ML20151U670
| ML20151U670 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 02/05/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#186-076, CON-#186-76 OL, NUDOCS 8602110078 | |
| Download: ML20151U670 (55) | |
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OillGINA1.
, ~ . UNITED STATES
'd NUCLEAR REGULATORY COMMISSION IN THE MATTER OF: DOCKET NO:' 50-400 OL CAROLINA POWER & LIGHT COMPANY and NORTH' CAROLINA EASTERN MUNICIPAL POWER AGENCY .
(Shearon Harris Nuclear Power Plant)
PREHEARING CONFERENCE O -
LOCATION: BETHESDA, MARYLAND PAGES: '10318 - 10368
. DATE. WEDNESDAY, FEBRUARY 5, 1986 r
JG0 L ACE-FEDERAL REPORTERS, INC.
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OfficialReporters 444 North CapitolStreet
. Washington, D.C. 20001 a
(202)347-3700
!- NATIONWIDE COVERAGE k1
CR25807.0 10318 DAV/0jg 1
UNITED STATES OF AMERICA 2 !
4 NUCLEAR REGULATORY COMMISSION 3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4 -------------------x 6 :
In the Matter of: -:
- Docket Number CAROLINA POWER & LIGHT COMPANY and : 50-400 OL 6 NORTH CAROLINA EASTERN MUNICIPAL :
POWER AGENCY : PREHEARING CONFERENCE 7 :
(Shearon Harris Nuclear Power Plant) :
8 1 - - - - - - - - - - - - - - - - - - -x i
9'l' Nuclear Regulatory Commission Fifth Floor Hearing Room 10 4350 East-West Highway
.; Bethesda, Maryland 11 J Wednesday, February 5, 1986 12
- The prehearing conference in the above-entitled matter,
,j 13 [ convened at 1:00 p.m.
I4 BEFORE:
15 JAMES L. KELLEY, ESQ., Chairman Atomic Safety and Licensing Board i 16 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 I JAMES H. CARPENTER, Member Atomic Safety and Licensing Board !
18 U.S. Nuclear Regulatory Commission 1 Washington, D. C. 20555 ,
i? i k GLENN O. BRIGHT, Member i 20 'i4 Atomic Safety and Licensing Board l U.S. Nuclear Regulatory Commission l j Washington, D. C. 20555 gl .s l
22 i i
23 I l
[') 24 I w2 a ceporters, Inc.
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-- continued --
10319 APPEARANCES:
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On behalf of'the Applicant:
3-THOMAS A. BAXTER, ESQ.
4[ Shaw, Pittman, Potts & Trowbridge t 1800 M Street, N.W.
Washington, D.;C.
5 DALE HOLLAR, ESQ.
6 ' Associate General Counsel Carolina Power and Light Company 7 P. O. Box 1551 Raleigh, North Carolina 27602 8
On behalf of the Intervenor:
9 1 WELLS EDDLEMAN, Pro Se 10 ! On behalf of the Federal Emergency
., Management Agency:
11 j JOSEPH FLYNN,,ESQ.
12 Assistant General Counsel 13 ll On behalf of the Nulcear Regulatory A a Commission Staff:
14 JANICE E. MOORE,'ESQ. .
CHARLES'A. BARTH, ESQ.
15 U.S. Nuclear Regulatory Commission Office of Executive-Legal Director 16 Washington, D. C. 20555 17 18 '
II 19 ,
i 20 2: I 22 23
! 24 Ass. Reporters, Inc.
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8070 01 01 10320 1 DAVbur 1 PROCEEDINGS i
JUDGE KELLEY: Good afternoon, ladies and 2
3 gentlemen.
4 The Licensing Board associated with the 5 application of Carolina Power & Light for the operating 6 license for the Shearon Harris facility is in session here 7 this afternoon in the Appeal Board's courtroom.
8 I personally want to thank you for cooperating 9 with our request to move the starting time back by an hour.
10 That helps us a lot.
11 We are not accustomed to the view from this lofty 12 height. Perhaps it will improve the quality of our i 13 decisions.
14 But with that hope, if not expectation, we are 15 going to address two things this afternoon, a motion by the 16 Applicants' concerning the Board's planned reopening of the 17 siren issue and, secondly, a discovery dispute between 1
18 i Mr. Eddleman and the Staff of FEMA.
19 We would prefer, unless ttpre is an objection, to 20 go with the Applicants' motion first and the discovery 21 dispute second.
22 Is that agreeable?
23 (No response.)
24 JUDGE KELLEY: We perhaps ought to note who is I 25 here for the record. Most of you were here this morning.
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8070 01 02' 10321 1 DAVbur ~1 MS. MOORE: My name is Janice Moore, representing
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\l 2 the Staff. With me is Mr. Barth and also Mr. Joseph Flynn 3 from FEMA.
4 MR. BAXTER: For the Applicants, Thomas A. Baxter 5 and Dale E. Hollar.
6 JUDGE KELLEY: And Mr. Eddleman.
7- MR. EDDLEMAN: Pro se.
8 JUDGE KELLEY: Pro se, right.
9- I turn first, then, to the motion by the 10 Applicants for partial reconsideration of the Board order of 11 January 16th, in which we reopened the record in the siren 12 issue with respect to certain specific areas.
13 All parties are here this afternoon with the U("T 14 exception of the State of North Carolina. They have been 15 contacted. We have been handed an Attorney General's 16 response to Applicants' motion. The. Board has read that 17 motion, and-I will speak in a moment further to how we.are 18 going to proceed. -But I am going to say that we do_have 19 that.
20 The expectation then is that the other parties; 21 namely, FEMA and Staff combined and Mr. Eddleman, 'would make 22 their response to the Applicants' motion on the record.
23 This is pursuant to prior discussions, and I think that 24 procedure is agreeable to all.
() 25 Is that correct, Ms. Moore?
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- 1_ DAVbur 1 MS. MOORE: Yes, sir.
( )
2 JUDGE KELLEY: Mr. Eddleman?
3 MR. EDDLEMAN: Yes.
4 JUDGE KELLEY: Thank you.
5 We would expect to cover this motion in less than 6 an hour. I won' t get any more precise than that, but as an 7 overall time frame we would like-to do that.
8 You can assume, of course, that the Board and 9 everyone else is fully familiar with the case, fully 10 familiar with the Board's order, and familiar of course with 11 the motion.
12 When your turn comes to address the motion, we
(~ 13 would appreciate if you oppose the motion in some or all
\s] _ _
14 respects that you go right to the specifics, and I am sure 15 everyone will be following you.
16 As a sequence in time, rough time, we thought we 17 would first look to Mr. Eddleman, figuring about 10 minutes 18 for his presentation, followed by whatever Board questions 19 there may be, after that Staff / FEMA.
20 Mr. Flynn I believe is going to speak on this 21 motion, is that correct?
22 MR. FLYNN: That is correct, your Honor.
23 JUDGE KELLEY: We thought also about 10 minutes 24 for you plus any Board questions that might arise from your
(). 25 presentation.
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r 8070 01 04 10323 1 DAVbur 1 The North Carolina paper which I noted just a 2 moment ago, the Board has read it. All the parties, I take 3 it, have that.
4 If the parties, either Mr. Eddleman or FEMA, in 5 their arguments want to refer to that, of course they are 6 free to do so.
7 But we thought that af ter Mr. Flynn's 8 presentation for the Staff and FEMA the Applicants would be 9 given an opportunity to reply to both Mr. Eddleman and the 10 Staff and North Carolina. Hopefully, they could do that in 11 about 10 minutes, and there may be some Board questions 12 following their reply.
( ,
13 Then following that we will have any further 14 questions or discussion that seem appropriate, and we will 15 I send some time at the end for further discussion.
16 We will simply have to see where we come out on 17 the arguments as to whether we are going to be able to rule 18 , this afternoon or whether we rule in the next day or two.
i 19 ! It depends really on what is presented and how the Board 20 views the arguments.
21 With that, Mr. Eddleman, do you want to go ahead?
22 MR. EDDLEMAN: Thank you, Judge.
23 Let me say that Mr. Runkle and I have to be out 24 of here by a little after 2:00 o' clock, so I will try to be 25 extremely brief.
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8070 01 05 10324 1 DAVbur 1 I don't think there is a lot to say about this
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2 motion. It appears to be in the nature of a motion for 3 summary disposition without accompanying affidavits and also 4 in the nature of additional proposed findings of fact and, 5 in effect, a motion for summary judgment in favor of 6 Applicants on those issues.
7 I don't think it is appropriate at all. I think 8 that any changes the Applicants have proposed and the 9 effects of those changes, and so on, are properly the 10 subject of cross-examination. I think the Board ordered 11 additional hearings, and I as an Intervenor and the State of 12 North Carolina as an Intervenor and all parties have the
, 13 l right to cross-examine on these issues and it is not proper 14 to close that off.
15 I guess I would summarize by saying that I view 16 this thing as totally improper and of no merit, and I guess 17 l1 I would adopt the Attorney General's arguments on behalf of 18 the State of North Carolina.
19 ' Considering what North Carolina did last night in 20 the basketball game, I will rely on their strength, too.
21 But I just don' t see any reason to go forward 22 with this. It is like summary disposition without an
- 23. affidavit. It is like proposed findings that say rule in 24 our favor instantaneously. It doesn't make any sense.
I' 25 JUDGE KELLEY: Breaking it down a bit, ACE-FEDERAL REPORTERS, INC.
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8070 01 06 10325 1 DAVbur 1 Mr. Eddleman, would you distinguish in the Applicants' 2 motion between their proposal for the hearing on the 3 self-alert from the other issues?
4 As I understand it, they are not asking for a 5 judgment on this paper. They're asking us to read this.
6 MR. EDDLEMAN: Pardon, sir?
7 JUDGE KELLEY: Let me put it a different way.
8 I read the motion to say we would like to cut back on this 9 reopened hearing and look only at the tone alert radios.
10 So my question to you is: you do acknowledge, 11 don't you, that the tone alert radios are subject to 12 . evidentiary hearings, cross-examination, and the like?
-~ 13 MR. EDDLEMAN: Yes. But I don' t think that x
14 precludes'the other issues.
15 ;
JUDGE KELLEY: I am just separating that one out i
16 I for the moment.
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MR. EDDLEMAN: Yes, sir.
17 l I
18 j JUDGE KELLEY: Okay, Mr. Eddleman -- I am sorry.
19 j Do you have another point?
i 20 ' MR. EDDLEMAN: On page 4, the Applicants mention 21 in that regard -- this speaks to the question that you were 22 I asking, Judge -- the other items of additional evidence 23 called for by the memorandum and order are now only relevant 24 in light of Applicants' decision to an assessment of the
[~l 25 relative capability in the five to 10-mile area of the EPZ.
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8070 01 07 10326 1 DAVbur 1 This is the thing, I think -- this is an 2 additional thing that I think is not proper, that they can 3 rule out the interest of those questions.
4 I think it is also true that the rest of the 5 motion -- they are talking about answering the question in 6 the negative, ending up on page 6 -- is the thing I was 7 referring to in the nature of additional proposed findings.
8 JUDGE KELLEY: Okay.
9 The Board, Mr. Eddleman, came up with a series of 10 tentative views -- you will recall that discussion in the 11 middle of the order -- in terms of computation, and the i
12 like, leading to certain bottom lines, depending on whether 13 you used the Krallmann data or the Horonjeff data.
s 14 Do you agree or disagree, or are you not in a 15 position to say at this time with regard to those kind of l
16 views?
17 MR. EDDLEMAN: Judge, I would say part of them I 18 think I agree with and part of them I think may not be 19 sufficiently conservative.
20 Do you want me to try to get into the technical 21 merits of it?
22 JUDGE KELLEY: No, a short answer. All I am 23 really after is if all the parties walked in and said those 24 tentative views are absolutely correct, we agree, that would 25 certainly have a narrowing effect on this case. You are not ACE-FEDERAL REPORTERS, INC.
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8070 01 08 10327 1 .- DAVbur 1 expected this afternoon to have a definite answer on my 2 question except to be able to say I would hope -- or would 3 you stipulate to thase?
4 MR. EDDLEttAN : No, sir, I won't stipulate to 5 them. I can't.
6 JUDGE KELLEY: Thank you.
7 Mr. Flynn?
8 MR. FLYNN: Thank you, your Honor.
9 FEMA and the NRC Staff support the Applicants' 10 motion to limit the scope of the reopened hearing.
11 , I agree with the interpretation announced by the 12 Board a moment ago of that motion, and that is the motion
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13 asks that there be a hearing on the effectiveness of the 14 tone alert system but that there not be any further hearing 15 on the effectiveness of the siren system within the initial 16 five-mile zone.
17 So it is not accurate for Mr. Eddleman to say 18 that the motion is equivalent to a motion for summary 19 disposition on the issue of the tone alert radios, not at 20 all. T'he Applicant, at least in my interpretation of the 21 motion, is asking for a hearing, and we feel that is 1
l 22 appropriate.
23 As far as the assertion that Mr. Eddleman has 24 made that the tone alert radios have no offect on the second
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25 five-mile zone, that is correct. But that is not the ACE FEDERAL REPORTERS, INC.
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8070 01 09 10328 l l l 1 DAVbur 1 issue.
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() 2 The Board has already made a determination that !
3 the reopened hearing will not address the second five miles '
I 4 but will focus on the first five miles.
5 JUDGE KELLEY: I don't think that is correct. J 6 MR. FLYNN: Then I stand corrected.
1 7 JUDGE KELLEY: We went on to say, as I recall, l
8 that we wanted Mr. Kiest to do the findings for the second 9 five miles. That is in paragraph 1, page 8.
l 10 MR. FLYNN: In any case, we still feel that the 11 relief asked for by the Applicant is appropriate. l l
12 Essentially, the Applicant has volunteered the relief asked I for in the original contention, and that is that there be a
'() 13 14 secondary system or a redundant system to back up the l
15 sirens.
I 16 The Applicant is, in effect, conceding -- or i
17 perhaps that is too strong a word -- is volunteering to 18 provide additional coverage whether it is strictly required 19 by law or not. l 20 I want to say and make it very clear that FEMA 21 does not concede that there is any deficiency in the ;
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( 22 coverage of the siren system, but were the Board to find 23 that there were a deficiency, it seems beyond any question l
! 24 that the tone alert system that the Applicants are proposing I 25 to install would adequately address those deficiencies.
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8070 01 10 10329 1 DAVbur 1 The Board seems to be concerned with the margins E> 2 of the coverage of the siren system; that is to say, in 3 attempting to quantify the areas of the numbers of houses, 4 the percentage of houses that are covered by the siren 5 system, there are some ambiguities. The Board is struggling 6 to come to some firm numbers on how many houses, how many 7 people are covered.
8 And the purpose of the reopened hearing would be 9 to fine-tune the evidence to determine whether the numbers 10 we are talking about are in the 88 percent range or the 90 11 percent range.or the 95 percent range.
12 The tone alert radios are site specific. The 13 Applicant proposes to put one in every house. This system
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14 is highly targeted, and I submit that that sort of 15 flexibility really overrides the question of whether the 16 sirens will provide 88 percent or 90 percent coverage.
17 The point of the relief that the Applicants have 18 offered is that we have a potentially highly effective 19 system that will go quite a bit beyond what the sirens 20 presently offer in the way of coverage.
21 So that really overshadows the issue of whether 22 the sirens are 88 percent effective or 90 percent 23 effective. We have something much more significant here; 24 that is, something that approaches 100 percent coverage.
I) 25 JUDGE KELLEY: We have to make that assumption.
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8070 01 11 10330 3 DAVbur 1 That is your argument, right?
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k-( 2 MR. FLYNN: That would be the subject of the -
3 hearing.
4 JUDGE KELLEY: That is right, but we have to 5 assume that the tone alert radios would be so ef fective that 6 the siren coverage wouldn't much matter, whether it was 60 ,
7 or 80 or 90?
8 MR. FLYNN: That is essentially what I am 9 saying, that FEMA's position is that the band of coverage, 10 the band of houses that would not be covered is 11 significantly smaller with the tone alert radio system, at 12 nighttime at least, than under the siren coverage system.
, (~) 13 Thank you.
U 14 JUDGE KELLEY: As to the second five miles, the 15 Board has not excluded that. That is still in the case.
16 If you are saying that the hearing on those other 17 points, other than the tone alert radio, is unnecessary as 18 to the second five miles, is that to say that you are 19 stipulating the Board's tentative conclusions?
20 We have got to make conclusions out there, too.
21 MR. FLYNN: I have certainly got to say that the 22 German study will yield more favorable numbers than the 23 Horonjeff study.
24 JUDGE KELLEY: What if the Board takus the
() 25 position that it has never been subject to cross-examination ACE. FEDERAL REPORTERS, INC.
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-8070 01 12 10331 2_ DAVbur 1 and we are not going to give it very much weight?
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)- 2 We are saying that is very interesting, but we 3 have never heard from Mr. Krallmann or anybody else 4 concerning his study and we are unwilling to give much 5 weight to it. !
6 If you assume that the Krallmann study is going to carry the day, I would just suggest to you that that, in
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7 8 my mind at least, is not so clear. Then you are back to the 9 ,
Horonjeff data, which brings you into the '60s. Then you 10 have to assume -- which you are not yet entitled to do --
11 that we are going to accept these projections in the form of 12 other cases.
13 So aren't there,a lot of questions left in that 14 area?
15 MR. FLYNN: FEMA remains persuaded that the 16 system is adequate, but evidently the Board is still of an 17 open mind and has not reached the same conclusion that FEMA 18 has.
19 These questions have certainly been addressed at 20 abundant length in the hearing that has already taken 21 place.
22 So if the Board were to disregard or give no 23 weight at all to the German study, then I would submit that 24 the evidence has already been heard.
() 25 JUDGE KELLEY: But the questions we raise in our ACE. FEDERAL REPORTERS, INC.
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8070 01 13 10332 1 DAvbur 1 order are questions focused on gaps in the record as we saw
.) 2 it. Not only is it not abundant, we've got Mr. Kiest coming 3 in and saying in the hearing, well, it is going to be zoro 4 essentially. Then he comes back and says, well, no, it is 5 much different.
6 We,still don't understand that.
That is not an 7 answered question. The only way we can get the answer to 8 that question is to ask Mr. Kiest unless we decide for some 9 reason it is not important.
10 But there are certainly questions.
11 MR. FLYNN: If the Board says there are 12 questions, then indeed there are questions.
13 JUDGE CARPENTER: Mr. Elynn, I think it would be
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r 14 useful for you to try to look at our order from our 15 perspective.
16 You used the word " coverage." Coverage, as we 17 indicated, is not an issue here.
18 We accept Applicants' testimony that these sirens 19 exist, that the energy that the sirens will put out is 20 known, the distribution of that energy is known, et cetera.
21 There is no issue of coverage.
22 The issue is how many people will still be asloop 23 if the system is actuated and what number of houses should 24 go unalerted for us to have reasonable assurance that there 25 is no undue risk.
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8070 01 14 10333 1 That is what I seek to find from this record, and
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2 I am not there~yet.
3 But it is not coverage. It is waking sleeping 4 people that is the difficult technical issue here, with 5 different lines of evidence, that the record presently 6 doesn't lead to a' clear resolution of those dif ferent 7 lines -- three lines of evidence that we feel would greatly 8 benefit exploration on the record about the relat'ive merits 9 of the three different lines of evidence, because we have to 10 choose something, not necessarily an amalgam. If one of 11 them comes closest to the truth in the scientific sense, I 12 think we would like to reach that.
13 That is the purpose of the order.
14 15 16 17 18 19 20 21 22 23 24 O 25 ACE FEDERAL REPORTERS, INC.
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8070 02 01 10334 2, DAVbw 1 MR. FLYNN: Yes, Judge, I believe I understand
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2 what you're saying.
3 JUDGE CARPENTER: To the extent that an applicant 4 regards this as just an academic exercise, it's still an 5 issue, depending on how its own alert credibility comes out 6 in the first five miles. It still will be something that 7 we've got to look at at S to 10 miles, admitting that there 8 are no simple numerical standards.
9 The way I read the Commission's final rule in the 10 5 to 10 mile zone, we still have to come to the reasonable 11 assurance conclusion. That's the reason for wanting to have 12 the record have just a little more' explanation on the
{} 13 14 technical merits. We've indicated tentatively that we don' t see the R. Lucas basis to be very substantial. There are no 15 sounds like siren sounds in that whole data set, but we'd 16 like to get the witness' opinion about that, et cetera.
17 To the extent that the record can reflect the 18 views of what I personally consider to be two very 19 well-qualified experts, we want to avail ourselves of that 20 opportunity.
21 So if this contention had been settled and it was 22 not necessary in the decision based on the record, that 23 would be one thing. We still have to write an opinion and a r
24 decision based on the record that's before us. So I don't
() 25 see that the Applicant's motion addresses that very ACE FEDERAL REPORTERS, INC.
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8070 02 02 10335 1 DAVbw I clearly. They may consider the whole thing an academic 2 exercise, but it remains to be an exercise that's got to be 3 done.
4 MR. FLYNN: I hope I understand what you're 5 saying, Judge Carpenter.
6 I think my original point was that if you look at 7 the contention, it asks for a redundant system. The 8 Applicant has ossentially said, okay, we'll do that.
9 JUDGE CARPENTER: But apparently that didn't form 10 a basis for settling.
11 MR. FLYNN: I'm sure Mr. Baxter can address that 12 l more effectively than I can.
13 ' JUDGE CARPENTERt Tell me, doesn't the 14 contention say that the r,ir4ns w't.1 be inadequato and 15 ,
therefore, people won' t wake up at night? Thorofore, you l
16 ought to add a telephone system, as I recall.
17 MR. FLYNN: It did ask specifically for a 18 telephone syste-l 19 , JUDGE KELLEY: But the thrust of it is, what 20 I you've got proposed thoro isn't going to wake people up at 21 night, and Mr. Eddleman is contesting that.
22 Just coming forward and saying, " lie y , I've got a 23 new system," is not necessarily going to satisfy him.
24 MR. FLYNN: Perhaps I'm oversimplifying it, but 25 what are the types of relief that the Board could order?
26 Additional sirens or a redundant system? That's what we're ace. FEDERAL REPORTERS, INC.
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I I 8070 02 03 10336 l~ DAVbw 1 talking about now is a redundant system.
2 JUDGE KELLEY: Then you have a hearing on that 3 redundant system. If that's suf ficient, that's fine. If 4 it's not, you condition the license or refuse to issue one 5 until you get ene that is good enough. The mere proffer of 6 a new system, radios, telephone, or whatever, doesn' t 7 necessarily answer the question, as we see it.
8 Mr. Baxter.
9 MR. BAXTER: I'm not sure I can do justice to all 10 the questions I've heard, but I'm sure you'll refresh me.
11 I might start off first with a proposition th'at c
12 the status of this case a short time ago was that the 13 hearing was over, the record'was closed, all proposed 14 findings were in, and-the maEter is before the Board for 15 l decision. 7 16 It is the Board's own decision here to reopen the 17 record sua sponte.
18 j So some of Mr. Eddioman's arguments that thero 19 are some inherent rights that the parties have attached to 20 these Board questions, I think, are not well-founded.
21 If the Board does decide at this point that it 22 doesn' t need additional information in certain areas to 23 decide this case, the case is in a posture to be decided.
24 We're not asking for summary judgment of any kind. The
'~', 25 Board has the record; the Board has the proposed findings.
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8070 02 04 10337 1 DAVbw 1 So I think just because you at one time posed
- 2 some questions to reopen the record, you are free to change 3 your mind, just as you decided to have the hearing 4 initially. And it is clear that we are not asking for a 5 decision in advance that the tonal alert radios are 6 adequate.
7 To some extent, our proposition carries with it 8 the risk to the Applicants that, if in the limited reopened
^
9 hearing, the Board should dcide that the tone alert radios 10 were inadequate, that these other questions would have to be 11 answered, and that we might have to come back yet a third 12 time.
13 What we've simply done is the flow of logic in 14 the additional items the Board requested in its January 16th 15 memorandum and order, let it depose at the end, a question 16 that says, not knowing how we're going to come out on the 17 arousal probabilities, we think it is prudent at this point l that ought to have some evidence on corrective actions in 18 l
19 the first five miles, with a view toward, we'd have some 20 basis for ordering corrective action, if we decided it was 21 necessry.
22 We have simply, in the interests of trying to 23 expedite resolution, jumped to the end of your order and 24 said, we don't really need to debate it, but we' re going to
'1 25 at least do this, and I understand Mr. Eddleman still ACE. FEDERAL REPORTERS, INC.
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8070 02 05 10338 l_ DAVbw 1 contests, and we can have a hearing, and we're proposing to 2 have a hearing on the adequacy of that augmentation system.
3 But it was our hope, it is our position that 4 there is enough likelihood that this is going to resolve the 5 matter for the first five miles, that we are willing to take 6 the risk that the other questions need not be answered, and 7 we could comment at some point as to why that's true.
8 I've tried to outline the logic in my motion, 9 which was that if we are using our sound propagation 10 estimates, which are, I think, larger than FEMA's, and we 11 are using Horonjeff instead of Lucas, and Horonjeff clearly 12 provides great arousal capability, it seems to me that we' re
^'
- 13 going to get an ultimate number that's going to be larger 14 than 88 percent.
15 ' I recognize you have to make a decision for the 16 second five miles. I wasn't trying to state that that was 17 unimportant or hypothetical anymore. What I am saying is 18 that you have enough in the record to say that if we 19 substituted Horonjeff in Mr. Kiest's analysis, we know 20 we're going to come out larger than 88 percent.
21 How important is it to determine whether that's 22 going to be 92, 91 or 95, when we think, under the legal 23 analysis you've presented that substantially in compliance 24 with the design criteria for the second five miles.
[) 25 JUDGE KELLEY: Let me just interrupt you there ACE-FEDERAL REPORTERS, INC.
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8070 02 06 10339 1 DAvbw 1 now. Under the analysis that you just made, it seems to me, 2 for the second five miles, that you are assuming, for one 3 thing, an informal arousal rate that gets up, I think you 4 said, to about 88. The Board did not, in its last order, 5 mean to or imply that we were making any finding at all 6 about a formal alert. We simply said in the context of 7 Question 6, let's assume a certain rate. I don't have to 8 paraphrase. Yes, number 6 on page 10. We said, if it's 9 assumed that the Board's computation for alerting in the 10 five-mile EPZ, based on Horonjeff of 62.8 percent is the 11 best estimate.
12 A high side estimate for a formal alert at 15 to 13 20 is after that. This produces a 15-minute alerting
^
f1 .
14 estimate, 7833.
15 When we said high side estimate, that's not a 16 tentative view that it is that. That's just a for the sake 17 of argument kind of statement. That's all we intended by 18 l that.
19 We've not made any judgment at all on informal 20 alert. It may be that your position will prevail and maybe 21 it won' t, but that's purely a hypothesis, not a finding.
22 MR. BAXTER: I understand that, Judge Kelley, but 23 I also have the impression that you're not asking for any 24 additional evidence on the informal hearing, so it's there.
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8070 02 07 10340 1 DAVbw 1 may come out 18 percent or it may come out zero or somewhere (3
kJ 2 in between. But it did seem to me that your argument 3 assumed, when you said cane up at 88 percent that you had a 4 pretty high -- what I'm characterizing as pretty high, your 5 estimate of informal alert.
6 MR. BAXTER: The way the estimate it breaks down 7 is, we calcaluted using Lucas in our sound propagation 8 estimates, 69 percent arouso: for the whole 10-mile area 9' just from sirens.
10 We added 3 percent more because the population is 11 already awake. Then that got us 72, and formal notification 12 is 16 more.
13 JUDGE KELLEY: And you say that I think you get
}
14 around 69 in the 5 to 10?
15 MR. BAXTER: We get 69.4 in the O to 5, and we 16 got 69 overall.
17 JUDGE KELLEY: So it's the same.
1 18
- MR. BAXTER: It's the same, but if we used 19 Heronjeff instead of Lucas, we would get higher than that.
20 JUDGE KELLEY: And I think that's an area where 21 we'd like to find out why. I'll take Judge Carpenter's lead 22 on that.
23 JUDGE CARPENTER: Mr. Baxter, in view of 24 Mr. Kiest's computation, which gave a result in the O to 25 5-mile zone of --
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8070 02 08 10341-1 DAVbw 1 MR. BAXTER: -- 69.4.
2 JUDGE CARPENTER: --69.4 percent. If you compare 3 that with the Board computation, which is tentative, for 4 comment, as shown on page 8 of the order, using Hononjef f, I 5 calcuate 62.8 percent. If I'd used Lucas, I would have 6 gotten a considerably smaller number. So obviously, I 7 don' t understand the basis for Mr. Fiest's calculation, or 8 I'd be able to reproduce it.
9 MR. BAXTER: The basis for Ms. Kiest's 10 calculation, Judge Carpenter, is, of course, the basic 11 testimony we've put into the record. He didn't change 12 that. We have gone over your calculation, and we think
,_. 13 there's an unfortunate, to some extent, mixing and selection 14 process that went on here that took some elements of the 15 FEMA case and some elements of ours, and it doesn't, in our 16 view, technically add up well.
17 We duplicated your calculation for Krallmann and 18 got 81.5, using your methodology.
19 We tried to do the 62.8 and got something 3 or 4 20 percent higher. So somewhere there in the house counts or 21 I something else, there's just a mathematical error, but the 22 biggest other difference is your assumption for 4, where 23 you use Dr. Nehnevajsa's housing distributions, instead of 24 the housing distribution Mr. Kiest used.
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8070 02 09 10342 1 DAVbw 1 together. It can change this one element, but to mix and 2 match all the various elements of the Staff and Applicant 3 testimonies as you've done here, you get different numbers 4 than we do; that's correct.
5 So I am relying, when I say we calculate 88
~
6 percent, that's the way we calculate it in the record, and I 7 hope the basis for-how we calculated it is clear. If we 8
calculate it the same way, not using Dr. Nehnevajsa's 9 housing count distributions but using everything else you 10 did, just substituting Horonjeff for Lucas, we definitely 11 get a higher number than 69.4, and we get 69.4 using Lucas.
I 12 JUDGE KELLEY: I guess what we' re doing here, w 13 gentlemen, we're illustrating whether there's a question or 14 not, not what the answer to the question is.
15 JUDGE CARPENTER: You see, Mr. Baxter --
16 MR. BAXTER: If the Board feels that it cannot 17 rely on any party's analysis as presented, and that is 18 necessary to try and combine, to pick from the various 19 f elements in your decision, then I think we do have a 20 disagreement about that It doesn' t mean you can' t do it, 21 but it means we don't endorse it, and I was falling back on 22 the proposition that if tone alert radios are put in miles 23 --
we are putting tone alert radios in the first five miles, 24 then under almost any of these estimates, before you add
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3 JUDGE KELLEY: In the second five?
4 MR. BAXTER: In the first five. In the second 5 five, we think you ought to rely on the independent 6 approaches done by competent experts for FEMA and 7 Applicants, who did it a different way, with different 8 sounding propagations, different housing distributions, 9 different assumptions about background noise and informal 10 notification, and still came out with the same answer, and 11 we submit-that there should be enough there for the Board to 12 rely on without doing its own individual calculation, and 13 that we don't need to determine how much higher than 88 7_
i 14 percent it would be, if we just substituted Horonjeff for 15 Lucas.
i 16 JUDGE KELLEY: You jsut finished the point I was 17 making earlier. Perhaps it's obvious already, but when I 18 talked to you, assuming or not assuming formal notification 19 the kind of scenario I wondered about is this: if you've 20 got a combination of siren awakening, plus informal 21 alerting, assuming you count some of that, and you're up in 22 the high '80s, then you look at the Commission's 23 reconsideration statements that were quoted, it would seem, j 24 speaking just for myself, that you're home free, in the high 25 '80s. Then it wouldn't much matter whether it was really e-)
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8070 02 11 10344 1 DAVbw 1 91 or something different. I agree with that, but if you're j 2 alerting percentage is down in the 60s somewhere, and the 3 Board decides that informal alerting is entitled to 10 4 percent, it's not so clear that at 75 you' re up to 5 standard. And I don't know how the evidence would unfold, 6 but it just seems to me that that's one scenario that needs 7 to be considered.
8 MR. BAXTER: Again, though, we were not asked to 9 put on anything more in formal notification. We think it 10 should be relied upon. We've already briefed all that. All 11 I've tried to do here, and frankly, not considering the 12 detailed calculations, but the two findings I read here 13 '
were, one, we prefer Mr. Kiest's sound propagation contours 14 over FEMA's.
15 Number two, we prefer Horonjeff over Lucas, we 16 think.
17 So what I was addressing is that that's the only 18 parameter we change in Mr. Kiest's calculation. We do not 19 get 62.8. We get something higher than 69. And when we add 20 on a percentage of the population already awake, in our 21 estimate of informal notification, we're going to be into 22 the 90s, and we didn' t think it was worth trying to 23 establish.
24 JUDGE KELLEY: 69 plus 3 plus 18. Is that how
> 25 you get into the 90s?
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8070 02 12 10345 1 DAVbw 1 MR. BAXTER: No, it would be higher than 69, but
) 2 why calculate how much it is? With Lucas we get from 62 to 3 79 to 88. For example, I agree there are some other 4 questions like your item number 3, about the on the record 5 calculation Mr. Kiest did for what the arousal percentage 6 would be at 60 dB. He made an error in there, and he 7 realized that after he wrote his letter to the 8 Commissioners. As we've said before, there isn't 60 dB 9 outside the window, except in very, very, very small 10 percentages of homes, and there's more than one individual 11 in 80-some percent of these homes. So I agree that's a 12 question.
--- 13 But we submit to you it's not an important one,
'~'
14 given the state of the record.
15 16 17 ]
18 19 20 21 22 23 24 25
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8070 03 01 10346 1 DAVbur 1 JUDGE CARPENTER: Mr. Baxter, since we are trying
) 2 to get your comments and have sort of paused in the middle 3 of commenting on the motion to allow for comments, I would 4 like to contribute a little more perspective.
5 There is a formal alerting system in addition to 6 the sirens called rad alert. The weight that one can give 7 to that depends on how many houses you expect are going to 8 be dark, and the policeman is going to have to stop and go 9 in and wake people up, as to how fast he can cover his 10 route.
11 So in my mind, it is sign'ificant whether there 12 are a hundred houses on the route or 500 houses on the 13 route r both of which are a small percentage of the total 14 number of houses in the EPZ. Whether or not that indiv idual 15 can successfully wake those people up does depend on how 16 many places he has to stop.
17 We would like to get the best estimate, after the 18 siren alerting system has been actuated, how many there are 19 that_the primary backup the counties have gone to the 20 trouble of planning to do this. They are a credible part of 21 the FEMA strategy, and whether it is credible at 3:00 22 o' clock in the morning depends on how many houses -- how 23 many people are not awake.
24 That is why it is very desirable to get as
,y 25 accurate an estimate as possible.
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8070 03 02 10347 1 DAVbur 1 MR. BAXTER: All I can say, Judge Carpenter, is
'J 2 if you are really interested in how many houses mobile 3 alerting net will take care of, we wouldn' t stop at 15 4 minutes either. Our estimates go up considerably with the 5 passage of time as to what the arousal rates would be 6 because the cars are not going to be able to blanket the EPZ 7 in 15 minutes. They are located in towns, and they get 8 there as fast as they can.
9 But even if there were 500 houses, I would submit 10 .to you they are going to be distributed over that 10-mile 11 area.
12 JUDGE CARPENTER: Mr. Baxter, you are coming to a
-s 13 conclusion. I am not stating a conclusion. I am simply i )
'~'
14 saying that that is part of the analysis.
15 We want to have as good an estimate of the number 16 of houses, and as I read the Commission's' endorsement of 17 i 0654, it does accept up to 45 minutes to essentially achieve 18 100 percent.
19 So that is credible, but it remains to be seen.
20 If there are a very large number of houses, then I think one 21 would have to question whether or not that can be 22 accomplished.
23 I haven' t come to any conclusion about that 24 because I can't even get started on it -in terms of being 25 comfortable that we have the best estimate of how many
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\. [ h
(_). 2 That is where we are today.
3 JUDGE KELLEY: Mr. Baxter, anything else?
4 MR. BAXTER: No, that is it.
5 JUDGE KELLEY: Okay. I will make a quick sweep.
6 Mr. Eddleman, any further comments?
7 MR. EDDLEMAN: Judge, I think my positions on the 8 record are pretty clear in this. I don't want to bore the 9 Board with repeating them. They are in my. proposed 10 findings, and so on.
11 JUDGE KELLEY: Okay. Mr. Flynn, anything else?
12 . MR. FLYNN: No, your Honor.
13 JUDGE KELLEY: That covers the arguments on the 14 motion. We would like to move right into this discovery 15 dispute.
16 This discovery dispute between Mr. Eddleman and 17 FEMA arises out of Mr. Eddleman's Interrogatory No. 11, 18 which he posed to FEMA, seeking documents identified in 19 response to interrogatories.
20 The response from FEMA was to the effect that all 21 identified documents other than predecisional papers and 22 handwritten notes either had been or would be made 23 available.
24 FEMA then asserted that predecisional documents (x 25 and handwritten notes were protected against disclosure L)
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8070 03o04 10349 2 DAVbur 1 pursuant to cited positions in their CFR and our'CFR. That, 7-(m) 2 in turn, is a cross-reference to the paraphrase of Exemption 3 5 of the Freedom of Information Act which disallows 4 discovery with respect to internal memoranda, usually called 5 predecisional documents.
6 We had some preliminary discussion of these 7 disputes on file, and among other things, Mr. Flynn referred 8 us to an Appeal Board case which turned out to be quite 9 pertinent, the case of Long Island Lighting. It is in 19 10 NRC 1333.
11 The Board reviewed it. I sent a copy to 12 Mr. Eddleman. The Board has studied that particular case.
7.-
13 It is our tentative view, at'least, subject to comment, that-14 the case is on point on the law and with respect to the 15 procedure that is to be followed in resolving a dispute of 16 this kind.
17 I will just briefly read a few pertinent 18 sentences.
~19 Quoting from page 1341 of the case:
20 "The deliberative process privilege, 21 protection of discovery. Governmental 22 documents reflecting advisory opinions, 23 recommendations, and deliberations
~
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8070.03 05- 10350 2 DAVbur 1 formulated, the privilege may be O) s._ 2 invoked in NRC proceedings. It is 3 a qualified privilege, however, 4 which can be overcome by an appropriate
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5 showing of need. A balancing test 6 must be applied to determine whether 7 the litigant's demonstrated need 8 for the documents outweighs the 9 asserted interest and confidentiality.
10 In this respect, the government 11 agency bears the burden of demonstrating 12 that the privilege is properly invoked,
-13 but the party seeking the withheld O 14 _information has the burden of showing 15 .that there is an overriding need for 16 its release."
17 Those are the abstract legal principles 18 established by the Appeal Board. As to the papers 19 themselves, we asked for and have received from FEMA, 20 through Ms. Moore of the NRC Staff, a set of papers which I 21 can briefly describe.
22 These were served, I should add, only on the 23 Board. The purpose was in camera inspection by the Board to 24 determine whether they came within the privilege.
25 Mr. Eddleman has not had them.
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8070 03 06 10351 1 DAVbur 1 What this group of papers is essentially is six
( ,j+ 2 different papers, some of several pages, and they are, as we 3 read them, the field notes of evaluators who were actually 4 at the exercise, some five different evaluators, two papers
~
5 by one evaluator and one each by the rest.
6 One thing I wanted to get clear, Mr. Flynn, there 7 was a reference in here in your initial pleading and I think 8 in other places to notes on the one hand and predecisional 9 documents on the other, and I took predecisional document to 10 mean a draft of a report, a memo, something of that sort.
11 We don't have anything but the notes.
12 Are there other papers that fall within the
,s 13 description?
I i 14 MR. FLYNN: To my knowledge, your Honor,'there 15 are no other papers.
16 I spoke this morning with Glenn Woodard, who is 17 the Chief of the Natural and Technological Hazards Branch of 18 our Region 4. He indicated to me that there were no others 19 I and that he would check to make sure and get back to me if l
20 he found anything.
21 s He did not get back to me before I left.
s 22 } JUDGE KELLEY: I think, then, we can proceed on 23 theassumhtionthatwhatwehavebeforeusiswhat is within 24 the described category.
25
^
f Mr. Eddleman, let me just pause for this point.
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I 8070 03 07 10352 1 DAVbur 1 I have read some abstract law. You have read the case.
() 2 In terms of the law and procedure, do you have 3 any problem with the Board's amplification of the law I 4 quoted?
5 MR. EDDLEMAN: Not the part quoted, Judge. The 6 one difference I see that is majcr between these cases is 7 that I don't think it has been shown that these aren't 8 simply factual documents.
9 The LILCO case involves things that are totally 10 intermingled, that can't be separated out, and I don't 11 concede that at all in this case.
12 JUDGE KELLEY: I was going to speak to that. The 13 point you are making is useful, anyway. The point is I' ' ';'
14 perfectly valid.
~
15 In addition, I don't want to suggest that the 16 LILCO case is 100 percent analogous in all respects. The 17 facts will say that it is different later in the 18 proceeding. The people involved were different. There were 19 a numbers of differences discussed later on in the opinion.
20 This was just after the initial statement of principles as a 21 springboard for us to proceed.
22 I think I can answer the point. In fact, I was j 23 about to speak to the point you just made; that is, whether 1
24 the information in these documents contains segregable f e m 25 factual material or whether it is all intermingled and not v
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8070 03 08 10353 1- DAvbur 1 really segregable.
,-).
(_ 2 We have read the documents in question, all of 3 them, and it is our judgment that they are intermingled.
4 They are largely opinion. There are some facts sprinkled 5 here and there, but they are largely conclusionary 6 documents, such as is this, that, or the other thing 7 adequate; is the work holding up, and so on?
8 So in our judgment, we don' t have a situation 9 where we can segragate out factual material. You have to 10 take that.on faith because you can't review it of course, 11 but that is our judgment.
12 Our judgment is reviewable ultimately. If you 13 take it up on appeal, eventually, then they will read the 14 same paper and maybe they won' t agree.
15 But we are going to take the position -- this 16 Board . is -- that it is intermingled fact and opinion and not 17 segregable.
18 MR. EDDLEMAN: Okay. As you say, it is real 19 difficult for me to dispute that, not having seen --
20 JUDGE KELLEY: It is impossible, I grant you 21 that. But that is just the way the system is set up.
22 Let me just go on with a couple more comments, 23 then.we can get to some more discussion.
24 We also conclude on the basis of our in camera 25 review that these documents are properly within the ACE-FEDERAL REPORTERS, INC.
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8070 03 09 10354 1 DAvbur 1 category of predecisional documents; that is to say, they
) 2 are documents to which the privilege can apply unless a 3 showing of need counterbalances the weight of the 4 privilege.
5 What they are essentially is input to the final 6 Commission -- not Commission -- the final FEMA exercise 7 report and finding, reflecting opinions of these various 8 evaluators. So we think the privilege does apply.
9 That just leaves the question then of whether 10 Mr. Eddleman's need for these documents should outweigh the 11 privilege, which, as I noted, is.a so-called qualified 12 privilege, and included in that would be whether there might 13 either be or have been other means by which to get this
( )
14 information.
15 Mr. Eddleman, do you want to take a few minutes 16 to make an argument for need?
17 MR. EDDLEMAN: Yes, sir.
18 The first thing I would want to do -- it may not 19 be exactly on the point you are mentioning -- Mr. Flynn 20 invoked the exemption in 2790, transcript 10,307, referring 21 to 2790(a)(5), exempting interagency or intraagency 22 memoranda or letters which would not be available by law to 23 a party other than the agency in litigation.
24 I believe the actual text says "with the
,em 25 Commission," although the transcript says "but." I am not
(
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8070'03 10 10355 1 'DAVbur 'l sure.how that came about, but at any rate, my point here is
/ %
's_./ 2 a simple one. .
3 Obviously, if this stuff had been generated by 4 some other party, like a CP&L consultant had written this 5 stuff or a consultant to me had written this stuff, it would 6 be discoverable.
7 JUDGE KELLEY: It might be.
8 MR. EDDLEMAN: So the question is: does that 9 exemption hate any strength under those circumstances?
10 I don't think it does.
11 The other question is: do I have a need for it?
12 of course, this is very difficult to address 13 without.having seen what it says.
O 14 JUDGE KELLEY: That is undoubtedly true.
15 MR. EDDLEMAN: In this case here I am, I am a 16 party litigating a contention, and the LILCO Board 17- holding -- as it says at 19 NRC 1348, the Board emphasizes 18 the preliminary nature of its conclusion and the narrowness 19 of its holding, and it goes on to say -- I am quoting from 20 1348:
21 "The whole deposition or cross-22 examination of sponsoring 23 witnesses who reviewed documents 24 voluntarily released and may appear
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1 DAVbur 1 reasons to warrant disclosure,
,) 2 such as significant differences 3 of opinions among members writing 4 the report on different issues 5 affecting the adequacies of 6 LILCO's plan. It may turn out 7 that the sponsoring witnesses 8 are unable to defend or explain 9 adequately the underlying basis *
-10 of FEMA's determination. "
11 The point I would emphasize is that if there are 12 some disagreements in here, some things in here that don' t 13 match what FEHA has made available to the Board and the
(,
14 public and me, the only way I can find that out and use it 15 is to have access to the documents.
'16 Now, virtually the only other way the stuff can 17 become available -- you know, I have pursued some of this 18 under the Freedom of Information Act and gotten the same 19 answer. They will not reveal any of this information -- the 20 only other way I can see that it would have bene conceivably 21 available would be to depose the FEMA witnesses.
22 But FEMA hasn't identified who their witnesses 23 are. It is not even clear that FEMA is going to put up as 24 witnesses the people who wrote these documents. If you put
-m 25 somebody up who didn't write it and you ask them about it, L)
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8070 03 12 10357 1 DAVbur 1 what good is their opinion?
- i. ) 2 JUDGE KELLEY: Have you asked them who their 3 evaluators were?
4 MR. EDDLEMAN: I don't think so. I think I did 5 ask them to identify the authors of all the documents. I 6 asked them to identify the documents.
7 They asserted the privilege, but I don't think 8 they even identified the documents.
9 JUDGE KELLEY: You mean the documents we have 10 here today?
11 MR. EDDLEMAN: Yes, sir. In other words, there 12 is an interrogatory in there that asks to identify the 13 authors of the documents, but they didn't' identify the t '!
14 documents. So I don't believe they have identified the 15 authors either.
16 So the answer is "yes." I asked them, but they 17 didn' t answer me.
18 -
19 20 ,
21 22 23 24 s 25
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8070 04 01 10358 1 DAVbw 1 JUDGE KELLEY: Assuming the Board says that we're 7
2 now swayed by your need description to disclose the 3 documents, would that suggest a deposition?
4 MR. EDDLEMAN: I can do that.
5 JUDGE KELLEY: I'm not suggesting we would do 6 that. I'm just asking whether that's part of what you're 7 asking for.
8 MR. EDDLEMAN: I could go with a deposition. I 9 presume if they identify the authors of this, I could 10 subpoena them into the bearing. Those are two 11 alternatives.
12 JUDGE KELLEY: This is if you survive summary 13 disposition; right?
's' 14 MR. EDDLEMAN: Yes, sir.
15 JUDGE KELLEY: You can' t assume there's going to 16 be any point at this hearing. You may get past that or you 17 may not.
18 MR. EDDLEMAN: Right. And we can' t assume there 19 won't be either.
20 JUDGE KELLEY: True. Are you requesting that?
21 MR. EDDLEMAN: Sir?
22 JUDGE KELLEY: Are you requesting an opportunity 23 to depose one or some of these people?
24 MR. EDDLEMAN: Certainly.
,-s 25 JUDGE KELLEY: Under what circumstances?
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8070-04 02 10359 l
1 DAVbw 1 MR. EDDLEMAN: Given that they won't release the
()
,. ~
2 documents, the alternative is to depose them or to bring 3 them in as witnesses, assuming the things get past summary 4 disposition.
5 JUDGE KELLEY: I'm thinking, for one thing, 6 about, again, I'm not proposing any of this, I'm just trying 7 to see whether it's something that's possible under the 8 schedule for sunmary disposition. I believe your response 9 is due next week; correct?
10 MR. EDDLEMAN: The 13th.
11 JUDGE KELLEY: Are you proposing to depose them 12 before that or after that?
13 MR. EDDLEMAN: Well, I guess it would be quite k/ 14 difficult. We could presumably do it under the sort of' tape 15 recording system that we had earlier and maybe even by 16 telephone, if it were necessary. If it's necessary to do it 17 within that time frame, I'd certainly go with that. Of 18 course, another thing to do would just be to see if it 19 survived summary disposition. If it doesn't, then the issue 20 is moot.
21 JUDGE KELLEY: You mean go ahead and respond
-22 without this information, and if you survive summary 23 disposition, you'll pursue it later?
24 MR. EDDLEMAN: I just realized that I shot myself 25 in the foot there. Let me take that back if I may.
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8070 04 03 10360 1 DAVbw 1 JUDGE KELLEY: You're not committed to anything
- 2 you've said. We're just considering. Mr. Flynn wil have 3 his opportunity to comment on the whole idea.
4 MR. EDDLEMAN: What I wanted to amend myself to 5 was that, obviously, if the information that's available in 6 these documents would help me stave off summary disposition 7 -- I'm in kind of a Catch-22 here. If I can't get the 8 information and I get summary disposition on account of the 9 fact that I can't get the information that would help me 10 stave it off, then I'm stuck.
11 -
JUDGE KELLEY: With some hesitation, I'll offer 12 you an observation. Having read these documents and it's 13 only my conclusion and nobody else's, and you can take it or
(_J 14 leave it for whatever it's worth, but if I were litigating 15 this from your side of the bench, and I wanted these 16 documents for my case, I guess what I'm really looking for, 17 among other things, one o'f the things I'd be very interested 18 in would be something I would call a " smoking gun," some 19 very negative piece of information that was at odds with the 20 report. I will tell you, having read these over, I 21 didn't find such a thing in these papers. Now I don't want 22 to be held to that in any strict sense. You might very well 23 disagree with me, if you read it. But I thought they were 24 toughly consistent with the final report.
,_s 25 I didn't measure them line for line against the U
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8070 04 04 10361 1 DAVbw 1 report, but I read them.
And for whatever that's worth, I offer it.
.( ) 2 3 MR. EDDLEMAN: Judge. Let's take that again, 4 just for the sake of argument.
5 Assume that judgment turns out to be absolutely 6 correct, no matter who's making the judgment. Then the 7 question is, given that the information in these things is 8 consistent with the final report, why withhold them?
9 JUDGE KELLEY: I think I'll leave that to 'EMA, 10 but I might just say that the agencies, generally, as a 11 matter of principle, don't like to cut loose this kind of 12 material. They can't say that any.particular piece of paper 13 is all that damaging, but on the other hand, they're either
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) 14 At least,.that's going to keep their drafts or they're not.
15 what I've often heard.
16 You can ask Mr. Flynn.
17 Well,.let me pass it to Mr. Flynn for a moment 18 and see what reaction he has to these discussions we've been 19 having.
20 MR. FLYNN: Thank you, your Honor. I think these 21 documents have taken on a certain mystique, precisely 22 because we've said that we don' t want Mr. Eddleman to have 23 them, and it might be that if we did, he'd be very 24 disinterested in what they have to say. I'm in the same 25 position that he is in that it happens that I have not seen 7s d
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8070 04-05 10362 1 DAVbw 1 the documents either. They were passed on to the Board j 2 without going through my office, but I think that puts me at 3 a certain advantage in making this argument, in that it 4 forces me to focus on the overriding principles rather 5 than the details of the case, and as the Board has already 6 pointed out, the party moving.for the disclosure, has to 7 show an overriding need.
8 The government has strong interest in protecting 9 its decisional process, and the way that overriding need is 10 shown, is through the mechanism of the in camera inspection 11 in a showing that the information in the documents, number 12 one, is relevant or discoverable, in the sense that it's 13 likely to lead to the discovery of admissable evidence.
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14 Two, that the information there is important.
15 I'll explain what I mean by that in a momer.t.
16 And thirdly, that it's otherwise unavailable.
17 I think the Board has already addressed the 18 question of the availability of the information in these 19 documents by pointing out that by and large, it appears to 20 be consistent with the findings that have already been 21 expressed publicly.
22 Now when I indicated that the party moving for 23 disclosure must show that the information is important, what 24 I mean by that is that the information must be something 73 25 more, something that the moving party would like to see, hac
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8070 04 06 10363 1 DAVbw 1 some interest in seeing, that the information might confirm
() 2 what he already knows.
3 If that's all that we' re talking about, it 4 doesn' t overweigh our interest in protecting our decisional 5 process. Perhaps the smoking gun was the best analogy. If 6 there was something that would lead to a significant new 7 avenue of inquiry, then I would be inclined to agree that's 8 important enough to overweigh our interest in protecting our 9 decisional process.
10 I gather from everything that I've heard today 11 that there really isn't anything in the body of material 12 we're talking about that.would lead us into a an area that 13 hasn't already been explored in the discovery process.
I)
14 JUDGE KELLEY: Let me ask you just a couple of 15 logistical type questions. There are some not 16 ;
inconsiderable practical problems associated with formal 17 depositions, as you know. I would guess these evaluators 18 who made these notes -- are these people in Atlanta, or were 19 they likely to be?
i 20 MR. FLYNN: I believe they're in Atlanta.
21 They're all people from the government's regional offices in 22 Atlanta or nearby.
23 JUDGE KELLEY: It's not too likely that they're 24 in Raleigh, North Carolina?
25 MR. FLYNN: I would doubt that.
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8070 04 07 10364 l 1 DAVbw 1 JUDGE KELLEY: What I wanted to ask you was this:
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( 2 Mr. Eddleman wanted to simply talk with these 3 people, some of them on the phone. Let me make a 4 distinction here. You were saying, Mr. Eddleman, before, 5 .not without reason, that if you're giving a deposition, why 6 not just give me the paper? I think the answer to that, you 7 said, not on the phone, before, and I said it's a good 8 point.
9 To me, the distinction is, you could talk to a 10 person from an agency and ask him about his conclusions, 11, what he thinks. What you can' t do is say, and what did you 12 say to your boss? And did your boss make you change the 13 draft? And all that sort of thing. That's-the internal
.r x kJ 14 process that's not available. So if you could just pick up 15 the phone and ask questions and were to elicit the same 16 thing, then there wouldn't be any point in this whole 17 exercise.
18 What you are entitled to get from appropriate 19 people is views on the merits.
20 W'aat I was wondering is whether it would be 21 possible for one, some or any of these evaluators, if 22 Mr. Eddleman wants to pursue it, to just call them up and 23 talk to them informally.
24 MR. FLYNN: That suggestion certainly has merit.
25 I would like to explore that. I'll have to talk to the ACE. FEDERAL REPORTERS, INC.
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'(,8,) 2 JUDGE KELLEY: Mr. Eddleman, the practical 3 problems are currently yours. If you've got people in 4 Atlanta, you've got problems with transportation, court 5 reporters, and who knows what else. If that will do you any 6 good, if you want to pursue that, that is to say, an 7 informal discovery, if you want to call it that. That might 8 be an option, it appears, from Mr. Flynn's standpoint as 9 well.
10 MR. EDDLEMAN: I'd certainly be amenable to that, 11 Judge. -
12 JUDGE KELLEY: I wonder if you could look into
_ 13 that. Give Mr. Eddleman a call.and see if that can't be
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14 worked out. That would only then leave the question of 15 schedule and how soon that could be done and whether this 16 should affect the filing of sunmary disposition responses.
17 We're reluctant to change those dates. Can that 18 kind of thing be done, if it's going to be done, by the 19 middle of next week, so that you could file on time, 20 Mr. Eddleman?
21 MR. EDDLEMAN: Judge, I think I could do it. I 22 might need one more day. I might need to file Friday, 23 instead of Thursday.
24 JUDGE KELLEY: I don't think anybody would object r' 25 to one more day.
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i 8070 04 09 10366 l_,DAVbw 1 Do I hear any objection to filing on the 14th 2 instead of the 13th?
3 (No response.)
4 JUDGE KELLEY: Okay. So we'll advance the filing 5 date to the 14th.
6 Mr. Eddleman and Mr. Flynn will be in touch with 7 each other about the possibility of just phone conversations 8 with whichever of these various evaluators were available.
9 I don't know you'd make the choices. You can talk to all 10 five, and I'll leave that to you, but the idea would be to 11 not get inte a formal deposition and just allow them to get
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12 some more information prior to his having to file any motion 13 for summary disposition.
(^)}
q 14 With that -- is that approach agreeable, 15 Mr. Eddleman?
16 All right. Mr. Flynn?
17 MR. FLYNN: Yes, your Honor.
18 JUDGE KELLEY: So that's a compromise disposition 19 of the dispute.
20 So ordered.
21 Could you just hold a minute while the Board 22 confers about our posture.
23 (Discussion off the record.)
24 JUDGE KELLEY: The Board believes that it would
() 25 be in everybody's interests to go ahead and rule on the ACE-FEDERAL REPORTERS, INC.
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8070 04 10 10367
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k /' 2. The motion to reconsider our January.10th order 3 -- January 16, excuse me. The Applicant's motion to 4 reconsider is denied. We feel that the issues raised in our 5 order are still live issues. We feel that in order to get a 6 reasonable assurance of what the issues involved here are, 7 an accurate determination, based on available evidence, that 8 we should pursue the lines of inquiry that are set forth in 9 the order.
10 We welcome the Applicant's tone alert radio 11 proposal, but we don't think that that addition makes the 12 other issues moot.
13 ,
So that motion is denied, and we will proceed as 14 previously scheduled.
15 MR. EDDLEMAN: Judge, Mr. Flynn and I are still 16 continuing negotiating about some of these other discovery 17 matters. We hope to work that out, but we just wanted to 18 report to the Board that we're still working on those.
19 JUDGE KELLEY: Okay. I'm just assuming, we've 20 set a schedule for filing. I think the schedule's on 21 track.
22 If you need to come to the Board, come ahead.
23 Is there anything else from anybody?
24 (No response.)
() 25 JUDGE KELLEY: Thank you vary much. We're ACE-FEDERAL REPORTERS, INC.
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8070 04 11 10368 1 DAVbw 1 adjourned.
, 2 (Whereupon, at 2:10 p.m., the prehearing 3 conference was adjourned.)
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This is to certify that the attached proceedings before.
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-NAME OF PROCEEDING: CAROLINA POWER & LIGHT COMPANY and NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY (Shearon Harris Nuclear Power Plant)'
DOCKET NO.: 50-400 OL PLACE: BETHESDA, MARYLAND p
d DATE:~ WEDNESDAY, FEBRUARY 5, 1986 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
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