ML20140B853
| ML20140B853 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 01/23/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#186-893 OL, NUDOCS 8601270145 | |
| Download: ML20140B853 (54) | |
Text
.
ORGNA O
UNITED STATES
] NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO: 50-400 OL 50-401 OL CAROLINA POWER & LIGHT COMPANY and NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY (Shearon Harris Nuclear Power Plant)
TELEPHONE CONFERENCE O
LOCATION:
WASHINGTON, D.
C.
PAGES: 10266 - 10317 DATE:
THURSDAY, JANUARY 23, 1986 (4)l 0\\
Q ACE-FEDERAL REPORTERS, INC.
C;fi:ialR: porters 444 North Capitol Street 8601270145 860123 Washington, D.C. 20001 F DR ADOCK 0500 0
G02)347-3700 NATIONWIDE COVERACE 1
t 10,266 JoeHalsh 1
UNITED STATES OF AMERICA
/
)
NUCLEAR REGULATORY COMMISSION 2
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 3
________________________________x 4
In the Matter of:
5 CAROLINA POWER & LIGHT COMPANY and NORTH CAROLINA EASTERN Docket No. 50-400-OL 6
MUNICIPAL POWER AGENCY (Shearon Harris Nuclear Power 7
Plant)
________________________________h 8
9 10 Ace-Federal Reporters, Inc.
Suite 402 11 444 North Capitol Street Washington, D.
C.
12 Thursday, January 23, 1986
~
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13 v
14 The telephone conference in the above-entitled 15 matter convened at 10 :36 a.m.
16 BEFORE :
17 JAMES L.
KELLEY, ESQ., Chairman Atomic Safety and Licensing Board 18 U.
S. Nuclear Regulatory Commission Washington, D.
C.
20555 I
JAMES H.
CARPENTER, Member Atomic Safety and Licensing Board M
U.
S.
Nuclear Regulatory Commission Washington, D.
C.
20555 21 GLENN O.
B RIGHT, Member 22 Atomic Safety and Licensing Board U.
S. Nuclear Regulatory Commission W shington, D.
C.
20555 23 24 25
10,267
'+
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APPEARANCES:
O-2 On behalf of,jhe Applibants:
3 THOMAS A.
BAXTER, ESQ.
Shaw, Pittman, Potts & Trowbridge 1800 M Street, H.
W..
4 Washington, D.
C.
5 DALE HOLLAR, ESQ.
Associate. General Counsel-6 Carolina Power and Light Company i
P.
O. Box 1551 7
Raleigh, North Carolina 27602 8
On behalf of.the Federal' Emergency Management Agency:
?
JOSEPH FLYNN, ESQ.
8 Assistant General Counsel i
10 On behalf of North Carolina Attorney General's Of fice :
l 11 JO ANNE SANFORD, ESQ.
12 Appearing Pro Se:
WELLS EDDLEMAN 13 806 Parker Street Durham, North Carolina 27701-3131 1
14 l
On behalf of the NRC Staff:
15 JANICE E. MOORE,.ESO.
16 Office of the Executive Director j
U.
S. Nuclear Regulatory Commission Washington, D.
C.
20555-37
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20 i
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10,268 1
P ROCEEDINGS
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2 (10:36 a.m.)
3 JUDGE KELLEY:
Good morning.
Judge Bright and 4
I are here in Bethesda.
Judge Carpenter is joining us 5
from California.
6 Our main purpose today was to talk about setting 7
a schedule for a reopened hearing on the siren contention.
8 Let me inquire first, there was some discussion last time 9
of the possibility of settlement in the contention.
10 I will ask Mr. Baxter first, did that progress?
11 MR. BAXTER:
Judge Kelley, those discussions 12 terminated unsuccessfully last evening.
(
13 JUDGE KELLEY:
Okay.
Mr. Eddleman, that's your 14 perspective also?
15 MR. EDDLEMAN :
Yes, sir, Judge, that's correct.
IIS JUDGE KELLEY:
Okay.
Well, we talked rather 17 tentatively last time about a hearing date and didn' t arrive 18 really at anything, the problem being that many of you had 19 not seen the Order or had enough time to study it.
20 And we asked how long it might take to assess 21 this.
Let me just go around the table and see where you Z2 are now and whether you have a date proposed.
23 Mr. Baxter?
24 MR. B AXTE R:
Yes, Judge Kelley.
I have a brief 25 announcement to make before I address your scheduling question,
10,269 1
but it's relevant to that, t
?
\\
2 JUDGE KELLEY:
Okay.
3 MR. BAXTER:
While we believe that our alert 4
system complies with NRC regulations, we continue to be 5
very interested and concerned about getting a prompt resolu-6 tion to this contention, and in light of that interest CP&L 7
has decided to provide and distribute a system of tone alert 8
radios to residents of the EPZ within the first five miles.
9 In light of that -- and, we would be prepared to 10 describe that system in response to Item Number 6 of the 11 Board's January 16 memorandum and Order reopening the record.
12 We are not clear that we need to have a hearing h.
(
13 on the other five items in light of that.
But we would pro-14 pose to file testimony by February 21 in hopes that a one-day 15 hearing could be held by February 26 th.
16 I have at this time no idea what FEMA's avail-17 ability is.
If they are unable to support that schedule, I 18 would have an additional motion to make.
But I will wait 19 for that until we hear from the Staf f.
20 JUDGE KELLEY:
Okay.
Let me just see if it's 21 clear that I understand your comments about the tone radio; 22 is that what you said?
23 MR. BAXTER:
Yes, sir.
24 JUDGE KELLEY:
Righ t.
Would it be your thought 25 to put that forward as a supplement to the present proposed
10,270 I
system and then move that that satisfies the requirement 2
and that there's no hearing?
Or, just exactly how does this 3
work conceptually?
4 MR. B AXTER:
Well, we had a contention about alert-5 ing the EPZ residents during nighttime conditions.
We believe 6
that with the addition of these tone alert radios we have no 7
reasonable doubt about our capability to alert the residents 8
within the first five miles.
9 And we believe that under any view of the evidence,
10 no matter whose analyses you take, that we have somewhere in 11 the eighty-eight and above percentage alerting in the second 12 five miles, such that the contention could be resolved on 13 the basis of our existing siren system as enhanced by this
(/
14 tone alert radio system in t'te firs t five miles.
And we 15 would put testimony on as to that tone alert radio system, the Board required -- suggested we discuss in any event 16 as 17 in Item Number 6 of the reopening Order.
18 JUDGE KELLEY:
I guess what I'm not quite clear 19 on yet with regard to your proposal is whether you are saying 20 that you would make this proposal for a supplement system 21 and then contend that no hearing is necessary; or, would you 22 make the proposal for a supplemental system as a part of your 23 presentation in the reopened hearing?
24 MR. BAXTER:
The latter, Judge Kelley, unless 25 Mr. Eddleman were willing to stipulate that the matter could
10,271 1
be resolved at this stage on an af fidavit.
In the absence us 2
of such an agreement, we would think it would have to be in 3
a brief hearing to describe that system.
4 JUDGE KELLEY:
I think I understand what you are 5
saying now.
6 Might I assume that the system you are describing 7
now -- maybe this is really a question of Mr. Eddleman.
8 Backtracking a bit, Mr. Baxter, you were suggesting the 26th 9
as a hearing date?
10 MR. BAXTER:
Yes, sir.
11 JUDGE KELLEY:
Okay.
Well, for the moment, let 12 me -- we may go back to various parts, but let me j us t go
(
13 to Mr. Eddleman and hear his comment on timing and on the 14 Applicants' supplemental proposal if he wants to make a 15 comment on that.
16 MR. EDDLEMAN:
I don' t want to have to respond 17 to this proposal in five days.
And I presume they would 18 set our prefiling all at the same time.
19 JUDGE KELLEY:
We didn' t really get to the 20 prefiling question yet.
We did say -- the Board said in our 21 Order of January 16th that -- well, I won't paraphrase.
We H
said this:
"Due to the time pressures, we do not expect to 23 set dates for prefiling of testimony; however, the parties 24 are asked to make their best efforts to profile comments and 2
information in advance of the hearing if possible."
10,272
~
1 That was in the context of our thinking we might
(_/
2 have a hearing as early as the first week of February.
As 3
a general proposition, if we are going. to have a hearing the 4
Board would like to have prefiled testimony, comments from 5
all parties some time in advance of the hearing.
It doesn't 6
have to be very far in advance.
7 But, particularly now if we are going to talk late 8
February instead of the first week of February, I think it's 9
more reasonable to have prefiling.
10 Now, Mr. Eddleman, I'm not sure I followed your 11 comments.
12 MR. EDDLEMAN:
I was responding to Mr. Baxte r 's (J) 13 suggestion that he would be willing to file his testimony u
14 on the 21st and have the hearing on the 26th.
15 And what I'm getting at there is that I don' t have 16 any problem with a hearing as early as the 26th.
On the 17 o the r h and, I would want some more time to see the testimony.
18 And, also if I was going to be required to file on 19 the same date I might have some difficulty with that.
That's 20 what I'm getting at.
21 JUDGE KELLEY:
Well, simultaneous prefiling has 22 been the rule.
Are you suggesting that we should deviate 23 from that?
f'~)l 24 MR. EDDLEMAN:
Discovery supplements ought to be
!\\s 25 filed.
It still seems on the record, here's what we are going
10,273 1
to do.
r's 2
JUDGE KELLEY:
Well, 'let me backtrack to Mr.
3 Baxter.
Mr. Baxter, if we^ can distinguish-for a moment' 4
between your proposal for tone radids and the other matters
~
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5 that are listed in our Order, would it be possible for you-6 to prefile your l tone radio portion somewhat earlier than 7
the 21st, because that's new information in a sense; whereas, 8
the questions we raised in our Order were plowing ground 9
that had already been raised last October?
10 MR. BAXTER:
Yes, that's right, Judge Kelley.
11 Our limitation, in terms of the 21st, was ' eally with Mr.
r 12 Keast in mind.
(
13 As to Item Number 6 'and the radio system, we could 14 file earlier than the 21st.
15 JUDGE KELLEY:
When ' do you think you might be able 16 to file?
17 (Pause.)
18 MR. BAXTER:
I would say at least -- well, the 19 regulations suggest fif teen days sometimes, hndiso we could 20 say February 11.
We could get it ready by-at least that.
21 JUDGE KELLEY:
Okay.
Does that help your point, 22 Mr. Eddleman?
2 MR. EDDLEMAN:
Yes, sir.
Fifteen. days would be 24 more helpful.
(-)
25 JUDGE KELLEY:
Okay.
So, we are -- well, why don.' t 4
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. =.
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_ + _
- _=
10,274 1
we keep going here? ' Speak'ing for FEMA, e for the Staf f, Ms.--
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'ss) 2 Moore, or who should I ask for the FEMA / Staff availability?
1 3
MS.: MOORE:
Mr. Flynn.
4 JUDGE KELLEY:
Okay.
Mr. Flynn?
5 MR. FLYNN:
- Yes', Judge Kelley.
6 JUDGE KELLEY:
Yes.
i 7
MR~. FLYNN :
First, I will address _ the question of 8
the reopened hearing with regard to Carl Kryter.
We have 9
got in touch with Dr. Kryter, and he can be available for a.
i 10
-hearing as of the beginning of March.
4 l
11 JUDGE KELLEY:
You are not coming through;very 1 i
12 clearly.
It may be your phone or ours.
i f
13 Did I hear you say_Kryter is not available before-
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j 14 early March?
15 MR. FLYNN:
That's right.
16
~UDGE KELLEY:
Okay.
Do you have any specific
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17 date on which he would be available?
I 18
- MR. FLYNN:
As of.today, I-understand that he will 19 be'available -miy time _af ter the end of February. :
i l
20 JUDGE KELLEY: -Anytime in March?
21 MR. FLYNN:
That's right.-
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22 JUDGE'KELLEY: ' Apartifrom h'is availability with i
l 23 reference -- has Dr. ' Kryter had a chance to review our Order 7
/"
24 and concerns that we raired in' the Order?.
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25 MR. FLYNN:
He has _ not seen. the Order yet.
We,
s 4
I t
10,275 1
will get a copy to him early next week.
He will have time s
2 during the month of February to review it and prepare his 3
testimony.
4 JUDGE KELLEY:
That was really my question.
5 MR. FLYNN:
Yes.
6 JUDGE KELLEY:
lie is not physically available 7
until March or so, but he could do some work on it in 8
February so that he doesn' t have to start doing his reviewing 9
in March.
It's just a question of his being at the hearing 10 in March; is that right?
11 MR. FLYNN:
That's correct.
12 JUDGE KELLEY:
Okay.
Would you have any specific
[ [i 13 date you might suggest at which Dr. Kryter might attend a v
14 Raleigh hearing?
15 We are assuming the hearing is in Raleigh.
16 MR. FLYNN:
We could do it as early as the 3 rd o f 17 March.
That's the first business day b March.
18 JUDGE KELLEY:
The 3rd is a Monday in March.
All 19 right.
Do we have both Ms. Sanford and Ms. Long today?
20 MS. SANFORD:
Just Ms. Sanford.
21 JUDGE KELLEY :
Okay.
Well, we have some alternative M
dates being suggested here, Ms. Sanford.
As you've heard, M
the 26th of February and also -- it's okay, I take it, with 24 the Applicant and Mr. Eddleman and FEMA /Staf f, because of 25 Dr. Kryter's availability, he suggests the 3rd.
Are either
10,276 1
of those acceptable to you?
Or neither?
%)
2 MS. SANFORD:
Yes, sir, both of those will be fine 3
wi th me.
4 JUDGE KELLEY:
Okay.
5 FE. SANFORD:
Both or either.
8 JUDGE KELLEY:
Okay.
Would the 4th be as good as 7
the 3rd?
8 MR. FLYNN:
Yes, it would, Your Honor.
9 MR. EDDLEMAN:
This is Eddleman.
That's true for 10 me, too.
11 JUDGE KELLEY:
All right.
Thank you.
Nell, let 12 mc backtrack.
r-(
13 Mr. Baxter, how does the -- realizing you want this 14 hearing sooner rather than later, what would you think of the 15 3rd or 4th of March?
16 MR. B AXTER:
We could live with that, Judge Kelley.
17 We could live with that if it doesn't slip.
Of course, that 18 would be assuming that the Board was still interested in --
19 JUDGE KELLEY:
Yes, I understand that.
20 MR. BAXTER:
-- hearing Dr. Kryte r.
21 JUDGE KELLEY:
Okay.
Well, Glenn, does that sound n
like a definitive date to you?
23 Judge Carpenter, how does it look from San Diego?
[~'}
24 JUDGE CARPENTER:
The 3rd or the 4th would be all l
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25 right.
I am absolutely firm for the week of March 10th in I
10,277 1
Chicago.
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2 JUDGE KELLEY:
All right.
3 JUDGE CARPENTER:
I could not stand any slippage.
4 JUDGE KELLEY :
Okay.
On the assumption there would 5
be no slippage, do we then have a consensus for the 3rd or 6
4th of March in Raleigh?
7 Jus t quickly, Mr. Baxter, okay?
8 MR. BAXTER:
Yes, sir.
9 JUDGE KELLEY:
Mr. Eddleman?
10 MR. EDDLEMAN:
Yes.
11 JUDGE KELLEY:
And PEMA and the Staf f, we are sug-12 gesting that.
(v) 13 MR. FLYNN:
Yes.
14 JUDGE KELLEY:
Okay.
State?
15 MS. SANFORD:
Yes.
16 JUDGE KELLEY:
It seems that -- I think the Board 17 would view it as a one-day hearing, that the issues we've 18 raised could be covered in that time.
And I would hope that 19 we could consider the supplement -- tone radio supplement.
20 Mr. Baxter, going back to you, you were discussing 21 the 21st and lith for Keast's testimony.
Can you make those Z!
same dates?
23 MR. BAXTER:
Well, we would certainly prefer the 24 opportunity for more time if the hearing is going to be the n
3ro or 4th of March.
10,278 1
JUDGE KELLEY:
Okay.
l O
2 MR. BAXTER:
In particular, I'm not going to be 3
available the week of the 10th and neither is Mr. Keast.
So, 4
if we could have until the -- I'm afraid the 17th is a holiday.
5 If we could file on the 18th, which would still be two weeks.
1 6
before the hearing, we would --
7.
JUDGE KELLEY:
The 18 th.
Would that be both, or 8
would that be the tone radio supplement on the 18th 'and the ~
9 rest of the -- whatever you are going to file later?
i 1
10 MR. B AXTE'R:
Yes, sir.
We would still like to file 11 the other testimony, if therel is any, on the 21st.
12 JUDGE KELLEY:
18 and' 21, then, would be your -
13 propos al?
And that's the same, or better, than what we l
14 talked about before I believe.
t 15 MR. BAXTER:
That's right.
16 JUDGE KELLEY:
Okay. Mr. Eddleman, would you 17 contemplate prefiled?
j.
18 MR. EDDLEMAN:
Judge, I _ wanted to ask (if we - are -
19 going to have the date fer'subpoenaes as the first date for 20 prefiling?
21 I am still looking around.
I-haven't'got any' firm.
22 commitments of anyone to testify.
But I think there are i
2 some people that I want to-subpoena.
("'
24 JUDGE KELLEY:
Well, we will talk about that a
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25 little bit.
We have. talked ~ specifically about the two -
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m-
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..y--.-n.
10,279 1
witnesses mainly involved in these questions, or mainly
' w_ '
2 Keast and Kryter.
Now, as far as you subpoenaing witnesses, 3
Mr. Eddleman, you don' t have anybody specifically in mind at 4
this point?
5 You don't have a name at this point?
6 MR. EDDLEMAN:
I have people in mind.
7 JUDGE KELLEY :
Pardon me?
8 MR. EDDLEMAN:
I do have some specific people in 9
mind.
10 JUDGE KELLEY:
All right.
When would you propose -
11 I would think the sooner the better in terms of finding out 12 who might be involved.
(j 13 What would you suggest as a subpoena date?
14 MR. EDDLEMAN:
Well, for the convenience of the 15 Board and the parties, the standard thing is to put it on the 16 first prefiling date.
But I could put it earlier if that is 17 required.
18 JUDGE KELLEY:
All right.
On the general proposi-19 tion of subpoenaed witnesses, we had said in our Order, we 20 named a couple of specific witnesses, Kryter and Keast.
I 21 suppose the status of this reopened hearing might 'ber the Z!
subject of some debate.
23 Mr. Baxter, any comment on the proposition of 8
24 subpoenaed witnesses by Mr. Eddleman?
M MR. BAXTER:
Well, I think it would be useful to l
10,280 1
get a filing date just so if there is a contest about-it, it A
ms 2
can be resolved expeditiously.
If Mr..Eddleman -- I don't 3
have any idea what he has got in mind, but if he has in mind 4
any employees or consultants of the Applicants he could 5
consult with us in advance and maybe find out that we are 6
putting them on anyway; and, obviate the whole need for this 7
Process.
8 We would certainly be willing to exchange informa-9 tion with him about that as soon as we know who our witnesses 10 will be.
11 JUDGE KELLEY:
Okay.. Any comment from FEMA or 12 the Staff?
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13 MR. FLYNN:
No, I have no comment.
14 JUDGE KELLEY:
The State?
15 MS. SANFORD:
No.
16 JUDGE KELLEY:
Okay.
'Mr. Eddleman, would it be 17 possible for you to request any. subpoenaes.you may want to-18 get, say by the 1st of February?.
19 MR. EDDLEMAN:
If the Applicants.can do what Mr..
20 Baxter just said, that is tell me who their witnesses are 21 going to be prior to that, then, that will be fine.
22 They are under an Interrogatory to identify their:
23 witnesses to me anyway.
So, if they identify their witnesses r'
24 to me, then I can exchange the 'information" that Mr.- Baxter,
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2 suggested and file anything that'I need to file by whatever
10,281 1
date that's available.-
So, if that's the 1st-of February C
k._ '
2 I can do it by the 1st.
If it's later, it would have to be-3 later.
4 JUDGE KELLEY:
Does FEMA and the Staff contemplate-5 anyone other than Dr. Kryter?
6 MR. FLYNN:
No.
I can' t say at this time who we 7
might want to have testify about the tonc alert radio.
I 8
suspect it would be Tom Carter.
9 JUDGE KELLEY:
All right.
I think Mr. Eddleman's 10 point about knowing who the other witnesses are, he can 11 decide who he wants to' call, and also it would be good to have 12 all of the proposed witnesses known to us.-subpoena requests ;
()
13 know pretty'well in, advance of 'the hearing so that if there 14 is any dispute we can get it ' resolved.
I 15 Do the Applicants believe they can make - a final j.
16 decision on who the witnesses --- their witnesses -- might be 17 by the 1st of February?
4 l
18 MR. BAXTER:
Yes, Judge Kelley.
At least by the f
19 3rd, which is Monday.
1 20 JUDGE KELLEY:
All right.
FEMA and the Staff, 21 could you do that?
22 MR. FLYNN:
Well, I' don't think we will have any:-
i j
L problem identifying witnesses but we need=to see the' plan N
'first...I suppose, in.effect, I'm asking :to -see - the prefiled' 25 testimony from the Applicants when they file it.
But that's i
i
10,282 1
not really what I'm asking to see.
2 JUDGE KELLEY:
Well, under that --
3 MR. FLYNN:
If we are expected to provide testimony 4
on the adequacy of the tone alert radio system, we have to 5
have information about it.
We need that sufficiently in 6
advance of the 21st so that we can make an adequate review.
7 And if we are asked to identify our witnesses by 8
the 1st or 3rd of February, we would need that information 9
even earlier.
10 JUDGE KELLEY:
Well, would it be possible for you 11 to get from the Applicants informally the nature of this 12 proposal and even if their filing isn' t ready, could you not
(
)
13 then decide who you might call?
w/
14 MR. FLYNN:
He will certainly make an ef fort to do 15 that.
16 JUDGE KELLEV :
I think what we are reaching for is 17 a date for naming witnesses so that Mr. Eddleman can make a 18 judgment about who else, if anyone else, he wants to call.
19 With those considerations in mind, how about --
20 just a minute.
21 (Pause.)
end #1 n
What about the 7th of February?
23 MR. FLYNN:
I think that would be fine.
24 JUDGE KELLEY:
Is that okay, Mr. Baxte r?
s (Pause).
q 10,283 1
MR. BAXTER:
Yes.
I
(_/
2 JUDGE KELLEY:
Okay. So that the naming of witnesse 3 3
is due on the 7th.
Mr. Eddleman, now once you see those lists 4
of names when would you be prepared to file your subpoena re-5 quest?
6 MR. EDDLEMAN:
I could -- let me think just a second 7
about this.
It depends somewhat on who is and who isn' t on 8
it.
There's some people it may be more difficult for me to 9
catch.
in I think I can file by the 14th, the list of 11 subpoenas.
I also would like to see whatever the Applicants 12 give FEMA.
)
13 MR. FLYNN:
I don' t know how to respond to that.
14 I will have to leave that to Mr. Baxter.
15 KELLEY:
That seems to get a little bit difficult.
16 we've got a filing date for the Applicants' filing.
If you 17 want to talk with the Applicants and see in general what it 18 is they are going to do, I gather it has -- I'm assuming it 19 has already been a subject of settlement.
20 But the final form of the Applicants' tone radio 21 proposal has been set for the 18th of February.
And I assume Z!
that they will be working on it up to that point and they are M
not expected to hand out drafts.
24 If 1you can talk to them informally and get a n
better idea, all well and good.
But if you are suggesting
10,284 1
that you are going to wait until after the 18th to tell us 15 2
who a witness is, that strikes me as rather difficult.
3 MR. EDDLEMAN:
No, sir, I'm not suggesting that.
4 What I am suggesting is that what we discussed in settlement 5
is not necessarily what the Applicants are going to do now.
6 In fact, I have no idea what the relationship will 7
be exactly.
FEMA asked for this information in order to 8
assess what witnesses they want to have.
I would like to see 9
the information to assess what witnesses that I would need.
10 I think it would be helpful.
I am perfectly wil-11 ling to talk to the Applicants informally about it.
But I'm 12 saying if it's reasonable to provide it to FEMA, I think it's
('
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13 reasonable to provide it to me.
t/
14 JUDGE KELLEY:
Well, I --
15 MR. EDDLEMAN:
And I --
16 JUDGE KELLEY:
We make the same assumption.
Can 17 the Applicants talk to Mr. Eddleman. informally by early 18 February as to their specific plans so he can make the same 19 kind of judgments that FEMA will be required to make?
20 Is that reasonable, Mr. Baxter?
21 MR. BAXTER:
Yes, we can do that, recognizing that n
the information may not be final.
23 JUDGE KELLEY:
Right.
24 MR. BAXTER:
I would also comment, though, it's
%5 not absolutely certain to me that the Board's Order calls for 1
I 10,285 s
1 FEMA's testimony on this. subject.
It asks Applicants to
./
2 address potential corrective actions for the first five-3 miles.
4 And it's my understanding that FEMA's position in 5
the hearing was that our current siren system already. complies 6
with their requirements.
So I'm not sure their review' would 7
be absolutely necessary.
We' will still try to -exchange the 8
information informally.
9 JUDGE KELLEY:. Well, I think I can say on behalf 10 of the Board we would appreciate FEMA review and comment on the-11 supplemental tone radio proposal.
12 The way we structured the-Order, we basically asked
(
13 the Applicants for that information; that's true.
But we 14 also said as a preamble to that list, if any other party wants 15 to address those points please do'so.
16 And so I think with that _in mind, the Board would 17 like to hear from FEMA on the, subject.
We are not implying 18 it's necessarily essential,_but we would like to hear from z
18 them.
1 20 So what seems to be emerging from this is that 21 we have a date, namely the.7th, for' naming witnesses'from 22 FEMA and the Applicants.
I'm assuming they-will not b,e 23 subpoenaing anyone.
(~
24 Mr. Eddleman, you were saying if they file witness.
25 names on the 7th you want until'the 14th.
hhatseems~alittle 1
1
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10,286 o
i i
bit long.
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2 MR. EDDLEMAN:
It depends on how much talking I 3
have to do.
In other words, I can' t -- well, I take it back.
4 If I'm asking for a subpoena, you are right.
I
'5 can just ask for them.
I was thinking more about arrangements 6
with the witness.
7 JUDGE KELLEY:
More about what?
8 MR. EDDLEMAN:
Making arrangements for a witness to 9
te s ti fy.
You are right, Judge.
I can do it sooner.
10 JUDGE KELLEY:
What about naming your witnesses 11 on the 12th?
12 MR. EDDLEMAN:
Yes, Judge.
That's fine.
[)
13 JUDGE KELLEY:
Request for subpoenas is. what I'm -
v 14 talking about.
15 MR. EDDLEMAN:
Yes.
16 JUDGE KELLEY:
You will-know the witnesses that you 17 are going to have.
You are to name them at the same time as.
18 the other' parties.
19 MR. EDDLEMAN:
I understand.
20 JUDGE KELLEYi 'The subpoena requests are.due by the 21 12th.
And in that regard, as a general proposition, since. the 22 timing here is a bit tight, wherever it's appropriate for 23 direct communication as opposed 'to 'several days in 'the mail,-
24 I would urge all parties.to do that. ' Phone' calls could be
}
\\_/
25 useful.
Quick mail could be useful.
a.
~
.t'-
f.
sq 10,287:
1 We won't try to break out each piece-.and a time OU 2
for communication for each one, but 'I would just po' int out 3
that this is a rather tightly structured schedule we are 4
coming up with, and time is important.
5 So, we've got a prefiling date, and the location 6
in our mind.would be Raleigh.
7 MS. MOORE:
Judge Kelley, might I-interrupt for 'a 8
moment?
This is Janice Moore.
- 1.
9 JUDGE KELLEY:
Yes.
10 MR. MOORE:
The filing dates that were set'I believe 11 were for Applicants' testimony.
We haven't discussed when 12 FEMA's testimony would be due.
13 I haven't spoken with Mr. Flynn, so I don 't have 14 an answer for that question.
But since Applicants have. two 15 filing dates already, I think we need to make it clear which
~
16 one FEMA might be able to meet.
17 JUDGE KELLEY:
I guess I was assuming the_prefiling i
18 date of the 18th and the 21st'would apply to everybody.
If 19 that's not feasible 'for some reason, then we ought to focus 20 on that.
21' MR. FLYNN:
Judge,. this 'is 'Mr. Flynn.
I was assum-22 ing the same thing. "And those dates woullf bc0 acceptable 23 JUDGE KELLEY:
Okay.
'1,
. ?i'-
n
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. i) 24 MS. MOORE:
Okay.
You.want two' separate filing
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l 25 dates, then, on ' the two dif ferent issues? -
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10,288 1
JUDGE KELLEY:
We would be perfectly happy to
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2 get everything on the 18th.
4 3
MS. MOORE :
(Laughing.)
Okay.
4 JUDGE KELLEY:
But if you want the other three lg 5
days, the 18th means the tone alert radio testimony.
And A'
6 the 21st means the rest of-it.
7 MS. MOORE:
Okay.
8 JUDGE KELLEY:
Okay?
s 9
MS. _ MOORE :
Fine.
t 10 JUDGE KELLEY:
I was saying, as to the location' 11 we were thinking of Raleigh.
We have not made_ any effort, k.
12 for lack of a date,_to set a place-in particular.
The 13 Holiday Inn at the last' hearing seemed perfectly okay to 'cae 4
14 Board.
15 Does anybody object to that or have a better 16 idea?
17 (No response.)
[\\
18 Okay.
Well, I don ' t know if. we can ge t it.
But 19 we will try to get the Holiday Inn in Raleigh.
I guess I 20 should warn you zin advance, it'may end,Lup in Apex.
If any-s 21 one has another idea or a better place,.by' ail means call me zt up.
m But we will go ahead and look into the place 1I have i
^
O 24 mentioned.- We will try to get'the Holiday Inn.
And-we will'
/ /
g issue a confirmatory time. and. place Order. as soon as we have i
A
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10,289.
1 been able to nail that down.
n f
3
(_)
2 I would think 9 o' clock in the morning for:a 3
. start.
Are there other matters <nt 'the subject of time and
~
4 4
place that anyone wants to raise?
5 Anything else?
6 MR. BAXTER:
Judge Kelley, no.
Except March.3 and 7
4 is the latest we think is consistent with our schedule.
And 8
I forewarn the Board and parties that we will be proposing 9
some kind of expedition with regard to any proposed findings,.
10 either simultaneous quick filings in writing af ter the. hear-11 ing or even oral argument.
12 JUDGE KELLEY:
Right.
We can entertain that at the l
/"3 a
e
/
13 time.
V 14 Well, we don't view the 3rd or 4th -- again, I may.
15 have said this.
The 3rd and the 4th, it may depend-on.when 16' we can get the Holiday Inn.
Those. days'are interchangeable' 17 But we do have a ~ serious intent ~ to -hold the hear-18 ing on that day and not barring some very extraordinary.
19 development.
Anything else?
20 Mr. Eddleman?
21 MR. EDDLEf1AN :
Judge,-Iowould just like to say~if 22 we get down to where our alternative is Apex that there may.
23 be some olaces,in Durham we might consider.
There is a court-l 24
' room here.
kl "5
And considering the alternative, I might'want to
.~
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5 4
.10,290 4
T supply you with 'some information on 'that if you can't get 1
2 the Holiday Inn or someplace in Raleigh.
3 JUDGE KELLEY:. Could you just' look' into it? - Look:
I j
4
~into it today and give us a call?
5 MR. EDDLEMAN:
Yes.
1 6
JUDGE KELLEY: ~ We I are perfectly happy to. do it' i
7 in a courtroom in Durham.: Could you; 1et us know about.that? -
i 8
MR. EDDLEMAN:
Yes, sir.
9 JUDGE KELLEY:. Okay.
Thanks.
Now, Mr.. Flynn cur.
- 10 Ms. Moore, anything else - that needs to be spoken : to on' the ~
11
- schedule?
12 MR. FLYNN:
Not on the scheduling.
. ()
13 JUDGE KEL' LEY:
Okay.- And Ms. Sanford?~
^
14 MS. SANFORD:
No, sir.
15 JUDGE KELLEY:
Okay.
Now, we have pending.here.'a 16 separate' matter'--
17 MR. BAXTER:
I'm'sorry, Judge _Kelley,2I didn'tl i
18 -
realize you were leaving.this.
This fis ~ Mr. Baxter.'
19
' JUDGE KELLEY:. Right..
l 20 MR. BAXTER: "Just one Jo'ther comment. that: is related j-21 to the schedule "somewhat.- Th'is hearing is being-reopened a
22 -
solely on? the Board's own motion and' because ~ of J the ' Board's l s
- E desire for-additiona'l'information.-
,i
~
We would: hope that'ifi the Board,- on reflecting -
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25 our decision to install and enhance the system in ythe'.first1 i
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10,291 1
five miles, decides that the first five items of this Order x-2 are no longer necessary to be heard, we would certainly 3
appreciate hearing about that soon.
4 JUDGE KELLEY:
Well, I guess I feel procedurally 5
a little bit awkward.
It's unclear to me, Mr. Baxter, unless 6
you are saying that your proposal on the face of things makes 7
all those points irrelevant, I find it hard to think, for 8
myself, to consider that in a formal way lacking a motion expie rung 9
why we don't have any details on the tone alert.
10 Now, maybe a tone alert proposal is five miles 11 and there's not much more to say about it.
But, we don't 12 really know very auch.
(
)
13 And, arguably there are still concerns in the 14 five to ten mile -- I think for us to, in effect, rescind our 15 Order of January 16 and say forget about all those concerns, 16 we would need to have a motion explaining why we should do 17 that, which would probably get responses.
18 I don't feel we -- unless you can explain it to me 19 in a way that I will understand it better -- are in a position 20 of sitting here now, having heard you say that you are going 21 to use the tone alert radio the first five miles, to simply 22 drop the other concerns.
23 MR. BAXTER:
I understand your position.
24 JUDGE KELLEY:
Okay.
Now, we had some discovery 25 between the Applicants and Mr. Eddleman, the Staff, and we
10,292 started talking about them.last week and stopped.
And we-1 2
are prepared to, try to get through those points.
3 Are there any other points that people want.to raise 4
other than discovery or schedule?
Just speak up if there are.
5 (No response.)
6 I don't hear any.
I guess this would mean that the 7
participants in the discovery discussion I understand would
~
8 be Mr. Eddleman and Mr. liollar and either Mr. Flynn or Ms.
i 9
Moore.
10 Others are perfectly free to stay on and -listen 11 or perhaps to participate, too.
But you don't need to.
12 MS. SANFORD:
Judge Kelley, this is;Jo Anne
(
13 Sanford.
I think I will leave the conversation at this 14 point.
15 Thank you.
16 JUDGE KELLEY:
Okay.-
Thank you.
17 MS. SANFORD:
Thank you.
Bye-bye.
16 JUDGE-KELLEY:
Good-bye.
19 (Ms. Sanford withdraws fr6m'the discussion.)
20 JUDGE KELLEY:
I gather there is nothing else 21 other than this discovery business to speak to; is that L
22 correct?
23 MR. EDDLEMAN:
Judge, this'is Wells Eddleman.
]. br
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24 I was just wondering about' what'.Mr. Baxter was saying. 'If 25 they do file' that motion, I would appreciate getting it.in a
-J- -
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x u
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10,293 I
first-class envelope or quick' mail.
I!
\\
2 (Inaudible-due to noise in telephone line.)-
3 In fact, the Board's own Order which the Applicants 4
kindly hand-delivered me a copy of last Friday, because they 5
had somebody in Washington, I didn't get that Board Order in 6
its plain envelope with first-class postage until yesterday.
7 JUDGE:KELLEY:
I'm sorry to hear that.
I-know it's 8
bad occasionally.
9 MR. EDDLEMAN:
I don't want to delay the process 10 unnecessarily.
11 JUDGE KELLEY:
Mr. Baxter, if you decide you.want 12 to file a motion along the lines' we were just talking ' about, 13 if you do.that could you quick-mail it to Mr. Eddleman.
14 MR. BAXTER:
Certainly.
15 JUDGE KELLEY:
Thank you.
Okay.
Well, we would i
16 like to just take a short stretch, i
17 Could the discovery. people just stand by ' for a 18 couple of minutes?
We will be righttback.
lend #2 19 (Pause.)
20 21 22
(
23 (j(~T 24 25 i
.u.-
10,294 3-1-JoeWal 1
JUDGE KELLEY:
Let me just mention a couple of 2
things that we don't need t-' really discuss, but they 3
had better be mentioned at this point.
They are not 4
discovery.
They are a couple of sort of loose ends.
5 Maybe I shouldn't use that word to characterize 6
one of Mr. Eddleman's pleadings, but we have an open question 7
on the dispute over whether this power enginee ring article 8
ought to be in or out.
That is an issue that was discussed 9
in a telephone conference.
10 IIello?
Mr. Eddleman, were you hearing me?
11 MR. EDDLEMAN:
No, sir.
12 JUDGE FELLEY:
I guess I will start all over.
(,,
13 MR. EDDLEMAN:
I just got back from the bathroom, 14 and I am sorry --
15 JUDGE KELLEY:
Yeah, I did the same.
Well, you 16 are here.
Ms. Moore,are you here?
17 MS. MOORE:
Yes.
18 JUDGE KELLEY:
Is Mr. Flynn with you?
19 MR. FLYNN:
I am here.
%)
JUDGE KELLEY:
And Mr. Hollar.
21 MR. I!OLLAR:
I am here.
22 JUDGE KELLEY:
Well, let me start all over.
I 2
just.
wanted to mention a couple of things I might have 24 mentioned earlier
-- an open item.
25 One is,you will recall that back in December, I
3-2-JosWal 10,295 1
think, in ruling on the FEMA, Dr. Basceoni, and some t
(_/
2 other -- there was an issue about letting in the German 3
s tudy and the Basceoni review, -and also an article from 4
Power Engineering magazine, and we let it in.
We heard 5
some argument, we let it in.
6 Mr. Eddleman was unable to participate in that 7
particular telephone conference, and then I talked to him 8
later and I said if he had any objections other than those 9
voiced by the State, he should voice them.
He did that in 10 a pleading of December 17, I think it is, -- 16th, and-11
-- not thinking 'anything was settled because we didn't 12 get it in the mail, we issued our ruling on the 29th of (n) 13 December.
x/
14 A couple of days-later we got it in the mail, 15 so I mentioned to Mr. Eddleman before, and I will say it 16 on the record now, we will consider the objections that 17 were made to the Power Engineering article, and let me just 18 suggest that we might hear what other parties might want to 19 say on the record at this upcoming hearing.
20 What we would be doing is reconsidering our ruling 21 on the Power Engineering article in the light of Mr.
22 Eddleman's objection.
That is one point.
%I The second point is this:
Am I correct that the
/'N, 24 emergency plan for the State and the County, about an inch-i
(
/
25 and-a-half thick volume, has never been admitted in its
' 3-3-JosWal' 10,296 1
entirety in the case, but th'at rather in connection with' 2
the various < contentions,. certain pages and paragraphs have 3
been put in the record.
4 Is that correct, Ms. Moore?
5 FE. MOORE:
Sir, that is-correct.
6 JUDGE KELLEY:
Okay.
And my question goes to 7
that.
In the course of the hearing on-siren, we asked about 8
sections of the plan, which had to do with route' alerting, 9
and the Applicants found a citation for us, and I think it is to at 9633 and 34 of the record.
They gave these citations to 11 various pages of the emergency plan.
12 I think it was our intention to put that l'n the 13 record.
I don't of any place, however, where we did, and 14 if I am not mistaken' we - have ~ these citations, but we don ' t 15 have the actual pages to the plan concerning route alerting 16 in the record; 17 Now, my question to'you is this, and you don't 18 need to answer it now.
The question is whether any party 19 has any objection to including the material as cited at.
20 9633 and 34 of the record.
21 We think that the material speaks for itself.-
22 We don't want to reopen on that subject, and we have no i
r1 questions about it, but we still would like to have it in the 24 record.
25 So, would you just think about that and perh$ps t
3-4-Jo2Wal 10,297 1
respond at the hearing whether you have any objection to that 2
approach.
3 Those are the two things I just wanted to present.
4 As to discovery, we began to discuss that a bit 5
last time.
The discussion got a little bit out of -- off 6
the track.
We had different people interrupting each other, 7
and we don't have to replay all of that.
8 All I am saying is that the -- some kind of 9
procedure is inherently rather difficult.
It is harder to 10 run an adversary discussion of something over the phone.
I am 11 going to ask you in this case, as we get into the discovery 12 point, if you will just take it one at a time.
(
13 I intend to call on people, and then when you are 14 called on you can speak your piece, and I will ask'that you 15 keep it fairly short and I don' t want any interruptions of 16 other parties.
You will all get your chance to say what you 17 want to say.
18 With those cautions in mind, let me just say that 19 I have in front of me here the text of Mr. Eddleman's 20 interrogatory to both FEMA and CP&L.
I have a page objection 21 from Mr. Rochlis of FEMA to two of Mr. Eddleman's 22 interrogatories.
My understanding is that there was some 23 negotiation between Mr. Eddleman and CP&L, and then at a
^'a 24 i
point where there might have been objections and motions to
\\ ~
25 compel and all the rest.
I suggest that we might could do
3-5-JosWal 10,298 1
it on the phone.
L/
2 I don't yet have, and I don't expect to have at-3 this point, any written objections from Mr. Hollar, b'ut 4
that is what is in front of me, let me just start it this 5
way.
6 During the CP&L -- 14r. Hollar, I gather there -
7 are disputes between you and Mr. Eddleman over particular 8
interrogatories, is that correct?
9 MR. HOLLAR:
Yes.
There is a dispute on only i
10 one interrogatory.
11 JUDGE KELLEY:
Okay.
Which one is.that?
12 MR. HOLLAR:
It is one that is denominated ~
em
/
13 G-EPX.
14 JUDGE KELLEY:
Can you give me that? Itam_
15 looking at your filing of December 20th.- Is it typed up i
16 in there?
l 17 MR. HOLLAR:
Yes.
It is on p'ageL9.
18 JUDGE'KELLEY:
Just a' minute'.' G-EPX?
i-19 MR. HOLLAR:
Yes.-
20 JUDGE KELLEY:
Let me read it.
21 (Pause.)
4 22 JUDGE KELLEY:-.I nohe that that interrogatory-is-23 the same interrogatory that :the Staff objects to..The
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24 second objection also speaks to G-EPX..
That is correct 1sn't 25 it,.Ms. Moore?
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MS. MOORE:
I defer to Mr. Flynn -- that is 2
correct, but Mr. Flynn is going to. handle the discovery.
3 JUDGE KELLEY:
Okay.
But at least the terminology 4
of the interrogatory --
5 MS. MOORE:
I t is the same, yes.
~
6 JUDGE KELLEY:
Okay.
Mr. IIollar, do you want to i
7 state your objection to it?
8 MR. IIOLLAR:
Yes, Your-flonor.
Basically, we 1
9 answered the interrogatory to the extent that we were able i
j 10 to do so, and we also resolved a number of other discovery i
11 issues with Mr. Eddleman, including some clarification of 12 a couple of answers, and provision of documents..
()
13 There is case law for the proposition that a 14 party cannot toss the ball back to an adverse party with j
15 interrogatory.
l 16 At volume 4A of Moore's Federal Practice, Moore 17 states:
The ocurts have held that a -party who has been I
18 served with interrogatories may not toss the ball back to l
the adverse party by serving substantially identical 19 20 interrogatories upon him.
21 And there are two cases cited there: Brown.
22 versus Dunbar and Sullivan Dredging Company, 8FRD105, e 23 and Woods v. Cornfeld, 9FRD196.., -
l
/
24 In both of those cases, the party tossing the 25 interrogatories back at an adverse party had in fact seen l
i 1 3-7-JonWal 10,300 1
the interrogatory that the first party had served.
i :rQ V
2 In this case, Mr. Eddlemarf s 'attenpts to toss the l
3 ball back is even more'grevious since we had simultaneous' 4
filing of the interrogatory.
5 At the time he propounded this interrogatory,.
1 he had not seen our interrogatory.
He did~not know the 6
7 fact that the Staff did not even file interrogatory. 'He k
+
8 could not-have assessed the appropriateness of the g
interrogatory that he directed to us, f
I to There are ~ redundancies. ' They are irrelevant. I 'would
(
)
I 11 say;I~ beliew3 t that we should not' be required to. answer
}
12 interrogatories that Mr. Eddleman didn't think of himself.
13 Any of our interrogatories are interrogatories that he i,
14 could have asked.
He didn't do so.
15 JUDGE KELLEY:
And you are _ telling me that the l
16 cases that you refer 'to -- can you summarize briefly the i
j 17 rationale-for disallowing these e incorpordtions by reference?
)
Well,,the rationale is not
{
18 MR. HOLLAR:.
I i
is explicitly stated.in either one of the cases.
They are 4
r p.
f-m very summarily discussed'.
}
?f I
!l-21 I think basically the courts were looking at x
l' 22 sort of a fairness issue. ' They deemed these to be an 4
4 23 improper' form of. interrogatory.
t
'r-24 JUDGE KELLEY:
Okay.
/
25 MR. HOLLAR:. One other thing.
I would also point-4 4
i 6^
3-$-JonWal 10,301 1
out that'really this type of discovery, if you want to call-it 2
that, is an impediment to discovery.
3 It really discourages any party from asking very 4
many interrogatories of the other party.
If by a simple 5
mechanism like this,-. that other party can throw all - the 6
interrogatories back at you, not even-having seen the 7
interrogatories.
8 JUDGE KELLEY:
Okay.
Why don't we hear from 9
Mr. Flynn next, and then go to Mr. Eddleman.
Mr. Flynn,.
10 do you want to comment on G-EPX beyond what you have clready 11 said?
You have filed a pleading.
12 MR. FLYNN:
Yes, Your lionor.
I take it you are 13 inviting me confine my remarks simply to G-EPX?
14 JUDGE KELLEY:
For the moment, yeah, right.
15 MY. FLYNN: Our ' basic ' objection is that the 16 questi'ons; we ' re being asked to answer don' t make senne.Now, to 17 look at the rules, they say -- let me: refer vbu specifically,10 18 CFR, Section 2.720(II) (2),and it ' allows the filing of 19 interrogatories.
And it says,.and I quote:
Upon a finding 20 by the presiding officer that answers to the.interrogdtorics ar e 21 necessary,to a procer decision in the p
, and that the answers to the 22 interrogatoris are.not reasonably = obtainable through any.
23 other source, the presiding officer may. require ' that the 24 Staff answer interrogatories.
(
25 Well, turning-from there to the interrogatories 9
3-$-JoeWal le,302 1
which the Applicant proposed -- Mr. Eddleman -- which are
,m f
i
(,/
2 incorporated by reference in G-EPX, if you read sme of the things 3
that they are being asked to respond to.
4 Applicants' interrogatory PX-8-3A:
Do you have 5
any basis for any of the allegations in Contention PX 6 JUDGE KELLEY:
You are not coming through well.
7 Could you say that again?
8 MR. FLYNN:
Do you have any basis for any of the 9
allegations in Contention EPX-8, other than the infornation 10 provided in a report entitled, "Shearon Harris Nuclear 11 Station Exercise?"
12 There is more to that, but that's the flavor of~ it. thr,
[Oj 13 7pplicants' Interrogatory EPX-8-6, Inferrine to Page 12 of the FEMA v
14 Exercise Report :
Explain how subsequent use of the system 15 to provide adequate coverage of the area was never realized.
16 And there are five or six others that go on in 17 that vein.
18 The Applicants interrogatories were asking Mr.
19 Eddleman to explain what he meant by his contention and what 20 the basis for his contentions are.
No don't have that 21 in formation, and it doesn' t exi'st enough t'o answer.:that - -
22 those.
23 JUDGE KELLEY:
Okay, thank you.
Mr. Eddleman, j]
24 do you want to respond?
I
(,'
25 MR. EDDLEMAN:
Yes, sir.
It is true that I i
3-16-Jo::Wal 10,303 1
thought of this interrogatory without seeing their 2
interrogatories.
3 The one round of discovery limitation I thought 4
was going to put a severe cramp in me, so I was thinking of 5
a way to obtain additional information.
6 Now, I have not negotiated with FEMA, but I think 7
if we do that I can solve a lot of Mr. Flynn's concern 8
because Mr. IIollar and I went through this.
9 There really are only a handful of these questions 10 that I didn't duplicate.,. A prope'r' response might not be asked and answered.
11 What I really want f rom the Toplicants: was an answer to their 12 interrogatories -- hang on a second, le t me re fer to my
(
13 copy of the document.
14 EPX 8-1:
Identify each and every person with 15 whom you discussed deficiencies in' the use of the emergency broadcast 16 system alleged to have occurred during the Itarris emergericy'plann:.ng 17 exercise. Ind, EPX 8-2:
If your answer to Interrogatory EPX 8-1 18 is other than an unequivocal, 'no one,'
describe the 19 substance of conversation and the information provided your 20 by any person identified. And, then the EPX 2-1 --
21 JUDGE KELLEY: Are the ones you are reading now, they 22 would be incorporated by the broader interrogatory, is 23 that right?
']
24 MR. EDDLEMAN:
Yes, sir.
They are part of
~
25 Applican ts' in terrogatory.
3-1/-Jo:Walsh 10,304 1
JUDGE KELLEY:
Okay.
2 MR. EDDLEMAN:
EPX 2-1: Identify each and everv 3
Person with whom you discussed alleged crwunication during 4
the Harris mergency planning exercise, or associated with,.or what were the 5
following organizations -- and I won't read them all off.
6 Of course, one of them is FEM..
7 EPX 2-2 : If your answer to any of the'sub-parts 8
to Interrogatory EPX 2-1 is other than an unequiv6 cal 9
no.one", then.
describe the substance _of your conversation 10 and the information provided by any person identified.
11 I think that'with FEMA, answers to some of the 12 specific questions, 8-4 through 8-11,might be appropriate, O
13 Particularly in accord with FEMA's objections to producing k
14 the notes and so on.
15 That is another issue, and if you want we can just 16 leave that out of this.
17 MR. FLYNN:
Let me interrupt --
18 JUDGE KELLEY:
Excuse me.
Isn't it true, Mr.
19 Eddleman, that when you ship otit by an interrogatory. that-says : In 20 '
ef fect j also answer all the questions that somebody else 21 asked me, particularly if you've never even seen what they were 22 going to ask you, that that is' c.scattershot; a: Who;knows, I 23
'may--get something, sort of ques.ti_on?
24 MR. EDDLEMAN:- :Yes, sir, and that is why I am b
25 narrowing it.
4 4-
3-13-Jo:>Wal 10,305 1
JUDGE KELLEY:
Well, we are not rewriting 2
interrogatories this morning.
3 MR. EDDLEMAN:
I understand that, but what I am 4
saying is we are arguing the objection, and a possible 5
motion to compel.
6 If I had written down a motion to compel, I 7
waddn't say:I want to compel answers to every interrogatory.
8 r kould say:
I want to compel answers to those interrogatories 9
which are not duplicative, and which provide information that 10 I need and only thosa And I would say that any question that 11 is proper for them to ask me, I think it is also proper for 12 me to ask them, if thev know the. answer.
ry J
13 We have had that many times in this case.
In 14 fact, there are a substantial number of almost identical, or 15 identical interrogatories that fly back and forth on almost 16 every issue.
17 JUDGE KELLEY:
Well, that is true, but in this 13 situation, as I understand it, you are incorporating a long, 19 long list of questions.
It has then become a sort of one M
long interrogatory, and then you are suggesting that you can 21 just wait until a motion to compel stage to pick out the 22 ones you are serious about.
U MR. EDDLEMAN:
No, sir.
I would have to do that
/~'s 24 in negotiations to pick out the ones I am serious about, and
(
25 I have done that with the applicant.
3-14-Jo2Wal'
'10,306 1
JUDGE KELLEY:
Okay.
I think we have heard O
2 enough on'this one.
That leaves FEMA's objection,. which 3
goes'to Interrogatory No. 11.
4 Now, FEMA has already given a response.
FEMA 5
responded to some extent, and then you'are saying that 6
you object.
That is pre-decisional documents and handwritten; 7
notes.
8 Let me ask, Mr. Flynn, will you characterize 9
a little more fully just what is involved here in the way,
10 of paper?
11 MR. FLYNN:
Yes, Your Honor.
I want to make clear 12 -
at the outset we are not objecting to the. entire 13 Interrogatory 11.
We are objecting only to that portion of 14 it which refers to handwritten notes and drafts of reports is pertaining to the exercise.
The thing. that Jgenerated the 16 EPX contention.
17 Everything else has already.been provided_to 18 Mr. Eddleman.
19 -
JUDGE KELLEY:
I understand. In': general,_what you
~
20 are referring to,. you say. i't's your position that pre-21 decisional documents and handwritten notes are protected.against discionure 22 under '740 and 5.71(e). What exact' portions are you. relying 23 on?
G]
24 MR. FLYNN:
Yes,;I am prepared to elaborate on 25 that, sir.
r h
, ' 3-15-JonWal
~
10,307-g l'J:CFR,- Secticn:2 7,40 is general. It lays outithe fremework1 4
j - C 2
for disc o very.
In it is reference to the later
- section, 3
the one I am relying onin particutar is Section 2.790(a),and 4
the heading on that is, "Public Inspecticn, Exemptions, Request I
5 for Withholding."
1 6
JUDGE KELLEY:
That is 2.790, and what is the 7
rest of it?
8 MR. FLYNN:
Sub A.
Do you want me to repeat 1
9 the heading?
10 JUDGE KELLEY:
Public Inspecti'on, Exempti'ons,
11 Request for Wi'thholding, is that what you are referring to?
t 12 MR. FLYNN:
That is right, f
)
13 JUDGE KELLEY:
Okay.
Go ahead.
14 MR. FLYNN:
Now, the particular subsection that 15 I was referring to is A-5.
This is exempt from discovery, l
16 or from disclosure.
Interagency or intraagency memorandums 4
l 17 or letters which would not be available by law to a party 18 other than an agency in litigation, but the Commission.
19 And there is a similar exemption in FEMA's 20 regulation, and the citation there is 44 CFR, Section 5.71(E).
J 21 JUDGE KELLEY:
And you are saying essentially 1
22 that that interagency exemption extends to draf ts:frcm disclosure 23 drafts and notes?
i 24 MR. FLYNN:
Yes, it does.
There is a case in b
25 particular that essentially holds;that.
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3-16-Jo;Wal 10,308 1
The exemptions in the two regulation sections
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2 that I cited track the exemptions of the Freedom of 3
Information Act.
In that under the Freedom of Information 4
Act it is clear that pre-decisional memoranda are not to be 5
disclosed under the Freedom of Information Act.
6 Now, the particular case that I am relying upon 7
is Long Island Lighting Company, Shoreham Nuclear Power 8
Station, Unit 1.
ALAB 773,19NRC1333. The year i~s 1984.
9 An almost identical question came up at that 10 time.
The request for production was for notes that led 11 up to the issuance of a report on an exercise, and what 12 the Appeal Board held in that case is that those documents
/o) 13 are not ordinarily discoverable.
And they were through two
( _/
14 tests.
15 The first thing is the agency has to properly 16 explain executive privilege.
The second thing is that 17 once executive privilege is properly invoked, then the 18 burden is on the party moving for discussion of the 19 document to show that the material is not available elsewhere.
El Going back to the first point, executive privilege 21
-- there is a long discussion in that decision on the need 22 for candor in agency deliberations, and that if agencies were 23 required to disclose, what the reasons were, or how they f-)
24 arrived at certain decisions, or excluded other possible
\\'"/
25 outcomes, in that case the deliberative process would be
3-17-JoeWal 10,309 1
inhibited.
There would be a chilling process.
A chilling 2
ef fect on the deliberation, so that executive privilege is 3
properly invoked when the subject of the discovery is made 4
to the decision-making process.
5 Now, the second point, the showing -- well, 6
definitely showing :ofE need, and that involves not only the 7
material is not available elsewhere, but also that it is 8
relevant material.
9 It may very well be material for the outcome of 10 the case, but what is relevant' here is that the matters that 11 Mr. Eddleman wants to inquire into should properly be the 12 subject of depositions.
That means the material is available
,y i
(
13 elsewhere.
That is this finding in the Shoreham case.
14 JUDGE KELLEY:
Are you saying that in this 15 instance, you say he couldn't get these documents in 16 discovery, or document, but that he should have taken a 17 deposition of a FEMA official and asked him questions on 18 the same subject?
19 MR. FLYNN:
That seems to be what the Shoreham m
case is holding, yes.
21 JUDGE KELLEY:
Okay.
Mr. Eddleman, do you want 22 to respond on that point?
23 MR. EDDLEMAN:
Yes, sir.
The first thing I would
/~'j 24 like to point out is that 2.740 (h),
that exemption applies
%5 to the NRC Staff, and I can't read that to apply to FEMA at
3-18-JoLWal 10.310 1
all.
p
(/
2 So, I think the reliance on 2.790 that hangs on 3
that does not have relevance here.
4 I also say that clearly this is the kind of 5
information that is discoverable, for example, from me or 6
from the Applicants. And, if you have a memo relating to this 7
matter, there are all kind of interrogatorios like that 8
that I submit to the Applicants about what you had, all 9
knowledge of the reasons why things weren' t done, and so on, 10 but they said they didn' t have any, but they didn' t object.
11 It doesn't seem to me the claim of executive BU 4.
12 privilege should cover disagreements within FEMA.
I have got
[a) 13 another interrogatory which I don't think they objected to 14 which says:
If you have any information or exoed; opinion 15 available to you that contradicts, in whole or in part, or 16 casts doubt in whole or in part on the answers which you have 17 given.
18 They say there is no such information.
If there 19 is no such, then there is no reason to hold this stuf f back.
N It doesn't seem to me diat there is any sense in 21 saying that I can do a deposition of them to get information H
that they could just give me otherwise.
23 I don't see the distinction between oral and
,f"]
24 written as being anything other than just something to be M
burdensome to me, and if the ruling is going to go that way,
3-19-Jo:Wal 10,311 1
then I would obviously move for a. tape recorded deposition 2
of them like we have had in some of the other contentions. -
JUDGbKELLEY:
Okay.- Let me just make sure I 3
4 understand.
In this ' category we" were last talking about 5
with FEMA, the documents in question, Mr. Flynn, if I under-6 stand it correctly, are drafts of the FEMA exercise reports 7
and findings, and handwritten notes?and findings ^,n and '
8 handwritten notes of FEMA people underlying that.
9 I suppose people who were there at the exercise, 10 is that what we are talking ~ about?
11 MR. FLYNN:
Yes, Your Ilonor.
12 JUDGE KELLEY:
Okay.
I understand what they
()
13 are like.
Gentlemen, could you just hold fast for a moment 14 here?
15 Judge Carpenter with us?
16 JUDGE CARPENTER:
Yes.
I don't know that I am 17 going to be able to contribute, because I don't have any 18 papers in front of me.
19 JUDGE KELLEY:
Okay.
Well, --
20 JUDGE CARPENTER:
I ask for the Board to continue 21 as a quorum.
22 JUDGE KELLEY:
That date we talked about, is-the 23 3rd and 4th okay with you?
24 Judge Carpenter still there?
26 JUDGE CARPENTER:
Yes.
~,
L. -...--
3-20-JoeWal 10,312 1
JUDGE KELLEY:
That date of the 3rd and 4th, that 2
was okay with you?
3 JUDGE CARPENTER:
Yes.
4 JUDGE KELLEY:
Yes.
Okay.
5 JUDGE CARPENTER:
But no slippage.
6 JUDGE KELLEY:
I understand.
Okay, see you later.
7 JUDGE CARPENTER:
Good day to all, 8
(Judge Carpenter withdraws from discussion.)
9 JUDGE KELLEY:
Judge Bright and I will talk about to this for a bit.
Could you hold on.
I think we will be back 11 in a minute or two, okay?
12 (Judge Kelley and Judge Bright discuss matter.)
n
(
)
13 JUDGE KELLEY:
All right.
Is Mr. Eddleman there?
o 14 MR. EDDLEMAN:
I am here.
15 JUDGE KELLEY:
And Ms. Moore and Mr. Flynn?
16 MR. FLYNN:
Yes, sir.
17 JUDGE KELLEY:
And Mr. IIollar?
18 MR. IIOLLAR:
IIe re.
19 JUDGE KELLEY:
On the second point that we just M
got through discussing, the draf t of the FEMA exercise, we 21 are just going to have to think on that a little, and the 22 case youciM, Pr. Fl mn, I haven' t read, and I think what we i
M will then do in getting -- in the interest of getting this 24 resolved quickly, we will be putting out a little the and place M
order for the hearing next -- in the next day or two', and we
3-21-JonWal
,10,313 1
will put in there a ruling on this particular interrogatory.
'O l
2 That would mean that you might not get the ruling.
3 in hand, given tho'way the mailsfhave been working, until._
.t i
4 the middle of next week.
5 If that isn' t fast ienough, = I will have my secretary 6
phone the ruling in by Monday.
Do you need a phone ruling, 7
Mr. Eddleman and !!r. Flynn, or is Wednesday good enough? -
s 8
MR. FLYNN:
That suits me, Your Honor.
9 MR. EDDLEMAN:
Judge, it would help me to have it to by phone, but it is not necessary.
11 JUDGE KELLEY:
Okay.
Well, I will try to get it 12 out of here tomorrow, and.mayber you will have it,
()
13 hopefully, before then.
14 As to the first point, the dispute there is on Interrogatory G-EPX, wherein Mr. Edd1 pan, in.efE<p-t, incorporated 15 1
16 interrogatory asked by another party, and then asked -- well, icn 17 example, asked the Staff to answer things that -
for 18 example, in the case of FEMA, asked the Feta neople to answer all
't the interrogatories that the Applicant han abbdd of them, 19 and f
5 20 we think that that interrogatory is improper, and we i
21 disallow it, sustaining the objection.
22 It seems to us it is a scat'tershot kind of a 2
thing, and it could be tremendously burdensome r,that> there' 24 isn't any claim that such interrogatories were i$ any. way 26 sifted and refined to take out what really applied and
3-22-Jo3Wal 10,314' I
what didn' t, 'and we. did have a dispute.
2 Mr. Eddleman, he said he was trying to get as much 3
information as he could in one round.
This was.one technique 4
that he wished to employ.
5 Nevertheless, we argued about whether to see one 6
round or two, and we thought one was enough.
We still think 7
that thatsis so..
8 We feel that,the requirement inherent in any 9
interrogatory came with some particularity, is violated by 10 simply cross-referencing a set for somebody else. And so we sustair.
11 the objection to that interrogatory as to both FEMA and 12 CP&L.
13 MR. EDDLEMAN:' Jtidge, this=is Eddleman.
May I 14 enter an objection to that order on the record, please?
15 JUDGE KELLEY:- Sure.
Of course.
16 MR. EDDLEMAN:
Okay.
I would object on the grounds 17 that one round restriction was due to scheduling, and the 18 schedule has slipped. -- the 4 hea' ring -: su~dithat it would not 19 have been necessary in light of what we know..new to thave'rones,
20 roundir If>we had two; rounds, I obviously could have picked 21 up this stuff and asked them the questions, or similar 22 questions back, and that has.been a routine practice in 23 this case.
To ask the questions back.
Or asking similar.
p 24 questions, particularly when as in the case has been with V
i 26 me many times, as Intervenors, we don't know the answer to l-
?
10,315 t
3-23-JocWal I
what the question is if it were asked the' Applicants..
. q(_/
2 That is the objection that I want to get on the 3
record, and I would like to also respectfully request that -
4 I get a copy of the transcript of this, please.
s 5
JUDGE KELLEY:. Yes.
You will be provided with
?
6 a copy of the transcript, and I think that is it.
i 7
MR. EDDLEMAN:.
Judge,.there are some other things 8
I wanted 'to take up with FEMA, but-I haven' t negotiated with 9
them yet.
n 10 I think it would be more productive if we tried 11 to negotiate with them before taking it before the Board.
12 JUDGE KELLEY:
You mean on' discovery?
(
13 MR. EDDLEMAN:
Yes, sir.
There are some answers 14 I don' t think are complete, or in some. cases, accurate. - And 15 I wanted to talk with them about'that.
16 JUDGE KELLEY:
Okay.
I guess that is.what you 17 need to do.
18 0kay. JWell, now again,.
if you get into disagree-19 ment, what we have done here this morning is simply speed up 20 the process by not having separate written' objections, motions t
21 to compel, answers to motions to compel and0all the. rest of 22 that, which would have strung this on for another' couple' of 23 months.
/^')
24 And I gather that has been agreeable' with everyone.
(V 1
a 25 If you have further discovery disputes' that you need to bring
'6, r
t.
h.
, ~.
3-24-Jo!:Wal 10,316 1
to the Board, you can call me up and we will speak to them J
2 as soon as we can.
s 3
MR. EDDLEMAM:
Okay.
Thank you.
4 MR. HOLLAR:
Judge Kelley?
5 JUDGE KELLEY:
Yes.
6 MR. HOLLAR:
Mr. Hollar.
I am very concerned about 7
the lateness of Mr. Eddleman raising new discovery matters.
8 My understanding was that these discovery disputes would 9
not impact on the summary disposition schedule.
10 JUDGE KELLEY:
Well, let me get clear on that.
11 I gather that as to CP&L, the one dispute you had has now 12 been resolved, correct?
[)
13 MR. HOLLAR:
That is right.
a 14 JUDGE KELLEY:
Okay.
So, it is a question of 15 some dispute between Mr. Eddleman and Mr. Flynn or FEMA, and 16 I would only say that we don' t contemplate discovery 17 impacting the schedule, in that any disagreement should be 18 addressed promptly through negotiations.
If you can 19 negotiate, fine.
O therwise, get back to the Board as soon M
as you can, but the deadline for filing motions has been 21 established in advance.
M MR. EDDLEMAN:
Judge, this is Eddleman.
May I 23 say that that is my understanding.
That we are not impacting 24 the schedule, but also that we have had ten days to get the M
negotiations, and these things weren't even served on me
3-25-JoeWal 10,317.
1 until the 16th, and I got them on the - 17th.
(~)\\
k-2 So, I am bringing it up.
i -
3 JUDGE KELLEY:
Okay.
4 MR. EDDLEMAN:
And I will talk with FEMA.
4 5
JUDGE KELLEY:
Fine.
Okay.
Anything else?
6 (No response.)
3 1
7 JUDGE KELLEY:
Thank youavery much, and we will=
t 8
be in touch again.. Good-bye.
t l
9 MR. IlOLLAR:
Thank you, Judge Kelley.
i a,
l 10 JUDGE KELLEY:
Alljright..
i 11 (Whereupon, the telephone conference concluded at 11:52 12 a.m.,
this same day.')
f P
13 a
1 I
Enddd 16 i
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21 i
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23 i
24
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a 4
-,..--.,.,..-.a...,
1 NUCLEAR REGULATORY COfiMISSION 2
3 This is to certify that the attached proceedings 4
of ~ a. telephone conference in the matter of Carolina Power 5
and Light Company and North Carolina Eastern Municipal 6
Power Agency, Shearon IIarris Nuclear Power Plant, Docket 7
No. 50-400-OL, taken on Thursday, January 23, 1986,' ware 8
held as herein appears, and that this is the original 4
9 transcript thereof for the file _of the Commission.
10 11 12 Garrett J. Walsh, Jr.
Official Reporter (Typed) 14 16 Official Keporter (Signafure) 17 18 19 20 21 22 23 24 26 l
_