ML20041D751
| ML20041D751 | |
| Person / Time | |
|---|---|
| Site: | Point Beach  |
| Issue date: | 03/04/1982 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OLA, NUDOCS 8203090108 | |
| Download: ML20041D751 (95) | |
Text
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2 NUCLEAR REGULATORY COMMISSION 3
4 In the Matter ofa a
Docket Numbers 5 POINT BEACH NUCLEAR POWER PLANT 50-266-OLA 50-301-OLA 6 Units 1 and 2 a
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Alderson Reporting Co.
400 Virginia Avenue, S.W.
9 Washington, D. C.
10 Thursday, Ma rch 4, 1982 11 The above entitled. matter came on for 12 prehearing conference at 10:08 a.m.
13 BEFOREs O
14 JUDGE PETER BLOCH, Chairman 15 JUDGE JERRY KLINE, Member i
18 JUDGE HUGH PAXTON, Member 17 Atomic Safety and Licensing Board 18 APPEARANCES:
19 On behalf of Wisconsin Electric Power Companya 20 BRUCI CHURCHILL, Esq.
Shaw, Pittman, Potts & Trowbridge 21 1800 M Street, N.
W.
Washington, D. C.
22 23 24 25 O
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oa nea te or we tia nou e Corooration=
2 BART COWAN, Esq.
FRANK DAVIS, Esq.
On behalf of Wisconsin's Environmental Decade 4
PETER ANDERSON, Esq.
5 114 Lewis Carroll Street Madison, Wisconsin 6
On behalf of the Nuclear Regulatory Commissions 7
STUART TREBY, Esq.
8 EDWARD SHOMAKER, Esq.
RICHAPP BACHMANN, Esq.
9 10 11 12 13 O
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18 19 20 21 22 23 O
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CHAIRMAN BLOCH:
Good morning.
This is Peter 3
Bloch, Chairman of the Licensing Board for Point Beach 4 Nuclear Plant, Units 1 and 2, Docket No. 50-266-OLA and 5 50-301-OLA.
The purpose of this conference is to 6 discuss certain scheduling matters with respect to 7 confidentiality issues that have been raised in this 8 case.
9 I would like to begin by asking that the 10 parties identify themselves for the record.
For 11 Wisconsin Electric.
12 HR. CHURCHILL:
This is Bruce Churchill.
13 CHAIRMAN BLOCHs For Westinghouse.
O 14 MR. COWAN:
Yes, this is Bart Cowan, and with 15 me is Frank Davis.
16 CHAIRMAN BLOCH:
For Decade.
17 MR. ANDERSON:
This is Peter Anderson.
I 18 having trouble hea ring Wisconsin Electric's counsel.
If 19 he could speak up, it would be appreciated.
20 CHAIRMAN BLOCH:
Please notify us if that 21 becomes a serious problem.
22 For staff?
23 MR. BACHMANN:
This is Richard Bachmann, 24 attorney for the staff.
With me are Ed Shomaker another 25 attorney for the sta f f, Stuart Treby, Assistant ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
1087 Q
1 Chief Hearing Counsel, and our witness, Mr. Timothy 2 Colburn.
3 CHAIRMAN BLOCH:
Judge Paxton, I assume you 4 are still there?
5 JUDGE PAXTON:
I cannot hear the staff at 6 all.
7 CHAIRMAN BLOCHs We had better call the 8 operator and tell her that there is - problem with your 9 connection.
Do you have problems with both staff and 10 Westinghouse?
11 JUDGE PAITONa No, with staff and Wisconsin 12 Electric.
I can hear you and Westinghouse fine.
13 CHAIRMAN BLOCH:
Wisconsin Electric, I think, 14 was talking very quietly.
15 MR. CHURCHILL This is Wisconsin Electric.
I 16 am in New Orleans, can you hear me?
17 CHAIRMAN BLOCH:
We can, but you do sound soft 18 to everybody.
19 MR. CHURCHILL I am speaking pretty loud.
20 CHAIRMAN BLOCH:
Can you make it out, Mr.
21 Anderson.
22 MR. ANDERSON:
Yes, but staff was almost 23 undecipherable, however.
O 24 nR. 8ACHMAxN, tet me repeet thet again, end 25 raise ny voice a bit and see if Mr. Anderson can hear ALOERSON REPORTING COMPANY,INC,
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2 With me is Ed Shomaker, an attorney for the 3 staff, S tua rt Treby, Assistant Chief Counsel, and Mr.
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4 Timony Colburn, who is our witness as f ar as testimony 5 is concerned.
6 Mr. Anderson, can you hear me now.
7 MR. ANDERSON:
Yes, I can.
8 CHAIRMAN BLOCH:
Before we begin with the 9 scheduled agenda, I would like to disclose that on 10 Tuesday, I called Mr. Peter Anderson to ask him to 11 f urther substantiate the precise nature of the interest 12 of Wisconsin's Environmental Decade in the release of 13 information to its members or to the public.
I asked O
14 him to respond to that. I consider that to be in the 15 nature of the request that I earlier made to 16 Wes tingh ouse to further document its reasons for 17 withholding information.
18 Are there any comments of the parties on that 19 procedure?
20 MR. TREBY:
Yes, the staff has a question.
Is 21 Mr. Anderson, then, going to be submitting additional 22 information?
23 CHAIRMAN BLOCH:
Specifically, I have
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24 requested that he submit additional information as 25 rapidly as possible.
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1 MR. ANDERSON:
That is correct, sir.
2 CHAIRMAN BLOCH:
Mr. Anderson, do you know 3 when you will be submitting it?
4 MR. ANDERSON:
We have a jan up on our typing, 5 and it will hopefully be out this af ternoon in the 6 mail.
7 CHAIRHAN BLOCH:
Is it feasible for you to use 8
Express Mail for this because of the proximity to a 9 possible hearing?
10 HR. ANDERSON:
It will be expensive, but we 11 will do so in this case, sir.
12 HR. TREBYa Is this additional information in 13 the nature of additional proposed testimony?
O-14 CHAIRHAN BLOCH:
That-was what I requested.
15 If it weren't testimony, it would not be relevant to the 16 question of the specific public interest concerns of 17 Wisconsin's Environmental Decade.
18 MR. COWAN:
This is Mr. Cowan on behalf of 19 Westinghouse.
We want to object to the procedure 20 whereby there is a filing date for testimony and that is 21 apparently an opportunity to submit additional testimony 22 after the initial testimony after the initial testimony 23 has been filed, except in the nature of testimony at a
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24 hearing or in some requiarized order where all parties 25 are afforded such an opportunity.
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1 CHAIRMAN BLOCH Mr. Cowan, do you really 2 object to it being filed before the hearing, because we
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3 would ask this question at the hearing and I take it 4 that it would be proper.
5 MR. COWANs It depends, Mr. Chairman, on 6 whether or not the testimony is in f urther explanation 7 of what is already in or in rebuttal or response to 8 materials which the other parties have submitted, which 9 certainly would be proper, or whether it goes beyond 10 tha t area.
11 CHAIRMAN BLOCH:
The reason we asked is 12 because of the general assertion of Decade that it is 13 interested in this information for its own purpose and O
14 for the public.
It seems to me that without further 15 explanation, I cannot evaluate that properly.
It goes 18 to the weight of assertions they have made in this j
17 proceeding.
18 MR. TREBY:
Could we have some general 19 description of what this additional testimony would be 20 consisting of?
21 CHAIRMAN BLOCHs Mr. Anderson, could you 22 elucidate on that?
23 MR. ANDERSON:
It is a discussion that we had
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24 with our membership toward an education drive.
We have 25 discussions of briefings we give to newspaper editorial O
l ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554-2345
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I writers on the subject, and that is the subject of what 2
the affidavit would cor.tain.
Does that respond to your 3
request, sir?
~
4 CHAIRMAN BLOCH4 If that is the extent of the 5 documentation available about the interest of Decade and 6 its members, that is directly responsive.
What you say 7 is important and what you don't say may also be 8 important.
9 Mr. Treby, do you have a problem with that 10 now?
' 11 MR. TREBY I guess I would like to defer.
I 12 guess one of my problems is that I did read the 13 testimony that has been previously filed, and I have O
14 read the testimony of other parties.
This may be a 15 subject that we will be discussing later, but based on 16 what I have read, I know the staff didn't plan to 17 cross-examine anybody.
18 At some point, we were going to raise the f
19 consideration of whether we actually needed to have a 20 hearing or not.
The fact that now additional 21 information is coming in may affect that discussion.
22 CHAIRMAN BLOCH:
Before we go to the 23 scheduling, then we also should add some other
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24 information that might be important to the parties, and 25 tha t is tha t the Chairman of the Board and Judge Kline, O
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1 I have not had a chance to talk with Judge Panton, 2 believe that it would be useful to have oral argument on 3
(}
the question of what the public interest-balancing 4 standard means.
Examples of situations in wh'ich the 5 public interest.would be considered to weigh more 6 heavily than a proprietary in te re st, and possibly, if it 7 is available, some precedent on how that balancing test 8 is supposed to be done.
9 We think it would be useful to talk to people 10 in person about that, even if the oral argument need be 11 only brief, possibly only as long as 15 minutes per 12 party.
13 We also have a variety of questions that we
, ()
14 think we need to ask and we are going to disclose the 15 areas of interest, so that the parties will be able to 16 respond, in order to be able to apply what we think tha t 17 balancing test requires.
Therefore, the Board is 18 interested in having some form of a direct contact with 19 the witnesses and with counsel.
20 Light of that, the principal question that we 21 see, in terms of scheduling, is whether we should go 22 ahead as planned in Wisconsin, or whether there can be a 23 place that is more convenient for the Board, and that
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24 will depend, I think, primarily on the interest of the 25 local intervenors.
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1 MR. COWANs Mr. Chairman.
2 CHAIRMAN B10CH:
Mr. Cowan?
3 MR. COWAN Yes.
)
4 There are some other factors that may also 5 bear on that question which we will get to later, I 6 guess, when we discuss that, and that is the question of 7 whether there might be a different place and, indeed, a 8 different time for discussing this type of material.
9 We would agree with Mr. Treby's observation.
10 We have read at least a telecopied version of the Decade 11 filing of February 23, and based on that we did not have 12 any questions for Decade or the staff and their 13 t es timon y.
However, we may well have questions on O
14 whatever it is that Decade is now going to be filing, 15 but there is no way we can know that until we see it.
16 CHAIRMAN BLOCHs May I ask Decade if it 17 thought it was necessary to ask cross-examination 18 questions of staff and applicant witnesses, assuming for 19 this purpose that its motion for excluding the 20 affidavits from the record were denied, I will explain 21 later, but I think we probably will deny those motions.
22 MR. ANDERSON We have no need that we want to 23 pursue to engage in cross-examination.
We have simply
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24 communicated in writing the admissibility questions we 25 vant, but that does not require in any way a hearing.
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1 MR. TREBYa Mr. Chairman, we have no motions 2 bef ore us, so we have no knowledge of what it is that 3 rou were just mentioning.
4 MR. COWANs Nor do we, Mr. Chairman.
5 MR. CHURCHILL:
Nor does Wisconsin Electric.
6 MR. ANDERSON:
It was mailed Monday, I think, 7 so it may not have arrived yet.
8 I wanted to indicate that we hoped could be is 9 that questions about relevancy and so forth could be 10 asked in writing, without that itself necessitating a 11 hearing.
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12 CHAIRMAN BLOCH4 Let me explain f urther what 13 the motion is that the questions were being raised
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14 about.
15 I have a motion of Wisconsin's Environmental 16 Decade, dated the 27th day of February, requesting 17 exclusion of the Weisman testimony and Colburn testimony i
18 from the hearing record.
Since the parties don't have 1
19 it, but since we have already decided we wish to deny l
l 20 those motions, I really don 't see that we are grea tly 21 disadvantaged by the f act that the other parties don't 22 have it.
I would hear comments on that.
23 Mr. Cowan, do you mind our ruling against
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24 those motions, without you having seem them ?
25 MR. COWANs As a general proposition, Mr.
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ALDERSON REPORTING COMPANY,INC.
400 V!RGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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1 Chairman, we think that it is appropriate for the other 2 parties to have an opportunity to comment on actions 3
that are made before the Board rules on them.
4 Obviously, if the ruling looks like it is going to be in 5 our favor, and we know in advance that it is going to be 6 in our favor, that would color the nature of and even 7 the question of whether we would comment.
8 However, we have some difficulties with the 9 procedure where parties file a motion, and before 10 anybody else has a chance to even see it, let alone 11 react, the Board has already ruled on the motion.
12 We don't object to the Board denying the 13 motion, I want to make that clear.
14 CHAIRMAN BLOCH I understand your problem, 15 and it may relate to a previous matter in the case more 16 than to the current one.
I understand that.
17 MR. COWANs It relates to the general 18 procedural posture.
It does relate to a previous 19 matter also, but it relates generally to procedures.
We 20 think that except in unusual circumstances, the parties 21 ought to have an opportunity at least to look at the 22 motions before there is a Board ruling on them.
23 CHAIRMAN BLOCH:
It depends on when we go to O
24 heering.
25 Are the parties interested in hearing the O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 areas of Board concern before we go ahead to discuss 2 scheduling.
3 MR. COWANs We are, Hr. Chairman.
{)
4 HR. BACHMANNs The staff is, Mr. Ch airm an.
5 CHAIRMAN BLOCHs Let me proceed on that 6 basis.
I assume Hr. Anderson doesn 't object.
7 MR. CHURCHILLs Your Honor, this is Bruce 8 Churchill.
I an interested aluo, but also I would like 9 to get back sometime during the course of the conference 10 to Mr. Cowan's objection to the submittal of additional 11 testimony by Mr. Anderson.
12 CHAIRMAN BLOCH:
Why don't we proceed with 13 that right now.
Mr. Churchill, do you have something O
14 relevant on that issue?
15 NR. CHURCHILLs Yes, I do.
I think that there l
16 was a fairly clearly established procedure whereby we 17 were all to submit our testimony by a certain date.
Mr.
18 Anderson submitted no relevant testimony, and that 19 should have been the status of the record as of this 20 time.
21 The Board is interested in finding out more l
22 information from Mr. Anderson, but I do object to the 23 opportunity for Mr. Anderson to have yet another
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24 opportunity to submit testimony that he should have 25 submitted already.
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1 CHAIRMAN BLOCH:
Mr. Churchill, I as curious 2 about how you respond to what I was saying before, which 3
is that if the Board gets to a hearing and has questions 4 about the evidentiary posture of the case, isn't it 5 ordinarily the standard of practice that we should fill 6 out the record by getting answers to our questions?
7 HR. CHURCHILLs Yes, it is.
However, Decade 3 has not even advanced a. witness, and the answers to your 9 questions would have to be more in the nature non-sworn 10 testimony if Decade does not have a witness.
11 CHAIRMAN BLOCHa They had an affidavit filed 12 by Mr. Anderson, and I.was requesting another affidavit 13 by him.
O 14 Be that as it may, Mr. Anderson, would you 15 like to comment on the propriety of this permission by 16 the Board that you late file this particular testimony?
17 MR. ANDERSON:
I don't understand Mr.
18 Churchill's objection.
He is getting, I would think, 19 more warning than he would otherwise get of information 20 that would come in at a hearing.
So it seems to me he 21 is receiving an advantage.
I 22 MR. COWANs Mr. Chairman.
23 CHAIRMAN BLOCH:
Yes, Mr. Cowan.
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24 MR. COWANs Our objection to the additional 25 testimony or the opportunity to file additional O
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1 testimony is really a part of a much broader problem 2 t ha t I think we raised in the last prehearing
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3 conference, which I don't want to belabor.
4 As the Board is aware, we have a fundamental 5 objection to the procedures that are being carried here 6 on due process grounds on several aspects.
We think 7 there was, as the Beard is aware, a failure to advise us 8 of what information is sought to be made public, other 9 than a very generalized description.
In other words, 10 f ailure to advise us of what information is at risk 11 here.
This second opportunity for Decade to have 12 another crack at the testimony just highlights this 13 objection.
O 14 We also raised.the failure to advise us of the 15 basis for a claim under 27.90(b)(5), why it is claimed 18 that the rights of the public to be fully appraised 17 outweighs the demonstrated concerns here.
18 We have a fundamental problem with what is 19 occurring here as a due process matter.
It appears to 20 us that up until this point, Decade has consistently 21 taken the position that the public 's right to be fully 22 appraised is dominant because the public has the right 23 to be fully appraised, without giving us any indica tion
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24 beyond that.
25 Indeed, their pre-filed testimony certainly O
l ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 did not give any indication to us beyond that of what
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2 exactly is the basis for their saying tha't the public 3 has a right to be fully appraised.
Now the Board is 4 giving then yet another opportunity to come forward with 5 that information.
6 Our objection is part of a much broader 7 problem with due process that we are being afforded 8 here.
9 CHAIRMAN BLOCHs Mr. Co w a n, I understand that 10 the parties.have very strong feelings about the 11 procedures being employed.
Many of the things you just 12 said, I think, could have been referred to established 13 position.
14 I would ask the parties to try to respond 15 directly to the question being asked because if we take 16 the opportunity to expand on our responses to individual 17 procedural questions by repeatedly referring to the 18 whole record, we will not get anywhere in this case.
19 The Board will discuss the questions that it 20 intends to ask at th e hearing, primarily of Westinghouse 21 and staff witnesses, and in doing this, of course,'this 22 is a reciprocal pa rt of the question that we asked for 23 Mr. Anderson because we realize that absence of
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24 information on some of these questions in the record, we 25 also might have to draw certain inferences which we O
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1 prefer to draw with knowledge rather than on the basis A
2 of what is not in the record.
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3 One area of our interests Which of the tests 4
that were performed by Westinghouse in order to comply 5 with ANSI standards would be routinely performed by any 6 company seeking to comply with those standards, or a're 7 in fact prescribed by the standards?
8 MB. COWAN Mr. Chairman, you will have to 9 slow up on that, we can 't get that down.
10 CHAIRHAN BLOCH:
Let me go slower.
Which of 11 the tests performed by Westinghouse in order to comply 12 with ANSI standards would be -
tely performed by any 13 company seeking to comply witu those standards, or are 14 in fact required to be performed by the standards 15 themselves.
16 Also, aren't there some te sts, en tirely apart l
17 from the ANSI standards, that are tso routine that their 18 performance would be no surprise to anyone, and that the 19 results could be released on that ground?
20 MR. DAVIS Mr. Chairman, this is Frank 21 Davis.
We will not be receiving this transcript in time 22 to give these questions to the witnesses prior to their 23 appearance in Milwaukee.
24 MR. COWAN:
If the hearing is next week.
25 MR. DAVIS If the hearing is on the 10th, as O
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1, now scheduled.
2 CHAIRMAN BLOCHs This will affect the f
3 scheduling question.
Why don't I go ahead with the 4 other' questions, and of course they could have an impact S on what the scheduling is.
6 HR. TREBYa Mr. Chairman, this is staff.
With 7 regard to the question --
8 CHAIRMAN BLOCHa We have two people trying to 9 spaak.
I believe Nr. Cowan was speaking first, is that 10 correct?
11 MR. COWANs No, Nr. Chairman.
12 CHAIRMAN BLOCHa Who is the other person other
!3 than Mr. Treby who was speaking.
O 14 NR. DAVTSa Frank Davis.
10 CHAIRMAN BLOCH:
Mr. Davis, would you speak 16 now, and Mr. Treby next.
17 MR. DAVIS:
Thank you, Your Honor.
18 I was trying to get to the poins that this is 19 going auch too quickly for us to take down in longhand.
20 The transcript will not be in Pittsburgh in time f or us 21 to prepare our witnesses to answer these questions.
So 22 we would like you to slow down so that we can take the 23 questions down, please.
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24 CHAIRMAN BLOCH:
I will also talk more 25 slo wly.
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1 Mr. Treby?
2 MR. TREBY The staff's problem is that you
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made a very general reference to tests performed by 3
4 Westinghouse.
I don't know what tests you are talking 5 about.
Are you talking in terms of just tests related 6 to the sleeving?
7 CHAIRMAN BLOCHa Yes, only the safety tests 8 related to sleeving.
9 Second, and this is more a question that 10 should be set for part of the oral argument, rather than 11 questions to witnesses:
Does a company have a 12 legitimate proprietary interest in concealing tests 13 performed by it in order to comply with governmental O
14 safety regulation in order to increase the regulatory 15 barrier to competition by others?
l 16 MR. COWAN:
He can't get it fast enough, Mr.
17 Chairman.
18 CHAIRMAN BLOCH4 I will talk more slowly.
1 19 Does a company have a legitimate proprietary 20 interest in concealing tests performed by it in order to 21 comply with governmental safety regulations in order to 22 increase the regulatory barrier to competition by I
23 others?
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24 MR. TREBY Mr. Chairman, could you read over l
25 that question one more time?
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1 CHAIRMAN BLOCH:
Does a company have a 2
legitimate proprietary interest in concealing tests i
3 performed by it in order to comply with governmental 4 saf ety regulations in order to increase the regulatory 5 barriers to competition by others?
6 MR. COWAN:
Mr. Chairman, we would object to 7 the characterization of what we are doing as concealing 8 tests performed by us.
9 CHAIRMAN BLOCHa We are talking about a 10 question for the purpose of oral argument.
When the 11 Board asks questions of parties, it does not indicate 12 that the Board has adopted a position.
The question is 13 solely for the purpose of elucidating information f rom O
14 the parties and elucidating relevant legal argument.
15 Question No. 3:
Was the disclosure of the 18 Westinghouse process by the Director of NRR 17 inadvertent?
How do we know?
18 MR. CHURCHILLs You say the disclosure of the 19 Westinghouse process.
20 CHAIRMAN BLOCH:
I did not want to state what 21 that process is.
22 MR. CHURCHILL:
May I ask Mr. Cowan if 23 anything has been disclosed by NRR which is now
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24 considered proprietary.
25 MR. COWANs The answer to that is, nothing O
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1 that was disclosed by the NBR is today considered 2 proprietary by Westinghouse.
3 CHAIRMAN BLOCH So the fact that some --
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4 HR. COWANs You are talking about the news 5 release, I assume, Mr. Chairman.
6 CHAIRMAN BLOCHs The fact that some joints 7 brased and some are hybrid joints is no longer 8 proprietary?
9 MR. COWANs That is correct, Mr. Chairman.
10 CHAIRMAN BLOCH:
Then that question need not 11 be addressed.
That was the sole purpose of tha t 12 question.
13 Question No. 4:
Historically, have FSARs O
id filed by applicants for construction licenses or 15 operating licenses claimed proprietary treatment for 16 safety tests that were performed in order to establish l
17 the safety of applican ts' power reactors?
18 Is there a request for a repeat of that 19 question?
20 NR. COWANs Yes.
l l
21 CHAIRMAN BLOCH:
Historically, have FS ARs 22 filed by applicants claimed proprietary treatment for l
23 tests that were performed in order to establish the
()
26 saf ety of applican ts ' power reactors?
25 Question No. 5:
We have certain
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1 cross-examination questions to ask relating to 2 conclusions drawn on page 5 of Mr. Colburn's testimony.
3 Is a repeat on that needed?
4 HR. CHURCHILL 4 May I just check page 5 for a 5 second?
e CHAIRHAN BLOCHa Surely.
7 NR. CHURCHILLs Thank you.
8 CHAIRMAN BLOCHs Mr. Churchill, we are 9 specifically referring to conclusions about the 10 significant hazards consideration.
11 MR. TREBY Mr. Chairman, the question of a 12 significant hazards consideration really goes to whether 13 or not a proceeding needs to be prenoticed or not.
14 CHAIRMAN BLOCH I understand tha t.
We want 15 to ask some cross-examination questions about the 16 conclusion that was drawn Colburn on that page.
He says 17 that there is no significant hazards consideration.
18 MR. TREBYa He will be available.
l I
i 19 CHAIRMAN BLOCH:
Question No. 6:
For what
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20 period of time is it necessary in Westinghouse's opinion 21 to protect the proprietary nature of its safety tests?
22 Does the value of the protection decline ra pidly as time 23 passes?
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l 24 MR. COWAN Mr. Chairman, I assume we are
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25 talking about the safety tests relating to the sleeving i O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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areer 2
2 CHAIRMAN BLOCH.
That is correct, just the 3 safety tests.
4 Would the parties like a brief two-minute 5 recess to consider what their scheduling proposals will 6 be in light of this new information?
7 MR. COW AN s Let me raise one other factor, Mr.
8 Chairman, with respect to tha t.
We think it might be 9 beneficial to the Hearing Board and the parties if the to Board took a viewing or a tour, if you will, of the 11 Westinghouse facility at which these tests are 12 performed.
13 As the Board is aware, there has been a lot of O
14 money expended in connection with these tests, and we 15 think it would help to put the nature of th e test 16 program, and in particular the nature of the overall 17 testing and the results into a better perspective if the 18 Board and the parties were willing and could view the 19 facility which Westinghouse has put together in which 20 these tests are performed and these test results are 21 obtained.
22 That f acility is loca ted here in Pittsburgh, 23 actually in a suburb of Pittsburgh called Forest Hills,
()
24 at the Westinghouse research facilities there.
We would 25 ask that such a viewing be arranged, a.nd when I say O
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1 that, I do not mean and do not exclude Mr. Anderson.
We 2 would be, obviously, required to but we would be 3 perfectly happy and willing for him to also participate 4
in that viewing.
We think that it would provide also 5 with a better perspective on this.
6 CHAIRMAN BLOCH:
Mr. Cowan, we do < ant to 7 consider whether or not to do that.
Could you comment 8 on whether, if we were to do that, we also would need to 9 look at one or more facilities of other companies to be 10 able to know whether the types of tests being performed 11 by Westinghouse, technologically sophisticated as they 12 may be, are different from the tests being performed by 13 others.
14 MR. COWANs We don't think so, Mr. Chairman.
15 We, of course, as far as I know, don't know and would 18 not have any direct access to the f acili'.ies of 17 Westinghouse competitors.
We don't think that that is 18 required or necessary in order to make this 19 determination.
20 We point out that the staff probably does have 21 a feel for not only the nature of the f acilities of our l
22 competitors, but indeed for the test information, the i
23 type of testing, and the test results of our
()
24 competitors.
That is one of the things, we think, that 25 makes the staff able to to draw an appropriate
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1 conclusion with regard to the proprietary nature of this 2 information.
We don't have that information directly,
(]}
3 and we don't think that is needed.
4 We just thought that it might help the Board 5 and the parties to put this in a more concrete context, 6 if the Board could see this facility.
7 CHAIRMAN BLOCH:
Why don't we take that 8 suggestion.
Let's. ave the other parties' comments on 9
that.
10 NR. COWANs The thought was that this migh t be 11 tied in with the answering of the Board's questions that 12 the Chairman has just gone through and any other type of 13 proceeding at the time.
O.
14 CHAIRMAN BLOCH Mr. Anderson, would you like 15 to comment on whether or not we should take such a 16 trip?
17 NR. ANDERSON:
Certainly, sir.
18 We are very fearful that we are losing sight 19 of what the issue is in this proceeding, which is the 20 safety implications of the tube problems at the Point 21 Beach Nuclear Power Plant, as we get led down one side, 22 and then to the other side, and there are branches and 23 branches, and we devote enormous time to each one of
()
those subbranches of subbranches.
We are going to lose 24 25 all perspective and proportion as to what exactly the ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 i
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1109 O
re ource= or 11 or==
ho=1a he aevotea to-2 I think, with all due respect for Mr. Cowan's 3 kind offer, we are in fact running that substantial 4 risk.
It implicates us most directly, in addition, 5 because we don't have the resourct3s to fly and spend the 6 time to engage in this tour.
7 Combining the two, while we very much 8 appreciate the offer, we think that it would be an 9 unwise consumption of resources on all parties, and it 10 would be too much for us to absorb on our part.
11 CHAIRMAN BLOCH:
How does the staff feel about 12 that suggestion?
13 NR. TREBYa The staff has no objection to O
4 going on the viewing.
It might be helpful to see the 15 extent of the f acilities and wha t kind of testing is 18 done there, but I am not sure that it would be 17 essential.
18 CHAIRMAN BLOCH:
How do you feel about 19 thepoint that Mr. Anderson has made which is that while 20 this is an important issue, it is a bit divorced from 21 the major purpose of the proceeding, and it might be an 22 unjustifiable expenditure of resources?
23 HR. TREBY I must confess I don 't have too O
24 much eympathy for thet point of view.
He is the one who 25 has raised the question about the release of proprietary O
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1 information, and who has started us down this road.
I 2
think that whatever resources are necessary to correctly
}
3 resolve this should be used.
4 CHAIRMAN BLOCH:
Mr. Churchill, I take it you 5 support Mr. Cowan?
6 HR. CHURCHILL:
Yes, I would, in the sense 7 that if the Board feels it would be helpful, I notice 8 the Board did*ask a number of questions about the nature 9 of the tests, and so forth.
I an always in favor of the 10 general propo71 tion that the more concrete a context a 11 hearing is in, th e be t te r.
So I would support the 12 proposition.
13 I also agree with Mr. Cowan that I don't think
()
14 it would be necessary to look at other facilities 15 because the real question here is the Westinghouse data, 18 and whether it is proprietary.
Even if other people are 17 doing the same thing, or similar things, they are 18 protecting that information, too.
19 The tests might be a little different in one 20 case, a little better in one case, or they might be 21 slightly different tests, and the people have the right 22 to protect tha t inf orma tion.
23 CHAIRMAN BLOCH:
Mr. Churchill, I guess it is
)
24 relevant to know whether other people are protecting 25 information in the same way.
The only other application O
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1 I know of that has been filed was Combustion 2 Engineering, and I am not sure whether they were 3 protecting in the same way.
It is something that could
()
4 possibly be addressed to us during oral argument.
5 MR. COWANs Mr. Chairman, we assume we are 6 going to have the opportunity to address the question of 7 whether it is relevant that other people protect 8 information.
Westinghouse considers itself to be the 9 technological leader in this area, and obviously 10 competitors who have less information would be willing 11 to disclose theirs to us, if we were villing to disclose 12 our leading information to them.
13 HR. ANDERSON:
If I may respond to Mr.
O 14 Churchill.
15 CHAIRMAN BLOCH We must let one person finish 16 because you can't hear anything on these lines unless 17 you allow the person speaking to finish.
18 Mr. Cowan, and then after that Mr. Anderson.
19 MR. COWANs I am finished.
20 CHAIRMAN BLOCH Mr. Anderson.
21 MR. ANDERSON:
I did not know he was not 22 finished, to be quite frank.
23 I just wanted to respond very briefly to what
()
24 Mr. Churchill has stated.
We do not view the position 25 as beino a correct position that if one person wants to ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., SV/.. WASHINGTON, D.C. 20024 (202) 554 2345
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1 protect, it is sufficient to justif y protection.
2 If, in fact, all the competitors have the same
(])
3 information, I think the legitimate interest as to being 4 protected to counterbalancing the general rule of public 5 disclosure --
6 CHAIRMAN BLOCHs Mr. Anderson, I think we are 7
now getting into the oral argument that we are going to 8 hold at a later time.
I would prefer not to do that.
9 NR. ANDERSON:
All right.
10 CHAIRMAN BLOCHs All we are discussing now is 11 the question of whether or not we can visit this plant.
12 MR. ANDERSON:
As to that point, I think we 13 would concur that you would have to tour all the
()
14 companion plants and the competitors at the same time, 15 to not just have a show and tell technological bonanza 16 that-would perhaps put stars in our eyes but would not 17 be meaningful relative to what is happening elsewhere.
18 CHAIRMAN BLOCH4 That is the conclusion of 19 argument on that point.
We will take that issue under 20 advisement.
21 Mr. Anderson, could you tell me whether we 22 ought to take a brief recess now of just a few minutes 23 so the parties can get straight on wha t they would like 24 the scheduling to be?
25 MR. ANDERSONs Before we do that, could I ask l
(
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1 for some f urther elaboration of your plans, sir?
C CHAIRMAN BLOCH:
On our plans?
3 HR. ANDERSON:
Yes.
You indicated that you 4
vanted to hear oral argument, and I was curious to knvv 5 whether you intend the oral argument to,be held the same 6 day as the evidentiary hearing you are apparently 7 contemplating.
8 CHAIRMAN BLOCH:
Yes.
With the possible 9 exception of the trip to the plant, it seems to me that 10 the entire proceeding we are talking about ought to be 11 able to be concluded within three hours at the outside.
12 HR. COWAN:
Mr. Chairman.
13 MR. ANDERSON:
Let me finish.
O 14 The problem we have is that the original 15 schedule at page 953 had the briefs for the legal 16 argument due on March 31.
To be quite frank, we vill 17 not be able to have legal arguments ready by March 10, 18 that is what I wanted to indicate.
19 CHAIRMAN BLOCH4 So that if we have oral 20 argument on the balancing test, you would need a delay 21 until a t least March 31.
22 MR. ANDERSONs Or vice versa, just hold the 23 evidentiary until the 31st.
But we would not be able to
()
24 have the legal arguments on the 10th of March, that is 25 what I wanted to say, because the original schedule O
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coat at t a en 3'=t-2 CHAIRMAN BLOCHa Mr. Anderson, I might be able 3 to adopt tha t suggestion.
I am somewhat reluctant to 4 because it is possible that the legal arguments 5 presented could persuade us that there should be a 6 narrower scope of the evidentiary hearing.
Does that 7 seen like a reasonable concern, Mr. Anderson?
8 HR. ANDERSON:
Certainly it does.
I wanted to 9 make sure that.we are clear that we are not going to be 10 able to argue the law next Wednesday.
11 CHAIRHAN BLOCH:
Mr.. Cowan.
12 MR. COWANs Our concern is somewhat along the 13 same line as Mr. Anderson's, but there is an additional O
14 problea that we see, Hr. Chairman.
15 We think that legal argument should be 16 preceded by filing of briefs on the legal points.
We 17 think otherwise it is not a very manageable way.
The l
l 18 usual practice would be to have an evidentiary hearing.
l 19 The Board might have to make evidentiary rulings on 20 whether things are at least relevant or seem to be 21 relevant or not at that hearing.
22 The legal argument subsequently might change i
23 those, and narrow what the Board thought was relevant.
()
24 But the normal procedure, we would think, would be to 25 have whatever hearing is necessary to answer these l
O i
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1 questions, and any other cross-examination and so 2
forth.
Then to have a briefing, as indeed the schedule 3 contemplated, and then I think it would be useful to 4 have oral argument on the legal points, but we think 5 that ought to follow the briefing.
6 CHAIRMAN BLOCH:
Mr. Cowan, do you estimate 7 the amount of evidentiary hearing time about the same as 8 I do, to be on the order of about two hours?
9 MR. COWANs In terms of the cross-examination 10 on.what we have seen frot Decade and what we have seen 11 from the staff, we don't have such cross-examination.
12 We understood that the other parties didn't either.
I 13 would think that a couple of hours would be more than O
14 sufficient to answer the areas of Board concern.
I 15 don 't know how this new testimony by Decade will factor 16 into that.
17 CHAIRMAN BLOCH:
It sounds like it is very 18 limited from what Mr. Anderson said.
But we will not 19 know until we see it, of course.
20 MR. CHURCHILL:
I wonder if I could pose a 21 question to the parties and to the Board, and it is more 22 of a question than a suggestion.
23 Originally the parties and the Board were
()
24 going to determine whether based on the testimony we 25 thought a hearing would be necessary.
My understanding, AU ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C.
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1 from talking to the other parties, including Mr.
2 Anderson, is that none of the other parties were
[]}
3 prepared to say that they thought it would be n'ecessary 4
to cross-examine any of the testimony that is already on 5 the record.
I am not sure what the case would be with 6
H.
Anderson's new information.
7 MR. ANDERSONs Could you speak up, Mr.
8 Bachmann, please?
9 CHAIRMAN BLOCHa That is Mr. Churchill.
10 I think you are speaking so that it is 11 difficult to hear, Mr. Churchill.
Why don' t you start 12 over?
13 N'..
CHURCHILLs He were going to look at the 14 testimony that has been filed and decide whether or not 15 to hold a hearing.
I believe, leaving aside Mr.
16 Anderson 's new submittal which we have not seen, most of 17 the parties were not going to think that a hearing would 18 be necessary for cross-examination of what is already on 19 the record.
l 20 The Faard has posed some questions that it is 21 interested in, and my question is this:
would it be 22 possible for the Board's questions to be answered in i
23 vriting, and then perhaps obviate the need for actually l
w 24 getting together for a hearing?
25 CHAIRMAN BLOCH:
First of all, I guess the O
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I problem is that I see our concerns as being sufficiently 2 broad that it is likely that f urther questions would 3 have to be asked in order to understand what was being 4
said in the af fidavits.
5 We could take a try, if you thought it was 6 worthwhile, Hr. Churchill, and if the other parties 7
thought it was worthwhile.
We could try to see whether 8
the affidavits would satisfy us without the need for 9 f urther cross-examination.
10 Do you really think, given these questions, 11 that that is likely?
12 MR. CHURCHILLs I don 't know because most of 13 those questions would be answered more fully by O
14 Westingh ouse than by Wisconsin Electric.
I just throv 15 that out as a proposal to the assemblage here.
16 CHAIRMAN BLOCH:
Mr. Cowan, how do you feel?
17 I guess Mr. Churchill is right, most of the 18 questions are addressed either to you or to staff.
Do 19 you feel that your answers could be sufficiently l
20 comprehensive that we could avoid a hearing altogether?
l 21 MR. COWANs I think that it is possible, Mr.
1 22 Chairman, although I think we would have to study the 23 questions a little bit more to determine that, and also
()
24 talk with our people who would be responsible for 25 answering them.
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1 For example, the question on the period of 2
time necessary to protect the information, it seems to 3 me tha t we could have a full and complete answer without
(}
4 auch problem.
On the other hand, the relationship of 5 these tests to ANSI and routinely performed tests, etc.,
6 that.micht cause an answer to be what we would consider 7 complete,but that the Board might think wa s 8 incomplete.
9 CHAIRMAN BLOCH:
I am willing to try the 10 procedure where we do it on the papers, subject to the 11 understanding that the Board might have to decide to 12 call a hearing anyway.
Are there objections to that?
13 MR. TREBY:
Staff has no objection.
In fact, O
14 the staff would prefer to respond to these questions 15 first in writing.
16 CHAIRMAN BLOCH:
Mr. Anderson.
17 MR. ANDERSON :
We have no objection, although 18 we might want to suggest, to facilitate it, if you might 19 to elaborate a little bit more on what you want from Mr.
i 20 Colburn on page 5, to sharpen their answer.
Apart from 21 that, it seems like an adequate procedure.
t 22 CHAIRMAN BLOCH:
I quess I should expand on 23 that question.
Let me find that particular document.
(
24 MR. COWANs Mr. Chairman.
25 CHAIRMAN BLOCH Mr. Cowan?
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1 NB. COWANs Yes.
2 If we are going to respond in writing, even 3
though Mr. Davis and I both were writing fast and 4
furiously and think we have each of the questions down, 5 ve would really prefer to respond to the questions if 6
they could be typed by the Board and transmitted to the 7 parties in some type of written form, so that we could 8 be certain that we have the exact questions as the Board 9
put them.
10 CHAIRMAN BLOCHs of course, I would be willing 11 to set the schedule so that 'you get the transcript 12 first, and we would clarify anything that seems unclear 13 in the transcript.
O 14 MR. COWANs That would be satisfactory also, 15 Mr. Chairman.
What I am suggesting is that in.the l
16 course of doin tha t, it might be useful to expand on the 17 questions per Hr. Colburn on page 5.
18 CHAIRMAN BLOCHa If that is the only area tha t 19 needs expansion, I think I would prefer to do that right 20 now.
21 MR. COWAN:
In Question No. 2, for example, 22 there was a phrase that the Board started and then 23 dropped at the end, and we are not sure whether it is l ()
24 part of the question or not part of the question.
25 CHAIRMAN BLOCH:
The phrase that we started O
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1 with was dropped intentionally af ter you mentioned to us 2 that the brazing and hybrid sleeving would be --
3 HR. COWANs That is Question 3, Mr. Chairman.
{)
4 Question 2 is the one about does the company have a 5 legitimate proptietary interest in concealing tests, 6 etc.
Then you said something about the public having an 7 interest in, and then there was just a drop of the last 8 part of it, and I did not know whether that was or was 9 not part of the question.
10 CHAIRMAN BLOCH:
Please strike that, that was It part of something we had earlier considered asking and 12 decided against.
13 MR. COWANs Okay.
O 14 JUDGE PAXTON:
Before we get away from Board 15 questions, I would like to explore a basic question 16 which appears to have been foreclosed, and this is the 17 extent to which the sleeving tests bear on public safety 18 as opposed to the extent to which they simply represent 19 sound engineering prac tice.
I would like to add that to 20 the Board's questions.
21 CHAIRMAN BLOCH:
There is an additional 22 question from Dr. Paxton.
23 MR. CHURCHILL I could not hear the O
u question.
25 JUDGE PAXTON I will try again, but I thought O
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1 I was speaking loudly.
2 The questio'n is:
The extent to which the 3 sleeving tests bear on public safety as oppcsed to the 4
extent to which they simply represent sound engineering 5 practice.
6 Is that clear?
7 MR. CHURCHILL Yes, thank you.
8 CH AIRM AN BLOCH:
On page 5, Mr. Colburn 9 testified that the NRC staff has concluded tha t the 10 proposed sleeving program does not raise an issue of 11 significant hazards consideration.
I just wanted 12 clarification about whether that related only to the 13 demonstration program, or whethere it relates to an SER 14 we have not yet seen relating to the f ull-scale sleeving 15 program, and whether he would like to qualify that 16 sentence in any way whatsoever.
It is further expansion 17 on the meaning of that first sentence that I have just 18 read a part of.
That is as much as I can do to expand 19 tha t question.
20 Is it agreed now that we will attempt to 21 resolve this issue on written filings.
22 MR. COWAN:
Mr. Chairman, by this issue, if we 23 are talking about the Board questions, we would
()
24 certainly agree that that ought to be and is a good 25 first step.
Then we can reserve, and of course the O
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1 Board would be reserving, whether it subsequently thinks 2 that there is a need for more than written filings.
(])
3 CHAIRMAN BLOCH:
Mr. Cowan, since you are 4 going to have the principal burden of responding, would 5 you like to comment on the time you need from the 6 receipt of the transcript?
7 MR. COWANs I would think we could do it 8 Let me consult with Mr. Davis for one second.
9 CHAIRMAN BLOCH:
I take it, Mr. Treby, that 10 you also will be considering whether your scheduling 11 needs conflict with those that we will soon be told.
~
12 MR. COWAN:
Mr. Chairman, I as hesitating to 13 give a set number of days.
I will suggest 15 days and O
14 the reason that I suggest that is that normally I would 15 like to keep it shorter, perhaps as little as seven or 16 ten days, but I don't know the schedules of o :r people 17 beyond next week on Thursday.
18 If it turns out that one of them is scheduled 19 to bc gone for the following week, we would certainly 20 need the 15 days.
So if I could suggest 15 days from 21 receipt of the transcript, tha t I think would encompass 22 any conflicts that Mr. Christopher or Mr. Weisman might 23 have.
(
24 CHAIRMAN BLOCH:
Then, I take, we ought to 25 have about five days after that within which any of the O
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1 parties might indicate whether they think 2 cross-examination is necessary.
Is that a good idea, 3 too, Mr. Cowan?
,)
4 MR. COWAN Yes, I think that is a good idea, 5
Mr. Chairman.
6 MR. ANDERSON:
Could I ask, Mr. Chairman, I 7 would assume that our affidavit could be in the same 8 timeframe?
9 CHAIRMAN BLOCH:
I have no problem with that, 10 although I frankly don't see why you can't file it 11 faster because of the simplicity of what has been 12 asked.
13 MR. ANDERSON:
I can do that, but I would like O
14 to avoid the expense of the Federal Express.
15 CHAIRMAN BLOCH:
That certainly is 16 understandabale.
There is no need for Federal Express 17 under these circumstances.
l 18 MR. ANDERSON:
Thank you, sir.
l l
19 MR. COWAN M r. Chairman, on that, if I can 20 digress for one moment.
We have not yet received any 21 filings from Decade on their first set of testimony.
22 MR. ANDERSONs Are you sure, sir, because it 23 was mailed February 23rd.
()
24 MR. COWANs We have not received it either at 25 Westinghouse Nuclear Center, where Mr. Davis has his O
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1 office, or in my office.
We have received a copy, 2 obviously, of the two pages that were telecopied in to 3 us from Washington by Mr. Churchill, but we have not 4
received the thing directly.
We just assumed that there 5 was a problem with the mail, and we could straighten 6 tha t out now because we were not disadvantaged here.
7 HR. ANDERSON:
I do apologize.
I will check 8 with our secretary to find out where it wen t astray.
9 MR. COWANs If you could put another copy in 10 the mail to us, with the transcript pages, that would be 11 most helpful.
12 CHAIRMAN BLOCH:
I think to clarify the issue 13 further, I suggest that af ter we have adjourned, and you
()
14 stay on the line to discuss ordering transcripts, that 15 you also could communicate clearly what the correct i
l i
16 address should be.
i 17 Mr. Treby, does the 15-day and five-day 18 briefing schedule suit staf f's needs?
19 NR. TREBY:
As I understood it, it was 15 days 20 from when Westinghouse gets the transcript.
I guess I 21 would like a more definite date.
Do we assume that ther 22 get the transcript in five days, so that we are talking 23 about 20 days from today?
()
24 CHAIRHAN BLOCH:
Why don't we talk about 17 25 days from today.
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1 Mr. Cowan, that is no probles, is it?
2 MR. COWAN4 Let me look at a calendar, Mr.
3 Chairman, 17 days from today.
4 CHAIRMAN BLOCH Assuming that if it ends on 5
the weekend, it will be the next consecutive weekday.
6 MR. COWANs That migh t be a problem, M r.
7 Chairman.
I was assuming that this being a Thursday, I 8 as assuming, in accordance with what usually happens, 9 that we would not have the transcript until week on 10 Monday, or perhaps even Tuesday.
11 CHAIRMAN BLOCH:
Why don 't we make it 15 days 12 from Monday, is that all right?
13 MR. COWANs That is the 23rd of March.
The O
14 reason I an hesitating is that I do not know whether the 15 week of the 15th our people will be available.
If ther 16 should happen to be elsewhere on other matters, 17 especially if they should happen to be overseas, I have 18 a problem.
19 Normally, the 23rd would be fine.
So why 20 don't I say yes to the 23rd, then if I have a problem, 21 it will have to be next Tuesday before I can get back to 22 the Board because one of our people is right now not in 23 Pittsburgh and will not be back until next Tuesday.
()
24 CHAIRMAN BLOCH We intend to be reasonable on 25 granting extensions for good cause.
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1 HR. COWANs Le t 's sa y the 23rd, and if I have 2 a problem, I will get back to the Board not later than
(])
3 by the end of the day Tuesday, the 9th.
4 CHAIRMAN BLOCH:
That means that the 5 indication of whether or not there should be a need for 6 a hearing should be received by us by March 30th.
7 M r. Treb y, is this satisfactory for the 8 staff?
9 HR. TREBYa I guess it depends on how we get 10 the information that is being provided on the 23rd.
If 11 it is sent through regular mail, we are not going to get 12 it before the 30th.
13 MR. COWAN:
We will make arrangements to have 14 it delivered directly to the staff.
So it will not go 15 through the mail, somehow it will be hand-delivered.
1C HR. TREBYs I guess, then, on the 30th we 17 could indicate whether or not a hearing is necessary.
18 I would like to be more clear, though.
When 19 you talk about cross-examination, let's take the first 20 question, is it your anticipation that after the parties 21 have had an opportunity to review the various responses 22 to this, then, the parties would attempt to 23 cross-examine on that?
24 CHAIRMAN BLOCH:
We would need at that time an 25 indication an indica tion of whethe r a hearing is O
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1 required, either because further questions related to 2
those need to be asked in order to clarify matters.
It 3 could be the concern of the parties, and it could be the 4 concern of the Board, but I wanted the parties to be 5 able to indicate if there is such a concern.
6 MR. TREBYa The reason I asked that question 7 is because it affects the form, I guess, in which we 8 submit our response to the 23rd.
If it is going to be 9 subject to cross-examination, it means that it has to be 10 in the form of being sponsored by witnesses or something 11 or other.
If it is just in the form of a legal 12 memorandum responding to these questions, then it is a 13 brief and there isn 't any person identified.
The O
14 question of cross-examination is difficult.
15 CHAIRMAN BLOCH:
We indicated tha t Question 2 16 really requests legal argument.
But with the exception 17 of Question 2, the questions are evidentiary in nature 18 and should be answered with testimony.
19 MR. TREBYs All right, then, I have no problem 20 with the 23rd and the 30th.
21 MR. COWAN:
Mr. Chairman.
22 CHAIRMAN BLOCH4 Yes, Mr. Co wan.
23 MR. COWAN:
Just so I clarify one thing.
We
()
24 vill, of course, answer the questions.
There is some 25 doubt in our mir.d on some of them as to the exact O
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1 relevance.
We will answer thenland we will not raise,
\\
2 at least in the testimony we file or the answers we 3 file, the relevance question, but we - would reserve that
(}
4 for oral argument at a later time.
i 5
CHAIRMAN BLOCH:
That is understood.
If fact, 6 the procedure we are adopting is to have evidence first, 7 and briefs on the balancing test subsequently.
I do 8 vant to get to that.
9 HR. CHURCHILLs Excuse me, Your Honor.
10 CHAIRMAh BLOCH Yes.
11 MR. CilDRCHILL One point of clarification.
12 Are these questions, with the exception of the one about 13 the Colburn testimony, all directed to Westinghouse, or O
14 are you expecting answers from others as well?
15 CHAIRMAN BLOCH:
There is no reason why others 16 cannot respond.
Certainly, I would hope that the staff 17 would respond as well, and there is no Wisconsin can't, 18 snd in fact there is no reason why intervenor can't 19 answer the questions, if they have evidence.
20 MR. CHURCHILL:
Some of them, of course, 21 Wisconsin Electric could not respond to, but some 22 perhaps they could.
23 CHAIRMAN BLOCH:
Is the suggested time
(
schedule acceptable to Wisconsin Electric?
24 25 MR. CHURCHILL We would go with whatever time O
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1 schedule has been established.
2 I would think that all parties who intend to 3 answer any of the questions would have their answers in 4 at the same time.
5 CHAIRMAN BLOCH:
I agree with tha t.
It should i
6 be March 23rd for the answers, and March 30th for an 7 indication of whether a hearing will be required.
8 MR. CHURCHILL 4 The March 23rd date, does that 9 nean testimony in hand?
10 CHAIRMAN BLOCHa Mr. Cowan has explained that 11 he will make sure that the staff has it on that date.
I 12 take it that he will probablJ he willing to do that for 13 Applicant as well.
O 14 MR. COWAN Yes, Mr. Chairman.
They will 15 either have it that date, or the first thing the 16 following morning.
There vill not be a mail gap beyond 17 that.
We will make sure that no later than the mornino 18 of the 24th it is in hand to the staff and to the j
19 Decade, and we will try to have It in their hands on th e 20 23rd.
21 CHAIRMAN BLOCH:
Mr. Churchill.
22 Mh. CHURCHILL:
The March 30 date, is that a
{
23 conference call?
()
24 CHAIRMAN BLOCH:
No, just a writt en indication 25 to be filed by then.
l ()
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1 MR. CHURCHILLs All right.
2 CHAIRMAN BLOCHa It can be done by phone, if
({}
3 you prefer.
4 MR. COWANs May I clarify the situation with 5 respect to Question 2?
I have now reread Question in 6 light of your comment that that is more or less a legal 7 type of question.
8 Perhaps it. vould be more appropriate to defer 9 answering that question until the time of the filing of 10 the briefs, and put that into the briefs and oral 11 argument.
12 CHAIRMAN BLOCH:
I definitely agree with that, 13 unless you have evidence you want to submit that woul be 14 relevant.
As far as the oral argument, there is no 15 reason to have it in an affidavit.
16 MR. COWAN:
Fine, Mr. Chairman.
17 CHAIRMAN BLOCH I would like to suggest the 18 following schedule, subject to comment, that there be a 19 brief on the nature of the balancing test involved in 20 our considerations by April 9, and a reply by April 16.
21 Would staff like to comment on that?
22 MR. TREBYa The staff has no problems with 23 filing its brief on April 9.
What we were just 24 exploring was the problem that a number of us are not l
25 ooing to be here after the 9th, so I am not sure about O
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the 16th.
2 MR. COWANs Mr. Chairman, could I comment on 3
those dates?
4 CHAIRMAN BLOCH:
Certainly.
5 MR. COWANs The 9th is Good Frida y.
6 CH AIRMAN BLOCHs Then maybe the 8th is more 7 appropriate.
8 MR. COWAN:
Assuming that we have no 9 cross-examination called for, it would appear that we 10 would have no problem making the 9th.
Actually, we 11 would bw filing on the 8th.
12 There is a problem, perhaps, on the 16th, both 13 because the prior weekend has Easter in it, and because 14 the 15th is the first day of the Jewish Passover, so 15 some of our people may not be available on the 14th, 16 perhaps, and the 15th and 16th.
17 CHAIRMAN BLOCH:
Mr. Cowan, we are not talking 18 about just a reply b ri ef, which I would hope would not 19 be all that extensive after the initial work.
Is the 20 20th acceptable?
21 MR. COWANs Yes, sir.
22 CHAIRMAN BLOCH:
Is that acceptable to staf f ?
23 MR. BACHMANN:
Yes, sir.
24 MR. ANDERSON 4 It is acceptable to 25 Intervenor.
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1 CHAIRMAN BLOCHa It 13 acceptable to 2 Intervenor.
{}
So the brief on the balancing test is on the 3
4 8th, and the reply on the 20th.
Then, of course, that 5 brief can address whatever issues are considered 6 relevant by the filing party to that issue, including 7 our Question No. 2.
8 MR. ANDERSONa I just want to make it clear, 9 and we have made it clear a number of times before.
We 10 are reserving the right to argue, if we find the 11 evidence does justify it, beyond the question of the 11 balancing test, whether it is proprietary per se.
This 13 is merely a technical reservation, but I just wanted to O
14 make that clear.
15 CHAIRMAN BLOCH:
We will have to rule on that 16 attempt at the tire that it occurs.
I would prefer not 17 to rule now, since it is just a possibility and not a 18 reality.
19 MR. ANDERSON:
I think that is correct, sir.
20 MR. COW AN :
Mr. Chairman, I assume that when 21 you say th? brief is on the balancing test, you are 22 talking about the nature of the test and the facts here 23 as they apply to that test.
There are some other legal
(
24 issues, obviously, thet have been raised, I assume that 25 those are not to be included in this particular brief.
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cax1anan stoca cou1d rou oive me an ex >ote, 2
Mr. Cowan?
3 NR. COWaNs There is, for example, Mr.
4 Chairman, and I think it has been briefed before, the 5 issue of jurisdiction of the Board.
There is the issue 8 of whether this is a challenge to the Commission's 7 regulations.
8 9
10 11 12 13 O
14 l
15 16 17 18 19 20 21 22 23 24 25 O
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1 MR. COWANs There is, for example, Mr.
2 Chairman, I think it has been briefed before, the issue
{}
of jurisdiction of the board.
There is the issue of 3
4 whether this is a challenge to the Commission's 5 regulations.
6 CHAIRHAN BLOCH:
Absolutely.
No, I agree that 7 all of the issues which we have already decided in ways 8 that are unacceptable to the parties need not be 9
retaised at this time, and there certainly will be no 10 rights waived.
What we are interested in is the 11 appli:ation of the balancing test to the facts of this 12 case and to general arguments concerning what 13 circumstances might arise in whien the release of O
14 proprietary information would or would not be 15 appropriate in the public interest.
16 HR. CHURCHILL:
Your Honor, this is Mr.
17 Churchill.
Is it possible to make such an argument if 18 we don't know precisely what proprietary information we 19 are arguing about?
20 CHAIRMAN BLOCH:
We are arguing about the 21 safety tests involved in the. sleeving report.
22 MR. CHURCHILL:
The safety tests.
Okay.
23 MR. TREBY This is Mr. Treby.
I guess one of
()
24 the concerns I have also is th a t, you know, while we can 25 prepare legal arguments setting forth the standards or O
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I the tests that we think should be applied in doing this 2 b al an cin g, of course, we don't have any evidence yet as
~
3 to what information is being put into the balance, and
)
4 how the standards are being -- are used in this 5 particular case, since we have not had the -- we will 6 not have had the evidentiary hearing or any --
7 NR. ANDERSONs You will have the affidavits, 8 and the object of having this filing is that we are 9 hopeful that the affidavits will be the final answer.
I to guess that if we do decide to hold an evidentiary 11 hearing, we might decide to hold the briefing schedule 12 in abeyance.
13 MR. TREBYa Hight.
So as I understand it, O
14 whatever affidavits we presently have that have been 15 filed as the testimony and whatever of Mr. Anderson is i
16 going to be providing us in the aail today or tomorrow 17 will constitute all of the evidence on this subject.
18 MR. ANDERSON:
Plus the answers on the 23rd of 19 March.
20 MR. COWAN:
Mr. Chairman, I assume that if we l
21 get somthing froa Mr. Anderson here in the -- between 22 now and the 23rd of March, that when we get that, which 23 might even come in next week, that if we think that
()
24 there is a need for cross examination or further 25 testimony or further inquiry to Mr. Anderson in O
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1 connection with that, that the board would want to be 2 r.otified of that right away rather than wait until the 3
23rd, or indeed wait until the 30th.
4 CHAIRMAN BLOCH That's correct.
5 Now, we have some other matters that I wish to 6 attempt to resolve.
7 HR. CHURCHILLs Your Honor --
8 CHAIRMAN BLOCHs Yes.
9 HR. CHURCHILL:
-- I have a couple more 10 questions on this procedure, if I might.
These are just 11 procedural.
One is that you, then, as I understand it, 12 vill have before you as a record in the proprietary 13 information part of this procedure --
14 CHAIRMAN BLOCHa Could you speak up, please, 15 sir?
16 M.?. CHURCHILL 4 You will have before you as 17 part of the record upon which you make your decision the 18 various filings of the parties.
Some have come in under 19 affidavit and some have not.
I am assuming now there 20 would not be a hearing.
Would you then require 21 affidavits to get this into evidence so that it is 22 properly before you?
23 CHAIRMAN BLOCHa I do intend to be relying on
()
24 affidavits.
I am not sure which -- Of course, we have 25 had affidsvits with legal arguments also, but yes, I O
l l
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I would hope that we would be relying on evidentiary 2 statements and not on briefs.
3 MR. CHURCHILLs Because I notice, for exanple,
[}
4 that the Westinghouse testimony was supplied as 5 pre-filed testimony without affidavits.
I think maybe 6
the staff's was as well.
I don't recall.
j l
7 CHAIRMAN BLOCH:
I think that probably could 8 be remedied fairly easily.
9 MR. CHURCHILLs Yes, I think so, too.
10 MR. DAVIS:
Mr. Chairman, this is Frank Davis 11 of Westinghouse.
What I have in mind is a one-page 12 affidavit, one from Mr. Weisman, the second from Mr.
13 Christopher, saying that what theY stated in the O
14 submittal dated February 25th was true and correct to 15 the best of their knowledge.
Their qualifications 16 already exist in those documents that were already 17 filed.
This would be the form of the affidavit that I 18 have in mind.
Is that acceptable?
19 CHAIRMAN BLOCH:
That sounds appropriate.
I 20 have no objection to it.
If Decade raised an objection, 21 I would have to rule on it.
22 The next question tha t I wish to address is 23 slightly contrary to what I said before about denying
()
24 everything in th e Decade's filing, and therefore I want 25 Mr. Cowan's statement as to whether I can go ahead on O
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I this particular point.
We may have to decide at his 2 urging to delay it.
So there is an issue that has been 3 raised by Decade about the deletion of the dollar figure 4
in the information turned over to it.
It hasn't said 5 very much about it except that it needs it and it is 6 objecting to the entire Weisman testimony.
We are not 7 inclined to grant the exclusion of the Weisman 8 testimony, but if Mr. Cowan is prepared to comment on 9 whether or not the dollar ficure contained in the 10 Weisman affj. davit should be turned over to Decade under 11 pro tective order, I would appreciate that comment.
12 MR. COWANs One moment, Mr. Chairman.
13 (Pause.)
O l
14 MR. COWAN:
Mr. Chairman, my understanding of 15 the state of the record is that we objected to giving to 16 Decade not only the dollar figure, but certain other 17 information in the Weisman affidavit that we claim is 18 proprietary, that the Board directed in an order which l
19 is either in a transcript or an order that we give a 20 proprietary version of the Weisman affidavit to Decade, 21 but that we delete the dollar figure from that, and we 22 need not furnish them the dollar figure for this purpose.
23 We don't understand -- I assume that what this
()
24 is is in the nature of a motion for reconsideration of 25 that board order with respect to the dollar figure.
We O
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aoa t xnow wa t the d 1= ror oec de c1 1 i= ta t 2
they need to know the specific dollar figure that is 3 involved here.
4 CHAIRMAN BI.0CH:
Mr. Cowan, you have persuaded 5 ne that we should await your answer.
6 HR. COWAN I mean, we would have to see what 7 basis they are giving.
If they give a good basis that 8 sounds reasonable to us as te why they need to -- why 9 they need to have in a proprietary way the specific 10 dollar figure, we might not object to giving it to Mr.
11 Anderson, but in general terms, unless we see that, we 12 will object to it.
13 CHAIRMAN BLOCH4 I would hope that the parties O
14 would possibly discuss this and attempt to resolve At, 15 but if they cannot, then there will have to be a 16 response by whomever would like to respond and then a 17 ruling by the Board.
18 VOIC Ea I think I -- if I could add something I know you don't want argument on 19 which I don't want 20 this, but I want to make sure the procedural process in 21 our mind is clear to the parties.
We do not believe we 22 are required to, nor do we intend to explain the 23 justification for an objection to an allegation of O
u confidentie uty when we don t know whet the ette 1e, 25 and so our procedure is, if we are not shown that, our O
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1 objecM on is on the basis of due process, and until we 2 are shown that, we don 't intend to in the dark say what
(]}
the justification for our need to have that is.
3 4
It is a two-step process in our mind, and I 5
want tha t to b.s clear to M r. Cowan.
6 CHAIRMAN BLOCH:
I don 't think we need to 7 argue that point.
I think your filing states what your 8
position is.
9 There has been an objection to the receipt of 10 the Coburn testimony primarily on the grounds that it 11 contains legal argument, and that there are certain 12 conclusions reached in the te stimon y that are not 13 properly received into the record, and we reject both of O
14 those arguments, first on the ground that while there 15 may be some legal argument in the affidavit, that the 16 Boa rd is aware of the difference between facts and law, 17 and can treat the legal arguments appropria tely.
We see 18 no harm in receiving those legal arguments within the 19 affidavit.
20 And secondly, the conclusions that are drawn i
21 by Mr. Coburn can also be accorded a ppropriate 22 evidentiary weight, and we see no harm in ceceiving them 23 into the record.
(
24 Simila rl y, there is an objection to a portion 25 of the Weisman testimony, that is, in addition to the O
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1 objection because of the deletion of the dollar figure, 2 and that objection is that the witness is not qualified 3
to testify on nuclear safety, and that there is no
~
{}
4 factual support for some of his assertions.
We prefer 5 to treat those as matters going to the weight to be 6 given to the testimony, and also to receive l' into our 7 record.
8 I would like to have a comment from Mr. Cowan 9 about what problems there are about the receipt into our 10 record of the sections of the Wisconsin Public Utility 11 Commissi'on proceeding that have been cited by Decade.
12 Are you able to respond to that, Mr. Cowan?
13 MR. COWANs Yes, Hr. Chairman.
We are -- we O
14 have been checking that.
We don't have all of the pages 15 that Decade cited here and available to us, but it is 16 our understanding, leaving aside the relevance question, 17 because obviously we don't think that is relevant, that 18 material is relevant, and I won't argue why we take that 19 position now, but as I understand it, there are five 20 attachments or five references that Decade makes in 21 their testimony or in Mr. Anderson 's submission.
l l
22 Two of these pages come from a -- or two of 23 th e references come from non-proprietary hearing
()
24 transcripts, we have been advised, and obviously we 25 don't have any objection to Decade furnishing them.
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1 Whether they should come into evidence or not is a 2 question, I suppose, of relevance, but we don 't t.cVe any 3 objection to Decade furnishing those to all the parties 4 and to the Board as part of its filing.
5 We obviously don't have any objection to them 6 furnishing to the Board an article that has been in the 7 public newspaper, which was also attached.
Two of the 8 ref erences were to pages in the proprietary or in camera 9 transcripts.
We are checking currently as to whether 10 there is anything on those specific pages that would be 11 proprietary.
We have been advised by the Wisconsin 12 people that they don't think there is, and we are 13 checking that.
If there isn't an ything that is l
b 14 proprietary on those specific pages, we would not have 15 an objection to the Board receiving those and the other 16 parties receiving those.
17 However, we also understand, and we were not 18 counsel on this, that the question is more complicated 19 than that, because that entire in camera transcript is 20 under a protective order from the state regulatory body, 21 and so I am just saying that those particular pages, we 22 don't have a problem with in terms of not containing 23 specific proprietary information on those pages does not
()
24 equate with an authorization to disclose those pages.
25 CHAIRMAN BLOCH:
Mr. Anderson, one moment.
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1 I would like to know, Mr. Cowan, whether the 2 p'rotective order also prohibits Westinghouse f rom 3 disclosing the information.
4 MR. COWAN:
I don't know, Mr. Chairman.
I 5 have not seen, I don't believe, the protective order 6 there.
I would have to check that with Westinghouse 7 counsel in Wisconsin who handled this.
8 CHAIRMAN BLOCH:
Okay, I would like you to 9 till me, Mr. Cowan --
10 MR. ANDERSON:
Could I clarify 11 CHAIRMAN BLOCHs I will let Mr. Anderson talk l
l 12 in just a moment, but I would like you to tell me, Mr.
13 Cowan, by what date you believe you can clarify these O
14 matters of confidentiality from your standpoint for our 15 record.
16 MR. COWAN:
Well, Mr. Churchill might be able 17 to clarify it on the phone.
His firm was obviously 18 counsel to Wisconsin on this, on the state proceeding, 19 so perhaps he can clarify it right here.
20 CHAIRMAN BLOCHs Mr. Anderson, is your comment 21 urgent at this point?
22 MR. ANDERSON I think it bears, it is not 23 urgent, but it bea rs at this point, so I can speak if
()
24 you would like.
25 CHAIRMAN BLOCH:
Please.
O l
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1 MR. ANDERSON:
By letter dated February 26th, 2
which I hope the parties ha ve received, we sent a letter
(])
3 to the Public Service Commission formally requesting 4
permission for them to release -- to lift that 5 protective order over those documents under various 6 conditions which I won't get into here that relate to 7
whether Bestinghouse agrees or not, so we are operating 8 under the assumption that we have to have release from 9
We have sought that, and we 10 assume that if Westinghouse does not agree to public 11 release, that we could -- that the-Commission is also 12 being asked to give a release for an in camera 13 transcript of the NRC.
O 14 Our understanding of the order of the 15 Commission in the State of Wisconsin is that it is 16 sebject to different interpretations.
We interpret that 17 trade secret protection to bind all parties to that, 18 including Westinghouse and Wisconsin Electric, and they 19 do not, and that is, of course, one of the contentions 20 ve are taking to this proceeding as well as the 21 differential effect of that kind of protective order.
22 CHAIRMAN BLOCH:
Mr. Churchill?
23 ME. CHURCHILL:
I wonder if maybe a lot of
(
24 this could be avoided.
I plan to object to the 25 introduction of this material into this record, not O
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1 because it contains proprietary information, but because 2 it is totally irrelevant to the question of whether the 3
Westinghouse test results in this case should be
{)
4 withheld.
5 One point of clarification --
6 CHAIRHAN BLOCH:
Mr. Churchill, I would like 7 to ask a ' question about that before you go on.
My 8 concern about the possible relevance of the information 9
is, I take it that Decade has argued that there was 10 information that was claimed to be proprietary and then 11 released.
I just wonder if the fact that the 12 information was claimed to be proprietary and then 13 released goes to the importance of retaining as O
14 confidential all of the information that is certified as 15 confidential.
16 MR. CHURCHILLs No, it is an entirely 17 different type of information in that case.
In that 18 case -- this is a contract, what is known as a 19 settlement agreement between WEBCO and Westinghouce 20 Electric, and it had to do with some commercial terms 21 and conditions between the two parties.
22 CHAIRMAN BLOCH:
Okay.
I guess I would prefer 23 to hear the motion on why it is irrelevant and the
()
24 responses before I rule on that question.
25 MR. ANDERSON 4 This is Peter Anderson.
One O
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thine1
=teato
- eeteristht
- he11 ve --
2 have withheld the attachments to the Board as a courtesy 3
to Mr. Cowan to ensure he has full rights to make his 4 assertions about proprietary protections that he feels 5 he needs.
We don't think our courtesy to Mr. Cowan can 6 sean that a relevancy objection can be heard without'the 7 Board having the f ull matters before it, so we would 8 have to insist from our perspective that we first decide 9 what the procedure is to get these matters before the to Board, and then af ter the Board has the matters in its 11 hand, address Mr. Churchill's ralevancy objection.
12 CHAIRMAN BLOCH:
Mr. Churchill, how do you 13 feel about tha t?
O 14 MR. CHURCHILLs Well, I just -- Y our Honor, I 15 think that Mc. Anderson characterized the content of 16 those transcript pages.
It has nothing to do with any 17 substantive material that bears on this case, and not 18 only -- I just can' t even begin to see why it would be 19 relevant, if Mr. Anderson has --
20 CHAIRMAN BLOCHs Okay, but I think you ought l
l 21 to address in your filing the question which Mr.
22 Anderson has raised, which is whether we can 23 appropriately rule on the relevance of information based O
24 on Mr. Andeson s cherecterizetion - whether - eught 25 to rule on it after we have seen it.
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1 HR. CHURCHILL:
Well, I question his 2 characterization as a courtesy to the Board.
I notice 3
for one -- or to the parties.
Some of that information,
)
4 including the newspaper article, contains no proprietary 5 information.
It is on the open record.
And I wonder 6 why those three things were not attached to the 7 affidavit.
Obviously, that would have nothing to do 8 with proprietary information.
The other two things he 9 could not release.
He is bound not to.
The only way he 10 could do that if there is some way a release involving 11 the Public Service Commission were -- It is an issue 12 that is not even important to have to go through all 13 those machinations, because it is irrelevant, and I am O
14 wondering if just on the f ace of what he says in 15 cha racterizing those, the Board could almost determine 16 the question right now.
17 CHAIRMAN BLOCH I would prefer not to without 18 your motion on relevance.
You say you are about to file 19 a w ritten mo tion.
20 HR. CHURCHILL:
I wasn't planning to.
I was 21 planning to argue it orally on this conference call.
22 CHAIRMAN BLOCHs I think there would be a 23 problem -- well, Mr. Anderson, how do you feel about
()
24 arguing it orally?
We would not decide it now, b'ecause 25 I would wan t to examine the filings in detail before we O
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1 decided the issue.
How do you feel about arguing it now?
2 MR. ANDERSON:
Well, as long as it is 3 understood that we intend to argue that the argument, 4
the only argument is whether you can rule on a relevancy 5 objection without having the matter before you, and I 6
think until the Board answers that question, which we 7 are willing to argue orally at. this point in time, the 8 question Mr. Churchill wants to ask does not arise.
9 MR. CHURCHILLs Well, don't you think it would 10 be enlightening to the Board to explain why this 11 particular incident that occurred in that other 12 procedure, which has nothing to do with the substantive 13 matter here, could possibly be relevant?
It would be O
14 enlightening to all of us, because we frankly can 't even 15 begin to understand how it is relevant.
16 CHAIRMAN BLOCH:
Can he explain that without 17 divulging the information ?
18 MR. CHURCHILL There is no information to 19 divulge, Your Honor.
All he is talking about 20 MR. ANDERSON:
I think that is not correct, 21 sir.
This is Peter Anderson speaking.
Mr. Churchill 22 has argued that a settlemen t agreement, in his words, is 23 different than the kind of confidentiality assertions
()
24 being made here.
I think you have to have that before 25 you to understand whether that distinction or that O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) $$4 2345
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to a 1r 11t the airiere=ce 2 is in f act a hairsplitting difference of any meaning o'r 3 not.
4 I think that is very much the reason why we 5 have to have it.
I want to emphasize again if I may, 6 Mr. Chairman --
7 CHAIRMAN BLOCH:
One second.
8 HR. ANDERSON:
-- we have withheld this filing 9 of the attachments as a courtesy to Mr. Cowan, and we to don't think.we should be disadvantaged by having 11 extended tha t courtesy, and we feel disadvantaged.
12 CHAIRMAN BLOCH:
Okay.
Mr. Anderson, I would 13 like to know, since the question has been raised, I will O
14 give you first and last shot at this, why the 15 information is relevant.
It relates to a settlement?
16 17 10 19 20 21 22 23 24 25 O
ALDERSON REPORTING COMPANY INC, 400 VIRGINIA AVE., S.vv., WASHINGTON, D.C. 20024 (202) 554-2345
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MR. ANDERSON :
It relates to an assertion of SGamto t. (p.j1 2
confidentiality-about nunbers that the company and the vendor 3
assert create a competitive advantage to both of them with O
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4 connection to Point Beach.
5 JUDGE BLOCH:
This is Westinghouse and Wisconsin e
U 6
Electric who made these assertions?
R S
7 MR. ANDERSON:
That's correct, in Public Service s
8 8
Commission Docket 6630-CE-20.
dd 9
JUDGE BLOCH:
All right.
They made that assertion io G
10 and subsequently portions were released, is that your argument?
Ej 11 MR. ANDERSON:
Portions were released by a spokes-a j
12 person.
And we intend to argue when we get to the briefing
(])
13 schedule in this proceeding that in terms of that balancing m
l 14 test is that the whole issue of confidentiality is really a 2
15 political question being raised, in which the vendor and the W
j 16 licensee are attempting to keep maior issues of import to the w
g 17 public out of the public dialogue.
M M
18 I think that the release, the mechanism and the
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19 sequence and the details of what occurred in Wisconsin speak 8n 20 to that fact that it is a political process going on and not 21 a legal, competitive, proprietary process going on.
p) 22 JUDGE BLOCH:
fir. Churchill, I'm not sure that I ss 23 agree with the characterization of it as a political process, i
I (v~3 24 but I would like your comment on whether it is relevant to the 25 ;
balancing test that information previously clained to be ALDERSON REPORTING COMPANY,INC.
se 2 3<r
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proprietary was involuntarily released.
Does it go to the 2
credibility of the evidence being filed by Wisconsin Electric 3
and Westinghouse?
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4 MR. CHURCHILL:
It has no relevance.
In the first n
5 place, it was commercial information which is not even being
?
6 attempted to be brought into it.
Mr. Anderson is not wanting a
7 to bring the information into this --
M j
8 MR. ANDERSON:
Mr. Churchill, louder, please.
do 9
z, MR. CHURCHILL:
Mr. Anderson is not attempting to c
g 10 brina. the settlement agreenent itself or any of the substantive k
II parts of it into this.
What he is attempting to do is to a
N I2 show that information was inadvertently released by Wisconsin 3
()f13 Electric after there had been a proprietary --
h 14 JUDGE BLOCH:
No one nentioned inadvertent release.
g 15 MR. CHURCHILL:
Oh, it was inadvertent.
He is well
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16 aware of that.
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MR. ANDERSON:
I do not accept that, sir.
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18 JUDGE BLOCH:
Well, in any event, having heard those I9 g
arguments from both parties, I'n not prepared to rule without n
20 a record, and we therefore do have a question as to whether it 2I can be received by us.
22 MR. COWAN:
Mr. Chairman, could I talk on this
({}
23 :
subject?
i 24 JUDGE BLOCH:
Yes, Mr. Cowan, please.
(])
25 I regret -- I would certainly reconsider if you'd ALDERSON REPORTING COMPANY, INC.
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1 give me reason to.
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2 MR. COWAN:
Okay.
Thank you, Mr. Chairman.
3 Ne believe that the information that Mr. Anderson 4
would propose to have as evidence is irrelevant, and from our e
5 standpoint it doesn't matter whether the information that he M9 6
points out was inadvertently released or deliberately released.
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argument, that it was either inadvertently released or d
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10 wants to have it.
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11 Our position is that it is not relevant in any 3
g 12 event, because the fact that we keep information proprietary (3
3
/ jg 13 and then determine, if it was not an inadvertent release, m
h 14 determine to release some of the information at a later time 2
15 does not destroy our claim to keep other information proprietary.
j 16 And that would be true even if the information in the Wisconsin w
d 17 state case happened to have been technical information.
18 In other words, our position is that proprietary 5
3 19 has a time concept to it and a utility concept, a usefulness M
20 concept to it.
We may well keep some information proprietary 21 because we have a lead time on a competitor, for example, and
(])
22 -
thereafter when we decide that the value of naking the 23 information public to us is, for commercial reasons -- outweighs
(])
24 the disadvantage that we receive when our competitor gets that 25 ;
information, se might at a later tine disclose proprietary ALDERSON REPORTING COMPANY. INC.
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information or infornation that was formerly proprietary.
2
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2 So the fact that in the Wisconsin case this 3
information was later disclosed after initially being
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4 proprietary is not relevant to the question of whether on the 5
g information the Board now has in front of it that it is 9
6 considering that information should be kept proprietary or not.
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7 JUDGE BLOCH:
Does the staff have a comment 7 s
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f1R. TREBY:
Yes, the staff does have a comment.
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z, og 10 The staff also believes that this information is not
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I 12 that the pending issue is a narrow issue, and that issue is c
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Looking at the
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5 18 it appears t'o relate not to the tests regarding sleeving but P
19 g
to some sort of settlement agreement.
M 20 We don't believe, therefore, that it's at all 21 relevant to the issue here.
The only purpose we c'an see for 22
(')T putting this evidence in is to perhaps show that in one v
23 l instance information which was at one time claimed proprietary 24
(])
was subsequently released and then no longer claimed proprietary.
25 i For the reasons that Mr. Cowan has just set forth, we don't ALDERSON REPORTING COMPANY, INC.
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believe that that is relevant here either.
2 Ue have -- the staff has --
3 JUDGE BLOCH:
fir. Treby, with respect to the 4
documents that have been claimed to be proprietary in this 5
casc, can we infer for some other reason that some of the a.
3 6
infornation claimed to be proprietary may have only marginal R
7 value as proprietary information and that its release would not a
j 8
be very damaging?
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9 Does the fact that information previously was claimed zo h
10 to be proprietary and then voluntarily released go in any way
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5y 13 MR. TREBY:
I'm not sure that that's the issue m
l 14 in this case.
It's not' the issue of how important or unimportant
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15 the claimed proprietary information is.
As I see it, there are
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The first issue is whether or not the information W
17 meets the tests to be considered proprietary which are set 5
y 18 forth in (b) (4 ) of the appropriate Commission regulation.
"g 19 And then the second issue is the balancing of the n
20 public's need to know that information versus the claimed 21 competitive value of the information.
(])
22 JUDGE DLOCH:
Ifr. Treby, for the purpose of this 23 evidentiary decision that the Board is being called on to make,
(])
24 you are arguing that how important it is commercially to 25l Wescinghouse that each of these tests be kept proprietary and ALDERSON REPORTING COMPANY, INC.
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withheld from the public, regardless of the financial importance
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2 to Westinghouse of each individual test, that the balancing 3
test is not affected?
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MR. TREBY:
How important it is to Uestinghouse may e
5 go to the first matter, and that is whether it should be 3
N 6
claimed to be proprietary or not, although that's only one of G
7 the factors to be considered in naking that determination.
M j
8 JUDGE BLOCH:
No, but assuming that it has some d
9 proprietary value, having gotten beyond that hurdle and saying 10 it's properly proprietary, is it your view that once you've 11 jumped diat that looking at how inportant it is commercially a
p 12 and weighing that against the public interest in release is not
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5 13 relevant, that whether it is extremely valuable to Westinghouse h
14 or has some small proprietary value is irrelevant to the 2
15 balancing test?
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16 MR. TREBY:
I guess I wouldn't characterize it as W
g 17 totally irrelevant, because there is a balancing involved.
You 18 have to balance the public's need to know versus the competitive P[
19 nature, the competitive value to the company.
And if competitive M
20 value is not very high, then the public's need to know may not 21 be very high.
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22 But I think that's getting beyond the point here,
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25 '
be proprietary -- I'm not sure that that is relevant to the ALDERSON REPORTING COMPANY, INC.
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issues in this case, which is the test results.
I'm sure that
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there have been many instances in the past where infornation 3
which had been claimed to be pr6prietary at one time has
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5 proprietary.
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6 JUDGE BLOCH:
I would like to hear for three minutes R
7 from each of the following people in turn:
Mr. Cowan, s
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Mr. Churchill, and Mr. Anderson.
And then I will attempt to d
9 rule on this question.
Mr. Cowan?
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10 MR. COUAN:
Yes, Mr. Chairman.
Two points.
- One, 3
h 11 with respect to the infornation that Mr. Anderson is talking w
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It was released by Hisconsin
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17 knowledge of Westinghouse in advance.
5 18 So that we think that is just another added reason
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5 19 'l why that particular fact circumstance that he is talking about 2n 20 is irrelevant to this.
We think it should have been afforded 21 protection, is our view.
But we think that's another reason (U~T 22 why his proposed testimony is irrelevant.
23 Secondly, with respect to the dialogue the Board just 24 had with the staff concerning how proprietary is proprietary,
(])
25,
we would make two observations.
First of all, in the ECCS ALDERSON REPORTING COMPANY, INC.
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hearing the question of whether a piece of the puzzle, a piece 2
of the proprietary information, night be in and of itself 3
proprietary alone, standing alone, or whether it was accorded r"S#
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g and the Comnission subsequently approved in its approval of the n
6 Board's handling of proprietary information in that case, the R
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concept that individual pieces of the puzzle, even though in s
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and of themselves not important, but which when put together d
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I2 JUDGE BLOCH:
One second, Mr. Cowan.
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13 MR. COWAN: Yes, sir.
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mg 14 JUDGE BLOCH:
My understanding is that to this 15 point you've never argued that there is a mosaic and that the
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W I7 Am I incorrect in that?
Is Ehere any evidence --
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We think that's legal argument, Mr.
P" 19 g
Chairman.
The nature of the information is such t! at obviously n
20 some figure -- a single set of numbers standing alone may or 21 may not be particularly important.
It's the overall pattern
()
22 of everything that's in there when taken as a whole that's 23 ;
important, in our judgnent.
(])
24 JUDGC B.OCH:
I see.
You are saying that the pattern 25 l of safety tests would in fact help to disclose what the process t
ALDERSON REPORTING COMPANY, INC.
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itself is.
I see no evidence in our record --
2 MR. COWAN:
That's only a part of it, Mr. Chairnan.
3 And we're saying a lot more than that.
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4 JUDGE BLOCH:
Hell, are you saying that?
Because if 5
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I don't n
6 think there 's any evidence at this point on that issue.
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MR. COWAN:
We interpreted that to be a legal argunent, Mj 8
Mr. Chairman.
If the Board thinks that's a factual position, d
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g 10 not covered in our testimony.
E II JUDGE BLOCH:
You're asking me to draw a factual M
f I2 inference, that if people see some of the safety tests they'll 3
p) g 13 know what your proprietary process is.
And this is the first s.
l 14 time that that argunent has been made on this record.
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15 MR. COWAN:
I thought we were asking -- we were
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If it is not, we'll have to A
h I7 supplement our testimony on that point.
He'll take a look at s
x 18 the testimony and at this part of the transcript and decide 1
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what we need to do on that, Mr. Chairman.
n 20 JUDGE BLOCH:
Okay.
21 MR. COWAN:
If I could finish on the other point,
(])
you asked the staff whether the proprietary information, whether 22 23 if it's really proprietary or only marginally proprietarv 24
()
makes any difference on the (b) ( 5) test.
We think the (b) (5) 25 balancing test, the one end of the balance is "the demonstrated ALDERSON REPORTING COMPANY. INC.
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D ato lo 1159 1
concern for protection of a competitive position."
And that 2
demonstrated concern takes us back to the (b) (4) analysis.
So 3
we agree with the staff that it is in (b) (4 ), where we are 4
demonstrating the concern for the protection of a competitive e
5 position and that it is in the context of (b) (4) that the 34 3
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13 JUDGE BLOCH:
And if we were to disagree would that m
5 14 af fect the admissibility of this evidence?
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15 MR. COWAN:
No, it would not, because we think it is
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17 JUDGE BLOCH: Primarily that it was released by
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18 Wisconsin Electric?
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19 MR. COWAN:
Well, in part -that it was released by 5
20 Wisconsin Electric, but in part because there is no doctrine 21 that says that the mere fact that in a different context we l
l
(])
22 released commercial information, even assuming it was deliberate 23,
and even assuming Westinghouse had released it, the fact that
([)
24 we released commercial information has any bearing on whether 25 or not we properly did a balance on the -- the balance is ALDERSON REPORTING COMPANY, INC.
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properly made on release of this type of testing information.
Ob 2
JUDGE BLOCII:
Okay.
Mr. Churchill, you --
3 MR. COWAN:
We'd have to get into an awful lot of O
4 die 1ogue end discus,1om ebout why thee informntion was grogrieter g
5 why that other information was released, and so forth.
0 6
JUDGE BLOCII:
Mr. Churchill?
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MR. CIIURCIIILL:
Yes, Your IIonor.
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8 JUDGE BLOCII:
Will you please speak up.
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9 MR. CIIURCIIILL:
The issue before us right here is zo h
10 whether certain safety tests in this proceeding should be a
II released.
The issue in this other proceeding involved a 5c j
12 commercial document with absolutely no safety or technical 5
O i I3 ineormeeion in it.
The fece ehet some of te wee re1eeeed end l
14 it was inadvertent simply would have no bearing on whether the
$j 15 safety tests should be released.
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18 both parties had an equal claim and an equal stake in keeping P"
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it proprietary.
In fact, there was testimony to that effect.
n 20 The fact that part of it was inadvertently released probably 21 harmed Wisconsin Electric as much as it did Westinghouse.
But 22
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in any event, it was not Westinghouse who released it.
23 And also, the subject matter of that, which is a 4
24
(],
contract, is not a part of this record, nor is it relevant to 25 '
this record, nor has it been offered.
The information ALDERSON REPORTING COMPANY,INC.
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Mr. Anderson is offering is not the information that was being 2
kept secret, that was being protected.
The information that he 3
is offering is to show simply that it was in fact released.
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4 JUDGE BLOCH:
Are you saying that the aortion of the 5
3 record being offered shows the release, but would not offer us n
3 6,
any opportunity to weigh the potential importance oi the R*S 7
information that was released or the way in which it was A
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represented to the utility commission to be proprietary?
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9 MR. CHURCHILL:
Hell, it certainly wouldn't disclose zc h
10 any of the actual information that's being kept proprietary.
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f I2 want it proprietary, there were arguments, the Public Service
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h I4 there was a news article in which sone of that information was
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Would the portion of the record being W
h I7 offered, Mr. Churchill, i--'.ude a portion in which Westinghouse IO or Wisconsin Electric discuss how inportant this proprietary P"
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information was to it?
n 20 MR. CHURCHILL:
I guess I don't have an answer to 2I that.
Maybe --
22
()
JUDGE BLOCH:
Maybe tr. Anderson can help.
That's 23 one question, and related to that, T wonder whether a similar
()
24 f argume re was made in that case, that the release of a portion 25 !
of the document was part of a puzzle?
f ALDERSON REPORTING COMPANY, INC.
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MR. CHURCHILL:
No, sir, in that case it wasn't.
The
()
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3 JUDGE BLOCH:
But only a portion was released?
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4 MR. CHURCHILL:
Only a portion.
In fact, it wasn't e
5 really a portion of the document that was released.
It was two Mn 6
facts from the document that somebody uttered orally, on Good R
7 Friday when there weren't other people around, by nistake to a 3
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member of the press that had called up the communications officer d
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at Wisconsin Electric.
7:0 10 No part of the document itself was released.
Somebody
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12 JUDGE BLOCH:
And now Mr. Anderson -- I'm sorry.
5
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13 Mr. Churchill, have you completed?
h 14 MR. CHURCHILL:
Yes, sir, I have.
2 15 JUDGE BLOCH:
Mr. Anderson?
g 16 MR. ANDERSON:
At this point in time there is one and W
17 only one issue before the Board, and that is whether a decision-N 18 maker can decide a question of relevancy about a natter it has 5
h 19 not yet seen, and especially in a case where it's put in that n
20 posture because of one party extending a courtesy to another 21 party which another party is abusing.
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23 is going to unfairly and improperly abuse our courtesy and i
24 we're forced to argue it, I would add these following points.
25,
The whole discourse which has occurred only served to ALDERSON REPORTING COMPANY, INC.
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illustrate the need for the Board to have those specific
(])
2 matters before them.
For example, the statement that Mr. Cowan 3
made that sometines a disclosure is appropriate because time
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4 passes by the need to protect it.
Without having the docunents s
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15 should receive them in good faith in making that balance test 5
g 16 is in our view fundamental.
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17 MR. COUAM:
Mr. Chairman, may I have the Board's 5
5 18 indulgence for one comment?
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19 JUDGE BLOCH:
May I ask whether it's going to require g
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21 MR. COUAN:
I don't believe so.
22 We do not have a problem with the Board seeing the 23,
documents before it rules.
We don't think that's necessary for 24 a ruling in this case, because we think the relevance point is 25 ;
very clear.
But j ust to allay Mr. Anderson's concern that i
ALDERSON REPORTING COMPANY,INC.
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somehow we're taking advantage of hin, we also have not seen the
(~)
2 documents here at Pittsburg.
We don't have them in front of us ss 3
either.
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4 But apart from that, we don't have a problem if the s
5 Board feels that it needs to have the documents in order to N
6 rule on the relevance.
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8 JUDGE BLOCH:
Mr. Churchill, is it a problem from d
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your standpoint?
io 10 MR. CHURCHILL:
It may be, in the sense that disclosure 6
h 11 to the Board, even for the purpose of looking at it, of those k
y 12-portions of the transcript that were in the in camera session 5
13 could be a violation of a protective order set down by another
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14 legal body.
Now, Mr. Anderson has written to that legal body 2
15 and asked permission, and before that body could grant the 5
g 16 petition I would assume -- the permission --
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17 JUDGE DLOCH:
I take it it was a protective order 5
M 18 issued to protect interest: which were presented to that body 5
[
19 by Nisconsin Electric and Westinghouse.
Is there really a n
20,
problem if both Wisconsin Electric and Westinghouse were willing 21 to stipulate to the limited use of this information or if the 22 Board were to rule that there was no waiver of the 23,
confidentiality claims?
24 MR. CHURCHILL:
I suspect, Mr. Chairman, that O
25 eventually this could be worked out.
i l
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ALDERSON REPORTING COMPANY. INC.
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MR. ANDERSON:
I suggest -- this is Peter Anderson --
()
2 that if Westinghouse and the licensee were to communicate their 3
belief.--
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4 JUDGE BLOCH:
Mr. Anderson, I think Mr. Churchill is e
5 still trying to speak.
So let him finish and then --
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6 MR. ANDERSON:
I' m sorry.
I didn't' hear him speaking R
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at all.
8 JUDGE BLOCH:
-- I'll give you an opportunity.
od 9
Mr. Churchill?
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10 MR. CHURCHILL:
I just think that the parties -- and a
h 11 here I'll echo a concern raised by Mr. Anderson over and over
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This is a case where we are spending and would have to E
(~)
13 spend a great deal of time and effort for something that is w
14 absolutely unnecess ary.
2 15 Now, three of those items of course could be placed 5
j 16 before the Board right now.
They ' re not proprietary.
The w
d 17 other two I don't believe contain any proprietary information, E
18 but they are part of a protected in camera transcript that 5[
19 would require sone kind of red tape, clearances and approvals, 5
20 that would involve the Public Service Commission of Wisconsin.
21 And I presume that eventually we could work that out.
22 JUDGE BLOCH:
Mr. Churchill, you don't think that by 23,
stipulation among the three parties worked out on our record
(~)
24 l that that protective order could remain intact, without approval
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Il 25 1 from the Public Service Commission?
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MR. CHURCHILL:
I would not be willing to turn over
()
2 any protected information under that docket in that proceeding 3
without the approval of the Public Service Commission, because
()
4 I'
t want to be in the position of acting in bad faith, 5
g And I'm talking now on behalf of my client, represented in that 9
j 6
proceeding, acting in bad faith, or perhaps endangering the R
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entire fabric of that particular protective order.
s 8
JUDGE BLOCH:
Mr. Anderson, do you know how long the d
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Wisconsin Public Electric -- the Wisconsin Public Utilities zc 10 Commission is likely to take in responding to your. request?
_E II MR. ANDERSON:
Well, let me indicate this.
I would M
j 12 suggest that if both Westinghouse and Wisconsin Electric could 5
(]) f 13 write a one-sentence letter to the Commission saying they have m
5 I4 no objection to it being publicly released or, alternatively, s=
j 15 if it's their view, to be released in canera to the NRC, it
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y 16 could be done in a week.
They meet every Tuesday and Thursday.
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18 of what the position of the licensee and vendor are.
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a one-sentence letter from then would facilitate that to happen n
20 very rapidly.
2I JUDGE BLOCH:
Very short, maybe three sentences.
22 Mr. Churchill, would you be villing to do that?
23 -
MR. CHURCHILL:
I don't know if I would, Your Honor.
(~s) 24 l I'd have to go back and check the record and I'd have to go 25 '
back and check the regulations of the Wisconsin Public Service i
J ALDERSON REPORTING COMPANY, INC.
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Commission.
We would have to check the transcripts of that w
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2 proceeding.
We would have to talk with the staff of the Public 3
Service Commission.
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4 We would have to make sure that it would in no way 5
g unhinge or damage the totality of the protective order.
What 9
3 6
we' re talking about is the release of in-transcript -- I'm sorry R
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-- in camera transcript pages which are under protective order, sl 8
And we can do it and certainly attempt to do it.
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9 But I would submit on the basis of adninistrative zo G
10 economy that we are on an issue that is totally irrelevant as 3_
11 shown on the surface of it.
On the face of it, based on the a
j 12 characterization by Mr. Anderson himself, it would clearly be 3
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13 outside the scope of any possible relevancy to the issue before z
5 I4 the Board now.
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15 We have asked Mr. Anderson, I have and I believe you m
j 16 have too, Your Honor, what the relevancy is.
And all he does e
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He has P"
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never even. attempted to show what the relevancy of this is.
n 20 I think we have sufficient characterization of these documents 21 for Mr. Anderson to at least enlighten us initially as to why
/3 22 this could conceivably be relevant to the protection of V
23 testing information n this docket.
24 JUDGE BLOCH:
Mr. Anderson, could you please respond
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j 25 very briefly about the relevancy of the documents?
ALDERSON REPORTING COMPANY. INC.
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MR. ANDERSON:
Well, I wanted to say before I do that,
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2 I responded several times, and Mr. Churchill's strategy is to 3
say it's not been responded to.
And it has.
We object to that.
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4 I will repeat it a third tine as a courtesy, but I'm indicating 5
that we're not accepting this legal strategy of pretending that e
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it was not stated.
It was stated several times.
k7 The question is the credibility --
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8 JUDGE BLOCH:
Mr. Anderson, I apologize, because you a
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9 have stated it and I recall what you stated.
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10 I'd. feel far more comfortable if I could respond on 3
5 11 the relevance of a document I've seen, rather than the relevance
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12 of a document we've argued about.
I therefc ce request that 3m
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14 write brief letters to the Wisconsin Public Utilities Commission U=
2 15 requesting the release of this information without waiver of any s
y 16 other portion of the protective order issued by the Commission w
d 17 in that case, and that for the limited purpose of disclosure s
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19 they would request an in camera disclosure of this information A
20 to the Commission.
21 MR. TREBY:
The staff would also like to see those 22 papers.
23,
MR. COWAN:
Mr. Chairman.
24 JUDGE BLOCH:
Yes, Mr. Cowan.
25 MR. COWAU:
I assume we are only talking about at ALDERSON REPORTING COMPANY, INC.
mto 20 1169 this point the specific pages that Decade has identified in I
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2 Mr. Anderson's filing.
3 MR. ANDERSON:
That's correct, with one typographical
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4 correction I already indicated.
At this point Mr. Churchill 5
y has corrected me that page 529 extends to page 530.
But that's n
6 a very minor matter which I can talk to you about separately.
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MR. CHURCHILL:
May I make another correction?
We A
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talked about another one, too.
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MR. ANDERSOM:
That's correct, yes.
cg 10 tiR. CHURCHILL:
Also, the 655 to 656, which is on the 5
II first line on the top of page 2, should be 655 to 660 --
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12 JUDGE BLOCH:
Mr. Churchill, could you comment on 5
( ) f I3 whether it also would be appropriate to request the Commission l
14 to make it available under the protective order of this Panel
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15 to the staff of the Commission?
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I' m sorry.
I didn't hear that.
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I7 JUDGE BLOCH:
Could you comment on whether there's
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made available to the staff of the Commission under protective n
20 order?
2I MR. CHURCHILL:
'I suspect, Your Honor, that if I 22
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could make it available to you for your in camera inspection U
23 I could also make it available to the staff for exanination 24
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under protective order.
Wouldn't you agree, Mr. Cowan?
5, M1, CONAU:
I think that's correct, that if the i
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I Board can have it available I don't see why the staff can't have OV 2
it available.
3 JUDGE BLOCH:
In that case, I hope that Wisconsin O
4 Electric and Westinghouse can cooperate with the desires of the 5
j Board.
If they decide that they cannot, I hope that they will e
6 notify us immediately of the grounds for not wanting to R
7 cooperate with our expressed desires and then we'll have to 3
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9 11R. CHURCHILL:
Well, we will certainly cooperate 10 with your desires and we will attempt to do this.
If we fail E
11 to do it it won't be from lack of cooperation.
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I2 JUDGE BLOCH:
Are there any other matters of business 5
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13 that are properly before us this morning?
l 14 f1R. CHURCHILL:
Well, one other thing on this matter.
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15 Would it be appropriate for Mr. Anderson now to at least submit
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I7 MR. AIIDERSOll:
I would have no objection personally,
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released it to anyone, and that's ny only problem.
I don't n
20 want to put myself in that box.
But it's not a personal 21 objection.
I have four copies sitting in a locked file drawer.
22 MR. CHURCHILL:
Hell, three of the items that you 23 listed aren't proprietary.
24 MR. ANDERSOll:
Sure, I could separate them out if 25 '
you want a separated package.
That's no problem.
ALDERSON REPORTING COMPANY, INC.
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JUDGE BLOCH:
I think the Board would like to receive
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2 those.
We received no attachments to your affidavit.
3 MR. ANDERSON:
That's correct.
I kept total packages,
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4 but I could if you want to bifurcate the packages.
Is that e
5 the Board's wish?
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JUDGE BLOCH:
Yes.
If there's information that no R
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MR. ANDERSON:
Sure.
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JUDGE DLOCH:
All right.
Are there any other matters 2cg 10 apart from these?
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Yes --
B I2 MR. COWAN:
Mr. Chairman, I would ask that 3
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13 Mr. Anderson sent that material to us also, including the pages w
14 that are under the protective order, since we're entitled to g
15 see those anyway under the terms of the protective order.
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Hell, I'll check that.
But if I M
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concur that I'm not under legal jeopardy I will do so.
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18 I'll have to check that.
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MR. COWAN:
Oh, yes.
If it turns out that that isn't 5
20 a correct understanding; don't send it to us otherwise.
21 JUDGE BLOCH:
Mr. Cowan, it might be possible that 22
(')
it would be restricted as to who gets it.
You weren't counsel 1
V 23 :
in that proceeding.
I'm not sure if you could see it.
24 MR. COWAN:
No, but Mr. Davis could certainly see it.
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25 MR. ANDERSON:
I think it was Mr. Sather that was k
ALDERSON REPORTING COMPANY, INC.
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the lawyer, counsel.
So maybe I should transmit it to Mr. Sather
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2 MR. COHAN:
I think that's probably the best way.
3 We'll clarify that and get back to Mr. Anderson.
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4 MR. CHURCHILL:
It might simplify things if Wisconsin o
5 Electric and Westinghouse, who are the two parties who were 5
6 having this information protected, could work this out among R
7 themselves.
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8 JUDGE BLOCH:
That would be helpful.
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9 MR. ANDERSON:
Perhaps that's the way to do it.
bg 10 Mr. Chairman.
E 11 JUDGE BLOCH:
Yes, Mr. Anderson.
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12 MR. ANDERSON:
This is Peter Anderson.
5
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13 I have one matter that's not on the agenda and I l
14 want to basically inquire as to how I should raise it, if at 2
15 all, or if at a different time.
And that is, under discovery x
E,16 issues apart from confidentiality, on page 890 of the transcript a
f 17 we' re required to do follow-up discovery, if needed, within x
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18 ten days of receipt of the answers to the first round of E
l 19 discovery, which we received yesterday, I'believe.
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n 20 From a brief glance at the discovery response by 21 the licensee, they indicated that part of the responses and 22 documents, that we should arrange to get from the company's
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23 offices in Milwaukee, which we will do.
That brings into i
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play a time lag, and my query is how we should raise, or 24 25 i whether Mr. Churchill does not want to discuss it at this i
ALDERSON REPORTING COMPANY. INC.
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point.
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2 Do we want to go on a two-track process where we're 3
doing follow-up discovery on that which we've gotten today on
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4 one track, on a separate track to follow up discovery later on 5
g after we've seen what comes from viewing their documents in v
6 their office?
I want to raise -- is it appropriate to raise R
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that now even though it is not noted?
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8 JUDGE BLOCH:
I think it's helpful to us, because I d
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think it would help expedite the case.
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10 Mr. Churchill, is there any objection to allowing
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f I2 the documents?
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No, I don't have any objection to a
5 I4 allowing a reasonable period of time.
What we're going to do
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15 is attempt, as we said in there, to make the documents available m
E I0 to Decade at our offices.
There are many, many documents.
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I7 But we have a proprietary problem, in that a lot of 5'
I0 those were internal nemos that were authored by Hisconsin P"
19 g
Electric which may contain Westinghouse proprietary information.
n 20 As long as those are kept -- as long as those are kept 21 confidential in the Wisconsin Electric file, there was no 22
(])
problem.
But to release those I think we would have to have 23,
a review by Westinghouse.
24 JUDGE DLOCH:
Well, how long will it take before you f~A' 25 can decide what you can show to Decade?
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ALDERSON REPORTING COMPANY, INC.
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fir. CIIURCIIILL:
I don ' t know.
What I have to do is
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2 talk to my people and talk to Decade, which I thought we could 3
do before we have to involve the Board in this.
But as far as O
4 the genera 1 grogoete1on thae Decade shou 1d heve een devs efeer 5
access to those documents, I could go along with that.
6 JUDGE BLOCII:
Based on that general guideline, the R
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parties will plea e confer and agree on the schedule by which s
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the documents will be made available and the response of d
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9 Decade will then be due.
The current deadline, however, is zo h
10 suspended, and it is understood that it'll be ten days from
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12 Is there an objection to that by staff?
~c 13 fir. TREBY:
tio.
a I4 JUDGE BLOCII:
By fir. Cowan?
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15 MR. COWAll:
We're not a party to that, Mr. Chairman, a:
g 16 so --
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I7 JUDGE BLOCH:
Correct.
I thought I'd give you a
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18 chance, however.
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fir. COUA!!:
We don't have a right to obiect on that.
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20 fin. AIIDERSON:
On a related matter to that -- this 23 is Peter Anderson speaking -- what is the Board's procedure 22 or desires as to the interaction between motions to compel Q
23,
compliance with interrogatories and the second round of 24 discovery?
They just run their own track separately?
^
(v) 25 l JUDGE BLOCII:
You should confer about problems and i
ALDERSON REPORTING COMPANY, INC.
mte 26 117 b.
1 make timely motions to compel.
And if a motion to compel is
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2 granted, it will be treated as the particular round to which 3
it belongs.
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4 MR. ANDERSON:
Thank you.
5 JUDGE BLOCH:
Is there any problem with that?
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6 Mr. Churchill?
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MR. CHURCHILL:
I can't say whether or not there's a Ml 8
problem to that, Your Honor, because I don't know on what kind d
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9 of a timely basis he would be filing a motion to compel.
ze 10 Obviously, if he waited too long that could impact the hearing Z
h 11 schedule.
3 I
12 JUDGE BLOCH:
Well, there are time deadlines on 5
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13 motions to compel in the rules, aren't there?
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14 MR. CHURCHILL:
I don't have my rules with me here,
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15 Your Honor.
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If there is a problem of potential M
d 17 delay based on what I have j ust said, I would expect a written E
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18 filing concerning the problem.
But my understanding of the 19 g
nature of motions to compel is that the answers which are then n
l 20 obtained should be treated as the round from which the question i
21 was asked, subject of course to any showing by the parties 22 that that ruling would cause inordinate delay.
23 ;
MR. COWAN:
Mr. Chairman, there is a time deadline 24
(])
in 2.740 on motions to compel.
i 25 JUDGE BLOCH:
You would need to comply with that or h
ALDERSON REPORTING COMPANY. INC.
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to show good cause for not complying.
I would not expect that
(,m) 2 there would be extensive delays due to the required conferring 3
among the parties.
There would only be limited periods of time
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4 available for extensicns because of difficulty in contacting g
5 parties and conferring.
E 6
Are there any other procedural questions which must R
7 be resolved at this time?
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8 MR. COWAN:
Mr. Chairman, this is not a procedural d
o; 9
question, but in the interest of full disclosure.
We are planning zo a
10 to file, probably tomorrow, a motion for reconsideration of the 3
Il February 26th Board order relating to sua sponte.
There is no 3
Y I2 need to discuss that here.
The Board will be getting it in 5
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13 due course.
But we didn't want the Board to receive it and
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5 14 then wonder why we hadn't raised it, or at least mentioned it,
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15 here.
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We'll appreciate receiving that notion A
N I7 when it's filed.
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18 Are there any other --
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MR. TREBY:
This is Mr. Treby.
n 20 JUDGE BLOCH:
Yes.
2I MR. TREBY:
We have had extended discussions as to 22
(}
the dates that we're going to be filing papers and all, but 23 I don't think we've explicitly addressed this hearing that's 24 scheduled for next week.
It's my understanding tnat that
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25 i
i hearing has now been. cancelled.
Is that correct?
l 1
ALDERSON REPORTING COMPANY, INC.
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JUDGE DLOCH:
That is correct.
3 (s,/
2 MR. TREBY:
Then there's no question.
3 The staff has one other matter which Mr. Shomaker
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4 wishes to bring to the attention of the Board and parties.
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MR. SHOMAKER:
This is Ed Shomaker.
9 6
In our prefiled testimony for Timothy Colburn dated J
R 7
February 21st -- 25th, 1982, we noticed an enclosure three, 3l 8
an attachment to enclosure three.
We left off two pages d
c; 9
inadvertently, and we will Xerox those pages and send them to zo g
10 all of the parties.
And that's two pages to the July 20th, 1977, E
II memo from Victor Stello to all DOR personnel.
He inadvertently g.
12 left out two pages of an attachment to that and we'll send them 3
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13 to all parties.
m 5
I4 JUDGE BLOCH:
Are there any other further natters that 15 must be raised at this time?
E I6 (No response.)
w f
I7 JUDGE BLOCH:
If none, the parties may stay on the x
18 line to order transcripts.
This hearing is adjourned.
_cs 19 g
(Whereupon, at 12:16 p.m.,
the conference was n
20 adj ourned. )
21 22
()
23,
24 C:)
25 i I
ALDERSON REPORTING COMPANY, INC.
NUCLEAR REGULATORY CO!C4ISSION This is Oc certify that the attached pecceedings before the Atomic Safety & Licensing Board in the sat er ef:
Point Beach Nuclear Power Plant, Units 1 & 2
- Date of ?receeding :
March 4, 1982 Docket llu=ber:
50-266-OLA and 50-301-OLA Place of ?rcceeding:
Waslington, D.
C.
' sere held as herein appesrs, and tha: this is the crizinal transcript therec f for the file of the Ccc=1ssica
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Sylvia Gregg Official Reporter (Typed) 1 i
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Official Reper:er signa:ure) l l
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