ML20054L306
| ML20054L306 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 06/30/1982 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-PL, NUDOCS 8207070370 | |
| Download: ML20054L306 (19) | |
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i The Regents of the University of California )
) DOCKET NO. 50-142 PL (UCLA Research Reactor). )
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654 1
UNITED STATES OF AMERICA l
( 2 NUCLEAR REGULATORY COMMISSION 3
l ATOMIC SAFETY AND LICENSING BOARD C) 4
________________x 5 In the Matter of:
6 THE REGENTS OF THE UNIVERSITY : ?ocket No. 50-142 PL OF CALIFORNIA :
7 (UCLA Research Reactor) :
a
________________x 9
Wednesday, June 30,.1982 Customs Courtroom, Eighth Floor 10 The Federal Building 300 North Los Angeles Street 11 Los Angeles, California 12 Prehearing conference in the above-entitled 13
(]) matter convened, pursuant to notice, at 9:35 a.m.
14 BEFORE:
15 JOHN H. FRYE, Chairman Atomic Safety and Licensing Board DR. OSCAR H. PARIS, Member 17 18 APPEARANCES:
- 19 On behalf of the Applicant:
20 WILLIAM CORMIER, Esq.
Of fice of Administrative Vice Chancellor, UCLA 21 405 Hilgard Avenue, Los Angeles, California 22
(} CHRISTINE HELWICK, Esq.
GLENN R. WOODS, Esq.
23 Office of the General Counsal 2200 University Avenue 14
{} Berkeley, California 94720 2s i
655 1 APPEARANCES (CONT'D)
() 2 On behalf of the City of Santa Monica:
3 ,
SARAH SHIRLEY, Esq.
Deputy City Attorney
() 4 1685 Main Street Santa Monica, Calif ornia 5
On behalf of the Intevenor:
6 DOROTHY THOMPSON, Esq.
7 Nuclear Law Center SHELDON PLOTKIN 8 DANIEL HIRSCH Committee to; Bridge the Gap 9 JOHN BAY, Esq.
3755 Divisadero, Suite 203 10 San Francisco, California 94123 ,
11 On behalf of the Regulatory Staf f:
12 COLLEEN P. WOODHEAD, Esq.
Of fice of the Executive Legal Direct'or 13 Nuclear Regulatory Commission
(]) Washington, D.C. 20036 14 15 16 17 18 19 20 21 22
(:)
23 24
()
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3, _ _ . _ __ _%a.e an-. .a - #. - ._
656 1 INDEX 2 WITNESSES 3 (None)
O 4 l
5 6
EXHIBITS 7
, (None) 8 9
10 11 i
l 12 i
II .
l O i.
15 16 17 I 18 i
19 20 21 22 23
. O 2*
25 O
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._..,_._,.._m.-.. ._______ ,_ _ _ ......._.-__- _ ._. _ ,. _ ,_ _ _ ._ _ _ _- . _ _ _ . _ _ _ _ . _ . . . . . ~ . - - . - ~ . - - - - --.
SECTION ONE 657 1
P_ g Q g g g Q I_ E g E 2
(9:35 a.m.)
3 JUDGE FRYE: Good morning. Could we go back on 4 the record, please.
5 What item would be most proficient to take up 6 first?
7 MR. CORMIER: We suggest the photographs.
8 JUDGE FRYE: The photographs?
9 MR. CORMIER: We have just been informed to our 10 chagrin and dissatisfaction that we are apparently at impasse, 11 and it is inexplicable to us why there is an impasse, and we 12 would like to indulge the Board in arguments that are very 13 specific and involve the review of individual photographs.
O 14 There are 20 in question.
15 We think that the arguments that we just heard ex-1 16 pressed a few moments ago are entirely unreasonable, at least .
17 as applied to every photograph there. That is, each of the 20 18 photographs. And we think we can explain to the Board the 19 acceptability of certain of our retakes, probably a majority 20 of the retakes, if not all of the retakes, even given the 21 benefit of the doubt and viewing their argument in its best 22 light. We would like to have an opportunity to do that.
23 JUDGE PARIS: Is 20 the total nunber of retakes that l 24 you took?
25 MS. HELWICK: Twenty is the number that are being 1 0 .
658 1 replaced.
2 MR. CORMIER: No. Out of the original 216 or 217 Q 3 photographs, we objected to 20, ignoring that irrelevant 4 fruitfly photograph. We objected to 20 photographs. We re-5 took in good-faith effort to m-ke sure that we covered every-6 thing -- we retook 38 photographs to capture all of the rele-7 vant information as we saw it in those 20 photographs. So 8 sometimes there are two photographs -- I think even in one 9 case three photographs, that replace one photograph of theirs.
10 In addition, because we had taken some additional 11 photographs on the roll of film, we knew that CBG, or we 12 suspected, would be interested in photographs of those cabi-13 nets we discussed yesterday, one of which we opened up on 14 that November inspection. But the other three we did not 15 open up, just to get thrcugh the inspection.
16 CBG has alleged in its pleadings, I believe, if not 17 on the record yesterday, that we appear to be hiding some-18 thing. That is not the case at all. We opened up those 19 cabinets and retook photographs of those and offered those 20 even though they were not the subject of the original set of 21 photographs. So we included photographs of these other 22 cabinets that were not opened.
23 In all cases our photographs are at least of equal 24 quality to the original photograph, and I think they are of 25 much better quality in some cases. Some of their photographs O
I
' 659 1
did not turn out very well, and we replaced them with very 2 clear and good photographs. I think they'are prepared to
] 3 4
concede that.
The argument now is whether in fact there is infor-5 mation in the original photographs, relevant information, 6 to CBG's case that we have not recaptured in our retakes, and 7
they have been unable in this morning's session or in the 8
brief conversation we just had to explain to us any specific 9 objections, and we are miffed.
10 JUDGE FRYE: This will entail an in camera session, II I take it?
12 MR. CORMIER: I do not think the discussion so far 13 is troublesome.
O 14 JUDGE FRYE: No, I mean an actual comparison for 15 the photographs.
16 MR. CORMIER: The comparison would be, but I think 17 because it will occur at your bench, that will be in camera I8 anyway.
II JUDGE FRYE: Well, the point is that if we do that, 20 I think we have to, at a very minimum, indicate that the 21 transcript is to be protected. In other words, not put in 22 the Public Document Room.
23 MR. CORMIER: Okay.
24 JUDGE FRYE: That sort of thing.
25 MS. THOMPSON: If we can comment on that, we are O
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() I not prepared to discuss specific objections for the simple 2 reason that in reviewing the retakes, there are many elements 3 to which our photographer was specifically directed which
[}
4 were not captured in the retakes which we feel relevant to our '
5 case and which are very important in terms of our being able 6 in trial preparation in this matter.
7 The fact that we have not been able to reach an 8 agreement stems from that very situation, which is that we 9 do not have the spccific elements for which we were looking.
10 It is not fair to place a burden upon CBG at this point to 11 disclose our work products and go into the specifics of pre-12 cisely what we were looking for in the photographs-so that -
13 the University may have an opportunity to determine what it O 14 is that we are preparing in terms of our analysis.
15 MR. HIRSCH: We can show why 80 or 90"per cent of 16 the photographs really did not capture what we needed. There 17 is another 10 or 20 per cent where because -- it is not 18 merely Dr. Plotkin who needed to use the photographs, but 19 other people who might at some point be used as witnesses; 20 that they may have information that would be useful for trial 21 preparation. But Dr. Plotkin cannot necessarily identify 22 that because he is not the person who would need it for pre-23 paration.
, () 24 JUDGE FRYE: Oh, I see. The prospective witness 25 is not --
O
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MR. HIRSCH: In other words, we only were permitted 2 one time to go through, so we are trying to take some photo-3 graphs so that we can show some of those photographs to people 4 who might be witnesses at some point. We can show what we 5 were intending for 80 or 90 per cent and how those are not 6 met by the photographs.
7 JUDGE FRYE: I see.
8 MR. HIRSCH: There is a remairiing 10-20 per cent 9 that we still feel we should have access to. And we have a 10 proposal as to a means whereby this whole problem is resolved.
II And I guess that is the impasse, we should make clear.
12 JUDGE FRYE: Okay.
13 JUDGE PARIS: Mr. Hirsch, is it Dr. Plotkin?
O 14 MR. HIRSCH: Excuse me, it is Dr. Sheldon C.
15 Plotkin.
16 JUDGE PARIS: Is he one of your consultants?
17 MR. HIRSCH: Dr. Plotkin is a member of the Board I8 at Bridge the Gap and has been considered a potential expert, 19 as we have indicated, to the University. We do not know yet 20 at this time as to which contention, but I am sure that we 21 will call him.
22 JUDGE FRYE: Before we go further, I neglected to 23 indicate when we went back on the record that Dr. Luebke has 24 elected not to come this morning because he is having some 25 severe back probleI., but he does want to be with us on the O
t 662 I tour this afternoon. So we are going under the Quorum Rule 2 this morning, and he plans to join us for the tour this after-O $ aooa-4 MR. HIRSCH: We should just make clear that we did 5 have a proposal that we think might resolve the problem.
6 JUDGE FRYE: Yes?
7 MR. HIRSCH: Perhaps that should be on the table 8 as well sa that we know --
JUDGE FRYE: Well, I guess'that has come to that 10 now. Is that something that requires an in camera session?
II MR. HIRSCH: No.
12 215. THOMPSON: No.
II JUDGE FRYE: Then we can do that. All right. Let 14 us --
15 MS. THOMPSON: The proposal which we have just sub-16 mitted to Counsel for the University and which they have re-17 fused to accept is that we will have custody of the 20
( I8 original photographs which are in dispute. They would be re-1 39 leased to my custody, and the only persons who would have 20 access to them would be those persons who have signed a non-21 disclosure statement under the protective order, but that 22 we would be able to use them in that connection for our trial 23 preparation.
O 24 MR. HIRSCH: Let me clarify that. They would be 25 releasable only to people who were authorized persons under O
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663 O 1 Contenuon xx, which is a security matter, and releasable 2
only to Dr. Plotkin, myself and Miguel Polido for prepara-Q 3 tion for those matters which we took the photographs: the 4 dispersion, equipment and so forth. We have not had nega-5 tives, no other prints. The prints would be in Ms. Thompson's 6 custody. We would go through this whole numbers thing as 7
well so that they would not -- no additional copies would be 8
made or sent and that the University would have an opportu-9 nity, seven days again, to object if we wished to have them 10 shown to anyone besides the three peopk.e I have mentioned.
II They have already shown them to Dr. Plotkin and 12 myself, and we took them. Miguel Polido was present when we 13 were taking them and was directing us as to take some of them .
14 There may be other people who we would want at 15 some point to show them to, and we would then at that point 16 notify the parties. '
The University would have an opportunity 17 to object.
18 JUDGE PARIS: Where are the negatives now?
19 MR. CORMIER: Dr. Paris, I have all the photographs 20 and negatives on my desk.
21 Judge Frye, we have just received a proposal pre-22 sented by Counsel for CGB a few minutes before. It was not 23 clearly stated at that time, but if I understand what is 24 being implied, there would be another protective order pro-25 cedure put in place for just these photographs. We object o ..
664 1 to that.
2 Our objection to releasing the photographs was on 3 security grounds. If we cannot work out a procedure to get 4 these photographs in their hands today, and we have taken 5 every good-faith effort we can to do that, then we think the 6 photographs ought to be treated as protected information 7 under whatever protective orders and affidavits and non-8 disclosures that are going to be put in place later on.
9 JUDGE FRYE: That is what I understood. Did I 10 understand incorrectly? That you were talking about putting 11 them onto the protective order that is yet to be worked out?
12 A protective order /non-disclosure agreement.
13 MR. HIRSCH: Yes, we are just suggesting a modifi-0 14 cation to that agreement for these particular 20.
15 JUDOE FRYE: For these particular photographs?
16 MR. HIRSCH: Right.
17 JUDGE FRYE: So that these -- the protective order 18 that the Board prepared was really prepared as an interim 19 measure to cover these particular photographs on the assump-20 tion that the objections, therefore the problem raised about 21 sensitive information, could be covered by it. If it cannot 22 be covered by this draft protective order that the Board has 23 already prepared, it would seem to me that the logical thing 24 to do, then, is just include these 20 photographs under the 25 protective order yet to be imposed.
O
665 -
O i Ma. CoanIta: We need to discuse ehee emongee our-2 selves, Judge Frye, with the Counsel for the University.
3 And we may need a few minutes to do that.
4 However, we -- I do not know how to express this, 5 but I guess, once again, this exemplifies the types of pro-6 blems we have had in reaching agreements on what appear to 7 be not-that-difficult matters for parties to resolve on 8 their own. And we despair of not being able to resolve anything 9 with CBG.
10 We went through a procedure in our pleading ex-11 plaining -- taking up suggestions made by CBG, further sug-12 gestions modifying those original ones, went to great 13 lengths to retake photographs. We tilink we can demonstrate O 14 that in most cases we clearly covered the information that was 15 on the original photograph, and we are prepared to show you 16 in camera what are the small and insignificant but clearly 17 important concerns we had in re-editing those photographs.
I8 They have not come forward and explained, as 19 Ms. Thompson mentioned, what are the elements that are miss-l 20 ing in the originals. Hiding behind the work-product, thing 21 seems foolish to us. I mean, they ought to be able to come 22 forward and tell us what it is we have not captured that 23 they need. And we would like to go through that so that we l
O 24 cen get these ghotoeregh, to ehem.
25 If we cannot, then it seems like we are going to O -
666 O
V 1 have to wait until the protective order and the affidavit 2 for non-disclosure for the security stuff is in place. But
] 3 4
I think this would be --
JUDGE FRYE: Do you want to confer on that for a 5 moment?
6 (Pause.)
7 MR. CORMIER: First order of business -- we thought 8 we heard on the record yesterday that Dorothy Thompson was 9 just being admitted for the security contention. We would 10 like to clarify that her role is limited to that or is not II limited to that. We just need to know one way or the other, 12 the status of her appearance for CBG.
13 MS. THOMPSON: Well, yes, Your Honor, I am making Os 14 limited appearance for the purposes of this hearing. I will
~
15 be appearing fully on contention XX.
10 JUDGE FRYE: I see. So you represent CBG insofar 17 as Contention XX is concerned?
18 MS. THOMPSON: Correct.
19 JUDGE FRYE: But not in any other respect?
20 MS. THOMPSON: Except for the purposes of this hear-21 ing right now.
22 MR. HIRSCH: If I may clarify for a second, the 23 particular issues that were asked this morning allegedly 24 crosses over into Contention XX. We assert that those photo-25 graphs are on other contentions. The University asserts that O
667
) I they have security restrictions, and that is why the two of 2 us are kind of stuck. And to be able to --
3 JUDGE FRYE: Mmm-hmm. (Affirmative response.)
(]}
4 MR. HIRSCH: I need those photographs for the other 5 19 contentions. If there are security matters in them, thea 6 we are going to need Ms. Thompson to deal with that.
7 JUDGE PARIS: Ms. Thompson, you used the term 8 " limited appearance" which has a special meaning in NRC pro-9 ceedings and is applied to non-parties. So just to get the 10 record straight, you are appearing on behalf of CBG for the 11 limited purpose of Contention XX, is that right?
12 MS. THOMPSON: That is correct.
13 JUDGE PARIS: Okay.
O 14 MR. CORMIER: Well, Judge Frye, I would like to 4
15 say that we are extremely frustrated. We have been, maybe 16 because it was a.long night and early morning. But again, 17 we are extremely frustrated in not being able to work out
( 18 this little matter. We seem to be spinning our wheels con-l 19 stantly, and we have been over discovery for the last year 20 and a half.
21 Having said that, however, and having offered to 22 at least by way of example explain to you, let you see the 23 photographs so that you understand the source of our frustra-() 24 tion. Absent that, we would certainly accept a procedure l
25 that would involve waiting until the protective order and I
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() 1 security contention -- protective order and affidavit of non-2 disclosure for the security contention i's in place; suitably 3 modify the affidavit of non-disclosure to make it clear that
[]}
4 as to the photographs that may be released, we know where 5 they are going to be maintained, who is going to have access 6 to them; that there are only going to be prints only provided; 7 that those prints will not be reproduced; that we know where 8 they are going to be kept; and that each person who is going 9 to have access to those photographs have on file that parti-10 cularly suitably modified affidavit of non-disclosure pro-11 ceeding. Finally, we would certainly expect that the photo-12 graphs would be returned to us at the end of their use, at 13 the end of the hearing, proceedings. And that would be a O 14 feature of the affidavit of non-disclosure that is crafted 15 for the security contention.
16 We will not release those photographs today until 17 that is put in place.
18 And if that is the only way we can do it, then that 19 is the only way we can do it.
20 JUDGE FRYE: Mr. Hirsch, that sounded sort of like 21 what you said.
r
- 22 MR. HIRSCH
- Sort of.
23 I think that much of it resolves the problem. The
() 24 problem that we have with it is simply that it seems like 25 we are almost ready for hearing on those other contentions, l
()
i
l 669 O i end to we1e une11 evervehine e1se is in order in order to be 2 able to have access to photographs to use in an evidentiary 3 fashion on the other 19 contentions seems to be another un-4 necessary delay.
5 What I would suggest is that as we have mentioned, 6 those regulations already require the protection of that in-7 formation. It would seem to me that the following might ,
8 resolve the problem the University has, which is that those 9 20 photographs wduld be released-only prints, to be kept 10 in Dorothy Thompson's office, only to be released to Dorothy Il Thompson, only to be seen by Dorothy Thompson, Dr. Plotkin, 12 myself and Miguel Polido. Anyone in addition to that who_is 13 to be added, we would notify the parties, and there would be g
v 14 seven days to object; that they are to be returned at the 15 end of the proceeding; and that if they are to'be shown to 16 anyone beyond that for Contention XX, we obviously wait 17 until the measures for protection Contention XX are on order.
18 I would simply like to avoid the delay for the I9 contentions that are raised to be litigated.
20 JUDGE FRYE: I think we will go in camera and take 21 a look at the photographs and hear your specific arguments 22 with regard to them.
23 Now, I do not know how much difficulty the reporter O 24 has in moving the equipment. We have a conference room back 25 in the back that might be more convenient. Is it difficult O
. 670 (3
V 1 for you to eat up back there?
2 THE REPORTER: No, but it would take a while.
O 3 3 coos ravs= e wouta? now toas?
4 MR. HIRSCH: Judge Frye, could we just clear the 5 courtroom instead?
6 JUDGE FRYE: Yes, I think so. We do not have a 7 great length of time.
8 Let us see, who do we want? ~ Ms. Thompson, 9 Mr. Hirsch, U.C.L.A. Staff, I am sure you want to be here.
10 Maybe you do not want to be here.
II MS. WOODHEAD: We are disinterested at this point.
12 JUDGE FRYE: How about Santa Monica?
I3 MS. SHIRLEY: I have no interest in this portion 14 of the proceedings, Your Honor.
15 JUDGE FRYE: Okay, well, the people that Mr. Hirsch 16 identified, I think, for CBG, is that appropriate with you, l
17 U.C.L.A.?
18 MR. HIRSCH: Miguel Polido is not here. It was 19 simply Dr. Plotkin who reviewed them this morning.
20 JUDGE FRYE: Okay, and you. And how about --
II MR. HIRSCH: And Ms. Thompson. Do you have any 22 problem with that?
23 MR. CORMIER: We have no problem with that. We O 24 would ask the Board's indulgence. We would like to explain 25 our security concerns ex parte in camera to the Board. It O
I 671 O
b 1 can be done briefly just by noting something. Since we have 2 not got any type of protection in this point -- I think it Q 3 will be obvious from the photographs what we are talking 4 about. On virtually all of them it will be obvious, but so 5 far, although they have seen the photographs, the signifi-6 cance of what they have seen is not entirely clear in all 7 cases.
8 . MR. HIRSCH: I would suggest that in order to avoid 9 ex parte communications, we simply'try to deal with the photo--
10 graphs that do not require that and see if we can get some Il resolution just by looking through those. We would have 12 grave concerns about --
13 JUDGE FRYE: Yes, I am not inclined to get into ex 14 parte communications.
15 MR. CORMIER: We can explain the photographs.
16 JUDGE FRYE: Okay. Well, let me ask all of the 17 people who are not specifically concerned with this matter if 18 you would please clear the courtroom so we can consider this 19 matter.
20 Mr. Reporter, if you would bind this session as 21 a separate document, and clearly mark it "in camera, not for 22 public disclosure," but continue your page numbering as if 23 it were a part of the regular transcript, I would appreciate 24 it.
23
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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 30, 1982 Docket !!umb er : 50-142 PL
? lace 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 ?.eporter (Typed) s.
2 Officid Reporter (Signature) b