ML20054L027

Transcript of 820629 Hearing in Los Angeles,Ca.Pp 492-653

ML20054L027
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Site:	05000142
Issue date:	06/29/1982
From:	Atomic Safety and Licensing Board Panel
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ISSUANCES-PL, NUDOCS 8207070083
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The Regents of the University of California )

} DOCKET NO. 50-142 PL *

(UCLA Research Reactorl )

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I M"T: June 29, 1982 PA M : 492 thru 6 5 3 . ,

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• Los Amoeles, calfenrnf3 ALDERSOX REPORTING 6 400 Vi-y da Ave., S.W. Wa= ' g-"", D. C. 20024 Talaphc=a : (202) 554-2245 O

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492 1 UNITED STATES OF AMERICA r

t 2 NUCLEAR REGULATORY COMMISSION 3 . ATOMIC SAFETY AND LICENSING BO'ARD O 4 -------------------x 5 In the matter of:  :

6 THE REGENTS OF THE UNIVERSITY OF  : Docket No. 50-142 PL CALIFORNIA  :

7 (UCLA Research Reactor)  :

8 ------ ----

---

X 9 Customs Courtroom, 8th Floor The Federal Building 10 300 North Los Angeles Street Los Angeles, California 11 Tuesday, June 29, 1982 12

() 13 Prehearing conference in the above-entitled 14 matter convened, pursuant to notice, at 9:30 o' clock a.m.

15 BEFORE:

16 COHN H. FRYE, Chairman Atomic Safety and Licensing Board 17 DR. OSCAR H.~ PARIS, Member 18 ..

DR. EMMETH A LUEBKE, Member 19 20 21 APPEARANCES:

22 On behalf of the Applicants :

23 WILLIAM CORMIER, Esq.

Office of Administrative Vice Chancellor, UCLA g 24 405 Hilgard, Los Angeles, Calif ornia

• 90024 25

493 1 APPEARANCES (CONT'D) ,

2 On behalf of the Applicants (Cont'd):

3 CHRISTINE HELWICK, Esq.

GLENN WOODS, Esq.

(-)

(- 4 Of fice of the General Counsel, Regents of the University of California 5 University of California Berkeley, California 6

7 On behalf of the Intervenor:

8 DANIEL HIRSCH, President, Committee to Bridge the Gap 9 DOROTHY THOMPSON, Esq.

Nuclear Law Center 10 JOHN BAY, 3755 Divisadero No. 201 11 San Francisco, Galiforniai94123 12 On behalf of the. City of Santa Monica:

SARAH SHIRLEY, Esq.,

14 Deputy City Attorney 1685 Main Street 15 Santa Monica, California 90401 16 On behalf of the Regulatory Staf f:

17 COLLEEN P. WOODHEAD, Esq.

18 Counsel for NRC Staf f Of fice of the Executive Legal Director 19 Nuclear Regulatory Commission Washington, D.C. 20006 20 21 22 CE) 23 24 (v")

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1 P,,g g g g g g 1 g g g 2 9:33 a.m.

3 JUDGE FRYE: On the record. Good morning. Could.

0 4 we come to order, please.

5 This is a proceeding concerning the application of 6 the Regents of the University of California for renewal of 7 their operating license for an Argonaut reserach reactor, which 8 is located on their campus here in Los Angeles.

9 Today and tomorrow we plan to conduct a prehearing-10 conference to assist in the completion of prehearing procedures 11 and set a tentative schedule for the beginning and hopefully 12 completion of the evidentiary hearings.

13 Time permitting tomorrow, we would like to visit O i4 ehe reector. And, or course, e11 perties wou1d ee invited 15 to come along on that trip, in tyhe event we are able to do so.

16 The three of us on the bench constitute the Atomic

. 17 Safety and Licensing Board which has responsibility to conduct 18 thissproceeding and to render an initial decision granting, i

19 denying, or granting with conditions the application of the 20 Regents.

21 On my right is Dr. Oscar H. Paris, who is an Admin-22 istrative Judge and full-time member of the Atomic Safety 23 and Licensing Board panel. He is an environmental scientist 24 with a Ph.D. in ecology.

25 On my left is Dr. Emmeth Luebke, who is a nuclear O

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496 I physicist with 25 years of experience in the nuclear industry.

{;

2 He has his Ph.D., and is also a full-time member of the 3 Atomic Safety and Licensing Board panel.

O 4 I am John H. Frye. I am a lawyer, Adminsitrative 5 Judge, and full-time memeber of the Atomic Safety and Licens-6 ing Board. panel.

7 At this point I would like to ask the parties if 8 they would please identify themselves for the record, begin-9 ning with Ms. Woodhead, please.

10 MS. WOODHEAD: Good morning, gentlemen. My name 11 is Colleen P. Woodhead. I am counsel for the NRC staff.

12 On my right is Mr. Harold Bernard. He is project

. 13 manager for the UCLA case, and an employee of the Nuclear

( I4 Reactor Regulation office of the Commission.

15 JUDGE FRYE: Thank you very much.

16 MR. WOODS: Glenn Woods, counsel for the Regents.

17 MS. HELWICK: Christine Helwick, counsel for the 18 Regents.

19 MR. CORMIER: Bill Cormier, counsel for theoRegents.

20 JUDGE FRYE: Thank you very much.

21 MR. HIRSCH: I am Dan Hirsch, president of Bridge 22 the Gap, accompanied by Dorothy Thompson from the Nuclear 23 Law Center,and John Bay who I went looking for and who shc uld 24

(]) be here in a minute, who are making an appearance on Conten-25 tion XX.

497

{} 1 MS. SHIRLEY: My name is Sarah Shirley. I am a 2 deputy city attorney for the City of Santa Monica. I am here 3 on behalf of the City of Santa Monica, an interested munici-O 4 pality.

5 JUDGE FRYE: Mr. Hirsch, could I clarify one point?

6 You have counsel-just with respect to Contention XX; is that 7 it?

I l 8 MR. HIRSCH: Yes, correct. .

9 JUDGE FRYE: I see. Has the counsel entered a 10 notice of appearance?

11 MR. HIRSCH: We have notices.with us which we will 12 offer to all parties.

13 JUDGE FRYE: Fine, good.

i

() 14 MR. HIRSCH: This is John Bay.

15 JUDGE FRYE: Happy to have you with us, Mr. Bay.

16 Let me ask at this point if the parties have any 17 opening statements that they would like to make before we 18 begin.

19 MR. WOODS: None for the Applicant.

20 MS. WOODHEAD: Staff has none.

21 MR. HIRSCH: None for the Intervener.

22 MS. SHIRLEY: The City has none.

23 JUDGE FRYE: The City has none,. fine.

() 24 The first item of business, as I think we indicated 25 to you all last week, was to take up the subject of the O

l

498 sb 1 City's participation, and the scope of the City's participa-2 tion. I know the City has filed last week a paper which 3 indicates basically that they intend to participate on all O 4 of the admitted Contentions. I think that this point, if 5 the parties have any response to that, would be a good point 6 to take it up.

7 MR. CORMIER: Judge Frye, for the record, we noticed 8 that the Board's order admitting the City of Santa Monica as 9 an interested municipality did not address the question of 10 the interest that supposedly is implied in the interested -

l 11 municipality participation. It that to be assumed? We would 12 like to be on the record as requesting a clarification of 13 whether the Board did find that Santa Monica was an interested 14 municipality.

15 JUDGE FRYE: First of all, no one objected to their 16 participation. So we felt no need to find that. Certainly 17 we would have no problem finding that, were there an objectioni.

18 JUDGE: PARIS: WWeididclookcat a map,-Mr. Cormier, 19 and determined that they were verycclose.

20 MR. CORMIER: I understand.

21 JUDGE FRYE: Ms. Woodhead?

22 MS. WOODHEAD: Yes. I would like to inquire as to 23 whether the City intends to fully participate, in the event 24 that this case goes to hearing on our Contentions, and does 25 the City envision witnesses on each Contention?

! O l

499 1 All that we know at the moment is that you would like to

{ }b 2 participate on every Contention. Just for future planning 3 purposes, I think it would be good for the Board and parties O 4 to have an idea as to how involved in the proceeding you 5 intend to be.

6 JUDGE FRYE: I think that is a fair inquiry.

7 MS. SHIRLEY: Judge Frye, at this point it is dif-8 ficu.t:for me to say the extent to which we will be participat-9 ing on each of the issues that we have indicated. We have 10 not yet even gotten a copy of the application, notwithstanding 11 a request approximately a month ago. At this point I would 12 just like to say that we intend or want to preserve our right 13 to-cross-examine witnesses,tto introduce evidence, and to ,

() 14 participate in future discovery.

15 I understand that with respect to discovery that 16 is already closed we are not going to reopen that. Hopefully 17 the Board would not allow any of the other parties or the 18 staff to engage in discovery against us with respect to those l

i j 19 matters that are closed.

20 Aside from that, I can't really be more specific 21 at this time. I will try t6 be in the future as things fall 22 into place, and we have an opportunity to review the applica-23 tion and the amendments thereto.

24 JUDGE FRYE:

[]} I think at some point you should 25 indicate to us, and perhaps it is best to take this up as we

500 1 go along. I think we will be getting into similar questions

{}

2 with regard to the other parties as to when their witnesses 3 will be available, for instance, the witness lists, things O 4 of that nature. So perhaps we will defer that for now, and 5 we may want to come back to it later on.

6 I do think at some point we need to know from you 7 precisely the extent of the participation with regard to the 8 Contentions. I would suspect there will be some on which you 9 might have witnesses, and others on which you might not, and 10 perhaps some- in which you have very little interest, and some 11 in which you have a very great interest.

12 MS. SHIRLEY 1. All right, sir, I will be happy to 13 advise the Board. .

O

(_) 14 JUDGE FRYE: Any:other points with regard to this 15 before we leave it?  : -i .o . : . i .. _ . .

16 That brings us to Contention XX. The first item 17 that we wanted to take up with regard to that was the staff's 18 motion in effect to take up their motion for summary disposition.

19 Let me say that in reviewing Contention XX and the 20 staff's motion for summary disposition, it does seem that 21 that motion for summary disposition raises certain legal 22 issues.

23 Further, when we get into discovery on Contention 24

(]) XX, we are limited under Commission precedent to matters that 25 are relevant to the Contention.

O

501

{} l The concern we have is whether the motion for sum-2 mary disposition might be a good way in which to eliminate 3 any parts of Contention XX which legally are not relevant O 4 to this particular reactor prior to getting into discovery.

5 And we would like for CBG, if they would, to address that.

6 MR. HIRSCH: A few comments initially, I guess.

7 A good deal of the summary disposition that has beer t 8 made by the staff is factual, declaring in:.their opinion 9 that there are no facts in dispute, and that therefore no 10 legal questions are appropriate at this time.

11 As we review that motion for summary disposition, 12 95tpercent of it is factual. Most of the remaining disputed F

13 items which are legal require us to have access to certain

() 14 facts, which we do not have, in 6rder to be able to fullyy 15 respond to those assertions 6n the part of staff. We can 16 identify that further, if you wish.

17 Also, as I understood the agenda item a bit, there 18 was a desire for some clarification of scope the contention 19 as we see it, which we are prepared to do. I guess what I 20 am requesting is clarification of what you would like. We 21 spent --

22 JUDGE FRYE: Why don't we pick up with the scope, 23 which you just mentioned. What is the scope of it as you see 24

({} it?

25 MR. HIRSCH: The Contention, contrary to the assertions O

l 502 r"b 1 of staff, is not attempting to apply standards which don't V

2 apply to this particular reactor. We have made very clear, 3 and I think the transcript of the-previous prehearing con.-

O 4 ference will show that our assertions are that the requirement s 5 which are applicable to this reactor have not been met.

6 In addition, because this is material which is so 7 highly enriched, and the consequences of its theft, if that 8 were to occur, so significant, we febl that it is perhaps the 9 most important of all the issues before this Board.

• 10 Essentially what the Contention asserts is it define s 11 certain areas, which we assert need to be adequately protected ,

12 both against radiological sabotage of some of the areas, and

, 13 against thef t of some special nuclear material in other areas.

() 14 We have, in our bases for that Contention, demonstrated why 15 we believe that there are vital items of equipment in those 16 vital areas, and why there is material which needs to be 17 protected in material areas. And then we point-by-point 18 identify the inadequacies in the security system that we feel, 19 given these standards for research reactors with highly 20 enriched-material of this quantity, needs to be adequately 21 protected.

12 I should make clear, for a moment, that this is 23 material which is different than we have in any power reactor.

(]) 14 This is 30 times the enrichment. And the quantity is, in our 25 view, very significant. And we would be prepared with certain O

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503 1 information that we need to have through discovery to be sK ])

2 able to demonstrate both the significance of the material and 3 the inadequacies in the security system which violate the O 4 language and intent of the regulations that are applicable.

5 JUDGE FRYE: You indicated, if I heard correctly, 6 that perhaps five percent of it you felt was not applicable.

1 7 What -- or the Contention, five percent of the Contention. i l

8 MR. HIRSCH: No, no, no. My statement was that 9 five percent of th's summary disposition motiontfrom staff is 10 legal, and 95 percent raises factuallissues, fortmost of whict, 11 we would need discovery on the factual matters. .And:a good 12 deal, actually, of the legal matters werwould need discovery-13 We can slowly go through that if that is what you wish, but

( 14 I assume that there -- it has been a year and a half since 15 we have met. Perhaps some refreshment on the Contention itsel f 16 is what you are asking for. I am not certain.

17 JUDGE FRYE: Mr. Hirsch, does that complete your 18 statement?

19 MR. HIRSCH: I am basically asking for some<questiorts 20 so I know more of what it is you need to know. We have only 21 had a few days since we got this agenda item to prepare, and 12 we are still a little confused about what information it is 23 you are requesting from us.

() 24 JUDGE FYRE: Perhaps it would be good to go through 25 the matters in the motion which you feel raise legal points.

O

I 504 1 MR. HIRSCH: Raise legal points?

(]sb 2 JUDGE FRYE: As opposed to factual points. Distin-fg 3 guish the legal from the factual.

L' 4 MR. HIRSCH: The primary legal issue"that the staff 5 raises, which we are frankly astonished at, is the assertion 6 that the regulations do not require the material to be pro-7 tected against theft or the facility to be protected against 8 radiological. sabotage.. We find that completely contradictory 9 to the regulations, and frankly astonishing.

10 Perhaps Judge Luebke and Judge Paris will remember 11 the exchange that occurred at the last prehearing conference 12 about the assertion by staff that detection is all that is -

13 required, and the inquiry by Judge Paris as to whether it was 14 the assertion of staff that if someone broke into the facility ,

15 stole the material, got away with it, there would be no 16 violation so long as the University could report the material 17 was stolen. And the resonse by staff was essentially yes, 18 thht all that is required is to be able to report it.

19 We disagree completely in terms of what the regulas: .-

20 tions say. And we find that it is frankly an astonishing 21 position.

22 JUDGE FRYE: Do you need discovery to respond to 23 their summary disposition motion with respect to that?

(]) 24 MR. HIRSCH: The question as to whether or not 25 there needs to be protection?

O

505 Bb 1 JUDGE FRYE: Yes.

2 MR. HIRSCH: In part. The staff bases its assertion 3 on whether or not 73.60 versus .67 applies, and they do that 4 on the basis of certain factual assertions, which we cannot 5 contradict in an evidentiary fashion without access to certain 6 specific information which I can be specific about, if you 7 like.

3 JUDGE FRYE: The factual information, if I am not 9 mistaken, is the amount of unirradiated fuel and the radiation 10 emitted by the irradiated fuel; is that correct?

11 MR. HIRSCH: It is a little more than that. It has

, 12 to do with the procedures which have been put in'. place to l

l 13 insure that the material inside the core is irradiated

(') 14 above the 100-rema level-all the time. As you know, the basic

, 15 assertion now is that the- raction will' g6 below' 100 '. rem;..

l 16 if it doesn't run for three days. And the facility only runs l 17 250 hours0.00289 days <br />0.0694 hours <br />4.133598e-4 weeks <br />9.5125e-5 months <br /> a year. So we need to know, when they say it has I

l 18 to run at least every three days, run for a half hour or l 19 quarter hour, at.what power, and to know precisely whether l

20 this is a temporary measure or permanent.

21 I might say at this point that -- let me defer that 22 for a moment. There is an issue that I want to raise at a l 23 certain point about this question as to whether the facility 1

24 is temporarily protecting the fuel below 100 rems, or whether

(]')

25 this is a permanent change. The documents that we have obtair,ed

()

1

506 1 to date indicate that it is merely temporary. And that raises

[]}b 2 very serious questions as to whether this is a temporary 3 measure in order to get relicensed for a 20-year period, and

() 4 the moment the license comes will then go below that 100-rem 5 level again.

6 At any rate, it is a Univeristy facility. There 7 is quarter break, which is several weeks. We need to know l I

8 specifically how they can schedule a reactor that runs only J 9 250 hours0.00289 days <br />0.0694 hours <br />4.133598e-4 weeks <br />9.5125e-5 months <br /> a year so that it runs every three days, and for 10 how long, and what assurance there will be that indeed that 11 material is below 100 rem. That is one of the aspects that 12 we need to know.

13 JUDGE FRYE: So far -- let me direct this to UCLA

() 14 -- have we touched on any information which you would regard 15 as being of a sensitive nature? -

16 MR. CORMIER: If I understand correctly, Judge .

17 Frye, the issue.Mr. Hirsch is suggesting is factual and bears 18 on the distinction, if I am phrasing it properly, between 19 whether 73.60 and 73.67, or merely 73.67 as Staff and Applicartt 20 are suggesting applies.to the facility. Bearing on that issue 21 is the question whether the fuel in the reactor emits 100 rem 22 at three feet, which is the standard. That certainly is a 23 factual matter.

() 24 JUDGE FRYE: But is it sensitive information?

25 MR. CORMIER: That information is not sensitive O

507 b 1 itself. I think we can demonstrate quite easily what thet 2 state of affairs is with the fuel in the core.'

3 JUDGE LUEBKE: I would just like to clarify this O 4 a bit. These regulations you quote numbers of, have they 5 anything to do with the fact that the fuel is highly enriched, 6 never mind the little bit of radioactivity you are speaking 7 of?

8 MR. CORMIER: Yes. I would have to concede it is 9 a somewhat tortured section or part of the code for an applicant 10 who isn't that familiar with looking attit. But I think the 11 staff has done an, excellent job in tracing through the defini--

12 tions of the fuel which take into account its enrichment levet, 13 its strategic special nuclear material characterization, and O i4 which requiee1one epgir. They eggiv, simgiv gue, eased on 15 the quantity you have.

16 JUDGE LUEBKE: Because it seems to me that is the 17 important factor, whether it has a little bit of radioactivity .

18 That is like checking into the airline past the magnetic 19 machine to see if you have got a gun in your pocket.

20 MR. CORMIER: I agree, Dr. Luebke: We certainly i 21 take the security related to the possession of special nuclear l

22 material seriously. Ilthink the Code and the Commission has 23 taken that into account, after much consideration, when they 24 designed their regulations. What their regulations are say-25 ing in effect is when you have such a diminimus amount of fuel ,

508

] 1 small amount below the threshold, that different security 2 standards will apply. And they have taken into account the 3 special character of the fuel, but they are also basing it 4 on the quantity that is involved.

5 JUDGE LUEBKE: My recollection says that is like 6 like 4700 grams. That is diminimus?

7 MR. CORMIER: No, the 4700 amount that you recall 8 is what the Applicant has requested in its license applicatior 9 to be authorized to have in its core, or in fresh fuel.

10 JUDGE LUEBKE: That is on the table for discussion, 11 then, isn't it?

12 MR. CORMIER: Yes, it is. And that is the amounts 13 that you would apply the standards in the Code to when you T4 determine which regulations apply.

15 -

JUDGE LUEBKE: My question still is, do you view 16 that as diminimus?

17 MR. CORMIER: No, I don't vi'ew that as diminimus.

18 JUDGE LUEBKE: Then why do you get into diminimus?

19 MR. CORMIER: The Code makes the distinction. The 20 Code makes the distinction based on quantity of fuel. We are, 21 and the staff is simply applying what the Code clearly states 22 to be the standards to apply in this situation.

23 JUDGE FRYE: In other words, if you had over 5000 0 24 erems ce tais meterie1, you wou1d come under e different see 25 of the regulations. That is your position, I take it.

O

509 i MR. CORMIER: Not quite as simple as that, but gggb 2 basically that is it. .You measure different types of fuel, 3 have different value, and you get credit ficn:different types

.s,\

~

4 of fuel. But basically it is a 5000-gram threshold.

5 JUDGE FRYE: While we are on this subject, let me 6 say that if any other questions touch on' sensitive information, 7 tell us when we made inadvertently do that.

8 MR. CORMIER: I was about to suggest that maybe we 9 need a discussion of that. It may be that in discussing 10 this contention we may get into areas that we may want to li act a little bit more prudently about.

12 JUDGE FRYE: Surely. If we get into that area, 13 please alert us, and we willedeal with it at thatttime.

f))

(_ 14 JUDGE LUEBKE: I still want to get the diminimus 15 straight. I didn't like the sound of the word in this situatj.on 16 you have.

17 MR. CORMIER: If it is helpful, let me concede that 18 the use of the word was perhaps in appropriate there. It is l

19 a legal standard not meant to imply that the amount of fuel 20 that we have is inconsequential. That is not.our point.

21 JUDGE LUEBKE: That is what I want to get straight l

12 on the record.

23 MR. CORMIER: No. That is not our point. The point l 24 is that the Commission, apparently in its wisdom, in consider-( })

25 ing fuel that is used at all facilities has exercised its n

, 510 I

discretion in defining certain cut-off_ limits and set up 2

sb certain standards appropriate to each. level of quantity of 3

O fuel. We fall below one level of fuel.

k/ 4 JUDGE LUEBKE: When you get close, it is important.

5 MR. CORMIER: Certainly. But that is line-drawing.

6 We all have to do that. That is what regulations are. They 7

have drawn a line here, and I am assuming -- and I think there 8

is good evidence that they have drawn it at a conservative 9

level, like the Commission does in a lot of areas,. consciously to so.

11 JUDGE FYRE: If I ask you how highly enriched this 4

12 material is, de I t' ouch on a sensitive area?

13 MR. CORMIER: I'would comment only that it has been

() 14 made a matter of public record what the level of fuel is.

li And I think we are not in a position to argue.

I would sugges t, 16 however, that good sense and judgment suggest that in certain 17 areas, even though there may not be a restriction against 18 talking about certain matters, in a large metropolitan area 19 where there is a lot of media attention it may be prudent to 20 exercise a little restraint in discussing those things.

21 i

l The fuel is enriched to 93 percent.

( 12 JUDGE YFl.: Ms. Woodhead, do you have any comments 23 on any of tts' %;, :ing?

14

) MS. WOODHEAD: Let's see. I think there are several 15 topics under discussion at the moment. But if I could go back

, 511 b 1 to the Board's original question as to the Staff's perception 2 of the merely legal issues raised by Contention XX, perhaps 3 I could simplify them very quickly, and then allow that to 4 be commented on by the other parties.

5 In my view Contention XX itself has only one small 6 fact area. That is 23(d, subsection: I.:d',' .which' di's' cusses ..

7 doors and locks. Obviously doors and locks are a matter of 8 fact and not law. The difficulty in encompassing that as a 9 legitimate contention is CBG's original contention submitted 10 November 28th, 1980 in which it alleges that the doors and 11 locks referenced in this small section of Contention XX are 12 those that are exits and entrances to nonsecured areas.

13 The locks are described in the sa'ae way -- the keys, pardon

() 14 me. Keys and locks are described in the same way.

15 UCLA has different categories of keys and locks for

16 different areas. _Some are for radiation protection. They 17 are not safeguard:protections at all. And it has key control 18 f for different keys which are for different purposes. And it 19 has C-level keys and locks which are simply for protection 20 of its facilities. Any house has a key and lock.

I 21 JUDGE PARIS: ~When you say C-level -- C as in 12 Charlie, and not sea level as in altitude?

23 MS. WOODHEAD: Correct, alphabet, a, b, and c.

l ("T 24 And the basis for Contention XX originally submitted

(/

25 with the contention = described keys and locks which were

()

i 512 ggp 1 pertinent to either radiation areas or simply classrooms' 2 doors, keys and locks which have nothing to do with safe-3 guards. So that even though the key and lock issue in 3.d 4 is certainly a fact issue, the basis provided originally did 5 not allege a safeguard problem, but rather a radiation pro-l 6 tection area or simply a physical security of the building, l

l 7 the facilities, to protect against vandalism, et cetera.

8 JUDGE LUEBKE: A fact issue, you mean, it is not 9 a legal issue?.

10 MS. WOODHEAD: Correct. I have --

11 JUDGE LUEBKE: Emean I fail to understand, it is 12 so obvious. -

13 MS. WOODHEAD: Pardon?'

n tj 14 JUDGE LUEBKE: All this discussion about doors and 15 keys and locks, how can that be a legal issue?

16 MS. WOODHEAD: It is not. I am saying that is the 17 only factual issue in this Contention, 18 JUDGE LUEBKE: In the entire Contention?

19 MS. WOODHEAD: Correct. Every other issue raised 20 in the Contention itself alleges that some regulation pertin-21 ent to pcwer reactors should be applied to this research 22 reactor. And the Commission does not impose the complex, 23 stringent safeguards regulations on research reactors that 24 it does on power reactors.

f~)

x-25 JUDGE LUEBKE: And the difference being a few grams of n

513 t

"N sb i U-2357 2 MS. WOODHEAD: The difference being the nature and I 3 complexity of the facility itself as well as the special 4 nuclear material therein.

5 JUDGE LUEBKE: Yes, but the hazard of the facility 6 to far as meters or knobs are concerned probably aren't as 7 important as the 235?

8 MS. WOODHEAD: At any rate, Judge Luebke, I did not 9 make the regulations, the Commissioniissued the regulations.

10 It is Staff's job to apply the regulations as they have been 11 written and approved bytthe Commission according to the defin-12 itions contained within each section.

13 In Part 23 the Commission has set out different (O,

14 regulations for power reactors thandt has for research reactor s.

15 The particular regulation in point here is 73.67. The reason 16 that is the only regulation which applies to UCLA is because 17 of the amount of special nuclear material they possess accord -

I8 ing to the Commission's regulations in part 73. And I am 19 simply pointing out to you that every part of Contingent XX 20 raises a legal issue where the only point of dispute is which 21 regulation applies, not what facts may exist'about the facility.

22 The facts are not in dispute. It is the law that is in dispute 23 in every pointrof Part 20, except 3.d, where the Contingent '

r 24

(]) discusses doors, locks and keys.

25 There is one additional matter which is a fact issue O

514 which would result in application of a different regulation.

r")

b I

2 That is the amount of irradiation from the fuel in the core.

3 That also is a fact issue which would result in applying an-O 4 other regulation to UCLA.

5 As a matter of fact, though, I would like to point 6 out that 73.60 is not different from 73.67 except in the 7 matter of searches. There is no significant difference between 8 the two regulations, but there is that difference. And if 9 the fuel in the core were accounted for under the safeguards 10 regulations along with the fresh fuel, then 73.60 indeed would 11 apply-12 So there are only two fact issues as the staff sees

. 13 it raised by Contingent XX -- 3.d which talks about locks

() 14 and keys, but the basis sent in for the Commission did not 15 talk about safeguards areas, it talked about radiological 16 protected areas, and simply front doors and normal protec '

17 tion; and number two, the radiation.of the core. That cer-18 tainly is a factrissue. That information is public informa-19 tion, it is not safeguards information.

20 JUDGE FRYE: What about 3.e, do you view that as 21 a legal issue?

22 MS. WOODHEAD: Yes, I certainly do. There is no 23 requirement.

24 JUDGE FRYE: Groups that are too 1&rge for adequate

(])

25 supervision are given tours of the facility?

O

I 515 1 MS. WOODHEAD: There is no restriction on numbers 2 of visitors allowed in a facility.

3 JUDGE FYRE: I read that as simply saying that it O 4 was inadequate controls, too many people were being led through 5 without adequate supervision.

6 MS. WOODHEAD: There is no definition of adequate 7 supervision in the Regulations nor numbers of visitors allowed 8 in safeghards areas.

9 JUDGE FRYE: Do I read that correct, Mr. Hirsch?

10 Subsection e, groups that are too 1&rgelfor adequate super-Il vision are given tours of the facility by one or two staff 12 people alone?

l 13 MR. HIRSCH: Yes, Ms. Woodhead is dead wrong on that.

() 14 I went on a public tour, visitor center publishes it in the I 15 newspaper - "Come take a tour of the nuclear energy lab."

16 There were 50 people. They divided us into two groups with 17 one guide each. I stayed behind and extra half hour. They 18

(

l didn't count me going in, didn't count me going out. If I 19 had wanted to I could have stayed for quite a while longer.

20 And the Regs clearly say that yc7 are not to take visitors 21 in, only those people who have some absolute need to go into 1

22 those rooms are supposed to be permitted. And it is clearly 23 a fact issue. What is the policy of NEL in terms of tours?

l 14 The annual reports say that they averaged 1,000 people per l [}

25 year on tours, including the reactor room, which all of the l

()

516

'b 1 other parties admit is an area that has to be protected.

2 It is a fact issue. What is the policy? Who --

3 do you sign people in, do you count people? Do you not b"# 4 count people? How don.you make sure that someone doesn't stay 5 behind? It is clearly a fact issue. What training is there 6 given, or what policy is there in terms of the guide? Do 7 they realize.which: rooms they are to go into and not go into?

8 It is clearly a fact issue.

9 MR. BAY: And I might add to that that it is under 10 the regdlations, 73.67 (d) (7) states that one of the require ~ .

11 ments is that they must assure that all visitors to the con-12 trolled access areas are under the constant escort of an 13 individual who has been authorized access to the area. In

() 14 other words clearly the import is,as our Contention is,that 15 they need to have supervision over visitors. And to say that 16 there is aun number there that is 50 or 25 is mangling the 17 intent of the regulations, and Itthink it is: really taking 18 over what we have these three gentlemen up therecto do, make 19 those kinds of judgments. -

20 MR. HIRSCHIf If Ifmightadd,subpart d, Part 6, again 21 of 73.67, which is the regulation the other parties assert i

l 12 applies, says that they shall limit access to the controlled l

23 access areas to authorized or escorted individuals who require l

1 24 such acess in order to perform their duties.

(]) The public, 25 retired people, anyone who reads it in the paper, certainly' O

G

513 1 is not some who requires going into that area in pursuit of

)

2 their duties. I remind the Board again we are talking about 3 both radiological sabotage, and we are talking about theft.

O 4 I carried a backpack which wasn't checked. I could have left 5 that backpack, if I had wished,up against an area that could 6 have caused extreme damage. There are no policies, that we 7 can see, to prevent that. But they may have. And for us to 8 respond adequately we have to see what policies they have.

9 They assert it is. fine, or they assert they don't have to 10 protect. What is the basis far that? We can't know that 11 without discovery.

12 Let me make another point in terms of what is a 13 factual' dispute. The Staff asserts that the areas that we l

() 14 have identified are not vital areas, and therefore do not 15 need to be protected. What is the basis for that? What is 16 the basis for asserting that X room does not contain vital 17 equipment in it? And how are we to get the facts we need to 18 have in order to demonstrate the equipment in that room is 19 vital and needs to be protected? Those are factual matters.

20 We have a lot of material already that -- let me 21 say, with what we believe we know now, if they have not changed 22 the policies from the documents we have received that are a 23 few years old there are perhaps several dozen methods by which 24 someone could get in and get out without being detected with

(])

25 enough material to make a weapon, and also to do radiological

/

518

(] I 2

sabotage. And that is your job to prevent.

^

And that is the sb issue before you. Jt 3 It is a factual issue, so we can demonstrate that O 4 in an evidentiary fashion in' response to somebody's position.

5 And it is extraordinary public hea'th, safety, and common 6 defense issue.

7 JUDGE FYRE: Do you want to respond, Ms. Woodhead?

8 MS. WOODHEAD: I believe the Board's question is 9 whether there is a factual issue or simply a legal issue as 10 to various allegations in the Contention. I do not understanc, 11 Mr. Hirsch's word " policy." UCLA does not set policy as to 12 safeguards matters. The Commission promulgates regulations.

13 I have not heard any regulation cited bt the intervener except.

(q/ 14 73.'57 (b) (7) , I believe, which relates to a lot of visitors.

15 And as you will note by reading that section, there is no 16 number of visitors which is stipulated in there.

17 JUDGE FRYE: No, I know there isn't. And it seems 18 to me that what he is saying is that we have to make a decisic n 19 as to how many should be permitted under the terms of that 20 regulation. And that seems to me to be basically a factual 21 decision, not a legal decision.

22 Mr. Cormier, do you want to respond to any of this?

23 MR. CORMIER: Yes, Judge Frye. I would like to get 24 back again to some remarks that were made earlier by Mr.

II Hirsch that bear on what the summary disposition motion is O

519 qb I about. I think we somewhat mischaracterize the purpose of 2 the motion if we try to make a hard and fast distinction 3 between what are factual issues and what are legal issues. .

4 In my experience, and I suspect the experience of 5 my colleagues, we have never found a legal issue divorced 6 from a factual situation or circumstances. There is no hard 7 and fast dividing line between the two. The issue for summary 8 disposition motion and:the-advantage of the motion is to 9 clarify what genuine material facts are really in dispute.

10 If CBG,wants to allege and support those allegations 11 with information regarding, for example, the policy with res-- =

12 pect to visitors in the facility, or the fact that visitors 13 have not been appropriately policed in the facility, it can

() 14 do that in response to the summary disposition motion. And 15 then the issue becomes is that a fact that is in disputes is 16 it a material fact in dispute? And then we have to get ref-

, 17 erence to some part in the code that would help the Board and 18 the parties to sort out the materiality of that claim and the 19 counter evidence that is produced in support of it.

20 JUDGE FYRE: Do you dispute any of the facts that 21 he just alleged with regard to sub section e, 3(e), the large 22 groups of about 50, that sort of thing?

23 MR. CORMIER: I must confess that sometimes I am

}

24 a little confused about what is precisely being alleged by 25 CBG in this. He mention a specific number -- groups of 50.

O

520 e

i It is true that our visitors' center has conducted tours 2 of our facility. We are a public university. We take serious ly 3 our responsibility to -- as perhaps the only element of societ y 4 nowdays that can do it -- to try to educate the public in 5 areas including areas related to nuclear research. We do 6 conduct tours. That is part of our carrying out of our respor .-

7 sibility.

8 An allegation regarding 50 people, or two groups 9 of 50, I am not sure exactly what it was, or he was allowed to to remain behind with his backpack, or whatever, I don't know 11 about that. If he wants to issue an affidavit in support of 12 that, in support of his motion or opposition to the summary

. 13 disposition, he can do that. And we will respond to that.

() 14 But I don't know if it is terribly materiallto the disposition 15 o" the issue.

l 14 JUDGE FYRE: Let me ask you another question. Have 17 we so far, I take it,not yet hit upon any security information

• 18 or sensitive information?

19 MR. CORMIER: No, we have not.

20 JUDGE PARIS: Mr. Cormier, I think I would like to 21 hear you comment, and Ms. Woodhead,to hear you comment with 12 reference to the policy that UCLA has that allows you to 23 conduct tours, and how this squares with 73.67 (d) (6) which r~} 24 says " Access torthe controlled areas should be limited to o

25 authorized or escorted individuals who require such access l

l

521

{} I in order to perform their duties."

2 MR. CORMIER: Again, I think that is a good questior t, 3 Judge Paris, and I think it is clearly a legal question, whict.

4 points out the advantage of considering the summary dispositic n 5 motion now. I prefer not to give you a legal response to 6 that until such time as I was able to treat the issue formally .

7 But that points out, I think that is the purpose 8 of this discussion, that is this is clearly a legal question, 9 does the Code preclude what we are doing or not? Gathering 10 up all the facts in this isn't going to help us resolve that 11 question. The summary disposition motion being considered 12 now will.

13 JUDGE PARIS: Ms. Woodhead?

l

() 14 MS. WOODHEAD: I am going to only partially respond l 15 to your question because to fully respond would get into 16 security information. UCLA allows visitors, students, publici 17 et cetera, under control of the staff there to view their -

18 reactor facility 7in the reactor room as an educational service 19 of the University. In allowing visitors into this area, al-20 though it is controlled, in a contrclied access area because l

21 the reactor is there, and it must be controlled for purposes 22 of radiological safety as well as safeguards, because there ,

23 is vital equipment there under the Commission's regulations.

[

24

(]) But in the reactor room that is all that is subject to this 25 regulation -- the reactor.itself, the fuel in the core of l

1 l

1

522

{} 1 course contained in the reactor. So~that you would look at

.2 the sutheading of part d, you will see that the title aims 3 at special nuclear material. Of course the special nuclear O 4 material in the reactor is irradiated, ahd at 100 rem is 5 considered to be self-protecting. So that visitors who come 6 to UCLA are taken to surely a controlled-access area which 7 is the reactor room. But within the reactor room there is 8 only the reactor.

9 JUDGE FRYE: Since we have covered now basically 10 sub sections 3(d) and (e), so.far we haven't hit upon any -

II information that is needed by way of discovery which is of 12 a sensitive nature.

13 MR. HIRSCH: I beg to differ.. I thought I he&rd

() 14 Ms. Woodhead say that that information would be considered 15 security information.

16 MR. CORMIER: I think you misheard. I think to go 17 into it further would get into security information. She l

l I8 explained -- well, let me not speak for the Staff. Let me 19 explain for the Applicant that the reactor room is entirely 20 different from the other areas at the facility respecting 21 which there are security concerns. I don't want to speak 22 further, but tours of the reactor room are an entirely dif-l 23 ferent order. They are essentially public visits to a reactor

() 24 that itself sitting there does not constitute the type of 25 risk or concern that the security system is designed to protect O

523 1 against.

2 JUDGE FRYE: Let's go off the record for a second.

3 (Discussion off the record.)

O 4 JUDGE FRYE: Back on the record. What I was really 5 aiming at is how much discovery you need that touches on j

6 sensitive information and how much does not. And I wonder l 7 if perhaps having us go through this item-by-item, if the 8 parties might confer perhaps this morning during the break, 9 do you think you could do that and come up with any kind of to a general idea of how much of --

11 MR. HIRSCH: If I might respond to that. We have 12 pending for a year now interrogatories to the Applicant, all 13 of which the Applicant objected to and requested a protective

() 14 order on the grounds that it is sensitive security informatior . - -

15 a protective order which was denied on a permanent status 16 until we have a method of protecting the information so it 17 can be revealed. We have pending 100 interrogatories, let 18 alone the request for documents and for inspection of the 19 facility that we have not even yet been able to make because 20 that has been deferred.

21 I don't think that conferring is going to help us

22 in any fashion. The reason we are here is because the Univer-23 sity has objected. I remind you also that one of the issues 24

(]) before this Board,today is the objections of the University 25 to permitting us to have photographs taken in an area which O

524 1 they now admit they routinely: let visitors, through,. so: Icam

[}

2 at a loss. It seems to me that we are hearing one thing that 3 the material is not sensitive at this moment. But yesterday

() 4 it was sensitive. If I could run down the specifics here, 5 you would see that indeed the University either should be 6 prot 3cting that information or at least now is asserting that 7 it should be protected.

8 JUDGE FRYE: These interrogatories that have been 9 on file now all this time, do they cover all of the information?

10 MR. HIRSCH: Not all. First of all, there were 11 interrogatories a year an a half ago or so with no discovery 12 or request for documents, no requests for inspection, and no 13 second set of interrogatories based ,upon what we found in the fm)

(_ 14 first, no depositions, no request for admissions, none of the 15 normal forms of discovery. That has all been deferred. We i

16 have gotten nowhere.

17 MR. CORMIER: Judge Frye, may I interject ~

18 JUDGE FRYE: Yes.

19 MR. CORMIER: Excuse me, just to clarify, those 20 interrogatories were objected to on two grounds. One, the 21 blanket grounds they would get into security areas or security 22 information. But also the more fundamental ground is that 23 we viewed those questions as irrelevant. We stated two grounds 14

(]) at the. time, and at the point which the Board wishes to take 25 this up, we think the relevancy is an important issue. I think O

525 1 in the order of things we have to consider the revocation of

(]) sb 2 the order.

3 JUDGE FRYE: I think we have got two standards here 4 that we have got to deal with. There is relevancy with regarc 5 to discoveryin general, which does not touch on sensitive 6 information, and that is a very weak standard. And there is 7 relevancy when you are discovering sensitive information whict 8 I think is probably a much stronger one. Now are you saying 9 that it is the latter problem? Or is it the former problem?

10 MR. CORMIER: It is both. Some are the former.

11 Under the Weaks standard, the general relevancy test, there 12 are some items, I don.'t.have those here, that we would point 13 out to the Board that we don't believe that the general

) 14 relevancy test satisfied. But that may be unnecessary to'go 15 through that because the relevancy under the Board's ALAB-410 l

16 standard and 592 standard having to do with sensitive informa-17 tion is a much.more onerous-standardi And that one we clearly I8 think has not been satisfied in this case as to this contention.

19 MR. HIRSCH: Perhaps it would be useful to refresh 20 the Board's memory of what those interrogatories were to give 21 us a flavor for what was objected to, and what it is that we 12 are lacking in terms of information. I won't go through all 23 of them, but a few might be of assistance.

() 24 Precisely where is the fresh fuel kept? How many 25 entrances and exits does the room in which the fresh fuel is O

1 n , _ _ .

i 526 1 kept have? Please indicate.each exit and entrance. Describe (J"lb 2 the door construction, fastening, thickness, composition and 3 type and nature of locks for doors mentioned. Are there O 4 television. monitors or cameras surveiling either the room 5 itself or the fuels kept or the entrances to the room? If 6 yes, where are the cameras placed and what is their field of 7 vision? Do the cameras pan? Ifathe answer to (b) is yes, 8 over what degree of arch and over what interval? VItT L 9 goes on and on about-television cameras. There are additiona:

10 questions in terms of locks to other places. What happens 11 if you lose the power supply to an intrusion alarm? How long 12 can it work on a backup device? How many people and which 13 individual people have keys to the area where the fresh fuel O

\_/ 14 is stored? Has anyone with the key to the fresh fuel area 15 ever left NEL employ without immediately rekeying of the 16 facility? And what specific kind of steel fireproof safe i

l 17 are new fuel elements stored? On and on abouttthe specific 18 container in which the material is kept.

19 What is the maximum amount of irradiated fuel kept 20 at the facility over the last 20 years that has a dose rate 21 a' the surface of less than 100 rems per hour? Provide the 22 inventory records. Please provide the current physical secur-23 ity plan and the previous plans.

24 On the wall of the outer entrance to one of the doors l { l 25 to NEL is attached what appears to be an alarm. Is that an l O l

527 c'] I alarm? What will set it off? What is its sensitivity? What (> 2 is its tamper-proof, and so forth. 3 I think just a little flavor of-that gives you the O 4 real sense that there is no way that we are going to be able 5 to in an evidentiary fashion show you that the locks are inade-6 quate, that too many people have keys, that they don't rekey 7 often enough when someone leaves the facility, where the keys 8 can be duplicated, that the locks are of insufficient strengtt,, 9 or the doors the',mselves are of insufficient strength, that 10 the rooms are not monitored adequately, or that they can be 11 bypassed readily. 12 These are the substantive matters that we have . l 13 before us. I can run down each of the aspects of the conten-O i+ eion end you 111 eee ehee eo provide you with ehe evidence 15 you need to make a judgment on this matter will require infor-- 16 mation that the University has in the past objected to. It 17 would be extraordinarily inconsistent if they all of a sudden 18 changed their mind. And personally; I think the intervener 19 would be distressed if that information were revealed in a 20 pt.blic sett.ing without a protective order, or without the 21 provisions of the Nuregulations. As you know, we have 22 raised the matter before you that some of the material we 23 already know we would like to be handled in camera and with 24 the other parties having to protect. The whole question of 25 what information:is being given out to date is imporant. O

i 528 g 1 At any rate, all those interrogatories have been 2 objected to. They requested a protective order on security 3 grounds. If we run down the specific other things that we O 4 need I think you will see that those would also be material 5 items which would have to be done in a protected fashion. 6 JUDGE FRYE: Ms. Shirley, I have been neglecting 7 you. Do you have any comments on any of this? 8 MS. SHIRLEY: Well, Judge Frye, I would just like 9 to say that the City of Santa Monica views the security matters 10 raised by Contention XX to be very serious. Our proximity 11 to the UCLA nuclear reactor makes us quite concerned about 12 the danger of sabotage or theft thattcould endanger our - 13 citizens as as well astthose in West Los Angeles. It seems () 14 to me that absent any discovery on the issues raised in Con-15 tention XX, it would be extremely premature at this time to 16 entertain a motion for summary disposition. 17 As I am sure you know, those are generally considered, 18 prior to an evidentiary hehring, to eliminate unnecessary 19 issues that rarely are considered before the facts have at 20 least been developed and'.the: record has been developed on i 21 which to determine whether factual issues exist. And I would 22 urge the Board for that reason to allow CBG and the City, if 23 it deems necessary, to proceed with discovery on the security 24 issue. 25 JUDGE FRYE: Is this one of the areas that you feel O V

529 b 1 the City will an active interest? 2 MS. SHIRLEY: Yes, Your Honor, it is. 3 JUDGE FRYE: Anyone else have any comments before O 4 we leave this topic? 5 MR. HIRSCH: I have a few more, if I may. Staff 6 has asserted that the only nonfresh fuel at the site is in 7 the core. We have seen documents which indicate that is not 8 true, that there is lightly irradiated fuel in the reactor 9 room, not in the core. To be able to address the assertion 10 made by Staff, we will need access to be able to demonstrate 11 that. 12 , In addition, I would like, with the permission of 13 the Chair, to pass out one document which I think will show - () 14 what kind of discovery we need. I would like to do it without.

        . 15   mentioning what is in it, if that is agreeable.

16 JUDGE FRYE: Is that a sensitive document? 17 MR. HIRSCH: It was released by the University 18 without any control. I would view it as sensitive. I will l l 19 not mention what is in it. I ask the other parties not to 20 mention the specific item. I don't think there will be a pro-l 21 blem with the audience. l 12 MS. WOODHEAD: Excuse me, Judge Frye, could I inter-23 rupt one moment and clarify something right now that will help 24 everybody I believe determine whether it is all right to talk (]) 25 about a certain matter. O

530 p., 1 In the UCLA license it sets out the amount of fuel 2 f different categories that it wiches to have a license for. 3 The fact of the matter as to UCLA's present possession of 4 fuel, fresh or irradiated, is a matter of public record. This S is not security information. The method of projecting the 6 facility and the fuel is security information. For the amount 7 of fuel they presently possess, the irradiated as well as the [ 8 fresh fuel, is a matter of public information -- even slightly 9 1rradiated, whatever, its state of irradiation or lack thereof to is public information that is not safeguards. yy MR. CORMIER: Judge Frye, we would object to consider-12 i"9.in an pen hearing like this information which on the rep- - 13 resentation of Mr. Hirsch may be, without having a chance to O 14 revie" i' ^^* d ' 'i= ' =e* ""^' i' t"- ^==':"= ""r '"* 15 Board understands, there are various levels of protection of  ; 16 information that are practical to impose on a party. There, 37 is a clear distinction between certain levels of information. 33 Then there is another grey area where you ought to be discrete 19 about publishing to the world. And there is that other area 20 where you ought not to be= talking to the media just because 21 it showed bad judgment. We are in a large metropolitan area, 22 and there are a lot of people out there, and it is hard to l 23 in advance anticipate the motivations of our audience. And 24 I don't think.it is an exercise of good jugdment to seek to 25 get public attention to something to make a point or make an O

531 1 argument in a case, especially when it suggests that you don't 2 hold the same interest that you seem to be putting forth as 3 your real interest in the proceeding. O 4 I have other comments to make, but why don't we get 5 back to Mr. Hirsch on that point? 6 JUDGE FRYE: What I was going to suggest with regard 7 to that point, we were about to break. We would like to confer 8 on this matter a little bit. Perhaps you could show him what 9 it is. 10 MR. HIRSCH: Could I simply show it to all the parties 11 and the Board so that a determination can then be made? 12 JUDGE FRYE: This is a UCLA document? Well, why 13 don'.t you show to UCLA and Staff at the break, and then we () 14 will take it from there, so they know what it is. 15 Now, you had another point you wanted to bring up? 16 MR. CORMIER: I have a general comment again about 17 the Commission's summary disposition procedures. I hava to 18 concede to being impressed with the skill with which Mr. 19 Hirsch is able to craft his contentions in this proceeding. 20 But I must remark the standard he is proposing for review of 21 summary disposition motions really makes a farce of the motion . 22 Any clever individual, I won't include myself neces-23 sarily in that group, but let's assume that there is a proce-24 eding, Connecticut Yankee or Susquehanna aar something like that []} . 25 It doesn't take a hell of a lot of cleverness to be able tc O

532 gggb 1 craft a security contention, given the standard that Mr. 2 Hirsch has employed. We know they have locks there. Why not 3 just simply allege that the locks are inadequate, from Calif-4 ornia. We know that they have guard dogs at certain facilities, 5 lets allege that the guard dogs are near-sighted. They have 6 armed protection of certain facilities. Let's assume that 7 their arm weapons jam on firing. Anybody can make these 8 allegations. The point is whether there is a factual basis 9 for supporting those. The beauty of the summary disposition 10 motion is it gets people to put up or to be quiet =about it. 11 They have to come forward. They can come forward, and they 12 have an opportunity in their affidavits to support all the 13 allegations they are making which jurisprudence in its wisdom m k_) 14 allows litigants to make in these types of proceedings. 15 - The summary disposition motion is the balance in 16 that. process. It says, all right, we have let you make all 17 these allegations. Now is the time'to support them. Did you 18 really have a basis or not? We gave you the benefit of the 19 doubt at the earlier stage. Come forward with your affidavits l l 20 and support these things, and let's see whether we really are 21 wasting our time litigating these issues, or whether you l 22 really have something. 1 23 And of course the standard imposed on the movement, ()

 /      24   the movement of the motion, is so high that the cards are 25   stacked in the favor of the person opposing the motion anyway.
 /~~T U

533 5 1 I think it is an ideal tool to cut through all the rhotoric 2 and get to the real issues that are really in dispute. I 3 think that is the purpose of the motion. O 4 MR. HIRSCH: May I respond briefly to that? 5 JUDGE FRYE: Sure. 6 M2. HIRSCH: The University is attempting to relit-7 igate what this Board decided in February of 1980. The NRC 8 regulations require that for a contention to be admitted it 9 has to go over a threshold. We have to show significant 10 substantive basis enoughtto say that that matter should be 11 looked into. We are at day one after that. day. The Univer-12 sity wishes us to put forward affidavits to demonstrate that 13 their security plan is not adequate without permitting us to () 14 see the security plan. They wish us to put forward affidavits 15 that the alarms are fine, without letting us see the alarms, 16 look at the wiring diagrams, know what kind they are. They i 17 want us to put forward affidavits that the locks in certain 1 ! 18 areas which they have not permitted us to see are inadequate, 19 which wercannot do untillwe see them. 20 We have met the threshold. The University is attempt-21 ing to relitigate what is lost in February, 1980. I must say l 22 I would'like to remind this Board also that a stipulation was 23 agreed to by the University, by the Staff, that there would 24 (]} not be any summary disposition until after security. That 25 was ordered by this Board. The Staff went ahead and made a l l f V 1

534 1 summary disposition motion, which the Board threw out as r( } 2 untimely. The Staff moved for reconsideration. The Board 3 reconsidered, and once again ordered the summary disposition O 4 on this matter not be held until after discovery. That is 5 three Board orders and an agreement entered into by all partie s. 6 We now are having the Staff moving that those three 7 Board orders be revoked, that stipulation be broken, when we 8 have not even begun discovery. The showing that is necessary 9 to show the changed circumstances why the Board should take 10 that action has not been met in any fashion. Il MR. CORMIER: Judge Frye, two remarks. As to the 11 latter point raised by Mr. Hirsch, the Staff and Applicant, 13 as I understand Staff's position, never agreed that discovery () 14 would be completed before there would be any summary disposi-15 tion motions heard. 16 JUDGE FRYE: Well, I don't want to get into that. 17 MR. CORMIER: I don't either. I think the point is -- 18 JUDGE FRYE: That is water over the dam. That has 19 been ruled upon. 20 MR. CORMIER: That is right. The point is the Boarcl 21 certainly has within its discretionary authority the right 22 to~ revoke or change or modify any of its previous orders. l 23 What occurred a year ago under different circumstances ought () 24 not to bind'the Board perpetually on this point. 25 JUDGE FRYE: If there is a useful purpose in taking 1 O l l__ __ _ _ _

535 up this motion at this point. And that ~ is why we brought this {p 1 , 2 item on for discussion at this prehearing conference. 3 MR. CORMIER: I would not have brought it up, except O 4 for Mr. Hirsch's remarks. The other point I wanted to make, 5 getting back to my previous point, is exactly the issue before 6 the Board. Mr. Hirsch, almost by his own words, has suggestect 7 he is on a fishing expedition. That may be acceptable to a 8 degree in other areas, but I want it to be looked at very 9 carefully in.th'e security area. Everything Mr. Hirsch has to said about the defects or alleged defects in the security 11 system can be alleged from here in Los Angeles about any 12 facility in this country. And if we are to accept that 13 standard, it would simply void the applicability of summary () 14 disposition motions under any security issue at any facility. 15 JUDGE FRYE: Since we are on summary disposition in 16 general, let me give=you our thoughts, which are very general 17 thoughts with regard to that procedure. We don't look upon it 18 very kindly, frankly. You have got contentions that are fairly 19 detailed in this case. You have had a wealth of discovery 20 that has gone on. And I personally, and I don't think any 21 of us, are privy to all of the information that has been 22 passed back and forth with regard to discovery. I think that 23 if we ge.t into an extended summary disposition procedure we (') 24 are going to be delaying the hearing three to four months. 25 I personally, and Itthink my colleagues agree, woulcl ()

53C prefer as a general proposition to go to hearing. If we have []}sb 1 2 questions we can ask witnesses. We can't ask affidavits. 3 I think that the whole thing would go much faster, and the O 4 result would be on a much sounder basis after an evidentiary 5 hearing. 6 I think with regard to summary disposition, surely l 7 there may be items in here that are amenable to that process 8 that could be handled very quickly. But I would urge you, 9 when you file motions for summary disposition, that you do so 10 on items that you feel you have got a very strong case for 11 summary disposition. Don't spend a lot of time preparing 12 affidavits. In the same amount of effort you put in to prepar - 13 ing your motion for summary disposition, you could prepare ( 14 your case for trial. And we would get to trial just that much l 15 faster. l l 16 MR. CORMIER: We certainly understand the standards 17 for that. And we would not go forward unless we felt strongly 18 that an issue was not ripe for hearing in this proceeding. 19 JUDGE FRYE: Now, any other comments on this matter? 20 Let's take about a 15-minute break. Off the record, l 21 (Recess.) 22 JUDGE FRYE: On the record. We would like to move 23 ahead now to the next topic that we had noted, which was the () , 24 proposed arrangements for protecting sensitive information 25 on discovery with regard to Contention XX. And we have got l l

537 I a proposed protective order and nondisclosure agreement that { ) sb 2 Mr. Hirsch furnished. I wonder if the Staff or UCLA would 3 like to address those points at this point. O V 4 MR. CROMIER: Judge Frye, excuse me, if I understanc 5 it there is a motion for deferral that is still pending. 6 Is that whereT+e are in that? 7 JUDGE FRYE: We are going to rule on these matters 8 when we finish the conference, or if we need to think about' 9 it, we will go back and think about it and rule on it then. 10 But for now we would like to move ahead with this next point. 11 MR. CORMIER: Am I understanding correctly.that is 12 the motion for deferral that -- 13 , JUDGE FRYE: No, no, Itthink we just finished the I () 14 motion for deferral. Excuse me, I am sorry, no, we did not. 15 MR. CORMIER: Maybe if I can recall for all of us --- 16 JUDGE FRYE: Yes, why don't you restate it, because 17 it does get a little. complicated. 18 MR. CORMIER: If I understand where we are at, 19 CBG moved to defer adoption of protective order and affidavit 20 of nondisclosure so that the Board can consider whether the 21 affidavit and protective order would be extended to Staff and 22 Applicant, which is the first issue, I guess. 23 And then I have been a little confused in the cor-24 {]} respondence that has occurred in the last couple of weeks 25 from Mr. Hirsch that suggests that perhaps 7321, well, certair ly 0

538 b 1 would bear on the question of protection of security informa-2 tion. But somehow that would make the pr'otective order and 3 affidavit of nondisclosure obsolete. So'I am' kind of confused O 4 whether we are at a position to consider whether the protectiv e 5 order and affidavit of nondisclosure is to be extended to 6 Staff and Applicant, a point which the University has argued 7 against in motion already; or if the new position now is that 8 it ought not to apply in any case. Maybe I need a restatement 9 of positio'n from Mr. Hirsch. l 10 JUDGE FRYE: Let me say, with regard to the first 11 point, whether the security agreement and affidavit of non-12 disclosure should extend to Applicant-and' Staff personnel.

     . 13  We think we have got that fully set out in the pleadings t'.lat 14   have already been filed. So we are at this point wanting i

15 to move on to the actual provisions of the security agreement 16 and affidavit of nondisclosure. 17 Now, you haverraised the point that perhaps Mr. 18 Hirsch's position has changed. And perhaps we should ask him 19 for clarification with regard to that. 20 MR. HIRSCH: Frankly, the letters that Mr. Cormier 21 refers to were my request for the clarification of the positic n 22 of the other parties on the implications of the nuregulations. 23 All of us have just received this morning some of the guidance

                                                                                  ~

O 24 documents. Hes ehie seen grovided to the eoerd2 25 JUDGE FRYE: I can't read it from here. What fs: d:t? lO l l

I 539 1 MR. HIRSCH: Protection of unclassified safeguard 2 information? 3 MS. WOODHEAD: No. I have copies of this NUREG O 4 doct. aent for the Board if you would like to have them. 5 JUDGE FRYE: Yes, we would like to have it. 6 MR. HIRSCH: As you may note, I had. asked staff'if 7 they would be willing to find out if there were guidance doc-8 uments'that were published at the time of the regulations. 9 And none of us have had a chance to look at them. 10 The other parties at least have now had a chance 11 to look at the regulations that we had identified in our letters, 12 and we would be interested in hearing their response. We 13 don't have a firm position at this time until we have heard 14 some clarification from other parties as to their view about l 15 those Nuregulations. l l 16 JUDGE FRYE: Let me ask, is this NUREG 0794 a new 17 document? Is this something that has just come out? I8 MR. CORMIER: It is October, '81. 19 JUDGE FRYE: It is October, '81, so it is fairly 20 recent. And I take it that no one has had an opportunity to 21 address this? 22 MR. CORMIER: The University has been in possession 23 l of the regulation and was aware of the regulation. 24 JUDGE FRYE: As to the NUREG itself? 25 MR. CORMIER: As to the NUREG itself since last year'. O

540 3 1 JUDGE FRYE: So you are familiar with it? 2 MR. CORMIER: Roughly familiar with it. A certainly 3 can't speak for the Commission and the interpretation of its ! \ \> 4 regulations. But we are familiar with the regulation, yes. 5 JUDGE FRYE: And the NUREG? 6 MR. CORMIER: And the NUREG. 7 JUDGE FRYE: Mr. Hirsch, have you had a chance to 8 address this? 9 MR. HIRSCH: I got it when I walked in this morning, 10 JUDGE FRYE: I see, so you have not? Okay. 11 JUDGE LUEBKE: And may I ask what is unclassified 12 safeguards information? Is tha,t what we have been talking 13 about for the past hour this morning? n (_) 14 MR. HIRSCH: That is what we have been talking about , 15 whether we can talk it at some other setting. 16 JUDGE LUEBKE: All right, so it is pertinent. 17 JUDGE FRYE: Now does this particular document 18 address the sort of situation we have here, or is this basica:. ly 19 a protection in the hands of utilities and other owners of 20 facilities? 21 MS. WOODHEAD: This document merel i sett out guidance 22 for anyone who has safeguards information as to the proper 23 way to protect it. ('; 24 JUDGE FRYE: So it would be applicable to the kind 25 of situation -- /~N

%Y

541 r*, 1 MS. WOODHEAD: Yes, it is. It was issued along with , k_) 2 Nurule 7321 which for the first: time sets out more specific 3 ways of the minimum requirements for protection vf safeguards O 4 information for anyone who has access to it. 5 JUDGE FRYE: I see. 6 MS. WOODHEAD: Now, if I could go back and perhaps 7 clarify the question that was raised by Mr. Hirsch regarding 8 7321, I believe his question was whether or not the Diablo 9 Canyon protective orders and affidavits of nondisclosures were 10 still' required or proper in light of this new regulation. 11 The nuregulition in question, 7321, as I said, does 12 set out the manner in which safeguards information must be 13 protected by anyone in possession of it. () 14 In the Staff's opinion, the Diablo Canyon safeguards 15 orders and affidavits of nondisclosure are still quite appro-16 priate to use in adjudicatory proceedings for'the simple fact 17 that they are much more detailed and much more clear for the 18 persons who are given access to the information. The protec-19 tions described in 7321 are quite general. For those in the 20 Commission and Applicants who in the past have been subjected 21 to safegaurds protective information, it is not a new consider - 22 ation. But for members of the public who are not familiar 23 with the detailed ways that we handle the technical informa-24 tion, it seems to me to be a very practical guideline for those (]} 25 people who are unfamiliar with the routine methods of protective O

542 {} l orders. 2 Now I don't know if Mr. Hirsch saw the Diablo Canyor t 3 procedures as an additional burden, or if he is pro or con O 4 on using the Diablo Canyon protective order and affidavit 5 of disclosure. 6 JUDGE FRYE: My understanding, and correct me if 7 I am wrong, Mr. Hirsch, was that the draft or the proposals 8 you had submitted were based on Diablo Canyon; was that correct? 9 MR. HIRSCH: Correct. The Board had cited the 10 Diablo Canyon cases, and had suggested that a protective II order along those models would be appropriate. We used those 12 models and drafted a protective order. After that fact we 13 discovered that there were nuregulations, which as we under-() 14 stand it answered some of the questions that we had put forward 15 to the Board as to whether all parties would be required to 16 protect information. And if there were affidavits off'non-17 disclosure, for example, in our view, all parties would have 18 to execute them. 19 JUDGE FRYE: Well, I think we have got that fully 20 briefed, and I don't think we need to argue that point at 21 this stage. Does it make a difference to you whether it i 22 applies to us? 23 MR. HIRSCH: Very much so. () 24 JUDGE FRYE: Why is that? 25 MR. HIRSCH: The University has released in public l l b x_/ l

543 l -b 1 settings public documents or without a protective order infor-2 mation which we feel should have been kept protected. In our 3 view the Staff has done the same. If we have an expert who 4 reviews the security plan, files prefile testimony, and that 5 contents of that testimony in terms of sensitive information l 6 that might be useful to someone to compromise the security I

7 of that facility were released by the other parties. Our goal 8 is to make sure that that doesn't happen. This issue is not 9 who releases it, but whether anyone releases it. So the infor -

10 mation that we,would put forward in camera sessions should 11 be as protected as the information that the Applicant and 12 the Staff put forth. 13 JUDGE FRYE: I don't read Applicant and Staff as (]) 14 saying that it would not be any less protected. 15 MR. HIRSCH: But they are arguing that only Inter-16 veners would have to have their counsel,: representatives,

 . 17   or experts execute affidavits of nondisclosure. And the 18   protective order, as I have read their pleadings that they 19   would feel would be appropriate would be the only one directec.

20 at the Intervener. And I assume it is the City. 21 JUDGE FRYE: Let's hear from UCLA on this. Do you 22 understand what he is concerned about? He-is concerned about 23 information that CBG generates which CBG feels should be pro- , {} 24 tected, being protected in your hands and Staff's hands. 25 MR. CORMIER: Judge Frye, I think there is a common O

544

    -1      1  sense response to that. And then there is a technical response.

(G 2 I don't hear CBG to suggest that there is any interest that 3 has been expressed on the part of the University to disclose 4 any security-related information. 5 Mr. Hirsch has made an allegation. And if I heard 6 him correctly, the allegation is that we have released infor-7 mation which in CBG's view, should have been protected from 8 disclosure. I don't know what he is referring to. I don't krtow 9 what degree of public disclosure he is talking about. Unlike. 10 other parties in this proceeding, we restrain ourselves from 11 going to the media with. security-sensitive matters. So I can' t 12 deal with that allegation. I don't know what he is talking

 .        13  about.

() 14 JUDGE FRYE: I am not concerned about that allega-15 tion. I am concerned about your response to how you would 16 protect, say, testimony prepared by an expert witness testify- - 17 ing on behalf of CBG. 18 MR. CORMIER: We would protect it like we would pro-- 19 tect our own information. We have no interest in disucssing 20 any of these matters out of the context of in camera NRC i 21 Commission proceedings. There is no interest in doing that. 22 I don't understand why he would even raise that as a concern. l 23 But, if I can continue, perhaps more to the point, 24 ({} the Commission is very explicit about what it regards as pro-25 tected information. If I understand correctly, it is only O

545 ( ',b 1 that protected that a protective order can protect. I am V 2 a little confused on whether the speculations that CBG may 3 wish to introduce about weaknesses in the security system O 4 qualify as that information to start with. Certainly we 5 would treat any of that as in camera matter that is not to 6 be disclosed on a good-sense standard, not because we are 7 compelled under the regulation, because the regulation doesn' t 8 seem to be clear on that for me. 9 So I don't know if we are talking about protected to information-here, what CBG would introduce into the proceeding . 11 JUDGE FRYE: You are raising a question of whether 12 it is entitled to protection at all, the regulation. 13 MR. CORMIER: Yes, but not meaning to suggest that () 14 we would ever want to disclose that information, but just 15 because it creates complications for a protective order that 16 is to issue, defining safeguards information, or, as Mr. 17 Hirsch has raised recently, the applicability of 7321. Again, i l 18 I am confused. We are going back and forth. 19 If the suggestion is that a protective order and an ! 20 affidavit of nondisclosure are not required here, then I woulcl 21 raise the question, well, wait a second, this information 22 may or may not be protected information. Let's have a protec-23 tive order to make that clear. A protective order is a neat 24 way to get right to what we want to do. Applying it to the (]) 25 University involves some other complications or problems, O I

l 546 1 tactical problems which I can get into. {} 2 JUDGE FRYE: Yes, I think that point is briefed. 3 I don't think we need to get into that. But I am concerned 4 about whether under the regulations information generated 5 by CBG on this point would be entitled to protection. Can 6 you enlighten me, Ms. Woodhead? 7 MS. WOODHEAD: I believe anything filed by CBG con-8 cerning a safegaurds intention *which was to be submitted along 9 with any other evidence or testimony, whatever, concerning to a security contention would be considered safeguards informa-11 tion whether in actual fact it qualified for the Commission's 12 criteria. 13 So I believe as a practical matter it is very 14 difficult to separate one sentence from another. And if we 15 do indeed litigate Contention XX, then some safeguards order 16 will be enforced, and everything submitted under that order 17 will be considered protected information. And I don't imagine 18 that anyone would debate any discrete part of testimony. 19 JUDGE FRYE: Does this answer your question?~ 20 MR. HIRSCH: No, I am afraid not. I guess my ques-21 tion is whether the Staff and Applicant wish to impose a pro-22 tective order and affidavits of nondisclosure on Intervener 23 and/or the City beyond what the regulations say. That is one n 24 (_) question. 25 The second. question is if there were to be such a O

540 1 protective order and affidavits of nondisclosure, whether l 2 the protective order would apply as well explicitly to Staff 3 and Applicant, and whether affidavits of nondisclosure as O

 '-                                                   4  well would be required of them.

5 MR. BAY: May I try to phrase it a different way, 6 closer to the issue, I think. Under 2.77.44(e),which essen-7 t1A11y brings the new --well, 73.21 guidelines into the con-8 , tested hearing context, basically it says that any information 9 possessed by & party shall be protected according to 73.21. 10 It goes on to say that presiding officer may also prescribe 11 additional safeguards measures. 12 One of the questions we are raising is everybody 13- is stuck with a minimum 73.21. We are all covered by that () 14 by virtue of being in this proceeding. So I think what we 15 are saying is are there going to be additional safeguards 16 unilaterally imposed upon the intervener? And if so, is there 17 a good reason that they~should not -- if there is a good reason 18 for that, is there a good reason they should not also be im-19 posed on the Applitant and the Staff? 20 JUDGE F: YJ: Yes, but that gets us back into the 21 -- well, precisely into'the question you phrased, which I 22 think we feel we have got adequate briefing on at this point. 23 That is why I didn't want to take it up in argument. 24 JUDGE LUEBKE: What are the practical aspects here? (]} , 25 The Intervener has designated a person and says they will do O

548 1 certain things to protect information? Are you asking the r(m)b 2 other parties to do the same thing? 3 MR. HIRSCH: Precisely. Precisely. O 4 JUDGE LUEBKE: I am glad that that is understood. 5 Thank you. 6 MR. CORMIER: There are practical problems. Again, 7 I think you have made the point that that issue has been 8 briefed, and you don't want to take it up. 9 JUDGE FRYE: Let's hear from you. 10 - MR. CORMIER: There are practical problems involved 11 with applying or extending any such protective order-to Staff or 12 Applicant. In fact, they couldn't be. All the information i l 13 relating to the Applicant's physical security system, Appli-l () 14 cant:'.s employees would need to know, would already have 15 access to that information. There is no way you can protect 16 against it, or sign an affidavit of nondisclosure. 17 The only issue we are talking about, if I understanct l 18 it correctly, is what about those pleadings and allegations l ! 19 introduced by CBG into the proceeding. 20 Well, again, protective orders usually run in favor 21 of those who have information to protect, who don't want to 12 disclose it, in favorrof:those who want the information. l 23 Maybe this is too simple a response. But we don't know what (} 24 CBG is going to introduce. We are not asking them to introduce 25 anything. We are not -- it is hard for us to know whether (E)

549 1 we want to subject ourselves to that, not knowing what they 2 are going to introduce. 3 MR. HIRSCH: Shall I give some examples, perhaps, O 4 that are vague enough to show the concern? 5 JUDGE FRYE: Let me say this. I don't know whether 6 this will alleviate your concern or not, but certainly to the 7 extent that you are introducing information pertaining to the 8 security plan that is sensitive, it is going to be covered by 9 the same protective order. It is going to be in camera. 10 It is going to be held in a way that prevents its disclosure 11 to the public. And Ittbink everyone here agrees with that. 12 I haven't heard anyone who has said anything to the contrary. 13 Now, when.you get into the question of nondisclosure O i4 eereemen;s, ageticanes end Steef heve see to tive under the 15 regulations on this point at all times, independent of this 16 proceeding. And I think it raises some problems if we try 17 to then impose nondisclosure agreements upon them with regard 18 to this information. 10 MR. HIRSCH: If I may respond, our reading of the 20 nuregulations is that all of us have to live under those 21 agreements, as of the moment that regulhtion was passed, the l 22 moment we would receive any information that is protected, l 23 all of the parties here have to obey those same rules. 24 The question is are we going to be required to put 25 forward, for example, an expert, and the University or the O

l l 550 8b , 1 Staff be able to say that person should not receive our 2 pleadings, should not receive sensitive information, but the 3 University be able to show our pleadings to anyone who wishes, 4 That is one of the questions -- without us being able to say, 5 " Hold it, we have some information about that person that 6 that person is not very reliable;-in terms of holding sensi-7 tive information, or that that person does not have a need 8 to know along the standard that has been applied to us." 9 JUDGE FRYE: As I understand it, and correct me 10 if I am wrong, on the Commission's adoption of this new rule, 11 they pretty much eliminated any question of personal reli-12 ability from any of this. 13 MR. CORMIER: They have eliminated a trustworthi-() 14 ness standard or an investigation. There are other inquiries 15 that may be relevant. 16 JUDGE FRYE: There are other inquiries, and the 17 inquiries are basically centered upon expertise, is the persor. 18 an expert qualified to evaluate this particular information. 19 MR. HIRSCH: So challenges to Intervener is propose 20 witnesses on a trustworthiness basis, then would also be -- 21 MR. CORMIER: Yes, As I read the regulation, yes. 22 MR. HIRSCH: In terms of a need to know the expertise 23 of a proposed witness that the Staff or the Applicant wishes 24 to review our pleadings, for example, would scem that if they {} 25 have an opportunity to comment upon whether our proposed exper ts

551 1 have the expertise necessary to meet that need-to-know stan-2 dard, it would seem that we should have that same opportunity, 3 MR. CORMIER: Judge Frye, I think we are losing the O 4 focus on the issue. F at of all, it is not clear to me that 5 73.21 applies to any experts CBG brings in. Those experts, 6 of course, are not parties to this proceeding. They are entire-t 7 ly third parties to this proceeding. l 8 Secondly, the sanctions, if you investigate the 9 sanctions in t;he Atomic : Energy Act for noncompliance with thia , 10 although in licensees and NR staff are held to almost a strict 11 liability standard, the standard applying to all others is 12 a willful nonconformance. How can we be insured that any 13 third party even knows about 73.21? I mean, it is hard '() 14 enough for Staff and Applicant to get our tortured way l 15 through this thing. How can we hold any third party to 1 16 those standards? l 17 But on the other point, right now, I am not sure ! 18 that Applicant has any expert witnesses, let's say, in this 19 area that he intends to introduce. Obviously counsel has 20 to review the pleadings. And if the question is to me whether l 21 I would subscribe, or to my colleagues whether we would sub-22 scribe to 73.21 fully, or any additional procedures, the 23 answer to that is simply yes. Obviously we are going to want 24 to reserve the right to interrogate as to any experts that (]) l 25 are proposed. But we have made no committment that we are l l

552 C'sb I introducing anybody on our side. We would have no reason to 2 get somebody else to subscribe to an nondisclosure statement O $ or erridevit or noadisolosure until we xnow whee ener heve 4 introduced in any case. I don't know how it could work, is 5 what I don't understand. 6 Obviously the attorneys are going to look at the 7 pleadings. Whether we intend to or need to or feel compelled 8 to counter any evidence introduced by CBG with expert witnesse s 9 on our side is a question we can't answer now. Until we 10 answer that, there is no reason for anybody else to see any II of those pleadings 12 It just seems to be unworkable. The Board is left p 13 with the fact that we are fully subject to 73.21. , a 14 There is l i no willfullness. We are charged with informing our staff and 15 ! keeping them informed of how to handle safeguards information. 16 There is no escape clause for us. 17 MR. HIRSCH: Judge Frye, the need-to-know determin-I8 ation as to whether information in this proceeding can be 19 released to to an individual, as I understand it, is in your 20 hands. The regulations in terms of determining the need to 21 know in this setting would a determination that in the ulti-l 22 l mate you would make. It seems to me that if we are being asked 23 to put forward our witnesses on a certain day, and as the O 24 applicant has asked, we not be able to put forth anyone else 25 thereafter, but the University says "We don't want to put O V

                           ~,   - _ _

553 I forward ours now, and we really don't want the Intervener to {]) 2 be able to question our expertise," seems to be requesting 3 a double standard. O 4 JUDGE FRYE: To a certain extent, I wonder if this 5 just doesn't come about because of the timing of the thing. 6 They have not inquired of you on discovery with regard to ( 7 security matters, but you have inquired ofithem with regard 8 to security matters. 9 MR. HIRSCH: They have now asked that they do. 10 They have now asked, for example, that they be able to ask 11 interrogatories of us. The question is who then can see those-12 interrogatory answers. 13 MS. WOODHEAD: Judge Frye, could I make one commenti . 14 JUDGE FRYE: Surely. i . 15 MS. WOODHEAD: If I could put this in jurisdictional 16 setting, the Board has no jurisdictionrover/whether or not 17 to allow Staff and Applicant access to safeguards. This is I l 18 sort of putting things -- 19 JUDGE FRYE: As a general proposition. 20 MS. WOODHEAD: As a general proposition, because 21 we have had access to the safeguards information for the two 22 years it has been in existence. So the only issue here is 23 whether or not CBG and its representatives should bezallowed () 24 access, because they have raised a security issue in this 25 proceeding. So that the expertise of any proposed witness l t

554 b 1 that CBG puts forward must be qualified as a bonafide expert-2 before we can even litigate this issue. 3 If they have no experts to propose in security mat-O 4 ters, then they have no way to litigate this issue. So the 5 expertise of the CBG-proposed witness is pertinent to whether 6 or not they are given access, not to their expertise to testify 7 as an expert, as CBG might question the Applicant's expert 8 and the Staff's expert in an evidentiary hearing. They would 9 be very free to do that once we present evidence. 10 They could challenge the expertise of Staff witness 11 and the expertise <of the Applicant's witness. But the exper-l 12 tise of Staff and Applicant personnel at the moment is ir-13 relevant. We have access to safeguards information. We do O(,/ 14 not need to show expertise. It is an: accomplished fact. 15 The expertise of proposed CBG witnesses relates only to whether 16 or not this Board should allow the Intervener access to. 17 safeguards dnformation. If they cannot propose a security 18 expert, then they have notwayyto litigatera security issue. 19 It has nothing to do with perhaps later on intthecevidentiary 20 session challenging further the expertise of a CBG expert to 21 testify on a particular matter. It is simply to determine 22 whether or not they have security experts who could testify 23 in this matter, so that they could be allowed access. 24 MR. HIRSCH: A quick response. It has been long (]) 25 decided in NRC precedent that an Intervener need not put on O

555

   'b    1 its case affirmatively, but can do so in cross-examination.

2 The fact of the matter is if the conditions are acceptable 3 to us, there will be witnesses. The question is what happens O 4 to the interrogatories that Bill wants to send to us, our 5 answers, the information that we have got, and that westhink 6 they should have protected to begin with? Are they going to 7 be able to show us the same people who leaked it if that 8 person has no expertise? I don't mean leaked, but I mean let 9 it out.-- staff. Material that we think should have been 10 protected has been revealed. If it is okay to question 11 whether or not a certain person who we intend to call as a 12 witness has the necessary expertise to be granted access to 13 answers te our interrogatories, the same must be true for () 14 their interrogatories to us. We all have an interest, 15 supposedly in protected information. 16 JUDGE FRYE: You have got to recognize, though, 17 I think that independent of this contention, I mean if this 18 contention had nev*er been filed, Staff and Applicant have 19 access to this information. 20 MR. HIRSCH: Yes, we are not asking that we have 21 a chance to say who should have access to their security 22 plant, clearly. The question is if I can show you five ways 13 that they haven't thought of to, let's say, disrupt the alarm. 24 okay? that they haven't thought of, they should be required (]) 25 to protect thattinformation too, because we don't want that l (Z)

553 l information out. r} 2 JUDGE FRYE: Well, if that information would be 3 protected. O 4 MR. HIRSCH: But that is the question. They won't, 5 for example, permit us, as I understand it, to be able to 6 question whether or not so-and-so has the need to know, has 7 the qualifications necessary to entitled them to see that 8 information. And they apparently don't want to have to have 9 those people sign an affidavit of nondisclosure for that

   , 10  information too.

11 JUDGE FRYE: I don't think, and I am not privy to 12 this, but I don't think as a general proposition,you know, 13 independent of this contention, that staff members or employees () 14 of an applicant sign affidavits of nondisclosure, or am I 15 incorrect on that? 16 . MS. WOODHEAD: You are quite correct. 17 JUDGE FRYE: They do not? 18 MS. WOODHEAD: They do not. 19 JUDGE FRYE: They do not. They are as a general 20 proposition under the regulation, and there are obviously

21 sanctions that can be imposed upon them if they don't follow 12 those regulations. So we are talking about a little different-.

23 problem. 14 MR. HIRSCH: Except that now those regulations apply ({} 25 to all of us. And I as I read those regulations, they now O

557 1 incorporate those requirements that used to be in protective gsb 2 orders into the regs, so that period, we all have to protect 3 it. There has to be a point I need to know. And the questioni 4 is whether -- there is language in the statement of consider-5 ation for that nuregulation which makes it clear that the 6 presumption that an intervener somehow is less trustworthy, 7 and a presumption that an intervener should have greater 8 restrictions placed on it than other parties in a proceeding 9 on a security matter,is not to be part of these regulations. 10 That these regulations are to apply equally. 11 It is prejudicial to us to require our experts to 12 sign affidavits of nondisclosure and not the other parties' 13 experts iffindeed we are all under the same regulations. p (_J 14 JUDGE FRYE: Let's move on. I think we have 15 covered that point.very adequately. Let's move on to the 16 details of affidavits of nondisclosure and protective order, 17 and try to leave aside for the moment the question of whether 18 we are going to have all of the experts sign the affidavits 19 of nondisclosure. Obviously the protective order would 20 apply across the board to all the parties.without any question. 21 So, Mr. Hirsch, do you want to start out on that? 22 MR. HIRSCH: I would like to hear the comments, 23 actually, of the other parties about the proposals that we 24 made for an affidavit. :I.have seen some comments by staff, (]') 25 but I don't believe that the Applicant has responded to the n Ns]

558 r I substance of the protective order. 2 MR. CORMIER: Judge Frye, we hadn't responded 3 because it was our understanding that youc had deferred that O 4 question. 5 JUDGE FRYE: That is right,I had. 6 MR. CORMIER: So we are certainly willing to dis-7 cuss it. But we are not prepared to offer our proposed 8 affidavit of nondisclosure.and protective order at this 9 hearing. 10 JUDGE FRYE: Okay. 11 MR. CORMIER: And we would, I think it would be 12 helpful if we reserve the right to do that. 13 JUDGE FRYE: All right, in light of the fact that O i+ we hed deferred the echedute, we w111 reesteh11eh ehee schedui e 15 and permit you to file. 16 l You did, as I recall, respond to it on behalf of 17 Staff. I8 MS. WOODHEAD: That is right. 19 JUDGE FRYE: Let me just ask if you have got any 20 general observations or comments that you want to make at 21 this point, since we are all here together, that would be 22 helpful. 13 MR. CORMIER: Yes, I can explain, first of all, I 24 think the proposed protective order and affidavit of nondis-25 closure does follow in important respects the guidance set \ l

559 d We would have some recommendations to {) 1 down in ALAB 592. 2 tighten that up. We assume that since all of the parties 3 are as concerned as they have expressed today in protecting 4 that information, they would not be objectionable. 5 We had a problem, and that is the reason why we 6 needed to resolve this preliminary issue about the appli-7 cability of protective order before we could comment on the 8 proposed one. It has to do with the definition proposed for 9 authorized persons, as well as a definition for protected 10 information that appears in the affidavit on nondisclosure. 11 JUDGE FRYE: Incidentally, while I am going through 12 these papers, Mr. Hirsch, I still have your secret envelope 13 unopened. () 14 MR. HIRSCH: I apologize for that. If you have 15 suggestions as to how I could have done that differently. 16 JUDGE FRYE: No, that is all right. That is fine. 17 Now werare on the definitions in the protective 18 order? 19 MR. CORMIER: Yes. And again -- we have trouble 20 pulling apart these issues, Judge Frye. And this really 21 relates to the matter you don't wish discussed any further. 12 But I think it would provide an example of why we have trouble l 23 responding until we get that initial issue clarified. l 24 The definition of authorized persons wouldn't be l (]) l 25 applicable on two counts. Obviously the Applicant, the C) 1

a 560 i licensee, has dealings with people other than the Atomic {p 2 Safety .and Licensing Board on safeguards information matters. 3 We do talk to carriers from time to time. O 4 JUDGE FRYE: Carriers in the sense of people who 5 transport materials? 6 MR. CORMIER: Correct. 7 We do talk to other licensees, vendors, subcontractees 8 for equipment related to safeguards information. And until 9 we are satisfied that the protective order we would propose 10 an affidavit of nondisclosure are not meant to apply to . II Applicant, we can't propose protective order or affidavit 12 of nondisclosure. Or we could propose it with the understand-13 ing we intend it to apply to third parties. () 14 JUDGE FRYE: That point would:have to be taken 15 into account. 16 MR. CORMIER: We can do that very quickly within 17 a short period of time, we can get our proposed affidavit 18 of nondisclosure and protective order to the Board for its 19 consideration. 20 JUDGE FRYE: Ms. Shirley, do you have something to 21 add? l 22 MS. SHIRLEY: Judge Frye, I would also like to l 23 request that the City of Santa Monica be allowed to propose () 24 an affidavit of nondisclosure and a protective order, so that 25 we too might participate in discovery with respect to the O

561 1 security matters. {^} 2 JUDGE FRYE: Fine. Ms. Woodhead, any further com-3 ments? O 4 MS. WOODHEAD: None beyond repeating what my written 5 comment was. 6 MR. HIRSCH: May we confer for just a moment. 7 JUDGE FRYE: Certainly. 8 MR. HIRSH: We are fine. I think our question has 9 been resolved. 10 JUDGE FRYE: Mr. Cormier and Ms. Shirley, do you 11 want to submit within what, ten days? 12 MR. CORMIER: That would certainly be sufficient. 13 MS. SHIRLEY: That is fine, Your Honor. () 14 JUDGE FRYE: Mr. Hirsch, you ought to have an 15 opportunity to comment on what they submit, and the Staff 16 as well. 17 MR. HIRSCH: If we find that we don't need to commer,t , 18 I will phone your office so that you know th'at you don't have . 19 to wait those additional days. 20 JUDGE FRYE: Fine. 21 MR. HIRSCH: But we would appreciate an opportunity 22 to respond, if it is something material that we have not 23 heard. 24 JUDGE FRYE: Say five days after you have received (]) 25 it? O

562 sb 1 MR. HIRSCH: Given five days for mail, right. 2 JUDGE FRYE: No, I was saying five days after you 3 actually -- () 4 MR. HIRSCH: Oh, after date of receipt, fine. 5 JUDGE FRYE: And let us know if you aren't going 6 to respond. 7 MR. HIRSCH: By phone. 3 JUDGE FRYE: Yes, we would appreciate that. 9 Now that brings us, I think, to the third topic, 10 discovery. .Under that the first item I had was the protectivo 11 order which we prepared and submitted with regard to the photo - 12 graphs about which UCLA has some specific security objections. 13 And the next item, of course was the -- oh, excuse me. () 14 The first item, I guess, was the photographs about 15 which you have no specific security objection, rather a genera l 16 security objection. .

  .        17              And then the next item was the photographs about 18   which you do have specific security objections. And I would 19   like to inquire what the parties think would be the best way 20   to go about that. Shall:we take up the protective order first ?

21 Or should we take up a comparison of those 20 photographs? 22 MR. CORMIER: Judge Frye, I suggest that maybe you 23 get a response from the parties to whether there:.is any objec-24 (]) tion to the protective order. 25 On the University's part, there isn't. l l /~% V

563 sb 1 And then I would suggest a more informal procedure, 2 if you would allow the parties to approach the bench, perhaps 3 we can view the photographs, if I understand that it was 4 your intent to do so. 5 JUDGE FRYE: My intent really was to have you and 6 Mr. Hirsch compare them. And if you have problems, or if Mr. 7 Hirsch has problems, then we will get involved in it. 8 If, on the other hand, Mr. Hirsch is happy with the 9 situation, why then we don't need to get involved. 10 MR. CORMIER: Perhaps we would take up that latter 11 point in a moment, if we could find out whether1the protec-12 tive order is acceptable. 13 JUDGE FRYE: All right. () 14 MR. HIRSCH: We need some clarification of items 15 of the protective order, and we do have some concerns about 16 it. I don't know if those concerns of ours have been ruled 17 upon. But we do have some clarification questions as well. 18 JUDGE FRYE: Fine. 19 20 21 22 23 2* C) 25 O

   /

564 MR. HIRSCH: As I understand it, the protective (]} g 2 rder applicable to 20 photographs which Bridge the Gap took 3 on an inspection last Fall to which there are security sec-O 4 tions made by the Applicant, although the photographs were 5 taken in areas to which public tours are permitted. The 6 photographs were not in an area to which it restricts access. 7 The particular concern of the Applicant is that g these photographs not be shown in particular to the media,

       ,  but extended to anyone besides those people involved directly 10  with Bridge the Gap in presentation of that matter. And the g;  Board in its post protective order says as follows, and I 12   request a clarification about it.

33 Item 4 on page two: 14 "In the event that CBG intends to use 15 any or all of the photographs in support 16 of any of its written pleadings or tes-17 timony in this proceeding, it is to iden-13 tify photographs which support in 1, those pleadings and photographs intended 20 for use as exhibits at hearing at least 21 15 days in advance of the hearing 12 session at which they will be offered. 23 Identification shall be by number as-() 24 signed to the photograph or photographs. 25 U.C.L.A. shall seven days from the date O 1

2_ - 555 () 1 of service of the identification of 2 a photograph to apply for a protective 3 order. Such application shall be made 4 by conference call initiated by U.C.L.A., 5 and use of those photographs which are 6 subject to such application will then 7 be on terms and conditions set by the g Board." 9 I understand the procedure that is suggested for 10 dealing with photographs which are intended as exhibits at ' 33 hearing. I assume that means that they are to be submitted, 12 for example, as attachments to pre-filed testimony which 33 is normally -- or am I in error there? O 14 JUDGE FRYE: No. My thought here was that you 15 would not do that. Rather you would just -- 16 MR. HIRSCH: We would identify it -- 17 JUDGE FRYE: -- simply identify it by number and 13 give U.C.L.A. an opportunity to -- 19 MR. HIRSCH: Uh-huh. (Affirmative response.) 20 JUDGE FRYE: -- raise any objection. 21 MR. HIRSCH: Then if -- l 22 JUDGE FRYE: If they did not raise any objections, 23 then, of course, at the hearing if it is an exhibit, you () 24 could simply follow the standard procedure for introducing 25 it at that point. O

                                      -r      -      _ -

7

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566 1 MR. HIRSCH: Okay. I still have some questions, 2 then. O 3 If the University has a copy of the set of photo-4 graphs, and we do, how will the Board resolve the matter in 5 that conference call if it is by the numbers? 6 JUDGE FRYE: In other words, who would view the 7 photograph, is that your point? 8' MR. HIRSCH: Yes. Is that understood, then, that 9 you will also have a set? 10 JUDGE FRYE: Well, I think that,is a good point. II I think we probably should have a set under those circum-12 stances. ,, , I3 MR. HIRSCH: I do not understand,'then, in addi' O t 14 tion, how it works with regards written pleadings. For l 15 example, Staff and Appl $. cant have proposed that there be t 's .s , 16 summary disposition at thin l time.GIf the' Board rules favor-l 17 ably on that proposab5f-lthe Staff, and w'e respond in sum-l 18

                                  ~

mary disposition with attached photographs or numbered photo-I9 graphs, I do not unddrstand exactly-the; time frame as to -- 1 20 beause we are l supposek, to.. serve it to the docket.ing, and 21 then have to go to LPDR -- I do not understand how we go 22 through the processJof determinine hc it is included in 23 the pleading as filed, particularly Staff and Applicant have O 24 argued that ocr pleadings do not have to be protected. l 25 JUDGE FRYEE.. Well, I th' ink it was kind of -- O , \ .

                                                      -                     i                 .

g _. _,

c/ 567 1 perhaps it is not clear here, that you would identify photo-2 graphs which support written pleadings in those pleadings. 3 Okay, again by number. 4 MR. HIRSCH: Since you would have a copy -- 5 JUDGE FRYE: I would have a copy of the photograph. 6 MR. HIRSCH: -- of the photograph, you would -- 7 simply to identify something which you already possess. 8 JUDGE FRYE: That is right. 9 MR. HIRSCH: Therefore, we would not need to -- 10 JUDGE FRYE: We are only talking here about a ques-l 11 tion of whether the photograph should be in the public record s 12 or not. - 13 MR. HIRSCH: So I assuine that our responses would l O 14 not go to docketing? 15 JUDGE FRYE: No, I think they would go to docketing. 16 The question would be whether the photograph would go to 17 docketing, you see. I8 tiR. HIRSCH: The photograph would go to docketing 19 15 days after there is no objection? Or docketing just does 20 not get it? 21 JUDGE FRYE: Well, if there is no objection, then 22 it would go to docketing. II tiR. HIRSCH: So 15 days later, or whatever the time O' 24 gerios is, if there is no oh3ece1on, we .ou1d then send in a l 25 supplemental filing with the photographs identified by the l O l

568 () g numbers? , 2 JUDGE FRYE: That is right. 3 If there is an objection, then the photograph would 4 also go to docketing, but it would be protected. 5 MR. HIRSCH: Uh-huh. (Affirmative response.) 6 JUDGE FREY: From public disclosure. 7 MR. HIRSCH: Okay. 3 JUDGE FRYE: Assuming the objection is upheld. 9 fir. HIRSCH: Okay. . 10 And if no objection is raised to a photograph,

gg what conditions, if any, apply to their use at that point?

12 MR. CORMIER: The protective order would still be 33 in effect. - I () 14 JUDGE FRYE: The protective order would still be l 15 in effect. 16 MR. HIRSCH: Which is, if it is to be shown at i 17 hearing, they would be in the Public Document Room. l 18 JUDGE FRYE: They would be in the public domain. 19 MR. HIRSCH: But we could not show them to anyone 20 in the public? 21 JUDGE FRYE: You raise a point. 22 Mr. Cormier, do you want to -- 23 MR. CORMIER: Yes, we may be making more out of 24 this than we really need to, Judge Frye. Perhaps when we 25 examine these, you will see that for the most part, except O

    ,                                                                I 569 y for those special set that we are going to discuss, they are 2 m re or less innocuous photographs. Our concern all along has been that if we provide a deck of 215 photographs de-l

' p) 3 4 tailing the facility, that would amount to a holographic map , 5 if it got to somebody else. l 6 It is, I think, a well-taken precaution, but we do 7 not think that it would lead to any objection to any specific g photograph or even any small number of photographs -- 9 JUDGE FRYE: Mmm-hmm. (Affirmative response.) 10 MR. CORMIER: -- being out. We would not want the 11 entire deck out. So presumably, if there are a reasonably 12 small number of photographs that seem to be pertinent to par-33 ticular issues that are introduced and they find their way [

 \

34 to the Public Document Room and we have not, objected or our l 15 bjection has been overruled, we would have no further need 16 to have those photographs, let's say, under the protective 17 order. 33 But it must be understood that ought not to be a l 19 way to bootstrap to get all the photographs into the public 20 domain. Our concern is numbers again. If there are a few, 23 we are not going to have an objection to that. If there 22 seems to be a great number of the photographs that are being l l 23 bootstrapped into the Public Document Room because we did O 24 noe reise egecific obsections, then we woutd.

25 So it is hard to anticipate ahead of time, but we O

7 570 O i mer be mekine more out of this ehen we ree11v need to. 2 MR. HIRSCH: That has been our impression all along

 ]   3 4

in terms of a need for protective order, to prevent photo-graphs of areas that are normally taken on tours and as you 5 saw by the affidavit we submitted where oeople can just walk 6 in and shoot as much movie film as they want at the same 7 area. 8 If it is such a minor issue, it would seem that 9 maybe a more' moderate protective order might be acceptable 10 to the Applicant where there is a restriction that we not Il provide negatives or prints of more than five or ten or 12 whatever number seems reasonable to any individual. 13 The media have been able to go through,and several O 14 representatives here have gone through and shot numbers of 15 rolls of film. It seems very hard for us"to understand why 16 that restriction should be placed on us, especially if Bill 17 is arguing it is such a minor thing. II If the restriction is that we cannot give out 19 negatives, you know, 215 negatives or 50 negatives or, you 20 know, 25 negatives to any individual, certainly. But that i 21 seems quite reasonable to us. 22 What we view as a visual gag order on those 23 materials which they admit that they have no specific objec-24 tion to any specific one, we just do not understand. 25 MR. CORMIER: Judge Frye, we seem to be relitigati'ng O t

l e7 571 () 1 a point that I thought we had discussed already in our 2 pleadings, and I thought we came here to discuss protective 3 order. Now we seem to be discussing whether it is going to 4 apply or not. 5 JUDGE FRYE: Well, can you put a specific number r, on it? I mean -- 7 MR. CORMIER: We cannot. 3 JUDGE FRYE: -- 15 -- would that be too many? Or 9 20, or -- 10 MR. CORMIER: We cannot. And we think your pro-gg tective order takes that into account. It will let us see, gg first of all, what specific photographs we are talking about i 33 and how many. 1 14 I should comment too, Mr. Hirsch seems to go on 35 about the third parties, me or whatever,taking rolls of film 16 at the facility. None of the media have taken extensive 17 Ph otographs in the areas that were covered by this photograph- -- l 13 ing session during the inspection November 17. l 19 And you will see that as you look at that. l ~ l 20 MR. HIRSCH: And that is restricted to the numbers 21 that are permitted. If Mr. Rhodes was able to take two 12 movie films, or NBC was able to take what videotape they l 23 wanted, why not restricted to the came restrictions they () 24 imposed on the media? I do not understand the additional 25 imposition of a requirement that they are not imposing on ()

   'l 572

() I the primary need for distributing photographs. 2 MR. CORMIER: Judge Frye, in fact, we are opposing 3 that, and I do believe we are getting very argumentative on [ 4 a point that was fully briefed previously. And if the Board 5 wishes to consider further argument on that, that is fine, 6 but I really think we are going around the issue. 7 JUDGE FRYE: Well, I do not want to get into it. I 8 think we are getting very close to -- pursue this, we would 9 have to get some witnesses in and find out. And I was try-10 ing to avoid that necessity. 11 MR. HIRSCH: If I could just state our position, 12 then. 13 It was stated in the Board Order that the Interve O 14 nor had not asserted that it would suffer any injury were 15 the protective order imposed -- 16 JUDGE FRYE: Mmm-hmm. (Affirmative response.) 17 MR. HIRSCH: -- or were the conditions 18 suggested by Applicant imposed. I do not think that repre-19 sents our view. We do think that our interests are very i l 20 much served by just being as public a proceeding as it can l 21 be on anything but the security matters. And we think that l 22 public view and scrutiny of this whole issue is very impor-23 tant to the trust to the public in the final results and () 24 to this being actually a public proceeding. 25 We have no intention of giving out photographic ()

 /9 573 I maps of the facility. The whole reason we are here is that 2  we are trying to increase the security, not to jeopardize it.

3 But we do not understand why there should be that 4 visual gag order, and we do feel there would be injury to our 5 interests if that were to occur. 6 JUDGE FRYE: What specific injury? 7 MR. HIRSCH: Well -- 8 JUDGE FRYE: You are talking about in terms of 9 your presenting your case? 10 MR. HIRSCH: For example, ex'actly who do we -- who 11 is determined that we can show it to or not? A great deal of 12 what goes on with us is to show photographs to people, which, 13 as Bill says, is a public institution, who have some specific O 14 information about a -- you know, just been around at U.C.L.A. 15 or whatever. Exactly what is the limit of who you can show 16 it to? 17 ' JUDGE FRYE: Well, you have got your -- it says used I8 by CGB, its. officers, attorneys and technical consultants. 19 MR. HIRSCH: Correct, but to what limit? It 20 sounds like the only limit 'si the media. If I am showing 21 photographs to someone who may have an idea for our tape, 22 how much of an idea is the threshold? 23 Sc much of the way we have gotten information has O 24 been simg1y crazy 11ee1e suggestions ehet geog 1e come up 25 with who one would not anticipate being an expert witness O l l \ -_. .- _ _ _ _ _ _ _ - - - - - - - - _ _ _ _ _ - - _ _ _

// 574 I on a matter. Like someone says, "Oh, I once went on a tour 2 there." 3 Or, "I know the person who installed that." 4 Or, "My parents have a system like that at their 5 home, and it doesn't work at all." 6 Whatever. 7 JUDGE FRYE: Well -- 8 MR. HIRSCH: So, I guess what I am asking is 9 exactly what is the limitation that is being imposed. 10 JUDGE FRYE: I think we have ruled on this point. II MR. HIRSCH: Okay. 12 JUDGE FRYE: So let us move on now. 13 With respect to this proposed protective order as O 14 clarified, does it -- 15 MR. HIRSCH: We are not pleased with it. 16 JUDGE FREY: Well, obviously. 17 MR. HIRSCH: We will, of course, obey it. II JUDGE FREY: But you have no other specific objec-I9 tions to it? The clarification that -- 20 MR. HIRSCH: I would like to verify exactly what 21 you mean by in the preparation of evidence for the hearing or 22 the preparation of any motions or pleadings incident thereto 13 -- exactly what is possible -- what that threshold is at O V 24 which it is incident to the case and when it is not. 25 That is probably not possible, and I guess the O

i~ 575 I real reasons of what all we are going to be able to do with 2 -- 3 JUDGE FRYE: Where is that specifically? 4 tiR. HIRSCH: Page two, item two. 5 (Judge reviews document.) 6 JUDGE FRYE: I frankly do not see how we can get 7 into any, you know, specific detail that you can show it to 8 A but you cannot show it to B. I think you have got to use 9 your good judgment with regard -- 10 MR. HIRSCH: Two other items of clarification, II then: On Item 3,we are to return to the University each and 12 every photograph including negatives and so forth within 14 13 days of the final action of the NRC, does that include nega-0 14 tives/ prints that the University had no objection to that 15' were placed into evidence? 16 JUDGE FRYE: No, I should think not. 17 MR. HIRSCH: Okay. II JUDGE FRYE: That would be in the public domain. I9 MR. HIRSCH: Okay, and once again, if the Univer-20 sity has no objection to something being placed in the public 21 domain, if no objection is raised when we submit a pleading 22 with the numbers or pre-filed testimony, is that material, 23 then, free of the requirement for this protective order or O 24 not? In other words, if no objections are raised at that 25 point, is it then in the public domain? Once it gets into O

ty _ 57S 1 O I the tPDR, do the eeme reeerictions~on our use continee2 l 2 JUDGE F'EY: R Mr. Cormier? ' 3 MR. CORMIER: Except for the one problem we have. 4 Again, our concern is numbers of photographs that get out, 5 and we will not know that unless by chance all pleadings 6 were submitted at the same time. We would have no objection 7 once the photograph has found its way into the public domain. 8 JUDGE FRYE: Once it is in the Public Document 9 Room, it seems to me you have got no control over it. l 10 MR. CORMIER: That is right. l l II MR..HIRSCH: So the restrictions on us -- the fact  ; 12 that someone could walk one block from our office and view 13 all the photographe means that they can also -- we can show ! 14 someone a photograph? 15 JUDGE FRYE: If it is in the Public Document Room, 16 it is in the public domain. 17 MR. HIRSCH: Fine. 1 18 I appreciate the clarification. II JUDGE FREY: All right. 20 Ms. Woodhead, I taka it this 'si not something that 21 directly concerns the Staff. Do you have any comments you 22 want to offer on this or not? 23 MS. WOODHEAD: None whatsoever. l O 24 MS. SHIRsEY: 2he city hes no comment, Your Honor. 25 MR. CORMIER: Judge Frye? . O l

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(VI 577 () ] JUDGE FRYE: Yes? , 2 MR. CORMIER: I just want a clarification. 3 I thought I heard Mr. Hirsch say that this only 4 applies to the 20 photographs we are disputing. 5 MR. HIRSCH: Oh, I am sorry. 6 JUDGE FRYE: We have been talking about all of them , 7 MR. CORMIER: Yes. 3 JUDGE FRYE: Now, have you all had an opportunity 9 to compare? 10 MR. HIRSCH: We have not seen them. 31 MR. CORMIER: We have not. 12 We would propose -- and it may be this will be l 13 unworkable. We would propose to have the Board examine and 14 compare as to those 20 photographs what we are calling the i 15 retakes to determine whether there is any question about 16 whether they reproduce what was covered in the original. l 17 In these cases, we can point out simply what it 18 was. Otherwise, we are in the perhaps quandry about pointing 19 out, the Intervenor, in advance of resolving this protec-20 tive order matter, possibly safeguards informations. And 21 we ask -- 22 JUDGE FRYE: Well, I think we have got the protec-23 tive order resolved at this point, do we not? () 24 MR. COMIER: As to the photographs, yes. 25 JUDGE FRYE: As to the photographs. O

  ) ;~~         ,

578 1 MR. CORMIER: The photographs contain information 2 under, I think, a proper interpretation of the safeguard {) 3 procedures. There may be safeguards information-in some of 4 those photographs. Indeed, that would be the reason why we 5 would want to take the precaution we have been. 6 JUDGE FRYE: Well, my understanding from your 7 filing was that you had no objection to CBG comparing the 8 two sets of photographs. I mean, after all, they took the 9 pictures. They were right there and saw whatever it was that 10 they took the picture of. 11 It would seem to me that under those circumstances, 12 it is a little difficult to object to showing them the two 13 sets and letting them state whatever objection they may have. O 14 MR. CORMIER: In our pleading, Judge Frye, we had 15 proposed that we would present the photographs for your com-16 parison, and then if you had any questions at all about 17 whether this photograph really reproduces what was in the 18 original, then we would agree to the only way out of it, a 19 discussion with Mr. Hirsch. 20 JUDGE FRYE: No, no. 21 MR. CORMIER: If you are now -- we have got to do 22 that as to all of those -- 23 JUDGE FRYE: The Board is not going to prejudge it. () 24 You know, we are going to rule on specific objections, but 25 we are not going to look at them and prejudge it without

 / }.

579 () I having heard objections. 2 MR. CORMIER: Then we will certainly present them ,) 3 to Mr. Hirsch and let us examine them. Or we can do that 4 now, if you would like. If you think it -- 5 JUDGE FRYE: Okay. 6 MR. HIRSCH: If I might say, the person who took 7 the photographs who was present with me is also in the room, 3 Dr. Plotkin. We have his notes. The question is what was 9 intended to be captured in the photograph. It seems I would 10 not be alone able to make sure whether that is what 11 Dr. Plotkin who was taking the photographs intended. 12 MR. CORMIER: Should we go off the record, theng 13 and -- 0 14 JUDGE FRYE: Well, I was going to say, we will 15 break for lunch. We will take enough time to give you a 16 chance to get lunch and make the comparison, and then we 17 will come back after lunch and see where we stand. 18 MR. HIRSCH: Okay. 19 . JUDGE FRYE: If that is agreeable with everyone. 20 MR. HIRSCH: So Dr. Plotkin, myself and 21 Mr. Cormier -- 22 JUDGE FRYE: Do you have any objections? 23 MR. COMIER: No objection to Dr. Plotkin, no. ( 24 MR. HIRSCH: May I ask one thing? We did not deal 25 with that issue of the document that I wished to simply show O

7 580 g you as to what kinds of discovery you think are necessary. [} 2 I did as you suggested, show it to Staff and to Applicant. 3 I would appreciate it if I could receive it back if we are O 4 going to discuss it further. 5 JUDGE FRYE: This was discovered with regard co 6 security? 7 MR. HIRSCH: Security, right. You suggested that g before I show it to you, I -- 9 JUDGE FRYE: Yes. Okay, fine. to Well, how long do we need for the photographic l gg comparison, do you think? Half an hour, 45 minutes? 12 MR. CORMIER: I think we could get through that 33 in 20 minutes. Half an hour certainly would be sufficient. l () 34 JUDGE FRYE: Okay. 15 MR. HIRSCH: Half an hour would be sufficient. 16 MR. CORMIER: If we have a dispute, we are going 17 to have to come to the Board with those anyway. 13 JUDGE FRYE: Right. So, then, I do not know how 19 much time would normally be appropriate for lunch here. What 20 would you say? An hour and 15 minutes? 21 Why do we not just make it two hours? That will 22 give us plenty of time. 23 It is 12:00 o' clock. We will be back at 2:00. () 24 (Whereupon, the hearing recessed for lunch at 12:00 25 o' clock noon,to reconvene at 2:00 p.m, the same day.)- C) .

pr Ib 581 1 g F_ 1 g g g g Q g g g g g I_ Q g 2 (2 : 07 p.m.) 3 JUDGE FRYE: Could we go back on the record, please , 4 Could you advise us as to where we stand with the 5 photographs at this point? l 6 MR. COlU1IER: Your Honor, we have, I think, agreed I l 7 that we are going to meet tomorrow morning at 7:30, and by 8 that time we will be able to reconcile CBG's list of photo-9 graphs against our list of photographs', and then we can pro-10 ceed to dispose of the retakes. I can see the retakes. II JUDGE FRYE: I see. So you want to defer that 12 to tomorrow morning?

 ~

13 MR. CORMIER: We would like to defer that to to-O T4 morrow morning. l e 15 JUDGE FRYE: .All right. Fine. Let us do that. l 1 16 In the interim, if everyone is now satisfied with 17 the protective order, I would suggest that it be executed 38 over the evening, and the Board will sign it in the morning. 19 MR. HIRSCH: If I may inquire, the clarifications 20 that the Board gave us as to the protective order -- 21 JUDGE FRYE: Do you want any changes in wording, or 22 do you think those clarifications -- 23 MR. HIRSCH: If I could simply put a note saying O 24 with the c1eriticetions ehee ere found in the erenscrige, 25 would that be acceptable? Or do you want me to try to write O

I

 /3 5.82 O     i down whet I thonehe those c1erificeeione were2 2            JUDGE FRYE: I would prefer not to have a reference 3  to the transcript, frankly.         I think that can create ad-4  ministrative problems, if nothing else, later on.          Someone 5  has to find the transcript and then go about comparing and 6  what-not.

7 If you think that there should be some wording 8 changes, why do you not let me know in.the morning? 9 MR. HIRSCH: Okay. 10 Thank you. II JUDGE FRYE: Now, that brings us to the next item 12 that I had on my list which was CBG's motion to compel with 13 regard to the inspection of the facility which took place, l O 14 I believe, last November. CBG was going to specify speci-15 fically what it was that they had not seen that they felt 16 that they should have seen. 17 (Pause.) 18 U.C.L.A. -- had they -- you received this yester-19 day morning? 20 MR. CORMIER: I received it yesterday morning at 21 11:00 o' clock as we agreed in our subsequent phone conver-22 sation. 23 JUDGE FRYE: So are you in a position to respond 24 to it at this point? 25 MR. CORMIER: Yes, in general. Firsi. of all, I i O l l

    > :]

583 I would ask for a clarification of the clarification motion. 2 The motion to compel date is listed as April 18. By asking 3 Dan, I assume that that is April 8. At least that is the 4 only one I have. 5 MR. HIRSCH: Yes, as I am sure the Board has noted, 6 I have had.some difficulty with dates. I need to check it. 7 Rather short time for us to prepare it. 8 (Counsel refers to document. )

              '            JUDGE FRYE:   The copy we have here says April 8.

10 JUDGE PARIS: Intervenors' Response to Applicant's II Motion for Protective Order; and Intervenors' Motion to 12 Compel? II MR. HIRSCH: Mmm-hmm. (Affirmative response.) O I4 JUDGE PARIS: April 8. 15 MR. 'HIRSCH: Thank you. Yes, the clarification 16 is April 8. l 17 JUDGE FRYE: Do you want to proceed? l 18 MR. CORMIER: Yes, Judge Frye. II If I understand the motion, I will ask for clari-20 fication of CGB at certain points. Their complaint about 21 the November 17, 1981 inspection in part as to certain equip-22 ment is that they expected to be able to inspect the equip-23 ment,and instead, the University pointed out the equipment, 24 and in.the allegation of CBG, did not permit inspection of 25 I am not sure that I understand the that equipment. O

a / 584 I distinction CBG is making. During the inspection, the 2 control console equipment was pointed out in some detail by Q 3 Staff of the facility. In addition, at request of CBG, one ! 4 of the cam lock panels in the back of the console was opened 5 -- there are four or five such panels -- to permit CBG to look 6 inside and, I guess, inspect what they found in there. l 7 If I understand,the deficiency alleged by CBG is 8 that we did not allow them to -- we did not open up the re-9 maining cab.inets and allow them to inspect inside into the 10 back of the control console. And I guess I need some clari-11 fication.from CBG if that is the gravamen of their first 12 part of their complaint. II MR. HIRSCH: Yes, Mr. Cormier understands it cor-  ; O 14 rectly. 1 l 15 I am sure all of you have visited control rooms 16 of a nuclear power plant. This is much smaller. It essen-J 17 tially looks like ham radio equipme'nt. But like a control l I8 l panel for a power plant, a panel is a panel with indicator ) I' lights, buttons and gauges with the equipment contained be-20 hind the panel. The place where the equipment ends in 21 the panel in an indicator light, a dial, or a key or button 22 was pointed out to us, but in all but one or two cases, we 23 were not permitted to see the equipment itself: the machi-24 nery, the tubes, the circuitry. The purpose of the inspec-25 tion was to ascertain the adequacy of that equipment, the

2 >_ 585 O i deeree to which te is meine ined, the ese, whether it seems 2 to be state-of-the-art equipment, are they using tubes or 3 transistors, and does the system seem to be kept up to a 4 standard where failures would seem to be minimized. And that 5 simply was not possible because although there were points 6 that said, "This is such-and-such a device," what we saw 7 was the dial where the device ended, but. not the device it-8 self that caused the dial to move. 9 MR. CORMIER: Judge Frye, if I can clarify further, 10 so that you understand precisely what we are discussing 11 here, the control console is like your stereo console rack. 12 You have your amplifier, your receiver and your tape deck 13 mounted in the front, and your leacis are generally in the back O 14 The device is mounted, and you are looking right at a dual 15 linear amplifier from the front. That's the front face of 16 the device. . 17 To get to the leads, for instance, in the back, in 18 some cases to see certain parts of the internal mechanism, 19 but in most cases, they are contained black boxes except to. 20 the leads, you would go around the back and open out this 21 cam lock cabinet. 22 CBG was certainly pointed out the device. In 23 some cases the device was explained. They are correct in as-O 24 setting that we did noe ogem ug ehe other ehtee or four 25 cabinets. At the time that was a decision I made simply to O

5 8 ti I expedite the inspection which started off with the control 2 room which lasted five hours which we tried to give as a 3 Q very thorough inspection given the allotment of time we felt 4 was reasonable and justified under the circumstances. We 5 did move the parties on through the inspection to ensure that 6 we got done by 12:00 o' clock because we had a scheduling con-7 flict and we scheduled it from 7:00 in the morning to 12:00 8 noon. 9 If this is any help, in our inspection or tour 10 of the facility tomorrow, we have already instructed the II Reactor Staff to have those cabinets opened up. By innuendo, 12 CBG seems to suggest that we have something to hide back I3 there. Really not. Our argument is a twofold one. First O 14 of all, we question the relevancy of the examination given 15 the inspection we think we understand CGB wanted to perform, 16 which was merely to look at, to examine, not to manipulate, l 17 certainly not to take apart or to test, the equipment, which 38 we would certainly object to -- simply to look at that 19 equipment. We question what reasonably relevant information 20 could be obtained by any further examination than we have 21 given already. I do not know how CBG proposes to test to 22 conductivity or the recessitivity or the capacitance of wires 23 or tubes or any of that stuff by the type of inspection they 24 are proposing. To do that and to do that in a way that would 25 provide reasonable, relevant information for the Board, and O

l 587 () 1 I am going to suggest later on that none of this is relevant, 2 but to do that, you have to take a piece of equipment out, r) 3 4 put it on a bench for a month, and have a lot of technicians go at it. Short of that, there is nothing you are going to 5 gain, we submit, by any further inspection of that equipment 6 that you cannot gain from the manuals, which we provided for 7 inspection of CBG, the tech manuals during the discovery 8 document phase of this, or the reports and how they operate, 9 or the logs that record the forms of the equipment over the 10 course of years, which they have all had access to. 11 JUDGE PARIS: Mr. Hirsch, do I understand from what i 12 you said that you want to look and see whether there are 13 tubes or transistors, look for deteriorating insulation, O 14 dust, dirt, mouse nest, that kind of thing? Is that the 15 idea? 16 MR. HIRSCH: Poor solder ends, exactly. We do 17 not want to put it on a bench for a month and check every 18 circuit. But we would like our engineers to be able to see 19 what kind of condition the device is in. l 20 Our engineers spent a good deal of time looking at 21 the drawings 20 years ago for the tech manual. We would like i 22 to see the condition of the device today. 23 JUDGE FRYE: How long will that take? A (_/ 24 MR. HIRSCH: I would think less than an hour. If 25 I might make one comment, we have made three requests for O

$~

I 588

                                                   ~

O i ta vectio=, enree severete oaes 8eceuse enere were enree 2 basic kinds of inspections we wanted to conduct. The Appli-3 cant only permitted five hours. 4 Staff has just send out to us -- you got in your 5 cover letter but you have not gotten the inspection report 6 that went with it -- the most recent I&E inspection for the 7 facility, which took 74 hours, and those happen several times 8 a year. 9 It seems not unreasonable in a case where there are 10 significant allegations about improper maintenance, age of 11 equipment, lack of the state of the art and so forth, for us 12 to have more than a half hour to look at the control console, 13 which is about the time that we were permitted. O 14 JUDGE FRYE: Well, now these cabinets, as I uncker-15 stand it, are going to be opened tomorrow. Will that satis-16 fy your needs? Can you conduct what you need to -- 17 MR. HIRSCH: If we could have half an hour to an 18 hour to look at them while they are open, that would satisfy 19 me, yes. 20 MR. CORMIER: We are willing to provide that, . 21 certainly. . 22 MR. HIRSCH: Great. 23 MR. CORMIER: The understanding we have had, and 24 we assume that it is still current, is that CBG does not in-

• 25 tend to disconnect or test or measure or disassemble, or

26 , 599 () I fool with the equipment in any way.

     ~

2 JUDGE FRYE: Well, as I read their paper, it says 3 "they" -- I assume the people doing the inspection had no 4 intention of disassembling the devices or wiring. 5 MR. HIRSCH: No, Your Honor. The device, as you 6 said in your pleading, sometimes slides out or something so 7 we can get a view of it, but we do not want to take apart 8 each transistor or take out the tubes. We would like to look 9 at,however, the equipment. If it is a little difficult to 10 see and if it slides, we would like to have it slid, so we 11 can look at it. 12 JUDGE PARIS: Please do not dismantle anything 13 while the Board is there. O 14 (Laughter.) 15 MR. HIRSCH: Nothing can happen. 16 MR. CORMIER: That gets to my second point, and it 17 is probably moot at this point, but I think it is important 18 for the Board to understand. There is a basic question 19 about the relevancy of this inquiry. The fact is, and this 20 gets into a* substantive matter, anything can go wrong with 21 that equipment, and there is no radiological consequence for 22 the facility. 23 It shuts down. It scrams. It shows that the () 24 system works, not that there are any flaws. Of course, that 25 is pushing towards a substantive question that will be no O

27 530 O i douhe -- 2 JUDGE FRYE: Yes, I think it really is. That 3 clearly does get into the -- 4 JUDGE LUEBKE: Meaning it has more to do with its 5 utility than its safety, is what you just said? 6 MR. CORMIER: Yes. I mean, we may be inconvenienced 7 if we have to replace a tube and we do not have an IC circuit 8 in there that some other comparable component may have, but 9 other than that, no consequence. 10 JUDGE FRYE: Fine. Now, we have gotten that part II of the inspection taken care of. 12 What is the -- ( 1 l 33 MR. CORMIER: Excuse me, Judge Frye. O 34 JUDGE FRYE: Yes? l 15 MR. CORMIER: There is one other point I want to 16 clarify. 17 We did not offer, and I guess we ought to consider, 18 whether we can actually pull out pieces of equipment from the 19 bench. The purpose of the cabinet in' the back is to open 20 up so that you can see and you get a very good picture or 21 the equivalent. We do not want to have to unbo'.t amplifiers 22 and disconnect them, slide out, and perhaps we can consider 25 that tomorrow during the inspection. But our position is we 24 do not want to have to do that. l 25 JUDGE FRYE: Yes, well, as I read what they are O V

   ?E 591 O       i  serine - ther ere serine - ther ere not eeking for disassems17, 2  just a view of these devices.      So if it is a problem, we 3  will take it up tomorrow.      Let us do it that way.

4 MR. CORMIER: I think that would be helpful. 5 JUDGE FRYE: Yes. 6 So, now, having just seen this, I am not sure what 7 the next point is. 8 MR. CORMIER: Again, I was not able to devote much 9 of the working day yesterday to this matter, though I gave it to a cursory reading. I do not want to slip over a point. 11 I think the next point -- certainly, the original 12 motion to compel was concerned with the TLD, the thermo-13 luminescent dosimeters that are located on the roof of the O 14 reactor building. 15 We did not extend the tour of the facility in 16 November to an examination of those TLD's. There are two 17 points, I think,CBG raised as to the TLD's: the location of 18 past TLD's and the location of present TLD's. Perhaps if I 19 can get you into the issue slightly just so you can under-20 stand the inquiry that is being proposed, the TLD's are used 21 to measure the effluents from the reactor staff on the eighth 22 floor at Boelter Hall. We will take you there tomorrow so 23 you can see. O 2. In the gase, the TLD.s were mounted on concrete 25 around the facility. During a two-year study that began O

     /

592 O v 1 sometime in 1978, I believe, it was determined after the 2 first study, which was a two-year study by the Reactor l Q 3 Staff and is contested perhaps by CGB, that the dosimeters 4 were picking up background radiation from the concrete. The 5 measurements are very low, and they seem to be picking up 6 spurious concrete radiation readings. 7 To cover that, the study was redone in the current 8 period, and for the last couple of years we seem to have con-9 siderable data supporting that, that in fact, we were picking

• 10 up concrete, because in the current study we have mounted the 11 TLD's on lead bricks to isolate them from the concrete to 12 confirm the fact. CBG had been given copies of the data l

13 sheets which' showed the location of the TLD's by azamuth and O 14 distance from the reactor staff, albeit not a definitive 15 description of the precise locations. But the University 16 submits we were unable to make at this date, after removing 17 those TLD's and nothing marking the spot, a more definitive 18 description of where those TLD's were. 19 We know they are on the concrete around these 20 portions, and to the extent that the staff can recall them, 21 we will certainly point out their prior locations in our l 22 inspection tomorrow. In addition to the TLD's that were 23 located immediately around the reactor stack within maybe v 24 20 meters and some within maybe 30 or 40 meters that you 25 can see off in the distance on points to the related l

I 593 () I building, some were located in very remote locations. One 2 in fact, was located on the top of Pauley Pavilion, which for - 3 you basketball fans, you may recognize as U.C.L.A.'s Gym-

   )

l 4 nasium, which is approximately, I would say, 215 meters to r 5 the west of the Reactor Building. 6 For convenience sake and because we did not see the 7 relevance of examining the location once told, we did not 8 agree to take CBG on a tour of the rooftop of Pauley Pavilion. , l l 9 Indeed, it creates some liability problems for us. Most of I l 10 these TLD's are mounted by using scaffolding or ladders or 11 more or less, perilous placement of the TLD's just so they 12 are kept out of the reach of people who may want the lead, 13 which I understand is a valuable commodity nowadays, or O 14 something else -- so that they are not sabotaged because once 15 we lose a TLD -- there are about 16 or 18 of them -- but it 16 weakens the data. You want to have a complete data base, 17 and you do not want to lose a reading because somebody won-13 dered what this thing was taped to the side of the building. 19 So these are in most cases in the past and present 20 put out of the reach of people. So we would have liability 21 concerns about taking people up on top of ladders reaching 12 to parapets of buildings, some quite a distance from the l l 23 reactor building, so there is the further inconvenience of i () 24 going to those. I 25 Tomorrow, we will take you to the roof of the l

7l i , l 59:e I reactor building, and the other parties, and show the place-2 ment of the current TLD's. From one spot, we can point out O J I either within viewing'hbout, I think, 15 of the 18. We have 4 two or three TLD's, I understand, or we did in the past, 5 mounted on parking structures nowhere near the Reactor Build-6 ing just to confirm the fact'that ther wer'.3 reading concrete. 7 And curiously enough, car parking structures emit 8 more radiation than our r'eactor staff does because of the 9 spurious c6ncrete readiiig.- 1! 10 And we would propose,that if_we just described II those locations to the Ir.tervenor and be done with it that ! 12 way, rcther than to take the tour to a place where ou'r staff . II cannot remember precisely 0here our past location was or a O 14 tour to a current location that is in one case, I think, on

                                                                    ~

! 15 top of a water tower, a building centrally located on campus-l 16 which we would not send our,own staff up without some careful

                                           /J 17 provisions to ensure there,was not an accident
                                             ~

18 We certainly do not object to tha'., but we regard' I'

that part of the inspection, given the fact that the data on 20 azamuth and location was already on record, given the fact' >

21 that the readingc,are on record, was a burdensome expense 22 and not reasonab'ly calculated to lead to admissible evidence. 23 , _ JUDGE FRYE: Mr. Hirsch? . O 26 MR. HIRSCH: To explain a little bit why the issue 25 is significant torus, if you remember from two years ago Q - a

                                                                      ,, '/
                                                                                               ,f', J,

                                           -              I
                  $ p.

595 i l O [~i when we were 1ase eoseeher essentia11 7, ehe firse issue thae 2 raised our concern about the facility were the high Argon-41 3 concentrations at the stack: a concentration that was in , 4 our view several hundred times the maximum permitted concen-5 tration at the point of emission. In order to demonstrate 6 that doses to the public would not exceed the regulatory l

7 limit, the NRC required the University to put out the thermo-l 8 luminescent, dosimeters at, I believe, initially, 22 loca-i .

9 tions. 10 They lost a few to birds and curious individuals 11 but kept their quarterly changed for two years. 12 The problem was that those dosimeters consistently ! 15 quarter after quarter gave high readings, readings which O- 14 would indicate,if correct, significant doses to the public 15 of the stack. 16 The University has asserted that those readings i 17 are spurious, that the dosimeter is getting radiation, but i l 18 they are asserting it is not getting it from the stack but

                                           '19           from the concrete.                We find the argument unpersuasive.                        But i

i 20 in order to be able to scientifically address that question, 21 the configuration of the placement of those TLD'ri We 22 geometry of the location, the kind of shielding, tig xind i i 23 of material that is placed next to it, and particularly the O 2. configuraeion in re1ation to ehe stacx, is very 1mgereane in 25 terms of whether or not there is a pattern to these 22 pairs

    ~? 2 is 596 I  of dosimeters. Several years ago they were changed quarterly 2   for two years. And the new dosimeter experiment they have O             '   d ne with the lead bricks.

4 In addition, there is a considerable question about 5 the controls that we used for that -- the present and the 6 past TLD experiment. And for the experiment to be controlled 7 there has to be a very careful placement of the controlled 8 TLD's. 9 I would like to add that in addition to the TLD's, 10 we are interested in the placement of some of the film badges 33 that are also placed outside and are asserted by the Univer-l 12 'sity to demonstrate the safety of the facility, and in par-

                                                                                ~

13 ticular, the control locations of those film badges. O 14 Essentially, in order for this Board to determine whether'those dosimeter readings should be trusted as - .yes, l 15 16 we are getting several hundred milligrams per year from the 17 stack or the calculations that have been done by Staff say-38 ing that the actual dose is one-hundredth of what those II TLD's have been suggesting the reading would be, we really 20 need to know a lot more about the nature of that experiment. 21 And the map as in azimuth is not enough for us to know what 22 kind of shielding -- what the turret was placed on. 23 Obviously, if the University cannot remember O 24 exactly where it was placed, it cannot provide that infor-25 mation. But what we are asking for is what they do remember. O

3V 597 O i And of course, if they cennot rememeer, they heve ehee surden 2 in terms of demonstrating their interpretation of the data Q 3 as well. 4 In terms as to liability, we are reasonable. We 5 do not want to fall off a water tower. We would like to get 6 as close as we can without creating a liability and be able 7 to see the locations as close as we can, and maybe through a 8 couple quick questions, I could find out whether Pauley 9 Pavilion is indeed one of the areas they think we have to 10 climb a water tower to gather, whether it is more accessible. 11 Because Pauley is very important, it seems, to that control 12' for the TLD experiment. 13 Essentially, we have got data that is crucial to the bs 14 case. The hard data as the Argon readings and to really put 15 some understanding as to why we got that data as that appear,

                                                                        ~

16 we need to know where the devices were placed. 17 WDGE FRYE: You have to go up and actually look 18 at them? Is what I was really trying to get -- in other 19 words, you need to look to see if this one is right here on 20 top of a -- II MR. HIRSCH: Yes, when we talk about a stack -- l 22 this will not go easily into transcript, but if you have a l 23 s tack here, there is a concrete parapet. Exactly where you 24 place the TLD on that parapet -- if it is on the other side 25 of the parapet, it is going to shield from the Argon sum.

O l

9 E'~ 598 I JUDGE FRYE: Mmm-hmm. (Affirmative response.) 2 MR. HIRSCH: If it is on top, you may have a large O ' view- re it i= o= co= crete vbe it t 91cxiae =v aattioa-4 al radiation from high concrete, but if it is a little bit 5 higher than the concrete, then you have to figure in the reduc--

6 tion in dose in the distance.

7 It is very hard to put an understanding of these 8 22 data points per quarter without really knowing what it was 9 placed on to see if the University's interpretation makes 10 sense and now much shielding it got. II JUDGE FRYE: Let me turn back to you for a moment, 12 Mr. Cormier. How many of these -- is it 227 33 MR. CORMIER: Not now. I believe it is 18. O 14 JUDGE FRYE: Eighteen? 15 MR. CORMIER: Sixteen. 16 JUDGE FRYE: Sixteen. Formerly 22. 17 MR. CORMIER: Formerly in the old test, there were I8 22, I guess, and there were some changes. Halfway through, I' I think, we moved one of them. We realized it was an in-l 20 appropriate location. 1 21 JUDGE FRYE: What I am really leading up to is how 22 many of these sites can we see from the rooftop? 23 MR. CORMIER: You can see -- we marked them our-j O 24 selves, or I did myself, with Staff, and I believe we found l 25 out -- no, I think that 14 out of 16, or 13 out of 16 you can lO

 'yp 539 You can see if there are any compli-(])     ; see from one location.

2 cations with the geometry. They would be readily apparent 3 because you are staring right at them. 4 JUDGE FRYE: Do you need binoculars in order to -- 5 MR. CORMIER: No, you do not. 6 You will not need binoculars. Well -- 7 JUOGE FRYE: I do not know how far away Pauley 3 Pavilion is. 9 MR. CORMIER: -- depending on where your position 10 is, eyesight-wise, you will not binoculars. 33 MS. HELWICK: You will need to move a little bit. 12 MR. CORMIER: You may need to move a little bit, 13 and that is about it. O 14 JUDGE FRYE: How far is the the most distant one

     '15 that you can see, how far away?

16 MR. CORMIER: You can see the water tower on which 17 one is placed, clear line of s'ight, and that is about, I 13 would say, 250-300 meters in one direction. That -- the most 19 remote one -- you would not be able to see the TLD, obviously 20 at that range. 21 JUDGE FRYE: Mmm-hmm. (Affirmative response.) 22 MR. CORMIER: But you can see the ball for the 23 water tower, and our Staff is prepared to tell you it is () 24 mounted on the west side facing the reacter, in a direct 25 avenue. You can see it is a clear line of sight in that O

37 . 600 () 1 direction. 2 I would think that if somebody really had a rea- {) 3 sonable argument to make about the TLD's, they have to rebut 4 a lot of evidence, good evidence, good data regarding those 5 immediately proximate TLD's that are on the parapet sur-6 rounding -- 7 JUDGE FRYE: We are not at an evidentia:qr stage yet. 3 I would think that the best way is to wait until 9 tomorrow when we are on our tour and then see if you are to satisfied with the information then. 11 Do you agree? 12 MR. HIRSCH: I can just point out that there will 13 probably be two or three locations that we will probably O 14 be unlikely to get. But I think -- 15 JUDGE FRYE: I gather that. 16 MR. HIRSCH: -- at that point, which I think are 17 important, and I wanted the control location as to the fil'm , 18 badges, which I understand is in the Center for Health ( 19 Sciences. And the second is the badge on Pauley. We would 20 like to -- perhaps we can see from the roof, but if not, i 21 that is an important one. And the third is we would like to 22 see exactly the configuration placed in the garages. Check i 23 that geometry which I think is quite important to the () 24 Applicant's argument. 25 It seems to me that there is no objection to us O

3/ 601 O i doing ehee. Anywer, ehee doee noe have to he done -- 2 JUDGE FRYE: Are the garages relevant to this? 3 MR. HIRSCH: The Applicant argues it is. That is 4 why they placed the TLD's there, in order to get a high 5 reading facing against three walls of concrete. Concrete is 6 a natural source of radioactivity. 7 JUDGE FRYE: Sure. 8 MR. HIRSCH: 'So if you get against three walls, 9 you can get the dose to go up. Put lead underneath, you can 10 g et the dose to go down. So to know what the configuration 11 is is very important to knowing whether those readings mean 12 anything. 13 JUDGE FRYE: Well, I do not think the garages were O 14 on our tour tomorrow. 15 MR. CORMIER: No, they are not. 16 (Laughter.) 17 JUDGE FRYE: How many TLD's have we got in garages? 18 MR. CORMIER: Two. 19 JUDGE FRYE: Can you just tell him where it is. He 20 could drive into the garage, I would think, and look at it. 21 MR. CDBMIER: Sure. I mean, one side of a concrete 22 structure is as good as another side of a concrete structure. 23 I would think that the point is amply demonstrated regarding O 24 the reedings from concrete, end the data is there. 25 JUDGE PARIS: Well, I think he implied that you O

ll - 602 () I probably put it in a crack in the concrete in the garage to 2 get real high readings or something, so that is why he wanted Q 3 to see it. 4 (Laughter.) 5 MR. CORMIER: Yes, I do not know what real relevance 6 it does. I

7 JUDGE FRYE

Well, we will argue about that when we 3 get to the evidentiary hearing, but --

9 MR. CORMIER: Yes.

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10 JUDGE FRYE: But for now, if you could direct CBG 11 toward the two in the garage, I am.sure that is not going 12 to -- 13 MR. CORMIER: He mentioned the control location, O 14 and I do not think the Board was permitted an opportunity to 15 sufficiently focus on that. 16 JUDGE FRYE: Mmm-hmm. (Affirmative response. ) 17 MR. CORMIER: As I understand it, the control loca-18 tion he is talking about is in our Hospital, the Center of 19 Health Sciences on the campus. l* 20 JUDGE FRYE: Mmm-hmm. (Affirmative response.) 21 MR. CORMIER: The place where we process or we 22 get our TLD's from the protection company that reads them l 23 for us. 24 MR. HIRSCH: No, the film badge controls. 25 MR. CORMIER: The film badges controls, as opposed O

    'C 603 I to the TLD control. The TLD control is done on a contract 2 basis in Sunnyvale, California.

Q 3 JUDGE FRYE: Mmm-hmm. (Affirmative response.) 4 MR. CORMIER: The film badge control, which film 5 badge is what you use all over campus, particularly in the 6 Medical Complex, are done in the Center for Health Sciences. 7 Control, I guess, is some sort of a vault or a cabinet where 8 these things are kept. 9 JUDGE FRYE: I assume they read them there too, 10 probably? II MR. CORMIER: They read them, yes. 12 JUDGE FRYE: Well, what is the next point? l 13 MR. HIRSCH: There'are other areas of the NEL t O 14 facility. You asked us to identify items and areas. 15 JUDGE FRYE: Mmm-hmm. (Affirmative response.) 10 MR. HIRSCH: And there are areas within the Nuclear 17 Energy Lab that we were not permitted to see. The easiest 18 way to understand which areas I am referring to is to look I' at Attachment B of the clarification, which is simply taken 20 again -- excuse me -- Attachment A of the clarification. It 21 was also included in the motion to compel. 22 At the chart of the first floor and the second 23 floor of the Nuclear Energy Lab which was attached by

 . 24  Applicant to the checklist of the areas that we were per-25  mitted to see, the arrow with the letter encircled were l

O l

 /

604 1 written in by the Applicant about the areas that were per-i 2 mitted on this tour. The X's I have written in as the areas w Q 3 were not permitted to see. 4 JUDGE FRYE: Mmm-hmm. (Affirmative response.) 5 What contention are you pursuing with this? 6 MR. HIRSCH: The fact that there was the question 7 of whether the like dosage in case of accidents -- what would 8 be the dispersion to the public -- make that clearer. The 9 reactor being at the center, the Nuclear Energy Lab is the 10 perimeter that you see around, and all else is public area. II In order to -- 12 JUDGE FRYE: Wait a minute. Wait a minute. The 13 Nudlear Energy Lab surrounds the Reactor Room? O I4 MR. HIRSCH: The Reactor Room is within the Nuclear 15 Energy Lab. 16 JUDGE FRYE: Okay. Now, all else is public area. 17 Where does that begin? 18 MR. HIRSCH: For example, look at 1567 in the lower 19 left-hand corner. 20 JUDGE FRYE: That is public? 21 MR. HIRSCH: No, that room is not public. 22 JUDGE FRYE: Oh, okay. 23 MR. HIRSCH: The corridor right below it is public. 24 JUDGE FRYE: The corridor on the left side and 25 below it. O .

yg 605 () 1 MR. HIRSCH: Right. Well, on the bottom is public, 2 on the left side is public. A little bit in where it says 3 "to eighth floor" is public. Basically, most of the outside 4 of what is on this drawing is the unrestricted area. I 5 made a very inelegant metaphor about you are permitted to 6 see the hole of the donut and the outside of the donut but 7 not the donut itself. 8 You can see that we have been permitted to see the 9 Reactor Room, but to understand how effluents would get from 10 the Reactor Room to the public areas, we were not permitted 11 to see fully. 12 It is a central dispute in this case because the 13 kind of the cube -- I mean, several arguments that are being 14 debated here. The one is the source term in case of an 15 accident, what per cent gets out. And two is the degree of 16 dispersion before it gets to public. 17 To know that, we need to see what is the pathway 18 for that effluent. l 19 JUDGE FRYE: What do you gain from an on-site in-20 spection that you do not gain from looking at a drawing like 21 this? 22 MR. HIRSCH: Well, the University claims that the l 23 facility is a confinement structure, not containment, and () 24 therefore that the full amount of radioactivity released 25 inside the Reactor Room;would not get to public areas. It (Z) l l I

.,                                }

// 606 ()  ; would be reduced before it gets to public areas. 2 In order to assess what percentage of what gets 3 out of the cladding would get to the public areas, you have /) 4 to know what the barriers are to it getting out. And that 5 is what the leak rate would be, what percentage of what is 6 in that Reactor Room would be getting out into the public. 7 In power reactor cases, it is plugging in the 8 number for the leak rate for the containment structure. 9 JUDGE FRYE: I know, but that is calculated -- 10 MR. HIRSCH: We have no leak rate, so we have to 33 make that estimate. 12 JUDGE PARIS: Do you think just walking into 33 these rooms will enable you to do that? O 14 MR. HIRSCH: Well, one of our debates about the 15 photographs is that we took photographs of what doors we 16 were permitted to see to get an assessment of the size of 17 space underneath. 13 As you will see tomorrow, the Reactor Room is 19 kept at negative pressure so that air is rushing in under 20 the area. If there were an accident, a sufficient part of 21 it could rush out. The question is to be able to assess 22 what percentage could reach out. 23 And that is very important. Also in case of fire, O 24 for example, to assess which way fire people would come in, (_/ 25 and if any of those doors would remain open in order to keep O

  </j S07

() I the hoses in in terms of an effluent pathway. Otherwise, 2 it is very hard to be able to estimate what percentage would 3 get out without having a feel for how it would get out.

   )

4 What the size of the openings are, what the likely response 5 would be in terms of open doors and so on. 6 JUDGE PARIS: So you are primarily interested in 7 seeing the doors to these rooms? 8 MR. HIRSCH: Doors or other means -- two aspects. 9 One is doors, and the second is -- you may recall that we 10 have a contention that indicates that the ventilation system Il for NEL interact with the ventilation system for the rest of 12 the building. We want to*know how the ventilation system 13 would pull out the fission product. This does not release -- 0 14 it is not an opening -- it is not, you know, like a building 15 p with just em'tiness around. This is a building connected 16 to a building on several sides. And so to assess what the 17 effects would be to the ventilation system, we have to get 18 a sense of what that is. 19 JUDGE PARIS: Is the ducting. system of the ventila-20 tion system variable from in the rooms? Do you know? l 21 MR. HIRSCH: In many of these rooms, we were per-12 mitted to visit the ducting logs. We brought with us a 23 heating / ventilating / air-conditioning specialist who was l () 24 permitted to in those rooms view the ducting system. The 25 problem is we were not permitted to visit the areas I put O

                   -  +            . --    -

Ya SOB 1 the X in. 2 JUDGE FRYE: Mr. Cormier, do you want to respond? 3 MR. CORMIER: I do not know how to respond and keep 4 within the narrow limit of this pre-hearing conference. 5 The University has listened for a long time now 6 to CGB's effluent pathway argument and finds it strained at 7 the very least. We had hoped to satisfy CGB, given what we 8 know to be the obvious physics of the situation. The fact 9 that even'in the case of an accident, effluents are going to 10 be sucked through the ventilation system which is in the Il Reactor Room. and released to the roof of the Boelter Hall 12 Building. It is not a containing structure in the sense 13 that there are sealed doors. We concede, obviously, that O 14 the doors are not sealed. 15 We maintain the negative pressures to exhaust all 16 effluents in the reactor room to the roof. Now, given the 17 level -- the small level -- of discharges, even in the case 18 of the most credible accident, and I understand that that I9 is an issue that is going to be discussed later on, but 20 given any reasonable multiple of those levels, you are still 21 talking about effluent that there is not anything to go 22 anywhere. There is nothing to go beyond the Reactor Room 23 itself. There is not a quantity sufficient to go beyond O 24 even the worse cese accidene. 25 Even if, and that is discounting the fact that O

  ?

S03 I effluents in the reactor room will always be vented to the 2 roof because it is so low they do not violate any operational 3 Q standards for venting such effluents. 4 Now, we hope to satisfy CGB on the tour by taking 5 them to the entire periphery of the Reactor Room, to say,

6 "Okay, we hear your argument. We will let you examine all l

7 these doors leading to the Reactor Room and the Control Room 8 and make your argument there. And if you can make the argu-9 ment and raise a reasonable concern on the part of the Board, 10 then you may have something." II But we think the case is so strong against them, 12 that to extend the tour beyond -- and why just these build-l 13 ings? Why only through the Boelter Hall Engineering Complex? l O I4 Where do you cut off what is the reasonable -- somehow 15 you have to have reference to what the evidence is already 16 in the proceeding in the studies, which Staff has already l 17 done, that the releases are so absolutely small -- l I8 JUDGE FRYE: Well, we are really into a question of 19 evidence here. 20 MR. CORMIER: Yes. 21 JUDGE FRYE: You are talking about taking him to 22 these rooms where the X's -- is that -- 23 MR. CORMIER: No, we took them -- the way to the 24 Tokamak Room -- they were through that room. They were not 25 allowed -- O l

v/ sto () 1 JUDGE FRYE: Well, I see. Then there is 1541 and 2 1561 and 1567 and so on? 3 I knew you were going to take them somewhere. I O 4 was just trying to find out where. 5 MR. CORMIER: No, we have already taken them on 6 our November inspection to what we thought were reasonable 7 areas for them to make their pathway argument. 3 JUDGE FRYE: Mmm-hmm. (Affirmative response.) 9 MR. CORMIER: As unsound as we think it is, and i 10 obviously unsound. gy During the inspection, we had a concern to take 12 the men through the Tokamak Area. Part of our concern we i 13 would prefer not to discuss in open session, and we thought 14 what we gave them was a very reasonable basis for them to 15 make their argument, a'nd if they can overcome the weight of 16 evidence against them in their argument that there is some-17 thing to be concerned about at the door to the Reactor Room 13 -- at any of the doors to the Reactor Room -- or the Control 19 Room, we are willing to stand on that argument. If they 20 can carry the day that there will be effluents to be con-l l 21 cerned about that even just get out of the Reactor Room, 22 much less out of the Reactor Building, we are prepared to 23 stand on that evidence, because we do not think there is a l () 24 symptom of evidence that their pathway argument has support. 25 JUDGE FRYE: Let me try this as a possible solution 1

       'O 611

() I to this particular problem.

                                            ~

What if we simply deferred it 2 until we got to the evidentiary session, and at that time, 3 we could go out and conduct a portion of the evidentiary ses-

     )

4 sion on-site in order to see first-hand what your particular 5 theory is? 6 MR. HIRSCH: I think it would be very useful for 7 part of the evidentiary session to be at the site so one can 8 see the aspects of the facility. Our problem is that part of 9 it is a mathematical computation, and I do not see how we 10 would be able to come in with pre-filed testimony as to what 11 the doses of effluent are to the public if we are only to see

            .12   those pathways after we have had to come in with evidence.

13 JUDGE FRYE: Well -- l

 ~O          14                   JUDGE LUEBKE:   I think the problem is what you see 1

15 visually -- there must be an architectural drawing of this 16 Bolter Hall someplace. 17 MR. HIRSCH: They have lost parts of them. 18 JUDGE LUEBKE: Oh. 19 MR. HIRSCH: We have seen what they can find. Our 20 HVAC Engineer went over the drawings before the tour, and 21 in fact, we were carrying the drawings with us trying to 22 trace the vents against the drawings. But, as I showed you, 23 we were only able to do that in certain areas. () 24 JUDGE LUEBKE: Then you are really talking about 25 more than just the viewing. You might want to take a

     )

1

<j 612 O    i vardseick end meesure e few inches here end there.

2 MR. HIRSCH: Yes. Not to do anything but to 3 measure to check the fan capacity, not by measuring the fan 4 flow, but just to look at the label on'it against what the 5 specifications say. 6 JUDGE LUEBKE: Okay, you are proposing calculations 7 you will need. 8 MR. HIRSCH: Exactly. 9 JUDGE LUEBKC: Not just look. 10 MR. HIRSCH: My point,'though, is that we have done 11 that. We have been diligent in that we have looked at all 12 of the architectural drawings that the University has been 13 able to locate for the heating / ventilating / air-conditioning O 14 system. And we have been attempting to estimate ourselves 15 what the source term wmid be in an accident. And then be 16 able to estimate what fraction of that release would be able 17 to get out into public areas. And to get that data, we have 18 to be able to get to the pathway. 19 JUDGE FRYE: Well, here is what I am really driving 20 at, and perhaps this will not work, but traditionally, the 21 Applicant goes first when we get to the evidentiary hearing. 22 And this case is really no different. We let the Applicant 23 go first, put on his case with regard to this, and then take 24 it from there. Does that -- - 25 MR. HIRSCH: I think Dr. Luebke -- the calculations O

YC . 613 () I require weeks. 2 JUDGE FRYE: Well, we might have to adjourn that 3 portion of the hearing and come back to it later. That is 4 always a possibility. 5 MR. HIRSCH: Let me throw out another possible 6 suggestion. As I understand Mr. Cormier, he is asserting . 7 that it is irrelevant what happens outside the Reactor Room, 3 that the doses in the Reactor Room -- 9 JUDGE FRYE: No, as I heard it, he is saying things to are such that nothing will happen outside the -- 31 MR. HIRSCH: Precisely. You know -- 12 JUDGE FRYE: And that is why I am suggesting that 33 we get that case in and see if in fact, there is a basis. O 14 MR. HIRSCH: I think we might be willing to think 15 about that if the University and the Staff were to then de-16 clare as the public area the area at the wall of the Reactor 17 Room. I note that Staff does that essentially in its SER. Is If these other areas -- if the dose is so low out-19 side the Reactor Room it is irrelevant what fraction gets 20 out into these other rooms, then let us just calculate the 21 dose at the Reactor Room boundary and determine from that 22 whether those doses are excessive. 23 Either the Applicant should be willing to do that, () 24 or we should be permitted to see those areas through which 15 you would have to travel to get to public areas. O

     ~; '

614 () 1 JUDGE LUEBKE: Given your yardstick, how many 2 minutes or hours would you think it would take to measure the 3 doorways or openings or whatever you have in mind?  : [} 4 MR. HIRSCH: Again, we -- we have said in our mo-5 tion to compel and I believe in the clarification as well, we 6 talk about an hour. 7 JUDGE LUEBKE: One hour. 3 So that is the extent of -- 9 JUDGE FRYE: For all these rooms? 10 JUDGE LUEBKE: He just wants to measure a few 11 doors. 12 MR. HIRSCH: And look at the capacity and look at 13 the vents. I think an hour would work for us, yes. I.might O 14 be minimizing it, but -- 15 MR. CORMIER: Judge Frye, we like your suggestion. 16 JUDGE LUEBKE: I have a comment about that sugges-17 tion. l 18 JUDGE FRYE: I have not talked to him about it. 19 JUDGE LUEBKE: If the Board were making an inter-20 mediate decision along the way, which I think is sometimes 21 not -- 12 JUDGE FRYE: Let us think about this one, and we 23 will -- () 24 . JUDGE LUEBKE: It is a lot different kind of hear-l 25 ing, then. l (2) l i 1 I l

w 615 () 1 MR. COR!!IER: On what? 2 JUDGEjFRYE: It would be a what-if situation. I 3 mean, it would be a situation in which we could have to make 4 an intermediate decision after your presentation, and then 5 go from there. And we are only talking about one hour of 6 looking at things, and I take it, your only objection to it 7 is it is burdensome. 8 MR. CORMIER: No, that is not our only objection. 9 JUDGE FRYE: Okay, what? 10 MR. CORMIER: We mentioned all our objections in 11 our pleading, and we do not want to get into a discussion of 12 our other objections. We have security objections. 13 JUDGE FRYE: Related to this particular reactor, O 14 or related to the other facility? 15 MR. HIRSCH: No, related to this particular reac-16 tor. 17 If I might say, you will notice that -- no, I 18 won't say. 19 If you look at the chart carefully, there is no 20 problem. 21 JUDGE PARIS: Really? 22 (Laughter.) 23 fir. CORMIER: Perhaps, if I may suggest, if we are () 24 able to expedite through our matters and get to tour the 25 facility perhaps somewhat earlier than we had thought, O

i .

 ,1 s i

S1S I tomorrow, we either may have an opportunity to discuss this 2 further af ter you have seen what we are talking about, which Q 3 may be helpful to the Board, or at least we would have a i 4 better idea of the inspection we did give them in November. l 5 And whether extending this pathway argument out to the ex-6 tent that CBG is proposing, whether that is a reasonable 1 7 inquiry to continue on this issue, then you would be better 8 able to rule or decide. 9 JUDGE FRYE: Well, let us put this one on the shelf 10 for a moment and go on to the next one. II MR. BAY: May I make one very quick comment 12 before you put it on the shelf? t 13 'It appears clearly what to do here is we have a O 14 discovery standard which is a very loose one as you have said 15 before. We have yet to hear other than just a moment ago 16 any real objection to why we should not see these rooms. 17 If there are security objections, then it may be appropriate 18 to get into those and make some kind of ruling to the dis-19 coverability of taking this in sections. They have not 20 claimed it is burdensome. They have not -- they claimed it 21 is irrelevant, but they are prejudging the case in a way 22 that goes well beyond the relevant standard for discovery. 23 To say that looking in those rooms that our 24 affluent pathway argument is so out of question.it does not, 25 could not possibly lead to the discovery of admissible lO

I 617 (]) 1 evidence, I do not think it is anywhere close to that. And 2 I just want to be clear what -- if the irregular procedures 3 you are talking about are, I think, contrary to the discovery 4 principles that are in place in these proceedings. I wanted 5 to put that on the record. 6 JUDGE FRYE: Okay. Fine. Let us move on to the 7 next point, and then we will come back to that. 8 Or is this the ldst one? , 9 MR. HIRSCH: In the clarification that you request-10 ed, I believe this is all: the items in the control console, 11 the areas in NEL that were not permitted to be inspected, 12 and the TLD and film badge locations that were not permitted 13 to be inspected. () 14 There are other disputes between Applicant and 15 Intervenor, but that is all, as I understand, we were to 16 clarify at this point. 17 JUDGE FRYE: All right. 18 (Pause.) ! 19 Why do we not take this following Mr. Cormier's i 20 suggestion after we see the facility tomorrow, which would, 21 I think, require us to go out tomorrow morning as opposed 22 to tomorrow afternoon and then come back here tomorrow after-23 noon. l () 24 Does that create scheduling problems? 25 MR. HIRSCH: I was speaking of extra (

618 () I transportation -- I was wondering if there might be an 2 acceptable location on campus. It seems crazy to go out (} 3 there and come back and sit around and talk about it, if we 4 can just meet out there someplace. 5 JUDGE FRYE: Well -- 6 fir. HIRSCH: We need to cama back to talk about it? 7 Would that not be enough for you to make your ruling? 8 JUDGE FRYE: Well, perhaps we could make it there. 9 That is & possibility, yes. 10 MR. HIRSCH: One other matter I would like to 11 mentinn touches on this question of facilities on campus. 12 I received a message from a representative of the s'tudent 13 Government at U.C.L.A. requesting a few minutes to simply 73 V 14 extend an invitation regarding our location for these evi-

                                                       ~

15 dentiary hearings, and I promised to pass that on to see 16 whether it would be possible for him to present the Board 17 with a letter from the Student Body President and to answer is I any questions he might have about it, not on the substance 19 of any of these matters, but simply an invitation regarding 20 location of the evidentiary hearing. 21 JUDGE FRYE: Sure. l l 12 MR. HIRSCH:. At the end of this afternoon, we l l 23 can discuss a time when it would be appropriate for him to l () 24 come. 25 JUDGE FRYE: He does not want to just write and O

  ;Q S19 1   put it in the mail?       He wants to present it?

2 MR. HIRSCH: You might have questions as to what 3 the facilities are that they are offering. 4 JUDGE FRYE: Okay. 5 MR. CORMER: Judge Frye, I do not know what 6 Mr. Hirsch has in mind or what the Student Body President of 7 U.C.L.A. has in mind. I would suggest that maybe it is not 8 a very useful gesture at this time. I think the chances of the University in conjunc-10 tion with the President of the University, David Saxon, would 13 probably have an opinion that would prevail over any student 12 group regarding the advisability of having any hearings on 13 the campus or a campus at the University of California. I O 14 think it may be a wasted effort. 15 JUDGE FRYE: We will come to that later. ' 16 I still have a couple of things on the agenda here. 17 That was the outstanding CBG/U.C.L.A. discovery? II Are there outstanding matters other than the ones we have I' talked about so far? 20 MR. CORMIER: Judge Frye, I apologize. I just got 21 I do not think we closed on the a side conversation before. 22 time of the inspection. 23 JUDGE FRYE: No, we did not. I was just sort of 24 letting that hang for a moment to see how far we are going 25 Theoretically, we may finish up this to go this afternoon. O

y/ 620 1 afternoon and not have to come back here at all on the 2 theory that we will see and then make a ruling with regard

   ]         3 4

to the inspection. MR. CORMIER: We will not be able to, as I under-5 stand it, schedule an inspection in the morning. 6 JUDGE FRYE: Okay. 7 MR. CORMIER: Because we have some activities pre-8 viously scheduled. So we reserved the afternoon, and I do 9 not think we can change it. 10 JUDGE FRYE: All right. So we are stuck with that. Il MR. CORMIER: We are stuck. 12 JUDGE FRYE: Okay. l . 13 MR. CORMIER: Twelve-thirty, I guess, or twelve, l O 14 perhaps. Twelve is fine if that does not interrupt the lunch 15 schedule. Not before that. . 16 JUDGE FRYE: That answers that question. I 17 I have got on my list to cover any outstanding dis-C 18 covery items between CBG and U.C.L. A. and between CBG and 19 Staff and to discuss scheduling for the remainder of the 20 proceeding. Are there other matters that we need to take l 21 up in addition to those? 22 MR. HIRSCH: We have a couple of additional items 23 which I have mentioned to you by phone. The implications of 24 the new amendment which we received roughly a day ago, the

        ./ 25   application, and the implications are those amendments add lO 1

1

  .c 621

() I both to discovery and to language on contention. There are 2 certain parts, for example, of our contentions that refer to 3 pages of the Application, which have since been changed. [} l 4 And in the scheduling question that you have 5 raised is the question of whether there needs to be any 6 discovery and over what time period regarding these new 7 items.

3 In addition, I understand the emergency plan is not 9 yet ready, nor is the supplement for the Staff's SER, and we to would like to discuss that as well.

11 JUDGE FRYE: Fine. 12 MR. CORMIER: Perhaps we can give you an update. , 13 JUDGE FRYE: Well, I was about to take a break. O 14 I was just trying to find out how much more we have got to l 15 90. 16 MR. CORMIER: Oh, other issues? - l 17 JUDGE FRYE: Yes. ! 18 MR. CORMIER: We do not. We would have some re-I 19 marks to make about perhaps the appropriateness of a direc-20 tion from the Board on the supplementation of interrogatory ! 21 responses. Other than that, we have nothing to add to the 22 schedule. 23 JUDGE FRYE: Ms. Woodhead? 24 MS. WOODHEAD: We do not have anything to add. 25 JUDGE FRYE: Okay, do we have much by way of

   )

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                                                                                                                      . . u, 1 discovery outstandinej 'betweerk 'CBG and Staf ?'                                                                                ~                                                               -

_/ f>,, > 2 MR. HIRSCH: Yes'. .

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N Q 3 JUDGE FRYE: Do we have a lot?

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                                                                                                   -                                                   ,,./

4 MR. HIRSCH: I do not know if a' lot, but,we wili

                                                                                                                                                   ;g                              -

5 see how fact the ducts work. - J- . ,

                                                                                                                                                                                       ,                               /

6 JUDGE FRYE: Okay, much for .C.L~A.?

                                                                                                                  ,         l
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                                                                                                                                                                                                                    'r     -

7 MR. CORMIER: ,0.C.L.A. -- no discovery of Staff.' , 8 We are reserving the rigist 'to pursue discovery d6pe'nding _on

                                                                                    .                                        . . .           u;>

9 how the security ' contention is resolved as' to yetih Santa ,

                                                                                                            #                                                                                              ~~

10 Monica aild to '-- ' I- J

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                                                                                                                                       ,           ~.                      <,                                         er 11                   ' JUDGE FRYE:                          O n, ,-s e c u r i t y .
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                                                                                                                                                                                                                         .i 12                     MR. CORMIER:                           Un-s,ecurity.
                                                                          ~

7 I3 JUDGE FRYE: Wh 'do we not take about a 10-minute - O 14 break to --

                                                                '~.
                                                                                   /

15 MR. HIRSCH:

._I'have,.one very quick'~questiou v - ,j ,

                                                                   !        s     .                                                n, 16 JUDGE FRYE:                          Sure.                                                                                                                     '
                                                                              ..                                                        . /

17 MR. HIRSCH: p before we finish the ~ question of _ mR 18 Applicant / Bridge the Gap disputes. ,J~ 19 I had sent a letter to Mr. Cormier regarding, copy-20 ing of some logs. I jtist wanted to make sure that 'there",vas ^

                                                                                                                   /                                 ,     .;.                                .
                                                                                                                                                             ~                      

21 no problem with that. - ~ . t /

                                                                                                                                                 /                                         ~

22 JUDGE FRYE: , I will'get into all of.that-when we i . f[, ,

                                                                                                                          ,/ .                                                                       ,

23 come back.

• 0 V 24 MR. HIRSCH: ,Oh, we will continue?

25 JUDGE FRYE: I'am just trying to figu,re.out what ,..

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S23 1 is outstanding, that is all.

          ' k'     ~                    2                 MR. HIRSCH:  Fine.
                       ' '.            -A                 JUDGE FRYE:  Let us take about a 10-minute break.

O , l . 4 , (A 10-minute break.) l

                                             ~///

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62'4 T7,1g 1 JUDGE FRYE: On.the record. () 2 I think we are now on outstanding discovery 3 matters between CBG and UCLA. () 4 MR. HIRSCH: Bill and I just spoke during the 5 break, and as I understand it, there is no problem with the 6 photograpas', I mean with the copying of logs that we l 7 requested a few weeks ago, and the missing documents still 8 are missing, so there is -- if I haven't forgotten something, 9 no other dispute. . 10 JUDGE FRYE: Fine. So that basically from your 11 point of view, everything is settled at this point? 12 MR. HIRSCH: Unless I have forgotten something, () 13 uhich I doubt. 14 JUDGE FRYE: Mr. Cormier?

• 1 15 MR. CORMIER: I am sorry. Something is going 16 right aver my head. Everything is settled?

17 (Laughter.) 18 JUDGE FRYE: Would you like to know what we t l 19 did? 20 MR. CORMIER: I must have missed something. 21 JUDGE FRYE: No, he just was saying that from 22 his point of view, he was not aware of any outstanding

  )

23 discovery disputes that CBG had with UCLA, at this point. 24 ' MR. CORMIER: I assume excepting discovery on 25 the amendments, which we are going to discuss?

I S25 1 JUDGE FRYE: We are going to get into that, I 2 think. 3 MR. HIRSCH: We haven't had it yet, so we 4 naven't been able to dispute it yet. 5 MR. CORMIER: Okay. 6 JUDGE FRYE: Do you have any points? 7 MR. CORMIER: We have no discovery disputes with

      ~

8 CBG right now. , 9 JUDGE FRYE: Okay. Now, how about Staff, CBG l 10 and Staff? 11 MR. HIRSCH: Yes, there are some disputes 12 between us and Staff. O 23 auoos"ravs: Are taose sometains taet vau ett oan 14 work out, or is that something you want to -- 15 MR. HIRSCH: It has been a year of trying. 16 These are the ones you have to do. 17 JUDGE FRYE: All right. Do you wantuto -- 18 MR. HIRSCH: Roughly a year ago, wasn't it a 19 year? Over la year ago, the Staff issued its Safety Evaluation 20 Report Environmental Impact Appraisal, a study by 21 consultants at Battelle Labs, and a study by a consu ltant 22

 ]      at the University of California's Los Alamos Lab.

l 23 The Board opened discovery as to those items, 24 based on language by previous Staf f Counsel in the record of 25 the first pre-hearing conference as to the manner in which

                                                                         }

626 3 1 the Staff wished to have discovery. CBG filed interrogatories O 2 with the st ce. seef f dec11ned to answer enose 3 interrogatories at all. There were unsuccessful phone O 4 ette=9e= to reach e ca otaer av enone to di ou== it- steer 5 argued that CBG had not followed the proper procedure of 6 filing the interrogatories with the presiding officer so the 7 presiding officer could direct the Staff to answer. 3 We filed with the presiding officer requesting 9 that direction. The Board directed us to meet and confer - 10 and deferred its ruling on those disputas. 11 That ruling was roughly a year, a little less 12 than a year ago. Staff and CBG met in San Francisco. 13 There were numerous phone conversations thereafter. 80 14 percent or so of the interrogatories that we had put forth l l 15 we agreed to withdraw, and the Staff agreed to answer the 16 remaining ones. 17 Aside from a few which we hoped we would be 18 able to work out as the process went on. The answers to 19 the Interrogatories took quite a bit of time. We. essentially 20 got the last interrogatory answer a few weeks ago, and at 21 that time, there were additional phone conversations between l 22 staff and CBG. 23 We were able to resolve some disputes. There 24 are a few that remain. I guess I should first_ask to note -- 25 I have sent a letter to Staff Counsel, outlining what I

627 4 1 understood to be our phone agreements, and asking that if (') 2 that did not meet her understanding, for her to indicate 3 otherwise. She did indicate a dispute on two questions () 4 related to the Los Alamos Study, and I would like to 5 inquire whether there were any other disagreements with the 6 substance of my writing down what our agreements have been. 7 You had answered some questions verbally, 3 essentially. I can give you the letter if it would help. 9 MS. WOODHEAD: It wou ld . I don't know which 10 letter. I have several letters here -- 11 MR. HIRSCH: Okay. Il MS. WOODHEAD: -- concerning discovery. I don't () 13 which one you are referring to. 14 MR. HIRSCH: It would have been not the last to 15 that previous -- let us see if I can pull it out for you. 16 This will reduce your load, so -- 17 JUDGE FRYE: So the rest of us know, could you . 13 identify the letter? 19 MR. HIRSCH: It is June 9th -- it is dated -- 20 let me give copies here as well. I wrote two letters on 21 June 9. It says re: answers to certain CBG interrogatories. fs 22 JUDGE FRYE: And you sent us a copy of this? b 13 MR. HIRSCH: Yes. 24 JUDGE FRYE: Okay. 15 MR. HIRSCH: Basically, if there is no

628 5 1 disagreement as to those agreements, those matters are not in () 2 dispute, I just want to know if there is a dispute there, 3 because I did not receive written response to that. () 4 JUDGE FRYE: I am wondering at this point 5 whether this is something that you and Ms. Woodhead should 6 confer about, so you know precisely where you stand, and 7 then perhaps let us know in the morning. 8 MR. HIRSCH: Okay. The others, since we know 9 we are in dispute, maybe at some point we can confer and 10 you can tell me what your response is to that letter. 11 MS. WOODHEAD: Judge Frye, I was really 12 surprised to hear CBG say that there was a dispute between /~N 13 CBG and Staff as to interrogatories. I did not know that V 14 there was any at all, except for a few questions related to 15 the employment of one of the authors of the -- is it the 16 Battelle study? The Battelle study, I think that is -- 17 MR. HIRSCH: The employment of the Battelle 18 study. 19 MS. WOODHEAD: I think that is -- yes. Yes, I 20 think there were five or six questions which Staff did not 21 agree to answer. This was a year ago -- last November in 22 San Francisco, and those were the -- that is the only 23 dispute I know of. 24 MR. HIRSCH: Why don't we just go through them.

    )

25 I have zeroxes for people, and I think that you will recall

629 6 1 once you see them before you that these were the -- () 2 JUDGE FRYE: Well, I was going to suggest, why 3 don't -- we are going to have to come back in the morning, () 4 because of the photographs, in any event. Why don't you 5 confer with Ms. Woodhead so that you both know precisely 6 what it is that is in dispute. We can take up the matter in 7 the morning. 8 MR. HIRSCH: Okay. 9 JUDGE FRYE: It doesn't sound like it is going 10 to be extremely lengthy. 11 MR. HIRSCH: They are few in number, but I think 12 they are of cansiderable significance, so I don't know what ,

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13 the extent of -- (]) 14 JUDGE FRYE: Well, I think in order to give 15 Staf f Counsel an opportunity to focus on this properly -- 16 MR. HIRSCH: Certainly. 17 JUDGE FRYE: -- let us take it up in the 18 morning. 19 MR. HIRSCH: Okay. 20 JUDGE FRYE: That then would bring us to I 21 would think scheduling at this point. Have the parties had 22 an opportunity to talk at all in regard to scheduling? Do (~ V) 23 you have any suggestions in that regard? 24 MS. WOODHEAD: Perhaps I will speak first. I 25 do in great trepidation. The last time I did, various and l

630 7 1 sundry interpretations were put upon my words. I will simply () 2 apprise the Board that the parties had a conference call. We 3 discussed several things which nust be done prior to hearing, l () 4 and suggested a few things. They all seem to be rather 5 contingent, but I think perhaps the first thing to do is to 6 set out the things that need to be completed prior to 7 hearing. And then perhaps we could go f rom there and 8 discuss the time that is appropriate to allow for each one 9 of those. 10 My notes may not have been com'plete, so if 11 either of any of the other parties recall things I have lef t 12 out, please feel free to interrupt me. , 13 I believe the Applicant has just submitted some [} 14 amendments to the Application. These amendments will 15 require some revision in the contentions language, so that 16 is.one item that CBG must be given time to do. 17 JUDGE FRYE: Now, is:.this -- there was a 18 contention, as I recall, I think it was the last contention, 19 I forget the number, which was deferred, is that correct, 20 that it hasn't been ruled on, and as I recall, it focussed 21 on amendments that had to be made to the application, or gg 22 is this -- am I thinking of a different contention? V 23 MS. WOODHEAD: Mr. Hirsch, can you help me out fg 24 on that? My memory is bad. (/ 25 MR. HIRSCH: Sure. It is both.

631 8 1 JUDGE FRYE: Both. ("T 2 MR. HIRSCH: XXIII was deferred, the last U 3 contention, which dealt with some references the Applicant 4 had put into its application regarding the decay tanks it (~} l 5 was going to install, and the Applicant indicated it 6 intended to remove those references, and that was two years 7 ago, or a year and a half ago, and this was deferred to 8 give the Applicant a reasonable opportunity to review that. 9 I haven't been able to review them completely thoroughly 10 yet, the amendments, but if tne amendments indeed remove 11 those references, then that deferred contention simply drops 12 out. The language changes, however, are related more pg J 13 14 to the fact that we -- the contentions were based on the 15 applications submitted to us, and now, for examp.le, certain 16 s,ections -- certain analyses have simply been removed 17 entirely, and so the reference to those analyses has to be 18 changed. 19 JUDGE FRYE: The reference in the contentions? 20 MR. HIRSCH: In the contention, will talk about 21 a page number, will talk about -- I will give you an 22 example to make it more clear. Contention VIII refers to r d the safety analysis contained in the Applicant's Safety 23 24 Analysis Report. We' indicate that we believe that even - O 25 that it has unrealistic assumptions which tend to minimize

632 9 1 the exposure. However r despite the minimization of the ([) 2 nazard, the conclusion oi the analysis postulates an 3 unacceptably high public radiation dosage of 1300 rems (]) 4 thyroid. That was based on a ten percent release of 5 volatiles and a zero percent release of non-volatiles. The 6 Applicant has removed, as I understand it, that entire 7 analysis, with the 1900 rem dose estimate, and replaced it 8 with a new analysis which assumes a 1 times 10 release. 9 JUDGE PARIS: Ex cu se me , 1 times 10 9 , re lease , 10 a probability of release? 11 MR. HIRSCH: No, no, no. Of the core inventory, 12 assumes that one ten millionth of the inventory would get {} 13 out in the maximum credible accident. So, there is a new 14 analysis, and they have removed the old one. The old one 15 still exists. It was the hazards analysis the reactor has 16 run on for the last 20 years, and that analysis we think 17 needs to still be looked at. However, we are referring to 18 an analysis which they have now removed from the 19 application. 20 I think that some of that can be resolved, maybe 21 simply by a letter or a few word changes in the contention 22 to make sure that when we say that we are talking about an 23 analysis contained in the Applicant's Safety Analysis Report, 24 we are referring to the analysis that was contained before 25 amended, or is contained in the hazards analysis from 1960,

633 10 1 but it is going to take a few little word changes like that O 2 to drina our saecific contentione whica re1ete to en 3 application submitted in eebruary of '30 in line with the O 4 aew 9ases enee aeve been siven to us. 5 JUDGE FRYE: So, now, to come back to Ms. 6 Woodhead's point, there is some time needs to be allowed for l 7 this, was what you were -- 8 MS. WOODHEAD: That is correct. One other item 9 that needs to be taken care of is some revisions to the UCLA 10 emergency plan, which was submitted several months ago to 11 the Staff. The Staff has reviewed it, has asked for 12 additional information. As soon as the information is l 13 provided, we will issue a supplement to the SER addressing ! 14 only the emergency plan. 15 JUDGE FRYE: The emergency plan. 16 MS. WOODHEAD: We are anticipating that perhaps 17 July 31st is a tentative date for this. We hope to issue 18 the final SER supplement on July 31st. 19 Another matter that needs to be decided is the 20 amount and the time of discovery, if any, which CBG wishes 21 to submit on these amendments to the application and the 22 revised emergency plan, and the Staf f 's evaluation of the 23 emergency plan. i 24 And then, of course, the final date for close O 25 of discovery. Other than the security contention, I believe

1 1 634 11 1 you can see that discovery is essentially at an end. The () 2 remaining matters are quite small. 3 JUDGE FRYE: Yes, I was going to say was that () 4 the impression I have, pending what we come up with with 5 regard to whatever disputes may exist between Staff and 6 CBG, the discovery with the exception of the security plan, 7 and I would think with the exception of any amendments that 8 are relevant is at an end. Now, wehavebeenthrouggall 9 of that. So, it would seem to be that we are probably in a 10 position to amend the contentions to reflect the amendments. 11 You need to -- I would say not just CBG, but all parties, I 12 would think, should advise whether they have any discovery 13 on any amendments that have come in, (3 wJ 14 MR. HIRSCH: We are at a disadvantage in that 15 we -- 16 JUDGE FRYE: You don't have the amendments? 17 MR. HIRSCH: -- got them yesterday. 18 JUDGE FRYE: Okay, well, all right. That is 19 fine. Let us -- so you haven't really had an opportunity to 20 evaluate them from the point of view of discovery, or from 21 th'e point of view of the changes necessary in the contentions ?

    . 22                                MR. HIRSCH: To give you a final determination 23        now -- we may need to talk about this, but it appears that 24        the time delay is the final emergency plan and the Staf f's 25         SER supplement about the emergency plan.             If that didn't

635 12 1 exist, I am not sure what the situation would be with () 2 regard to discovery. 3 JUDGE FRYE: Well, let me say this. As we O 4 etaisa enese catase- we oea o1o e ene= oce ==a r wou1a 5 anticipate that when we get into the hearing stage, that we 6 will probably take discrete. segments as we 'go along. In 7 other words, security might still be going on from the 3 point of view of discovery while we are conducting 9 evidentiary hearings, say, on contention 1, for example, . 10 what have you. 11 MR. HIRSCH: That can't work on the amendments, 12 but could work, for example, on the emergency plan -- 13 hUDGEFRYE: Sure. 14 MR. HIRSCH: if we separate it off. The 15 difficulty we have is that we are not quite sure how much 16 the emergency plan impacts upon the other contentions. If l 17 I can give you an example, the maximum. credible accident ! 13 contention deals, among other things, with the question of 19 fire. The Battelle analysis says yes, it can start to burn 20 but an emergency response capability would prevent it from 21 causing significant release, so as to how much one 22 contention can be separated off from another is something l 23 that requires some thought. I 24 JUDGE LUEBKE: Well, there comes a day when we 25 could makr L. s t , that these contentions are ready for i

S36 13 1 litigation, and these contentions are not ready and we can () 2 at least get started. 3 MR. HIRSCH: May I inquire of the Board, we () 4 nave -- the parties have discussed a bit what our sense of 5 the timing would be. If there were no discovery on these 6 additional items, is there some sense of what the schedule 7 would be? 8 JUDGE FRYE: Well, let us hear what you all have 9 in mind. 10 MR. HIRSCH: Well, we have, obvious ly, an 11 interest in expediting these proceedings. This is a unique 12 situation, if the facility can continue to' run while these () 13 matters are debated, and so we have an interest in 14 expediting. We would have to make a judgment af ter 15 reviewing the application, a bit more of the application 16 amendments as to how much we would be willing to give up that 17 discovery in order to have that other interest of 18 expediting the proceeding met. 19 But I am gathering from what I hear'that the 20 emergency plan need not delay the consideration of the 21 other issues. That we might be able to get to hearing on 22 at least some of those contentions, even with this delay 23 that has occurred because of the lateness in terms of the 24 emergency plan. 25 MR. CORMIER: Judge Frye, let me address one

        }

637 14 1 point -- () 2 ' JUDGE FRYE: Sure ly . 3 MR. CORMIER: -- of clarification. () 4 As I understand it, we have a draft emergency 5 plan which was submitted to the URC and itswas_ circulated to 6 CBG. I forget the date, but it was several months ago. My 7 understanding is, based on the NRC Staff review of that 8 plan and their request for information, it may require the 9 modification of a couple of paragraphs and a few other 10 incidentals. I think the definition of a couple of terms. 11 But other than that, the emergency plan in essentially 12 complete . Now, I don't offer that as an excuse for f]) 13 14 closing discovery on the emergency plan, but only to signal 15 the f act that perhaps CBG would be well-advised to look at 16 the plan they have now, and plan their discovery, in-17 anticipation of a plan that is almost identical, with the 18 exception of clarifying a few points. 19 JUDGE FRYE: Would it be helpful if you took -- 20 if all of youl took the rest of the af ternoon to go over l 21 these points, and see where you stand? Are you in a l I 22 position to do that, with regard to what discovery is needed

   )

23 and what issues are now through discovery, being unrelated 24 to any of these amendments? You have gone a little bit of 25 the way here in coming up with the idea for a schedule. l l

638 15 1 MR. CORMIER: Judge Frye, I guess I don't know () 2 what more the University has to offer on that. 3 JUDGE FRYE: Okay. () 4 MR. CORMIER: Our amendments are in front af 5 CBG. They have to make the determination in a reasonable 6 time how much discovery they need to pursue. 7 JUDGE FRYE: Okay. 8 MR. CORMIER: We have stated the position on the 9 emergency plan, which amounts to the addition of a few 10 clarifying paragraphs, and some definitions, and we think 11 that will be acceptable to the Staff. The security matter 12 is up in the air, but I understand you to say that that 13 would be separated or could be separated from the rest of []} 14 the proceeding. 15 Other than the amendments and the emergency plan, 16 I don't think anything is outstanding. Am I missing 17 something? 13 JUDGE PARIS: Sounds t6 me like what we need to 19 do is give Mr. Hirsch some time to look at the new stuf f 20 that is before him, and give us an estimate of what he 21 wants to do. 22 MR. HIRSCH: Which I might be able to do k 23 tomorrow morning. And I am going to find out whether I am 24 going to be able to do it tomorrow morning. I have a real 25 interest in simply coming in tomorrow morning with the

639 16 1 language changes I see as necessary to bring the () 2 contentions into conformance with the new language from the

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3 amendements, so that we can get on with it. () 4 The problem is that I am rushing. things to do 5 that for amendments that are really thick, and where there 6 may be some additional things that should be considered, and 7 I still am not clear on the question of whether if we did P expedite it, in terms of the contentions and discovery, 9 whether we could go to hearing or whether we are stuck 10 because of the emergency plan not knowing when the SER would 11 issue. s 12 JUDGE FRYE: Well, I wouldn ' t -- I would think (} 13 it would be very unlikely that we couldn't go to hearing on ! 14 at least something while we are awaiting the completion of 15 the proceedings on the emergency plan. 16 MR. CORMIER: On the emergency plan or on the 17 ' security plan? 18 JUDGE PARIS: Security, he means security plan. 19 JUDGE FRYE: You mentioned emergency. 20 MR. HIRSCH: I meant emergency, because we can't 21 litigate it until it is out, until the Staff's SER is out. 22 JUDGE FRYE: But I think we can treat that to a (g f-23 large extent the way we treat the security plan. 24 JUDGE LUEBKE: There will be a final copy. What b a 25 was the July 31st date?

6'80 17 1 MS. WOODHEAD: That was the tentative date that () 2 the Staff supplement to the SER concerning the emergency 3 plan -- () 4 JUDGE LUEBKE: Oh, that is another matter. 5 Okay, that is another matter. 6 MR. CORMIER: Judge Frye, I suspect, though, 7 that when we fold in the time for the submission and 8 consideration of some of these position motions, of 1 9 necessity we are going to be well past July 31st. l 10 JUDGE FRYE: Oh, yes. I would think so. 11 MR. CORMIER: So I don't know how the emergency 12 plan and its attendant discovery would delay or hold up, l 13 assuming it is reasonable discovery, a hearing schedule. I {]) 14 just don't see that as,a factor. The University's changes 15 will of necessity be out before July 31st, and the Staff 16 will have its comments. Given a reasonable period of l 17 discovery beyond that, that should be out of the-way. 18 JUDGE FRYE: Yes, and I think it goes without 19 saying, too, that if something comes out of the changes in 20 the emergency plan which materially af fects something, we I 21 will have to take that into account as we come to it. 22 I will tell you what, Mr. Hirsh, Why don't we 23 give you the rest of. the af ternoon to go over these matters, 24 and see how much you feel you can come to conclusions 25 tomorrow morning, with regard to them. I think that it

641 18 1 would be -- and I think you have to keep in mind, as I have () 2 just said, that amendments to the emergency plan, amendments 3 to anything coming on in the way could have some impact on () 4 the contentions, and we simply can't wait until all the 5 amendments are in before we go ahead. 6 On the other hand, when we do that, we have to 7 do it with the understanding that it may affect what we are 8 doing, so I would suggest that you go over what you can, 9 and let us know tomorrow morning which issues are impacted 10 by the -- which contentions are impacted by the emergency, 11 plan, you feel are impacted by the emergency plan, and should 12 be held up, we will then see if we can't come to an 13 understanding on that, and set a schedule for the others ({} 14 with regard to summary disposition and commencement of 15 hearing. 16 MR. HIRSCH: Isn't it a standard procedure for 17 some of these issues to be segregated -- 18 JUDGE FRYE: Yes. 19 MR. HIRSCH: -- and for certain parts of your 20 initial decision to then be held up pending the next phase 21 of a decision, or does some subpart of a contention on the r~T 22 maximum credible accident, tiny subpart of that have to V 23 wait until we know whether the emergency response to that {) 24 kind of accident would prevent the consequences? 25 JUDGE FRYE: Well, it is kind of difficult to

Sk2 19 1 judge it in advance. It is customary to go ahead issue by () 2 issue, and the consideration of issues at the hearing may 3 be separated by considerable periods of time. Now, if () 4 that happens, you can either issue a partial decision or you 5 can hold it up, and I think you just sort of have to do what 6 appears to be the most reasonable thing in light of all the 7 circumstances . 8 JUDGE PARIS: But it is usually done by major

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9 issues, not subparts. 10 MR. HIRSCH: Oh, I understand. It would seem to 11 me -- I mean, it may be possible to keep off the security 12 contention and the emergency planning contention and go to (T 13 nearing on everything else, and that there might be some

 \_)

l 14 minor aspect of another contention that you have to hold up 15 the final decision on, pending your review of an emergency 16 p lan , for example. 17 JUDGE FRYE: Well, that is true. i 18 JUDGE LUESKE: ..In which case, we might prefer 19 to hold up, I mean -- l . l 20 MR. HIRSCH: The whole contention? 21 JUDGE LUEBKE: In other words, if you can 22 identify the contentions about which there is no question 23 now and discovery is complete, that would be a nice list to 24 have to start planning with. Then the other list has the 25 uncertainties and the incompletes in it.

643 20 1 JUDGE PARIS: And I would think if there is some () 2 aspect of a contention that is going to depend on the 3 emergency plan, it would best be lumped into the -- () 4 JUDGE FRYE: If you can identify the ones that 5 are clearly impactad by emergency planning, probably best 6 deferred. 7 MR. HIRSCH: It is going to be a tough night. 8 We will see what we can do, and we will have a report for 9 you in the morning. 10 JUDGE FRYE: Okay, and*you are going to get with 11 Ms. Woodhead, and -- 12 MR. HIRSH: I have right here the materials 13 with the six or seven questions that are in dispute. I (} 14 might add that there is a dispute that is involving 15 Staff-Applicant correspondence and Staff-Applicant meetings 16 which is not related to a direct interrogatory. 17 JUDGE FRYE: Okay, so tomorrow, we are going to 18 consider the schedule af ter you have reviewed the 19 contentions wirh an eye toward what is still pending to 20 come f rom the Applicant, and we are going to take up 21 Staff CBG discovery dispute, and we are going to take up the 22 photographs. Is there anything I am leaving out?

    )

13 MR. CORMIER: Judge Frye, there is one thing. 24 The inspection. 25 JUDGE FRYE: Well, yes.

64's 21 1 MR. HIRSCH: And to have some discussion of how G lJ 2 we have it. 3 JUDGE FRYE: Pardon me? 4 MR. HIRSCH: Some discussion prior to the 5 inspection as to how -- what conditions to have it under. 6 JUDGE FRYE: Okay. 7 JUDGE LUEBKE: Scope of the inspection I guess 8 is a good phrase. 9 JUDGE FRYE: So we have to discuss that before 10 we arrive at the facility. 11 JUDGE LUEBKE: Be a good idea. 12 JUDGE FRYE: Okay, anything else? l () 13 MR. CORMIER: Judge Frye,'I don't know if it l 14 is timely to raise this. We. raised it in one of our 15 notorious requests where CBG complained of -- I believe they 16 misconstrued it as a request for af firmative relief. It 17 wasn't intended to be that, and we don't specifically ask 18 for Board consideration, but we have been somewhat confused 19 as to the substance of CBG's case in the proceeding, and 20 because of that confusion, we are a little inconvenienced , 21 in being advised how to prepare our case to best present 22 (]) the issues to the Board. 23 That confusion was down to a couple of key 24 points. Although CBG, of course, does not have to proceed s 25 by way of affirmative evidence, we noted to the Board that it

645 22 1 appeared that CBG had been suggesting that they did intend O 2 to eroceed dv wer oe effirmetive evidence- we may have 3 been mistaken there, but we are still not clear on that. O 4 Twee is ta e tuer were soi=9 to oreer some sort 5 of report, analyses of some study about credible accidents 6 or some accident scenarios, as a counter to what is -- has 7 been proposed as the credible accident for the f acility in 8 the NRC Stiaf f studies. If we are going to adequately 9 consider such studies, it would be helpful to get them on the 10 table now. If not, then we have to consider at some later 11 stage, and I believe that that is going to throw a wrinkle 12 into scheduling both summary dispositions and hearing on the 13 particular issues, and I would suggest that the credible 14 accident for the f acility is probably the key issues upon 15 which many of the other issues depend. You have to know 16 what is the scope of this radiological concern in the 17 case of an accident everybody is concerned about, that you 18 are planning emergencies against, that you are designing 19 systems to protect against,'that you are concerned about in 20 your effluent pathway thing? 21 And if.there is.. going to be an affirmative 22 presentation - I don't know when it is appropriate to get 23 an announcement of that, but I want to bring it to the 24 Board's attention now, because we are still in the dark 25 about whether there'is. going to be an affirmative

                                      .                              646 23  1  presentation.

2 JUDGE FRYE: Just on this point? 3 MR. CORMIER: That is the key point. There are 4 other issues. For instance, CBG has responded to several 5 sets of interrogatories asking essentially the identical 6 question, when you claim our maintenance is deficient, when 7 we don't calibrate, and you say you relied on certain 8 documents, what documents of ours are you relying on, and the 9 latest response on record has been we don't know yet 10 because we haven't seen all the documents, we don't know yet 11 because we haven't been able to inspect the f acility. 12 Well, we would hope that there is not an O 13 extreme am unt f substance t those allegations, but in 14 any case, we believe that we are entitled to know precisely l 15 what it is they are relying on. And we have gone through a 16 year and a' half of discovery, and as to certain things like 17 that, it is not clear. Wevdon't think those are that 18 important. They are going to, no doubt, drag out log sheets , 19 calibration records and reports that we will see for the 20 first time when they present them at hearing or in 21 opposition to motions for summary disposition. That is l 22 okay. We can deal with that. 23 But as to the basic -- if there is going to be 24 a basic study offered, or a report, it would be helpful to 25 know that, in advance of going ahead with a pleading that

6'47 24 1 doesn't anticipate such a study, and then has to consider () 2 the study afterwards, and request an opportunity to 3 reply or respond to a study, which Staff and Applicant () 4 would be seeing for the very first time. 5 JUDGE FRYE: Mr. Hirsch, are you going to have a 6 study, or do you know? 7 MR. HIRSCH: Are we going to have a study? We 3 have published an initial study which the Applicant has and 9 all parties have, when we first made our request in our 10 petition for leave to intervene. We have published no 11 study since then. We are, of course, preparing a case. We 12 are attempting to contact expert witnesses, and we are 13 accumulating discovery materials to enable us to conduct (]) 14 cross-examination at hearing. 15 The accumulation of evidence and preparation 16 for hearing is what we are doing, but we have not prepared 17 a study. We may at some point, but we haven't yet, and 13 there is no study to provide. 19 JUDGE FRYE: This sounds like the discovery 20 from UCLA's point of view is far from complete. 21 MR. CORMIER: Well, that is true, and we have 22 had two concerns there. We do not want to get in -- we

  )

23 would prefer not to get into a type of motion to compel, 24 response, adjudication type argument that has delayed O 25 CBG's discovery of Applicant for a year and a half now. We

SLS 1 would hope, and that was the purpose of our request, to () 2 suggest informally that perhaps, with the Boards direction, 3 on responsibilities of supplementation, we could simply get () 4 candid presentation of what the case is, on just these key 5 basic issues, which really relate to the accident 6 analysis. 7 We are not going to delay the proceedings 3 further by moving to compel as to CBG's documents relied on 9 to assert that the maintenance hasn't been performed, or 10 whatever. 11 JUDGE FRYE: Let me approach it from this point 12 of view. Mr. Hirsch, when you are looking at what you are (]) 13 going to look at tonight, you know, focussing on the 14 contentions 'that you feel are now ready from your point of 15 view for hearing, think also in terms about when you can 16 furnish a witness list. 17 MR. HIRSCH: May I request that the Applicant do 18 the same? 19 JUDG E FRYE: Yes, the Applicant will be -- 20 MR. HIRSCH: Applicant has been each time saying 21 we have no idea who we are calling as witnesses. {) 22 JUDGE FRYE: Right. But we are going to have to 23 have witness lists from everyone, and we are going to have to 24 set a date for those witness lists, and then I think at that O 25 point, we are going to have to have them early enough in the

I 649 26 1 proceeding to permit depositions. 2 MR. CORMIER: Judge Frye, can I explain further 3 our concern there? We agree that that is important. So () 4 far the NRC Staff has conducted extensive studies analysing 5 from a generic standpoint Argonaut reactors, both their 6 accident analyses, their radiological implications, even 7 their safeguard implications. We obviously are relying on 8 that quite considerable body of generic evidence in this 9' proceeding. - 10 Until somebody places the conclusions of those 11 studies in question, calls ingo' huestion the Battelle study x - !' 12 in this thing ) not propose to come forward with () 13 experts, let us say, that are going to do an accident 14 -analysis of this f acility. ' e'have g'ot a high degree of i 15 expertise already involved in the studies done by Staf f. 3 16 Now, if we were to see that CBG had offered, - 1 _ .A 17 for instance, a counter accident analysis of this facility, 18 then we would propose getting, no doubt, either people 19 connected with our facility,Laaybe outside consultants, 20 maybe f aculty or staf f, as experts to critique that analysis,

                                        ~

21 but right now, we are sitting here with a considerable 22 body of NRC studies. We are not going to, except for some (]) 23 refinements our staf f has done themselves to these studies, 24 we are not going to second-guess the work of Brookhaven, []) 25 Batte lle , or Los Alamos in these areas. They are the experts i,

650 27 1 We have to wait to see how the opposing side O 2 puts those matters in issue. 3 JUDGE FRYE: Well, I would just remind you, first

   )   4 of all by saying that I certainly can't tell you how to try 5  your case, that is up to you. But I wou ld _ remind you that 6  the Applicaat has the burden of proof, the ultimate burden
                      /

7 of proof, and how you proceed under that groundrule is 8 entirely uh to you'. I think we will have to have witness 9 lists exchanged at a certain point, and we will have to set 10 a period of time for parties to take depositions after the t 11 witnesses are identified. 12 I would also think that it might he helpful () 13 along those lines 'if when thinking about that schedule, we 14 think about taking the deposition after the prepared 15 testimony is available, because I think that will tend to 16 shorten the deposition process somewhat. 17 Mr. Hirsch?

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18 MR. HIRSCH: Just a. suggestion that other 19 parties make a determination or at least do some thinking 20 about whether they indeed have tne capacity to do 21 depositions, the financial capacity. This may be a somewhat (]) 22 different proceeding than with power reactors. We wou ld 23 have to do considerable ascertainment of our finances. 24 But it seems quite reasonable to us -- we are in the same ({} 25 position. We do not know a single witness that the

~'

651 27 1 Applicants are going to put forward, or any of their

   .( )'    2     testimony, and to have that sometime before the hearing so 3     that there is a chance to prepare, be it through

() 4 ideposition or through other means, so that at least one 5 can check out the substance of that testimony, and provide 6 reasonable cross-examination would be very useful. 7 JUDGE FRYE: Yes, it seems under the 8 circumstances that that is going to have to be how we will 9 have to proceed. 10 Any other matte'rs? 11 MR. HIRSCH: What time should I indicate to the 12 individual from student government that it would be (} 13 appropriate for him to come tomorrow? 14 JUDGE FRYE: Oh. How about first thing tomorrow 15 morning, 9:30? 16 MR. HIRSCH: I will inquire whether he is 17 available then. 18 JUDGEiFRYE: Ms. Shirley, do you have anything 19 you want to add? 20 MS. SHIRLEY: Judge Frye, I would like to make 21 one request. Would it be possible for the City of Santa 22 Monica to send a representative to the onsite visit tomorrow 23 other than myself ? For personal health reasons, I prefer not es 24 to go through the reactor. I 15 JUDGE . FRYE: Certainly. No problem so f ar as

l 652 28 1 the Board is concerned. I should think no problem so far as () 2 anyone else is concerned.. 3 MR. CORMIER: It is certainly no problem. We (]) 4 would hope that at the end of this proceeding, your views 5 about taking a tour of the reactor would be changed. 6 MS. SHIRLEY: I am pregnant, Your Honor, and I 7 just prefer not to expose myself to that risk. 8 JUDGE FRYE: Surely. Fine. Could you let us 9 know who it will be, or let Mr. Cormier know who it will be?' 10 MS. SHIRLEY: I would be happy to. What time 11 do you anticipate the onsite visit? 12 JUDGE FRYE: I would think af ter lunch would be (} 13 the most likely time. How long does it take to get from 14 where we are to the campus? Half an hour? 15 MR. CORMIER: It will take you half an hour door 16 to door probably. 17 JUDGE FRYE: We have got to pick up a car which 18 will be over at the hotel, so -- 19 JUDGE LUEBKE: How many miles is it? 20 MR. CORMIER: I yill.have a map, and instructions 21 to the facility. I think it is about 15 miles, but in that 22 time of the day, you are almost freeway to freeway 20 minutes, 23 and maybe another 10 minutes through the streets of Westwood. 24 JUDGE PARIS: Well, if. you could just tell us 25 what freeways to take from the vicinity of the p-

SS3 29 1 MR. CORMIER: -Takee the Harbor Freeway South -- ([) 2 JUDGE FRYE: Before we get into any of this, 3 Ms. Shirley, you were going to let us know with more detail -- 4 MS. SHIRLEY: Yes, Your Honor. I will let you (]) 5 know in the morning who the representative will be. 6 JUDGE FRYE: Okay, and you were going to let us 7 know -- well, I suppose your participation will come under 8 this witness list thing as well, to the extent -- I want you 9 to keep that in mind, too, that when we get to exchanging 10 witness lists, and exchanging testimony, that -- 11 MS. SHIRLEY: I will need to advise the Board 12 and all parties. 13 JUDGE FRYE: To follow along with everyone else U'^s 14 with that regard. 15 MS. SHIRLEY: I understand that I am subject to 16 the same procedural rules as is everyone else. 17 JUDGE PARIS: Mr. Cormier, perhaps even more 18 important, do you suppose the Chancellor's of fice could 19 arrange for us to have a temporary parking permit? 20 JUDGE FRYE: I think we have finished the 21 business of the pre-hearing conference this afternoon. Why r g- 22 don't we go off the record at this point, and then we can 1 %J l 23 discuss these matters. l 24 (Whereupon, at 4 : 01 p.m. , the hearing in the 25 above-entitled matter was recessed to reconvene at 9:30 a.m.) l l L

NUCLEAR REGULATORY COMMISSION This is to certify that the attached proceedings before the

  ,,      U.S. NUCLEAR REGULATORY COMMISSION, ATOMIC SAFETY AND LICENSING BOARD in the matter of:

Date of Proceeding: June 29, 1982 Docket !! umber: 50-142 PL Place of Proceeding: Los Angeles, California were held as herein appears, and that this is the original transcript thereof for the file of the Commission. George D. Girton Official Reporter (Typed) td p ' D/F'l/T((y .

                                                           %f K Offic b   Reporter (Signature)

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