ML20153H662
| ML20153H662 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/10/1988 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#288-6376 ASLBP, OL, NUDOCS 8805130091 | |
| Download: ML20153H662 (105) | |
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OR;GlNAL l
i O UNITED STATES I
NUCLEAR REGULATORY COMMISSION h
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In the Matter of: )
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PUBLIC SERVICE COMPAfiY OF )
11EW HAMPSHIRE, et al., ) Docket tios.: 50-443-OL
) 50-444-OL (SEABROOK STATION, Ut1ITS 1 AND 2) ) O F F - S I T E E M E R G E llc Y P L A fill Ill G
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TELECOt1FERE!1CE )
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t LOCATIOrl: Bethesda, Maryland PAGES: 11122 through 11224 (
DATE: May 10, 1988 0\
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,3 O\ HERITAGE REPORTING CORPORATION W M*Fert"E i 1224 L Serset. N.W., Sake ese WanWeston, D.C. 200H ,
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'(_,) 1 UNITED STATES NUCLEAR REGULATORY COMMISSION !
ATOMIC SAFETY AND LICENSING BOARD l 2
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In the Matter ofs )
4 )
PUBLIC SERVICE COMPANY OF ) Docket Nos.
, 5 NEW HAMPSHIRE, et al., ) 50-443-OL
) 50-444-OL 6 ) OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING 7 )
TELECONFERENCE )
8 9 Monday, May 10, 1988 10 Room 428 11 West Tower 4350 East West Highway 12 Bethesda, Maryland 13
(} The above-entitled matter came on for hearing, pursuant to notice, at 2:36 p.m.
15 BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN 16 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission -
17 Washington, D.C. 20555 18 JUDGE GUSTAVE A. LINENBERGER, JR., MEMBER Atomic Safety and Licensing Board 19 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 20 JUDGE JERRY HARBOUR, MEMBER 21 Atomic Safety and Licensir.g Board U.S. Nuclear Regulatory Commission 22 Washington, D.C. 20555 23 24 25 O Heritage Reporting Corporation (202) 628-4888
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() 1 APPEARANCES:
2 For the Applicant:
3 TilOMAS DIGNAN, ESQ.
Ropes & Gray 4 225 Franklin Street Boston, Massachusetts 02110 5
For the NRC Stafft 6
SHERWIN E. TURK, ESQ.
7 Office of General Counsel U.S. Nuclear Regulatory Commission 8 Washington, D.C. 20555 9 For the Federal Emergency Management Agency:
10 H. JOSEPH FLYNN, ESQ.
Federal Emergency Management Agency 11 500 C Street, S.W.
Washington, D.C. 20472 12 For the State of New Hampshire: '
13
(~ G. DANA BISBEE, ASSISTANT ATTORNEY GENERAL
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14 State of New Hampshire 25 Capitol Street 15 Concord, New llampshire 03301 16 For the Commonwealth of Massachusetts:
17 STEPilEN OLESKEY, ESQ.
JOHN TRAFICONTE, ESQ.
18 Commonwealth of Massachusetts One Ashburton Place, 19th Floor 19 Boston, Massachusetts 02108 20 For the New England Coalition against Nuclear Pollution:
71 ELLYN R. WEISS, ESQ.
22 Harmon & Weiss 2001 S Street, N.W.
23 Washington, D.C. 20009 24 25 O Heritage Reporting Corporation (202) 628-4888
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11124-() _ 1 APPEARANCES: (Continued) 2 For the Seacoast Anti-Pollution Leagues f
I 3 ROBERT BACKUS, ESQ.-
Backus, Meyer & Solomon ,
4 116 Lowell Street Manchester, New Hampshire 03105 5 .
For the Town of Hamptoa:
6-(No appearance) 7 ,
For the Town of Kensington:
8-(No appearance) ,
9 .
t For the Towns of Hampton Falls and North j 10 Hampton and South Hampton l 11 ROBERT BACKUS, ESQ.
Backus, Meyer & Solomon l 12 116 Lowell Street l Manchester, New Hampshire 03105 i 13 '
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{} For the Town of Amesbury:
(No Appearance) :
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o V 1 PROCEEDINGS 2 (2:36 p.m.)
3 JUDGE SMITH: We're on the record now.
4 Mr. Backus explained that he cannot join us until l
5 3:00 o' clock, because he's in court. We decided to start at 6 2:30 to take up the Sholly-Beyea testimony.
7 MR. OLESKEY: Mr. Traficonte will be here in a 8 moment, Judge.
9 JUDGE SMITH: Okay.
10 MR. OLESKEY: He obviously wants to hear, and be 11 prepared to say anything appropriate. If you'll wait just a 12 second, I just heard a car there.
13 JUDGE SMITH: All right. And I also want to report 14 that Mr. Brock called a chort while ago saying that he will not 15 be able to join us this afternoon because his client, the Town 16 of Hampton, voted yesterday not to fund -- I don't know if I'm 17 quoting him exactly -- but the essence is at least not to fund 18 for now the intervention. He still represents the --
19 Not to provide the legal costs of the intervention.
20 He still represents the Town of Amesbury, however, and we'll be 21 seeing him.
22 Would you let me know when Mr. Traficonte arrives?
23 MR. OLESKEY: He just arrived, Judge. Thank you.
24 JUDGE SMITH: We have just had a conversation off the 25 record about starting the hearings on Monday morning rather O Heritage Reporting Corporation (202) 628-4888
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() I than Monday afternoon, and we'll come back to that at the end 2 of this.
3 okay, we're going to take up the new -- well, I guess 4 it's actually Mr. Dignan's objections in Limine to not receive 5 the testimony of Sholly-Beyea, and we've already indicated, I 6 believe, you understand that we're not going to receive it.
7 And now we're going to give you our reasons.
8 OPERATOR: Sir, I have Mr. Bisbee on the line for 9 Mr. Huntington.
10 JUDGE SMITH: That's fine.
11 Welcome, MR. Bisbee.
12 MR. BISBEE: Thank you very much.
13 Good afternoon, eveeytody.
14 JUDGE SMITH: You haven't missed anything. I'm about 15 ready to rule on the Sholly-Beyea testimony. We will not take 16 up the other matters until 3:00 o' clock when Mr. Backus will 4 .
17 join us.
18 MR. BISBEE: All right. Thank you.
, 19 JUDGE SMITH: Firstly, we'll take it up pretty n uch 20 chronologically.
21 Let me state that we, going over the transcript, more 22 than once, we still find it difficult to understand portions of 23 the arguments. And I'll point out some parts where we just 24 simply have lost the thread of the logic.
25 Beginning with Mr. Traficonte's arguments, there's no i
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() 1 question it's the same arguments as rejected by the Board a
2 carlier based upon fundamentally our understanding of the 3 Commission's ruling in Chl-86-13 Shoreham case in the Statement 4 of Considerations for the new rule.
5 This time, however, Mr. Traficonte states that it's !
6 offered only as rebuttal to FEMA's position. And we understand ,
7 the argument to be sort of , imugh syllogism,and that is, 8 according to Mr. Traficoni s MA's testimony la based upon by 9 implication some assessment of the level of risk measured by ;
10 dose consequences to the beach population. That was their :
11 first testimony he's alluding to.
4 12 Now, comes a new position which he po'+
- out is 13 based in part upon the Board's ruling. Now, it's before where ,
O 14 Massachusetts AG was supporting FEMA and now wishes to oppose I 15 it. And the FEMA's postulated position opposed by f 16 Massachusetts Attorney General is that FEMA is defending its ;
- 17 new position again by a dose consequence analysis because, 18 a) it's based upon a generic view across the spectrum i i
19 of plant sites in the United States that evacuation only is the t 20 appropriate protective action for fast paced core melts.
21 b) The foregoing is a dose generic consequence i
22 analysis taken from NUREG 1210.
I 23 And, three, that such an analysis is inappropriate 1
24 for Seabrook because of the large populations within three s i ;
25 miles compared to, as he states it, somewhere around 300 in the l 1
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- V 'l 1210 generic rule close in.
2 Mr. Traficonte argues that NUREG 1210 prohibits 3 decisionmaker from pondering over sheltering viz a viz 4 evacuation, that the choice must be evacuation. And that I 5 think he may be arguing that this flows from the argument that, 6 he's making the argument, if we understand, although that was a 7 little bit confusing, although he agreed with my assessment of 8 it, that the Massachusetts Attorney General says that those 9 consequence assessments are essential to make a choice between 10 protective actions.
11 Therefore, the argument goes, that the Massachusetts 12 Attorney General needs to show by dose consequence analysis
_ 13 that generic 1210 recommendations, NUREG 1210 recommendations J 14 is inappropriate to Seabrook.
15 Mr. Flynn argues on behalf of FEMA that FEMA disavows 16 a dose consequence analysis, in part because of the Board's 17 ruling. What is required is generic planning for a broad range 18 of accidents so that some scenarios are not overlooked. He 19 goes on that NUREG 1210 recognizes that in the early stages, it 20 is nearly impossible to project doses, and that FEMA has relied
! 21 upon 1210 only for the early decisions based upon plant status i
22 in closed-in sites.
23 He points out that FEMA is not able to support a dose 24 consequence analysis for the selection of sheltering versus 25 evacuation. If that's what the Board wanted, FEMA cannot O Heritage Reporting Corporation (202) 628-4888 l
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2 Then on page 10268, Mr. Flynn came back and'said FEMA
'3 does not rely upon NUREG 1210 for the proposition that
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4 evacuation is a preferred protective action for closed in-5 areas. He states, after consultation apparently_with Mr. Turk, 6 that that proposition is not found in 1210. This did not seem 7 to be what everybody else agrees is found in 1210. But we 8 don't understand that point.
9 We turned to Mr. Turk's arguments, and I might say 10 that we agree with most of his points. He states that NUREG 11 1210 is a training manual and that it is predicated upon the 12 premise that it-is difficult to predict source terms and the 13 nature of releases. And that only plant status can be used in O
k' 14 the early stages. One should not go through dose projections 15 or a flow tree analysis at the early stages on the making the 16 decision of shelter versus evacuation.
17 He says that the 300-person three-mile presumption 18 attributed to NUREG 1210 by Mr. Traficonte is not accurate. He 19 says it is a severe entrapment problem expected to be rare that 20 is being addressed. And he points out situations such as 21 hospitals and that there are few hospitals close in.
Therefore, as I understand Mr. Turk's argument, evacuation 32 23 would not be a problem, and that the best and perhaps only 24 protective action that can afford basic radiation protection 25 would be in evacuation.
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ss [1 In fact, he points out that NUREG 1210 recognizes 2 that.the density at some sites is higher, and that apparently 3 something other than evacuation, that is, something in addition 4 to evacuation, as I understand him, should be considered.
5 The basic thrust that Mr. Turk would have us 6 understand from NUREG 1210 is that one doesn't wait. You act 7 on plant conditions, that those consequence assessn.ents cannot 8 be made until after release. Therefore, he states, NUREG 1210 9 cannot be a generic dose ccnsequence document.
10 And we'll come back to that because we agree with 11 that reasoning and that's important to our decision.
12 Mr. Turk distinguishes tne Sholly-Beyea testimony 13 which undertakes those consequence analysis for particular 14 accident sequences. And we agree that that is a point to 15 distinguish.
16 Then he makes his point that if FEMA's testimony is 17 in fact a dose consequence analysis, while we may not want to 10 accept it. However, he does not believe that it is a dose 19 consequence analysis. And in any event, a simple reference to 20 NUREG 1210 itself would not support the litigation anticipated 21 by the Sholly-Beyea testimony.
22 Mr. Dignan says that, he echoes that point that the 23 reference 1210, NUREG 1210 in FEMA's testimony is only slight, 24 and it's simply meant to be a common sense matter, recognizing 25 that at early stages of an accident, you don't know much. And O Heritage Reporting Corporation (202) 628-4888 l
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) Il whatever the case is, we're still obliged to comply with the 2 Commission. law, and we cannot compare Seabrook with either 3 another specific site or even to a generic.. site.
4 I apologize to everybody for. trashing up your 5 arguments the way I have. But we're just trying to put our 6 ruling in-context.
7 And we considered carefully Ms. Weiss' arguments.
8 She made it clear she supports Mr. Traficonte in his arguments, 9 but goes on to argue that the Sholly-Beyea testimony should 10 stand on its own for reasons similar to Mr..Traficonte's 11 earlier argument last November, which we're familiar with.
12 She states that early actions before release, before 2 13 dose projections even at the alter level would not achieve 0 - 14 maximum or significant dose savings in a fast-breaking severe 15 accident. Therefore, if the early action, be it either shelter 16 or evacuation, cannot provide dose savings, the plant is not 17 adequate.
18 Here again, we come into a little bit of confusion.
19 Ms. Weiss seems to endorse Mr. Turk's representation of the 20 limit to the reach of NUREG 1210 but she says that FEMA may 21 have not properly used NUREG 1210, that she learns apparently 22 from discovery that FEMA sees a generic dose consequence, t 23 analysis in NUREG 1210.
24 Mr. Flynn disputes this and says it's simply a method I
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( 1 projecting and 'is needed to make a rational decision promptly 2 for the population close in.
3 Mr. Traficonte gets back into the argument and points 4 .out that where entrapment may be the case, that-would' include 5 open air entrapment such as one might find at Seabrook and that 6 sheltering is needed. Then, Mr. Traficonte goes into a 7 discussion we found to be very confusing.
8 And I'm going to read from the transcript beginning 9 at page 10,289 on this point, or at least allude to it.
10 Beginning at the bottom of page 10,288, 11 Mr. Traficonte quotes from a part of apparently Volume 4,of 42 that NUREG, and states, while large population density makes 13 entrapment outside the open air very likely, we won't'have a 14 severe entrapment problem anticipated NUREG 1210.
15 But then he goes on to say, NUREG 1210 makes two 16 statements. This is on page 10,289. It makes one, the first 17 statement is that in a generic site where there are 300 people 18 within three miles on a predetermined basis, not on the basis 19 of dose consequences or dose analysis at the time of the 20 emergency, but on a predetermined basis at the generic site, 21 you would order evacuation for the severe fast-paced accident.
22 That seems to me that Mr. Traficonte is agreeing with 23 Mr. Turk on that point.
24 Then he goes on to say there are exceptions to that, 25 however, and the exceptions which you would want to have a O Heritage Reporting Corporation (202) 628-4838
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(_) l1 showing option available include entrapment conditions that we 2 believe are identical to the conditions that would develop if 3 an evacuation was ordered at Seabrook in the summer months.
4 So I am escaping one of his arguments there. I mean, 5 one of his arguments escapes us.
6 In any event, he goes on to summarize the-argument 7 made last November, and that is, if evacuation is inadequate, 8 they should be able to show it, it's an open issue, and they 9 should be able to show it by Sholly-Beyea.
10 Our ruling is as follows and our reasoning.
- 11 The Board has not researched NUREG 1210. We don't l 12 even have it. The parties do not seem to really in the last l
l 13 analysis disagree what it says. But in any event, it's not an 14 NRC regulation. It doesn't have any status in our hearing.
15 It's not even a planning document.
16 I have to back up on that because it does have status 17 in our hearing; only, however, as a reference in FEMA's 18 testimony. We agree with Mr. Flynn and Mr. Turk that if in 19 fact, FEMA has made a comparison through generic dose 20 consequences at a generic plant site with Seabrook, then FEMA's 21 position contradicts the NRC's guidance that we received in the 22 Shoreham case. And that the Board may not follow FEMA in that 23 direction, j 24 If that were the case, we would have expectel i
25 appropriate motions to be before us when the evidence is
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() {1 presented. But a better reading of FEMA's testimony,
'2 particular with Mr. Flynn explaining it, is that FEMA looks at 3 NUREG 1210 not as-a generic' dose consequence analysis, but 4 simply as a common sense statement that early action should be 5 taken before a dose projection can be made, therefore, before a 6 choice between sheltering versus evacuation. Or perhaps -- and.
7 this is our own observation -- or perhaps between protective 8 action and no protective action can be made.
9- We look at the message from NUREG 1210 in two ways:
10 perhaps, and probably not, it has a non-specific dose 11 consequence considerations and analysis inherent in it. But 12 the better reading of FEMA's reliance upon NUREG 1310'is that 13 it is the other side of the coin, that it is manifestly without O 14 regard to dose consequence analysis, and in the absence of 15 reliable projected doses, source terms and other information, 16 it is prudent to take whatever action may be taken. And that 17 is, evacuation of the close in population as soon as the plant 18 condition indicates that protective actions might later be i
19 necessary.
20 That is our ruling on it. We, as it indicated, it 21 was difficult to follow the arguments at all times, although i
22 I'm confident that we got the essence of them. I don't know if 33 you want to ask for clarification.
24 I might state that the most important part of our 25 ruling is that even if it is what Mr. Traficonte says it is, l
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that does not mean that we're going to go into such a 1
'2 litigation. We cannot. And it's not what he says it is 3 anyway.
4 Anything further on this point?.
5 -MR. TURK: Your Honor, this is'Sherwin Turk. Just 6 one clarification. .You made reference to page'10,268 in which.
7 Mr. Flynn indicated some remark that had been made to him 8 during a break, and you had believed that I personally had made 9 the remark to him.
10 I don't think that's correct. I don't recall having 11 a discussion with Mr. Flynn and he doesn't indicate it in the 12 transcript.
13 JUDGE SMITH: No, he doesn't.
14 MR. FLYNN: I can clear that up, Your Honor.
i 15 My conversation in fact was with Mr. Dignan. I was 16 careful on the record to cast my remark in the passive voice 17 rather than active, so I didn't have to say who it was who had 18 talked to me. And Mr. Dignan had some concern about the two 19 points that I indicated FEMA relied on 1210 for.
20 And he was explaining to me that the words of our 21 prefiled testimony made it clear that there was in fact only 22 one point that we relied on 1210 for, namely, that early 23 decisions should be made on plant conditions rather than dose 24 projections.
25 And he was concerned about the impression that I
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() ji created in my argument that we used 1210 as the basis for our
~2 conclusion in the testimony that it was always or almost always 3 appropriate to use evacuation for the close in areas, rather 4 than sheltering as the protective action. And I think he 5 developed that point himself later.
6 I realized when I went back over the transcript that 7 the way I explained that problem was frankly inconsistent with 8 the remarks of Mr. Turk that followed immediately, So to the 9 extent that what I said was confusing, I apologize, but I don't 10 think it has a great deal of affect on the ruling.
11 I think you have correctly understood the points that 12 I was trying to make.
13 JUDGE SMITH: Anybody further on this point?
O 14 (No response) 15 JUDGE SMITH: Is everybody -- let me see. Let's take 16 the roll again.
17 Are you here, Mr. Traficonte?
18 MR. TRAFICONTE: Yes, I am, Your Honor.
l 19 JUDGE SMITH: Ms. Weiss?
20 MS. WEISS: Yes.
21 JUDGE SMITH: Okay.
22 We're ready to go into the motion for subpoenas and
, 23 the other relief sought with respect to FEHA's testimony. I l
24 wanted Mr. Backus to be present. It's not. It's basically his 25 motion.
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( Let's.take up the matter of the scheduling.
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2 Mr. Traficonte and Mr. Oleskey?
- 3 MR. TRAFICONTE
- Yes, Judge?
4 JUDGE SMITH: We were contemplating the possibility 5 of starting the hearings at 9:00 Monday morning rather than 6 1:00 because we find that there's very efficient transportation-7 up there and we feel that we need'more efficiency for next 8 week. We have a very big week ahead of us.
9 Would that be much of a problem for you?
10 MR. TRAF: CONTE: How about 10:00, Judge. That will .
11 give us a Jittle more time.
}2 JUDGE SMITH: 10:00 o' clock?
13 MR. TRAF7. CONTE: Yes.
O 14 JUDGE SMITH: That'll give us two hours. It's 15 marginal, you know.
16 We're also of the impression, we want to discuss whether we think we're going to need'a third week, and we'll 17 18 defer that until we hear what is going to be needed to resolve; 19 the problems of FEMA's testimony.
20 I guess, Ms. Weiss, you're not all that eager to gain 2 .1 two hours?
22 MS. WEISS: I'd prefer to stay home that evening, but 23 I can do it.
I 24 JUDGE SMITH: I know.
25 All right. We will stay connected and everything but Heritage Reporting Corporation (202) 628-4888
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.,y/- 1 take a short break while we're waiting for Mr. Backus to come
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'3- (Brief recess is taken.) ,
4 JUDGE SMITH: Back on the record.
5 The Board was talking about the scheduling and it may 6 be that when we look at the way the testimony on the FEMA 7 prefiled testimony falls, that we may not have a full week next 8 week. But we will need in any event a third week to handle all
- - 9 the problems attendant to scheduling everybody.
10 So the way things stand right now, we're inclined to 11 leave matters rest as they are and start at 1:00 o' clock on 12 Monday. I think every appreciates the extra time, too.
13 MR. TRAFICONTE: Your Honor, John Traficonte in 14 Boston. We're not sure we understood the import of that last 15 remark. Is it the intention of the Board then to begin this 16 coming week with the FEMA testimony?
17 JUDGE SMITH: No.
l 18 MR. TRAFICONTE: And FEMA witnesses as presently putc 19 together?
20 JUDGE SMITH: No. As soon as Mr. Backus gets on, 21 we'll take that up. But the intention would be to continue 22 this panel and then there's another witness, Eckert, by 23 himself. ,
74 And then that's about it, isn't it?
25 MR. OLESKEY: Yes, Judge, it is.
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11 JUDGE SMITH: 2And then move to the next phase.
i2 There's no rebuttal testimony, no.
3 Move to the next phase'which I think when we get into' 4 -the discussion you might find to be severable and.then complete
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5 'the final phase of the FEMA testimony ~1n yet another week. So 6 we may have a short week next week. But we'll come to that as-7 soon as Mr. Backus joins us.
8 MR. FLYNN: Your Honor, I think there is one other-9 matter that we can take up in the meantime, and that is the 10 pending motion by Matthew Brock on behalf of the Town of 11 Hampton to reopen the deposition of Edward Thomas.
12 In view of the decision of the Town of Hampton to 13 withdraw at this time, I take it that particular motion is [
O' 14 withdrawn.
15 MS. WEISS: No, that's not true. It's-a joint-16 motion.
17 JUDGE SMITH: Yes, I understood it to be a joint 18 motion, and in any event, it's mooted. It will have been 19 mooted.
20 MR. TURK: Your Honor, just so I'm clear on this, are 21 we to start at 1:00 o' clock on Monday?
22 JUDGE SMITH: One o' clock on Monday as previously 23 scheduled.
24 MR. TURK: Hello?
25 JUDGE SMITH: I'm scrry. My mute button was on. I O Heritage Reporting Corporation l (202) 628-4888 l
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11140-( ; 1' have a button here-I can use for muting and mooting, both. And l2 while.I was muted, we. recognized that the motion with respect
.3. to Mr. Thomas'is moot.
4 But we're going to hold to the 1:00 o' clock on, 5 Monday.
6 MR. TURK: Thank you.
7 MR. OLESKEY: Did you indicate why his motion.was 8 moot, Judge?
9 JUDGE SMITH: We'll come to that.
10 MR. OLESKEY: Okay.
11 JUDGE SMITH: Because he's going to ccme to see us 12 anyway.
13 MR. TRAFICONTE: While we're waiting for Mr. Backus, 14 I've been sitting here digesting the Board's ruling on the 15 Sholly-Beyea. I just, as a point of clarification, if I've 16 understood the thrust of the ruling, has the Board made --
17 well, let me put it this way. As the FEMA testimony unfolds 18 and when the witnesses appear to defend that testimony and in 19 particular what appears on pages 7 through 11, I take it that 20 we would always be free to, other parties would be free at that 21 point if it appears that the understanding of that testimony by 22 those witnesses is that it is a form of dose consequence 23 analysis, and that for example, 1210 is based in some fashion 54 on a generic dose consequence analysis, that we would be free 25 at that juncture to move to strike that technical basis.
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.The Board's not ruling on that issue, then?
.2 JUDGE SMITH: Yes. You 're certainly' going' to ' be free
'3 to move it, and we're not-ruling on that'. I'think we've
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4 probably pretty well ruled that no matter what NUREG 1210 has 5 to say, you'd have to tie it pretty close to FEMA. But we're 6 not trying to anticipate what motion you might make with 7 respect to FEMA's testimony.
8 MR. TRAFICONTE: You haven't judged the issue 1now as 9 to whether or not the technical support that FEMA has cited-is 10- a form of dose consequence analysis? That issue is still an .
11 open one. ,
12 JUDGE SMITH: Yes.
13 MR. TRAFICONTE: And if it turns out that the
( 14 witnesses that defend that portion of this testimony testify 15 that they view it as a dose consequence analysis of a kind, ,
15 that we would be free to move to-strike at that point?
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17 JUDGE SMITH: Yes. We haven't foreclosed that. .
18 We've only had Mr. Flynn's.
19 MR. TRAFICONTE: Right. We've heard Mr. Flynn 20 explain what it means. I understand that.
21 JUDGE SMITH: That's all we have.
22 Well, look, I think we should proceed on these 1
23 matters. It's been a joint intervenors endeavor. I think that 34 the Massachusetts Attorney General Mr. Oleskey, you were the i
25 main person on it, weren't you? You're present, aren't you?
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. \, J 1 MR. OLESKEY: Yes, I am, Judge. But I will have to 2 leave at quarter of, and Mr. Traficonte would carry on_at that
'3 time if we're still going.
4 JUDGE SMITH: Well, then I think that if you have to 5 leave, we should go ahead without Mr. Backus and I'll leave it 6 up to the intervenors and he can read the transcript. And if 7 he has some problems, he can bring it up with us.
4 8 But I don't think we have too much time, so I'm just -; ,
9 going to go ahead.
10 As we had indicated earlier, the Board is stepping 11 into this dispute and taking our own affirmative actions in an-12 effort to come to a broader and a better resolution of it, 13 rather.than trying to handle all these problems piecemeal in 14 the context of individual motions.
15 And we have in fact, as you will see and as you ,
16 already know, indicated we're going to take some actions which 17 would substantially grant the relief that intervenors have 1
l 18 asked for, and for that matter, some of the relief that 19 Mr. Dignan has asked for.
20 And let me give you some of our reasons for doing 21 that so you understand the context of our statements further 22 on.
23 In reading the briefs, particularly those briefs that 24 were filed by Ms. Weiss on the motion for directed 25 certification, it came clear to us that we didn't have good l
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.() 1 communication that the credibility of the FEMA witnesses could
- 2 be explored thoroughly. That was alluded to in passing. As a
!3 matter of fact, I noted in reading the transcript that I hadn't 4 . captured Ms. Weiss' argument. Mr. Cumming has come to the 5 hearing, for example, given a chronology, and he should be, 6 there should be an opportunity to explore that. ,
7 But in any event, it has not been understood I don't 8 believe by the intervenors that it has been our view and is our 9 view that there's more than one path to due process and 10 confrontation of the case that you're facing in prehearing 11 discovery is not always that path.
12 Courtroom confrontation discovery is time honored and 13 perfectly satisfactory if it functionally does the job. And we
() 14 think that in this situation it can do it. Further, we've 15 reconsidered our legal position.
16 We think that it is still good law that any 17 rebuttable presumption of the correctness of FEMA's position 18 will diminish and perhaps even vanish when met by reliable -
19 evidence. And we made a prediction, based upon what we know 20 about matters on the record, in the record already and probably 21 in the wings of the record that our prediction will probably be 22 sound, that there probably will be no presumption either way.
23 But that is based in large part upon matters not yet in 4 evidence. ,
25 And we believe with greater reflection on the matter O Heritage Reporting Corporation (202) 628-4888
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() I that judgments as to the survival of the rebuttable presumption f2 either way should be based upon a reasonably complete r .-
'3 evidentiary record, not our predictions of it, and particularly 4 upon simple discovery matters.
5 And then another-reason is, we had previously implied 6 that we had been making an evenhanded determination that one, 7 at the beginning, the intervenors had going for them a 8 rebuttable presumption attendant to FEMA's position. And we had 9 trouble with that, and wondered if they would have that 10 rebuttable presumption. .
s.
11 And now, on the other hand, applicant has a 12 rebuttable presumption which we're not very happy with that 13 either. So we thought the score is zero to zero. Nobody has a 0 la rebuttable presumption, nobody's hurt, and so we cannot find 15 then any overwhelming need to invade the deliberative process -
16 when it was not~likely to affect the outcome of the hearing.
17 But the fact is, we recognize now that at one time, 18 intervenors did have a rebuttable presumption, and now they 19 don't. So they're not even. They had one to zero before, and 20 now they have nothing. And they're not satisfied with that.
21 Also, Mr. Dignan has made it clear that he's 22 reluctant to give up what he sees is a rebuttable presumption, 23 although I don't hear him arguing with quite the fervor along 34 that line that intervenors do. But he nevertheless has argued 25 it.
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() 1 And therefore, we believe that the needs of the 2 parties can be better met by ventilation of the reasons for i
3' FEMA's change. '
4 Then we have a third reason, and this is I think is 5 also very important that we believe that there's a. substantial 6 probability that the quality of the evidence presented and 7 about to be presented by FEMA does not satisfy the standards 8 that the evidence presented to us must be fully forthcoming and 9 accurate, particularly by a Government agency in its 10 presentation in a Federal proceeding under the Administrative 11 Procedures Act.
12 And we begin with a review of Mr. Thomas' testimony 13 on October 7th. Mr. Thomas came to the hearing representing
/ 14 that he is a single witness on the beach population sheltering 15 issue because that issue has largely involved matters of 16 policy. And that he was the FEMA person responsible for 17 explaining implementing FEMA policy.
18 And he went on to explain that the FEMA position was 19 arrived at in a collegial process after consultation with the i
20 Regional Assistance Committee, and that the process involves a 21 RAC review and a RAC position. And that review is done by a l
22 consensus within the Regional Assistance Committee.
23 Although Mr. Thomas did explain that the FEMA l 24 position involved more than RAC review, he did point out,on 75 several occasions that the RAC review is the bulk of the FEMA I ) Heritage Reporting Corporation (202) 628-4888 i
11146 1 collegium, as he stated it. He did make it clear that the-RAC
- 2 review is central but not all of the. factors leading to the i3 FEMA position.
4 We did not learn until Mr. Thomas was cross examined S for the second time, that's the time on November 4th, that the 6 RAC review constituted, "non-agreement" by the other 7 participants in the proceeding, except for FEMA, of course.
8 But we had learned also through what we called 9 belabored cross examination, I mean, hard work, earlier that 10 the NRC was in disagreement. We then received the applicant's 11 motion to subpoena Lazarus and Bores. And those matters are 12 not in evidence.
13 But we'are concerned that Mr. Thomas, when he ,
O 14 testified the third time about the RAC meeting in early January 15 in answer to my question, said he did not believe that-there 16 was any difference between his account of the July 30 RAC 17 meeting and the account represented by Dr. Bores in the Bores 18 Memorandum to Mr. Turk, which Mr. Thomas was familiar with.
- 19 So we have really some serious concerns about 20 Mr. Thomas' perception of.what had happened in the RAC. And we 21 today have based upon the evidentiary record so far have very 22 large concerns about Mr. Thomas' forthrightness and candor on 23 this subject. We leave unresolved further doubts about that 24 matter until we've been able to hear from Dr. Bores and 4 25 Mr. Lazarus on this subject.
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() 1 So we have no fixed opinion on'that' point.
2 However,. it was against that background that we were
!3 asked by-intervenors to authorize a very large discovery 4 ' endeavor against FEMA and NRC officials based upon Mr.. Thomas' 5 deposition whose candor.already in doubt was speaking from 6 third-hand knowledge that has become so important, the meeting 7 of January 19, 1988.
8 In essence there we simply did not believe that that 9 was sufficient to set aside the value of the executive 10 privilege and authorize the very large discovery effort that-11 intervenors had in mind.
12 Then our concerns shifted to several aspects of 13 FEMA's testimony on March 14th. First, Mr. Cumming would come 14 to the hearing and testify, and I have a quote here, "as 15 accurately as I can, the history of how FEMA developed its 16 position." And he gives a chronology. And the chronology 17 leaves out events that we believe should have been included in 18 any full history of how FEMA developed its position.
19 As a minor point, relatively minor point, he left out 20 the NRC's differing difference with FEMA at the RAC meeting of 21 July 30, '87, although we recognized that Mr. Cumming knows 22 full well -- and I'm not making any suggestions there because 23 that is a matter that had been largely gone into in the public 24 hearing -- but we thought it was very remarkable that 25 Mr. Cumming does not even allude to the meeting of January 19, O Heritage Reporting Corporation (202) 628-4888
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'( 1 1988, between the NRC and FEMA.
2 And we simply; don't understand this.
2 3 We know from General Becton's prjvileged affidavit l
l 4 that the FEMA NRC meeting was important enough that it had an 5 agenda and even had preplanned FEMA talking points. And that 6 the meeting involved high ranking decisionmakers from both 7 agencies. And we wonder how any history of how FEMA changed 8 its position could at least not report that matter, when it 9 reported other matters that we'd regard of lesser significance.
10 We believe that that meeting should have been 11 reported. If anyone undertakes to report the history, that 12 omission was inappropriate.
13 And we have some words to the NRC Staff. We have ben 14 generally confused about what the NRC Staff has been doing in 15 this proceeding. We know that the Staff filed a rebuttal' plan 16 inadvertently at the beginning of this hearing. Now tlat 17 rebuttal plan was never received by any Board member. We don't 18 know what it says.
19 Presumably, Staff may argue that that rebuttal plan 20 put the Board on notice that there was difficulties that it was 21 experiencing with the quality of FEMA's testimony. We are also 22 aware that Mr. Turk, at least on one occasion and that occasion 23 was at the end of Mr. Thomas' testimony in January, in f ormed 24 the board that the "NRC is aware of other facts."
25 We're also cognizant that the NRC does not exert O Heritage Reporting Corporation (202) 628-4888 i
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11149 executive privilege. We believe that what the NRC Staff
_Q 1 2 believes to be the case, presumably with Mr. Bores and 3 Mr. Lazarus, that there's a state of affairs existing here that'
'4 would not be tolerated by the NRC if FEMA were not involved.
5 The memorandum of understanding requires a situation l 1
6 of I would allude to it as privity or somebody else might call l
7 it identity between NRC and FEMA, and it's our view that the ,
8 NRC Staff has not served the Board well in bringing to our 9 attention what may be important credibility problems with 10 FEMA's early testimony.
11 We will be asking the NRC Staff to on its own using 12 its own imagination and judgment to come forward with a full 13 explanation of its view of these matters. But we have certain O 14 minimum re2eeeee wh1ch we w111 ee te 1eter.
15 Minimally and in this sequence, we would like to 16 begin hearing from Bores and Lazarus as to their differences 17 and particularly the events leading up to and including the 18 July 30th RAC meeting and later events. I think that if you 19 need further clarification of what events we're talking about, 20 you can ask for them.
21 We will direct that forthwith that Mr. Thomas'. notes 22 that were the subject of the deposition which was interrupted 23 by the claim of privilege be produced. After Bores and Lazarus 3
24 appear, we will require the attendance of Mr. Thomas in part to complete the deposition, and in part to address the Bores and 35 O Heritage Reporting Corporation (202) 628-4888
11150 7s
(_) 1 Lazarus testimony.
2 And on this point, we've harbored serious enough
- . 3 question about Mr. Thomas' candor and forthrightness that we 4 would like to remind him of his right to bring counsel. And 5 the Board will entertain and welcome and accommodate counsel to 6 Mr. Thomas if he elects to bring it.
7 The NRC Staff should produce a person designated by 8 the Executive Director for Operations, other than Dr. Bores, 9 Mr. Lazarus or Mr. Turk, somebody who can explain what happened 10 in full context the circumstances surrounding the July 19th 11 meeting, firsthand knowledge.
12 MR. OLESKEY: January 19th, Judge?
13 JUDGE SMITH: I beg your pardon?
14 MR. OLESKEY: January 19th?
15 JUDGE SMITH: Yes. I'm sorry. What did I say?
16 MR. OLESKEY: You said July.
17 JUDGE SMITH: Oh, I'm sorry, January 19, 1988 meeting 10 between NRC and FEMA.
19 Mr. Stello can designate whoever he feels can give a 20 full perspective and accounting of it. Mr. Stello himself has 21 been quoted. He of course is very welcome to come if he should 22 choose. However, our requirement is only that he select 23 somebody who has good knowledge of those events.
24 We will want Mr. Peterson and Mr. McLaughlin. From hereon in, we don't have firm choices or requirements. We
'j 5 Heritage Reporting Corporation (202) 628-4888
11151 k_) I think a choice can be made between Messrs. Krimm and Vickers.
2 We would not welcome or demand for General Becton or Mr. Watson
!3 to appear or Mr. Flynn.
4 We don't know if Mr. Wingo is needed in addition to 5 Peterson and McLaughlin. We just simply don't know. We would 6 think not, but we'll hear arguments.
7 Lawless seems to be cumulative or in addition. She 8 seems to be an observer to events that can be testified by 9 others, so we don't have any feeling that her attendance is 10 required.
11 We don't really understand very well why Mr. Congel, 12 although we understand from his position, we don't understand 13 by his activities why he would be essential.
('n
'- 14 We think that those attendances should satisfy the 15 needs of the parties, and we also believe that that testimony 16 in a public hearing will go far to afford public confidence in 17 our proceeding, which we think is, in addition to the needs of 18 the parties, is also a matter of some importance.
19 Now, we're willing to be heard.
20 Let us begin with Mr. Flynn.
21 MR. FLYNN: Thank you, Your Honor.
22 MR. DIGNAN: Your Honor, before Mr. Flynn begins, 23 this is Mr. Dignan. There was a cut out there, and I wanted to 24 be sure I heard the right sequence.
25 You indicated that you were going to request the NRC O Heritage Reporting Corporation (202) 628-4888
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) I to produce a witness on the famous meeting. And then the next 2 thing I understand you to have said is that Messrs. Peterson
- 3 and McLaughlin would be required to attend. Did I miss any l l
'4 witnesses in between those? l 5 JUDGE SMITH: No. No witnesses. We pointed out that 6 Mr. Stel)o was quoted by Mr. Thomas and quoted in other places 7 and he would be welcome to attend if he wished. However, 8 that's not our requirement. That he sheuld designate a person 9 who would not just know understanding of the words that passed 10 at the meeting, but in the context of the meeting.
11 MR. DIGNAN: Thank you, and I'm sorry for the 12 interruption, Your Honor.
13 MR. TURK: Your Honor, one further clarification.
14 After Peterson and McLaughlin, did you indicate that either or 15 Krimm or Vickers will have to attend or are you leaving off 16 anyone but Peterson and McLaughlinY 17 JUDGE SMITH: No, we don't believe that both Krimm 18 and Vickers are required.
19 MR. TURK: So either one would be coming?
20 JUDGE SMITH: The Board wants to consult on that.
21 Our position without benefit of argument by reading 22 the Motion for subpoenas is that either Krimm or Vickers is 23 likely, on balance without further argument, we do not see the 24 need for both of them. Yet, we're willing to entertain 25 arguments that neither should appear or that both should,
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() 1 appear.
2 But if we were.to rule right now, we would' allow the j3 appearance of one-of them, without making the choice.
>4' MR. TRAFICONTE: Your Honor, I'm sorry.- That last 5 word was dropped up here. If you were to rule right now, you 6 would permit or demand the attendance of one of them?
7 JUDGE SMITH: Either Vickers or Krimm.
-8 MP. TRAFICONTE: But one of them would have to attend 9 if you were going to rule now? ,
10 JUDGE SMITH: Right.
11 MR. TRAFICONTE: Okay. I wanted to make sure I heard-12 that.
13 MR. OLESKEY: If we had to choose right-now, Judge,
( 14 we'd ch60se Xrimm, just to give Mr. Flynn some advance warning.
$5 MR. FLYNN: May I proceed, Your Honor?
16 JUDGE SMITH: Mr. Flynn.
17 MR. FLYNN: In addressing the issues that you've 18 raised, I find that I have a great need for some clarification-19 of what the subject matter would be for Mr. Peterson and 20 Mr. McLaughlin. Or another way of putting it, what the 21 boundaries would te on the matter of their examination.
22 In my conversation with them this morning, they 23 reminded me rather strongly that they are not technical people-24 and they're not prepared to answer technical questions beyond 25 reciting the advice that was given to them in the formulation
() '
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(_ 1 of their position, or FEMA's position.
2 Another point that was made in my conversation with 3 them this morning is that Mr. Peterson was confirmed. late in
,4 December, and the policy decisions that were made prior to that l 5 time were Mr. McLaughlin's responsibility. He carried that out j
6 and then after the date of confirmation, the responsibility 7 shifted to Mr. Petorson. So that's just another thing to be 8 taken into account in establishing what the boundaries are.
9 JUDGE SMITH: Yes. I think you've just identified 10 exactly why we'd like to have both of them.
11 We had indicated earlier that one of our concerns 12 about depositions is remaining in bounds, and we'd suggested 13 that one of the solutions might be a Board supervised 14 deposition. This is our next best thing. We want them here.
15 And you know what the issues are. What happened. I 16 mean, that's just exactly what the intervenors are going to be 17 asking. What happened here.
18 MR. FLYNN: Well, I perceive different sets of needs 19 here. The intervenors have clearly focused on the meeting of l 20 January 19th as support for their argument that what FEMA is 21 raying in its prefiled testimony and saying in public otherwise 22 is not the real story.
I 23 That's different from what the Board is saying about 24 trying to understand the relationship between the testimony 25 filed in September '87 and what was filed in March.
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2 clarification. It, I take it, is already established that
,3 Mr. Peterson and Mr. McLaughlin will need' to appear. But when' U I
4 they do, what is it that they will be asked about?
o .
5 Now, I've already answered my own question in'part by 6 identifying the meeting of January 19th as an obvious subject 7 that will be gone into.
8 JUDGE SMITH: In the first place, I'm looking right 9 now at the motion to have the testimony of Grant Peterson. I i
10 think it's rather narrow. We would expect him to be somewhat 11 broader. But he's reported by Mr. Thomas to have been the 12 person who, quote, negotiated away a negative finding in a .
13 meeting with Stello. t We have a basic set of facts here where Mr. Thomas I 14 ,
15 came to the hearing, presented a FEMA position largely a matter
, 16 of policy. Mr. Thomas suddenly does not seem to exist .
. 1
! 17 officially any more. And you have a couple of new witnesses, I
> f 18 and I forgot to mention that. A couple of new witnesses who 19 are new on the scene in lieu of Mr. Thomas. And intervenors I 20 want to know what happened here. ,
j 21 And we agree that a public ventilation of that is j i
22 wholesome and good for the health of public confidence in these l
23 very important hearings. !
t 24 MR. FLYNN: Yes, Your Honor. I find that helpful. f v
t 25 JUDGE SMITH: Now, if they're going to argue about
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() 1 Mr. Peterson's irrelevant aspects of his life, that's why the 2 Board wants to be there.
3 Mr. Flynn, if you'll recall some of the history here, 4 first we suggested that maybe Mr. Peterson, we'd just do away 5 .with this whole problem, Mr. Peterson would give an affidavit 6 you know, that the only thing that entered his decision was-tte 7 advice of his staff, and the staff is being deposed, and 8 there's no problem there.
9 But Mr. Thomas has made some important allegations as 10 to the process. And there's enough objective indications that 11 we believe, without prejudging them at all, we believe.that, 12 number one, the intervenors and the applicant are entitled to i 13 have the full story. And number two, to the limited extent --
14 and we recognize the limitations -- to the limited extent that 15 there is to be public confidence in our proceedings, we wish to 16 assure it.
i 17 Furthermore, no matter what happens, it is'still our f 18 responsibility that we cannot ever be relieved of, of number 19 one, making a decision upon evidence we believe in. And number
! 20 two, protecting the integrity of our process. t 21 MR. FLYNN: Your Honor, I'm not arguing against any i
22 of that. As I say, I take it as established that they will 23 have to appear, although I will have something a little later 24 to say about a jurisdictional question.
- 25 What I'm trying to understand is what the focus of I C
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) 1- their testimony will be. Now, clearly without any question, 2 -the meeting of January 19, 1988 is very much an issue. I 3 accept'that.that is an issue.
,4- You've identified another issue, namely, why is 5 Mr. Thomas not a witness at this point.
6 JUDGE SMITH: Well, maybe you'd better ask the-7 intervenors. My questions would te quite simple to him if I
-8 were the examiner. I'd say, can you tell us from your 9 perspective what you know about the change in FEMA's position 10 from that presented by Mr. Thomas in September to that 11 presented now. And I would then ask him, are there any other 12 bases upon which he himself relied.
I l 13 And we already indicated that a person like him may 14 receive phone calls from different people, but he's not a 15 judicial officer, and he might routinely receive phone calls 16 which he disregards. He's allowed to receive phone calls. You
- 17 see, there's no ex parte rule operating on him like there is 18 judicial officers.
19 We want to know what did he rely upon.
, 20 MR. FLYNN: Yes, Your Honor. I understand that. And
! 21 I think you have clarified for me the questions that I had
- 22 about scope.
23 The next subject that I want to go on to is the I
24 scheduling within the hearing, that is, not only on what dates
! 25 will people appear, but also in what order will people appear.
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11158 L() 1 JUDGE. SMITH: We'll being with Bores and Lazarus, 2 then with Thomas, then with'an NRC witness, and then Peterson 3 and McLaughlin~is my feeling. That's open for recommendation.
j4 We're not making that ruling yes, but that was our -- !
5 MR. FLYNN: When does that mean our panel, the whole 6 Cumming Keller panel would appear?
7 JUDGE SMITH: Oh, I forgot that. That's a very good 8 point. Well, I think that they should go last.
9 MS. WEISS: I would agree.
10 MR. FLYNN: Okay. Clearly, there's more there than 11 we can accomplish in one week of hearings.
12 JUDGE SMITH: That's right. I think there's a i
13 logical breaking point. l
() 14 MR. FLYNN: There's another component to this which 15 we have not talked about before, and that is the conflicting 16 time demands on the FEMA headquarters staff. We are preparing !
' 17 for two exercises, one in Shoreham and one in Seabrook. ,
i
+
18 The Seabrook one is the most complicated one we've ,
1
- 19 ever tried to get ready for because it involves not only a.
20 utility plan but the coordination of a utility plen with a 21 state-sponsored plan in a neighboring state. We've never i
22 encountered that situation before. The tentative date for the l
1 23 Seabrook exercise is the week of June 27th. And that sounds to i
24 me like it's in the same period of time that the second week of l 25 the hearings we're talking about would take place.
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() 1 JUDGE SMITH: No. I anticipate that we'll have 2 roughly half of it done next week. And then the rest of it :
3 done -- we may even have two or three day sessions the 4 following week up there. We'll work it out. But I would 5 Imagine that we perhaps could go back up for a couple days the 6 following week, a couple days the week after that, or whatever.
7 And there's a Memorial Day weekend coming up. It's 8 hard to travel then, but we'll just have to work it out. But I 9 would expect it to be done well before then.
10 MR. FLYNN: Well, actually the time before the 11 exercise is worse for us than afterwards. The point is t. hat 12 Peterson and McLaughlin and certainly Krimm and Vickers are 13 involved in preparing for the exercise.
14 Not only that, their staffs are involved and 15 McLaughlin and Peterson would need their staff to help them get 16 ready for the hearing. And that conflicts with the need to go 17 full speed ahead on the exercise. i 18 I just want to bring that to the Board's attention.
19 JUDGE SMITH: Well, are you saying that we should put 20 this whole thing off until July?
21 MR. FLYNN: I'm suggesting that we would put off the 22 testimony of Peterson, McLaughlin and whoever would come after 23 them until the middle of July. That would still allow Bores, 24 Lazarus and Thomas to testify during the time which is already 25 alloted or scheduled. i O Heritage Reporting Corporation (202) 628-4888 l
1 11160. f JUDGE SMITH: No. We just don't agree, Mr. Flynn.
(]) 1 2 We feel a greater need for dispatch.
3 MR. FLYNN: I understand that. The final point that
- 4 I want to make is to echo what I said in.the brief that was 45 filed before the Appeal Board and to elaborate a little bit on 6 the question of the in personam jurisdiction of the Board.
7 I want to suggest as I did then in the brief that the 8 Licensing Board has in personam jurisdiction over FEMA 9_ officials only through its voluntary cooperation through the 10 Memorandum of Understanding. And I suggest that the 11 appropriate mechanism for the issuance of the subpoenas is 12 through the NRC' Rule 2.720(h) which allows the Executive 13 Director of Operations to designate those witnesses who are'to
() 14 appear.
15 How, I don't gean to suggest by this that we think 16 your choices of witnesses is inappropriate. I'm thinking more 17 to the precedential value of the ruling which you are in the 18 process of making. And I think that it is important to FEMA 19 that it be established that that is the only mechanism by which 20 subpoenas may be issued to compel the attendance of people 21 other than those we've identified as witnesses.
22 JUDGE SMITH: To the extent that that section does 23 apply, 2.7, it has so many subparts, lots of little l's, we 24 believe that the test has been met for issuing subpoenas to 25 people other than those designated by the Executive Director O '
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_O 1 for Ogeretions when thoee geog 1e heve -- 1 don't heve thet
- 2 'section before me right now -- but where the people are
. 3 singularly possessed of the factual background needed to I
- 4 develop a reliable record, we don't need to go through the
,5 Executive Director for Operations for his designation. That's 6 the exception to it.
7 MR. FLYNN: The point I'm trying to make, Your Honor, 8 is that for the precedential value of the ruling, we think it's 9 important that it be established that we are being --
10 (Audio interruption) a
- 11 MR. DIGNAN: Your Honor? ,
i 12 JUDGE SMITH: Yes?
13 MR. DIGNAlh I would respectfully suggest with all 14 due deference to Mr. Flynn that the concern he's raising isn't 15 a real one. Because the .720(h) is where the provision comes iG out of and there's no need for a subpoena. The 1.720(h)(ii) .
17 after going through the usual way about the EDO directing 18 . witnesses goes on to say that the presiding officer may, upon a
! 19 showing of exceptional circumstances, such as the case in which 20 a particular named NRC employee has direct personal knowledge 21 of a material fact not known to the witnesses made available by 22 the EDO -- the testimony of named NRC personnel.
j 23 So whether 2.720(h) is deemed to apply or not to 24 apply, to me, the Board order of today is perfectly sufficient 25 to do the job.
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(');
(_ 1 JUDGE SMITH: Any way you want to approach it, we can 2 approach it if it makes you happy. I understand that there is 3 some thought and some valid tradition that FEMA is here as if 4 it ware the NRC staff. If that's the case, then just come on, 5 because we're making the finding that the circumstances exist.
6 However, I think that there may be a problem in this 7 case. And that is, is there still privity or identity between 8 NRC and FEMA on this issue. Should the concept that FEMA is a 9 part of the NRC staff for this purpose apply.
10 I don't know. I mean, if in fact, the FEMA witnesses 11 were under the umbrella of the NRC staff for this hearing, then 12 our criticism of the NRC staff is greater. I don't know 13 what's happening. I've asked Mr. Turk repeatedly during this
[>l u 14 hearing, what's happening between the NRC and FEMA. Is there a 15 problem. No, no problem, no. And there is a problem.
16 MP. TURK: Your Honor, I'd like to respond. I don't 17 know if Mr. Flynn has finished his comment.
18 MR. FLYNN: Yes, I have finished my comment. Thank 19 you. ,
20 JUDGE SMITH: Mr. Turk?
21 MR. TURK: Yes, Your Honor.
22 Let me first of all offer you a personal apology and 23 apology to members of the Board. It has never been my 24 intention to lead you anywhere but to the truth. The Staff has 25 --
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() 1 JUDGE SMITH: Mr. Turk, I'm not suggesting to the 2 contrary. Going back over the record, I can see that the 3 trouble is there. It was not emphatic enough to get our 4 attention.
'S MR. TURK: Your Honor, I certainly apologize for 6 that.
7 I'd like to explain very briefly that I personally 8 was on the horns of a dilemma. I don't take the view that the 9 FEMA witnesses appear as NRC personnel in the sense that an NRC 10 staff witness would appear as part of my presentation. If I 11 had an NRC staff witness go before you and present an 12 accounting of fact which I believed was incorrect, I would have 13 brought that to your attention immediately.
( 14 The Board has commented upon Mr. Thomas' testimony of 15 last fall. I indicated in the first voir dire, you may find a 16 reference in the transcript, Mr. Flynn turned to me and asked 17 me if the Staff wanted to exert executive privilege.
18 JUDGE SMITH: I recall what you're going to say.
19 MR. TURK: And my response is most emphatic. I think 20 the facts should come out.
21 There are other instances where I sought not -- I 22 suppose the best way to characterize it would be to say I 23 didn't want to be part of the presentation of a factual 24 accounting as was being given, but I really didn't see that I 25 had an appropriate course other than to let the matter unfold O Heritage Reporting Corporation (202) 628-4888 x
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'( ) I through cross examination.
2 And subsequently, when the Massachusetts Attorney 3 General served us, the Staff, with a-discovery request, and I 4 at.that point had in my possession the Board's Lazarus and iS Schomacher memo, in my decision to release those memos rather 6 than t o assert attorney client privilege, it was my belief that 7 this wae an appropriate means to get the matter before the 1
8 Board's attention. And that's a slow way of getting it to you.
9 Acd I hope there's no prejudice on the outcome. And 10 I apologize for the delay and the misperceptions which the 11 Board may have had before those matters were brought to your 12 attention.
13 I should note also that I discussed the matter with
( 14 Mr. Flynn on repeated occasions, and I was hoping that FEMA 15 would be able to resolve any problem with the testimony on its 16 own without my having to become involved in bringing the matter 17 to your attention by myself.
18 Now, let me ask that if the Board would allow me at 19 this point, and address some of the things that we've been 20 talking about more substantively today.
21 JUDGE SMITHt All right, Mr. Turk. Let me interrupt 22 there and say, I acknowledge that had we looked hard enough, we 23 would have seen some signs that there was a problem. But what 24 we saw was that Mr. Thomas began with the testimony that the 25 FEMA's testimony was a product of a RAC review.
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() 1 And at the end of Mr. Dignan's second'voir dire,-the 2 state of affairs as we understood it to be was that there was 3 non-agreements by some and a disagreement by the NRC Staff, and 4 nothing more. That is the different view that we thought that 15 the NRC Staff was alluding to.
'6 It was not indeed until yot responded to discovery u-7 that we learned that the NRC Staff was in fact sitting on 8 information which from the very first day of Mr. Thomas' 9 testimony was certainly relevant to our considerations.
10 I don't want to second guess you, and I'm not 11 suggesting that we don't understand the dilemma you were in, 12 but I don't believe that the NRC Staff in this case has lived 13 up to the high standards that we've come to expect on informing
( 14 the Board on being there to clean up and make sure the record 15 is complete.
16 However, I do: recall now that you did not argue 17 against producing the memorandum that has given rise to this 18 discussion, the memoranda, 19 Go ahead, Mr. Turk.
20 MR. TURK: All right. One other point on that, Your 21 lionor . You mentioned the Staff's rebuttal outline which was 22 inadvertently served. In fact, it was served during the first 23 week of the hearing. I had left instructions for my secretary 24 to mail it out while I was away. And I believe it was on 25 Tuesday of that first week of hearings that the Board indicated O , Heritage Reporting Corporation (202) 628-4888
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(') I they did not need the rebuttal outline. I called back to the 2 office to see if it had gone out yet, and in fact, it had.
3 But I'm surprised that Your Honor had not received it 4 because it was mailed to the service list.
'S JUDGE SMITH: It's entirely, it's possible that the 6 rebuctal outline was in fact somehow delivered to this office.
7 If you recall, it's the time that the Chairman was changing.
8 There was a lot of confusion and it just somehow got dropped.
9 In any event, when we found out that the submittal of 10 rebuttal outlines was not really necessary, we did not want to 11 read it. We deliberately made no effort to find it because it 12 was not intended. It would have been an extra outside the 13 record communication.
( 14 MR. TURK: Well, Your Honor, the parties do have it, 15 and if you like, I can send you an extra copy just so you'll 16 see what it is that the parties have had all these many months.
17 JUDGE SMITH: If you'd like to.
18 MR. TURK: I'll undertake to do that today, Your 19 Honor.
20 JUDGE SMITH: Go ahead, Mr. Turk.
21 MR. TURK: I'd like to address very briefly the 22 discussion of 2.720(h) if that's necessary. I think you've 23 resolved it already but I do want to note that there's only one 24 case as I indicated at the hearing last week, there's only one 25 case in which FEMA has been found to be part of 2.720(h) or to O Heritage Reporting Corporation , ;
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's,) 1 appear as a Staff witness. That was the Shoreham Licensing 2 Board decision in 1983.
3 And I also indicated at the hearing last week that there was a subsequent unpublished licensing Board decision in $
4 5 Shoreham which held that FEMA was a party all to its own.in the
,6 NRC proceeding because it had conducted itself in the manner in 7 which a party does so, that is, with full counsel, with cross 8 examination, with active participation in litigation. Alsof in 9 that case, they had been filing independent appeals and motions 10 of their own.
11 I don't think we have to reach a determination now as 12 to whether or not they're part of the 2.720(h) provision, but I 13 just wanted to note that in the Shoreham proceeding as I also 14 indicated at the hearing last week, it was the Staff's position 15 that FEMA did not appear as an NRC Staff witness under the 16 provisions of 2.720 t h).
17 One thing I'd like a clarification on, Your Honor, 18 and that is in the appearance of Dr. Bores and Mr. Lazarus, I 19 assume that they're to appear to discuss the July RAC meeting?
20 JUDGE SMITH: I don't know if it's that narrow.
21 Their memoranda goes a little bit beyond that. It goes to the 22 two Bores' memorandums, Mr. Thomas' understanding of what NRC's 23 position was. I don't know if we would limit it to just the 24 words that were spoken on July 30th. The testimony that places 25 that meeting in context.
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11168 1 MR. TURK: All right. The reason I'm asking for I) 2 clarification is the subpoena directed to Dr. Bores, as well as 3 the other Staff witnesses, asked for notes concerning the 4 Staff's rebuttal testimony which might have been presented had 5 the Staff filed testimony in the proceeding. And I think 6 that's reaching broader than Your Honor's ruling today. As I 7 read it, you're looking for the historical evolution of the RAC 8 position, including the NRC staff's position as expressed in 9 the RAC meetings.
10 JUDGE SMITH: Yes, but I'm afraid I don't appreciate 11 the point.
12 Off the record for a moment.
13 (Discussion held off the record.)
() 14 JUDGE SMITH: We have no desire that they be cross 15 examined on the previously unsubmitted testimony, whatever that 16 was. We believe that our rulings here subsume all of the 17 motions and we're not ruling on the details of any particular 18 motion before us.
19 Mr. Dignan would probably, if he feels he needs 20 something more than we're giving him, I'll let him, I mean, 21 this rules on all the motions. Any additional relief will 22 have to be reargued and resubmitted. We regard this as 23 disposing of all the motions.
24 MR. BACKUS: This is Bob Backus up in Rockingham 25 Superior Court in Equitor, New Haapshire. I got on here a Q Heritage Reporting Corporation (202) 628-4888
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() 1 little late because I had to leave a hearing which is currently 2 underway. And I'd like to return.
3 But I'd just like to offer a few things. I gather 4 that when I got on, there has not been any oral argument on the 5 motions. The Board just decided to tell us its thinking on
- 6 where it was going.
7 MR. DIGNAN: Your Honor?
8 JUDGE SMITH: Yes?
9 MR. DIGNAN: Is somebody talking, because I can hear 10 a faint voice breaking up.
11 JUDGE SMITH: Okay. Well, that was Mr. Backus who I 12 think that you're still over at the Court?
13 MR. BACKUS: Yes, I am, 14 JdPGE SMITH: And he is very faint, but I can hear 15 him. And let's state that you're correct. The Board has, on 16 its own initiative, decided what we believe the appropriate 17 relief should be to resolve all the motions pending before us, 18 including yours, Mr. Brock's and Mr. Dignan's.
19 MR. BACKUS: All right. Well, let me make my 20 comments on this.
21 JUDGE SMITH: I'm going to have to restate whatever 22 you're saying, because I assume that nobody else can hear you 23 as well.
24 MR. BACKUS: All right. I can hear you clearly and 25 the other parties so far.
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() 1 JUDGE SMITH: Speak up, would you please?
-2 MR. BACKUS: Yes. Well, I'm being summoned.
3 I would just say, Your Honor, first of all,.I have to 4 .take exception to your comments.
5 MR. DIGNAN: Your-Honor,-I cannot hear Mr. Backus'at
$6 all. This is Mr..Dignan in Boston.
7 JUDGE SMITH: All right. Mr. Backiss is taking 8 exception to something I did. I don't know what it is yet.
9 MR. BACKUS: Well, it has to do with your 10 characterization of Mr. Thomas' not testifying with candor, 11 Your Honor.
12 JUDGE SMITH: Well, go ahead, take exception.
13 MR. BACKUS: I do take exception to that. .And in 14 view of your suggestion that if he appears again, he mado need 15 counsel, this suggests to me --
16 JUDGE SMITH: I didn't say that. I said I want to 17 remind him that he is entitled to counsel.
18 MR. BACKUS: Well, I assume we will have access to 19 your comments -- .-
20 JUDGE SMITH: Yes.
21 MR. BACKUS: -- and at some point, Mr. Flynn will 22 apprise him of the things you've said.
23 I just feel that the things you have said might have 24 a tendency to intimidate him as a witness. I think that the 25 things you've said raise such a concern in my mind about the O Heritage Reporting Corporation (202) 628-4888
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() 1 fact that you may have already determined how to judge his 2 testimony that think the Board should consider letting another 3 Board or perhaps a special hearing officer hear his testimony.
4 I have read his testimony very carefully many times.
5 I did not find it to raise any issues as I read it of questions
- 6 of candor. Now, there may be what I thought were minor 7 differences of recollection about whether there was a formal 8 vote or a concurrence or a consensus at the July 30th RAC, but 9 I would say, Your Honor, that Mr. Thomas' key testimony which 10 at one time was described as a gossamer web and triple hearsay, 11 has in major part turned out to be verified.
12 That there was a meeting on January 19th. That high 13 officials of both agencies were there. So I think credibility O 14 is not at this point appropriate by the Board.
15 JUDGE SMITH: Mr. Backus, there's a problem that you 16 have. You're not privy to the entire discussion. You're 17 making in essence a motion that we recuse ourselves from this 18 particular issue, I guess. Normally, such motions should be in 19 writing supported by affidavits. We'll accept the oral motion 20 here if you want to make it, and deny it.
21 We have only made those observations as to witness 22 credibility which judicial officers are called upon routinely 23 to make and to take into account and act upon. But you can 24 renew your motion formally after you get the transcript, it's 25 always your right. And in that case, we'll expect you to make l Heritage Reporting Corporation l (202) 628-4888
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)) 1 it in writing supported by the necessary affidavit.
2 MR.,BACKUS: Second point -- I appreciate that, Your i 3 Honor. The second point I'd like to make is that you've had 4 both Mr. Turk and Mr. Flynn attempt to get you in advance to S narrow the scope of the testimony that we might elicit from the -
i6 witnesses that you said are to appear. In our opinion, if the 7 witnesses are going to appear without discovery, we should have :
8 the same latitude on ir.terrogating them as we would on
! 9 discovery. That is-that we should be entitled to find if the 10 testimony would lead to discoverable evidence not that it be- j 11 admissible in itself.
I- 12 The third thing I would say is that we would-urge 13 that the Board direct not a representative of Mr. Stello, but ,
14 that Mr. Stello himself should appear in view of the 15 circumstances of this case. It would seem to us to be 16 consistent with directing Mr. Peterson to appear who is the 17 Associate Director for State and Local Programs of Support that 18 run the REP or Radiological Emergency Planning project at FEMA 19 that is equivalent to him, I would think, at NRC would be i
j 20 Mr. Stello who we know he met with. ,
21 I think that from SAPL's point of view, having i 22 Mr. Stello direct a representative to say what he may have said f 23 at that meeting would be not sufficient. [
24 JUDGE SMITH: Mr. Backus, I'm confused about how long l 25 you've been on this conference call. <
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II 1 MR.'BACKUS: Pardon me? f 2 JUDGE SMITH: How-long have you been on this f 3 conference call? ,
4 MR.'BACKUS: About five minutes after.3:00.
5 The last-thing is that we --
t l
- i6 JUDGE SMITH
- I beg your pardon. Hang on a minute, i
>7 Mr. Backus, f f'
a .
8 Did somebody just make a remark?-
i 9 MR. TURK: Your Honor, I simply noted the current f 10 time is 4:00 o' clock. f i
11 JUDGE SMITH: Yes. I wasn't aware that you.got on. j 12 Nobody reported you present. ,
13 MR. BACKUS: I think the operator did. i
( 14 JUDGE SMITH: Well, in any event, you're making these 15 points now because you have to leave, is that it? !
16 MR. BACKUS: Yes, I do. {
- r
! 17 JUDGE SMITH: All right. Well, -- .
l f
18 MR. BACKUS: The last point is that I don't think you ;
19 have addressed is that we had asked in part of our Motion for [
20 Subpoena for all documents that would pertain to communicatic, f 21 or memoranda associated with that January 19th meeting to be i l 22 furnished in advance. And that request would encompass anybody l 23 who was in attendance and memorialized that meeting in any way.
l l
24 JUDGE SMITH: All right. Well, we want to take up in l J
! 25 a more deliberate fashion these witnesses one at a time. I was l
l ?
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() 1 only trying to outline what the Board's requirements were, and 2 we were going to listen to arguments from the-parties as to .
- 3 additional requirements, okay?
4 MR. BACKUS: All right. Well, I-will delegate my
- 5 further participation to the other.intervenors and return to my-f6 hearing in the courthouse. .
7 JUDGE SMITH: All right. Let me repeat what l 8 Mr. Backus stated. J 9 He stated that since we are having Peterson come, 10 therefore we have to have Stello come and that's their right. ,
11 That we should not overlook the fact that the subpoena request i i i j 12 required documents. And we have not addressed that yet. l 1 !
l 13 And anybody else have anything else?
(} 14 MR. TRAFICONTE: Yes, Your Honor. A few points. The f 15 first being recusal at least as to further testimony by Thomas.
16 JUDGE SMITH: Yes. I repeated that one already.
l 17 MR. TRAFICONTE: And the second point was that in
- 18 light of the fact that we don't have any prehearing discovery i
! 19 that you shouldn't accept Mr. Turk and Mr. Flynn's efforts to !
20 restrict the scope and we should have full range of questioning i
- 21 of these witnesses.
1 22 JUDGE SMITH: That's a ruling that we will make in ;
i I 23 the context of the witnesses and the circumstances. We're not l l
] 24 going to rule now that the same almost unlimited right to [t 25 inquire on discovery will apply in a hearing. ,
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() 1 On the other hand, we obviously are going to take 2 into account that there has been no discovery, or inadequate 3 discovery or not as much as is traditional, and we will try to 4 balance the needs of all of the parties. But we're not going 5 to grant the motion in the blanket form in which it's made.
6 And you hear our ruling on we're not recusing
,7 ourselves.
8 MR. FLYNN: Your Honor, this is Joseph Flynn. In 9 response to the point that M1. Backus made about needing freer 10 rein in the hearing room because they haven't had discovery of 4
11 these particular witnesses, I would just like to point out that 12 the FEMA witnesses are the only ones that the intervonors have 13 chosen to depose.
14 JUDGE SMITH: Okay. That's very good.
15 Mr. Turk, had you completed your comments?
16 MR. TURK: Not quite, Your Honor. And I'd also like 17 to address something Mr. Backus had said.
18 Turning first to Mr. Buckus' comments, he indicated 19 that he sees a need to have Mr. Stello appear. I think that :
20 that's something which is unsupported at this time. If, after 21 the Staff does designate a witness to appear to testify about l
22 the January meeting, if there are questions which cannot be 23 answered by that person with facts known to him, then there may 24 be grounds to request that some other individual be designated 25 beyond that first one. And we can leave it at that point to O Heritage Reporting Corporation (202) 628-4888 l
11176 1 decide, one, that if anyone is necessary beyond the initial
-(])-
2 witness who may appear, and second, who that additional person 3 should be.
4 I don't see any sort of an equivalence standard or 5 reciprocity that simply because Mr. Peterson may appear, 6 assuming he does, that therefore Mr. Stello should have to appear as well. I don't see any logic to that.
[7 8 JUDGE SMITH: I don't understand the logic, either, 9 We designated Peterson because he's acknowledged by everybody
-10 involved as being the one who made the decision.
11 MR. TRAFICONTE: Your Honor, just a point of 12 clarification on the appointment by the Staff of a witness to 13 the January 19 meeting. I have assumed, although the Board
() 14 hasn't said it, that the Staff is to name someone who was in 15 attendance at that meeting?
16 JUDGE SMITH: Yes. But not limited to that.
17 MR. TRAPICONTE: No, no. But at least someone who 18 was there.
19 JUDGE SMITH: Absolutely, yes. I understand that 20 Dr. Dores was present, and we wanted somebody in addition to 21 him.
22 MR. TRAFICONTE: Yes, okay.
23 MR. TURK: Your Honor, for your information, Dr.
24 Bores was not there. Also Mr. Thomas indicated that he 25 believed I was there. I was not there.
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() 1 But it's my understanding that when we do attempt to 2 designate a witness in compliance with the Board's order, it 3 will be somebody who can speak to what happened at that 4 meeting. And who will have been in attendance.
5 JUDGE SMITH: And the context of the meeting.
6 MR. TURK: Yes.
7 JUDGE SMITH: All right. Go ahead, Mr. Turk.
8 MR. TURK: The last thing I wanted to address is the 9 question as to whether the Staff or FEMA is trying to limit the 10 scope of questioning. I'm not trying to limit in any 11 unrecsonable way the scope of the questioning. I note for 12 instance if Dr. Bores is on the stand, he will know quite more 13 than simply what happened at the RAC. He will have been 14 involved in discussions at NRC about proposed testimony that we 15 would be putting on, had we put on a case, and other matters 16 which I don't think bear on the issue raised by intervenors 17 here, and that is, what happened to FEMA's testimony, what was 18 the basis for the shift in testimony and what was it that FEMA 19 said initially and what are they saying now.
20 And for instance, if we're going to start getting 21 into discovery on the stand of what the NRC staff believes to 22 be an adequate protective measure for the beach population, 23 then I'd like to have an opportunity to submit a formal case.
24 JUDGE SMITH: To present a formal case?
! 25 MR. TURK: That's right.
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() 1 JUDGE SMITH: Well, you'll remember that we did ask 2 the NRC staff in addition to our minimum requirements,'to !
, 3 affirmatively come forward and present a case on their. view of 1-
, 4 what happened from the beginning of the first the evolution of 5 FEMA's first testimony through it's change until what happened 4
6 at the end.
- 7 MR. TURK
- But that's a different matter than the 8 Staff's view of what's an adequate protective measure for the
< 9 beach population. And I'm not about to start preparing a 10 substantive case.
11 The Staff has already taken the position that we're 12 not going to enter a separate --
13 JUDGE SMITH: We haver.'t asked for a case on the 4 ( 14 merits of that.
I I 15 MR. TURK: Right. And my point is if that's the kind 1
j 16 of questioning we get into on the stand, I'm going to be i 17 objecting to the question and asking that that line of l 18 questioning be cut off..
19 JUDGE SMITH: Well, I can see it could be a 20 collateral issue related to the evolution of the --
i 21 MR. TURK: I understand that.
22 JUDGE SMITH: -- and I don't know how you can cut it 23 off entirely, but we are not -- you have not sought to submit 24 an affirmative case, and I believe that our authority to ask i
I 25 you to submit one is somewhat limited judicially. The staff 1
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() i has usually agreed to do it, but I doubt if you're required to.
2 In any event, we're not asking for it.
3 We are asking, and that is a request, that the Staff 4 present its view of the evolution of FEMA's position 5 affirmatively without us striking the rir,ht chords and striking 6 the right witnesses doing it, okay?
-7 MR. TURK: I'll see if we can accomplish that. There
'8 may be many things that we don't know, but we can at least give 9 you our perspective on things.
10 JUDGE SMITH: All right.
11 Now who wants to be heard, next?
12 MR. OLESKEY: I'd like to make one point, Judge, if I 13 may, Steve Oleskey.
( 14 JUDGE SMITH: Yes.
15 MR. OLESKEY: I think this argument concerning the 16 jurisdiction over FEMA highlights an issue that's been lurking 17 in the case all fall and winter. It's one I started to address 18 in the hearing we had in connection with discovery and I think 19 that the Board may not have fully apprehended my thinking. For 20 that I have only myself obviously to hold responsible.
21 I think it has to go, it goes really to this question 22 of the relationship between FEMA and the NRC and their 23 memorandum of understanding and what the relationship between 24 these two agencies has been and now is in this hearing. As I 25 have understood it, and we discussed it briefly last week in Heritage Reporting Corporation (202) 628-4888
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() 1 New Hampshire, ordinarily FEMA would be proffered essentially 2 as an expert witness by the NRC to give testimony in accord 3 with its acknowledged expertise in hearings like this. And it 4 was apparently contemplated through at least June or June of 5 1987 that that would be the case.
6 And in that connection, Mr. Thomas, who I regard as
'7 reliable in the respects I've heard him testify, described I 8 think both in Board proceedings and certainly discovery, 9 Mr. Turk, in serving his --
10 JUDGE SMITH: Just a moment. Whose interjecting 11 here?
12 MS, WEISS: I'm sorry. That's me. It won't happen 13 sgain. I was just trying to get my secretary's attention.
( 14 JUDGE SMITH: Oh.
15 MS. WEISS: And I'm afraid to put you all on hold.
16 I'm afraid I'll disappear.
17 MR. OLESKEY: Should I continue, Judge, or hold?
18 JUDGE SMITH: ;Go ahead, Mr. Oleskey. ,
I 19 MR. OLESKEY: Mr. Thomas described Mr. Turk as 20 playing the role of co-counsel to him in the preparation of 21 FEMA's case as I understood it up through the end of May at
, 22 least of 1987, when FEMA then filed that position that the 23 Board is aware of dated June 4th of last year.
24 Then it appears to some extent that outside the i
25 context of the RAC, that there had been close communications
)
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() I between Mr. Turk and FEMA during the summer of '87. However, 2 it's my impression from overything I've learned about the scope 3 of the conduct of FEMA in the NRC in the fall, especially the 4 winter and spring of '87 '88, that Mr. Turk had moved back into 5 some kind of position equivalent to that of counsel for FEMA.
6 So it seems to me that the issue that's lurking under 7 all these discussions about whose witness FEMA is and whether
,8 Mr. Turk was forthcoming, as forthcoming as the Board may feel 9 he should have been, is that Mr. Turk has had for about a year 10 with respect to these proceedings a filial conflict of interest 11 that began the moment it became clear that FEMA, although it 12 would apparently still be proffered in some sense as an expert 13 witness in the hearings, might no longer be presenting 4
() 14 testimony which was in effect a response of the NRC.
15 I think that put Mr. Turk in a tory difficult 16 position from that point in June of '87 to date over his 17 responsibilities may have been from June 4th. I have a very 18 great concern that he be allowed to proceed now as counsel for 19 the NRC when he's privy to so much of that which we're about to
- 20 inquire into in New Hampshire from first hand knowledge gained 21 through is role in counseling FEMA and also in connection with 22 the role which he and the NRC had in preparing and counseling 23 FEMA.
24 I think that's fine filial conflict that's now been 25 built into the case and I think it works at a very basic level
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() I to the disadvantage of the intervenors. To cite an example, 2 Mr. Turk's comment, which I think you may have referred to 3 earlier having made in January of '88 in substance, I'm aware 4 of facts which aren't on the record which will be brought out 5 in due course. I believe those facts are likely to have become 6 known to him because of his role in this special relationship.
7 And I think that highlights this conflict.
8 I am saying it now I hope more clearly than I tried 9 to say it in the discovery hearing about six weeks ago, because 10 I think it may illuminate part of what we're all grappling with 11 when we talk about the Board's jurisdiction and whose witness 12 FEMA is.
13 JUDGE SMITH: Well, assuming what you say is correct,
() 14 and I have reservations, what standing do you have to raise it?
15 MR. OLESKEY: Well, Mr. Turk is going to go ahead and 16 present vitnesses and cross examine a party in an effort to 17 make points adverse to my client. I therefore think I have the 18 standing of a party to object to his continued presence under 19 those circumstances.
20 JUDGE SMITH: Well, are you making an oral motion 21 that we disqualify Mr. Turk?
22 MR. OLESKEY: I am bringing this to the Board's 23 attention, inviting you to take it into consideration as we 24 proceed with this hearing and think about next week. If the 25 Board, having the advantage of this discussion and whatever O Heritage Reporting Corporation (202) 628-4888
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( ,) 1 else that you may wish to do, doesn't wish to proceed then I 2 will decide at that time whether I should make a motion. ,
3 But as I've always understood it, once the suggestion 4 of a conflict is raised, it leaves it at that moment with the i
5 tribunal as to whether or not it wishes to take action. So if ;
6 the Board's comfortable with my putting it on that basis at 7 this time, I'm comfortable with leaving it there.
8 JUDGE SMITH: Mr. Turk, do you want to be heard on 9 this?
10 MR. TURK: At some point, I would, Your Honor. I 11 don't hear a motion yet.
4 12 MR. OLESKEY: And I also do want to say that of 13 course I understand that Mr. Turk would want to be heard.
. 14 Excuse me for failing to mention it.
- 15 MR. TURK
- Well, Mr. Oleskey, I understood that you 16 would invite my reeponsa.
17 MR. OLESKEY: Proceed, sir.
18 MR. TURK: Just by way of a brief response, Your 19 Honor, and if I see a formal motion filed, I'll prepare a more 20 detailed and elaborate response.
i 21 The sole basis for Mr. Oleskey's comments are 22 comments by Mr. Thomas that he perceived that I had been acting 23 as co-counsel. And I didn't say co-counsel for whom. And that 24 didn't appear in the deposition, simply the reference to co-25 counsel. There's also a record that Mr. Thomas was advised by O Heritage Reporting Corporation (202) 628-4888
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' g, p) 1_ FEMA counsel. The NRC Staff did not represent him or FEMA in 2 the proceedings. That was made clear to Mr. Thomas a long time 3 ago.
4 Now, granted there have been communications between 5 FEMA and NRC as clearly is contemplated by the memorandum of 6 understanding. That communication has taken place between 7 technical members of NRC and FEMA and has taken_ place between 8 the legal members of NRC and FEMA. And indeed in the past 9 there have been conversations between NRC counsel and FEMA 10 staff, and between FEMA counsel and NRC staff.
11 That doesn't establish an attorney client 12 relationship nor does it give rise to a conflict of interest.
13 There are two separate goveri< ental agencies, each of which has
( 14 .its own purpose, its own statutory responsibility, and its own 15 counsel. And there's no identity of interest which counsel 16 would be representing.
17 I think if an analogy is to be drawn, it would be an 18 analogy of two defendants in a proceeding represented by their 19 own attorneys communicating about matters which they have joint c 20 knowledge of. And I don't think that's a conflict of interest l 21 if they do that with knowledge that they're not represented by 22 the other attorney for the other agency.
23 Now, perhaps the choice of the word, defendant, is 24 ill advised. Maybe I should have said plaintiffs, but its the 25 same sort of situation.
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~
I don't feel there's been a conflict of interest.- I 2 would also note that somewhere in the record, I believe.in 3 Mr. Thomas' deposition, there is an indication that after-the 4 early part of June, 1987, when it became clear to us, to me, 5 personally, and to others at NRC, that FEMA was taking-the 6 position which it took, that we pulled away from it.
7 JUDGE SMITH: You declined, as I understand, to 8 review their testimony?
9 MR. TURK: I declined personally to review a draft of.
10 Mr. Thomas' testimony on the beach population issue. And the 11 reason for that was I perceived that I would possibly be in a 12 situation where I would have to cross examine him, and I l
13 certainly didn't want to be foreclosed from doing that.
() 14 And after that point, there has been no communication 15 between myself and Mr. Thomas other than instances which he may 16 have initiated about the substance of his beach testimony.
17 There is one reference in Mr. Thomas' deposition, by 18 the way, of a meeting between him and me in January. And he 19 described it as somewhat of a lengthy encounter, or in-fact, a 20 lengthy meeting. In fact, what happened was I dropped off a 21 hearing transcript of Mr. Flynn. Mr. Thomas happened to be in 22 the hallway and stopped me to ask me some questions. Now, if 23 he wants to initiate questioning even after he's been advised 24 by FEMA counsel that I don't represent him or his agency, I 25 certainly ca.i't stop him.
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. 1 MS. WEISS: And I would state, Your Honor, that 2 that's a perfect example of the disability that the'intervenors 3 are laboring under here. That Mr. Turk transforms himself back 4 and forth frequently between acting as a witness and testifying 5 in the context of making remarks on motions and making 6 objections, he testifies to the content of conversations that 7 he had with the witnesses in this case, and then the next day,-
- 8 will go on to question them.
'9 And it's a dual role. I think it's a conflict of 10 interest in his part, and I think it's clearly been operating 11 to our prejudice. And I've had concerns about it too for 12 several months.
13 MR. OLESKEY: Ict me just make a couple of responses, 14 Judge Smith, if I may, in Boston.
15 First of all, perhaps apparently Mr. Turk and my 16 recollections differ on what Mr. Thomas said. But'I believe on 17 more than one occasion, he identified Mr. Turk as in substance 18 co-counsel and he said for me, but from the context, I thought 19 it was clear that he meant for Thomas and FEMA, not simply for 20 Thomas personally.
21 And I think when we come to it if we do that either 22 new testimony on that point or the deposition testimony will 23 bear that out.
24 Secondly, with respect to the suggestion of the fact 25 of staff communication doesn't create a conflict, I don't think Heritage Reporting Corporation (202) 628-4888
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'( )' And 1 anybody would differ with that, but that's not the issue.
2 I tried to make that clear in my initial remarks. Because the-3 NRC under the memorandum proffers FEMA as its witness, as I 4 said last week, I think it's very much the same as any. expert 5 who Mr. Dignan or myself or any other party might choose to 6 prepare and offer in a case, except that it-happens to be 7 another agency.
8 And the importance of that is that because of that,
'9 because the NRC presents the witness, which'I think ultimately 10 with respect to the testimony that's apparently going to be 11 given on the March 14th testimony is again the case, whatever 12 may have been the fact regarding the September of last year, 13 Mr. Turk's in a position of someone whose agency and
) 14 potentially he has counseled and guided that testimony and 15 .knows why strategic decisions were made to say some things and 16 not others.
17 And yet now he's going to have the opportunity in New 18 Hampshire to asp. questions of FEMA apparently in an effort to 19 discredit the process that PEMA formerly followed in preparing 20 the testimony of September with the objective of strengthening 21 the testimony that FEMA's going to give, if it does, dated 22 March 14th. Those are things I don't think he could have done 23 unless he and his agency had that special relationship, and the 24 key for him is that he's counsel, not simply an agency staffer.
25 I have a recollection as well that it came out in the O Heritage Reporting Corporation (202) 628-4888
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() 1 depositions in February and March that the March 14th testimony 2 actually went over to the NRC for review before it was 3 presented and filed with this Board. Which would mean, even if 4 Mr. Turk didn't get a look at it, that responsible people in 5 his agency did.
6 JUDGE SMITH: Well, now, were you going to disqualify 7 the NRC from the proc 9eding as an institution?
- 8 MR. OLESKEY
- .No . I can't disqualify the NRC but I
- 9 can ask you to disqualify a counsel who enjoyed I think both 10 last spring and again at some point this late fall or winter, a ;
11 position substantially_that of co-counsel to FEMA, and thereby 12 enjoyed a decided unfair advantage over the rest of us.
13 JUDGE SMITH: Okay. Now, this is as I understand it
() 14 a soft motion that the Board on its own sua sponte rule that 15 Mr. Turk is disqualified.
16 The basic argument that you have, the most convincing 17 argument that you have with respect to Mr. Turk is that the 18 relationship between the NRC and FEMA and the NRC Staff and the 19 Board and the parties is inherently in conflict. And there may 20 be an argument to that. The memorandum of understanding may 21 not, in some instances, be consistent with NRC's staff's 22 responsibility in hearings.
I 23 However, as you readily observed, any institutional
+
24 conflict of interest that there may be in the NRC Staff in this 25 case is beyond our ability to remedy. With respect to Mr. Turk
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() 1 personally. It seems to me from what we've observed about the 2 case without regard to what Mr. Turk has to say, we've observed 3 from the case that FEMA knew that Mr. Turk for one, and the NRC 4 Staff working on the matter and that is Dr. Bores and 5 Mr. Lazarus, were fast putting distance between themselves and 6 FEMA as soon as they understood that there might be a conflict.
7 So they entered into it with a problem of institutional dilemma 8 and we see from our own observation that at least one instance
'9 of Mr. Turk putting distance so he would not be in this 10 situation, and then above all, we take his representation to 11 that effect.
12 Anything after that,'I think you have an 13 institutional part, and we will not impute to Mr. Turk any
) 14 institutional conflict of interest. If we were to do that, we 15 would have to impute that to the entire Office of General 16 Counsel, and that just is not practical.
17 So as your request goes to the Board to on its own 18 initiative disqualify Mr. Turk is denied. You'll have-to make 19 your motion formally.
20 MR. OLESKEY: All right, Judge.
( 21 JUDGE SMITH: Next point?
22 MR. TURK: Your Honor, I want to note two things, if 23 I may. The question as to whether there's a conflict of
[
24 interest is really one that if it's going to be raised, should l
l 25 be raised by FEMA. At some point, if they feel that their l
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-( )- I witnesses should not be examined by me or by attorneys with my 2 agency, there the ones who have an interest to protect.
3 I don't see that the intervenors have standing'to 4 complain about a conflict of interest between my agency and 5 FEMA, or between me personally and FEMA.
6 MR. OLESKEY: I happen to disagree with that. Since 7- FEMA's their expert witness and not a party, they have no 8 standing to raise that objection even were they so minded, 9 which it appears from all the evidence that they are not.
10 JUDGE SMITH: Look, you can't have it both ways. If 11 they're expert witnesses, then they're can't be any conflict 12 between Turk and the expert witnesses. If they're parties or
, 13 quasi parties, it's only there where you might have an
() 14 argument.
15 MR. OLESKEY: Well, I disagree to this extent, Judge.
16 I don't think that anybody can proffer an expert and then 17 attack them. And that's what I think the NRC has intended to l 18 do and still intends to do.
19 JUDGE SMITH: But that's not conflict. That's 20 another matter. But however, we've ruled.
l 21 MR. TURK: Your Honor, with respect, whenever a l
22 lawyer is confronted with a situation where his witness 23 presents facts which are inconsistent with his understanding of 24 the facts, he doesn't have to stand there and accept that
- 25 surprise. He can go after him.
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~() _1 MR. OLESKEY: Only when it's your own witness, you 2 have to withdraw him or make a disclosure.
3 JUDGE SMITH: All right. Well --
4 MR. TURK: I think it's hypothetical in any event, 5 but I'd make arguments against that, Your Honor.
6 JUDGE SMITH: These are mutually exclusive positions 7 you've taken, but in any event, we are not on this Tuesday 8 afternoon, going to send Mr. Turk packing based upon what 9 you've argued. You'll have to make your motion on your own 10 behalf. And we would be interested in standing, although we 11 understand your argument, Mr. Oleskey.
12 MR. OLESKEY: Yes, Your Honor. Thank you.
13 MR. TURK: Your Honor, I wanted to clarify one other
) 14 point. I had indicated that I refused to see a draft of FEMA's 15 testimony last June. That's correct.
16 I should also point out and I want you and 17 intervenors to understand that FEMA also offered up their I
18 testimony in January and March of this year, and we did see it 19 in advance, both technical members of NRC and attorneys here in 20 the office, including myself.
21 And I would note that our comments in January were 22 rejected. And the comments in March were very minor and I 23 believe accepted. Those are not legal comments, particularly 24 they were comments as to the way in which the testimony was 25 presented as something for the Board to consider.
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s,f 1 MS. WEISS: May I make just one comment, 2 Mr. Chairman, and not to belabor thin point.
But I would just 3 like to say that it is not a hypothetical situation when 4 Mr. Turk takes'every opportunity to undermine.the credibility 5 of Mr. Thomas, and who'does so based on assertions that he has 16 personal knowledge which would suggest that these statements 7 aren't true and we can't test his assertiuns of.his personal 8 knowledge.
19 I mean, it seems to me that's the nub from my point 10 of view of what's objectionable here. It's we're essentially 11 hearing testimony from Mr. Turk and he does it on every 12 opportunity that he gets to subtly and not so subtly undermine
'13 Mr. Thomas. And we can't get Mr. Turk on the stand to tell us 14 what he's basing those on.
15 JUDGE SMITH: Again, I don't want to prolong this 16 argument. We have other business to take care of this 17 afternoon.
18 Again, we believe that whatever conflict might exist 19 in Mr. Turk is one that is inherent in the NRC and not peculiar 20 to himself. And we decline to take action. You'll have to 21 file your motions.
22 Go on to the next item. Were you done, Mr. Turk.
23 MR. TURK: I would respond in one sentence to Ms.
24 Weiss, if I may, Your Honor.
25 JUDGE SMITH: Not on disqualification. It's 4:30 and Heritage Reporting Corporation 1
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s 11193 I) I we still have a lot of. work to be done.
2 MR. TURK: All right, Your Honor. We are not taking 3 into account what Ms. Weiss said. If she renews it in a 4 motion, you can address it then.
5 MR. TURK: All right.
6 JUDGE SMITH: Go ahead, Mr. Turk.
7 MR. TURK: I have nothing further, Your Honor.
8 JUDGE SMITH: All right. Who would like to be heard
.9 now?
10 I don't see that any particular order lends itself 11 here.
12 Mr. Dignan, are you still there?
13 MR. DIGNAN: Yes, Your Honor.
14 JUDGE SMITH: Do you have anything that you wish to 15 contribute to the discussion today?
16 MR. DIGNAN: Not really, Your Honor.
17 I was going to ask you one question. If I heard you 18 correctly on the order of witnesses, is it the Board's 19 intention that these witnesses appear and what will commence is 20 a Board interrogation of the witnesses, or are you assigning to 21 particular lawyers the filing of the opening shots, or what?
22 JUDGE SMITH: If no questions were asked by the 23 parties, the Board would have some questions. But the way 24 things are unfolding and the way it looks now that that will be 25 not necessary. I think that the record will be developed O Heritage Reporting Corporation (202) 628-4888
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2 MR. DIGNAN:- Well, okay. I guess I would. imagine my 3 fellow brothers and sisters of the bar who are11nvolved in this 4 thing would want to know. I mean, you've given us a: list of 5 some if I am correct, five, at least six witnesses who will 6 appear. They will be sworn, and I guess in the case of each-7 witness, it would be helpful at least to know who gets called 8 on first to ask a question, or --
9 JUDGE SMITH: See, we'll have to take it up asia 10 functional matter. It would get rather complicated as we look 11 as to whether the witness is adverse to the party or not.
12 Now, we're starting out with Bores and Lazarus. We 13 would expect, Mr. Dignan, that you would not have the full
-)
sd 14 range of-traditional cross examination with them because of the 15 functional nature of their testimony.
16 Mr. Thomas would be different.
17 Peterson and McLaughlin, you may be limited to more 18 of a direct, then. I don't know.
19 MR. DIGNAN: I guess my question is much simpler than 20 that. I'm not seeking rulings as to whose the witnesses.are 71 because they're probably nobody's witnesses. But what I'm 22 just getting at is this. That there will come a time up there 23 when witness X will be called to the stand in order. And I'm 24 just asking the question of what happens then?
25 If some attorney is then to start the ball rolling, O Heritage Reporting Corporation (202) 628-4888
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(f 1 it seems to me we ought to understand who. I don't care 2- whether he's cross examining an adverse witness or he's taking 3 the witness in direct, or what. That's a problem to be 4 resolved at the time the witness comes on.
5 JUDGE SMITH: I would expect the NRC staff to sponsor
.6 Bores and Lazarus. If they decline to do that, the Board will 7 simply direct them to their memoranda and ask them to testify 8 about it. But I would expect the NRC staff to sponsor those 9 witnesses.
10 MR. DIGNAN: Okay.
11 JUDGE SMITH: With respect to Mr. Thomas, I don't 12 know what FEMA intends to do. But if they intend to sponsor 13 him as a witness or say he's simply there as a Board witness
() 14 without a sponsorship, then we would turn Mr. Thomas in the 15 first instance over to the intervenors to complete their as-on-16 discovery inquiry, having already required that his notes be 17 produced, and then to the other parties adverse to the C
18 intervenors to address.
19 Then we come to NRC witnesses, and I would expect the 20 NRC ctaff to sponsor them and turn them over to the intervenors 21 for cross examination with the applicant examining as their 22 interest might be affected.
23 Peterson and McLaughlin, I don't know about that.
24 That's a pretty tough one. I would expect FEMA to sponsor 25 their testimony and that intervenors would be adverse in cross, O Heritage Reporting Corporation (202) 628-4888
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() 1 and'the applicant probably more in a posture of direct. But 2 we'll have to play that one as it unfolds.
3 And so on down the line for the FEMA witnesses.
4 That's how I would envision it.
5 MR. TURK: . Your Honor --
6 JUDGE SMITH: Is that helpful?
7 MR. TURK: Your Honor, when you indicate that you 8 would expect the Staff or FEMA to sponsor various witnesses, 9 I assume you're not asking for prefiled written testimony; 10 simply introduce the witness in the usual way and make them 11 available for examination?
12 JUDGE SMITH: .Yes, and protect them. Whatever.
13 You're not required to file prefiled testimony. It might be 14 helpful if you wish.
15 MR. TURK: I don't think we'll have the cimo.
16 JUDGE SMITH: Don't forget, we've asked you to come 17 forward with an affirmative case. You won't have the time, l
18 perhaps, for Bores and Lazarus. I think that they could adopt, 19 if it's your desire, their memoranda to you.
20 MR. TURK: I think that's what I will do.
21 JUDGE SMITH: That is the purpose for which we think 22 that they should be called as witnesses, is to defend the 23 information in there, if they can.
24 Okay, who wanta to be heard next?
25 MR. OLESKEY: I think I would, Judge, Steve Oleskey.
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- () 1 With respect to the remaining question of who else 2 would be examined, if what the Board is saying is that the
'3 Board'will hear from all of us when we've completed these six 4 people without foreclosing the opportunity to request and'have 5 ordered the appearance of other people, I think we're content 6- with that.
7 JUDGE SMITH: Well --
8 MR. OLESKEY: But we certainly --
9 JUDGE SMITH: -- we don't foreclose that, no.
10 MR. OLESKEY: -- we certainly want it known that we 11 do want Mr. Krimm.
12 JUDGE SMITH: Okay.
13 MR. OLESKEY: As to anyone else, let's see what the 14 witnesses who testify have to say. Obviously we named, in 15 Mr. Backus's motion, a number of people who we thought could 16 have testimony that would be important.
17 With respect to the issue of the documents I think' 18 Mr. Backus raised, we have an outstanding request jointly in 19 asking for the memoranda and planning documents relevant to the 20 January 19, 1988, meeting between the two agencies, which, I
- 21. reiterate for all of us, we would obviously find most useful in 22 advance of the commencement of hearings next week.
23 JUDGE SMITH: That's the agenda? Mr. Oleskey, I --
, 24 MR. OLESKEY: Yes, Your Honor, the agenda.
25 JUDGE SMITH: And talking points.
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(} 1 MR. OLESKEY: Talking points, and any memoranda
-2 between the agencies relative to the setting up of the meeting 3 or to any determinations reached at the meeting.
4 JUDGE SMITH: There's no privilege I -- we're not 5 upholding any privilege. We've made the determination that we 6~ do not have to resolve, in view of the arguments made now,'the-7 executive privilege issue. We made a determination that the 8 needs of the hearing outweigh the executive privilege, if in-9 fact it exists.
10 The memoranda between the agencies as to that meeting.
11 certainly should be produced, as well as the talking points and 12 the agenda.
13 MR. FLYNN: Your Honor, there are only two documents
() 14 which have not been produced that fall in that category, and 15 those are the two you just identified. They're two one-page 16 documents.
-17 JUDGE SMITH: All right, well, they should be 18 produced, and Mrs Thomas's notes.
19 MR. FLYNN: Well, I talked to him about that earlier 20 today, and I told him that I wanted him to send to you, Judge 21 Smith, the notes in question, and he said he would take that 22 into advisement. Those are what we identified as a desk file.
23 They're his personal notes, they're not under FEMA's control, 24 they're not used by anyone else in FEMA.
25 MR. DIGNAN: Your Honor, could we take that one up?
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() 1 The Applicant had a request in, and was refused a 2 number of notes of Mr. Thomas on this same theory. I confess 3 to not understanding the theory.
4 If-somebody uses a set of notes in their official 5 capacity as a desk file or a diary, I don't that some closure 6 comes over it that agency doesn't have to produce it. If 7 Mr. Thomas, as I understand his testimony, and I'm perfectly 8 prepared to be corrected by anyone if I'm wrong, these are a 9 set of notes he keeps, he calls it a log. He keeps it on his 10 desk and utilizes it in his capacity as an employee of FEMA.
il To all of a sudden make these the personal things 12 that can only be produced if Mr. Thomas feels like it is a 13 doctrine that I must admit is foreign to me.
14 JUDGE SMITH: Well, I think those ought to be 15 producible under the Freedom of Information Act alone, let 16 alone --
6 17 MR. DIGNAN: Precisely.
18 JUDGE SMITH: -- as discovery in a civil proceeding.
19 MR. DIGNAN: I would appreciate it if FEMA would be 20 advised that those, the Thomas notes in all their entirety -- I 21 mean, it was a whole bunch of these logs in the deposition room 22 -- be copied and produced.
23 JUDGE SMITH: Well, there's one thing I want to 24 consider, however, and that is if Mr. Thomas has personal items 25 intermixed in his notes, if he wants to submit the notes to the O Heritage Reporting Corporation I (202) 628-4888 i
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( 1 Board first with the personal. items underlined for us to 2 excise, we would do that. I mean, you know, if this were his 3 desk notes and his log, I don't know if he has any personal 4 notes or not, but --
5- MR. DIGNAN: Your Honor, it goes'without saying I 6 have no problem with the redaction of a personal note that he 7 has a dinner engagement with an old college friend or anything 8 like that. There's no attempt to get that. Mr. Flynn can 9 redact that with no problems, but there's some theory-that
! 10 because he keeps these in handwriting on his desk that they l
l 11 aren't a FEMA record; they are.
12 MR. TRAFICONTE: Well, Your Honor -- John Traficonte 13 in Boston -- the only concern I have about the discussion we're 14 having on Mr. Thomas's notes, and we're also seeking those 15 notes, so don't take this the wrong way, but from what l 16 Mr. Flynn has said, I'm concerned that the Board would rule now 17 in the absence of any attorney representing Mr. Thoxas's views, 18 which, as I understand where we all stand right now, no ono in 19 right now representing Mr. Thomas.
20 MR. DIGNAN: I agree with that, Mr. Traficonte. I 21 think that's a point well taken, and I'm not asking that.
22 Mr. Thomas's notes be coughed up without his having an 23 opportunity to consult with personal counsel if he feels he 24 needs to.
25 MR. TRAFICONTE: He may be wrong. My point is he may O Heritage Reporting Corporation (202) 628-4888
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s_) 1 be wrong, but at least he's entitled to have someone represent
-2 his-views.
3 JUDGE SMITH: I think you're right.
4 MR. DIGNAN: I think you're right, Mr..Traficonte. I-5 don't disagree with that.
6 MR. TURK: John, just don't send him to me.
7 MR. OLESKEY: Judge, this is Steve Oleskey. I --
8 JUDGE SMITH: What'd you say, Mr. Turk?
9 MR. OLESKEY: -- and Mr. Traficonte will carry on.
10 Apologize. .
11 JUDGE SMITH: All right, Mr. Oleskey's leaving, I 12 understand.
13 MR. OLESKEY: Yes, Your Honor.
14 JUDGE SMITH: All right.
i :
4 15 Mr. Turk, you cade a statement about what, don't send 16 the notes to you? ';
i
.17 MR. TURK: Oh, no, Your Honor, it was in jest. ,
18 JUDGE SMITH: Oh, okay. ;
19 HR. DIGNAN: He didn't want the client sent to him, 20 Your Honor.
21 MS. WEISS: I don't think we got a worry there 22 MR. FLYNN: That's perhaps another point that I need 23 to have clarified. I did have a discussion this morning with 24 Mr. Thomas on the subject of whether he might want to consult 25 private counsel, and that was essentially unresolved. And I O Heritage Reporting Corporation (202) 628-4888
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_) -1 think the transcript of today's conference call will 2 undoubtedly guide him in that decision.
3 But I think there's some confusion, or there might be 4 some confusion,.as to the extent to which he might need 5 counsel. And the reason I bring that up, in reflecting on the 6 testimony that the Board has identified as raising questions, 7 namely, the voir dire back in October and November.
8 It occurs to me that Board did consider those voir 9 dire examinations at the time in the context of the suggestion 10 that was reputedly made by Mr. Dignan as -- about their ;
il reliability. And the Board concluded then that the record 12 established no such thing.
13 I'm having trouble understanding how to put the two ,
14 pieces together.
15 JUDGE SMITH: All right. Well, here's -- certainly 16 our observation was relevant, and I haven't read, I have not 17 read, our remarks on that. But if you recall, we declined to 18 censure Mr. Dignan or to put him under any restraint with 19 respect to what he should do. But once the suggestion was made a
20 that Mr. Thomas had made statements which, in somebody's view, 21 should be brought to the attention of the United States 22 Attorney, we felt it obliged to review that testimony to see if 23 the integrity of our own process was in issue. And wa went back 24 and read it.
25 And as I recall, we noted that Mr. Dignan had a Heritage Reporting Corporation t (202) 628-4888
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11203 I ) 1 frustrating time getting the information from Mr. Thomas, and 2 we made some remark concerning Mr. Thomas's conservatism or 3 reticence or something, but that we saw no basis to proceed 4 further. We saw no need to take that up at that time as an 5 issue.
6 Now, I've gone back and I've read everything 7 Mr. Thomas has had to say about the issue, given the testimony 8 as it stands on the record as it exists now. I don't know if 9 we would be motivated to remind him that he does have the right 10 to bring counsel.
11 But looking at what might be the testimony of Dr.
12 Bores and Lazarus, and as we emphasize, that we have not heard 13 them on this, and it is not evidence, it is not in the record, 14 and may not be our view .fter we hear from them. And therefore 15 we're telling Mr. Thomas that he's invited to bring counsel.
16 Furthermore, I might say that having read again 17 Mr. Thomas's testimony, and understanding a little bit about 18 the issues that were involved there, even without Bores and 19 Lazarus we do have proolems of candor. Now whether anything 20 else is involved, that's something else. But we still have 21 problems of candor with Mr. Thomas's testimony standing alone 22 without Bores and Lazarus.
23 It's not for us to outline why Mr. Thomas may need 24 counsel. I want to point out, however, that there is more than 25 just the suggestion that was attached to Mr. Dignan's remark; O Heritage Reporting Corporation
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() l that there is a civil penalty procedure in the NRC regulations 2 and statutes which -- attendant to people who provide, as the 3 words go, false material information.
4 So let's go back to the problem here. Mr. Thomas 5 wishes to -- Mr. Thomas is, incidentally. would you convey to 6 him that he is under the Board's direction to preserve those 7 notes, Mr. Flynn?
8 MR. FLYNN: Yes, Your Honor.
9 JUDGE SMITH: And we will, before we order them.
10 produced, we will order them produced now, but give Mr. Thomas 11 an opportunity to consult counsel before he produces them.
12 Is that satisfactory?
13 MR. FLYNN: Yes, Your Honor.
O I
14 JUDGE ShITH: If Mr. Thomas would like to have a 15 subpoena or other evidence of compulsory process, we'll be 16 happy to oblige.
17 MR. FLYNN: Yes, I think that's helpful.
18 JUDGE SMITH: All right.
19 Now we have the problem, do we need subpoenas to 20 produce the people we've designated. Do we need them or not?
21 If you'd like to have them, we'll issue them.
22 Can you accept them for them, Mr. Flynn, if you want 4
53 them?
24 MR. FLYNN: Yes, I can accept them, Your Honor. I 25 don't believe they'll be necessary; if -- ,
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f 11205 I) 1 JUDGE SMITH: Well,'if --
2 MR. FLYNN: -- advised otherwise,'I will get back to 3 you immediately.
4 JUDGE SMITH: All right.
5 And you, Mr. Turk, do you need anything from us?
6 MR. TURK: No, Your Honor.
7 JUDGE SMITH: All right. We're assuming that 8 Mr. Thomas will make a voluntary appearance unless we're 9 informed otherwise.
10 Mr. Flynn?
11 MR. FLYNN: Well, I don't know of that, Your Honor.
I 12 JUDGE SMITH: But today that's our understanding, 13 onless you tell us otherwise.
14 MR. FLYNN: Very well.
15 MR. TRAFICONTE: Your Honor, might I just come back a 16 moment to documents, and just for clarification -- it's John ,
17 Traficonte in Boston -- did Mr. Flynn state that the only 18 documents that we have requested that have not been produced 19 fall into the category of an agenda for the January 19 meeting 20 and perhaps a list of talking items? Is that what I heard him 21 say?
22 MR. FLYNN: Yes, John, that is what I said, and 23 that's consistent with our responses to your requests for 24 production that were inherent in the notice of depositions.
25 MS. WEISS: So it's your representation that these O Heritage Reporting Corporation (202) 628-4888
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() l1 are the only two documents responsive to those' requests that 2 you haven't already made available?
3 MR. FLYNN: Other than Mr. Thomar's notes.
4 MR. TRAFICONTE: Right, okay.
5 MR. FLYNN: Yes, that's my representation.
6 MR. TRAFICONTE: Well, just so everyone's clear, we 7 . understand our requests to catch other notes drafted by other 8 participants, for examplo. So then I take your representation 9 to be that no other participant at that meeting has notes, 10 which obviously is possible. I just want to make sure everyone 11 understands it.
12 MR. TURK: John, let me note that I will inquire of 13 the NRC attendants, whether they have notes, and I will produce
() 14 them if they do.
I l 15 MR. TRAFICONTE: All right.
16 MR. FLYNN: My recollection on that point is not 17 clear. I'll have to go back and check.
18 MR. TRAFICONTE: Okay. I -- it was brought to mind J 19 by the subject of Mr. Thomas's notes, and of course we intended 20 to catch these equivalent type of notes from all participants.
21 MR. FLYNN: I will check on that.
22 JUDGE SMITH: I -- we on our own -- well, as I 23 understand that not foreclosing the need for further witnesses, 24 everyone's happy with the slate that we've given, and that you 25 choose Krimm over Vickers, which we agree.
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\,,,,' MR. TRAFICONTE: Yes. Yes, Your Honor.
2 JUDGE SMITH: All right.
'3 MS, WEISS: Since we're on~ chat subject, I haven't 4 thought about that tradeoff until -- I mean, I agree that Krimm 5 would be preferable to Vickers, but it's my recollection of the 6 depositions that Mr. Wingo played perhaps a greater role than 7 Mr. Krimm. I think that Wingo is Krimm's -- works for Krimm in 8 headquarters. And my recrilection of the depositions was th'at 9 Winco was the person who informed Thomas that there was a 10 problem with the position that he'd taken, whether it could be 11 defended technically.
12 And I believe I also recall that Wingo was the first 13 person who informed him of that, and whenever there was any !
14 discussion over whether Thomas's position was the best 15 technical position, that Mr. Wingo fraquuntly figured in those, f 16 And so I know my purpose is not to quarrel with it, 17 but just to alert the Board that it's my feeling that Wingo is h 18 probably a fairly key person.
19 JUDGE SMITH: Well, Ms. Weiss, that perhaps might be 20 the case. I'm looking at the application for subpoenas, 21 however, and that aspect of Mr. Wingo's role was not set out 22 there. So we didn't have an opportunity to address that point. i 73 I'm looking at Page 9, and it says that he attended a 24 January 5, '88, meeting in which Mr. McLaughlin stated that the 25 testimony would have to be changed. And that was quoting O Heritage Reporting Corporation (202) 628-4888
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() 1 McLaughlin, apparently. What was needed was the best reasonable 2 dose savings considering the nature of the site.
3 So we only had Wingo down here as a potentially 4 cumulative witness.
5 MS. WEISS: Yes, I understand that. But, and.of 6- course, _I'm really working off my recollection of what I looked 7 through when I did the motion for directed certification. But 8 it is my feeling that Wingo had a substantial role in the 9 debates over the development of the so-called technical 10 position, moving off of one, moving onto another, to the extent that the so-called technical position is defensible.
}1 12 JUDGE SMITH: How can we handle this? How can we '
13 entertain --
( 14 MS. WEISS: He could come on as a panel with Krimm, 15 the way you had the McLaughlin and Peterson together.
16 MR. TRAFICONTE: Well, I didn't understand, Your ,
I .
17 Honor, that you were having McLaughlin and Peterson together.
18 I hadn't understood that any of these individuals were going-to 19 appear in panel form. ,
20 JUDGE SMITH: That was not our intent.
21 MS. WEISS: Okay, I'm sorry, I misunderstood.
22 MR. FLYNN: That would be our preference, however.
23 JUDGE SMITH: Well, in fact in this instance we may 24 even entertain a motion for separation of witnesses. We don't i
4 25 know. I don't know.
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.(f ,I l MR. TURK: Your Honor, I don't'know if you intended 2 it, but_I assume that Lazarus and Bores would appear together..
3 JUDGE SMITH: Yes, that was our intention, but we 4 hadn't really thought about the problem particularly. They
-5 seem to be rather parallel; they were at the same meeting.
6 MR. TURK: Yes. Bores has more in his memo. . He lays 7 out the history of the evolution of the position, whereas 8 Lazarus merely recounts what happened at the meeting of' July.
9 Bores does that as well, but Bores does go into greater 10 history. __ _
11 JUDGE SMITH: Generally in NRC proceedings, a 12 separation of witnesses is disfavored, and it would have to be 13 remarkably strong circumstances to justify it, but we don't 14 rule it out of hand, on.a particular showing.
15 MS. WEISS: Well, they have not been sittino in on 16 each other's depositions, and we made that decision fairly 17 early on, that we wanted to take each person at a time. And to 18 the extent that this really is, to a large degree, discovsry, I 19 think that rule's probably the better one.
20 JUDGE SMITH: Well, we'd take it into account in 21 arguments. That's a relevant point, Ms. Weiss.
22 MR. FLYNN: Speaking of discovery, I would like to 23 point out that Mr. Cumming was deposed over two days. At the 24 end of his deposition I made a large point of asking all the 25 Intervenors if they had additional questions, and they hadn't.
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() 1 If he had been asked, he would have testified about 2 the January 19th. meeting. There's been some suggestion in 3 today's record that there was a decision made not to disclose 4 that, and we want to put that to rest.
5 WeLwill even, right now, agree to reopen 6 Mr. Cumming's deposition before the hearings in Concord so that 7 the Intervenors may inquire of him about that meeting.
8 JUDGE SMITH: Well, Mr. Flynn, you bring to mind an 9 important point, and that is FEMA is not foreclosed from 10 addressing the problems that we've raised in their own way, by 11 a production of additional witnesses, or whatever you may wish 12 to do.
13 MR. FLYNN: But that's something that could 14 productively be explored outside of the context of this 15 conference call, and I will take it on myself to do that.
16 JUDGE SMITH: Okay.
17 So we will defer for now the Wingo, subject to you 18 renewing it, Ms. Weiss.
19 And I think that concludes all the business we have 20 this afternoon -- well, wait a minute.
- 21 MR. TRAFICONTE: Just, Your Honor, if we could have a i
22 schedule for what the Board intends for next week, and then how 23 this actually would evolve. That would be tremendously helpful 24 for this office.
- 25 JUDGE SMITH
- Well, before you joined, I believe we'd
() Heritage Reporting Corporation (202) 628-4888
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() 1 finish with the panel that was testifying last week, and then
> 2 with that other witness, Eckert. And then, see, and this 3 problem comes up quite a bit, that we're asked what we -- what i
4 our plans for the schedule is, and we always threw it back to 5 the parties. ,
6 MR. TRAFICONTE: Well, no,'I appreciate that. I 7 meant a schedule for the FEMA testimony that we've just been f 8 discussing for the last hour. Is that -- l
-j 9 JUDGE SMITH: Were you present when we gave the 10 sequence?
11 MR. TRAFICONTE: Well, I was, but I - are ve talking I
! 12 about a third week that's as yet unscheduled, that --
! 13 JUDGE SMITH: I don't know how we can avoid a third l 14 week.
15 MR. TRAFICONTE: Well, are we imagining at the end of 16 this coming wenk we would have Bores and Lazarus, and then 17 whoever follows? Is that going to be at the end of this coming 18 week?
i 19 JUDGE SMITH: Well, see, we don't know. We don't
, 20 know how much time you're going to consume by the panel that's 1
21 already testifying.
]
l 22 The first order of business after -- yes, it will be j
i 23 at the end of this week.
24 MR. TRAFICONTE: I see.
25 JUDGE SMITH: Yes, that's correct. Or the middle, or Heritage Reporting Corporation
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-I 2 MR. TRAFICONTE: Whenever. The point is do we 3 immediately enter the sequence of witnesses that we're --
4 JUDGE SMITH: Yes.
5 MR. TRAFICONTE: -- discussing?
6 -JUDGE SMITH: Right.
7 MS. WEISS: Could we inquire of the other parties how 8 long we can expect the cross-examination to be on the Mass. AG 9 witnesses?
10 MR. TURK: I have a two-page cross-examinationi plan, 11 Ellyn. Usually I have only one.
12 MS. WEISS: So that means what, an hour?
13 MR. TURK: Double my usual time; make it two to O
, 14 three. Maybe more, I -- you know, I don't claim to be the most 15 skilled examiner.
' 16 MS. WEISS: Well, I don't have the gong, so --
17 MR. FLYNN: I have no plans to cross-examine the ,
18 Mass. AG's witnesses. .
t f
19 JUDGE SMITH: Mr. Lewald will hold the key to it, I- l 20 - go ahead. l I
21 MR. DIGNAN: This is Tom Dignan. Mr. Lewald is -- (
22 he's out of the office today. I'd just as soon not be held to this, but my understanding last time I talked to him was he
}3 24 would be through with the panel by three hours at the most. l t
25 MS. WEISS: Well, that means we don't have to -- we !
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l 11213 (h l1 ' won't be seeing anybody'--
$2 MR. DIGNAN: Well, I.say don't hold me to that. I 3 don't have him here, but I -- this was a conversation a while 4 ago, and it was before Renn, and I don't'know how much of the 5 Renn cross-examination did away with -- cutfinto that-time.
6 MS. WEISS: Well, it sounds reasonable to imagine-7 that Bores and Lazarus won't get on until Tuesday. That seems 8 like a reasonable --
9 JUDGE SMITH: Yes, I think that -- you can count on 10 that. Yes, if Tuesday, but more likely Wednesday.-
11 MR. TRAFICONTE: Yes.
12 JUDGE SMITH: ;All right.
13 MR. TURK: Your Honor, there's one other matter I'd
( 14 like to raise. Mr. Oleskey, I believe, has left.
15 MR. TRAFICONTE: Yes, he has, Sherwin, -
16 MR. TURK: That Your Honor may recall that last 17 December when the Staff agreed to produce documents to the 18 Mass. AG, we asked for some reciprocity. At that time the 19 Board did grant us some discovery against Mass. AG, and we were 20 given a packet of documents concerning communications between 21 Mass. AG -- I'm sorry, between the Commonwealth and FEMA, among 22 other things.
23 At that time Mr. Oleskey withheld under a claim of 24 attorney work product notes of communications between his 25 office and Mr. Thomas's, and possibly others; but I believe O Heritage Reoorting Corporation (202) 628-4888
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()- (1 with Mr.-Thomas entirely or mostly.
I2 I'd like to pursue my request for those documents, i 3 and-I'm quite willing to have them go to the Board-first for in' !
4 camera examination to see if the_ claim of attorney work product t
5 can be sustained. ;
6 MR. TRAFICONTE: Well, I think --
l 7 JUDGE SMITH: My memory was that.wasn't reciprocity. *
- 8 All these requests had to stand on their own merits, but I do 9 recall something along that line.
10 Mr. Traficonte?
11 MR. TRAFICONTE: Well, I personally had reviewed 12 those documents, and I would be certainly prepared to argue 13 again -- I believe we -- Mr. Oleskey argued this once -- but
() 14 I'd be more than willing to argue again on why they are classic l 15 work product. They are the result of investigations-done by 16 attorneys or those working for attorneys, seeking information ;
17 from parties or expert -- however you want to characterize 18 FEMA, seeking information about the position FEMA had taken in 19 this proceeding.
20 They are work product. I don't think there's any j 21 dispute on that. I think the problem is, Mr. Turk, I haven't 22 heard why the work product privilege that attaches to these e
23 documents need be overcome in this situation.
Q4 MR. DIGNA.N: Your Honor, this is Tom Dignan. May I 25 offer one observation?
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() il I'm looking at the letter that was sent to Mr. Turk, f2 and the way it was phrased was these documents include two sets 3 of notes made by counsel and a Massachusetta Attorney General 4 paralegal in the course of trial preparation in this case.
5 They are withheld as work product and reflect oral statements 6 made by Ed Thomas -of FEMA to us in the course of ir.' tviews 7 with him.
8 And they go on to some other documents they're 9 withholding that don't involve Mr. Thomas.
10 We naturally believe our mental processes in 11 evaluating these oral communications, as discussed inter alia 12 in Upjohn vs. United States...
13 The question of whether the work product privilege
( 14 must fall is almost parallel, I suggest, to whether the 15 executive privilege falls. The issue before the house when 16 Mr. Thomas is to take the stand,-it seems to me, is going to be 17 the credibility of Mr. Thomas. And it would seem to me that 18 while redaction may well be in order on a pure attorney's 19 impression, any oral statements he made to an official of the 20 Commonwealth of Massachusetts about these events is highly 21 relevant, and in this setting I think the work product 22 privilege should fall.
23 It is no different than a witness statement at the --
t 34 given to an attorney in an accident case, and the usual rule 25 is that if you can't show that you can get the information
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() i;l you can't get the information yourself, the privilege holds.
12 However -- against trial preparation material, things of that -
3 nature.
4 However, here~when you're going at the question of 5 credibility of a witness, the most important thing there is 6 inconsistent statements, and I suggest the privilege, assuming.
7 it exists, between Mr. Thomas and the Commonwealth, should 8 . fall. It's definitely not an attorney-cif?nt privilege, 9 obviously, and it's simply an attorney work product privilege, 10 and I don't understand the request to have been, and certainly 11 to the extent I joined it, for any mental impressions of !
12 attorneys. And if anything has to be redacted, it can be, but 13 Mr. Thomas's statements on these interviews, I think, are
() 14 relevant.
And they're relevant for another purpose in that they f
15 L 16 will disclose just how many interviews and how closely 17 Mr. Thomas has been working with the Commonwealth of 18 Massachusetts.
l 19 MR. TRAFICONTE: Well, I don't appreciate the meaning l I
i 20 behind working with, Your Honor, but if I could respond to the 21 substantive argument that Mr. Dignan just made -- can you hold 3
22 one second? We're just getting a buzzing on our phone, j 23 JUDGE SMITH: You certainly are.
24 MR. TRAFICONTE: If I could respond to the 1 ' !
25 substantive argument that Mr. Dignan just made, analogizing it ,
- j r i
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.( ) i l to a witness interview in an accident case is.not a bad l
l !2 analogy, and~if the witness were available, as Mr. Thomas 3 certainly is, and he'll be there and you can'ask any questions 4 of him, as we will, that you want to, the witness is not 5 unavailable and you can't make the showing that you need our 6 work product documents. ,
( 7 If I understand the thrust of Mr. Dignan's argument, 8 then anything that Mr. Thomas has ever said to anyone 9 theoretically should be discoverable because it runs to his 10 credibility. And that's far too broad a brush here, it seems 11 to me.
12 He'll be on the stand. Any questions that we put to 13 him Mr. Dignan or Mr. Turk can put to him.
14 JUDGE SMITH: That's not the point. The traditional 15 rule is pretty much as Mr. Dignan stated it, that'it's the 16 mental impressions of counsel that is to be protected by the 17 work product privilege. There's no privilege, Mr. Thomas did 18 not -- has no privilege of his own, absolutely none. His 19 credibility's certainly going to be in issue.
20 It seems to me that at least a redacted version 21 should be -- I mean, we'll look at them and agree that mental 22 impressions that Massachusetts AG may have incorporated in 23 those notes should be eliminated, but it seems to me that they 24 should be produced. They're not available through any other 25 source.
O Heritage Reporting Corporation (202) 628-4888
11218 I) 1 1MR . -TRAFICONTE: That's my point, Your Honor. They 2 are -- the answers to questions provided to us by Mr. Thomas
!3 are available directly from Mr. Thomas as he sits on the 4 witness stand.
-5 JUDGE SMITH: Assuming he gives the same answers.
6 MR. TURK: Yes,-and, Your Honor, there's another 7 problem. I tried to get at some of that in my deposition.
8 cross-examination of Mr. Thomas. Now, 1 was limited to about 9 20 or 25 minutes, so when I started trying to get into 10 communications he's had with the Mass. AG's office, I found a 11 round of objections from Ms. Weiss and others, so I had to cut 12 off that line of questioning.
13 MS. WEISS: That's not true. You asked --
14 MR. TURK: -- that's true.
. 15 MS. WEISS: You asked him how many times he'd met 16 with people, and he answered you. And that's all on the 17 record, and presumably he'll answer you again.
18 MR. TURK: I don't want to get into a deposition 19 transcript, but in any event --
l 20 MS. WEISS: You're the one who brought it up.
21 MR. TRAFICONTE: You just cited it, Sherwin. If you 22 don't want to get into it, don't cite it.
23 MS. WEISS: Those were your first questions and he d
24 answered you.
25 MR. TURK: The notes that Mass. AG will have of any O Heritage Reporting Corporation (202) 628-4888 v -,-w,<y...--v:e- = i,- ,'r<=w r-v-e<vr w e *
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(_ 1 meetings between themselves or any communications between l 2 themselves and Mr. Thomas can give me a lot more information j3 than I'm likely to get in cross-examining Mr. Thomas for'the
!4 first time on the stand.
5 MS. WEISS: Well, that's a different -- now, that's a 6 different thing. It's not cross-examining him for the first 7 time; you had him at the depositions.
8 I'm not arguing about these notes, I don't know 9 what's in them, but I just want that when you make 10 representation about what happened at the deposition that you 11 make an accurate one. .
i 12 MR. TURK: I will be accurate.
13 JUDGE SMITH: All right, never mind. !
}4 It certainly seems to me that if the parties 15 examining Mr. Thomas possess the notes of his testimony -- I 16 mean, his interviews with the Mass. AG, it's going to enhance 17 the quality of Mr. Thomas's testimony. The problem that I see 18 with it is to what extent are the mental impressions of the 19 legal counsel in there. We can look at that.
20 We also have the problem of how accurate are those 21 notes, and that always can be addressed, put to Mr. Thomas on i
22 cross-examination, if necessary.
23 I'd hate to have somebody depend upon notes I made; i
24 I'm a very poor notetaker. But that's a problem; that's a .
25 problem of reliability. That doesn't foreclose producing them, Heritage Reporting Corporation (202) 628-4888 t
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'( fl 1 though.
2 I think they should be produced, Mr. Traficonte.
3 MR. TRAFICONTE: Well, if that's the Board's desire,
- 4 we will. produce them to the Board, i 5 JUDGE SMITH
- With the mental impressions 6 highlighted, you.know, so that we can see what-you_believe to 7 be mental impressions.
8 MR. TRAFICONTE: Yes.
9 JUDGE SMITH: Yes, they should be produced.
10 Anything further this evening?
11 MR. TURK: Your Honor, Sherwin Turk.
12 I'm looking at the deposition transcript of 13 Mr. Thomas, and I owe an apology to Ms. Weiss. Her objection
( 14 came in when I was asking about discussions within FEMA' Region 15 1, not when I was asking about communications with Intervenors.
! 16 So I owe her that apology, and I make that.
17 JUDGE SMITH: Okay. Anything further?
18 Nothing further this evening?
19 Does anybody anticipate now a need for another 20 conference this week?
21 MR. TRAFICONTE: No, Your Honor, but again I want to 22 come back, I'm sorry I harp on the schedule, but did the Board 4
23 indicate when the third week or the next week after the coming 24 one would be?
25 JUDGE SMITH: ,tha, we -- yes, we did, in that it's not i
() Heritage Reporting Corporation (202) 628-4888
s l11221' I) 1 going to be after June 25th,.or June 27th, when FEMA would have-2 it.
i3 MR. TRAFICONTE: Right. It would follow immediately 4 upon that with a one-week break, as normal, or would --
5 JUDGE SMITH: Well --
6 MR. TRAFICONTE: Sure.
7 JUDGE SMITH: -- I think what we'd better do is t
8 between now and then look at the calendar and try to be perhaps 9 a little more versatile this time. But as soon as possible 10 .after the next week. Perhaps the week of the 23rd, or perhaps 11 a few days of that week, or whatever. Or the days following 12 Memorial Day holiday.
13 MS. WEISS: If you're looking at that, I just -- we 14 have just had the oral argument in the appeal to the NRC. rule 15 change scheduled in the ,First Circuit on June the 8th, and I'm 16 involved in that, and I know that there are other people in 17 this case that'll be. I will be making oral argument in that -
18 MR. TRAFICONTE: I'm sorry, what day was that on, 19 June the 8th?
20 MS. WEISS: June the 8th, 21 JUDGE SMITH: If we can -- I think we should plan on 22 having all or parts of the week of the 23rd and the week of the 23 31st available to clean up this matter.
24 Anything further?
25 MR. DIGNAN: Yes, Your Honor, one other thing, and I Heritage Reporting Corporation (202) 628-4888
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.( 1 don't ask for any ruling now, but we've been talking about this l
-i
^!
2 coming testimony as in part discovery, which I fully j3 understand. However,-I;do assume that the rules of evidence i4 that'will apply will-not be the discovery rules, but rather ;
i -
5 will be the usual rules of material, competent, not outlandish 6 , hearsay, and so forth. .
7 As the Board is aware, one of the difficulties I had-8 with the whole deposition procedure was some third- and fourth-l 9 hand hearsay going out to other quarters as though it was 1
) 10 firsthand statements. It is my understanding that even though 11 the scope of examination will be broader than the Board would i 12 normally allow, that the usual rules of evidence will be in 13 effect, as would be in any other hearing.
l O 14 JUDGE SMITH: We -- yes. As a matter of fact,,to 15 call it combination testimony and discovery is somewhat of a 16 misnomer. We have no authority to receive or to depend upon
- 17 anything except reliable, probative, and substantial evidence.
i
. 18 And we should better have called it testimony with the 19 understanding that there has been no discovery, with the 20 recognition that there has been no discovery.
l 21 MS. WEISS: Your Honor, I must say that was not my 22 understanding of the ruling, and let me -- I -- it's my 23 expectation that you're going to deal with this on a case-by-24 case basis. But let me just remark that had we been limited to 25 that kind of a standard, we would never have developed the
! ( '
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(I 1 information that we now have.
2 JUDGE SMITH: Well, you.have a very sharp
- 3 understanding of that standard. Maybe you could explain it to 4 me.
5 MS. WEISS: Well, what Mr. Dignan was suggesting was 6 that, for example, testimony that somebody was informed about 7 what happened at a meeting at which they wera not present would n
8 be objectionable on the grounds that that might not be 9 sufficiently reliable to meet the admissibility test under the 10 rules of admissible evidence, but that would clearly be 11 permissible discovery. And, you know, there's a big difference 12 when the goal is searching for admissible evidence.
13 And, you know, had we been limited to the tightest O
\- 14 standard-on discovery, we would never have developed the 15 information we now have about that January meeting. So we, you 16 know, it was my understanding that this would be depositions 17 presided over by the Board.
18 JUDGE SMITH: No. No, no. It's not -- that was one 19 of our -- this -- the evidence adduced at the forthcoming 20 hearings will be available for proposed findings, but we will
, 21 allow a much greater reach in view of the fact that it must 22 also incorporate somewhat the purposes of discovery.
23 There's no way that we can relax the rule that 24 evidence be reliable, probative, and substantial.
25 MS. WEISS: Well, that's a case that, you know, it's O Heritage Reporting Corporatica
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(_) 1 not discovery.
2 MR. TURK: Your Honor, I would note in response to 3 Ms. Weiss that they've asked for witnesses with firsthand 4 knowledge, and that's what they're getting. So I don't see 5 that they're going to be in a position where_they'd want to-6 bring out all the hearsay. They've had the hearsay from 7 Mr. Thomas, and now they're being given the people with direct 8 knowledge --
9 MS. WEISS: Well, I believe that'll be true,-but we 10 don't know for sure. I mean, we've gotten a little peek under 11 the blanket, and we don't know for sure whether this is the 12 full extent of, you know, what's going on.
13 MR. TURK: I mean, so if a witness can't give you an 14 answer based on personal knowledge, you can ask them who has 15 the knowledge and go after that person.
16 MS, WEISS: Fine.
17 JUDGE SMITH: Well, let's say that we will do what 18 due process requires, as we understand the requirement.
19 Anything further?
20 Nothing further this evening?
21 All right. Then we're adjourned.
22 (Whereupon, at 5:14 p.m., the hearing in the above-23 entitled matter was concluded.)
24 25 Heritage Reporting Corporation (202) 628-4888
- 1. CERTIFICATE rs 2 3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter of:
5 Name: PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.,
(SEABROOK STATION, UNITS 1 AND 2) 6 7 Docket Number: 50-443-OL, 50-444-OL 8 Place: Bethesda, Maryland 9 Date: May 10, 1988 10 were held as herein appears, and that this is the original 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Commission taken stenographically by me and, 13 thereafter reduced to typewriting by me or under the direction 14 of the court reporting company, and that the transcript is a
() 15 true and accurate re ord of e foregoing p oceedings.
16 /S/
s 17 (Signature typed): Kent Andrews 18 Official Reporter 19 Heritage Reporting Corporation 20 21 22 23 24 25 O'"' Heritaga Reporting Corporation (202) 628-4888
.