. 1 S i g 16 And I believe that-the affidavit ~of Regional v 17 Director Kepler amply provides the factual substantiation for i ~ 18 the representations that counsel'has made.in his pleading 19 -f ..before this Board and the Appeal Board on the need for l '{ 20 such restrictions. W l-21 And as indicated in our Motion foroReconsideration, t -22 it ihould be' entitled'to great weight as the agency official

j

-5 23 most' knowledgeable about the impact, both infa-general sense,- 24 on'his inspections and inspection program,fand' int a specific-25 sense,- in the. context of the'pending inspection concerning the OQ A T / , - + .-e.ew 6 --9ee d- -e -*e T+ e

7266 ji 5-4 r. A Byron contractor. 2 Now, contrary to the position that Ms. Whicher 3 takes, the allegations under inspection are not known in any further detail than the disclosure statement contained in the 0 Staff direct testimony last May, which provided part of the 6 inspiration for the Board to inquire further -- that is, very 7 broad subject areas. 8 These allegations were made by individuals.other than witnesses who have appeared on behalf -- who have providec. 10 prepared testimony on behalf of the Intervenor, namely I Mr. Hughes. I The details and nature of the these inspections 13 have not been revealed on the public record. And the ~ revelation on the public record would not only have the = effect that Administrator Keppler indicates of potential S 16 compromise, but also have potential for revealing for 17 identities of confidential informants through which means 8 j these allegations were received by the NRC. So, we are talking about allegations exclusive of 0 those of Mr. Hughes that have been the subject of litigation, .l

1 and we are talking about allegations in the approximate number g

22 = 2 of 30, as yet unexpected, whose inspection who is to be =* 23 l divided between the Regional Office of Inspection and 24 Enforcement and the Regional Office of Investigations. 25 Now, with regar/ to the policy statement, I think rh

7267 .jl.5-5 I v the policy statement shows no differentiation between the 2 form in which the information concerning ongoing staff or 01 3 investigations would take -- does not draw a distinction 4 between oral information or documentary information. The 5 Commission coul'd well have drawn that distinction had it 6 wanted to. 7 And had it wanted to leave the provisions in its 8 Code of Federal Regulations in place as sufficient, it could 9 ha've done so. 10 It obviously saw an emergent need to take some 11 policy action to accommodate the increasing conflict in which 12 the public hearing sessions and the necessarily, for a time, 13 nonpublic-inspection processes have proceeded. Id Now, with regard to another point, and that is that 15 the Commission's Rules do not provide for the_ provision of 3 16 3 oral evidence testimony or information -- and I would say it 17 is not evidence unless-the Board' decides that it is going to 18 g. be evidence or form a part of the evidentiary record-of this a ^e W 'g proceeding. 20 a preliminary ' decision that-the. Board would This is l 21 reach'upon being apprised of the information in question. t 22 3 The Staff has cited both jud'icial and NRC 4-23 . precedent for the extension of the law' enforcement 2d investigative. privilege to both or'a1. testimony as well as . 25 - documentary evidence, r v

.jl 5-6' 7268 4 1 \\,/ And I would cite the Board to note 4 of page 4 4 2 of the Wenner case and the Sheridan case, in which the Board 3 indicated that the law enforcement investigator privilege d is predicated on harm to law enforcement efforts which would 5 _ accrue from public disclosure of investigatory files and 6 related facts, regardless of what form those facts take. 7 And in the Wenner case, those facts extended to 8 the provision of in camera testimonial information. 9 And I would cite the Comanche Peak and South Texas 10 cases for the provision of both testimonial and documentary 11 material in camera in the context of the interrelated enforce-12 ment privilege. 13 "'N JUDGE SMITH: I think you're going to address the s,_/ 14 point that Ms. Whicher is.certain to make, and that-is that 15 j you're not addressing ex parte in camera. MR. GOLDBERG: In Comanche Peak -- and I' don't have 17 the case before me -- the Board first-decided to have an ol 18 3 in camera session with the parties to provide information 19 [ concerning the identity of informers. 20 On Staff appeal, the Appeal Board decided that t 2 21 y notwithstanding the protective -- excuseLme, the protective l 22 2 measures available in the form of nondisclosure affidavits, b 23 'f that any non-NRC dissemination of that information would have 24 the real and chilling effect of depriving the NRC Inspection 25 Offices of information in the form of confidential-information , n m , ~

i ..j l 5-7 7269 I 7 1 1 and that. nondisclosure and protective orders were not 2 sufficient to preserve the fairly important imformer's 3 privilege. 4 I'm not sure if that~ South Texas or Comanche was 5 Peak, but it is'one of those two cases.that dealt with the 6 informer's privilege. I j 7 The law enforcement privilege has not received a 1 8 great deal of NRC adjudicatory attention, because it has i 9 become one of emerging importance as the NRC adjudications and j 10 NRC inspection programs find themselves in increasing

end 5 11 collateral movement.

't 12 13 I i 14 [ 15 0* g 16 V i 17 O 18 i i 19 i* Nj 20 E g 21 r g 22 e 8* i 24 '25 4 O. i i .i l i i i .m ...,-v~, ....--,.v. ..-m....v. ,,,...L r ~, I

AR6rgl 7270 ) 1 So there is an example of an NRC adjudication in 2 which the Appeal Board decided that exclusive Board consider-3 ation of that information but non-party consideration of that 4 information was appropriate. And, I might add that we have 5 to get back to the crucial matter which is not so much the 6 precedent that has existed, but the policy which the Commissic.n 7 announced this past week, which is to be followed, which 8 explicitly provides for in camera Board-exclusive receipt of 9 information concerning ongoing inspections. In this, a 10 policy statement, some parties may have disagreement and they 11 may not like it, but the Staff is bound to follow it as it is 12 in this Board and and other appellate boards junior to the 13 Commission. ( ') N-14 JUDGE SMITH: There is a point that was not addressed 15 by Mr. Miller and I think that you have raised in your most 0 16 recent remark and that is, a policy statement refers to the v 8* 17 obligations of the Comnission components, the Staff and the 8 18 Office of Investigations as well as the adjudicatory, boards. g 2 { 19 Is there any question in your mind that the policy y 20 statement gives contrary to regulation, the Staff the right E y 21 to go directly to the Commission in the event that we require i 22 full disclosure to other parties? g f 23 MR. MILLER: It's the .une word, "should" that 8 24 appears with respect to the direct review by the Commission, 25 and I don't understand why that word was used. The word ,m ' )

AR6rg2 7271 (m (v) i "shall" fits just as nicely in this paragraph. 2 JUDGE SMITH: Yes. 3 MR. MILLER: And -- 4 JUDGE SMITH: It does. And this has been a source 5 of concern to the Board, too. 6 MR. MILLER: I really believe that if there had been 7 an intention to make such a fundamental change in the way 8 evidence is received by fact-finding boards or licensing 9 boards, we would have more than a statement of policy, we 10 would have immediately effective regulation that could be 11 reviewed appropriately, and it would presumably be in languagc 12 that gave the boards and the Staff a little more guidance thar 13 thjs one has. ( i A/ 14 MR. GOLDBERG: Well, I view that as in somewhat of 15 the nature of a collateral attack on a Commission policy 3 i 16 statement which I think we have to take as binding absent its v b 17 replacement by further guidance. ol 18 JUDGE SMITH: We also have to give the author of 1 19 this policy statement the benefit of knowing the difference 3 20 between "should" and "shall." g r E 21 MR. HICKEY: Your Honor, I know I'm not a party to I 22 this proceeding, but may I just say something, though, that g = 23 might be helpful to you and the Staff and that is that the 8s 24 gentlemen and women who write policy in Washington don't have 25 to move when the place blows. l g ( .) x_- 4

-AR6rg3

7272 a

) 1 JUDGE SMITH: Your remarks are irrelevant to our 2 session this afternoon. j 3 MR. HICKEY: I know, but this is true, Your Honor. 4 I'm saying that the policy Commission, as has been pointed 5 out by Mr. Miller and Ms. Whicher both, should take into 6 consideration other factors than the fact that they sit and 7 write policy. 8 JUDGE SMITH; Well, I would like Mr. Hickey, for you 9 to maybe advise us as to what you think we should do when we i 10 have become aware that there are investigations going on whict. 11 the investigators say are important to public health and { 12 safety to the citizens ~ o.f Rockford,'and you are trying to 4 i-13 enjoin us from in q uir in g into them. L Id MR. HICKEY: Your Honor, may I -- 15 JUDGE SMITH: Uhat should we do? I want your advice. S g to MR. HICKEY: May I say this? While we are interestec v 8" 17 in what the public knows and does in the event something 8 18 g happens, it is the obligation of Staff, it is everyone's a e 19 g obligation to try to cooperate and find out what is the 20 safest procedure. I will agree with Your Honors, that.you 21 are experts and you should sit and decide whether orinot t 22 ~ ,g something should be admitted.into evidence or not. I agree 8 23 that Your' Honors should make the decisions. I don't think g i 2 24 that somebody writing policy who does not know the difference 25 between the word "shall" and "should" should tell all of us V I l r .~,,,,, n

AR6rg4 7273 (p_) including the public and should tell you what to do. I 2 JUDGE SMITH: I'm asking for your advice, Mr. Hickey, 3 because I know that you are deeply concerned about this problem. You've gone to a lot of effort. 5 MR. HICKEY: That's right. 6 JUDGE SMITH: But we do have competing considerations 7 We have a believable representation a public disclosure of 8 the bases for these investigations will frustrate the invest-- 9 igation. 10 On the other hand, we have an interest and a desire I' to inquire i~n t o these inquiries. Where does the public in-12 terest lie? What is your advice to us, sir? Shall we ignore 13 r~s them or shall we frustrate the investigations and reveal them1 l I s / 14 MR. HICKEY: You Honors, you have asked for advice. 15 e I think, and I have always taken this position and I did in a h Chicago yesterday, that you should hear -- I may not agree -- 16 17 this may not be in agreement with all the parties -- but, 8 18 2 anyway, that you should hear what the Staff has to say and a e I9 3 then decide whether or not the public should know. I 0 j JUDGE SMITH: All right. Let me put the same form G 21 l of the question to you, Ms. Whicher. 22 3 Let's take your position that we can examine only { 23 2 ~~~ parte without explanation and nothing else, documents ex 24 only documents. We are only pursuing this because it is your 25 contention, not ours. If we find that the documents do not A / ))

AR6rg5 7274 b f3 ( J-1 in themselves support further evidentiary proceeding, is that 2 the end of it? Should we not inquire if we have suspicions 3 that a document may lead someplace else? Do you want us to 4 stop there? i 5 This is your contention. You give us advice. Shall 6 we stop or not? Shall we proceed with your contention? 7 MS. WHICHER: Yes, I suggest you proceed with my 8 contention. I indeed urge you to. Your Honors, that inquiry 9 should not be done ex parte. That is the point. I hesitate 10 to say these words: it should be done in camera. 11 As the Board knows, my position is, with respect to 12 in camera proceedings, they must comply with the Sunshine Act. -13 That is a legal issue for the United States District Court. n's/ 14 What 1 object to is the ex parte nature. 15 JUDGE SMITH: All right. Let's assume -- do you have 16 a fall-back position? Let's assume that we feel ourselves 4, 6 2 17 bound at least the guidance that the Commission.has given us, I 8 18 that we should listen to the Staff before we require an i g n [ { 19 cvidentiary proceeding. I 20 Then, say we have made up our mind to do that.

Then, g.

t E 2 ~21 should we follow your advice all.the way and not ask questions E 22 g-about the significance cf documents?

- 3 23 MS. WHICHER

Your Honor, it's the ex parte nature g 2-24 again that I object to. I think if the Stafffhas information 25 to presen't it-is very1possible and apparently-something-that

AR6rg6. 7275 A _f. I has not even been explored, to frame a protective order so as s 4 2 not to frustrate any legitimate purposes of the Staff. 3 JUDGE SMITH: You're evading my question. 4 MS. WHICHER: Then perhaps I don't understand it, 5 I'm'sorry. 6 JUDGE SMITH: Assume that you and Mr. Miller have 7 lost in_the argument that we can only inquire into documents 8 and that we must give the Staff an opportunity to come to us 9 and explain ex parte why their ongoing investigations should 10 be not the subject of even an in camera protective order type 11 of hearing..- Assume that we comply with the Commissions's 12 - guidance and we' decided that should be the case. Do you want i 13 us then to-fail to ask questions? O 14 MS. WHICHER: Oh, no. Your Honor, I'm not making a 4 1 15 distinction between hearing. live testimony, the Board hearing S 11"*

- S'i" "y.

I don't see that there is any difference 5' i l 17 between that and-being..able to: question the witnesses. I am d-U 18 not concerned about that. I think once you make us your e 19 mind'that you can hear live testimony, I think that not to 20 allow you to question the witnesses would be inappropriate g t -l 21 in that situation. I g 22 JUDGE SMITH: I mean in an-ex' parte-presen'tation? 8 ~ 23 MS. WHICHER: Yes, that's'what I'm talking about. g 24 I mean I can't imagine if it were otherwise,-the Staff 25 could submit an affidavit, correct? LO I . - - ~.. -

7276 -AR6rg7 () 1 JUDGE SMITH: Well, I guess I don't understand you. 2 MS. WHICHER: I'm saying if a Witness really had to 3 make an ex parte in camera presentation to you, you were not 4 allowed to ask questions, that the same thing could be accom-5 plished through an afficavit, 'Apparently there is-some reason 6 why that cannot be done. 7 MR. GOLDBERG: Well, I don't know if that's an 8 invitation for a comment. We will provide the information in 9 whatever form the Board wants. The Board had wanted present 10 public testimony. We will provide present Board-exclusive 11 information. We had indicated all along that at the conclu-12 sion of our inspection, we'll provide whatever testimony the 13 Board deems necessary to conclude the case. This could advance 14 that date if the Board were to decide that it doesn't warrant 15 evidentiary consideration or it does warrant evidentiary con-5j 16 sideration. 17 In that latter instance, it's going to necessarily 18 -have to. await the outcome of the Staff inspection anyway, a 19 because all we can do,right now is provide you details about g t h 20 the allegations and their status. I 2 21 Obviously, any evidentiary session on the substantive r t 22 meris of the allegations is going-to have to.necessarily g-8 23 await the. outcome of the Staff inspection, and to answer Mr. g g. 24 Miller's point, I think we indicated in our prepared testi-25 mony for this week, that we expect to conclude that inspec'tior. 5d D

------,-----.-u--

--.----a.---u

AR6rg8 7277 .A ( ) I by December. v 2 So, we're trying to accommodate competing considera-3 tions here and do it in a way we feel most consistent with 4 precedent, policy and the needs of this particular case. 5 JUDGE S M ITil : Mr. Goldberg, are you able, are you 6 prepared to explain to the Board in public session why you 7 don't believe a protective order and an affidavit of non-8 disclosure affords sufficient protection to the Staff, why 9 it does not? 10 MR. GOLDBERG: Who would be the recipients of the 11 information under that arrangement? 12 JUDGE dMITH: As aluays, that is always subject 13 to argument, discussion and Board order. I \\ _./ 14 MR. GOLDBERG: Well, who would be the recipients of 15 the information on the protective order? Legal representa-

I 16 tives?

A legal representative of each party, a nonlegal 8 17 representative of each party? = 8 18 JUDGE SMITH: I don't know. We would hear your g a { 19 argument. Traditionally you have from the utility, for 20 example, a lawyer and a person informed of the facts who g l 21 could or could not be a lawyer, it doesn't matter. I 22 MR. GOLDBERG: It's necessarily going.to depend on g f 23 how far-reaching the information is that the Board wants 8a 24 about these matters. We have taken the position that we 25 do not favor premature' disclosure beyond the investigative A f ) x_;

.~, AR6rg9 5 7278 i () 1 of information because notwithstanding even the best of l' 2 intentions - - - and this Board has shown that with regard to i 3 its protection of information presented in a confidential 4 form -- the information could leak out to persons who should 5 not-have that information, and if the very frustrating.effect 6 that the regional administrator has indicated it would have, 7 if those parties were'to become privy to that-information. 4 8 JUDGE SMITH: In your original papers,.you suggested 9 it could happen inadvertently or otherwise. You are not 10 making a'represenation to the Board today'that you have a 11 legitimate fear that the persons who-might be privy tradi-12 tionally to protected information might deliberately reveal-13 it? q 14 MR. GOLDBERG: No, I am not making that representa-15 tion, nor am I making the represenation that.at the conclusior 5 I 16 of the exclusive, in camera receipt of this information, that g 17 the Staff may not regard it as appropriate or necessary.if 8 18 the' Board decides to impart that-information to, let's say, e 3 { 19 a legal and a nonlegal representative of the_ parties, but I 20 think the Staff investigative offices have azvery real concerr g - 21 with restricting _ so far as possible the dissemination of in-22 . g-formation containing ongoing inspections. And every additional - 8 23 g part of it.becomes privy to that information. a 0 24 There are additional ~and1quantifiable but necessarily End 6. 25 incremental. risks. 6-4 4 e r es---Wv ee t yg -we c. +--v+e y e;*p y es yc-vg - g

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~ I cjl 7-1 7279 %) 1 Well, let me say, also, it would seem also to be l 2 premature to impart that information to non-NRC sources, l 3 namely non-NRC Staff, non-NRC Licensing Board sources 4 d unnecessarily. 5 If the Board can decide on receipt of that 6 information, then it is not necessary to its decision and 7 not necessary for an evidentiary hearing that-we would have 8 unnecessarily invited the risk of disclosure of information 9 that did not have to be. But I'm not saying that we could not i 10 at the conclusion of the procedure, authorize and,'in fact, I II would say, commend it, if not mandate it, by the Commission 12 -- I think we ought to follow that in the first instance. 13 -~. And then,,in the second instance, I th' ink we can ~~' 14 -face the question of how we need-to have that information and 15 under what provisions. 3 S g 16 Let me say further, for-example, the mere receipt k* I7 of information details by a legal and nonlegalfrepresentative 18 f of the-parties, without any ability to do anything ~ about it, ae l9 it seems to me doesn't really serve any valid' adjudicatory %j 20 purpose. Because if the Board decides'toftry these11ssues at r 2 21" the conclusion of the Staff inspection, we can have. full l 22 i disclosure and full discovery and full cross-examination.' 8, 23 And, in fact..it may even put representatives"of 24 the company'in the position of being privy.to information 25 .about potentia 1' safety problems that theyfare1 barred, by. ,v". 9

-.r~ .j l 7-2~ 7280 [. i - 1 virtue of protective order, from doing anything to rectify. s 2 'And it may also create ethical problems for counsel, being 3 privy.to that information and being able to do nothing to 4 - rectify it. 5 And we would certainly require'that if there were 6 a party-exlusive disclosure, that.that party not contain a 7 representative of the company under inspection, as a first 8 point. I think we tried to -- 9 JUDGE SMITH: "The company under inspection" -- l 10 you mean the contractor? 11 MR. GOLDBERG: Yes. i l 12 -JUDGE SMITH: They are.not parties under the 13 proceeding. They have no. rights. 14 MR. GOLDBERG: I tried to give you some of the j ] 15 factors that.would entail when and.if we-come to t h..t L po in t. h g 16 MR. MILLER: Judge Smith, could I just be heard -{ 17 briefly? 8 g - 18 This, in part, picks up ont what Mr. Goldberg said. 4 s o 19 It seems to me that we may all'beLproceeding'as'if this was

aI 4

j 20 the last opportunity for the Board and parties to cons'ider t l 21 these investigations and the documents and other circumstances 3 22-g surrounding them. 5 .I don't think t h a t ' s' t h e ' c'a s e. I think that if 23 24 the procedure;I suggest.is,fo11 owed 1-- and that-is the Board - 25 receives.the documents only and considers them, you will'have t +

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7281 jl 7-3 i s_) I an opportunity to make a determination, albeit preliminary, 2 that the documents are material, relevant, and necessary to 3 the decision in the case; that they are not or it's indeter-4 minant at this point in time. 5 If you can decide on the basis of the documents 6 alone that further evidentiary proceedings are warranted now, 7 so be it; we'll fight out the question of the in camera 8 proceedings either in court or here -- or probably both 9 places. And we'll proceed on some sort of basis. 10 If you decide that nothing looks very important, 11 presumably that would be the end of it until the Staff's 12 investigation was concluded. And the same thing for the I3 documents that might fall in the indeterminant category. Cs\\-<) 3d As Mr. Goldberg points out, we' won't be able to. 15 have an evidentiary session on this that's meaningful until 0 g 16 the Staff has concluded its investigation, at which point in v 8* 17 time promising documents may be shown to be-immaterial; or 8 18 g conversely, previously immaterial documemnts may be shown to 3 h l9 have some significance. h 20 As much as I would like, on behalf of Commonwealth g 21 Edison Company, to say that we ought to shut shut'off right W 22 .,2 now, I think that it.would always be open to the parties or a { 23 -to ~the Board, on its own motion, if'an investigation ~ that was 2 24 concluded in October of November or December showed a serious 25 safety problem that~was significant, that we be back in o i I wJ l l-

ji-7-4 7282 ,m I hearings considering it on an open record, with all the 2 documents available to all the parties, I think that, in part. 3 we may te creating a situation that is not really necessary, d As I have thought this t h r o'u g h, even should the 5 Board decide to have an evidentiary session on this imcomplete 6 investigations, my guess is that what you would get from the 7 . Staff is a status report. 8 JUDGE SMITH: Yes, that's right. That's all we 9 expected. We expected more than that, a status report, and to possibly the nature of the allegation and determination of II whether we believed there is further inquiry indicated on 12 that. 13 g Don't forget, one of the reasons for reopening this 14 is we don't know anything about these investigations, and we 15 want to know something about them. 0 16 And actually, what we wanted was a status report II and the nature of the allegations. 18 1 MR. MILLER: No, sir. I was talking about any 3 I' evidentiary hearing that might ultimately flow from your j 20 ex parte consideration of these documents or, if you so rule, 21 an ex parte oral submission by the Staff. 22 l Even should we.get to a full-fledged evidentiary 8 23 g. hearing, under whatever protection seems appropriate, the 24 .,g,g ygy.re going to be able to get on.the public record at 25 that point in t'ime..I believe, is a status report. rx v i ~ w

i jl 7-5 7283 i I We will not know. And from what the Staff has said, 2 will probably be barred from investigating ourselves by we 3 the quasi-judicial means, discovery depositions and so on, d as to what is going on with these investigations until the i 5 Staff has concluded its work. 6 JUDGE SMITH: Now, the Board ' proposed this idea 7 of the Staff coming to us in camera ex parte in an effort 8 to accommodate the dispute between the Intervenors and the Applicant. 10 Neither the Intervenors nor the. Applicant want us zu 3 to do it. 12 ge m sure you've considered the consequences, 13 fs Mr. Miller -- you have alluded to them -- that we wait, just N_) 14 put the whole thing.aside and wait. According to the prefiled, 15 3 public, written testimony of the Staff ~, it may.be January of. G 16 '84 -- or perhaps'even later -- that they complete these 5 l I7 investigat' ions. 18 g The last advice you have to us is that you would a 9 like to load fuel'in December of '83, but you're aware of the j 20 consequences of that. r 1 21 MR. MILLER: Judge Smith, that's why'I want to get 22 l some resolution now. And I believe-that consideration of the -8 23 -documents,which, as Ms. Whicher.:said, witnesses' ' testimony may - 24

be somevh I different, depending on the state of knowledge at 25 a particular time'and the previous examination that they've.

N, ] l t

J1 7-6 7284 s_) I undergone on an issue, that the documents are presumably 2 preexisting and they say what they say. 3 I don't know -- and perhaps Mr. Goldberg could 4 enlighten us as to whether or not, among the documents to 5 be submitted to you, are written allegations by various 6 individuals -- in which case, you would certainly have an 7 idea of what the thrust of the NRC's investigation was and 8 what documents they have in hand to further the investigation 9 And you may be able to dismiss, out of hand, all 10 29 of the remaining ~ incomplete investigations. II That's why I'd like you to go forward now with at 12 least the document examination, as I believe the proper show-i 13 ing has been made under 2.744. ,s 14 There is nothing I could do -- you say I have to 15 take the consequences, but this Board has stated -- and I Q 16 know that it's absolutely correct that you have an 8 17 obligation to inquire into these matters. And that has been 8 l 18 confirmed by the Commission's policy statement. g 1 x 19 And if the consequences fall on the Applicant, } 20 well, that's going to be too bad. But I cannot'think of any t l 21 way around it at this point in time. E 22 .3 JUDGE SMITH: Or the consequences-could, fall on 8 23 the Intervenors, too. 1 24 It could very well be that a reading of the 25 documents without the textural information orJexplanation u(D 1 m-. 9 y

ji 7-7 7285 i I would indicate nothing to us to require further hearings. 2 MS. WHICHER: Judge Smith, it is the ex parte 3 nature that I object to. 4 JUDGE SMITH: I understand that; right. It may 5 very'well be, since we know nothing about these investigations 6 now -- and we may look at the documents which underlie these 7 investigations -- we may decide to close up shop and go home 4 8 and wait until the end of the investigations and the reports 9 come in and then see what happens. 10 MS. WHICHER: Or you may decide that you need more 11 information from the Staff and from OI, in which case, under 12 certain circumstances -- and this may very well be one -- an 13 in camera, but not ex parte, proceeding can be had. Id (Board conferring.) 15 JUDGE SMITH: Any additional arguments to be made? 4 to g I think we should take a 15-minute recess. I 17 MS. WHICHER: I forgot to ask Mr. Goldberg a 8 18 g question. s ~ 19 What would be your position, Mr. Goldberg, if' we 20 g had an ex parte in camera proceeding in which we did nothing

l 21 except receive documents?

I 22 - l MR. GOLDBERG: Judge, that's at your discretion. 8 23 We will give you whatever information about the' matters in g - s 24 whatever form and to whatever extent you want. If it would 25 extend.to documents, fine. j'~) -l -Y 1 0 v s

7286 ji 7-8 1 '(,,/ 1 Now, let me say on documents, as I indicated in 2 my August 1 letter to the other counsel -- and this, in part, 3 goes to a comment Mr. Miller maid beyond those documents d identified in my letter as being withheld on privilege 5 grodnds, there are not other documents pertaining to the 6 incomplete inspections. Material has been expurgated from 7 documents we have provided. 8 That material includes a description of 9 uninvestigated allegations, without elaboration. It also 10 contains the identify of confidential informants. So that 11 beyond the d6cuments that the parties presently have, either 12 in whole or in expurgated form, and otherwise described in 13 y the August I letter, there is not remaining any documents ( ) \\/ Id pertaining to uninspected allegations. 15 MR. MILLER: Does that include 01, the investiga-G 16 g tions being conducted by OI as well? 8 17 MR. GOLDBERG: The Staff has indicated it has 8 18 o in its possession one document pertaining to a matter 3 19 referred to OI. And we can supply the Board with that %j 20 document, which would describe more fully the allegation I 21 g under investigation by OI, which investigation is referred E 22 g to in general terms in our direct testimony as an allegation 23 received on or about March 10th of 1983. 24 So that is the only documentary material that the 25 Staff has in its possession pertaining to an OI investigation. (~ w

.j l 7-9 7287 m .g_) 1 Staff also knows something about those allegationa, 2 having referred most, if not all, of those allegations to 01. \\ 3 And as I indicated, OI is quite prepared to provide 4 the same degree of.information about its investigations to i 5 the Board exclusively in camera, as the Staff is prepared to I 6 to do. 7 JUDGE COLE: Orally? 8 MR. GOLDBERG: Orally or documentary. Although I 9 do not know now that they have any documentary material, I 10 do know that-their investigation is progress. 11 So, the Staff could provide oral information 12 concerning the allegations as of their receipt by the 13 ~s region and referral by OI. OI would have to speak to the 14 nature and progress and prospects of their investigation. 15 MS. WHICHER: You're not representing that OI has Q 16 no documents which you do not have? g 17 MR. GOLDBERG: I know of no other documents. 8 18 g The letter from OI Director Hayes to this Board l 19 on July 21 or 22 identifies no further documents. And I %j 20 don't know what, if any, documents have been assembled by { 21 that office in the interim. t 22 -5 MS..wHICHER: we don't know. 5 23 MR. GOLDBERG: We don't know. But we are not in i 24 possession of documents, other than the one I alluded to, that / 25 form a part of OI's investigation, nor would we have access to /; N)

.. j i 7' 7288 m k,) I them,.because they closely guard their documentary material. 2 JUDGE SMITH: How about comp le t ed in t e rview 3 statements? 4 MR. GOLDBERG: Then, whatever they indicate is in 5 their possession in that letter is in their possession, and 6 perhape they have assembled other material; but we do not have 7 that material. I am certain that would be among the material 8 they would produce for the Board's review. 9 JUDGE SMITH: This, incidentally, is different 10 than the Staff's understanding expressed in the Motion for 11 Reconsideration of August 5. 12 MR. GOLDBERG: In what way, Judge? 13 JUDGE SMITH: Where you stated that somewhere in 14 there -- 15 MR. GOLDBERG: In our note, we indicated we had 16 been requested not to divulge information concerning their-17 investigation unless the Board ordered us. 18 JUDCE SMITH: That's not what it said. It says: 19 You have been requested not to reveal any'information, and a 20 you will not reveal any information unless we order you. gr E 21 MR. GOLDBERG: Yes, that's correct. I- .22 ' JUDGE SMITH: Not "them," "you." g 5 23 MR. GOLDBERG: That's correct. s 8' 24 JUDGE SMITH: I'm tellingLyou we have information. 25' The information-is that the allegations were first made to the -s s_/

ji 7-11 72Ro f% (ms) 1 Region. So, there's information in the heads of the 2 individual recipients and in one instance a document. We've 3 been asked by that office not to divulge the information, but d we will abide by a Board directive requiring that disclosure 5 in camera if the Board wants. 6 But I have been further advised since the 7 submission of this motion that 01 representatives, themselves, 8 will provide that information, which would alleviate the need 9 to obtain it from the Staff. H) But unless 01 appears to seek the protection of that II inf6rmation from Staff disclosure to the Board exclusively 12 in camera or.the Board says, "All right, we're not interested, " i 13 -~e 7 we will give you that information. 7k_) 14 15 g 16 4 17 8 18 o 5 19 5 ,j 20 r l. 21 L 22 g f 23

o. '

-24 25 l O m b 4 r7- ~, -r

~ AR8rgl 7290 1 -JUDGE SMITH: You won't be representing OI in this 2 proceeding? 3 MR. COLDBERG: No, and I don't know that they'll be d represented by counsel. It was my impression that they would 4 5 be represented by investigators and perhaps the regional 6 investigator. ~ 7 JUDGE' SMITH: They were aware, of course, that this 8 hearing was scheduled for today, for this1 afternoon? 9 MR. GOLDBERG: Yes, I conferred with him, and they 10 did discuss the prospects of an appearance but after further 11 conference-and not knowing what would transpire today and 12 not wanting-to engage in the kind'of elaborate' debate that 4 13 we have necessarily.had on the motion, they just authorized me to represent that if the Board' accepted the. principal in 14 15 our motion that they would appear on a scheduled date to give h- - :q 16 the information, but they did not want to engage in any other i 17 colloquy. 18 g (Recess.) x e. 39 g JUDGE SMITH: The Board is ready to proceed. Our tj 20 decision is that we will excuse all of the parties for'the-e l 21 rest of the afternoon except the NRC Staff, who will present r. 22-3 to us' privately in camera, ex parte documents and oral 5 23 g. presentations. consistent with their motion. It will be on 2 24 the record. 25 Among the considerations that led us to this result. O-G

7291 AR8rg2 ,c \\ (,) I are the following. 2 One is, we are mindful that the joint intervenors in 3 this case did not in the first instance seek this information. 4 They sought only to have certain allegations of John Hughes 5 received into evidence. We do not believe that the intervenor s 6 will be prejudiced by this approach. 7 While we recognize that once the Board decided to 8 make the inquiry, the intervenors ratified it.Thr intervenors 9 will not be prejudiced in any way that we can see. A record 10 will be kept of it. We will not go off the record in the 11 in camera, ex parte session, and any prejudicial error that might 12 arise, the intervsnors will be able to demonstrate. During 13 the.in camera session, we will seek a greater justification, ,s l ) k' 14 if any exists, for the need for proceeding without the par-15 ticipation of the parties. We will dwell on that. We will O g 16 also consider as the regulation requires, whether there is v 8* s7 privilege and we will also seek information as to the impact 8 16 of the information on the hearing which is not necessarily a 3 ( 19 relevant at this stage of the proceeding. tj 20 We are aware that the applicant approaches this Ig-21 approach and asserts it is willing to take all of the risks i 22 of any delay if we wait until the investigations are completec g 23 It may very well be, and I think however there might be R 24 difficulty if the plant sits idle waiting for this investiga-25 tion to be completed and we decide it is then necessary to ,m v'? i

AR8tg3 7292 (_ ) I reopen the record together with the prefiled testimony, 2 discovery, perhaps prpposed findings ar.a everything else. 3 Notwithstanding that, even assuming that the Appli-d cant is willing to take that risk, t h'e r e is more involved and 5 that is the resources of the Commission and resources of this 6 Board and the public interest in proceeding with dispatch and 7 having this case resolved. 8 We are very much aware of the Applicant's arguments 9 that the policy statement is couched in very uncertain terms 10 and it seems to be advisory and it is. II It says "should" where we're told of the actions that 12 should be taken and it also introduces the two operative 13 73 paragraphs with this phrase (quote), "Until the task force Id reports and the Commission acts on its recommendations, the 15 Commission's policy in individual cases would be as follows" 16 (end quote). s I7 So, the policy guidance -- I believe we have to 8 18 R accept your arguments, Mr. Miller -- and are not binding on s the Board. At this time, however, they serve another purposei l9 Q f 20 and that is they are permissive. E g 21 And there is a provision in the Commission's regula-a 22 3 tions with which we are all familiar, 2.758, which authorizes = 23 upon the certification of the presiding officer, the Commis-2 24 sion to waive regulations for a particular need. 25 In this instance, no certification was made by the LJ

~ AR6cg4 7293 ~\\ (s/ I presiding officer, but certainly the Commission has a right 2 on its own to perceive that there are circumstances extant 3 which requires a waiver temporarily of the regulations, and that's what we see the Commission has done here. 5 The only basis that we can reconcile th e Commission's 6 action, and we think it's a rational basis, the Commission 7 recited in the prologue to its policy statement that recent 8 developments of several ongoing licensing proceedings re-1 quired the Commission to address how the Staff, Office of 10 Invesigation and these Boards treat information regarding II pending insp'ections and investigation. So, we regard that i l 12 as somewhat of a sua sponte Commission action under 2.758, I3 waiving for.this case the provision of 2.744, which do relate ,\\_ 14 to documents and the ex parte consideration, that is, however e valid it may be, is our legal justification. S 4 16 3 Recently, as a result of this case, we received com-17 munications on the letterhead of Applicant's law firm for 8 18 { Mr. Callo concerning the contract with Tayloe Associates. the reporting firm. We have inquired during the recess and 20 I we understand that Mr.'Gallo represent 5 the reporting firm; E l therefore, we are asking you, Mr. Miller, on behalf of your a 22 - firm, to institute the necessary administrative controls to 2 23 l assure-that-_the-client-attorney relationship between the ~ ' 24 reporter here and your firm does not violate the in~ camera, -25 i ex parte nature-of the proceeding we are about to.have. j - ) ~ i

7294 AR8rg5 'N 1 MR. MILLER: Yes, sir, I will undertake to do that. 2 JUDGE SMITH: Is that satisfactory with you, Mr. 3 Goldberg, that representation and handling of that? 4 MR. GOLDBERG: Yes, Judge, I would just note, as I 5 indicated earlier, that 01 is similarly prepared to provide 2 6 information to the Board. 7 I did not' anticipate that that session would take 8 place today, although they are available on 24-hour notice. 9 We are prepared to proceed today. Would you -- j 10 JUDGE SMITH: Yes, we would plan to excuse all of Il the parties and just proceed immediately. Now this could 12 mean that at the end of today or possibly tomorrow, we would 13 make a determination, possibly that we would have an ex parte 7-Id conference of the parties on a future -- I don't mean ex partc 15 conference, I mean in camera conference of the parties on S g -16 future evidentiary presentations in camera and protective 4 8 37 order. And that is a possibility. And I would like to see 8 18 if that happens, to have it happen this week. g 3 e 19 g rherefore, we would announce at the beginning of the -j 20 session if there's going to be any type o f. _i _n camera dis- = 2 21 cussion and try for the parties to renew their TRO efforts. I 22 g MR. GOLDBERG: In that eventuality,'then, prehaps 8 23 OI ought to be present to participate in this.ex; parte con-2 24 forence and I will confess taking some responsibility for: 4 25 not anticipating that that session would take place today G m + s c s

AR8rg6 7295 x -(,,) 1 and so, advising them and advising them to be available on J 2 short notice. i 3 JUDGE SMITH: The difficulty is, Mr. Goldberg, that 4 there apparently will be two discrete aspects between what 5 you have pending and what they have pending. Even if the 6 Commission's policy statement directs OI to proceed in a 7 certain manner, it does not give this Board any jurisdiction 8 over OI. They may appear or not appear, I don't know, we 9 cannot control them. 10 The most recent letter I have indicates that they 11 will not cooperate and Mr. Kepler's affidavit says that they 12 will not cooperate. 13 MR. GOLDBERG: Well, my telephone conversation with 14 them indicates that they will cooperate to the extent thEt 15 I indicated and t' hat that cooperation will be coincident with 16 the Staff's offer. The prior letter -- and'I'm sure you can v, 17 appreciate -- well, I'm asking you to appreciate the diffi-la culty in speaking for that office but upon receipt of~the ~ g 3 .{ 19 Commission policy statement, they have modified their positico t j 20 and will join in the same type of disclosure that the Staff W l 21 has volunteered. g 22 JUDGE SMITH: Is there any-particular reason why the e 5, 23 two sessions should be combined? I would imagine that Region 8' 24 III Office of Inspection and Enforcement could do their thing 25 and have a discussion.of that at the end of-this week. O U

AR8rg7 7296 4 k ) 1 OI could perhaps, back in Maryland, have an ex parte 2 presentation but at least we want to get moving on it. 3 MR. GOLDBERG: I don't know whether to ask for an 4 opportunity to confer or a brief recess, but I'd like to con-5 fer with 01 on that. 6 JUDGE SMITH: If we do that necessarily it means that 7 we will not begin the procedures necessary to receive evidence 8 on uncompleted investigations this wee'k. It will mean another 9 trip, another delay. 10: MR. GOLDBERG: If what? I'm saying that OI is 11 available to appear this week. 12 JUDGE SMITH: Yes, but we have Judge Nordberg sitting 13 in Chicago telling us that if we try to proceed with any ex 14 parte discussion that the judges of this district will look IS unkindly upon the Board, and I think we should be cognizant Sa 16 of~that. And the only way we can have-any parties discussion 4 S 1:7 of it is to have your presentation this afternoon. 18 MR. GOLDBERG: We are prepared to-make a presenta- { 19 tion this afternoon, but perhaps OI's presentation will also k j 20 b'e a factor in -- c i l 21 JUDGE SMITH: In your presentation? I 22 MR. GOLDBERG: I'd like to confer with that office g 8 23 -because-there are matters underinvestigation by^that office,_ 8~ -24

and make sure they. understand we will be imparting informa-25 tion'concerning that.

,-s g 1 l (,/ t. +

= AR$rg8 7297 1 As I have indicated on the phone, and they have in-2 dicated their willingness to appear personally to impart t'e a t 3 information this week, and~we're prepared to go forward. I d want to confer with that office and if it's going to be in-5 fluential in the decisional process, the Board is going to 4 6 undergo about whether to make this the subject of investiga-7 t i o n ', maybe you should hear the complete story. 8 JUDGE SMITH: Are we being perhaps unrealistic in 9 hoping that we could have the beginning of any possible j 10 g camera, party participation discussion of future.evidenti-a 11 ary presentations this week? Is that being unrealistic? 12 HR. GOLDBERG: I don't know. I don't think it's ~ 13 beyond the realm of possibility. I t would obviously depend 34 on the outcome of our exclusive session and what kind of IS information the Board' proposes to impart and under what k'ind 7 16 of restrictions and what the nature of that session is going 8 37' ..t o be, so we could formulate our position at that time. '8 18 JUDGE SMITH: Well, with your representation, I o 4 E '9 guess we'll have to do it that way. If it's 'n o t realistic, 't j 20 I thought we'd just begin with the testimony that's already } 21 prepared and p'ut the matter off. W. 22 MR. GOLDBERG: I don't know if7it's realistic:or 8 23 .g unrealistic, a 24 JUDGE-SMITH: All.right. Why don't we take a break 25 and you can communicate with them.and.see what-they want to do \\ r m y -c 3 -4 g r.h 'g --p-w e 3ye g-A*w-g M +- w

p

ARSrg9 l 1 MR. GOLDBERG: Okay. End 9. 2 (Recess.) 3 4 5 6 7 8 9 10 11 12 13 14 15 ~. b 17 8 18 e m l 19 ij 20 21 = 22 e 23 s' 24 25 O

.jlL9-1 ' 7299 I \\s / I JUDGE SMITH: Mr. Goldberg. 2 MR. GOLDBERG: May I apologize, first, for the 3 delay. d In conference with OI repre'sentatives, they have 5 expr'essed the preference that they be present for the entirety 6 of the exclusive Board review of information concerning 7 uninspected allegations. 8 They can be present to commence such a session 9 tomorrow afternoon. 10 However, the Staff can otherwise proceed with a II discussion of allegations not under OI investigation and 12 produce documents pertaining to the allegations in their 13 entirety. 14 So, however you want to proceed. But 01 said IS that they -- . e 9 16 JUDGE SMITH: Yes, I have not appreciated that 8 I7 overlapping problem there. Yes, that's reasonable. S 18 g Well, then, let's proceed with the I&E pending. a-I9 investigations. j_ ' 20 MR. GOLDBERG: And can we notify that1 office to y { 21 be present. tomorrow, then, for the balance of the submission? .2 22 ] They'd like to 8 23 JUDGE SMITH: -All right. That would be' tomorrow. 8 24 And then the earliest that we ~ could have a 25 discussion of possible evidentiary presentation, then, would O) e\\_/

-jl 9-2 7300 \\- 1 Friday morning. 2 That would be possible, wouldn't it? 3 MR. GOLDBERG: If we're able to conclude the d public testimony, which I thought would be the order -- you 5 know', that was my expectation when we first came, that we 6 would take that up as a first order. So -- but we can -- 7 JUDGE SMITH: Well, I think they should be called 8 then. 9 MR. GOLDBERG: Okay. 10 JUDGE SMITH: Other than the opposition to the i II approach in its entirety, do you have any comments about the 12 procedure? 13 ./~sg MS. WHICHER: My only concern is a personal one, t- \\~sA 1s which would be to question the Board as to what the schedule 15 e will be tomorrow. I need to make sure that I have complete Q 16 g sets of exhibits for all the witnesses. I7 If I could just have some idea -- will it take all Ou 18 ? afternoon? Should I be prepared to come at 3:00 o' clock? 3 e 39 3 I don't know.what to do. t 20 JUDGE SMITH: I would expect we would have to allow 21 - two hours would you say? 22 MR. GOLDBERG: This evening? 8 23 g . JUDGE SMITH: No, tomorrow afternoon. 24 MR. GOLDBERG: I don't think that's' unreasonable. 25 Yes. And the morning would be taken up with the direct f~s L ~Iv) l L l o L l i I

-jl'9-3 7301 m, '(d 1 Applicant testimony.. 2 MR. MILLER: I'd like to just suggest that we would 3 begin with our first witness, whose testimony is really pretty 4 limited, that we continue tomorrow morning and break at 2:30 5 or 3:00 for the in camera ex parte session. At that point ] 6 everybody except the Staff would be excused at that point in 7 time. 8 JUDGE SMITH: About how long would your presentation / 9 be, the I&E presentation? M) MR. GOLDBERG: I guess a couple of hours, but we 11 expected something of a dialogue. 12 We can make some remarks and then respond to any 13 g-~ questioning. But I would think -- D Id JUDGE SMITH: Can you provide us documents today 15 and go ahead with your witness? And then we'll be in a better 0 16 5 position to ask questions tomorrow perhaps. k 17 MR. GOLDBERG: Give the documents only today -- 8 HI g documents only -- and put off the discussion.. in its entirety, a 39 until tomorrow? Sure. L 20 MS. WHICHER: Judge Smith, it is nearly 5:00 o' clock, I g 21 And I know Mr. Kokus' direct testimony is quite short, but I -t 22 l but ~ I do 'have quite a lot of cross-examination for him. I 5 23 g would prefer not breaking it up. 2 24 JUDGE SMITH: This is one of those days when 25 absolutely nothing works -- nothing. A (_ I +

ji 9-4 7302 l l 1 (Laughter.) 2 MS. WHICHER: Then, let's go home and come back 3 tomorrow. d MR. GOLDBERG: We can do either. We can go as 5 long'and as far as you want today, either orally or in 6 documents, or, you know, to resume tomorrow afternoon. 7 I think we are talking about a couple of hours. 8 JUDGE SMITH: Mr. Miller, in view of the extensive 9 cross-examination, I think it would be helpful to the Board to 10 get on with the -- we know what the completed investigations 11 are. We won't know, really, what our problems are until 12 ye __ I3 MR. MILLER: Okay. \\ Id Should we all excuse ourselves at this point in 15 time expect for the Staff? 4 4 16 JUDGE SMITH: In view of the lengthy cross-k* 17 examination, does that make sense to you? 8 18 MR. MILLER: Yse, sir. I think it does. 19 MR.-BECKER: Mr. Kokas will be on at 9:00 tomorrow ij 20 morning. t 21 JUDGE' SMITH: Let's make it 8:30. I think this 22 - weekLis already running short. j 8 23-3 MR. MILLER: In about 3:00 o' clock tomorrow? o .24 MR. GOLDBERG: Whatever time you want to set for 25 a break, I'll tell them co be here. s--

ji 9-5 7303 1 JUDGE SMITH: Tell them to be here at 3:00. and g,j 2 then we might start with you earlier -- well, no, we're going 3-to start with you now, right? Tell them to be here at 3:00. 4 MR. GOLDBERG: I'll even tell them to be here in 5 advance of that. 6 JUDGE SMITH: Ms. Whicher, Mr. Goldberg, before you 7 leave, we have provided copies of a Protective Order and 8 Affidavit of Nondisclosure which was adopted from and modified 9 -- adopted from the Diablo Canyon case and modified to meet 10 the circumstances of this case. 11 You will note that, unlike the provision we made .i. 12 carlier on the Westinghouse Protective Order, it does require 13 counsel to enter into the affidavit the agreement -- for which -O 14 I apologize. That would not be my desire, but that'was the 15 standard approved by the Appeal Board and the Commission in Q g I.6 Diablo Canyon. And I'm just giving it to you as a draft, in b* 17 the event we do have in camera proceedings,'that you will at 8 18 least be familiar with what we were thinking would-be the .g 1 19 appropriate order. tj 20 MR. MILLER: Judge Smith, I take it from your tl 21 ruling that the Staff's motion has, in effect, been granted. E 22 l JUDGE SMITH: Yes. 8 23 MR. MILLER: Okay. 3 g 24 (Whereupon, at 5:00 p.m., the open portion of the end 9 25 record ~was closed.) t g. \\ ) 1 s_- l l

CERTIFICATE OF PROCEEDI':G5 1 t 2 This is to certify that the attached proceedings before the 3

RC COMMISSION 4

Commonwealth Edison Company In the matter of: (Byron Nuclear Power Station, Units 1 s and 2) Date of Proceeding: Tuesday, August 9, 1983 Place of Proceeding: Rockford, Illinois were held as herein appears, and that this is the original transcript for the file of the Commission. 10 Ann Riley Official Reporter - Typed 12 $ b fh b Of ficiad Reporter " Signature 15 to 17 10 19 20 21 22 23 24 25 l TAYLOE ASSOCIATES REctSTEREo PRoFESSloNAL REPoMTERS NORFOLK. VIRGINIA ..}}

ML20024E497

Text

Dearborn Street,

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