ML20147E005
| ML20147E005 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 12/13/1978 |
| From: | Purdom P, Shon F, Wolfe S Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7812200321 | |
| Download: ML20147E005 (103) | |
Text
r.
NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
Public Service Company of Oklahoma, et al.
(Black Fox Station, Units 1 and 2)
Docket tios. 50-556 l 50-557 "'
Place - Tulsa, Oklahoma l
Date - ;7ednesday, December 13, 1973 Pages 7390 _ 7493 i
l T.i.onen.:
(202)347 3700 s
ACE. FEDERAL REPORTERS,INC.
OfficialRepor:ers r du Nenh Capitol Street
- h '"S' ". .c 2000,
"/8122005a\
NATIONWIDE COVERAGE DAILY t
- - ,- - -_ _ - _n
W ,
- l-
-IT.aiticek 11. ,-
I 7390 >
t er l'1 TIITED STATES CF YiERICT 4 1 *
+
t'. .
'!UCLEAR REGIILMGRY CD'71IFSICi!
n 2[ . i
- _- ' a (: _ _ _
_ _ _x ;
3' 4 In the matter of : -
. i 5 PUBLIC SDRV2 CE CCl IPA 21Y OP -
I OKLAIIOMA ASSCCIATED ELECT'.IC -
}
6 COOPEPATIVE, INC., :
l
- Eccket IIca . 5'l-5 56 7 -and- : 50-357 l' 3l WESTERN Fn.P11ERS ELECTRIC -
COOPERATIVE :
9 ,
! (Black Fox Sca:icn, Units 1 and 21 :
10 l '
_ _x lil M United Statoa Courthouse ,
~
12 Courtroce !!c. 2 ,
333 i7. 4th Street .
13 Tulsa, Oklahoma [
i 14 Madnesday, December 13, 1973 r 3 OPAL ARGUMi'MT_
1 M
, The ~ hearing in the abcVe-enticiad ma crer was 17 . i
)
,' reconvened, pursuant : adjournnent, at 0 30 et n .
IB I l 1- BEFCPI: ,
- 19 t i SIIELDON J. WOLFE ,. ESO. , Mir::an , I
'O Atomic Safetv & Licensing 71 card. -
1
,1 l' DR. PAUL U. PtiRDCi, Member, i, t.
i
_~w, {. FREDESICK J. S!!OM , Member, 1
/ ,
py ' APPEAIUU;CES : t o
.} <
4 For._the Annlicant:
b 32
~
i s.
ISID11, LIliCOLN % BEALE :
i DY: JOSEFII G7.LLO, RSn. i l
1050 -'17'h Sc, m ,14 shington, D.C. i i
}
I
. . . i. q .ig .g y g y g.M-ingt ' ' ' 3 '#* TW .m_.. m. 1 ......_m.- . ' ' ' ' '
m___._. _ _ . _ .m _.. __ _l.-- ___.
H 7391 i david 1 GEORGE EDGAR, Esq.
_ 2, 1800 M Street, N.W.
Washington, D.C.
3 s
4 For the NRC Staff:
5 DOW DAVIS, Esq. and DENNIS DAMBLY, Esq.
6 For the Intervenors:
7 JOSEPH PARRIS, Esq., and JOHN WOODARD, Esq.,
Greenfelt, Paul & Woodard, 8
And 9
MAURY EFROS, Esq.
10 11 -
12 13 14 i
15 :
I 16 17 i l
18 l l
19 20 21 22 l ,
23 24 r
AaVeral Reporters, Inc.
25
.. -f W
a
+
.c _d -
l l
i m e j k, cu nn m1. a 'y: 2.
7, .
~ g ,[
?nas ,
s
,cs :
p - , ,. i,
, , . . . . ,.. a.,..
3... a.4 i_ .
- ,. .u- ,. . e. .4 <
Cn Eehnif of Gun. ira. Claccric. . . . . 7393 t
.d ' l Orcl Argument bi Joroph Gallo, Gn Eehalf-cf th2 N3plicanta. .. . . . . . . . 4 7430 I
, !i r
, .c> n -
r
~
p .
,ji. Oral Argtr. Lent by Dennis .N.nblv !
ll On Behalf of the NEC 5t?ff . . ', , . ., . . . . 7444 ,f -
1 p
7( ! Oral Arg'.:stnt by Joseph Fn::ris t
}
i Cn Sehe.lf of the 11tarvonors . . . . . . . . . '7439 {
g f.. ,
I P.ebuttal Argunent by Georga.2dge.r . ... .
~'
' ff On Behalf of General Elactr.ic .. _ . .. ... .-' 4.7 6 .
^
10 [;. i l
i ,
) 9
- m. ."&. 8 i
. I l
sl I>' 1 1.~1 ,
}l -
I k
i 11 i
,- 3
,'l, l l t.
, )
,y o -t
'la: h
}l 1 I
'J hh t .
I 1 1
e .t, '
>~>
- f .'
tI*
l ',Y
.. ,i, m.,
a v 1 4
,1 h.1 r get f A4. j J
t I l 1
i O ,
. i
?
wo gi-3 1 1 .
i i
I
\ ,
i i (
l .t l
u .
e4 'L' b og- #4 w ,. s y s,...,..._,,, Q. , , ,,, , .,, . , , . , _ , ,_ , _, __ _
7393 1 _P _R__O C _E E_ _D _I N _G _S tape 1 2 CHAIN W1 WOLFE: The hearinc in resumed.
(' david 1 3 This morning the beard will hear oral argument N 4 'upon General Electric's motion to quash the intervencrs '
5 subpoena dated October 10, 1978, which scught production 6 of the so-called Reed Report.
7 Mill counsel identify themselves for the 8 record becinning to my left.
9 MR. GALLO: Thank you, Mr. Chairman.
i 10 My name is Josech callo, the law firm of 11 Isham, Lincoln, & Beale, 1050 - 17th Street, Northwest, l 12 Wachington, D. C.
13 I represent in this proceeding the applicant, i
14 Public Service of Oklahoma.
15 To my right is Mr. Vaughn L. Conrad, who is 16 manager of licensing and compliance for the Public 17 Service Company.
ja MR. EDGAR: My name is George Edgar of the i
law firm of Morcan, Lewis, and Jochius, 1800 M tg Street, Northwest, Washinaton, D. C. I serve as special
, 20 23 counsel to General Electric for this mattar.
22 Seated to my immediate left is Mr. John Restrick, counsel for GE. '
, 23 (s
MR. FARRIS: Good morning, Mr. Chairman. I 24
( am J e Farris, law firm of Groenfeldt, Paul, Woodard, s/
25 i Tulsa. Seated to my right is John Noodard, partnerin that i
i *
- U l
7394 ! -
e david 2 1 firm, to my left is' naury Efros, associato in that f 2} firm. We represent the Citizens Accion for Safe Energy. I 5
l
(".,- 3 l- Also s Eileen Youngheim, Mr. L.auren.cc Burrell, Intervenors ,
t d MR. DAVIS: My name is Cow Dcvis; I am
] l i
S assistant hearing ccurel for tne United St2:as 11uclear ; i l'
6 Regulatory Commission; I am and my colleague te my l .
1 i
7 left, lir. Dennis Dambly, of the operations and 0 administration division of the office of the executive 9 legal director; and 'ee will be rapresenting the ?IRC staff .
i
. I 10 I in this matter. !
i 1 1 l The second person to crf left is Mr. Cecil Thoman i
12 , who is the licensing project manager for Black Fox for I
13 the NRC staft i
Ml CHAI A%N WOLFE : The order of presentaticn of
. I p3 !l! oral argument this 7.arning will be as follows: General 1 i
!c[ i 21ectric will have 30 m.xttes for its presentatien; the 17 applicant will have 20 minates; the staff will havs ta i 20 minutes; the intervenors will have 30 minutes and 19 General Electric will have 10 minutas for rebuttal.
1 p,o Only counsel will partici~pate'in the oral I i
i 21 argument.
22 This is a public hearing, but spectators must 23 remain cuiet. -This is a federal courtrcom, and the
,)-
- s. -
t og board will maintain order and decorum. 8 t
t
(/ 25 All right. Counsel may either remain l
a I..
lt }
i i
7395 -
david 3 1 seated and make their oral presentations, or they 2 may use the lecturn immediately to the lef t of
,-~,
3 the board.
4 Mr. Edcar.
l 5 OPAL ARGUMENT I 1
6 BY GEORGE EDGAR 7 ON DEHALF OF GENEPAL ELFCTRIC CCfiPANY l
8 MR. EDGAR: Mr. Chairman, as a praliminary j g matter, I might report to the board that at the board's to recuest we initiated discussions to determine whether we j 93 could reach an accommodation on thic matter. We were 12 not able to reach an acccmmodation.
13
'" ~ " """' "" **** * " '
I would like to attempt today to outline the essence of 4
GE's nositien, which is that we will make available 15 to the board the Reed Report, but we do not believe that under the controllinc case law or the facts that the 17 intervenors are entitled to access.
g We think that given the extencive briefing, O
there still remains in this record some confusion as to the pertinent facts in the case law.
With that in mind, we will attapt to review i 22 ;
the facts and distill the controlling principles from what ,
we regard as the leading cases in the area.
is On this basis we believe that the record will show that this is first a case of first impression, and i
w - - - -_ --
i.
7396 1 1
Jecondly that the intervenors and. to some a:: tent the david 4 ,
~
staff have missed the pertinent f acts in Sic case lau,-
/_ .
9 l
' )
I and indeed issuance or ths subpoena cr3a:22 three bacic j i
~
4I irreconcilable conflicts with the controlling principles. ;
(
)
-i
[ First of all, the subpoena was untimely. It 6
is prima facie unreasonable, and nothing hac been 7 shown to the contrary.
t f 0 Secondly, there has not been an adecuate f 1
0 shcwing of relevance or necessity tc cresc a:: amination (
) !
'O
<i or a sound decision. 1 i $ i i
1l
, Thirdly, issuance of the subpcena faila to
.o
'- accommodate interest and avoid adverse impacts to GE, ;
L3 - the applicant and the public interest. t t
,i
- Mow, having outlined by way of introduction "Al 1 G ,
what the escential points are, let's review the facts.
lo- I -
The f act is tha't the intervonors ' consultants 17 , have been aware of the materiality, if any, of the Recc ,
i i 36 Report for at least 2-1/2 years, f 1
19 Secondly, the interveners ' awareness of the 20 Reed Report was reflected in the intervention petition. .
21 Discovery ensued for two years. There was never a 22l recuest to GE or the applicant for the Reed Report. There <
1
(,) 23-[ was a request to the NRC staf f , but tha . staff quite 24 1 properly advised the intervenors that they did not have the 1
(-
23-l_
Reed. Report. That holds true today. 1 t
t 1
b
7397 david 4 I In May of this year, the intervenors belatedly 2 saght to introduce the contentien which would p.
'- 3 in effect inject the Reed Report into these proceedings, y 4 On . Tune 28th of this year the board denied 5 that contention on grounds of untimeliness. The 6 intervonors' prior awareness of the Reed Report and a 7 certainty of delay -- during the hearinas there was 8 questioning on the witness concerning intergranular 9 stress corrosion cracking; that witness had not read ,
10 the Reed Report. He had no knowledge of it. He had 11 not relied upon it as the basis of his testimony.
12 An objection to questioning was sustained. Then 13 the intervenors entered an oral notion for production.
14 After considerable argument, it was granted.
15 Mow, against these facts, we think it is important 16 that the board consider the Clinton case as the controlling 17 atherity, but in applying Clinton, we think it is 18 ecually important that Clinton not be read outside of 19 its facts, and there is more in the Zion case.
1 20 Now, the staff cites Clinton as controlling. i 21 The Clinton test is essentially one of balancing delay 22 and adverse impacts against three factors.
) 23 The first factor is the alacrity with )
1 24 which the information was requested, once its materiality
- became apparent.
25 v - n
1 i
i 7398 1
david 5 The second factor is the relationship of 2
r~s the information sought to the issues in the casc.
(
~
3 The third factor is tha importance of the i h' 4
information to a sound decision. .In plain English, 1 I
b this means timeliness, relevance, and necessity.
6 \
Now, having looked at and distilled these ; j 1
7 \
factors, let's consider hcw first the staff has applied ;
8 those principles to the facts. I 9
As to timeliness, the staff has not 1
10 addressed the question. They have not provided an l
~
l 11 answer, I believe, because there is no answer; r. hey I i
j ~0 I concede that the motion was untimely, and then they J
I3 skip over to prejudice and delay. Those two are not 14 1 coextensive. j l
I*
he second facter would be relevance. The 1
16 staff does not address it. They skipped the necessity and i
II conclude that the board ought to revicu tha Reed Report l IO for necessity, i 19 This, as superficially reasonable-as it may 20 appear, cuts right against the staff's conclusions in 21 their prior review. They have reviewed the Recd Report.
22 They have determined thero is nothing new in the Raed l k- 23 Report. There is nothing that is not otherwise available.
24 How could it be necessary?
b-25 Now, against that, if the staff cannot make l 1 i n '
l
7399 1
david 6 a' fact showing on any of'the three factors, there is 2
' ' ' no need to go further.
3 I will address later the cuestion of how i 4 the staf f addresses delay.
5 end 1 i
6 7
8 9
10 1
11 12 13
('
14 15 j 1
1 16 17 1
18 1
l 19 l
20 l l
21 22
(. _ 23 24 y-25 r ,
1
- 42. arl.
7400 1
The Intervenors, on the other hand, have taken 2 the Clinton case and labeled it inapplica'le.
b Rhetoric i
.m k- 3 aside, they base on four basic points:
4 The first one is that in Clinton, the in*orma tion
- 3 5 sought was never alluded to in the past.
6 The second one, that in Clinton the scope of 1
7 the request exceeded the necessity.
8 The third was that in Clinton there was a g certainty of delay, but here the request, according to the to Intervenors, is specific'and the delay is GE's fault.
N w we submit, ?tr. Chairman, the Intervencre 11 have failed to come to grips with either thefacts or the 12 case law. The question of whether the information was to_
{"x '
alluded to in the pact is purely irrelevant. In fact, it j 4
cuts the other way. j 15 i l
The Intervenors knew if there is any materiality 16 to the information, they should have known and they should 7
have come forward. This is their apparent excuse, but it
]
does not address the questics of untimeliness squarely.
In Clinton the Appeal Board assumed that the 20 '
request was made at the earliest practicable time. The
,t a
Appeal Doard went on to say that the recuest was broader than necessary.
The Intervenors defend this by savine that 24 (j the request is specific. Specificity and necessity are not
7401 ar2 ,
f 1 the same thing.
2 Indeed, the Intervenor's contention as they view
~
3 it in their brief, are the basis for their need for the [
4 Reed Report.
1 1
5 Uell, on its face, the scope of the subpoena
!l l
6 exceeds the scope of the contentions. l l
l 7 N w I would like to point out another factor. i i
g CIIAIrdihN WOLFE: "ould you cxralain that? ,
I !
g ?IR. EDGAR: The subpoena sechs the entire Reed i
10 Report. They are lookina for, according to their brief, 33 a very narrow usage. I would submit to vou that there is a 1
l l
1 12 mismatch between the scope of the subpoena and the scope ;{
13 of their intended use in terms of it being an Intervenors ' i I'
g subpoena.
15 CILtIRM N U LFE- Y u admit -- or I take you g concede that the Intervenors have not seen the Reed Report? i fir. EDGAR: That's correct.
CHAIPJiAU t'OLFE: How would they know what part or parts of the Reed Report are strictly irrelevant to their f' i'
contentions? Are they to take merely your word for it, 20 !!
l-or the word of General Electric?
'IR. EDCAR: 14 22 I think in the first instance, fir. '
Chairman, that they he're made the position . clear, that they l i
would like the report ac it relctes to their contentions.
24 3.
' At the same tine the renort states, or the 4
' 25 lI I
t i
e t
, , . - . _ . . . , . . - ,. . - ~- - ~ - " #
ar3' 7402 subpoena, on' its f ace, . says the entire report. Now, uhere
, is nothing wrong in principle and , in fact, we offer up 4
h _ ! front to provide them with a status report coacerning, on 4 '
i I
cn issue-by-issue basie the sa#ety issues which -- or the ;
/ 4 :
( t
, matters with safety implications which match their conten-o tions in the Reed Report.
CIIAIRMAN WOLPE: This is the so-called summary ;
7 that you offered to present them with? ;
- R. CDGAP.: Chat's right.
CIIAIPlUdi UOLFE: And that is prepared snd !
10 available at this time?
11 ,
'IR. EDGER: That is not prepared at the present i' 12
- time.
13 l I CHAIR'1A!I WOLPE: It is not? I see. ! l 14 : i i l Chank you, l 15 liR . EDGAR: 14cv I think a very vital point that 1G should be mcde about Clinton is this: l '
l
- 7 i l In Clinton the information sought was the i) 15 )
very basic fcr the experts' testimony. Here the fact is 19 4
that no witness, not only Dr. Gordon, who was questioneS l, 20 about it, but no witness has relied on the need Report as l1 21 l the basis for his testimony. ll 22 i The Intervenors then shift and blame GE for the
( E3 delay.
l ,
On June 29th the Donrd ruled concerning the question '
l ,
24 l '
'~
of delay, and we think made a very cogent point. The ,
25 !! '
Intervenors exercised n mecsure of diligence. This whole
,,,-v ~, , ,~ , , + 9 , , ,,,-se -
- - . . = . =. -. - -
7403 1 issue could have been thrashed out early without any impact 2 or delay.
3 GE is simply exercising its leni.timate right to 4 be heard for the first time. Try as they mav, the Inter-5 venors cannot shift the blame for delav to GE.
6 Havinq looked at Clinten, we think that the 7 inquiry cught to go further.
8 The Zion case is particularly important. The Staff, 9 in particular, missed the point of Zion. Their position is 10 that the burden is upon GE to establish that the subpoena 33 ic unreasonable.
12 The Intervenors nuote the relevant portions of 13 Zi n in their brief, but ignore their impact. Clinton i
ja assumed a timely filing. In Clinton, the information sought was the basis for the testimony. That delay was not great, 15 g but the Appeal Board sustained on lack of necess'ity.
g Clinton does not overrule timeliness as a relevant test. The Intervenors have urged the test; balance the i 18 l
g harm of disclosure against the importance of the case. I e , ev ry y n ws an HRC case is important 20 i
and if that were the test, there is no such thing as an untimely filing in an NRC case.
In " ion the point was made that any untimelv '
t 23 request is prima facie unreisonable. That means sinply that the Intervenors have the initial burden of cominq ~
25
ar6 7405.
1 protective order notwithstanding, on tho'hasis of the' 2 showing in this case, it can only necn a future disincentive 3 to critical self-analycis.
4 I do not believe that GE or vendors similarly 5 situated in the nuclear industry, would not have pause 6 and some reluctance to express candid opinions internally l
{
7 if disclosure were required on the tenuous showing that i
8 has been mcde in this ccce. Jond before ve are accused of 1
e compronising safcty, lct me hasten to add thct that is net 10 the case. The applicable rulec, the case law, contemplate c 11 balance of economic interest without compromising safety. l 12 GE has -- and I repeat has -- made availcble 13 to those where they have an obligation concerning safety,
(
14 GE has made the Reed Report available to the NRC Staff, 15 to cognizant Congressional committees, and will mak
1G available to this Board.
17 But thct does not nean that GE is obligated to gg give it to the Intervenors, or that they have any entitle-39 ment. They must come more squarely to grips with the case l 20 law. They have got to nahe a showing on timeliness, 21 relevance, necessity. 11e have qot to examine the question 22 f adverse impacts and delay.
( 23 This does not mean the technical infe important 24 to these hearings would not be avcilable . l 25 The witnesses tilat GE has presented have not
, 1 ;;; 7. ;_, .;; - _ ,;,
l, .
1-
,{
'i\ f .
nr7 I 7406 ir.
I relied en tha Read Report as the bnsis for their testiraony, - !,.
.i ...
E j' Dr.-~Gordon's testime,ny is a perfec: example of '
i j A that. ;
5 [I I r
r 4 i Tne staff has detc.rmined that the infomation i i
% g 5 j: in question is othervisc available., and we believe that the
{,
6 Iscard, now having heard all of these issues, and having -! ['
l, .
t 7 heard frea GI:, will and; must view this record objectively , !
5 and independently, and on that hasis the F.ubpoenn must bs , i i !
C C~ C L S h e d ,
I e2 iO i j d 6 k l6 '
)ol
. t
. s ib e
- T t
)
.W l1 ,
~
14 !
r t'
- -. I sw - a 1
- 1. s., .
4 I W *W $ I i g ? .1 i,
at c.. fj. :
6 0 l s1 '
19 if ;
l! i l 1-2.0 1 i I , ,
a.s .
, i m
Me
..i ,
,) ,
Ih i .
.i -
- e. <
[A {
i .
' E( ' il ' -
a, f;
.g
'% ; f
.. ; 't g
. . . . gl l '
'O s
P, 1 i
i d
7407 l' Mr . Chirman , I believc I hcVe finished a little 2 early. I would like to end my renarks here and reserva
~ david 1 3 the balance of my time for an adciticn tc- my rebu :al t 4 time. H 1
l 5, CH74TRMAN
. WOLFE: I have some cuestions first. l l
6 MR. EDGAR: All right.
7 CHAIRMAN WOLPE: Where is the so-called Reed 8 Report of 161 pages? Where is that located?
9 ?R. EDTtR: GE heG it in its Offices, I know 10 in San Jose, California. It mcy exirt in other places. I 11 CHAIRMAN WOLFE: 7.nd vith rem.rd to the i 1
l 12 summary -- and I don't understan6 the status of that, l
U3 whether it is in preparation or har not been prepared at I
'j 1
14 all; would vou clarifv?
l 15 MR. EDGAR: Let me try to cl.Lrify. There is j s
16 some confusion surrounding the use of the term " summary." l l 17 i There are three things that could be categoriced ae l
je a summary: the first thing is GE prepared a status report discussing the safety significance and safety, I 19 20 status of the so-called 27 issues for use by the NRC i 21 staff in connection with the so-called Dingell review.
22 That report was furnished to the staff on July loth.
23 The staff found that that report wce entitled 24 to proprietary treatment under 2.790. That is one summary 25- report. That report has also been requested in Shoreham,
, i l 'l l 7405 i 1
1 ' l david 2 and GE has agreed to mcke that arcilabic. I would 1 1 2
,. refer to that in my vernacular as the str.m2.ry report on -
1 o
the 27.
( CHAIRM7d! UCLPE: "hnt was returned to General ..
O Electric?
6 MR. EDGAR: Ther e is a copy of the 27 status l
1 7 report in the hands of the NRC staff. l 8 CHAIm17d? WOLTE: All Iight.
9 MR. EDGhR: The staff does not have the Reed 1
10 . Report. -
11 The second thing that might fit the description l 12 cf sur.uaary would be with the Reed Report there in a 20 13 executive summary of the Roed Report and a 140 page main
( ;
14 Reed Report. ;I
. l 15 So the e::ecutive summary of the Reed Report !
j i l 1
to concists of 20 pages. The tnird thing, ant' the thing i
i 17 l that ue spoke of, and Mr. Ge.llo rcenticned, on October 18 16th, was our willingness to prepare a report which would !
19 address the matters raised in the Reed Report which are i l 20 coextensive with the contention and explain what the 21 Reed Report said about that issue.
22 Secondly, what its scfety significance is, and j
( 23 third, what its status is from a regulatory standpoint.
I 24 CHAIRMAN WOLFE: Let me interrupt there and )
i 25 see if I understand you. This latest report called the '.
e v 1, - - -
+ - - ar w n
. - . - - . - . - . . - ~ . - - . . -
i
! t 7409l t b
1 fi - summary report which you had propoced to prepare., would l i
david:2l have relcted to a summari=ction c: what is in the !
3 ,
3 -
Reed Report in so far as the matters related to cny :
1 6 of the existing contentions; is that correct? !
('
l U MR. EDGAR: Well, at that time, the board's -
E verbal advice before having ruled was the 27 issues; so 7 it would have to be examined , but presumably it would 8 consist of or encompass the 27 and the contentions. {
a i Sct it would ba an ascue ry iscue repcre uhere 9[ ,,
j 10 l
the first portion on each subject matter headinc wcuid i .
I be what the Reed Report says. The secoLi item would be !
]
I Il l 12j; safety significanca, and the third iten would be safety i t
1 ;
13 i or regulatory statuc.
I !
i' it Mow, the Reed Report itself would not provide 14 pi t
15 ! the three elements of information. It would only provide I '
10 , the.first element.
4 6 '
i) i Now.- that reporu has not been prepared. That I
se was the offer, but it was not prepared becauce the offer tg i was not favorably viewed.
i 1
20 , MR. SHON: Would the portion of those three j 21 l matters that you have just discucsod that you said would l
. F j 22 say what the Reed Report said, wodd, woud that be
! 23
- a verbatic tranceript of me.tters in the Recd Report? -
w I 24 MR. EDGAP: Tne 27 status report is not a I
g5 verbatim es: traction. The executive sutraary is part of i
I f
7410 david 4 I the Reed Report.
~
It summarizes the 140 page document. IT is 3 verbatim in terms of its being what it is, in terms of ;;
4 the last document. That would nct bc verbatim. That i
5 would be an attempt to, I suppose, to do more than
- O summarize. I wouldn't want to use that term, that !
i 7 attempt to organize and express the substance of what was .
E said in the Reed Report about the particular issue. l 9 CHAIFTJJi WOLPE: The board doesn't quite ll 10 distinguish between the nature of the so-called 27 ;l l
l 11 report furnished the sraff and the so-called summary l
l 12 report that you proposed to prepare.
12 MR. EDGAR: There is a distinction, Mr.
( ,
14 Chairman, and it would be simply this: that the co-called 15 27 list was developed by loching at the standards 10 which apply under section 206 of the Energy Reorganization 17 Act and 10 CPR Part 21.
18 Those standards relate to reportble deficiencies i<
19 relating to a substantial safety hazard. The standard 20 which one might apply in a 206 review would not necessarily 21 identify issues which are coextensive with the 22 contentions, for instance. I 23 I think there is a boader standard contemplated ,
i 24 by the third summary report that I nentioned, that is, {
i 25 the 27 plus the contentions. l I
7411 I It would encompass more issues than the davids 2 narrower and more etringent stancard that you get if .
3 you apply the section 206 of the Energy Reorganization ,
4
/ Act.
5 MR SH0!!: ' lou say that the current 27 6 report, summary of 27,- was applied using the standard 7 of section 206 of the Energy Act?
6 MR. EDGAR: That'c right. The list of 27 was 9 developed by application of those standards. The 27 10 status report was developed at the request of the !!RC i 11 staff. Tbc URC staff was reviewing the status of the 12 27, and they wanted a report which said, here is what .
13 the Reed Report says. Here is what the current or (I'
14 the cafety significance is. And lastly, hre is what 15 the reguhtory status is.
16 CEAIRMal! WOLFE: And one final question: you 17 said that one was mere comprehensive. Which is the 18 more comprehensivo, then?
19 MR. EDGAR: In terms of providing the ,
20 substantive information, the third report would encompass 21 nore information.
22 MR. SHON: The third report would include in f
23 I effect a-list or an identification of all 27 items,
(_ ,
24 whether General Electric deemed them relevant to t'
25 contentions in the Black For case or not? .
I
7412 4
david 6 I
-- MR. EDGAR: That's correct.
2 MR. SHON: In addition, it would point out 3 in what way certain matters therein addrecsed were t
/~ '4 televant to Black Fox's contentiens; is that richt? ~
s r' 5 gn, rpgAn: yes, i '
6 end 3 7 8
9 , l 1 !
10 11 :
F 12 :
1 13
( '
14 i
15 10 t
i 17 !
i 10 1 19 20 !
i 21 -
L I (
(. m 23 .
t 24 1
5
~
25 '. :
i
. . - , . . - . - - - - ..- 3.-
i i
f4 arl 7413I i
1 CHAIR"AN MOL"T:: Furtherina our line of !
I i i 2' l questioning here then, have you: proceeded at leact in part '
i !
( i, . to prepare this third su==nry? l 4 MR. EDGAR: I honestly can't answer that. I do 7-5 not believe -- I can find out, but I don't believe the C efforts have been undertaken because our offer to do that .
7 was not received, i
e "HAIWAJdi UOLTE: Do you have a feeling as to D
- a. .
e i how lone that would take' l
-j .
i d i
10 i NR. EDGAR: Again, I am raluctent to give you a i
- j precise number of days, but I can furnish that to the Board. ,
O i 12y CHAIRTII.N WOLTE: All right.
4 I
,1. - } Mcw can you absolutelv represent to the Board 3
g that the evidence sought by the Intervenors, nenely the g- Reed Report, can have no possible bearing on any of the !
l
- g health and safety issues in this case?
b ei
_y r MR. EDGAR: No possible hearing? l I
- g j s OllIRMAN WOLTE
- No possible bearing. '
l 1 e.
! MR. EDGAR: I cannot represent that to you, fir.
i Chairman. No, I cannot.
c0 g MR. SUON: It would Peen that you have suggested
- u. in fact that you either have tentatively i6entified or may ,
have identified me.tters that are relevant to this particular
(- )
case, since you said the third report would contain such wj !
__ matters, if any existed.
i a' 1!
Ii i
.s
l ar2 7414 1 Itave any been identified?
2 MP. EDGAR: It is ny understanding that the 3 ! third report has not been prepared. ' '
4 MR. SIIOII: I see. !;
{ '
i 5 Mot at all? !
6 MR. FDGAR: Right.
7 MR. SHON: You have prepared something for l]i k
8 submittal to the Shoreham case; is that right?
j 9 MR. EDGAR: Yes. What that is, is I mentioned 10 that the NRC Staff was undertaking their own review of l 11 the status of the Reed Report. In March they requested f
12 from -- excuse me -- on May 1, and that letter is appended l
13 to our memorandum in support of the motion -- requested -
( '
14 from GE o status report on the 27 issues.
15 GE prepared a ctatus report on the 27, furnished ;
i 10 it to the HRC Staff, along with supporting affidavits f'
I j7 on the proprietary question.
18 On July loth, the Staff issued a letter, finding j 19 that it was entitled to proprietary treatment.
20 Now it is that, the 27 status report, that GE 21 has agreed to make available to the Intervenors under a 22 protective order in Shoreham. .
(' 23 11R . SHON: One other thing I would like clarified:
I 24 In the course of dealing with this Reed Report 25 and the matter of its disclosure to both the Dingell i
~
I.
ar3 <.,=I 1 . co=nittee and the URO Staf f, you mentioned thct the Staff 2 t "had reviewed 4' "
i 2 . It'was my understanding that this review was j i.
t' 4 not the sort of thorough Staff review that wculd be given j 5 to, say, a preliminary cafety analysis report, or a design ..
E review of any kind. i 7 That is, it did not involve all levels of ,
- I E engineering talent. As.I understood it, it was only a i
4 i :
p.
lt couple of neople rathcr hichiv, pie.cade is that right?
I i
i ,
i a
- 0 j MR. EDGAR: Let me c:: plain just what that was. i
\
- 1 l The NRC menagement, including Mr. Runche i'
y ;
' 2 ,!j
. includi.g et that time Chrirman Anders, along with several j lI i
- n. C other high level people with e:: tensive knowledge of Bims, t I. ' .
?
- u. . j a.nd namely Mr. Minners and Dr. Nevt, got together with Il a
g a, CE to review the report. ,.
- t. t
- G 1.
l' It wac concluded that the revieu should best t
j!
' ,' y bc conducted in dettil by Dr. Ecwt c.nd Mr. t' inners. !
ft t H l ;:
g jl They spent two days going through it, line by 1 gg j line.- It, in fairnese, did not receive the same level of ; ,
I' l !!
20-detailed review that a PsitR would get, but let me hasten l it e
-g s
.y ,
to add on that point, that it is not the hind of dete.iled :
c.e z
technical infomation thz.t one vould find in a PSAR. l
'e
~
The report was written by E hfgh 1cyc1 tash 4
~
~ $ i N. ' force within GE. It was written to apprise management of i -
" i strategic and ocmpetitive implications of product 9.5 l
8 '
t f
I ti -
.3
. . - - . . . . - _ , . . , _ . - - , , , , , , , , , . ~ , - , + , , ~ . _ , , - - -
-- 1 .
are 7416 I improvement.
2 - I do not believe that it it the kind of a 2 report which would warrant the detailed technical review
- 4 on the levels that one might see in a PSAR.
5 MR. SHON: There was, I take it, no fornsi 6 exchange c nuestions and answers or any of that sort of i 1
7 thing on each of these points? !
t 8 MR. EDGAR: No. I believe what you will cae is a j ,
1 9 Februcry 25th letter frem the NRC Staf f to the Joint 10 Committee on Atomic Energy, which described their revieu 11 end drew their conclusions. !
I 12 How there is another subsequent level of review (
15 that is going on. That would be the review that has been
(- !
14 - undertaken in connection with the Dingell committee ,
i 15 ,
activity.
16 Thers the NRC Staff, in the person of Dr. Roger 17 Mattsen, a senior and very able technical man, har undertaken ,
l 18 l to review the Reed Report in order to respond to l l i '
1
{
19 Congressman Dinge11's inquiry, i l 1
20 There again, the review hes consisted of making
{
i 21 the Reed Report itself availabic to the ' senior Staff members, !
22 i providing the lis: cf 27 and the 27 status report in having l l
i 23 , a meeting to discuer it with Congrecoman Dingell'c staf" '
\ \ :
I 24 ! member present, and the R6ed Report available. f i
23 I cannot represent to vou that that was as
e r
'ar5 7417 4
1 i i
Geta:. led a review as the PSAR, but again I would cuggest 4 ,
2' that the-review, in ne judgment, ic totally ocmmencurate '
I 5 vith the level cf technicci content of the materic1, '4 i .
i r 4 j >
CIIAINUOi UOLFE: Mr. Edgar, would you turn to '
5 Attachment E to your rr.otion to quesh, which is General '
6 Electric's letter to the lluelear Regulatory Conmtission, 7 Division of Systems Safety, dated May 26th, 1979. i I .
MR, EDGT2. :
B ,
Yes.
F ,
CHAINUd7 UOLTE : The first sentence of that i i '
'. " letter refers to the status report on the 27 licensing 1scues.
11 I;ow, cs of May 26th, 1978, that status report therein ,'
I - -
t
.2 mentioned had been previously precared and furnished to the l ;
13 Staff for its review; is that correct?
i
( '
14 j' IIR . EDGAR: The sequence uns on May 1st -- let l.
1
- g -
me gc back one step just to be sure it is there. I
! l ic On March 22nd, GE responded to c March Gth i i
- j letter fror the NRC Staf
- saying piense furnish tne nst of .
h !
27, 100 l
- g Ohey then had a meeting to go over the status, ,
t go and Dr. Mattson requected on May 1 a status report on the 27, !
l 33
.f growing out of the meeting. So on May 26th GE furnished 3
- j
.1 22 l the so-called 27 status report, and this attachment E is j i i a
/ n the lettsr trtnsmitting the so-callad 27 status renort to I 1 - , - ll
- u. e. !
-the ER2 Staff. -!
g l CEAIR'IAN WOLFE: k*ithout co3.7.; irto the exact l p-es n ,-m--, we , , - ,- +
L 7418 ar6 1
j details of thc. status report, in ceneral, if it is a status 2
l report, as I understand a status report, a status report 3 to me means a report on ongoing, for example, investigation I
(~ l or c:: amination of whatever is the subject of the report.
1 ,
5 I take it that General Electric does not maintain .
6 that the Reed Report is merely a n.arketing costing sort of l T
7 analysis. l 8 MR. EDGAR: lio, sir, it isn't. It discusses
, l l
9 ! 2esign, management, a whole spectrum of icaues.
i e4 to l 11 I i
I 12 I i
I.2 I
(
u j
l 1
15 10 .
l 17 -
i 19 i l
},
ii 20 ll ;
21 22 !>
\ \
l i 23 il lI 24 :l !
25 - I l
s i
i
> e.
N
-<e,., o 1
tape 5 CHAIPJ73 WOLFE: I dor.* t went to get into 2 '
, t
- david 1 ,,
really the subject; the precise cubject of the status t c l j
~
- report, but I am trying to underttar.5 What the subject
[
( .4 :
matter would be, r:
MR. EDGAR: Of the stLtus report? -
6 CHAIRMAN WOLFE: Yes.
7 l MR. EDGAR: First of all, GE did the Reed i
8 i Report. Its purpose was to look at reliability,
{ ,
t D
~
l 1 l availability and product improvenent. In the courso j i .
10 .
i of discussing those issues for that purpose, attters were i t
11 ! l raised which have relichility implicttionc, but some of l
{
12 i !
them hcVe safety implications in the eyes of the l
' l knowledgeabic observer. i;
(- l l 14 i Now, the Reed Report did not ettempt to j
't I l go on and address those safety inplicctions. Chat f
! I 18 - -
l was not the charter of the Reed Rec. ort. But GE went ,
. r
- back and did another review of the Reed Report and i 1
78 I
! said, do any of the matters addressed in the Reed Report to present a potential reportable deficiency within the meaning of section 2067 2 '
From that review 27 issues.wcro i6entified. :
i i i
- f "j J
-Ohey? !
i
( 23 f j !& , once you have uhe list of 27, the j
!6 i f status report that is mentioned in the Mnv 26th letter l w
would do three things: it would, A, define what the il.
l 7420 david 2 1 Reed Report says about that issue. Two, define its 2 significance from a safety standpoint, which the Reed 3 Report does not do. And three, defina the regulatory 4 Ftatus, which might be it is resolved between GE and 5 the NRC staff or it might be we are now doing a test on G that or we are doing more tests er more design or whatever 7 the answer may be on the particular issue.
8 MR. SHON: Sir, the 27 items were celected by g General Electric engineers after looking at the Reed 10 Report; is that right?
3; t MR. EDGAR: Yes.
l 1
12 i
MR. SHON: And they were siected with a 1.3 legal criteria of section 206 in mind; is that also l ,
34 correct? '
,3 un. EcGAR: res.
1G MR. SHON: These criteria, as I understand I g it, are rather restrictive; that is, thay restrict one g to only matters that are quito important to safety; is j 1
39 this not correct?
MR. EDGAR: That is correct.-
20 MR. SHON: That there may then have been 21 g borderline matters which would exist in the Reed report g but would not be reflected in either the list of 27 or in g the 27 summary status report.
~
25
- ^^' ' *
- U*** ** Y " Y
- sew.g .
I~ .3 t
7 4.M. _ ,
i 1 I devid3 t - invited the NRC sttff bcch in Teh:.ur.ry to review thc :
s I >
m
-entirs Reed Report sc that if th re *:ac nvuhine :En ;
'O , .
i wcs new or not previcualv kno'..n to the EEC ettff r ther i
t r- 4 ! . . ,
j wou.,t.c. be awcre or. 2. t .
~ ,
iI They reviewed it and determined th:2 ue had
.. 1 D
seen everything before in other places.
l-7 ! There was nothing new presented.
C I 6or 3 t think that you hcVe CHAIRMAN WOLFS: l 1
E'. covered this subject,!t. Edgc.r, but cotli you chOr i i '
IO i or ctomonstrate to the board whercin Ezers. Hubbard, ;
II Minor, and Eridenhaugh, being subject' to a proccative i s
' I k,,
ii, order, would be unlikely to chide by that order?
f 13 MR. EDGAR: If the question is; ch.n I prove b .!
I 14 t that they will violci.e the prctective crder, the answer is i h
E !. ! very unlikely, It. Chairman. i I rculdn t venture thEc. '~ t i i
f
~tu ;
is ray view, however, that the relevt inquiry :.e not -
! I i
W ,I ths;.
f 10 'The relevant inquiry ic te be founS within I ID I the ambit of the Midland Station. There the appeal D board -- and I think quite rightly -- cr.id, let's look 21 at the realities involved. In mLny inctaneet, e prottetive 22 , order can have an illusory character in terms of 1 i
I
(
.(. E5 protection without imo. u wning anyone 't integrity.
24 I mean, the appeal botrd hac said simply this: l t
in our view, the question is not ratliy whether or not k
~
E5 .
h
- _ - - _ . - - - . _ _ - _-__w eE_ ., -. ..w, - . , . ,_m.. , , , , ,,,y,ym --
,g,.y gy ,~+e.
j
, 7422 david 4 1 they vill in fact violate; the euestion is that this 2 board must look to the realities; there is a unique ,
l i-3 relationship between MHB and GE.
1 r 4 The Midland opinbn suggests to me-that f 1
5 this board can and should look at the realities involved f G and properly consider the degree of protection which '
1 it affords in the overall balance of timeliness, relevance, l 7
1 8 and necessity. J It is surely a risk. It is curely a risk 9
10 of some finite character. I don't need to explain that j;
if indeed there is a disclosure, GE's remedies at that 12 point are rather academic. One cannot erace memories.
1.3 One cannot unscramble eggs.
(..
14 The mere point I am trying to make is that i 15 Midland is the board guihnce, that without impugning integrity, the board can look to the realities of this 10 very unique relationship and take that into account.
37 CHAIRWW WOLE: Unique relationship? You mean gg jg what?
MR. EDGAR: Between GE and MHB. We are 20 dealing -- we are dealing with people who are 21 dedicated to,A, opposing nuclear power in general and, 22 B, GE in particular.
( 23 N "' that is no secret. We are asking the ,
24 ar ae a nto account. I do believe r however, 25 4
l 6
7423 1
david 5 Mr. Chairman,. that you can decide this case by focucing 2
on timaliness, relevance, and necessity, focusing on th:
3 l
delay factor without even reachirg that point.
,- 4
( , CIIAIRMAN WOLFE: But if it does have to 5
he rccched, you have reservationr; is that what you're 6
sq4ng?
4 7
MR. EDGAR: Yes, sir. Isnd I think they are 8
real ones. I would point to the Midland position for 9
j that authority.
10 l t CIIAIRMAN WOLFE: Let n.e take that p: int c 1
11 step further, then; you have, if we do reach that 12 quest. ion, and then you have your reservations. Let 13 me put the came question to you with regard to
- m. .
g4 intervenors' counsel.
Do you have any reservations with their 16 be.ing the ones to solely review cnd inspect the Reed 17 Report -- and I am speaking of Mr. Farris and Mr. Woodard..
i 10 MR. EDGAR: If you ask the question in isolation, j 19 I the Enswer is no. But all things considerd, we l 20 '
do not feel they are endtled. We are assuming that we I are reaching the question.
22 Secondly, even if there were disdbsure to
)
(. 23 counsel, we do not believe that you can square disclosure i M to counsal for the entire Reed Report with the record in U this case or the controlling authority.
l l
i l
~- +
.- ], . f ;
742/ i >
}
I- s david 6 I
!- CHAIPlG.N UOLPE: You r. ave even reservEtions l ,
i t [
r -
- " there?
,i 1
3 MR. EDGAR: I don 't bt lieve tht t it ic i ;
t
{ 4: '
4 I I f warrt.nted.
I t >
5 CIIAIPJGJT WOLFE: We are going beyond whether j l
> l I
6 or not it is warranted; we want to know whether you I l 7 have any bottom recervations abott intervencrs' I i
i E counrel reviewing the Reed Report.
9 l MR. EDGAR: You are athing rim thic quastion in i f
i i 1
10 isols. tion; it goes beyond the quertion of timelinccc, .
l 4 ,
il l relevance, and necccsity. :
I' 12 ! CIIAIRMAN WOLTE : Yos. i l ,
12 l MR. EDGAR: At that point, no.
f-1 l 1 it, CIIAIPRAN WOLFE: All right. I notice wo 15 are going beyond your limitations, your tima limitations,
' f I i i le ! houcoever, we have mtvbc ene or nore cuest:.cns, En . !
} l l l 17 1 your tme w:.11 rescin open for you for rebuttal. , !
18 Let the board throw thic out for your l 1
1, .
19 comment, Mr. Edgar.
l 20 Ascuming that the third report, the cus=sry 21 report is completed by you, eithar at the board'c I
22 . direction at at your own request to proceed to cor.iplete !
t I
( ;;.3
)
it supposing the board were to direct that under the } ,
i 1 Zl, ,
- p. coper protective - agreemtnt and protective order i i
j l
25 inte venors' councel'vonld b2 cllot7ed by the board to l.
.t I
- I e -,
ki I
7425 david 7 1 review both the report, the summary report and the 2 Reed Report; now, obviously, if the intervenors' 3 counsel agreed that the sunmary report was a fair and 4 reasonable summarization of the Reed Report, that ends 5 our controversy here.
G Or again -- and I am cpeaking out loud here, 7 thinking out loud -- if the -- if they agree that 8 .
the Reed Report is of no relevancy whatsoever, then 9 once again wc have no controversy, no problem.
10 However, using or assuming that is our I first step of procedure, the second step of procedure j
would be, for example, if the -- if there was this g
agreement by intervenors' counsel that the summary report 3
s did not reasonably and fairly reflect the contents and/or :
14 ;
substance of the Reed Report; if we were to i direct as part of the order that intervenors' counsel and General Electric Counsel should proceed to consult and that efforts would be made to agree on some .
1 16
. modification to the wording of the summary report l 1
be made, and/or direct that in the event that there is some disagreement about the wording or nodification of ,
l l the wording of the cummary report, that an effert be 22 made in the alternative for intervenors' counsel and !)
t 23 .
GE counsel to acree on a sanitized version of the l
24 l Reed Report. i;
- =
And by that I mean that c copy of the Reed l ti I!
I
.I '
n i 7426 i :-
1 david 8- ;, Report would be - 'if it were not relevant at all to the
{, r.atterc at hand, woul.5 he bicnhed out. If the betra
, .l .
ij were to so order, the.t world he r /:cy, the second step. !.
(~ c I; I 6 .
O "
elld 5 1 c,
w 7o 8- t
.e '
i 10 l :
i
.e i .
. t ;
t
.h !
i 97 s~ l' l
( l; u 1 i
i r
- s. a. e I
h(
h.
4 i ,
.a .& .
4 4rav i 4
f-w 1 .
)
21 -il !
l t'
t
' ,. ,'tD j k
t
- e. '
[*E t
W. q I
$i 25 0 1 l
'f, 1
l -- .]
I~ .I i
v _ . . - + -
w- g r , , ..e- , - , , .a ,
,,y -
~-
. ._ ___E1
- 6 crl 7427 1 ! The third step, perhaps, would be that the --
I 2 ; cither the ultimate agreed-upon summary or the excisions I
3 ,
from the Reed Report would be furnishe5 to cll counsel, 4 and tc Messrs. Minor anc Hubbard cnd Bridenhaugh under a ,
/
s i
r
' i 5 !
protective agreement and order.
That would, say, be the third step. I 6 I i
i 7 The fourth step-would be a copy of the Reed i
8 Report would be lodged with the Board itself and upon . I i
I 9 reviev of the Reed Report, if the Board vere to find that l
l 10 i there were safety items not alluded to in the existing l l !t 11 contentions, we might pose Bocrd questions relating to these l' safety items , j 12 13 l The fifth stop would be with the hearing to .,
I 14 resume in, camera with the Intervenors using the summary i 1
or the excisions from the -- from or to -- the Reed Report I 15 1G for cross-examination upon their contentions, and perhaps !
l 1 17 also to proceed upon Board questions. I i
gg That is the end of the procedure.
jg Would you give your comment on whether this 20 is agreeable, and if so -- and if not, why not?
, MR. EDGAR: Well, the answer is parts of it ;
~1 i
. l 22 are agreeable. Parts of it are not. It is hard to separate ]
the whole. GE has no reluctance to make the Reed Report
( 23 available to the Board, should the Board find that there are !
24 Board questions emanating from thtt review. That is the ,
25 J
f 1
i
.l l
ar2' '
.7428 I.
I
- .wey it should bO. 50 ve havc no fundamental disagrccraent
. n,.
0 thera. I g.
, , fp Liksuisc, SE has ne problem ir giving ths !
ctatus report, as I hcVe describea it, to Intervanors' 1 l r
i fr 3 s
i counsel. GE belioves that, given the circunstances and i
- s l
' l 1
6 this record, c.nd particularlv civen the Diablo Canyon
- ^
., j cace, that is entirely proper for counsel to receive that
/ '5 ;
1 o
. so-called status report, and for the Botrd to determine '
whether or not there ecs a fcithful substantive extraction a !
l 1 l cf that material. 4
! I 10 .l e i ~I In our view tn.at :.s cone as co =cn ;.ue.;clal
. 1 g
i
, 1 a practica. There is no due procecs 'nroblem associated i t
i, ;
12
! with that. There is no real eppearance prehlem because :
}
t
- it is dona regularly, -
i 14 L
..-r- Diablo Canyon is a case in point that I would ,
ql
?C .>
draw to the Chairman's attentio:
I
'i I
- Tow, as for the middle portions of that :
] {
10 1
proposition, i.e., those timt deal with giving the Reed f
{
19 Report to the Intervenors' counsel, and then negotiating 20 about those points on the question of faithfulness, I .
-a ra t believe that if the Board were to c:: amine the Sttff'c position, that you would find that there 10 not a measura$Ee 22 e i . difference between those two.
.n
-- i, I l We think that that is going beyond what.is M l
- j. necessary, given the facts and cirm.:mstances of the case, j 3 .t j
i l.
.i
ar3 7429 ,
1 It crcates a cumbersome procedure and, indeed,a time-2 consuming one.
l 3 i Us think that the most straightforward thing I
('
4 to do would be to give the Reed Report, make it available I
5 to the Board, and provide the so-called summary status 6 report.
7 I do not think that it is necessary to go beyond 4
8 that and create an additional set of procedures designed l 9 to contest the faithfulness of the extraction.
10 We think the Board is both qualified and 11 , authorized to do that extraction. We have no problem with 12 the Bcard's independence, with the: Board's good faith in i
13 making that review, and we would abide by the Board'e 14 decision in that regard. !
15 (Board conferring.)
1G CHAIRMAN WOLTE: Thank you. i 17 You will have your 20 minutes intact for rebuttal, 10 Mr. Edgar, in case you need it.
19 I wish other parties, when they present oral 20 argument, will comment on the last series of questions, 21 this.last question put to Mr. Edgar, asking for comments i
n 22 on this possible proposed method of procedure.
( 23 Ue will now proceed to hear from Mr. Gallo, !
24 for Applicants, 25 fl i
l 1 V
1 l
! i
._ _ 2_; ; _ _
7 . _ . , _
liL I
,v 4
'are } 7430 l
).
- i i
OPE hMUMI'i*'. Or JOSEPE C47tLLo e ON '
1
_f f i.
,.-.J,.
>t t " O...,m.
r c.r.,a .m. ... a
.,ce. i.
2 : +
i t I i s', .
(
Mr. GhLLO: Mr . Cht.irmrn and ric r.bers of the i .
f -- g, ! Board: {- j ,
t.-
l r, 4 -
o As r preliminary tr.atter, if the Board hr.s anv j -
e, quest!ons vith respect to the details of I'r. Conrad's ,
s s
affidavit, which was attached to Applicantc' brief in ,
i ,
S supoort
- of the GE :aotion to qu sh the subpoena, it. Conrad i t
i 1 eq is artilable right L: my left.
- p a
~
s t
I will not repeat ccp:crt crgutents presented
! E
. . by Mr. Edgcr with resp 20t to tim spplicability of the :
. . i
,:4
, i Clinten case and the applicthilite - of the Lion case as it i
! t 4 .; applics to IntervEnors' request for suhpcent. I s
(
A
\. '
. ,' , I would just conment in part, Mr. Chairman,
, i
. one natter har. puzzled ec throughout the. litigation of the l,
.a ,
l
' Reed Report.
,, It wcs emphasizes, in nv r.ind at least, with
! '- \
t
'.' respact to cha cuesti.onc posed by the Poard to Mr. Edgar.
.: ; t
!! That n.atter concerr.s the nettre of the subpoens, ! '
18 t
.i I Whose cubcocna
. is it?
.t c.
It in clear the subpoer.a vac icsued by the Doard, I
.:. 3 e but on whose behalf? The Intervenorc nay the subpoena 21 ,
h p ,'l VCS iEF.Ued On th9 LiCC nSi.E C EoCrd'E OWL "
T' otion , CC VCil I l
l t
- ac at their urgin , '
L
,. . .n.u, .}I
\
i
' I,r&fer VOu tO Dac '3 D 1 ED6 19 Of ChCir briCf.
~ 24 . .
I 99 i.
6n the Other. hand, the Bor.rd 's ruling cn P
l, l .
% i
...1 l '
I' li !
t=
s.. -
. . . . _ , ..._ ._. _ +
,2:-
o.
ar5 7431 l 1 October 17, at Tr. 5728 and 29, seems to indicate that it '
~
2 was the Socrd's intent to issue the subpoenn on behalf 3 L of ths Intervonors, !
/' 4 The sebpoena itself shows both the Board and j!
i 5 the' Interveners as the beneficicry of the subpoena. It is [,
i 6 important that this matter be cleared up because the li 7 application of the law varies depending on whose rubpoena il 8 it is. ;,
i-9 In my view, one point rhould be clear: The I i
10 subpoena should not be issued on behalf of both the Board )
1 11 and the Intervenor. !l 12 The Intervenors' interest is different frem the j ,
i i
13 interect of the Board. The Intervenors' interest is to !'
("
14 advance as a party-advocate certa:.n contentions with the l
i; t
j 15 view cf defeating the issuance of the construction permit 16 for the Blcch FOX Station. ;
17 The Board, en the other hand, has a broad ,
il I
is responsibility to cssure a complete record so that its j l
19 decision in this case, whatever it may be, protects the 20 public health and safety.
21 CW'IR'Ud4 WOLTE :
. Une this covered in your brief, 1
1 22 Mr. Gallo?~
l I
( 23 MR. GALLO: I want to nake the point that the i, i
24 two interects are not coentensive and they should not be 25 confused. The Board should not use the Intervenors as-its ! !
l.'
"t-4 9
l I
i I
ar6 g 743:1 _
I foil to dischargo its responsibili. ties in this Ocse. ,
I ,
2 ! CIiAIPS.E 110LFE: My cuestion was, was this ,
- +
t 1 .
2' covered in vour brief?
~
l ,
{ I- f1R. GALLO: My answer is no, Mr. Chairman.
5 CIIAIRMAN h*CLFE: Thank you.
s e i
G MR. GALLO: I believe the fcilure to identify j l
7 properly in the subpoena just exactly whether it is the i 8 Board's subpoena or the Intervenors' subpoena is errant. ;
C If the subpcena is considered the Socsd's cubpoenn, the 10 :nctter is settled. !
l .
i i fi Fr. Edgar today, and it his nc=ornndum in support j 6
- 12. j of the motion to quach, indicated thct they cre hilling to I
I 15 give the Reed Report to the Docrd. 'The Board will have i
e i4 the Reed Reporte and it can dischtrge its broader 1 i i
fii j responsibility of determining whether'or not there are j l
is iscucs which on its own initictivc and its own metion it i
l 4
1 y
17[i should inject in the Black Pon safety hearings. f I'
,5 l1I .If, on the other hcn4, the subpoena is to ba . .
. { .
le ! styled as a subpoena to be issuec en behalf of the l 2a Intervenors, it should be quashed base 6 on the a.rguments ; l
_e t .
advanced by Mr. Edg. ar in the ", ion case and the Clinton ecse. 1 4 i 2p, ;. The Clinton casa estchlishec s. balanc'ing test
( r, 9 for lato discovery requests, and is reinforced by the Zion
('
-s
}
24 q case, which has indicceed -- indicates a por se conclusi.on ;
25 . ' thct a late request for d.iscovery is unreasonable. ,
i 4
6 4
) i I
al w , .,ey- , y,.,y + --e-- q.- p. 9 gy
- *'- ...-A. . .w.ese.e.*.. . % m y.e ,m.w . ,
7433 !
r
.ar I hs I indiccted, Mr. Edgcr has thoroughly r
2 discuczed this matter, and I won": repeat it, execpt to
, l 3 make two observations:
4 Dowhere, first of all, do the Intervenors
[ ,
5 attenpt to meet the tests of the Clinten case. In my 6 judgment, theyside-step completely the question of timeliness, l 7 and simply seize upon the characturi::ation of 27 cafety-B related items, and infer relevanco, and then spend the l ,
9 bulk of their argunent indicating and trumpeting general 10 health, and safety concerns and pu'elic resy.onsibilities. l 11 In my judg~ent, Mr. Cht.ir: tan, it is clear from l
t 12 their brief that the Intervenore r,ro r.dopting the role of a :
1!
13 private att.orney general, conducting a general inquiry into j c
b' 14 the Reed Report;. .
15 It is true that they sr.y that their only interest t
16 is in cross-examining on the contentione; but in my judgment, 17 the ucssege comes through loud an(. clear that thoy plan 10 to assume the role of a private attorney general. ,
19 The private attorney general role by an intervenor !
20 was specifically rejected by the Appeal Board in a series 21 .of cases on standing, culminating with the Pebble Springs j 22 case.
That line of precedent bars such a role in this
( 23 24 case, l.
I 25 More importantly, Mr. Chcirman --
s l
l i
I y 9'-***"1'9u'- - ' -.i----
S' W 4 9-tr-y
A. ,p 4. a , er w- m :s s. 4 w .
- , . - - . - - - -.- - . - - - - ~ ~ - ~ - -
-'g-1 i
ar8- 7434 l
- i. .;
t 1 CHAIN:1M; WOIEE: Uns the.t isats.c raised in your r l
Ed brief, Mr. Gallo? MEs that crpment daveloped in your I
- bra..er?.
t 1
y 4d MR. GJGLO: It was not. 4 s.
5 CHAIR $di WOIPT;: Thanh you. !
6 Mn. GJCLO : More importantly, Mr. Chairman, L
b 7 the,Intervenors advunced their public intere.Tt role an' '
i s l concerns as reasonc for issuing ti.e subpoann. ;
5 That basia in misplaced. The Intervences' '
rcnh to the iscucnce of the subpotna depends on phether er 1
10 '
11 not they meet the test of Clinton, not on scma public 12 interest role.
t ty; The public irterest roic advocated by the
{
y j Intervenorc in this case is reprocented by the Board. As I ,
1 1.e I
ctated before, the Board needc the Reed ne.nort and.riE has P
is ,
r.
offered to make it availchle.
1
- o. . :
A cccend conmient I Uould like to mthe, tir .
gg Chairrm2, concerns -- I i i i
gg CHAIRMAN WOIEE: Hold ca juct t uoment. ;
po M R . G7J.1 0 : Ycs, sir. ,
I a.
<. i l CH.URMAN WO!EE: Are yon saying that if at any l
- z. ,
on time a Board iscres a subpocns, that if the icsuance of the .
I a , subpoena is upon.n Board's own mation cnd namely without
- w4 m the request being mcde by a pcrty, tlwt the docunents !
3 produced pursuant to the cubpoana ought to b: re.:viewe6 !
j s t ;
i 1
.4 ,
h5
,._.w.-... ~ - . - . - . . _ - - -- _J i
m' '
s.
, I ar9 7435 i
I colely and only by the Board?
i-2 i MR. G7sLLO : Not compicuely, Mr. Chairman. That l
3 procaiure go2s like this:
l '
I I 4 ~n the first instance , the Board r& eives ths e 5 i document, and I am talking about the proprietary document !
+ l.
6 as opposed to a document that is publicly available. i 4
l 7 In the first instance, the Board should review !
8 the document itself M caucra. If it determines that'there 9 are pcrtinent matters that it must raise in order to 10 properly discharge its duties with respect to a particular 11 Ideencing case, then that material, whether it be the whole 12 report er the portions which it believes to be significnnt, 13 that rnaterial is then furnished the parties; but only at that l,
%. I 14 time. 1 15 It is then furnished the parties for use in the
! \
'J 10 case c.nd for its complete litigation. ,
1 i
17 The important distinct:.on here, Mr. Chairman, is ;
I i
~
in that it is improper in the first instance to give it to all 1
1 19 of the parties so that there can be a collegial review at !I 20 that point in time.
21 Chat is my position.
e6 22 ,
I
(-
23 ;,
4 25 i
)
I i l-o
^
-).
}, 7436 davidl1 And there are two ste?c: firrt, if the tape 7 2.I boards m&,es o. determination thed in the discht.rge of d t
's q
its rerponsibilities this natorial must be in$ected
(^ 4 into the proceeding, then the parties get it. Thic {
i s- .
3 5 stemn from the fact that the neef for the proprietary l 6
s 6 document stems'not from some advocacy positbn of one i 7 l of the parties, but what the board itself perceives te l
B 1 be a possible need on its own beaalf to discharge r 1
\
9 . it: responsibiliticc. t i
I 1
10 The second comment .~. fould like to maker Mr. Chaifl-man, concernc the necessity of tnis information for )
'1
- 12. i decision mcking. i e
1
- 3 Intervenors Day that they need it for
(' l
- 4 ! crocs examination; now, the one GE witness, Dr. Gordon g; was c.shed uith recpect to in. Ha caid he had not read the l l i
l.
report and knew nothing about its contents. If Mr. Farris l 1Cl [l is given the need Ecport, how can he advance his
- , b; '
- ?
- g cross examination with a four year old document that j
. j.
1D i the witnecs hac never seIn?
f 20 Eic evidence,.his testimony was not m.. i based on the report. I don't sea how it can be f s i n concluded that the Reed Report is needei as a necessity
( %
for decision makine.
- L- .l lI . - CHAIPJEU WOLPE : I have alvavs found lawyerc ;
. ..~ [' ; u I
3.L to be pretty facile in poting crose cramination cuestions, j i
1
]
( 4 h
l! ' I i
. _ _ _ . - _ ~ . . . , . _ - . - _ . .
7/.37 1 david 2 1 howcVer, Mr. Gallo.
2 Isn ' t that your cr.paricnce? )
3 ,
Kn GALLO: I uculd agree, Mr. Chairman, I
(- 4 that lawyers generally are f acile in that direction, but 5
we are talking with that kind of point, in my judgment, 6 the qpe of fishing expedition, a fishing expedition uhich would have been appropriata if the discovery 7
g request was proper 2y and timely made, g , If it is not timely made, then a more stror.g i'
test comes into play; the usual allouance that a lawyer 10 may have to conduct fishing expciations -- if I 9;
i, can uce that phrase -- and cross examination, must be 12 , . ,
i I 1kmited under the circumstances of this case, 13
(.
L especially where the late request results in an l 14 l .
imposing of substantial burden,a substantial financia.1 5
burden on my client, Public Service of Oklahoma. l 16 i Before I move on to that point, I would like 1_1 to make one statement, Mr. Chairman, as an aside. The I
Chairman asked me twice whether or not the points I was ,
t making in oral argument were cited in my brief. I 20 ,
responded no. ;
21 .
t The points that I am responding te were raised for the first time in the intervenors' brief, m
which as the board.kncws, was filed cimaltaneousiv*
24 t with my brief, and therefore I had no chance to 25 j anticipate those arguments at that time.
I i t
1
7435 t
1 david 3 The board indicated in its order in denying 2
the intervenors request for leave to file response to 3
the applicant's brief that the intenenors uculd be able
(
s 4
I to comment at the oral argument with respect to any 5
comments they might have en the applicant's brief.
G I assume the same applies with respect to the 7
intervenors' brief.
8 I would now like to move --
9 CHAIR'&M WOLTE: What is your understanding 10 l
' outside of however the intervenors view the issuance I
11 l i of the motion or the issuance of the subpoona of your 12 participation in the hearing and your review of the 1 13 transcript? Upon what basis or upon whose behalf was
(~
14 the subnena issued, Mr. Gallo?
1 ~V MR. GALLO: It was my impression from having personally participated in the argument in the October 17 hearings that the subpoena was being issued at the 10 behest of intervenors' request, and that it essentially I9 was a subpoena issued for the interest of permitting 20 Mr. Parris to use in the course of his cross 2
, examination with respect to the GE witnesses presented 1
22 by applicant.
} That was my understanding, Mr. Chairman.
- 23 CEAIRMAN WOLFE: All right, Mr. Gallo.
24 MR. GALLO: Mr. Shon, do you have any ,j EU questions?
n a . . . . . 2. u . ; c . m, n.n .
l' 7439 t 1 i david 4 MR. SHON: Yes. '
2
,- ' Mr. Gallo,I sort of rould like to have you 3 '
when you get to addressing the five step procedure.that
/. g i k the board outlined --
5 MR. GALLO: I have noted that at the end of i
6 my --
7 i MR. SHON: -- to take account of the fact that B
if you see, cs you apparently do e some cmbiguity in
[
9 l the direction of the this subpocha, does non that l to ' '
l five step procedure in some wsy natch with cractly this 11 '
supposed ambiguity and make it much more clear as to 12 1 exactly what we have in mind? l l
(
t 13 MR. GALLO: I will answer that question now, 14 i Mr. Shon, rather than later.
l 15 In myjudgment, it doer not, cnd I am going iG l now from memory of the five stept:. But it seems to 1 i
57 rae that the confusion stems in the way in my mind j 18 that it fails to meet or clear up the ambiguity in .
10~
the subpoena, is that it begins with an interaction 20 l between General Electric Company counsel and counsel for l 21 the intervenors.
U!
Now, if the subpoena is to be styled as an '
(' 23 !
.; intervenors' subpoena, that perhaps might be a correct i
2/' i first stcp. .
25 If, on the other hand, it is to be styled as a ;
i i
7440 devid5 1 i
. board subpoena, then that is in ny judgment not ,
t 2 l a comet first sucp. The need Ropert cheuld be given 3 to the board for its in camera review. And thct ought
, 4 [ to be the end of it, t
j i 5 j Now, let 's move to -- in my judgment, if we style it as an intervenors' subpoena, I believe that 6
l I '
7 as pointed out by Mr. Edgar, that the board's five step e i procedure is too cumberacme and too time consuming.
I t
9 ! In my judgment, I don't believe that a 10 l consultation with intervenars' counsel and Mr. Edgar as i
- j i counsel for Ge will result i.n any timely resolution of r
12 j the matter.
In the first instance the General Electric 13 l
(' g Company will prepare a summary. I think that the likelihood that Mr. FSrris won't find scrething wrong with that ID gg summary, given good faith on both sides, is very, very l
low, very clim, 37 l
That then triggers a need for negotiation.
10 l gg That negotiation may not be successful. Ultimately, _j it will be decided by the board Meanwhile, the applicant 20 and his construction permit hearing in standing by waiting 21
.i f r this to be completed.
22 Thr4t is the hind of untevard delay that I (m 23 l
g don't think should be tolerated. A much better g approach and a much better procedure is enunciated in i
---....(-
- )
i t
t i
7 4 /.1 '
e i l-n i che Diablo Ucryon ecos which is simply he -- and p + *
- t'~ af
~
- david 6 h h
- hers is vners I u:ul6 disagraa with the whola cur ==:y _f 1
r ;
'.' Cpproe.ch itself -- is I think if it is the boir?'s ords: '
8 i'
b thtt General Electric Company shecid give the propar e::tracted pages from the Reed Report to the interuenors, I
_I would not support the surenary procacc.
7 I think than is c procccc that is frcught ;
i ,
, r ,
, ; with so many infirmitics that it will act be succassful.
l
- -h c
If the cetual pnges -- if the bo:.rd " ~ ' c ctnention I ,
- e. ,
<' ('
f, to '.:he cttachments to the GE mouicn to gutch thct tre -
o i ,,
II i included in the attachmants, there is an inde:: c:. tho i I
. o Iteed Report.
y"- '
4 Juch bv looking at the inden vou can identify j
.s ! <
9 che' areas that cro obvicusly not reicvant.
l Chere are ;
E '
other'creas that may be relevant, but there iu one t
.p-aren uhtt comes to r;ini, for c::crple, that ic _.:
' ' .- onc section entitled, " Fuel."
N I know of no contention in our proceedinc that !,
t S
decis with fuel integrity or anything uhat deals eith I !
d, ,
fuel. That seems to me that that~is obviously an L1 areas that is irrelevant. i r '
i U i Ih would sern to me to b e pocsible to c: tract f
M ll; the actual pages; the actual pages shoul6 then be 5
M f tirnished to interveners : coensel. If there, is a question U -
as to 'he t adequacy of that extraction, cc I think there
, r I.
- s. ,
.--.-....7- ;
david 7 1 7442 E will be, again, assuming good faf.th en both sides, the 3 proper place to resolve thct is-for the board to B
4 take the full Reed Report and compare the extraction,
('
5 either approve the extraction or modify it as 6 appropriate. -
i; 7 Now, why should the board do that?
8 In my judgment, the board should do that 9 ; because theproprietary interesta discussed by Mr. Edgar 10 on behalf of GE deserves that kind of treatment.
11 i The contents of the R2ed Report should not l
12 i be released in my judgment to intervenors' counsel }
I i 13 and MHB unless there is a need to know. !
14 Thac in the essence of the Diablo Canyon case. ,.
15 I . think the roadmap for the resolution of this 16 problem, assuming the board ignores cl1 of the arguments j 17 on quashing the motion is set forth in the Diablo Canyon l 18 case, and I would urge the board to follow that patF 19 in lieu of the five steps it enunciated here todcy. l end 7 20 'l 1
l 21 22 .
.i1
(, 23 , l 24
~
2S .i a
I t
- 8 arl !
. J 7443] t
_ ,, a. , . .: , nc. w
.:. s __
u, t.,.... .i ..
+,
or. e.
.t.c- e t 4 'm: .
o-.. - $ ..".-
a .
e , .'..,p w:: , . . ,.....o..
7i r. ..s., a .; g . v.
. ,4 _( t c. 4. x. ,.3.6r g .. _.: ..t . s.,. , c. ... . 3 m. 9.. , , ,. _ ...
. , m. . s.
- y.
- o. ..
v H
[, .a....p r.. ,,
t ~. . %. . c N.h'.{~. .S e ". _* *- .'*"...'.e.,; tm '.' "',..'<c.'4....s.
s -_ .
- 3.c
. . . a,.e,.:
.r_
g r ._ . u a +., _ w , ._ ..
in,:e. . t# c; ;.
. . . m. . .
.n. ... ., .... , . ,-. . . as u r
(
y tt
}
to balance tiratdisirs and relevance ar.6 necescity for ,'
decicionmaking, and that balance needs co aloc consider the I G <
t impact of delay and prefuf. ice to the Applicant. 1 7 l T.c Mr. Conrnd's nffi6 crit demer.stratos, on the t
h, precent schadule , ana abec nt thz icsunnco of construction e n w
n, i
i permit or en M.-2 by March 1, 1M 9, & icy for d.y de-ity >
! C' i I; i
.-.1 .. _a co m__4icn ce 4.s. _ ,.. ..a. cu,~ .. . .
-e ., 4 sa-. . ,.~y ,iy ._
. .e .a.- e.s
_ m . .. . .3 ..,
,. o
- h. occ.e e t cost pontity of G30, * ' O p r dci . .
.. n; Mr. Chai = cn, that is thout $10 million >er i-
.- i
,. sa !
< l l
( ! month. These are reci dollars thtt the ratepayers of 4 ei ,i :; ,
Chinhe.mn vill have to pr.y if tlwy are incurred. Ohcae '
?S[I
. costs cannot be ic.cnored. They have not been controverted 4 16 ,
1 i by cav. o. c.rty in this proceedin., . Thev nuct he c.,iver. !
i/ e. .
subete.ntici weicht b'; the Eocrd. I II The public interact
- i 1 c. .
- a cmtnde t.nne consideration 19 - i 1
j At that point, Mr. Chairarn, I would like to i I
20 ,. ,
I surm.rize and I feel that baced or my argunant ne c.reuented, . i
.a: t. , ,
I a I don't need to cure.arice much more tr.an to c:p this:
w p! -
. I 't Ii.
that if it is the Board subpoena, the Board ought to accept 4.,'! y 4 i GE'S Of f GT End f75!' on With it, J.ni W(i Can C~uit thi3 EryET'.3r.t ne .,
429 .
1
.y now. 4 25 , ' , 1-i i
l .
i I
?
h
. - - - -. - - . ,-.. .n,. --.n.- - ,,
ar2 7444 1 If it is un Interv2nors subpoena, then the 2 Diablo -- then -- strike thct .
3 If it is an Inttrccncrs' Lubpcena, the rubpoenE
( 4 should be quashed beccuse of the failure to meet the i 5 requirementr of the Clinten ecse and the Zion case. ;
6 If the Board, in any evsnt, believes that comehow i
7 the legal standards in these cases have been met on the facts l 8 of the Black Fo:t case, then the precedure outlined in the ,
9 Diablo Canyon care should be followed by the Board in lieu 10 of the five points enuncict&d here todcy. ,
i l
11 t . would be glad to ansver any questions the j, 1 l
12 Board might want to ash. ;j Il l
' Board conferring.) ;
13
(- 34 CHAIRMAR UOLFZ: Thtnk you, Mr. Gallo. j' i
15 fir. Dambly, will you present oral argunent, or i i,
1G UI* DUViE7 l
i MR. DICIBLY: I will, !!r. Chairman.
17 I l'
gg CHAIrJUxN WOLFE: All right, t
i ORAL ARGUMENT OF DENUIF DAMELY, ON l!
gg 4
20 BEllALF OF TIIS NRC STAFF.
MR, DAMBLY: I would first like to emphasize f 21 i that the Staff's only interest in addressing General 22 Ele tric's motion to quash the subpoena is to see thct !,
Is 23 the proprietary information is properly handled. Mc l 24 :
i 25 view urselves as not having any stthe in the Peed Report 4 i
1
y .. ,
t- I
- ar3 .;
I 7445'
(,
. .-..n.
2 I
L !!0 I will not cc into the facts ac n: now the
- p i
'[ cubpoeta go: no wherc it ic. That hts been etnte& cod i
! I A
( 4 (I V, .
rictated, j t
s Eh Furthermore, the Staff perceives there is no !
S ren1 issue as to whether er not the Reed Report or whatever I l cunmaries ue are talking about nov -- I cn confused as to <
i d# l u I E :, what summarios we 2.re tc1hing rtbout -- waether they are
i-i e y[1 croaricec:v...
i e,
h i iC "; The Reed Report in itccif and the -- I guer s uhat 1
i
).
I 11 Mr. Edgar h:.c called the s'atus c rcport on the LO-callei j
'l
, i 11 sur.m::ry of ~ 7 iscuca -- havt. been reviewed by the 130 r nc -- l
- f hn or by the Staff and have been found to.be proprictary, and 14 j there was a letter attnched to the GE brief which so indicatesp
,. i g[ the "uly 10th, 1E70 letter fror. Dr. Roger .th: tron, Director- '
s a
y ?
of the Division of Systen:c Safety, in the Office cf IM clear Ee:,ctor Reculc': ion , tc Mr . She:. ,me' of 7T, .
- nf o Fcrthermore e the Stuff believse eht: the iscue i i
i +
s.e i that should be addrcsced today is not whether the Bocrd i
.* f b=
- I'll
}r shoul6 hcvc issued the subpoena on October 18the hut i f
4 I l
6, i 1 g- rather, given thtt the Board 6id iacue that rubpoena, should l l
u F i l I' it. now be qucshed or nodified, and va believe that the ,I
.~. i I ti l
(' re m . P raicvant regulationr on the subject ought to bc found in !
% l .
i i
<.4 I
e 10 CFR 2 i 70 (f) , which etates that under the circumstancas [.
- i. <. ;
.s e
- s the Board can either ruarn o.4 niodify the suspoene if it is !
h
- }
i g
d.
s I
I ar4 l 744:
I 1 unreasonab:.e c r ' requirer evidence not rc ~ evant to any l
2 l mr.tter in iscue, or the Locrd can conditicn denial of a
2 GE's action tc quach on just and rearonthle tcrms, I 4 Ac stated. in our brief, the Staff feels that 5 the nubpoena is not unreasonable, per se. We do not fortsee 6 that there vill be any great delay due to issuance of this 7 subpoena or -- for several reasons: ;
B First, we don't bElieve that there is a whole lot 9 of scarch time involved. GE has indicated that they have Il 10 the need Report. They already have the 27 safety issues ;I 11 status report summary, and it doet not appear that it should i
12 take an undue amount of time for them to prepare the further 13 summery that Mr. Edgar referred to thic morning. ,
i i
14 Purthermore, if the Board's cubpoena is limited i 15 to relevant and necessary information to contentions,to the 10 remaining contentions in this hearing. we say that there 17 vould be no broadening of the scope and no potential for ,
15 delay in that regard; or at least not undue delay.
19 And lastly, the Staff, since ve have reviewed l 20 the 27 safety issues previously and found that there was !'
1-l nothing new in there, we do not believe that there would 21 j !,.
22 be any delay caused by the release of the 27 safety issue l
I 23 . docunent. ,,
l I 24 Since we don't see that that is going to add l t l 25 anything or subtract anything fro the hearing , when we ll
'l t
t
, g-----
ar5 744' balance this delay against the other factors, it indicates 2
- to us thct the Ecard's subpoena . was not unretsonable, and we j hiso feel that the Recd Report may well contain informntion b 4 that is relevant to corae of the remnining contentions in 5
this proceeding.
G Therefore, the Staff would urge that GE's ,
t 7 motion to quash be denied. [
8 However, the Stuff clso feels that the 9 cutpoena is overbroad in scope and does not address GE's 10 proprietcry interest in the report. -
II Therefore, the Sttff wculd further urge that ;
il the denial of GE'c motion be conditioned upon adoption (N 13 of proper proprictary safeguards. !
14 The appropriate procednres, we believe, for 15 the production of proprietary infcrmction in licensing i
f I C-procedures are ac Mr. Gallo pointed out, cet forth in l
.<I l
- 7 the Appeal Ecard's decision of Ditblo Car. yon. Under ths l 18 Diabic Canyon prococding, our position is that the Board f
19 ! should release only that informction contained in the l 1
'l 20 l Reed Report. release that to Intervenors and all counsel
, f ,
i 21 only the information in the Reed Report which is relevant E2 and necessary to the litigation of Intervenors'eremaining (x. contentions in this hatring.
23 I.
7.4 Secondly, in order to enable the Intervenors 25 to assess whct inforantion in the Reed Report is relevant i
arG 7/,45 1 and necessary for the proper litigation of itc contentions, 2 the Board shculd order that GE prcvide a copy cf its 3 27 c:atus report and 27 safety issues -- surmtry plus. as
/ 4 I understand it nou, this further summary that GE has 5 indicated they are willing to prepare to counsel for all of 6 the parties under a proper protective order.
7 We would view the use et this point of the 8 protective ordar at that point in the procedure that we cre 9 advocating to be to allou all cour.sel to present argument I
10 i to the Board ac to what of the 27 safety incues or chher 11 safety issues which may be in thir additional cumnary that 12 GE would prepare, which of thos'. issues wcre relevant and i 1.3 neccesary for litigation of further contentions in thic i
\ t 14 proceeding.
15 And I guess at this point I would indicate 1G thct the Board 's precedure , as I understand it, woule' .ily 1
17 allow General Electric and the Intervenor to be enga _
l
- g l in any discussion of what was relevant and necessary for 19 the remaining contentions.
20 The Staff feelc' that it and the Applicant chould
! \
21 have an opportunity 'o participate in such hearing or argument. ,
- 2 u
The Board should further order that GE provide to the Board a copy of the entire Reed Report, the 27 safety
(_ 23 u4 issues, and the additional summary. j j
i i Upon receipt of that matericl, the Board itcclf 2o-I
ar7 7449 should accure that the su~ mary -- I guess we would be
- c. talking about now a third sursary -- covers til of ths f
safety issues c.ddressed in the report which iro rGitted e
/ i : remaining contentions in th:..s proce2c..incl .
4 i r
l i
If it does not, the Board should further order i I i
l that GE further provido portions of the Reed 72nort which
/ addrest raatters that are in contention which have not been p.,
included in the General Electric curacrv. .
o.
e ,
- v. bm ._.1. s4 tm; s
- . e. . o. s.
. t_. 4..
. o &.v. n.
e
- 2 . ,- , , . -
.m~
. c, i
, . .- t, i ,
10 l specifically 6o it in our cr:.c:c , rut ? cu . ~r- *ne i
\'
1, 8
i Chcirman ' c co:msnts previously, thtt the Clw.r:ra w .I c ra: c i
l
, o .r. tu' e a= ~ ". "m.%. . . .
c' ." " ~. . .a.'m c _ v.. r._a t.;. ~
_v a. o m- ~_ r_ _= . . n.. _ r_-
u . v. :. '
i t f
13 i
was e::prestly suggected by the 7.pyani Boar 6 in the 6 i
(,, l ;
14 i l Diablo Canyon proceeding, and the Appeals Board indicated '
j
& q o 6.,
. 7. ?. (."q ~c.;
. -p g..
.L ae -a p y. n bv.'.,. Le...n - ..<-wA h.,
. g. .%,
er >
c,. .,,w....,., ., .. c1c r
.,v.. 4 .l.. .1 c l 8 +3 i
{tt '
i 6
couldn't agret that the curan y wcc properly dcro and >
\
e
, coyc .. c d a .'.). o C_ t.h e. .*o-'t ep s
.i. *. z, s.> .c- ^ i
-.3..wn. & .4 e, . . ,6 u.g. n. e- s..,..4.{.._,.~e.
- ~.
m, t. .
. m ..- ,
i iC I thC EoOrd itCG1f tO rGviCl? thC doOun30t cL3 OOT':0 to E. i i
l dGCiSion. t 19 j I-20
.I This is uhtt the Staff vould suggaet ths Lor.rd i i
co in this cace.
21 i,
- Uc would suggact that i
- ' P.: --
e e de. fecl that 22 - <
i {
(_ 23 i
GE ic entitled to protection te -- total protection to thore !,
i n>
4.
- portions of the report which are not releva.nt or nececcory to any of the contentione rc
- 'rining :.n t. .a.c proceec...ng, Enc to i 25 t 1
i i f
I
't I
)
I' f
e ar8 7450 1 that extent, they have proprietary information, and there 2 is no need in this proceeding to get that information, and 3 they should not be recaired to divulge that information. i r e8 4 ,
i 5
I 1 l l 6 i l
7 '
f 8
I 9 ;
\
10 ,
l i .
t l 13l, '
1 k.
14 j 15 i 16 I 17 10 ,,
i 19 20 l
l 21 ,.
t 23
- 24 .
25
- .- ..- ,a 2,
. . -x- = = . . = =
f ,
t 7451' l
1 tape 9 Following that, the board shouldhear in camera
~
e.
l arguments on wnich portions of the surnarier and j 3 i the Reed Report would be relevant and necessary for 4 1 k proper litigation of the red.ning contentione in
- 5 thic hearing.
6 And should then based on thau argument make 7
a rul_%.; as to whether it is 27 -- and I understtnd there 8
are additional safety issues that are not included in the 9 Race Report. So uhatever 27 but are mentioned in the i
number of issues we are talking aboute the board should i 8
I
to make a ruling as to which of thocs do pertain as ,
I '
l 9
i vital and remaining iacucc. +
l
] !
i U- The board chould then order production of
{ M i
the relevant portione of the curuary and the underlying ;
15 report, and I understand from the General Electric M
f brief that verbatin, extraction is not impossible.
- i 17 They raid it was more difficult than i
M summarization, but we do believe that intervenors and l G ' staff and other parties to this proceeding have a 20 i
right to see the underlying documentation in order that
,! 1 C. i ve can assess the adequacy of tha stumcrication as $
1 U Vall. f 23 The board should then order production of I{: I E4 relevant and necessary portion of the sunmary and of l
25 i the report to the intervenors and other parties for use il ,
1 i I i :
7452 david 2 1 in the litigation of the renaining contentions under 2 appropdate protective order and subject to 3 these further caveats.
i
( 4 As stated in Diably Canyon, intervenors' 5 consultants would only have access to those portions of -
6 those items which they are in fact qualified to review.
7 THe staff does not intend to interpose any objection 8 to the qualifications of intervenors' conzultants. ,
9 However, under Diablo Canyon, wo believe that 10 GE or the applicant would have a right to contest the 1; intervenors' consults' qualifications, to review 12 and comment on those issues, and that if that is in 13 fact raised, that tho intervenors bears the burden k"
14 of establishing the qualification of his experts, as 15 is always the case.
16 ! Furthermore, I was not sure fron. Mr. Edgar's ,
37 remarks whether or not GE would intend to do this, but !
'l1 18 under the Diablo Canyon decision, the applicant or ;
l gg GE would have the right if they wished to contest the !
20 trustworthiness or reliability of intervenors' 21 consultants or counsel to abide by a protective order.
I 22 The burden would, however, be on the moving l
( 23 party in that case,which would bc GE,to chts unreliability 24 r untrustworthiness. That in according to the Diablo ,
i 25 Canyon decision, and we would certainly agree with that;
- , ** - . g i
1,
7453 1
l david 3 ! + ying to prove you are roliable is like trying to
,. 7.
prove you are sane. The converse in easier. The staff 3
, has nc reason to doubt the trustiworthiness or the re-4 l 1"
liability or ability of Intervenor counsel or consultants 5 l to aride by the appropriat.e protective order.
6 1
I should probably mention that under the precedent of 7 -
Diablo Canyon and other decicions, the board is free 5
! to use many means, and we have no doubt 'that the 9
board can come up with appropriate protective orders )
1G l
! for the proper use of this information. l 11 ! ,
l There are many things uhat the board could 12 l g l include potentially; intervenors' counsel or i 13 l l
'- t consultants could not have their own personal copy. They !
14 l ccid only review it at certain times and places and i 15 !
notunhe notes, whatever, depending upon the agreements )
10 ;
l which would be reached between the parties, and if j i
17 !
not et the board's insistence, whatever the board 18 thought was proper to protect the information.
19 Finally, the staff beleives that the board I 20 l
should review the entire Reed Report itself to satisfy j 21 itself that there are no serious environmental, safety 22
(~ or common defense of security issues contained in the 1
I s
23 Reed Report which are relevant to any of the contentions 24
_ in this hearing.
l 25 l If any such items are found, the board I i i
4 t, i b
i i
7454,.
s.
dr.vid4 b should then addrccc those to the parties. ;
e i.
s In Ocn:1urion, Fr. Chairman, the staff I i
t 6
';- urves the bocrd to 6en.r GE's motion to quash.- but *
- . I J ,
to conditf on 6enici on the procedures required by the l
- - i Dichlo Ocnycn decision, an5 if I ncy be permitted te U .
Ob' comment briefly on a couple of remarks that Mr. Edgar l i
h 7 !i made relating to the Zion cace; we do believe the l' r i
? cp?ropriate law ir hon la ce follows.
3 In Leucr:1nine whether to cuns:1 n sucpcana
, I i
t F
i the bocrd r;hould propose a pr.rticularly h ean. burden on a pa.rson soeking relief to show a cubetantial 4; saowing on the motion to quash as constracted to cone ;
b
(-
, i: nore limited form of prot'ection.
,t o,
s L g To the entent thz.t GE ic me. king a motion --
l i
g end ar I understood it, was making a motion -- to quash ; j this subpoenn in its entirety and not to jurt limit ;
i
- , .it te matters that are in contentio'n End shov 6
mj cppropriate protcotivs scfeguarde; we believe that l
the burden is properly uo.on GE to show wh.v a more i te _
1 1 h limited protection, which we are urging, rather 20 '
c i g[ than disclocure of the whole report, wny the motion
( ~;.
c-i should be eranted to the whole report.
l, c, >
Thct is where the burden properly lies. We i
.e. - "} .$
p '
r.f- L have no further comment. '
q t,
y 0"AIWWI WOLFE: We he understood staff's l L. .
6.
~.._
7455 1
david 5 positior., but -- and weknow r. hat ycu rely on the 2
Diablo Canyen cace for your positicn that we should modify the procedures to be followed in the instant 4
case; however, we would appreciate and divorce from 5
what the procedures were in Diablo Canyon. We would 6
appreciate receiving your comments about the five step 7
procedure thtt we have proposed to the parties for 8
comment.
9 MR. DE.M3LY: I believe, as I indicated 10 earlier, I guces the basic divergence between our 11 i position and the board's five point -- five step 1 ~'
process which I am not sure that I have doun, is that 13 first I would agree with Mr. Gallo that a lot of 1
l time could be vasted in trying to reach agreements t
3 "-
between the parties as to what is or isn't relevant and necessary, et cetera.
I Wo think that the whole process would be IO expedited by -- after the summaries are made available I9 having arguments heard by the board.
20 I would agree with Mr. Gallo that that is 21 where it is going to end up anyway in the proceeding. I
/
22 s
do not believe that the parties would be in agreement 23 on what is relevant and necessary for further litigation 24 to proceed.
m 25 Purthermore, I think as I previously stated,
.~ . . .. . . . . - - --
I i
7456
~ david 6 l' the ' staff does not feel that it is necessary to ,
E provide to interverorc' councel or consultants the l
1 4-t cntire Reed Roport, to have them make argunants as to
(~~ [
s -
[. which portions -- and I believe that was in the board's O five step plan.
6 Is that correct?
7 We do bc.lieve that General Electric is 6 entitled to protecticn on those portions of the Reed l ,
1 S Report uhich have to bearing whatsoever on any matters i:,
10 left in contention in this proceeding, and to that f
11 i extent, the board's plan would disclose proprietary u .
information needicssly in the staff's view.
o, D t And sinc e we do believe the board can 14 } .prope.rly review the report nnd assure that all portions
't 15h of it that do pertt.in to relevant contains are disclosed, d ,
a iC ! o we feel that thic is a better procedtre than to needlessly l s
i i 1 !
17 i again disclose therroprietary information that has f
no hearing on there proceedings.
10 j I
19 MR. SHON: Mr. Dambly, I am a little bit 20 concerned about a couple of the terms that have occurred El in'your discourse: one is a "prper cummary." iTnat is
( E2 a proper summary of a given document; that is, what l
I E!j- summary is correct may well differ depending on who is 24 1 doing the summarizing and well may differ in the view, 25 l- particular of adversary parnies in a case like this, i
l
7457 1
david 7 For that reason, were we as a board to be l the only ones who had original access to the Reed Report e 0
(
4 l itself and were we to allow the adversaries then to crgue as to whether summaries produced to them without their being able to see the original or proper summaries, would we not in some sense hamstring the 7
adversary nature of the process?
l That is, how could the intervenors, for 9 !,
i cxample, really advance the notion that some portion was 10 l not a proper summary if they did not know what the 11 l
original said?
12 l r MR. DTJELY: The first thing I would like to I
13 state is that I don't recall using the term " proper 14 summary," but if I did -- that certainly assumes 15 somothing which I was net trying to assume. I believe 1G that what I stated was the summary given by GE of the 17 27 safety issues plus which other safety related 10 matters contained in the Reed Report would be available 19 to all counsel for the purpose of arguing uhat is 20 relevant and necessary,which of those issues are relevant 21 and necessary to further contentions in this hearing;
(
22 not to argue whether it is a good summary or not.
23 We would put the burden on the board to 24
- review the 140, the 160 pages of the Reed Report and 25 make a determination on its own that all of the safety 1
-o . .. . - - .
'l l
! i
! 7450 I
~
[
3 dcvid8 -
{
- nattere relcting t0 contentione ir. this hearing are t 1
4 I
- e. q h addressed in the r::niary, not on how adequately they
( '
\ U are addrcrsedr but that they are covered, no that the
- ll intervenors and the rest of the pnrties do have knouledge
'i )
~
1 y , cf what the isstes are that are raised in thtt report 6 ! d that may bear on tl.is proceeding. , 1 I 7 I! Follocing an argt= tent by counsel as to which e i!! y .
- cf these them identified icrucs vere relevant and l
- L. ,
'. necesscq, the underlying statenent, the Reed Report !, ,
1 c, l Ii material itself vot16 he given for those issues that .\ I s
<e I L f
[ were found. to be relevant nd necessary to litigation
. J j of the remaining items thnt rould be given to the parties l b 15 l l l under the protective crder so that they would get the V .;
i; background or the hace dcts in the Reed Report itself. e L
- 4. wE Il ne d 9 l!
. . 1:
e i i. l'
\? b la M 1 l
.. j id I, '
. l l
Ie 20 ; I bY
- h. ,
e f $f 4.$, f L I q . nm I M** .! I
's s
a i l 5
- i 4*g_/ ;)
4
- . , . . . . . _ . - _ . . _ . _ . , _ _ ,.. ...m, , , .._, _ . _._
I fl0 arl 7459 1 e t "R. SET '
, *he point that you vould have 1
2 the grti.es adt ess is not necessarily 'the adequacy of 1
; the sunc.ary, but on the relevance of the material sumnarized:
I 4 it that right? t-
~
MR . D!d4ELY : That is correct. We believe that i i 6 the Board can address or: is in the first instance it is i
)
7 appropriate for the Board to review the adequacy of the l l l g surrery . im believa that is what the Appeals Board 9 stated ir. Dicbio Canyon. 10 CHAIPE N WOLFE: All right. Mr. Parris. 77 g MR. PTRRIS: Thnnk you, Mr. Chairnan, j i ORC ARGJMENT CF JOSEPH FARRIS, ON l
?- 13 EEHTJE OF THE INTERVI:KORS.
14 !
' ' " 9 "U 9 " """"
15 g and lau with you. Our version of the law is set up in our brici adequatily. I thank Mr. Maury Efros for that. I think the law can be distilled down. . 18 j g I think the parties will agree since we have i g essentially used the same cases in our briefs and arguments ! to the Board that it all comes down to a balancing test ; that this Board must perform. That in whether the j 22 i I... timeliness, relevancy and ths. necessity of the information g cought will furt.her the interect of the public and assist thic Boar 6 in reachina a sound decision on the merits of the 25 l
e-ar2 7460 1 1
; lawsuit. l I
I en.phasize on ths merits" because I urge 3 this Ecard not to seine on any technical niceties of the f, law, to avoid gettin? to those merits. That is what I want 5 to emphasize in my oral presentation,J.he facts. 6 I think the facts will determine the outcome of l 7 the scales on the balancing test. l E: First of all, the policy of the law is set forth g in ths Fre260m of Information Act, tae Sunshins Act, tnd
;g the NRC rules t".cmselves, which is to disclose. Non-
;; disclocure in all of those acts, in particular the NRC rules, is the exception to therule, rather than the policy.
i 12 la,, I would like to start off, first of all, with [. g the facts as to what is the Reed Report that we are tclking l about, so , g Lach in 1975, Frederich Shon referred to the 1_/ Read Report as a final report that occupied five feet on a shelf. g Back in October, when we had these hearings, we were advised by GE's counsel, and the Applicants' counsel, that we were talking about 1000 pages of report and then, lo g and behold, we get GE's brief cnd they say ne, wait a minute, ( that's not right, it is a 1Gl-page document, 140 pages of d,a l basic source materia 2 and 21 pages of summary, Yet in that same brief, in the affidavit of Dr.
ar3 7461 1 Sherwood, it is indicated tht.t the Reed Report consists of 2 146 pages, plus two appendices, consisting of an aggregate 3 of 80 pages. That totals 246 pages, or rather 226 pages. 4 And now finally GE wants to give us a summarv 5 of what appears to be a curnary already, and they want us 6 to be satisfied with that. Now, maybe as legal counsel and not as a 7 6 technical nuclear expsrt engineer or physicist, that would g be all I could cope with; but I remind the Board that we have three ex-GE engineers who, between them, have 54 10 years of experience with the.t company in the field of 39 nuclear engineering. 12 I submit that it is an insult to say that those g
. s g engineers wouldn't be able to digest the original source 15 16 this summary of the summary, and let us do what we can with that.
18 So, in essence, gentlemen, it is not the credibility or reliability of !U'E that ought to be questioned at this point, or Intervenors' counsel, but the General Electric Company itself, as we watch this report t dwindle in size. 23 Second of all, I would like to emp51asize something that we didn't address in our brief. Both 25
ar4 7462 I hpplicant cnd General Electric have indicated that tha Board 's nubpos.na is directly contrary to the order Of June l 3 29, 1978, when the Board denied Intervenors' notion to add
'I an additional contention.
O That additional contention being the Reed Report 6 itccif. 7 I submit that the order of June 29, 1978 is not 6 inconcistent with the Board's subpoene, for two reasons: 9 One, the purpose of the subpoena is totelly 10 different from the purpose cf the additional contentions. I f
?1 The additional contention would have been a broad, incredibly IE broad contention, because it concerns at least 27 safety
( 13 items, some of which may have'been subject to the Board's 14 ) motion for summary di.sposition; some of which may have been 15 saticfactorily resolved, even in our opinion, at this 16 l' point. 17 Second of all, the notion or the subpoena now 10 is directed specifically to the relation of the Reed Report 19 to our remaining contentions and Board questions. 20 The Board has forewarned un and told us that 21 { that is all we are gcing to be able to uce it for. We have 22 agreed that in what we want to use it for. ( 23 As a matter of fact, when we asked for the Reed 24 Report, it was for that specific narrow purpose. 25 Second cf all, the Board's order is not
._ . - _ _ ._ ,__ . ._ ~ , _ - . . - - . .. _ .-
ar65 7463
~
1 inconcistent with its subpoenc, now because the Atomic
- 2 Safety & *icensing Board has the power on their own motion, 3 sua sponte, to rai:se significant safety issues.
4 I would remind the Board that at the time they g decided to order production, they indicated that they were 6 e neerned about the number of limited appearances who had requested that the need Report be produced for these 7 pr ceedings, 6 g I think the first thing to get to in this g balancing test is relevance. Itow GE, in its own brief, indicated on page 14 that at a meeting with the Staff and later meetings with the particular House subcommittee, I quote:
"As a result of this meeting, the Staff apprised G" that it was satisfied with the status of the issues as either having been resolved or having been identified as an integral part of current NRC programs to resolve generic issues."
Well, gentlemen of the Board, I submit that if it involves generic issues, and generic issues are certainly an issue at this proceeding, I cite you to the so-called TAP-1 evidence before this Board, that ipso facto makes the 22 Reed Report relevant to these proceedings. 23 Now, not all portions of the Reed Report, certainly , because ourcontentions have been narrowed somewhat, the Board 25
3 7464 ; ar6 1 I has the same motion for summary disposition, and in lieu of l
' ccrtain contentions has asked certcin Board questions.
(- l 3 Ua intend to limit our use of the need Report
! 4 to responding to those particular questions.
5j The Eoard -- I might add as a side note that 6 the Board indicated that if other material in the Reed 7 Report suggested a compelling reason we~should add B additional contentions then, and it would be incumbent E , upon the Intervonors to bring that out. That would be
- 10 something that we can't possibly determine until we see i
11 the report. 1E Second of all, Mr. Edgar pointed out in brief r 13 and here today What the purpose of the Reed Report was, i 14 As the Staff pointed out, and we pointed out, the purpose i
' of the report does not govern whether or not it is relevant. I 15 16 It is the content of the report.
1 17 Throughout these hearings we have seen GD ) 1 15 characterize many safety issues as reliability or availability , 19 issues. 20 Well, that is semantics, and that is a euphemism. 21 It is what the report says and not what it was designed for 22 that makes it important. 23 And, finally, on the issue of relevance, let 24 ne offer the following syllogism: 25 Number one, Black Fox Station will utilize a GE-
.. . _ . . :: -~
- n : :-
ar7 7465 1 manufactored BUR.
- 2 Two, the Reed Renort is a critical review cf 5 CE's BWR design, and specifically it addresses itself to 4 nuclear systems, fuel, electrical control and instrumentation, 5 mechanical systems and equipment, processes, materialc 6 and chemistry, production, procurement and construction, 7 quality control systems, overview, management information 8 systems, regulatory consideration, scope and standardization.
9 I submit, gentlemen, that at least seven of 10 those general categories are in issue in these proceedings. 11 Therefore, the Reed Report is relevant to these proceedings. 12 Again, Mr. Chairman, Intervenors realize and ( 13 accept the burden of demonstrating that each question they 's 14 may ask in crosc-examinatien that is derived from the Reed 15 Report will be subject to test of relevance. 16 If we icil to meet that burden on each question, 17 then we havsn't delayed the proceedings, because we haven't 18 csked any questions or haven't been able to pursue a line 19 of inquiry in response. On the other hand, if we do meet that burden, then 20 2f a fortiori, any inquiry i.s going to be in the public 22 interest because it is relevant and will be helpful to this
' 23 Board in making a sound decision.
fil 24 GE and the Applicant have indicated that they think it is unfair at this point that they should have to 25 y =
ar8 1 7466 1 I .d;l produce the Rnd Report. He think it is unfair that
,, 'I they sheridn't have to produce it.
_ a GE knevs the contents. They have indicated thct
~
( 4, the presELt Status cf the cafety-related items has changed. Therefore there should be no p:vdudice to GE 5 <
,a in addressing these issues now and advising the Board of
/
the present status in relation to what the past status was. g The Staff, Applicant and Intervenor will all l g b have acesss to the rsport at the same time. No c. arty in
. i il 10 j this proceeding is going to have an advantage ever the j l
I , , 1.: -llP, other as far as prepar ttion tine in looking c.t the Reed i H
,, jl Report.
"c O 1.,a. Third; I think GE raised the doctrine of repose,
\
since the Board 's order cf June 29, 1978 denied the introduc-i 15 p tion of the need Report, they should be entitled to rely on that. i I 16
;7 i
I submit we have ocne anything except be in repose
, on this issue.
18 > l 19 In our motion, response to motion for summary 20 judgment, for direct recortification and for further 21 supplementation of the SER, and in Mr. Hubbard's testimony, we have made reference to the GE report, and we hsve been 22 I clamoring for it ever since June 29, 1978. 23 24 There is no one here who can claim surprise at the fact that Intervenors wanted to see that report and 25 0
cr9 7467 intended to keep it an issue as long as we were able. 2 GE's on ern, its sole concern, is that its competitive position will be impaired somehow as a ( t 4 result of production of this report. I cubmit, members of the Board, that if it is relevant to this Board's inquiry, then it is incumbent upon GE to show how its competitive position will be harmed, and why. GE indicates it has no remedy at law pursuant -- B 10 if MEL or Intervenor's counsel should reveal the contents. 11 The proposed protective agreement to be included expressly indicates that it is enforceable in courts of equity and, of course, this Bosrd has sanctions against the attorneys ( - 13 and against the witnesses, should they fail to comply with 14 that protective order. 15 CRAIRMAN WOLFE: There is'no question but that 1G you agrec, is there not, Mr. Farris, that the Reed Report 17 is proprietary and its confidentiality should be preserved? 18 MR. FARRIS: Mr. Chairman, we don't take issue with 19 the f act that it has been classified proprietary, and we 20 will so treat it as long as it is classified proprietary. 21 We don't mean to imply or suggest that at some~ point after 22 l s production of the document, we would not ask this Board and the NRC to reconsider that classification; but until we 24 have that, we will abide by the. NRC's determination that it 25
, . . . ~ . . - . . . ~ . . - .
.p I
ar10 ! 7 4 6 f'. I 1 is proprietary an6 treat it as such.
- 2. GE has a perceived risk here in letting MHB f
3 see this document. They indicate apparently they see no perceived risk in seeing Intervenors' counsel -- in 2, f 3 letting Intervenors' counsel see the document. 6 Messrs. Hubbard, Bridenbaugh and Minor left 7 GE in 1976 because they felt GE was not being candid with 5 the public about their boiling water reactors. GE has not c indicated that any of those gentlemen took any trade secrets 30 with them, or have unfairly used information or used any 1; information thr.t was in the public domain since their L gi departure. g3 They did not leave at GE'c insistence, but their l \ 4 own voluntary idea, and their own sense of ethics about 15 i what GE was telling the publ.ic, ana what they knew as i engineers w s g ing n behind the closed doors of GE. 16h g Again, I submit that it is not MHB's credibility
,g and reliability that is in issue here, but it is General g Electric's credibility and reliability because of their g constant changing of testimony about what we are t.tiking g about, when we talk about the Reed Report.
p ; It boils down to this, Mr. Chairman, Mr. Shon, and Dr. purdom.
,, We ask that you allow us to see the Reed Report, cA because.until we see that report, that shadowy incorporeal mysterious document, it is going to haunt these proceedings I
l
=-...:=_
aril 7469 1 and every proceedir.g from new on before the NRC. 2 We ask that you let it be exposed to the harsh 3 light of cross-examination to see it for what it is. 4 If it turns out to be an innocuous hobgoblin, 5 then we can put the conrreversy behind us. But if it turns 6 out like Dracula, not to be able to stand the light of 7 day, then we ought to put the wooden stake in its heart 8 and deny the construction permit for Black Fox Station, g The question, as ve see it, that the Board 10 must decide, is simply this: Does a sound decision as to 33 whether or not Elack Fox Station should be granted a g construction permit and therefore whether there is 13 recs na e assu an e a e u s en a safeW g will not be endangered outweigh the vague, ill-defined and g unproven -- and I emphasize unproven -- concerns of General
,G s
Electric that its competitive position will be harmed. I feel, Mr. Chairman, that that question answers itself. Now to address myself to the Board's suggestions, I don't find it acceptable for one reason, and one reason only: The Board has at its disposal Dr. purdom and Mr. Shon, who are-engineers, scientists. The Staff has at its disposal engineers ar.d scientists, and a lot more experience than Intervenors' counsel do. The same goes for the Applicant
, , , - - -, ,,,,,_ ;... _. ,7 _
f
>arl2 ~
7470
? i
' +
, t j i and Gtneral Electric. !
~ 2 ! If it is put upon me te decide whether or not a l
!, i 3 summary is an adeguate characterisation or adequate summary :
, i.
/
4 cf the I< ecd Roport itself, I am afraid i r.ay do a disservice 3 to my client. _. . .. . i S The reason we retained Messrs. Hubbard, Minor, 7 Bridenbaugh is to give us that technical expertise and to 6 help us focus on these issues, and to help the Board make a g sound decision. We need their input in order for me to 10 do the best job I can for my client, and they need to see ; I
;; f the report in order to give ma that input se that I can ,!
l l' 2 cross-examine the witnesscs and we can determine whether or f I 13 not General Electric's BWR design is sufficient so this 4 l' r i 34 Board can decide that the public health and safety viil be I is l! protected when Dlack For station ,is -operating. . . I I would be happy to answc any , questions. 16 }, i
! (Doard conferring.) .
17 I 18 IIn. SIIO;I: Ilr.."arris, the. board's proposal, as it was outlined, did not. involve.y.our consultantslooking 20 in the first vicu at the need neport. 1:owever, it involved -- and .I uould like to 21 22 point this out to you -- nany . safe . guards for your , 23 interests in that you and.your.odter. associates,. your i attorneys would be allowed.to.vieu the document itself and 24 ' u you would also have quite an . elaborate . summary to show to 25 1 t
-. .. . - , . ~ . . - -
7471 davidl I your consultants, and it would then provide for further. 2 I prehearing conferences or further actions before this ( l board, if you felt that something either in the summaries or in the material that you as a very competent and now technologically oriented attorney felt needed further 6 clarification. 7 And indeed it would be just those matters that 8 you would before this board plead as being relevant and 9 requiring additional material. I And at that time, if necessary, the board 11 could specifically direct the particular pages or sections 12 of the report be made available to you. (' - 13 Do you understand that? 14 MR. FARRIS: Yes, sir, I do, and I appreciate -- I. 15 I and I like the compliment that I am now technologically 16 oriented. If I appeared as such, it is because I had
?
17 either Greg Minor, Dick Hubbard or Dale Bridenbaugh l i 18 sitting at my right side to tell me what the witnesses' i 19 answers meant when they. answered them. l 20 You may have noticed a blank expression on my 2I face from time to time. nd 11 23 l 24 ,l
" Ace Federal Reporters, Inc, 25 l,
i E. . ,
. !,! t
_I i 7472 1 tape 12 , That reflected the state of my nind in 21 devid 1 ; response to those cuestica but with those gentlemen i a e i l there, tl' e bla:J: c:mression would on occasior. , 0 ( A^ l clear up, and I could proceed with at her question and e
~
probe dcaper. 6 I fear the sa:ne thing will happen when I see a summe n of what now already appears to be a
- s. .
summary, the 161 pages. l ci
' ! CFJsIRIGE WOLFE: That 10 -- the Reed M
; Report, as I understand, it the actual report. Y0u are o
11 1 not referring to the Reed Report now as a sun: mary. i l so" i g MR. FARRIS: McIl -- ( r
<=l
'~
CEhIFJI.TJ! p WOL?E: As I understand it fror.
,e
" :! GE's assertions, the backup naterial was merely technical
.e"' b input without recomerdations, without eve.luation, and le .
l that the Reed Roport itGelf ic the actual report rather j than a sumaari:: anion. N ' Now, whether you agree with that or not, that l *a is what GE has represented. l 20
, is that correct, Mr. Farris?
21 { MR. FARRIS: YEs, cir. GE has represented 22 to me that that is all thae is available new that the
.* U so-called subtash reports of 713 pages or so -- that M has been doctroyed.
25 l, Our. e::perte are perfectly capable of looking l at those subtash report a.nd making their own i
.a .
- . ,.: .:. . ..l.f . .
^ ' ^
.. - L- '-~~
I i l 7473 1 david 2 conclucions which may be very different from the 2 conclusions that GL made in what is now characteri::ed as 3 the' Reed Report, which is a compilation and by definition ( 4 is a summary, to some excent, of those subtask reports. 5 CHAIRMAU WOLFE: You have no reason to 6 disbelieve CE when they say they have destroyed the 7 ; 713 page backup material, do you? 8 MR, FAPJJS : No, cir. I believe the lessons i 9 . of Watergate have been learned well here. 10 (Laughter.) 11 (Applauce.) l 12 l CHAIR?Wi WOLFE: There will be no 13 t I-demonstrations, no appinuse in the courtroom. 14 -
)
. All right, Mr. Farris? ;
15 l MR. FARRIS: As I say, sir, I have no l 16 reason to disbelieve that it hasnt in fact been 17 destroyed and is no longer available. The point is what 1 18 ! we have left is by definition a summary of what we l 19 propose to get, and". that will be a summary of that 20 I sununary. And I am e.fraid that I couldn't do justice to 22 my clients by looking at that document without the x 23 benefit of some expert input.
'4 CHAIEMAN WOLFE: To implement what Mr. Shon 25 has pointed out to you, in our five step procedure that l
. . . . - . - . . . . . - . . . - . - . . . . . - . . . . . -. . . ~ . . . . - . . . . . . .
6 7474 david 3 1 we have asked you for comment upon.
^
2 The board ultimately itself will review the 3 . Reed Report, and as you are well aware, I hope, during ( 4 the course of the hearing to date, the board itself has l t 5 stepped in, and although we don't call it cross examination, 6 we certainly ask our own questions of witnesses on 7 contentions. I 8 So I am just implementing -- or supplementing i I 9 what Mr. Shon has indicated to you, that the board is at {
.10 I all times -- will have reviewed the Reed Report, and if II there is something perhaps that the intervenors have not i
12 picked up through their own cross examination, .I would ! 13 trust that you would agree that this wouldn't escape the ! i 14 board's attention. 15 MR. FARRIS: Yes, sir. I don't mean -- and I 16 don't think I ever have questioned the integrity of this l 17 I board. { 18 Certainly some of the most probing questions l 19 that have been asked in this proceeding have come from the { 20 board. , i
? 21 My point is simply this: Mssrs . Hubbard, .Bridenbaugh t
22 and Minor worked for GE for a total of 54 years between s, 23 them. They are f amiliar with GE's language, GE's 2 nomenclature. AnFrJerat Resorters, ine. j 25 I think you would also have to agree that by l i - . . e +,. , . - , . .. . .- -- , . . . . . . , -.w- ,..__y,,
7475 I david 4 virtue of their being present, there have also been 2 some very probitive questions come as a result of their l 3 expertise. i i d And it is the complementing that we have of 3 the proceedings by having input from both parties, both 6
.from the board -- all of the parties, the board, staff, 7
applicant, and the intervenors. 8 They understand GE's language. They were working 9 at GE when the Reed report was prepared, and Mr. Hubbard l at least had some direct input into a portion of that 11 report. ! I Whether that input is reflected or not accurately, I3 only Mr. Hubbard can tell us. I# Have I made myself -- like I say, I am sure 15 the board would come up with some things that I didn't 0 know, but I think you would have to admit that it is i I7 quite possible that MHB would come up with some things l I0 that you didn't notice. 19 i CHAIRMAN WOLFE: Have you completed, Mr. Farris? . 20 MR. FARRIS: Yes, sir. 21
.But one other point I would like to add. With !.
t I 22
- reference to the scope of the subpoena itself, we asked ;
23 l originally for the Reed Report only in so far as it
' 24 related to our specific contentions and board Questions. The Ace Fecetal Reporters, Inc.
25 board was amenable to that suggestion. l l
I 7476 !
,l r , A J 4 1
Obviously, that is all that is relevant to e- , 2 these proceedings. The reason the subpoena was broadened 1 i 3 in scope was because GE came in and said, well, wait a , i 4 It is minute. We can't easily extract those portions. l I all interwoven, and we can't do it 6 That is why the board had to ask for the 7 As a matter of fact, Dr. Sherwood's entire report. 8 affidavit attached to the brief states, "As a result, i 9 verbatim excerpts from the report itself would not provide i 10 a clear, concise, comprehensive or useful view of the ! I 11 safety significance of the items discussed." j i 12 It is going to "They said it can't be done. , (-
~ 13 require too much judgment on their part."
14 Dr. Sherwood says they can' t do it. The , 15 scope of the subpoena is broadened because GE's own -- , i 16 i because of their own insistence that it could not -- the i i 17 portions relevant could not be extracted. , l 18 ; (Board conferring.) J CHAIRMAN WOLFE: Thank you, Mr. Farris. 20
. We will have a 10 minute recess. l 1
21 end 12 (Brief recess.) 1 i > 22 He will 13 CEAIRMAN WOLFE: We are now in order. i 1, i 23 now hear rebuttal by Mr. Edgar.
, 24 -
'- REBUTTAL ARGUMENT OF GEORGE EDGAR !
t Am-FMeraI Reporters Inc. 25 ON BEHALF OF GENERAL ELECTRIC COMPANY - i l l l l 1
y , ~ .- - . . . - ~ - . n .. - . - 7477 david 6 'IR . EDGAR: Mr. Chairman, if I might' respond to a number of points raised by the other parties today. 3 The first point I would like to address is the 4 question of the test proposed by Mr. Tarris in his 5 argument. 6 He described the test of consisting of a 7 balance of timeliness, relevance, necessity against B not delay, but whether the request vould further assist I the public interest or the board in its decision. 10 Now, not only is that not the test because it 11 ignores delay, but it is double accouting. It is 12 . . reuuncant. (
- s. 13 The board must first look at timeliness, 14 relevance, necessity, and necessity itself shows whether 15 or not it will assist the board in its decision.
16 Now, there is a further implication and 17 mischaracteri~ation in the test, and that' is sinply that 18 Mr. Farris dwells very heavily on his view.Lthat the 7eed 19 Report contains relevant information, and indeed if we 20 were operating on a clean slate, the liberal ctandards 21 of discovery might have some bearing and.indeed the
, general showing of relevance contemplated by 2.720 might 1,,
23 have some bearing. 24
^Are-Federst Reporters, Inc. o me, Can you represeM 25 g- w-, ~ .w-- , c,, , y.,
7478 david 7 that there is no possible relevance, that may have some bearing. 3 We are not operating on a clean slate. Those t.' 4 points totally miss the point. This is not a timely 5 request. Cion must be confronted. A request that is , 6 untimely is prima facie unreasonable. The staff gave a 7 quote. 8 I would call the board's attention to the quote . I 9 i at page 19 of the intervenors' brief, which emphasizas , , I to i the point from Zion that unless we address that , 11 threshold of timeliness, there is no burden on GE. ; I I now __ ( 13 CHAIRMAN WOLFE: I noticed that this has come i 14 out: the parties -- and I won't distinguish between ! 15 them -- rely on the Clinton case for or against certain l l' l
\
1 16 positions. 17 l But as I read -- and I will just read certain ' 18 I portions of the Clinton appeal board decision -- I am .! l 19 reading from page 33 of that decision. 50 I The appeal board stated, and I quote: Failure ! I 1 21 i of a party to take advantage of discovery can in no way l 22 preclude its. exercise of other rights it may possess. s 23 In this connection, we have previously noted, the parallel [ 24 ,
'ac .recer.1 Reporters, Inc. ? between our discovery rules and those contained in the j i
25 ' I federal rules of civil procedure. Commonwealth Edison l l r
\
7479
. david 3 Company (Cion Station Units One and Two), ALB-196, 7 AEC 457,
' 2 I l 460-61 1974)" - "The parties have_not called our attention !
i I 3 ' to any instance in which a court has declined to allow-t 4 a-subpoena for a document of a trial under rule 34 or 5 rule 45 (b) for the reason that the requesting party . 6 had not earlier sought the same document through 7 discovery." 8 Now, with that in mind, would you address yourself 9 to that portion? 10 MR. EDGAR: Yes, I will. And you must read 11 that case against its facts. That -- the case goes on 12 to develop a three part test: timeliness, relevance, I f' 13 , necessity. 14 If you have no showing on timeliness, you still j I 15 must consider the passage from Zion which says untimely ' 16 l requests are prima facie unreasonable. I I 17 ' I don't see that this case especially overrules 18 . Zion. ;' I i I 19 You must also look at two other facts in this j I 20 case from the timing standpoint. The appeal board I I< 21 !; assumed and found that the request was made at the
\
l 22
~'-
earliest practicable time. Here ue are so far from the ! ' i m .- I 23 earliest practicable time -- in fact, we couldn't be i I i1
-24
' m Federal Reporters, Inc. O *
-l '
I' 25 This was well known to the intervenors,. the 1
>l i
'l
_ . - _ . . - , _ _ . - _ . . _ . _ . _ . . . _ . _ . _ _ . , , ,J
..- . - . . . . ~ .
4 I 7400 david 9 question of the Reed Report at the time they filed the (~ l 2 . , intervention. 3 It seems to me that we cannot extract from ( 4 Clinton the proposition that the normal, liberal rules of l discovery have only relevance as to the foundation test 6 and apply it to this case. 7 There is more in Clinton, and that is the point ! 8 I an trying to take. i 9 CHI.iRM'!N WOLFE : There are three factors under , :
'1 10 Clinton that are to be considered. The appeal board l
11 didn't indicate which factor was to be given paramount , i , 12 I l consideration; isn't that true' b" 13 MR. EDGT.R: No, it didn't, and that is where . I - 14 I I read Zion, that there is heavy weight attached to that ,
,i 15 factor. If the appeal board had gone on and addressed i 16 I Zion -- granted, they said -- and I agree with you, !
l 17 Mr. Chairman -- they said solely for reasons of untineliness. 18 I,! you shouldn't deny it. j i 19 But one must have more, and one must have the j i 0 three f actors for the showing which of fsets the delay. It 21 is a very critical point to look at the delay and ll
There are 10 subtask force reports, which total l. t I l
7482 1 1 david 11 700 pages, which were input data upon which the Reed
.- 2 taskforce viewed -- or which they looked at in order to 3
*nd 13 write their final Reed Report.
A begin 14 Then there was the question of source data 5 going beyond the Reed Report, the subtask reports; a 6 lot of material was gathered in the nature of test papers, 7 et cetera. 8 ' That was never assembled or kept for. purposes 9 i of retention, and that does not exist. There was to our ; 10 ( knowledge -- the 5-1/2 foot shelf was a misstatement. 11 We think that the board should understand these facts, try 12 i to' -- it makes a very nice little twist on the f acts.
~
13
- Possibly it causes confusion, but those are op check 14 the facts that I think the board should look to to a 15 l decide the case. l I
16 i In terms of extraction, I think there is another !l i 17 t, ; mischaracterization in the record. When Ge made its 18 initial offer proposing to do an issue by issue summary l 19 report to paraphrase the Reed. Report, the emphasis there 20 was upon an effort to develop the best and most meaningful 21 form of substantive information. 22 A verbatim extraction of the Reed Report, as 23 Mr. Sherwood's affidavit indicates, is difficult; it is i 2A i _ ..recerei neponen. inc. not impossible. 25 , l. 4 i t _. , . , , . _ , . , , , _ , . , , , ..,.,,__,.,7,. _-_,,.e7_. . . . , ,.:
7403 1 davidl2 But at the time I think the more compelling e 2I reason was that it is not as meaningful as one might find 3 if the report consisted of what the Reed Report says, what 4 the safety significance is, and what the safety status 5 is. 6 There is better information for this board 7 and the intervenors in the former approach. 8 A final point which has cone up throughout the 9 argument: the question has been raised as to whether it 10 is improper or proper for the board to conduct a review of 11 the Reed Report or a summary for faithfulness of e:: traction : 12 j without intervenor input and review. 13 ) {- The suggestion or the implication from some l I 14 of the dialogue has been that this raises a due process 15 problem or it compromises the adversary process. Let 16 me submit that we do not agree that Diablo Canyon clearly 17 sanctions this result.- 18 Indeed, the staff in argument made the point l 19 and agreed with it, and we think that the portions of the 20 board's five part approach which contemplate' board review, 21 which contemplate providing a summary to the intervenors, 22 and which contemplate the board making a decision on the 23
- f aithf ulness of extraction are proper.
24 ; u-Federal Heporters, Inc. What we do not find ourselves in agreement with 25 l~ is those intermediate steps which are in the nature of !
, ~ v a
,,p ..gg ,-gy, . , 59f
I 7464 david 13 i negotiation.
/~ We think that that would be a very cumbersome 2
1 3 process. ;
~
4 How, although I ~am somewhat skeptical, Mr. Parris l l 5 is an able man. Given a summary, I would hope that he 6 could determine a question of relevance and argue it, but 7 as his oral argument indicated, he would have great 8 difficulty in reviewing any of that material in the 9 absence of his consultants. 10 How, I think that is a fundamental problem with 1 i 11 the intermediate portions of the five step approach. I Having said that, the final point that warrants j 12 l ( 13 some emphasis is one that has come up throughout the l 14 argument. ' 1 It seems that if we are dealing with a board l 15 i 16 subpoena, then we are not at odds; there is not issue. 37 If the board through exercise of its independent duty to [f l 18 inquire wishes to see the Reed Report, we will make it l l 19 available, j If then the board has board quest-ions stemming Il 20 from that review, then there is no reason why the board 21 If there is a due process : 22 couldn't advise the parties. i problem or appearance problem, it is a nascent one, because w 23 24 the board without having seen it, would not he in a position ,
"Au Fuserv Remners Inc.
25 to advise the parties as to what they wanted addresseC in the 6
, - + - - , , , 4 m -n-- ,. ,=-,+rs+ 1=
u-t i 7405 david 14 proceeding. i 2 If this is an intervenors' subpoena, which I ( believe the record indeed supports, then we must address - 4 foursquare relevant factors of timeliness, relevancy, and 5 necessity, and balance those versus the assurety of 6 delay. 7 I noticed in the staff's oral argument today 8 a very dramatic silence as to why they disagree with the I 9 applicant's detailed analysis of the impacts of delay. 10 He think if the question is a substantive one, if the 11 question is whether or not substantive information is to 12 be available, th'en likewise there shouldn't be.a problem;crour original offer would have made the substantive 14 information available upfront. 15 Now, unless ue find -- or unless this board 16 finds that there is a need f or the information for a proper decision based on its in camera review, there is 18 no need to reach the question of availability to the 19 intervenors. 20 This board can and will exercise its independent 21 and non-delegable responsibility to see that this plan is
*2 s.
safe and to see that the decision in this case nakes 23 sense, i 24 Ace-Federal Reporters, Inc.
' hank you,lir. Chairman.
25 l
.end 14 (Board conferring.) i L
a .
- :wm~ -
- a. . . n. - = . . < . ~ ~ _ _ -
7486 begin 15-I DR. PURDOMs Mr. Edgar, the procedure posed Aavidl5 2 by the board you indicated would be cumbersome in your 4 3
, view. Would you be satisfied that that would protect the t
4 proprietary interests of GE if the board did elect to l 1 5 that procedure? l l 6 I want to be sure of one thing in M3. EDGAR: 7 As I understand the procedure, it would that procedure. ! l contemplate furnishing the entire Reed Report to the 9 intervenors' counsel so that we could have arguments about whether a summary report was faithfully extracted. , i I 11 Is that correct? i 12 CHAIRMAN WOLFE: That's correct. , MR. EDGAR: Or it could be a verbatim 14 extraction? 15
- CHAIRMAN ,
l^ MR. EDG_' chooses.for the " summary 1' l report," it still ' '. s 01 the j i 18 I inter' rs' at , entire Reed g i 19 l Report. .g, 20' DR. PURDC 21 1 MR. EDGAR: I gue&_ , avnocen is, as I ! l ! 22 have expressed continually, the impact upon GE basically , 1. 2'" strikes three ways. {' i 24
' Ace Federal Reporters, Inc. Y-
- Y '
25 concerned about the policy question underlying critical I te l
I' 7407 david 16 I self-analysis. 2 The question of whether or not disclosure of 3 the entire report is required, given a tenuous showing of
\'
d timeliness, relevance, and necessity; if there were a 5 strong showing or a compelling showing, I suppose we would 6 have little to complain about, but in our view, if there 7 ever was a case for quashing a subpoena, this is it. 8 So, we believe that we are entitled to greater . 9 protection. He also believe -- and I have expressed a ! 10 concern today on rebuttal, that Mr. Farris has told you f 11 that he will have difficulty reading the Reed Report, and 12 he will have difficulty making arguments of relevance. 13 Now, what that leads to as a necessary inplication Id is' that this negotiation process, as it were, reaches 5 a very rapid end point. I 16 It says , well, unless we get the consultants in, I I I7 f then we can' t do this negotiation or argument. f IO CIIAIR'9.H FOLFE: No, the argument would be , I I9 before this board in camera in the nature ci prehearing '! 1 20 conference. 21 And it would only be counsel present at that 22
- conference.
v 23 MR. EDGAR: I am suggesting a practical i 24
-#ce Federal Reporters, Inc.
difficulty with this solution in that Mr. Parris has told ' 25 you that he will not be able to un3erstand it. , l 6
~ ^ ' ~' ~ - ~ ~ ~ ~
. . _ - m.. _ _..~
e 4 1 7400 l : david 17 ) CHAIRHAN UOLFO: The board will be there and 2 will make that determination.
-MR. EDGAR: Certainly the board would be, and 3 . ,
l the board could assist, no doubt. a 5 CHAIPliAN HOLFC: Yes.
' MR. EDGAR: Well, then that logic, Mr. Chairman, 6
suggests that because of the expertise that lies in the 7 8 board that the board in the first instance should do. the 9 faithfulness review. 10 CHAIRMAN WOLFE: Ue need the adversarial j 11 input from intervenors' counsel, and that's what we want. 12 That is whct we need. F 13 MR. SHOU: Mr. Edgar, I appreciate your L. ja concern for che intervenors in this particular matter. 15 (Laughter.) i 16 But I.think if it is true that Mr. Farris and i
)
37 his legal colleagues wculd have difficulty representing , I l their position, having ceen the Reed Report, because of 18 ll 19 its technical nature, then a fortiori,it is more true lj l i 20 that they would have dif ficulty presenting that side of i the argument, had they themselves never even seen it. ! 21 22 Is not tnat true? 23 MR. IDGAR: I C n't think that you need to 24 .aCCress one' point to get to the other point. What Mr. Farris ;
. asemi semnm. ine.
25 is telling you in the very first instance . s if he cannot I, 4 5 r,s- , + - e+.,r ,w ,w-e ww..co.,--s-e.,, esws
[ 7489 l Edavidl8 accept as furnishing the entire Reed Report to the board 2 and the board'doing the faithfulness review, then how can 3 he accept going into an in camera proceeding and ( 4 relying on the board for technical advice. 5 It seems to me that even though the board may 6 wish to have the input from the adversary system, it is 7 far from required, and in . light of the circumstances in 8 this case -- and I cite back to Diablo Canyon -- there i i' 9 is no reason why this board, given its expertise, cannot 10 read the Reed Report and make valid judgments as to 11 f aithfulness of extraction. 12 DR. PURDOM: Mr. Edgar, to get back.to my
/*
' 13 I was asking how you would original question to you:
14 view GE's proprietary interest as being protected, and i 15 f I don't believe that you indicated what your response to . i 16 that was. I
)
17 ; MR. EDGAR: Hell, let me try to clarify.the 18 point. Under the board's five part program which l 19 contemplates giving the Reed Report to the intervenors' I 20 attorneys , you have asked me earlier whether in isolation -- { l - 21 you know, without regard for the other legal tests that 22 I might precede the question -- whether I had a concern that I l 23 they might compromise _the need Report's proprietary 24 hr.omi n nonm, inc. nature. F 25 I do not have that concern. l' t
. we ,
g- w, -wvsMy-g -~wy4 np, - g ,,y,9 a, w. + - er + se < v + W +v p- = a em'-w<f
i l 1 7490 david 19 Now, as to the intervenors' consultants, there I is anotht_ level of concern which I have expressed with [ 3 relation to the Midland decision that I believe it is not l 4 a relevant test to consider whether or not the 1 5 intervenors' counsel -- intervenors' consultants will, l 6 in fact, or can demonstrably be proven to be ready to 7 violate the order. 8 The board can look to the realities in f ashioning ; i 9 a remedy. It is no secret of the relationship between 3.4 i '! 10 GE and MHB, and what we are asking is for the maximum 11 protection. He are asking for the board to consider all t end 15 of the relevant factors. , begin 16 I don't know whether I've answered your question, t 15 but I hope to develop that distinction. , 16 i CUAIRMAN WOLFE: He had informally instructed ; I 17 ' counsel that if they had any rebuttal directed to the l 18 i' oral argument of a party whose counsel had succeeded them i 19 that we would allow such rebuttal. 20 ' And I see that certainly Mr. Gallo anticipated 21 that in his initial presentation, and I guess Mr. Farris 9 has as well.
'~
73 However, the offer is still the_e. The 24
%ce-Federnt Reporters, Inc, understan ing is still there;if anyone wishes to offer i 25 fi any further rebuttal, they may.
l " a
- w f+'a,c's e= r v r-'en*=
s 7491 I david 20 Mr. Gallo? 2 Mr. Chairman , I think that the
- MR. GALLO:
3 I would only urge issue has been adequately argued.
\
4 on behalf of my client as timely a decision as possible. 5 CHAIR"J.N WOLFE: Mr. Farris? 6 I would only add this, Mr. Chairman; MR. .FARRIS: 7 there has been a lot of talk about delay, how much 8 money is involved in delay. 9 Mr. Chairman, if I could control the elements, 10 I would. have it rain every day of the year at the hole 11 where they are excavating and keep it full of water 12 from now on. (-x 13 But I will not use the legal process to delay i 14 these proceedings; I think the board in the four weeks we 15 have been in hearing now, that this firm has-been representing the case before the board, can attest to that. 17 If we get the Reed Report, we will use it i 16 for the purposes of addressing our contentions and nothing - 19 more.
"O CHAIRtW1 MOLFE: Mr. Dambly?
21 We have no further comments, Mr. Chairma MR. DAMBLY: 22 unless the board has any further questions.
~
23 (Board conferring.)
.\
24 CHAIRMAN UOLFE: All right, vce Federal Reporters, Inc. 25 Mr. Edgar, when is the earliest possible time you
'I w n e- y.y-+--- -9y_ ..
,c-y#w- e$p w q y.iygie wi ed ? gow $ 4"
t 7492 david 21 could advise all parties in a conference call, when a summary report could be completed? 3 When could you earliest advise us? ( 4 MR. EDGA2: I believe I could get a call placed 5 I tomorrow to everybody. I may have to do it individually. , 6 I don't know what pec tie's schedules are, but I would , 7 have some opportunity to get back to people this afternoon. ll l! 8 And my thought would be to make an attempt to get on the 9 l phone tomorrow, if not the next day. l 10 But it would not -- 1 11 j CIIAIPJE WOLFE: Maybe if you could make the ' i 12 1 conference call on Monday next. That might -- that would l I
/
- i r
13
~
certainly be more convenient for the board. 14 Is that convenient for you, Mr. Gallo? ; 15 MR. GALLO: Mr. Chairman, do I understand i 16 !I the purpose of the call simply to -- for Mr. Edgar to ! , 17 f' advise the board as to the number of days it would take, 18 a mere factual representation? 19 CIIAIRMAM UOLFE: Yes. 20 MR. G?.LLO: I would have no objection from 21 my standpoint and that 11r. Edgar simply call the board, , 22 the Chairman, as soon as he has that information available t
~
23 I to him. l i 24 me F.eer.i n porters, inc. And I would rely orr his other communications to , l 25 give me the same answer. ! i i 4
.1 s ~ . , -- . . , , - . - . - . . . . , ,-,,..-,,...c,,----,-,,-
J 1 l 7493 l 1 david 22- CHAIRf1AN WOLFE: Mr. Parris? I 2 1 1 MR. FARRIS: I would agree with Mr. Gallo's ! l
' 1 3
. comments, just passing it on to us. IIe can have the !
't 4 l l secretary call us and tell us. It wouldn't have to be a l
- 5 i conference call unless the board had other questions. l 6
MR. DAMELY: That would be fine with us also. 7 MR. EDGAR: I will endeavor to get that word , O through'..thec. phone sometime tonorrow. ; 9 CIIAIRMAM MOLTE: The oral argument is completed, and the hearing is recessed until further notice. I l 11 - -
, j (Wllereupon , at 12:15 p.m., the hearing was -
adjourned.) . 13 1
<. i m i 14 l i
15 l 16 I I l ' 17 i 18 l i, 19 : 20 21 ) i 22 i i 22 24
..Fedef al Reporters. Inc.
'~
25 s I . t
,w.ve-- ....y-, ......_ - .r,~. *a.,-vv .,}}