ML20154J384
| ML20154J384 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/19/1988 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#288-6406 ASLBP, OL, NUDOCS 8805260327 | |
| Download: ML20154J384 (246) | |
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ORIGINAL UNITED STATES O NUCLEAR REGULATORY COMMISSION !
I gMeeaeammMMMMMMMMMMMMMMMMWMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMe ATOMIC SAFETY AND LICENSING BOARD PANEL In the Matter of: )
)
EVIDENTIARY HEARING >
) DOCKET: 50-443-01.
PUBLIC SERVICE COMPANY OF > 50-444-OL
) OFFSITE EMERGENCY -
NEW HAMPSHIRE, et al ) PLANNING
)
(SEABROOK STATION, UNITS 1 AND 2) )
O Pages: 11781 through 12025 P1 ace: Concord, New Hampshire Date: May 19, 1988 m as as e me == =m em en ss = = = se me ss as su ms m us sa m am me ns m us = = m m an ns em aa ss a m m as on es se me n sm an es es = == = am as M m e ff-] 0/
d HERITAGE REPORTING CORPORATION ODWRewim O 1226 L Street, N.W., Sake 600 Waddeston, D.C. 20005 (202) 628 4888 8805260327 080519 PDR ADOCK 05000443 t'DH
i 11781
/~ 1 UNITED STATES NUCLEAR REGULATORY COMMISSION
. l.s} ATOMIC SAFETY AND LICENSING BOARD 2
Tax 50T;1 l 3 In the Matter of: )
4 )
i PUBLIC SERVICE COMPANY OF ) Docket Nos.
5 NEW HAMPSHIRE, et al., ) 50-443-OL
) 50-444-OL 6 ) OFF-SITE EMERGENCY CSEABROOK STATION, UNITS 1 A!)D 2 ) PLANNING 7 ) ,
EVIDENTIARY HEARING 8
9 Thursday, 10 May 19, 1988 11 Room 210 Legislative Office Building 12 Concord, New Hampshire 13 The above-entitled matter came on for hearing,
() 14 pursuant to notice, at 9:06 a.m.
15 BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN Atomic Safety and Licensing Board 16 U. S . Nuclear Regulatory Commission Washington, D. C. 20555 17 JUDGE GUSTAVE A. LINENBERGER, JR., MEMBER 18 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission 19 Washington, D.C. 20555 20 JUDGE JERRY HARBOUR, MEMBER Atomic Saf ety and Licensing Board 21 U. S . Nuclear Regulatory Commission Washington, D. C. 20555 22 23 24 25 O Heritage Reporting Corporation (202) 628-4888
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(~) 1 APPEARANCES:
V 2 For the Annlicant:
3 THOMAS G. DIGNAN, JR. ESQ.
KATHRYN A. SELLECK, ESQ.
4 GEORGE LEWALD, ESQ.
Ropes & Gray 5 225 Franklin Street Boston, Massachusetts 02110 6
For the NRC Staff:
7 SHERWIN E. TURK, ESQ.
8 Office of General Counsel U. S . Nuclear Regulatory Commission 9 Washington, D. C. 20555 10 For the Federal Emernency Mananement Agency:
11 H. JOSEPH FLYNN, ESQ.
Federal Emergency Management Agency 12 500 C Street. S . W.
Washington, D. C. 20472 13
- For the State of New Hampshire:
14 GEOFFREY M. HUNTINGTON, ESQ.
15 State of New Hampshire 25 Capitol Street 16 Concord, New Hampshire 03301 17 For the Commonwealth of Massachusetts:
18 CAROL SNEIDER, ASST. ATTY. GEN.
STEPHEN OLESKEY, ESQ.
19 Commonwealth of Massachusetts One Ashburton Place, 19th Floor 20 Boston, Massachusetts 02108 21 For the New Eneland Coalition against Nuclear Pollution:
22 ELLYN R. WEISS, ESQ.
23 Harmon & Weiss 2001 S Street, N. W.
24 Washington, D. C. 20009 25
[)
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("' APPEARANCES: CContinued)
L) 1 2 Eor the Seacoast Anti-Pollution Leangg:
3 ROBERT BACKUS. ESQ.
Backus, Meyer *. Solomon 4 116 !.owell Street Manche c'. s r. New Hampshire v4: C; 5
JANE DOUGHTY. DIRECTOR 6 Seacoast Anti-Pollution League 5 Market Street 7 Portsmouth, New Hampshire 03801 8 Egr the Town of Hamnton:
9 MATTHEW T. BROCK, ESQ.
Shaines & McEachern 10 25 Maplewood Avenue P. O. Box 360 11 Portsmouth, New Hampshire 03801 12 For the Town of Kensinaton:
13 SANDRA FOWLER MITCHELL, EMERGENCY PLANNING DIR.
s Town Hall s 14 Kensington, New Hampshire 15 For the Towns of Hamoton Falls and North Hamnton and South Hamnton:
16 ROBERT A. BACKUS, ESQ.
17 Backus. Meyer & Solomon 116 Lowell Street 18 Manchester. New Hampshire 03105 19 For the Town of Amesburv:
20 (No Appearances) 21 22 23 24 25 O Heritage Reporting Corporation (202) 628-4888
. _ _ _ . . - - _ _ . . . _ _ _.__._ ~....___ . _ . _.____. _ . _ _ _ _ _ _ _ _ _ . _ _ _ . _ _ _
4 11784 g i INDEX 1
-2 WITNESSES DIRECT CROSS REDIRECT RECROSS EXAM !
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3 Panel:
4 ROBERT BORES WILLIAM LAZARUS 5 by Mr. Turk 11862 1
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, g 1 1 tl Q E X (Cont inued) 2 1 EXHIBITS: IDENT REC 'D REJ. DESCRIPTION 3
NRC Staff:
4 No. 4 11832 11970 11832 1 page, memo, 5 Schumacher to
' Turk, 15 Oct. '87 6
No. 5 11838 11841 Vultipage, memo, 7 Dores to Thomas, 18 February '87 8
No. 6 11894 11894 Multipage, memo, 9 Bores to Thomas, 4 June '87 10 11 12 13 14 [
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11787
/46 1 PROCEEDINGS 2 JUDGE SMITH: Good morning.
3 Is there any preliminary business?
4 MR. BACKUS: Yes. Your Honor.
5 I would like to, if I could, return to the issue of 6 the motion that we filed yesterday, to say that we are as of 7 today going to recharacterize that motion as one directed to 8 the discretion of the Board. And I would like to address that 9 if I could.
l 10 JUDGE SMITH: You mean it 's going to -- you remove 11 from it the quality that it is mandatory for us to grant it if 12 the law and facts require it?
13 MR. BACKUS: Well, perhaps I 'd better make the
( )
14 statement that I wanted to make. And if there are questions 15 that arise. I 'l l try and answer them.
16 At this time I would like to revisit the 17 characterization of the renewed motion for recusal in view of 18 yesterday af ternoon 's discussion of the matter. There are two l 19 clear procedural concerns that prompt this recharcterization.
! 20 First, there is the concern that if the adverse l
21 parties insist on a right to normal response times, and even 22 briefing as Mr. Dignan has suggested he may, the motion may be 23 mooted merely by the passage of time for those responses.
24 although we submit it was promptly filed.
25 We have in mind that the Board has unequivocally a
_/
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( ,I 1 stated that whatever else happens these hearings are going to 2 go forward on a schedule the Board has outlined. This is a 3 concern the Board itself raised yesterday afternoon.
4 The second procedural problem, if this motion is 5 characterized as a matter of law, is that there is apparently 6 then a need for automatic referral to a higher tribunal, the 7 Appeal Board, when that Board has now twice indicated its 8 disinclination to entertain interlocutory appeals in this 9 proceeding; once in regard to the attempted interlocutory 10 appeal by directed certification on the Sholley-Beyes ruling; 11 and more recently on the Intervenors ' motion for directed 12 certification on discovery from FEMA.
13 JUDGE SMITH: A nd isn 't it also true three separate O 14 disqualification motions with respect to Judge Hoyt?
15 JUDGE HARBOUR: Two of which were the subj ect of 16 formal decisions, and if I recall correctly, the third one was 17 dismissed for timeliness grounds.
18 JUDGE SMITH: Go on with your statement.
19 MR. BACKUS: As a result of these two procedural 20 problene, the Intervenors have decided to present the joint 21 recusal motion as one seeking recusal not as a matter of law 22 but as a matter entrusted in the first instance to the exercise 23 of this Board 's reasonable discretion. This means we are not 24 presenting the motion in such a way as to compel immediate 25 review of the Board 's decision on the motion.
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(' _T
) 1 Let me just add that there have been numerous 2 accusations that notions such as this one are filed for the 3 purpose of delay, and we specifically disavow that. We would 4 note it was the Intervenors who asked for the FEMA witnesses to 5 be brought here, the senior management witnesses, at a earlier 6 time than FEMA itself wanted.
7 However, in so stating, we are not in any way 8 indicating that we think the motion is not meritorious. We 9 affirm our belief that it is indeed meritorious in our
- 10. Judgment, and in order to move this proceeding along and to 11 have a chance to have the Board have full consideration of this 12 motion, we would respectfully request leave to make our 13 arguments in support of the motion at this time before we go O 14 forward with the substantive testimony from Dr. Bores and Mt.
15 Lazarus since the motion, we believe, would impact on whether 16 the Board should sit on that testimony as well as that of Mr.
17 Thomas when he appears.
18 And if I can do that, I would now like to make a 19 brief argument --
20 JUDGE SMITH: All right, let me paese for a moment, 21 interrupt you for a moment if this is a good place.
22 You have accurately captured what the Board 's -- what 23 I said last night; that the way things are going the matter 24 would be moot ed if we don 't take arguments, act upon it, and 25 under no event would we delay the hearing while this is
}
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(_) 1 pending.
2 However, working here away from the office without 3 any books or anything is somewhat of a handicap. However, 4 since then I have recalled that it is incumbent upon the 5 judicial officer to whom a motion for recusal is addressed to 6 rule on it immediately before the subj ect matter comes up.
7 So, if in the first instance we determine that the 8 motion is not frivolous, we will rule on it on the merits. And 9 if the law requires, we would recuse ourselves. That does not, 10 ho'neve r, take care of the problem about the Appeal Board. I 11 don't know what to tell you about that.
12 So I do want to assure you that if you want us to
, 13 consider it on the legal merits, that we will do it. We would 14 have -- my plan would be to issue a decision, written decision 15 Monday.
16 MR. BACKUS: I would -- all right. Your Honor.
17 As I say, we have chosen to recharacterize the motion 18 as one committed in the first instance to the reasonable 19 exercise of discretion on this Board, not as we requested 20 it --
21 JUDGE SMITH: Well, do you want to consult -- I mean 22 I just -- do you understand what I 'm saying; that the Board is 23 readdressing its statement that the matter will be mooteci in 24 the normal course of events, and that we will allow it to be 25 mooted because the fact is, if the motion is made in the O Heritage Reporting Corporation (202) 628-4888
I! '
11791
) 1 correct form, we will not allow it to be mooted before we 2 address it?
3 MR. BACKUS: Okay, I understand.
4 Just a second.
5 JUDGE SMITH: I think that that is the requirement of 6 law on that.
7 Does anybody have the Rules of Practice?
8 MR. TURK: Yes, Your Honor.
9 JUDGE SMITH: Do you have them? Could I borrow --
10 (Counsel confer.)
11 MR. BACKUS: Your Honor, we understand the point 12 you 're making. We still think we have a practical problem 13 given the necessary, as I understand it, involvement of the 14 Appeal Board if we do not revise our characterization of the 15 motion. And in light of that, we are, as you inquired 16 yesterday, contrary to what our statements were yesterday, we 17 are now arguing this notion on the basis that it 's entrusted to 18 the reasonable exercise of this Board 's discretion and not 19 asking that it be treated as a metter requiring appeal, 20 interlocutory appeal.
21 JUDGE SMITH: Now, are you gentlemen prepared to 22 argue it?
23 Mr. Dignan.
24 MR. DIGNAN: Yes, Your Honor. I do wish to reply, 25 however, to a statement that was made.
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(-) at least, have made no allegations, and I have
'x_) 1 I.
2 heard none from any other counsel that the motion was made for 3 delay. I may believe it was made for other extraneous reasons.
4 but I have not alleged delay.
5 When it comes to my attention that the press had it 6 before you did or I did. I do start thinking there were other 7 reasons.
8 MR. BACKUS: The press, as far as I know. did not 9 have it before the parties and the Board. I made every effort 10 to see that that was not the case. But this does. I suggest.
11 not present anything the Board needs to deal with and I would 12 like, if I mcy, to go forward and say what I want to say in g3 13 support of the motion at this time.
U We do so because, as I mentioned, we believe the 14 15 arguments should be made now before the Board undertakes to 16 consider the substantive testimony of the NRC witnesses.
17 First, let me just turn basically to the factual 18 basis for the motion very briefly, and then discuss how I think 19 the law should be applied to those facts.
20 The factual basis for the motion, we believe, is set 21 forth in the motion itself and need not be much further 22 elaborated at this point. I would add that we believe that the 23 facts here are indeed unique. I know of no other case, whether 24 NRC or federal civil trial proceeding in which a factfinder has 25 chosen to characterize the witness 's testimony as this Board
(~
V)
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's,) 1 did on the telephone conference on May 10th as raising "large 2 concerns about forthrightness and candor" on the basis of prior 3 sworn statements of that witness when in fact those statements 4 were not accurately recorded and/or reported by the factfinder.
5 This is at least the case when an accurate version of 6 that testimony was, as in this matter, available through the 7 fact that we have daily verbatim transcript.
8 Now since the Board made those statements on May 9 10th, it has already acknowledged at Pages 11241 and -42 of the 10 May 16th Monday transcript that its characterization of Mr.
11 Thomas 's testimony in January 13th of this year was in f act 12 incorrect, g, 13 The Board has gone further, and now says its 14 statements concerning Mr. Thomas were not intended as a 15 "warning", and that its comments about his right to counsel 16 were intended to afford him a right to confront by cross-17 examination the NRC witnesses. This was on Tuesday, May 17th, 18 at Page 11359 of the transcript.
19 The Board has further said its statements about 20 counsel "was not made as a pej orative j udgment on Mr. Thomas."
21 That was at the same place in the transcript over to Page 22 11360 23 Now we submit that these statements that the Board 's 24 judgments on Mr. Thomas 's testimony were neither a warning nor
- 25 pej orative cannot be squared with the Board 's initial May 10th O
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(-) 1 assertion that it had suggested counsel because "there is a 2 civil penalty procedure in the NRC regulations and statutes 3 which attendant to people who provide, as the words go, false 4 material information." That was on the May 10th transcript at 5 Page 11204.
6 So we suggest the Board 's own statements here in this 7 record on Monday and Tuesday of this week reflect a recognition 8 that '.ne Board 's May 10th characterization of Mr. Thomas was 9 inappropriate and perhaps even, as we contend, unj us t if ied.
10 With this in mind, now let me turn to the case law, 11 and I want to discuss two cases -- the Houston Light & Power 12 case at 15 NRC 1363. and the TMI Restart case at 21 NRC 566.
13 First, let me note for the record that although we 14 are going to treat this in light of these cases since they are 15 binding on this Board, that we do not agree that they set forth 16 a correct legal standard for recusal. Rather, we believe the 17 correct legal standard is set forth in 28 USC Section 455(a) 18 for federal judges and magistrates, and that that section, 19 properly interpreted, requires recusal where there is an 20 obj ective basis for believing a factfinder or tribunal has 21 engaged in conduct which gives the appearance of personal bias 22 or prej udgment on f actual issues whether or not arising 23 extraj udicially or as a part of j udicial conduct.
24 We believe this standard should be the one applied.
2S but we recognize, of course, as we must, the Commission has O Heritage Reporting Corporation i
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\_) 1 applied a different standard in the Houston case, and we would 2 therefore turn to that case.
3 In Houston, the Commission adopted a narrower 4 standard when it claimed prej udgment would only rarely be a 5 basis for disqualification unless it was extrajudicial. As to 6 this, we have two positions.
7 Firrt, we believe the prej udgment in this case does 8 arise out of matters that should properly be characterized as 9 ext raj udicial .
10 And, second, we say that even if this view is not 11 accepted, that this is indeed within the words of the Houston 12 case, an extreme case quite beyond the facts in Houston or the 13 Metropolitan Edison TMI Restart case.
J First, we claim the prej udgment is indeed 14 15 ext raj udicial . Our basis for so stating is the Board 's 16 comments on Mr. Thomas 's testimony as contrasted with the 17 apparent recollection of the July 10th RAC meeting on the part 18 of Mr. Bores and Mr. Lazarus as reflected in their memoranda 19 prepared at the request of NRC trial counsel in mid-October 20 1987, after Mr. Thomas had testified.
21 These memoranda were furnished to the Board for the 22 first time, so far as I know, with Mr. Dignan 's subpoena 23 request for those witnesses dated January 6. 1988. Those 24 memoranda were not, at the time the Board saw them, a part of 25 the evidentiary record in this proceeding. Yet the Board j
Heritage Reporting Corporation (202) 628-4888
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() 1 apparently formed adverse opinions related to Mr. Thomas 's 2 t esti mony, at least in part because of them, and as I said, at 3 a time when they were not part of the evidentiary record nor 4 supported by sworn testimony by witnesses.
5 Thus, we claim that insofar as the Board relied on 6 those memoranda to make the comments it did about Mr. Thomas 's 7 sworn testimony, it should be considered to have acted in an 8 extraj udicial capacity.
9 However, even if this argument is not accepted, we 10 say that Houston Lighting standard has been met in this case.
11 That case states that in order to overcome the general rule 12 that prej udgment in order to disqualify must be extrajudicial, 13 there must be a "extreme case". i O 14 As an example, the Commission said it must be more 15 than extra-record conduct such as "stares, glares and scowls".
16 We believe this is indeed such a case, and as previously 17 discussed, a unique one. In this case we have. I think, clear 18 prejudgment and it is not based on or supported by the recor6 i 19 as our motion points out.
20 Two things make this a unique case:
21 The first is, the Board made its statements about Mr.
22 Thomas on the basis of misstating Mr. Thomas's testimony, which i
23 as I previously mentioned, was not a matter which had to be i
24 guessed at, it was available through verbatim transcript.
25 S eco ndly, the Board had had Mr. Thones under oath
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() 1 twice, on October 7th and November 4th, and yet went on the 2 record on December ist having said it had read his testimony 3 more than once, and it found no reason whatever to doubt his i
4 integrity.
5 Because of these things, I think that the statements 6 made on May 10th, when Mr. Thomas had testified one additional 7 time, make this a unique case, and indeed, we believe, an 8 extreme case.
9 Now I 'll turn to the Metropolitan Edison case, the 10 TMI case, TMI Restart case. In that case, I find this.
11 It is enough tnat the statements will be understood 12 to reflect Judge Smith 's opinion based on the record, and his 13 conduct of the proceeding rather than on sources outside the 14 proceeding.
15 The distinction with that case, I submit again, is 16 the phrased "Lased on the record". Here the statements made 17 concerning Mr. Thomas, we believe, were not based upon, and 18 indeed were contradicted by the record.
19 So these are the reasons why we believe that this 20 case, although there is so far as I know no case exactly on 21 point, is a unique case and one which rises to the level of an 22 extreme case which justifies the filing and the granting of the 23 motion for recusal.
i 24 Lastly, since we have come back - charactericing 25 this as a motion directed toward the Bor. . J reasonable O Heritage Reporting Corporation (202) 628-4888 I
t 11798 1 exercise of discretion, we would advert again to the statements 2 the Board itself has made about the need to maintain public 3 confidence in the proceedings of this Board. We certainly 4 agree that that is a very important matter. And given the 5 record references that we have made to May 10th. May 16th and 6 May 17th that the statements that the Board has made, we 7 believes that public confidence in this proceeding will be 8 furthered by the Board exercising its discretion to grant the 9 notion. .
E46 10 (Continued on next page.)
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11799 JUDGE SMITH: Mr. Backus, the Board has still
(/47 1 i
2 remained somewhat uncertain as to the exact reach of your 3 motion. We think it 's clear you 're not asking us to step out 4 of the proceeding.
5 MR. BACKUS: That 's correct.
6 JUDGE SMITH: But you 're asking us not to j udge Mr.
7 Thomas ' -- continue to j udge Mr. Thomas ' credibility.
8 MR. BACKUS: That 's correct.
9 JUDGE SMITH: But you ask for other relief and that 10 is where we don 't know where the precise cutof f point is. I 11 mean, should we stop now and not listen to Bores and --
12 MR. BACKUS: Well, we 've now said this is a matter 13 entrusted in the first instance of the discretion of the Board.
14 I believe an appropriate exercise of that discretion would be 15 to take not only Mr. Thomas, but those who the Board has chosen 16 to characterize as having significant differences with Mr.
17 Thomas and their recollection of this RAC meeting on July 30th, 18 which are the witnesses before you, and also step aside in 19 viewing their testimony so that a fact finder could view all 20 the testimony pertaining to what this Board has characterized 21 as an important issue.
22 JUDGE SMITH: How about Cumming?
23 MR. BACKUS: I would have to say, we would think that 24 that would probably apply to Cumming as well. I would say, 25 probably we would not urge you to step aside for Hock and O Heritage Reporting Corporation (202) 628-4888
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(_) 1 Keller.
2 But those who are dealing with the evolution of the 3 FEMA position and how it switched insofar as it pertains to the 4 credibility of Mr. Thomas or those who are in disagreement with 5 him or have been, I think that that 's the reach that we are 6 asking the Board to consider recusal.
7 JUDGE SMITH: Okay.
8 Mr. Dignan?
9 MR. DIGNAN: May I inquire if anyone wishes to be 10 heard further in support of Mr. Backus before I begin?
11 JUDGE SMITH: You 're representing all of the movants?
12 MR. OLESKEY: Yes, he is, Your Honor.
13 MR. FLYNN: Mr. Dignan, I don 't know that what I 'm 14 about to say is strictly in support of Mr. Backus ' motion, but 15 it 's more in support than against it, so I suppose I should be 16 heard before you.
17 Your Honor. I am not prepared at this time to argue 1
18 the law. I am simply not familiar and have not had an adequate
! 19 opportunity to research the law, so I will not address that.
20 I do wish to say that, having read the motion for 21 recusal it appears to me that the factue.1 analysis in the 22 written motion is an accurate one.
23 MR. BACKUS: Did you say accurate -- accurate?
24 MR. FLYNN: Accurate.
25 MR. BACKUS: Thank you.
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(/ 1 MR. FLYNN: The other point that I wish to bring up, 2 and bearing in mind that the notion is addressed to the 3 discretion of the Board, and I do not wish my comments to be 4 taken as compelling a certain result; I leuve it to the Board 5 to decide the weight to be given to this. But I do wish to 6 comment that it appears from the transcript of May 10th that 7 the Board may have prej udged or at least challenged the 8 veracity of Mr. Cumming who is not -- who has not yet appeared 9 in this -- as a live witness in this proceeding.
10 The reason I say that is because the Board referred 11 to a statement from his prefiled testimony in which he said he 12 wished to account as accurately as possible the events leading 13 to the change in position, and the Board questioned that 14 statement at some length.
15 JUDGE SMITH: Would you restate that last point. I 16 think I missed it.
17 MR. FLYNN: The point -- I 'm talking about the 18 appearance of having prej udged Mr. Cumming 's credibility.
19 JUDGE SMITH: Oh, Mr. Cumming 's.
20 MR. FLYNN: Mr. Cumming, right. And what I 'm 21 referring to specifically is the question raised by the Board 22 about the completeness or the accuracy of his chronology which 23 appears in the prefiled testimony.
24 JUDGE SMITH: Right, I understand. When you said 25 Cumming I heard Thomas, and I j ust -- I don 't know.
O Heritage Reporting Corporat ion (202) 628-4888
11802 i Who will be heard next? Mr. Dignan, Mr. Turk.
() 2 what 's your pleasure?
3 MR. DIGNAN: I guess it would be me, tradition is the 4 staff speaks last, Your Honor. t S Your Honor, I begin with noting the somewhat i 6 absurdity of the motion. I don 't know how, if you grant it, we 7 go from there. Apparently, another Board listens to certain 8 witnesses that presumably are going to give testimony as 9 integral to any initial decision that may come down.
10 I don 't know if the thought is that the present 11 members of the Board will write an initial decision and ship it 12 to the other Board for an appendix. I really don 't know what 13 you 're going to do if you grant the motion as it 's before you.
14 I 've never heard of a partial recusal. You generally O 15 shoot to kill, when you shoot the king, and there 's no way that 16 I know you can go forward with two Boards deciding exactly the 17 same case and different parts of it. This isn't a question --
18 first of all, there 'r no ultimate issue as to the credibility ,
19 of Mr. Thomas, if that 's what they 're talking about. You know.
20 it might be a nice exercise to have a Board sit down and decide ,
i 21 whether Mr. Thomas is credible or not. But that doesn 't --
22 nothing turns in an NRC case ultimately on that. It is the 23 entire evidence, i i
24 I don't know what you do if you grant this motion and l 25 have one Board -- you continue with everything else and one >
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11803 1 Board sit and take a bunch of witnesses in front of them; and 2 then what do you do with it? I don 't know, I confess.
3 In any event, I would like to argue this case on the 4 basis of a standard of disqualification out of the cases.
5 That 's what I came here prepared to do, and I think it 6 obviously is just as good an argument on the standard of the 7 cases as if it 's directed to the discretion of the Board 8 somehov.
9 I would like to start by quoting the standard of 10 disqualification that I believe is the prevail $ng one in the 11 Commission. I am quoting, at this point, f rom ALAB-777 in the 12 Lilco case. I regret no jump cites. Your Honor. I 'm working 13 with LEXIS versions of these cases.
14 I will just read the quote: "It is well settled that 15 an administrative trier of fact is subj ect to disqualification 16 if he has a direct personal substantial pecuniary interest in 17 the result. If he has a personal bias against the participant.
18 If he has served in a prosecutive or investigative role with 19 regard to the same facts as are in issue. If he has prej udged 20 factual, as distinguished from legal or policy issues, or if 21 he 's engaged in conduct which gives the appearance of personal 22 bias or prej udgment of f actual issues.
23 This same language also appears in ALAB-759, a case i
24 involving Seabrook.
(
25 Now, I don 't read in this motion any allegation that l
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11804 1 the Board has a pecuniary interest in the result, nor an
() 2 allegation of personal bias towards a participant, a party, nor 3 an allegation of a former prosecutive or investigative role of 4 any member of this Board. That 's what we 're down to as an 5 alleged prej udgment of a f actual matter, which I will deal with 6 in a minute.
7 However, to make the standard complete it should be 8 noted that in ALAB-749, another public service company Seabrook 9 disqualification case, there 's a large number of them in the 10 books it -- there is what I would say, perhaps, an additional 11 gloss on the standard to be considered.
12 We reiterate two points which we made in our earlier 13 opinion in this case. First, a party requesting 14 disqualification or recusal may attempt to establish by O
\' 15 ref erence to a Judge 's overall conduct that a pervasive climate 16 of prej udice exists in which a fair hearing cannot be obtained 17 by the party complaining.
18 Second, the complaining party may attempt to 19 demonstrate a pattern of bias toward a class of participants of 20 which it is a member.
21 Now, I don 't understand that to be being alleged here 22 either. Therefore, we 're basically f aced, as I said, with an 23 allegation of prej udgment on the candor of Mr. Thomas.
24 Now, they have a factual problem, because when the 25 Board recited its concern at transcript pages 11146 and 11147 i
Heritage Report ing Corporation (202) 628-4888
11805~
1 the Doard stated the following: "So we really have some
() 2 serious concerns about Mr. Thomas 's perception of what happened 3 in the RAC, and we, today, based upon the evidentiary record so 4 far have very large concerns about Mr. Thomas ' f orthrightness 5 and candor on this subj ect. We leave unresolved further doubts 6 about that matter until we 've been able to hear f rom Dr. Bores 7 and Mr. Lazarus on the subj ects. So we have no fixed opinion 8 on that point."
9 In short. I thought the Board 's statement with 10 respect to the candor question, made very clear that the Board 11 had not prej udged the matter. It is true there were two more 12 references to forthrightness and candor. However, one of those 13 which immediately followed was simply the Board 's explanation 14 of why to date it had been unwilling to give the far-ranging O 15 discovery that had been requested and it is no more than a 16 recitation of a proper reason for a decision.
17 And the other was in response to FEMA 's counsel 18 bringing up the fact that the Board had earlier indicated that 19 they had no question -- no reason to question Mr. Thomas' 20 integrity. And what the Board made clear, as I read that 21 portion of the transcript, that they had revisited that matter.
22 reread it, and having reread it persisted in the view that they l 23 had questions about candor and forthrightness even absent their l
l 24 knowledge of the Bores and Lazarus memos.
25 So that 's the record on what the Board has said. The Heritage Reporting Corporation
[}
(202) G2 8- 4 808 l
11806 1 record itself, frankly, flatly rej ects the concept that there 2 has been any prejudgment by this BoarJ.
3 Now, the fundamental rule in NRC practice laid down 4 in the Houston case is that the alleged ground for 5 disqualification must stem f rom an extraj udicial source, in 6 most cases, except in extraordinary cases. Here, there simply 7 is no extrajudicial source alleged.
8 Indeed, all we have here at the most for the 9 Intervenors is the Board 's giving a preliminary assessment by 10 the Board of Mr. Thomas ' penchant for veracity; and that is 11 simply no basis for disqualifications. And I say that on the 12 basis of quotes I'm about to read.
13 The first is f rom the Houston Light and Power case, 14 CLI-82-9: "Indeed, the Commission has expressly adopted this 15 role, holding that, quote, ' preliminary assessments made on the 16 record during the course of an adjudicatory proceeding based 17 solely on application of the decisionmaker 's j udgment to 18 material properly before him in the proceeding do not compel 19 disqualification as a matter of law."
20 That is the most that has occurred here, is that the 21 Board taking note of material properly before it, including 22 that motion which was properly before it, has made a 23 preliminary assessment. That is the nest one can say has been i
24 done in this record, and that is perfectly proper and not
\
25 grounds for disqualification.
O Reporting Corporation Heritage (202) 628-4888
11807 1 This same language is quoted by the Appeal Board in 2 ALAB-748. another of the Seabrook disqualificetion cases, and 3 the Appeal Board went on to say: "The Commission nonetheless 4 suggested that there may be an exception to this general rule
. 5 where judicial conduct as demonstrates pervasive bias and 6 prej udice. To constitute such pervasive bias and prej udice, 7 however, a Judge 's conduct must be more then, quote, ' stares.
O glares, and scowls or occasional outbursts toward counsel 9 during a long trial."
10 Now, there can 't be any stares or glares in a phone 11 conference, and I don 't remember any growls, and I don 't see 12 any basis for recusing any member of this Board for any conduct t
13 towards counsel. That the case has been tried with a certain
{} degree of high tension, no one can doubt, but we 're all big ,
14 15 people here and I haven't heard anything come out of anybody 's 16 nouth, including my own and my opponent s ', that somebody should 17 really go home and cry about. It 's a .ough case; yes, it is. [
18 but you can't make any case for having gone over the line of
- 19 the general rule that the Commission has recited. [
, 20 JUDGE SMITH: They 're not making that argument. I i i 21 didn 't hear that anyway.
22 MR. DIGNAN: Now, finally, when one is all through l ,
23 reading the motion the basis is that the argument for 24 prej udgment is based on the allegation that the Board has made :
t 1 25 this prejudgment on a misreading of the record by the Board. ,
() Heritage Reporting Corporation (202) 628-4888 N
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. , , . , _ , , , , , - . , _ _ . . . , _ _ . . , _ . - . , _ _ , . _ , _ , . _ _ _.._ . .. _ _ .-..,- ~_- .-_ . , _ . _ . - . , .,_._--,__....._..._'
11808 1 Now, in fact, I don 't think the Board has misread 2 the record. But assuming that were the case, the TMI case,
~
3 which Mr. Backus quoted -- which cited in part. I believe it is 4 Footnote 6 makes clear that an argument that says that a I
5 preliminary assecament or judgment by the Board which is being 6 complained of as showing bias is a preliminary assessment for a 7 judgment formed on the basis of the Board misunderstanding the 8 record, is not grounds for the disqualification.
9 If the Board persists in the assessment that is based 10 on a misreading of the record, the Board mey ultimately be 11 reversed in its ultimate decision for that error.
12 But the fact that the Board had -- if you had misread 13 the record in forming this, as I read the TMI case, that cannot j( ) 14 effect a disqualification. The remedy for any misreading by a 15 Board, and a holding base on that misreading, is the ultimate 16 appeal of the decision and a reversal of the Board's decision 17 on a substantive basis.
18 In short, I 'm led to the conclusion that this recusal 19 motion *.s wholly without merit. It is without basis in fact.
20 and it nas no support in the law.
21 JUDGE SMITH: Mr. Turk?
22 MR. TURK: Your Honor, I 'm not prepared to argue the 23 law, I don 't have the cases with me. I do concur, however, in 24 Mr. Dignan 's reliance upon the cases he cited, the Houston 25 Power case. Seaorook decisions by the Appeal Board. AndI
() Heritage Reporting Corporation (202) 628-4888
11809 ,
1 agree with Mr. Dignan that there 's no basis in law for this 1
() 2 Board to accept the motion and to recuse itself.
3 I would go further, in my mind it 's a f rivolous 4 motion, and I 'm going to tell you why. That 's going to be the 5 thrust of my comments today. 7 6 There is a history in this proceeding, as I see it, 7 where if the Intervenors do not like the way the case l' going, 8 there 's an attack on counsel, th f re 's an attack on a Licensing 9 L erd member. That may not be the initial intent, but I see 10 that happened repeatedly.
i 11 I also see a repeated practice of going to the press, i
12 if they don't like the way things are turning out. !
13 Now, I don 't think there 's anything improper in a sitting Judge evaluating the testimony of witnesses who have
(} 14 come before him, including Mr. Thomas, and in the course of j
15 16 hearing that testimony forming a mental impression as to 17 whether or not the witness is credible.
- 16 Everyone of us does the same thing. All of us in i
19 this room are listening to witnesses and evaluating their 20 credibility and determining whether or not we feel we accept 21 the testinony as stated.
22 Mr. McEachern had an observation which may be !
23 interpreted elong the same lines. Back on October 7th when Mr.
24 Thomas first appeared in this proceeding, Mr. McEachern stated {
25 at transcript page 3149 in a question to Mr. Thomas, quote: "I
- i
() Heritage Reporting Corporation (202) 628-4808 I
1 l
11810 1 couldn't help but notice that your answers in this proceeding O 2 are perhaps the nost deliberative answers that I have ever 3 heard from a witness " close quote. And he went on to inquire 4 if Mr. Thomas was afraid of his career being affected based 5 upon the answers.
6 I think the observation by Mr. McEachern indicated to 7 him that he heard a pattern of answering which was different 8 from what he normally heard from witnesses.
9 I 'm not going to suggest that Mr. McEachern has the 10 same view of Mr. Thomas ' testimony as anyone else in this room, 11 but I think it 's clear that we all go ahead and form 12 impressions of a witness ' testi viny as he 's giving it.
13 I elso share a concern raised by Mr. Dignan, and that is, I don 't see how Mr. Thomas ' testimony can be evaluated by
(} 14 anyone other than the Judge who sat and heard the testimony and 15 16 watched and observed the demeanor of the witness as the 17 testimony was being given.
18 Mr. Thomas has already appeared before this Licensing 19 Board. I see no cure to resolving the issue as to which 20 testimony is more believable other than to have the same Judge l 21 hear all the testimony on the issue.
l et/47 22 (Continued on next page.)
l 23 24
! 25
() Heritage Reporting Corporation (202) 628-4888
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11817
() 1 JUDGE SMITH: Do you have a response?
2 MR. BACKUS: If I could be indulged. Your Honor, yes, 3 I do, very briefly.
4 First. I 'd j ust like to say that, as Your Honor S already pointed out, that this is not in any way an accusation 6 that the Board has been discourteous in any way to counsel in .
< 7 the preceeding. I will say right on the record for all of us I 8 think the Board has been courteous; the Board has permitted us 9 access to the record when we wanted it; and we are appreciative 10 of that. We think the Board 's conduct to counsel is not a 11 matter of criticism, and we make not criticism. This is not 12 that case.
13 With regard to Mr. Dignan 's concern about --
(%)-) 14 JUDGE SMITH: This is, in essence, j ust a prej udgment 15 case.
16 MR. BACKUS: That 's right.
17 JUDGE SMITH: All right.
18 MR. BACKUS: That 's all we 're saying in this motion.
19 As for Mr. Turk 's --
20 JUDGE SMITH: And not only prej udgment, but 21 prej udgment based upon error.
22 MR. BACKUS: That 's right.
23 JUDGE SMITH: Okay.
24 MR. BACKUS: That 's our position.
25 And we recognize, as Mr. Dignan says, that handling Heritage Reporting Corporation i (202) 628-4888
11812
( 1 this problem by the motion presents practical difficulties. I 2 don't think they are insupereible. I think we can meet them if 3 the Board decides the.t our notion, as now presented, warrants 4 the action that we 're seeking. I think that we can solve that.
5 and I don 't want to spend a lot of time addressing that.
6 Mr. Dignein suggests that the transcript of the 7 telephone conference on May 10th can be read to suggest that 8 the Board had not made the prejudgment that we are claiming the ,
9 Board did make. He referred to Page 11146 of the transcript.
10 of which the last sentence says, "We leave unresolved further 11 doubts about that matter," that matter being Mr. Thomas 's ,
12 candor and forthrightness, "until we have ben able to hear from 13 Dr. Bores and Mr. Lazarus on the subj ect. "
14 I would just emphasize the word "further". I think ,
15 the Board was clearly saying at that point that on the basis of 16 what it had at that time, it was harboring those doubts.
17 JUDGE SMITH: That 's right. 7 16 MR. BACKUS: And I would say that it war further on f 19 in the transcript, at Page 11204, where the Board made the [
i 20 reference to Mr. Thomas needing to consider his right to j 21 counsel in light of NRC statutes and regulations concerning ( ,
22 civil penalties for those that provide material false 23 information.
24 The only other thing I 'd say is that Mr. Turk. I t
, 25 think, has not addressed the motion we made. He has cast i
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, _ _ _ ~. . . _ __ .- _ ,_- -
11813 1 accusations at our motives. And I will only say, Mr. Turk. I 2 don 't appreciate that. We made this motion in good faith. We 3 verified that to the Board. I 'm sorry you don 't care to accept 4 that.
5 JUDGE SMITH: All right. We will take it under 6 advisement. We will probably rule toc.ay.
7 You were going to -- Mr. O lre skey , you were going to 8 come up with a -- you were going to look at your cross-9 examination to see if you could carve out a most narrow 10 possible area for sequestration. You don 't have to give it to 11 us now because it hasn 't come up yet, but I hope that you have 12 done that.
13 MR. OLESKEY: I have that in mind.
14 JUDGE SMITH: Okay.
15 (Boerd confer.)
16 JUDGE SMITH: We 're late enough in the morning that 17 since your motion encompasses even listening to these 38 witnesses, we 'll j ust take an early morning break and consider [
19 the arguments and come back with our ruling.
20 MR. FLYNN: Your Honor.
l 21 JUDGE SMITH: Mr. Flynn.
22 MR. DIGNAN: Your Honor, could I clean up one other 23 matter. Your Honor? ,
20 I had indicated to the Board yesterday that I, in the I
25 event sequestration was ordered with respect to the NRC l
Heritage Reporting Corporation l (202) 628-4888 j
11814 .
i witnesses, that I would be bringing a action for a ;
I 2 sequestration order on Mr. Thomas.
3 And I j ust wanted to advise the Board that on what I 4 like to think of as mature reflection -- well. I did have a 5 pretty good argument. I think -- I will not press the motion.
6 The reason is very simple.
7 JUDGE SMITH: You 're going to waste it ?
8 (Laughter.) i 9 MR. DIGNAN: Yes, even though I got it put together.
10 It was kind of a fun one. You know, you don't usually in a NRC 11 case get to talk about rights of confrontation and that nort of 12 thing. But my point is simply this.
13 I will not be pressing it. It is my view that as a [
() 14 practical matter, as a practical matter, even if I could 15 persuade the Board. I don't know how in this setting that that 16 relief could be policed.
17 It 's my understanding, f rom what we 've been told by i t
18 the Attorney General, that there will be likely resistance to 1 19 the subpoena. It 's going to go for time. And to ask you to
] l l 20 give me that relief, even as'~' ming I could persuade you to do r a
21 so. I don't think as a practical matter in a free nation with a 22 free press it could really be policed. A nd. therefore, it will 23 not be made.
24 MR. TURK: I have one other preliminary matter. Your i
25 Honor. ;
() Heritage Reporting Corporation (202) 628-4888 i
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11816 1 Mr. Oleskey has provided us with a copy of notes of a 2 meeting which apparently Mass. AG had with Mr. Thomas. It 3 appears to be on Novenber 4th. And there are several 4 instances, in fact, a complete page in which the notes were S taken in shorthand by Mr. Oleskey 's para'tegal . And I 'd like to 6 request that we have the translation of the shorthand provided 7 to us by Mr. Oleskey.
8 MR. OLESKEY: I 'm not going to translate notes that 9 never should have been produced and to which production I 10 obj ected in the first place.
11 He 's got them. He can get his own shorthand 12 translator.
13 MR. TURK : I should note --
14 MR. OLESKEY: And I 'm not going to interpret them.
15 which is another request he 's made of my staf f, but not to me.
16 MR. TURK: I should note also that one of the 17 attorneys with the Mass. AG 's of fice explained to me that even 18 the person who took the notes, the paralegal employed with the 19 Mass. AG 's of fice, had some trouble translating them for the 20 Mass. AG.
21 I think shorthand, in general, is not simply a matter 22 of mechanical reproduction. There are personal idiosyncrasies 23 involved.
24 JUDGE SMITH: Well, yes. Shorthand becomes unique to 25 the person. I would say that you refused to do it. I don 't O
Heritage Reporting Corporation (202) 628-4888
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(/ 1 know if we want to enforce it or not in face of your refusal, 2 but you have not provided the information.
3 MR. OLESKEY: I provided it in the form in which it 4 was taken.
5 JUDGE SMITH: I recognize that you obj ected to it in 6 the first instance, but you didn 't prevail on that.
7 MR. OLESKEY: It 's never been translated by me or Ms.
8 Keough or anybody, a nd I - -
9 JUDGE SMITH: Oh, it hasn 't.
10 MR. OLESKEY: No.
11 JUDGE SMITH: It has not.
12 MR. OLESKEY: It has not. I didn't propose to do it 13 now or ever, in fact.
[}
14 JUDGE SMITH: That might have some bearing on it.
15 MR. TURK: Your Honor, there 's a dif f erence of 16 opinion here. Mr. Oleskey may not have written down a 17 translation of it, but he was at the same meeting. He 's aware 18 of what the meeting contents were, so he may not need a 19 translation.
20 I was not invited to that meeting, and I do need a 21 translation.
22 MR. OLESKEY: I thi nk m-J position is pretty 23 reasonable, and would ask the Board to understand that.
24 JUDGE SMITH: Let 's take our break. I don 't want 25 to -- enough 's enough. You know. '.'. t 's j ust as a practical I
(
Heritage Reporting Corporation (202) 628-4088 1
11817 1 matter. We 're not resolving -- because it is not resolvable I
2 with a fine, bright line just exactly where your right to i 3 inquire stops. It just isn 't practicable to go into this.
4 It 's not worth it. You 're going to have plenty of information 5 as to what Mr. Thomas told the Massachusetts Attorney General.
6 So it 's just a benefit, a cost-benefit consideration.
7 Twenty minutes.
E48 8 (Whereupon, a recess was taken.)
T49 9 JUDGE SMITH: In announcing our decision not to .
10 recuse ourselves f rom consideration of the issue involving the 11 evolution of FEMA 's change of position, we want to review very 12 briefly the history of why we 're here discussing this matter.
I 13 First, I think everybody recognizes that we don't ;
14 know Mr. Thomas other than seeing him here on the witness stand -
15 actually, and walking around the hearing room. We certainly i l
16 have no personal bias against him.
17 Further, we point out that this is in the context of j 18 prej udgment of a witness, and we 're aware this is not an 19 allegation of bias against a party. But we have no personal 20 bias against Mr. Thomas, none whatever; j ust no reason to have 21 any, and we don 't in fact.
22 We watched him, listened to him for t'.o days on the !
23 witness stand, and we formed judgments, both as humans do and 24 particularly as we try to do in the disaberge of our 25 responsibilities as judicial of ficers.
I
()
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, , . - - - - , . , , . . . _-.--,-y_.- . - , , , - - - - , - . _ - - , -.
..~,,_-_--,_,,,._____.--.._,-,,-% ._.-7,
11818 i At the end of two days we, on our own motion, 2 announced that we would have to return to Mr. Thomas 's 3 . t es t imony and read it , and we did read it carefully. And as is 4 pointed out. we stated we find no reason -- looking at the 5 entire exchange, we find no reason whatever to question Mr.
6 Thomas 's integrity.
7 We went on to say, however -- and thank you, Mr.
8 Backus, for providing this quote to me - "We don't want to 9 comment further on the total effect of the testimony because it 10 is still an open matter anc' there will be further examination 11 of Mr. Thomas 's testimony. "
12 As we stated earlier this week, that it is not an 13 unusual phenomenon for boards to have difficulty with
)
14 witnesses ' perceptions, memories, and even candor, and not have 15 it rise to the level of questioning integrity, particularly 16 when integrity is being looked at in the context of was there 17 perj ury.
l 18 At the end of the third day of testimony, the Board 19 continued to develop its own impressions of Mr. Thomas 's candor 20 and forthrightness, and we added a new dimension, and that is.
21 we were concerned about his perception. It was pointed out by 22 Mr. Backus that I recalled the matter as saying that Mr. Thomas 23 saw no difference between his position and that of Dr. Bores 24 and Lazarus when in f act he stated he saw no significant 1
25 difference.
O Heritage Reporting Corporation (202) 628-4888
t
., 11819 k- i You're right, you know; that 's correct. It is, I ,
f 2 believe, not controlling. but we*11 come bnck to that.
3 Thra matter arose the next time sequentially.
4 chronologically, in the context of a request by Intervenors to 5 authorize a very, very large discovery effort based upon what 6 Mr. Thones -- what vas told to us and, in fairness, read to us 7 from his deposition, that Mr. Thomas stated in his deposition, 8 based in turn upon what he learned through several- links in a 9 chain of communication about, for example, the January 19th 10 meeting.
11 We were not willing, as we stated, to authorize such 12 a broad ranging, potentially disruptive discovery effort based 13 upon those grounds, and part of those grounds was our 14 perception of Mr. Thomas 's forthrightness.
15 Then a related but different component arose when the
! 16 Board itself decided that a full and trustworthy record in this 17 case required the attendance of Bores and Lazarus. We read the 18 Bores and Lazarus memorandum. It was not in evidence --
19 correct. We read it. The Bores and Lazarus memorandum however 20 was also referred to by both Mr. Thomas, he alluded to it, and 21 others.
22 But in any event, as Mr. Dignan points out, the Bores 23 and Lazarus memorandum was properly before us. We were not out 24 on an investigation of our own. It was properly before us, and 25 it was a matter that we believed -- as a matter of fact, it was O
Heritage Reporting Corporation (202) 628-4888
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i a pending motion. it was a still pending motion. It 's a matter .
2 which we believed had to be aired in the public record. I t
3 We read it. As stated. we recognized that it was not 4 in evidence, and we could not make a judgment as to its !
S accuracy. And to this very moment. we have not. !
6 Nevertheless, it is evidence that we looked down the 7 road to see coming, and we believed that if it should turn out 8 that that evidence was competent, and material and convincing.
9 that it would raise further questions about Mr. Thomas, and r
10 the.t Mr. Thomas -- and you 'll just simply have to take our word ,
li for it, there 's nothing much you can do about it -- is that our 12 concern at that time shifted to fairness to Mr. Thomas. It was {
It was informed concern as to what it might
{} 13 14 not an accusation.
mean to him if evidence is adduced contradicting his testinony, i
1S At the beginning of this week when the Intervenors (
16 raised the issue again saying, but you have misstated the 17 transcript; you have misstated what Mr. Thomas testified to; 18 and you have not only prejudged. but you have prej udged on a l 19 false basis what Mr. Thonas testified to, and we will 20 demonstrate that.
21 And our response at that time was do it. You will be 22 doing a great service to the Board if you would denonstrate to 23 us that we are incorrect. And in fact as we sit here right 24 now, we 're not devoid of human f eeling here. We hope that that 2S may be the result.
(
Heritage Reporting Corporation (202) 628-4888
11021 1 But this goes to the final point as to the legal 2 merits of the motion appealing to our discretion, and that is.
3 when we err on the record on judicially observed matters, the 4 solution, the standard recognized traditional solution is not 5 to recuse, but to reverse on appeal.
6 You 've pointed out to us, at least arguable 7 dif ferences between our perceptions and what you believe the 8 record to be. And if it turns out af ter the entire record is 9 developed that we are wrong, you will have a full record upon 10 which to mount your appeal, but let 's go f arther than that.
11 As I indicated at the very beginn' ng, that we could 12 have said nothing. We could have just allowed the matter to 13 pass, gone back to our offices, reflected on our views about 14 Mr. Thones 's credibility, correctly as the law anticipates, 15 constructed a decision with those views in mind instead of 16 allowing you to seek your relief on appeal if in fact you ever 17 can. I mean as a practical matter, we don 't wait that long. We 18 bring it right back to you, this is what our worries are, this 19 is what our concerns are, here is your chancs to address them.
20 I honestly don't know how we could treat you any nore 21 fairer by telling you we had formed those judgments. We can't 22 help it. They exist in our minds. They are there. They may 23 be wrong, but we 're telling you those j udgments about his 24 candor and forthrightness did exist. The three of us had them.
25 and we felt it, perhaps not our outy, but at least fairness to O
Heritage Reporting Corporation (202) 628-4888
t i
t 11822 1 come out early and report it and give the parties an 2 opportunity to address it.
3 We 're not under any obligation to do that. And you 4 will find it, i ndeed, as you pointed out, a rare -- you are not 5 prej udiced by it. To the contrary. 180 degrees the opposite. l i
6 You were informed that as judicial of ficers we formed, ss we 're i 7 required to do. impressions, and we revealed them early so that ,.
4 8 in the event that we 're wrong that error can be corrected 9 timely.
10 Then there is one final aspect. This is not ,
11 controlling but it 's an observation. We do not see a practical l 12 solution to it, to granting your motion. We could appoint a 13 special master under the rules, but then it doesn't help
{-} ,
14 because the Atomic Safety and Licensing Board appointed under 15 the Atomic Energy Act has the unrelieved responsibility of 16 making the decision upon the evidentiary record. Even though a i 17 special master may be assigned the responsibility of developing 18 a part of the record, we have to still make the final 19 determination at to is the evidence reliable, probative, and ,
20 substantive. And we would have to review de novo a special ,
21 master 's report to us if we were to go that route.
22 As to another Licensing Board, well, we have no 23 authority to appoint another Licensing Board. That 's more than i
i 24 just a quibble, because we could recommend it to the chairman 1
25 of the panel and he may or may not accept it. But even that
- CE) l Heritage Reporting Corporation
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4
I 11023 l
1 would not give you a clean cut issue between two boards. We
[
2 think that the margins vould be feathered, would be blurred.
3 I suppose there would be some possibility that the 4 issue of the FEMA rebuttable presumption could be carved out. j i
S but not really because the rebuttable presumption as we 've j 6 discussed before, and has been pointed out to us by learned }
7 counsel, is merely a framework for the assessing of evidence, j i
8 and how would we have somebody else 's determination as to the 9 rebuttable presumption and then blend it in with our 10 determination is that presumption rebutted. We just don 't know ;
11 how that would work. ,
[
12 So as a practical matter, even if we were so l 13 inclined, we j ust don 't know how we could carve it out. I I l
(]) 14 think that the motion would have to be to recuse the Board p 15 before it would make sense, and there is no basis to do that. ;
i 16 All right, that 's our ruling. ;
1 17 MR. BACKUS: Can I j ust make a very brief response?
Q 18 JUDGE SMITH: I would prefer you not to. l 19 MR. BACKUS: Well. I just wanted to know --
! 20 JUDGE SMITH: I j ust don 't want to -- you had an j u
21 opportunity to make your arguments. .
3 22 MR. BACKUS: I'm not going to make any further l
, L 23 argument. I just wanted to observe. [
l:
24 I've heard the Chairman say that at some point there j i
25 became a concern about fairness to Mr. Thomas and airing these Heritage Reporting Corporation (202) 628-4088 e i
t t
Y
i l
11824
(~) I just think it 's unfortunate that the effect
\~/ 1 concerns early.
2 is that Mr. Thomas, who was testifying voluntarily, is now 3 being subpoenaed, and if he appears at all will only be under 4 subpoena, and the indication is he may move to quash the 5 subpoena.
6 JUDGE SMITH: Do you wish to enforce your subpoena?
7 MR. BACKUS: Yes, certainly we do. But the effect of 8 all of this has been to take a witness who was appearing 9 voluntarily, and of course we disagree with the Board 's 10 characterization of the testimony.
11 JUDGE SMITH: Well, look, Mr. Backus, you are raising 12 an argument that you can 't win, because when I assert to you
/~x 13 that what exists in my mind and in my colleagues ' mind on the O,
14 Board that we are driven by fairness to Mr. Thomas by telling 15 him that, and inviting him to the hearing, there 's nothing you 16 can do about that. You 're not going to convince us that we 're 17 wrong in what we think. You 're not going to convince us that 18 we are lying to you, Mr. Backus.
19 MR. B/CKUS: I 'm not going to comment on the things 20 you have said about your motives at all.
21 JUDGE SMITH: All right, that 's fine.
22 Now, let 's talk about the consequences, and this is 23 coming from the very person who engineered a letter to the 24 Board to discipline Mr. Dignan in the first instance. I lay it 25 all back to you if Mr. Thomas is inj ured in this, and we will O
Heritage Reporting Corporation (202) 628-48,88
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11825 O\
\/ 2 do our very best to give Mr. Thomas his day in court here.
2 MR. BACKUS: All right.
3 JUDGE SMITH: Proceed.
4 MR. TURK: Your Honor, the Staff is going to ask Dr.
5 Bores and Mr. Lazarus to retake the stand and continue the 6 direct examination of yesterday.
E49 7 (Continued on next page.)
8 9
10 11 12 r's 13 U
14 15 16 17 18 19 20 21 22 23 24 25 O
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BORES, LAZARUS - DIRECT 11826
/50 1 Whereupon, 2 ROBERT BORES 3 WILLIAM LAZARUS
! 4 having been previously duly sworn, resumed the witness stand 5 herein, and was examined and further testified as follows:
6 DIRECT EXAMINATION 7 BY MR. TURK:
8 Q Gentlemen, I 'd like to continue for a moment with 9 respect to the two exhibits that were introduced yesterday.
10 Dr. Bores, I note on Staff Exhibit No. 2, which is 11 your memo to me of October 15, 1987, that there 's a reference 12 in the cover memo to an enclosure 3.
13 MR. TURK: i I 'd like to note to the Board that 14 that enclosure is not a cached to the Staff Exhibit, it was 15 w'ithheld under production of discovery because we were certain 16 that it was the final testimony submitted to the Markey 17 subcommittee; so it is not part of this enclosure and has not 18 been produced.
19 JUDGE SMITH: It has never been produced until this 20 moment?
21 MR. TURK: It has not been produced and we don 't 22 intend to produce it.
23 JUDGE SMITH: Could you tell me again what has 24 not - you do not intend to produce?
25 MR. TURK: All riEht. There had been an enclosure 3 Heritage Reporting Corporation (202) 628-4888
- _ _ _ _ _ _ _ _ _ _ _ _ _ - - - __ i
BORES, LAZARUS - DIRECT 11827 f)#
%- 1 to Dr. Bores memo.
2 JUDGE SMITH: Right.
3 MR. TURK: And that was a set of draft testimony for 4 production to the --
5 JUDGE SMITH: Oh.
6 MR. TURK: -- to Congressman Markey 's subcommittee.
7 JUDGE SMITH: I got it. All right.
P MR. TURK: That 's excluded f rom this document that we 9 all have in front of us and had not been produced in discovery 10 and is not being produced today.
11 JUDGE SMITH: All right.
12 BY MR. TURK:
13 Q And, Dr. Bores, let me just ask you, is it correct 14 that there was such an enclosure 3 to your memo to me?
15 A (Bores) That is correct.
16 Q And it is deleted from this exhibit?
17 A (Bores) It is.
18 Q Now, also, Dr. Bores, in your cover memo to me on 19 Staff Exhibit No. 2 there 's a sentence that indicates, quote:
20 "Mr. John Schumacher also attended those meetings and may be 21 able to provide his recollections on them some time later."
22 close quote.
23 And I note, ask you to confirm that there is no part 24 of this document, Staff Exhibit No. 2, that consists of Mr.
25 Schunacher 's memo; is that correct?
O V
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BORES, LAZARUS - DIRECT 11828 7-k-) 1 A (Bores) That is correct.
2 Q Did you ever have occasion to see a memorandum 3 prepared by Mr. Schumacher with respect to the July RAC 4 meeting?
5 A (Bores) I have seen 4 t.
6 Q And I have placed in front of you a one page 7 memorandum addressed to Sherwin Turk f rom John A. Schumacher, 8 dated October 15, 1987. Do you have that document in front of 9 you?
10 A (Bores) I do.
11 Q And can you identify this for us?
12 A (Bores) This is the memoranda from John Schumacher rs 13 to Sherwin Turk, dated --
U 14 Have you seen --
Q 15 A (Bores) -- October 15, 1987.
16 Q Have you seen this document before?
17 A (Bores? Yes, I have.
18 MR. TURK: Your Honor, I recognize that Dr. Bores is l
- 19 not the author of this document. I am going to offer it into l
20 evidence at this time as Staff Exhibit No. 4.
21 MR. FLYNN: I obj ect as an obvious hearsay problem.
22 Mr. Schumacher is not available, in fact, he 's not even any 23 longer an employee of NRC. And I take it it 's being of fered 24 for the truth of the contents.
25 MR. OLESKEY: I have the same obj ection, Your Honor.
! )
Heritage Reporting Corporation (202) 628-4888
s BORES, LAZARUS - DIRECT 11829 I)
\- 1 I do think that it may be competent for impeachment later and 2 will probably offer it myself for that limited purpose. But as 3 a general unrestricted offer now as it appears it is made, I 4 obj ect for the grounds stated by Mr. Flynn.
5 MR. TURK: Let me do a little exploration before I 6 make the offer then, Your Honor.
7 BY MR. TURK:
8 Q Could you first describe for us your understanding of 9 the genesis of this document, either one of the witnesses?
10 A (Bores) Okay. Which document are you talking about?
11 Q The Schumacher memo?
12 A (Bores) Okay. The genesis of the document was
{} 13 14 initiated by a phone call from Mr. Turk to me requesting that I and the other NRC attendees at the July 30th RAC meeting detail 15 our separate recollections of that meeting in a memo back to 16 Mr. Turk.
17 I relayed this message to Mr. Lazarus, and Mr.
18 Lazarus in turn relayed the message to Mr. Schumacher who 19 worked for him.
20 Q And at that time was Mr. Schumacher still employed by 21 the NRC?
22 A (Lazarus) I don 't believe Mr. Schumacher was 23 employed at the NRC. It was around the first of October 1987 24 that he had resigned and gone into his own business. So, at 25 the time that he drafted this he was no longer an employee of Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11830 t i the NRC.
2 q Mr. Lazarus, did he draft it at your request?
3 A CLazarus) Yes, he did.
4 Q And did he then provide you with a copy of it?
5 A (Lazarus) Yes, he did.
6 Q And this is the document that he provided to you?
7 A (Lazarus) Yes, it is.
8 MR. TURK: Your Honor. I am going to offer inis into 9 evidence. I think it has been properly identified. Granted 10 the author is not here to be cross-examined on it. It does 11 have the earmarks of an official government document in the 12 sense that Mr. Schumacher identifies himself by name and by
' 13 position. He prepared it at the request of his former L ,J 14 supervisor. It has been recognized to be the document which 15 Mr. Schumacher provided, and I think it can be admitted into 16 evidence as an authentic document and under an exception to the 17 hearsay rule.
18 MR. OLESKEY: Mr. Turk might have had a vestigial 19 argument if he hadn 't made the rest of his examination. We 've 20 now discovered that it isn 't a business record of the NRC.
21 It 's f acially inaccurate because it states it 's from a person 22 who identifies himself as a Senior Emergency Preparedness 23 Specialist for Region 1, who by the testimony just given, no 24 longer had that position, although it was apparently thought 25 proper to convey that he did have --
'u)
Heritage Reporting Norporation (202) 628-4888
l
! BORES, LAZARUS - DIRECT 11831
'/ 1 JUDGE SMITH: Wait a minute, if you want to get into 2 the discussion of the accuracy, the merits of it, then it 3 better go in as evidence.
4 MR. OLESKEY: I 'm j ust commenting that the memo on 5 its face describes to me as being a current government 6 official, which this preliminary testimony has just disclosed, 7 he no longer was.
8 It 's not a business record. It certain1;' is hearsay.
9 And I 'll say again that I 'm going to use it for impeachment, 10 but I'm going to obj ect again and even on stronger grounds in 11 view of this further examination that it not go in on of fer in 12 chief.
(~T 13 MR. FLYNN: I have an additional argument to make. I l
\m/
14 don 't challenge the authenticity of it, I submit that the 15 authentication is not the issue. The issue is whether it is --
16 whether it qualifies under the business records exception to l 17 the hearsay rule; and I submit that it doesn 't.
l l 18 There hasn 't been any showing that it is part of the 19 regular activities of the Nuclear Regulatory Commission to 20 document disagreements within RAC discussions.
21 JUDGE SMITH: This document fits within the 22 traditional exception to the business rule in that it is a 23 document that is prepared in anticipation of the litigation 24 that we 're having right now. And for that reason it cannot 25 come in under the ordinary course of business rule.
O Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11832 N/ 1 MR. TURK: Your Honor, I had offered --
2 JUDGE SMITH: So, it 's rej ected.
3 MR. TURK: All right. I don't recall if I had 4 identified it with a number.
5 JUDGE SMITH: 4.
6 MR. OLESKEY: So it 's going to be Staf f 4 for 7 identification, Judge?
8 JUDGE SMITH: Yes.
9 CThe document referred to 10 was marked for 11 identification as NRC 12 Staff Exhibit 4, and was 13 rej ected. )
())
BY MR. TURK:
14 15 Q Dr. Bores, I'd like to ask you to begin to tell us, 16 based upon your recollection, of the earlier -- earliest 17 considerations you recall of the Seabrook Beach issues as that 18 matter was considered by the RAC or the RAC Chairman, Mr.
l l
l 19 Thomas?
20 A (Bores) Well, I guess I might refer to the first 21 enclosure to my memo. And in terms cf my own consideration the 22 beaches were certainly evident to me well before I got into the 23 emergency preparedness aspect for Seabrook because I was 24 involved in the environmental inspections of the Seabrook 25 consideration. So they certainly were evident to me.
O Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11833
/";
1 Certainly, the initial plans submitted by the State 2 of New Hampshire even for technical review dealt with the beach 3 issues. And I, as a RAC member, certainly Mr. Thomas as the 4 RAC Chairman, knew that, you know, we needed to consider the 5 beach issue and perhaps the, you know, the particular care to 6 it. So that was always the general sense.
7 The RAC in general, also, had the, beach issue in mind 8 as we went through the various plans from the earliest times.
9 Q When you say, the earliest times, can you give us the 10 general time frame?
11 A (Bores) I believe I mentioned yesterday that I 12 believe the first submittal by the State of New Hampshire for
(") 13 technical review was about the 1982 time frame.
V 14 MR. OLESKEY: 1982?
15 THE WITNESS: (Bores) Approximately.
16 BY MR. TURK:
17 Q And in the course of those earlier conversations, 18 starting from approximately 1982, do you recall any expressions 19 by Mr. Thomas as to the nature of his concerns for the beach 20 population?
21 MR. OLESKEY: Could I ask. Judge, for a clarification 22 and continuity, that there be some precision with respect to a 23 date, a place, a time, a context, as we go along, since we 24 don't have prefiled testimony and we 're dealing with a 25 considerable period of time.
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BORES, LAZARUS - DIRECT 11834 p/
\- 1 MR. TURK: Certainly to the extent that the witness 2 is able to remember specific instances. I 've asked him to 3 recall those in particular. I 'd also like to have his general 4 sense of the development of this issue.
5 JUDGE SMITH: Do you understand?
6 THE WITNESS: (Bores) I understand that. I guess --
7 well, let me just ask Mr. Turk to restart or restate what you 8 asked me.
9 MR. TURK: All right.
10 BY MR. TURK:
11 Q In the discussions prior to the writing of Attachment 12 1 to your meno, that is Mr. Thomas ' December 31, 1985 memo, in 13 the days before that and in the years before that, do you
{JT recall any expressions of concern by Mr. Thones as to the 14 15 nature -- as to the Seabrook Beach populations, and what -- and 16 if so, what concerns do you recall being expressed?
17 A (Bores) I do recall such concerns. The concerns, 18 basically, I think are many of those that were expressed. I l
19 think, last several weeks here, that there was in the j 20 summertime potentially a large population, the evacuation time 21 estimates, even the first studies indicated that there was a l 22 long time to evecuate beaches, even though those numbers have l
23 been modified over the years. You know, in general, hasn 't l
l 24 changed that situation; in some instances may have aggravated 25 the situation.
O Heritage. Reporting Corporation (202) 628-4888 l
BORES, LAZARUS - DIRECT 11835
/~T
- 1 So, if you had a fast release that people may not be 2 able to get off the beaches.
3 So I think part of what Mr. Thomas was looking at 4 were not only means of getting people off the beaches, but, you 5 know, could we shy anything about what is the likelihood of an 6 accident of some scrt that could cause health hazards, let 's 7 say, for the population on the beach.
8 Q Now, when you ray that he had concerns, whether we 9 could say anything about the health hazards, et cetera, could 10 you elaborate on that, please? Who was he asking or did he 11 indicate --
12 A (Bores) He had exprersed it to me. He had expressed 13 it to the RAC in general. I think he was looking for help here
}
14 to alley -- something relative to reducing the risk in 15 reviewing these plans. It 's j ust something we can say about 16 probabilities of accidents, type of the plant. Can we say that 17 we will not nave a release, you know, for two hours, because of 18 plant systems, containment or whatever. In addition to looking 19 at the plans, and in addition to looking at special precautions 20 for the beach.
21 We had -- I had, and I think other NRC staf f members 22 who had been involved or in dealing with the RAC or in fact 23 with meeting with Mr, Thomas and FEMA on other matters hsJ.
24 from time to time, been asked to comment on this, and in fcot, 25 discussed in some detail some of the accident sequences as G('s Heritage Reporting Corporation (202) 628-4888
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BORES, LAZARUS - DIRECT 11836
\- 1 detailed in WASH-1400 to try and provide some perspective on, 2 at least, the literature relative to some of these accident 3 sequences.
4 Q And I t ake it the first documentary request that was 5 made by Mr. Thomas along these lines is represented in his meno 6 of December 31, 1985?
7 A (Bores) That is correct.
8 Q And also, this memorandum which is Attachment 1 to 9 your memo, did you receive a copy of that f rom Mr. Thomas?
10 A (Bores) Yes, I did. Let me see, I 'm not sure if it 11 was mailed directly to me at that time. It was sent out to the 12 Regionel Assistance Committee. I had gotten several copies. I
( 13 know. I may have gotten it internally because it was mailed to (3 /
someone else who was currently a member of the RAC. I may have 14 15 gotten copies directly; I know I got at least one additional 16 copy because I did not have one at a particular RAC meeting or 17 a meeting subsequent to that, and I was furnished another one.
18 Q On December 31st, 1985 or a few days after that, who 19 was the NRC RAC member for Seabrook?
20 A (Bores) Bill?
21 A CLazarus) December 31st, 1985 I don 't recall. It 22 was either John Schumacher or myself at that time. No, I 'm 23 sorry, John Schumacher wasn 't even in the section. At the time 24 it was myself, I 'm sorry.
25 Q All right. Now, did the NRC ever provide a response O
Heritage Reporting Corporetion (202) 628-4888
11837 c~- 1 to the December 31st, 1985 memo?
' )
2 A (Bores) Yes, they did.
3 Q And when was that?
~4 A (Bores) That -- the response was provided in a 5 memoranda from me to Mr. Thomas, and that was dated February --
6 hold on a second. February 18th, 1987.
7 Q And at that time were you the NRC RAC member for 8 Seabrook?
9 A (Bores) Yes, I was.
10 (Pause.)
et/50 11 (Continued or. iext page.)
12 13 O(,/ 14 15 16 17 18 19 20 21 22 23 24 25 t'h
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BORES, LAZARUS - DIRECT 11838
/51 1 BY MR. TURK:
2 Q Dr. Bores, I believe I 've placed in f ront of you a 3 copy of a letter, could you please identify that?
4 A (Bores) The letter that you placed in front of me is 5 a letter from me to Mr. Thomas, dated February 18th, 1987, and 6 it refers to Mr. Thomas ' memo of December 31st. 1985 relative 7 to the beach population in the Seabrook area.
8 Q And is this in fact the response which you provided 9 to Mr. Thomas ' memo of December 31st, 1985?
10 A (Bores) It is.
11 MR. TURK: Your Honor, at this time I 'd like to of fer 12 -- first identify and then offer Staff Exhibit No. 5.
( '; (The document referred to was
^
13 14 marked for identification as 15 NRC Staff Exhibit 5. )
16 MS. WEISS: I ask if this is on the same basis as the 17 other attachments to the memo, that is, not for the truth of 18 the matters, but simply for purposes of establishing historical 19 records.
20 MR. TURK: Well, we certainly got -- I 'm going to 21 make my offer for all purposes. If you seek to limit it, I 'll 22 hear argument on it.
23 MS. WEISS: Well, I 'm going to obj ect to it. I think 24 it should be allowed in on the same basis that the other 25 attachments are. In fact, it is one of the enclosures to the n
G Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11839
\I 1 memo. It is the -- so it has already been allowed in on that 2 limited basis. You 're j ust providing the remainder of the 3 pages that aren 't provided in the copies you gave us yesterday.
4 MR. TURK: Your Honor, the document that I 've 5 identified as Staff Exhibit No. 5 is referred to in Dr. Bores' 6 memo to me of October 15th; and two pages of this Staff Exhibit 7 No. 5 appears in attachment to Staff Exhibit No. 2 which is the 8 Bores October 15th memo. The other two pages were admitted for 9 historical purposes.
10 I am offering this --
11 JUDGE SMITH: Historical purposes for that exhibit?
12 MR. TURK: Yes.
Okay.
(} 13 JUDGE SMITH:
MR. DIGNAN:
And --
May I point out that the document, as I 14 15 understand it, was offered by Dr. Bores and has been identified 16 as such.
17 JUDGE SMITH: I don 't understand --
18 MR. DIGNAN: Well, I don 't understand --
19 JUDGE SMITH: -- didn 't he write this?
20 MR. DIGNAN: -- he j ust putting this in for the truth 21 of the matter as contained. The witness is there, he 22 identified that he wrote it.
23 MS. WEISS: Well --
24 JUDGE SMITH: This is his document and here he is.
25 MS. WEISS: Well, Your Honor, there are a large O
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BORES, LAZARUS - DIRECT 11840 fm
( ,) 1 number of assertions made in this document with regard to the 2 nature of the Seabrook containment, and the probability of 3 accidents, and the consequences of accidents. You know, we 're 4 not going to accept those for the truth of them.
5 JUDGE SMITH: Well, you 're arguing relevance.
6 Overruled. This witness is here, he 's of fering a document that 7 he wrote.
8 MR. TURK: Your Honor, I will note one thing, in 9 response to Ms. Weiss, I don 't -- as I indicated in a telephone 10 conference call prior to our coming to hearing this week, I do 11 not believe it 's appropriate for us to begin to explore the 12 bases for statements made by Dr. Bores as to the reliability of x 13 containment.
14 JUDGE SMITH: So you 're not of fering it, then, for 15 general purposes.
16 MS. WEISS: You can 't have it both ways.
17 MR. TURK : I 'll take an agreement of counsel that we 18 will not be exploring --
19 MS. WEISS: No, sir.
20 MR. TURK: -- substantive bases. If you --
21 JUDGE SMITH: Well, I can tell you, we are making an 22 extraordinary intercession in this case to develop the 23 evolution of FEMA 's position, and not to litigate extraneous 24 matters, and we won 't have it .
25 MS. WEISS: Well, then it is --
O Heritage Reporting Corporation (202) 628-4888
r BORES, LAZARUS - DIRECT 11841 c
1 MR. TURK: Your Honor. I 'll establish --
2 MR. DIGNAN: Your Honor, do I understand the offer to 3 simply be for the purposes of demonstrating what information 4 was conveyed by this witness to Mr. Thomas, isn 't that what the 5 thrust of the offer is.
6 MR. TURK : Yes.
7 MR. DIGNAN: If taken for that purpose, it seems to 8 me, satisfies everybody 's problems.
9 JUDGE SMITH: See, the argument truly is one of 10 relevance, and not of --
11 MR. DIGNAN: That 's correct.
12 JUDGE SMITH: -- of anything else, simply relevance.
13 MR. TURK: Your Honor, I do concur, the purpose of
{;
14 this offer is to indicate what the NRC staff response was. I 15 will not offer it for the truth of the contents other than to 16 prove that these things were in fact the statements made in the 17 letter from NRC to FEMA.
18 JUDGE SMITH: All right.
19 MS. WEISS: On that basis I would have no obj ection.
20 JUDGE SMITH: Staff Exhibit 5 is received.
21 (The document referred to having 22 been previously marked for 23 identification as NRC Staff 24 Exhibit 5, was received in 25 evidence.)
Heritage Reporting Corporation i
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BORES, LAZARUS - DIRECT 11842
\' 1 BY MR. TURK:
2 Q Now, Dr. Bores, to whom did you show this letter 3 before you issued it to Mr. Thomas?
4 MR. OLESKEY: Just cne clarification. I have attached 5 to -- physically attached to what we just marked as 5, a number 6 of other documents. Maybe I shouldn 't, but I have a letter --
7 the Perry-Christenbury letter.
8 JUDGE SMITH: The entire letter --
9 MR. OLESKEY: And the Dignan memo, is that all to be 10 part of this offer?
11 MR. DIGNAN: That 's got to be for the truth of the 12 matter.
13 (Laughter)
{j 14 MR. OLESKEY: Time for you to sign then.
15 MR. FLYNN: Have you just become a witness.
16 MR. TURK: I thank Mr. Oleskey for pointing that out.
17 In case any of the parties or Board ever seeks to find those 18 documents, they are attached here, and the offer is for the 19 same purpose as to those documents. This is -- as I understand 20 it, this is the paper, the cover letter with the enclosure and 21 the two attachments which was provided by Dr. Bores to Mr.
22 Thomas.
23 MR. OLESKEY: The cover memo doesn't say that, so 24 would you establish that and clarify that, please.
20 0
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-.+% 4 - , . - - - - , _. -
n BORES, LAZARUS - DIRECT 11843
,c3 1 BY MR. TURK:
2 Q Dr. Bores, at page 10 of the first enclosure to this 3 document. I 'd ask you to turn to the bottom of that page, and 4 could you tell us -- read what appears in the last two lines of 5 that page?
6 A (Bores) The last two lines read: "Attachment letter 7 f rom Christenbury to Perry, dated June 18th, 1986."
8 Q And then immediately following that page there is a 9 letter addressed to Spence Perry, Acting General Counsel of 10 FEMA, dated June 18, 1986, signed by Edward S. Christenbury, 11 that 's a nine page letter; do you see that?
12 A (Bores) Yes, I do.
/^N 13 Q And is that in fact the attachment which was provided d
14 with your letter to Mr. Thomas?
15 A (Bores) It is.
16 Q And then immediately following the last page of that 17 docunent, the Christenbury letter, there 's a five page 18 document, no author shown, labeled "Memorandum," is it your 19 understanding that this was also a part of the document you 20 transmitted to Mr. Thomas?
21 A (Bores) It was.
22 MR. TURK: All right.
23 MR. OLESKEY: Thank you, Mr. Turk.
24 JUDGE SMITH: Well, this was the unsigned memorandum 25 attached to the Christenbury letter?
Heritage Reporting Corporation (202) 628-4888
11844
,r y 1 THE WITNESS: CBores) That is correct.
V 2 JUDGE SMITH: Which in turn was attached to your 3 memo.
4 BY.MR. TURK:
5 Q Now, Dr. Bores, could you tell us, to whom you showed 6 this letter before you issued it to Mr. Thomas?
7 A CBores) Yes. The memo -- letter -- the letter 8 response to Mr. Thomas and the enclosure was developed in my 9 capacity as a RAC member. And in the pest the RAC input from 10 each of the individual RAC members had been considered to be 11 withholdable from the -- under the Freedom of Information Act 12 as being predecisional to RAC. In other words, this was held 13 up, I believe, at Shoreham. As a matter of fact, I believe
() 14 there was an appeal on it.
15 So, I was trying to be quite careful as to who had 16 gotten copies of this. This was my input to RAC. It was 17 developed laying out a bases; it was not developed as a staff 18 paper or a FEMA paper or a RAC paper per se.
19 So, when I developed the paper, since it was rather 20 l e ng t hy , covered a number of subj ects, I did want tc get some 21 peer review. So I gave a copy, draft copy to Mr. Lazarus, 22 Mr. -- Dr. Bellamy who is Mr. Lazarus ' supervisor. I gave a 23 copy to Tim Martin who is my supervisor along with Dr.
24 Be l l amy 's . I gave a copy to our Regional Counsel. And I gave 25 a copy to Dr. Murley who was our Regional Administrator.
) Heritage Reporting Corporation (202) 628-4888
11845 1 I asked them for 6 heir comments on the paper. I 2 collected all the documents after, you know, with their 3 comments; and from that I generated this document that you see 4 before you, which I did not, again, recirculate. And that way 5 I had-hoped to maintain the integrity of the FOIA relative to 6 RAC.
i.
7 I did receive a request from Mr. Thomas to see a copy 8 of the paper, not for concurrence, but rather to see if they 9 had any, quote, "Maj or heartburn" with it. I provided him a 10 copy of it. He had two minor wording changes that we i 11 discussed. I 'm not sure if I accepted both of them; I accepted 12 at least one of them, it had to do with the wording I had 13 relative to the unwinterized accomnodations on the beach.
() 14 And with those revisions I generated this document, 15 which I then sent out on February 18th, 1987.
16 Q Prior to --
17 MR. DIGNAN: Your Honor, before Mr. Turk proceeds, 18 Ms. Selleck has reminded me, the record may not be clear on the 19 status of Staff 5. If you recall Your Honor at one point 20 admitted it for all purposes, there then seemed to be a general 21 consensus that it should be limited to the purpose of 22 demonstrating what, in fact, was transmitted to Mr. Thomas from 23 Dr. Bores. And I 'm not at all clear that Your Honor, as a 24 matter of record, confirmed that restriction on the admission; 25 and I was wondering if you wanted to do so, so that it 's clear
( Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11846 g
1 in the record.
2 JUDGE SMITH: Yes, certainly -- certainly, it was Mr.
3 Turk 's prerogative to limit the recch of the exhibit, and we 4 endorse it.
5 BY MR. TURK:
6 Q Dr. Bores, was your letter to Mr. Thomas of February 7 '87 shown to anyone in NRC headquarters prior to its issuance?
8 A (Bores) It was not.
9 Q Was it shown to anyone in NRC Office of General 10 Counsel headquarters before its issuance?
11 A (Bores) It was not.
12 Q Was it discussed with anyone in headquarters either
~'
j 13 in technical staff or OGC prior to its issuance?
(U 14 A (Bores) I -- excuse me, I discussed some of the 15 contents and the approach I was taking. However, no part of it 16 was ever transmitted, and this goes to the NRR side of the 17 house rather inan to OGC. So, as far as discussing it with
, 18 legal staff, no.
19 So, content and format, in general, were discussed.
20 Q And did you receive any sort of a concurrence on the 21 paper from NRC headquarters?
l 22 A (Bores) No.
l l 23 JUDGE HARBOUR: Was that no?
24 THE WITNESS: CBores) No.
( 25
()
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BORES, LAZARUS - DIRECT 11847
1 BY MR. TURK:
2 Q And would you characterize this document as 3 representing the views of the NRC staff?
A A (Bores) I would not.
5 Q How would you characterize it?
6 A (Bores) I 'd characterize it as representing my views 7 on the situation to RAC. The document was formulated to 8 provide a working document, if you will, a straw man approach 9 to resolving what appeared to be a situation going nowhere 10 relative to the beach population.
11 So the paper was generated to, essentially, gather 12 all the facts that we had discussed as RAC members, comments that we had, items still needing resolution relative to the fT d
13 14 beach population protection issues, and other facts or other 15 things that might be considered by the RAC at a later time in 16 resolving the issues.
17 Q Did you ever indicate to Mr. Thomas --
18 MR. OLESKEY: Just a moment. Your Honor.
19 Can we have that read back, that was a long answer.
20 To me it 's very important and I want to make -- I know I didn 't 21 get most of it in fact.
22 JUDGE SMITH: Would you read it back, please.
23 MR. OLESKEY: Thank you.
24 (Whereupon, the Court Repor,ter played back the last ot/51 25 answer.)
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Y BORES, LAZARUS - DIRECT 11848 52 1 BY MR. TURK:
2 Q Did you ever have a conversation with Mr. Thomas as 3 to the nature of this document being your views rather than the ,
4 views of the NRC Staff?
5 A (Bores) Yes, I did.
6 Q Can you tell us about that, and also give me an 7 approximate time frame?
8 A (Borea) I discussed this with Mr. Thomas I would 9 estimate in January of 1987. I discussed essentially the 10 approach I planned to take in responding to his memo. I had 11 indicated to him that T was not planning to circulate it for 12 NRC Staff review at this point. Again, bearing in mind the
~n 13 freedom of information type aspects of the RAC input effort.
v 14 I also indicated to him that since it did not have 15 NRC Staff concurrence, that it certainly was NRC Staff 16 prerogative, if they wished, to rej ect that view, and he 17 understood that, I believe.
18 Q Now, Dr. Bores, after your transmission of this 19 document, can you recall the next events which took place with 20 respect to consideration of the beach issue for Seabrook within 21 the RAC?
22 A (Bores) The next step that occurred. I believe, was 23 shortly after the submission of the letter to Mr. Thoraas .
24 There was a letter from Mr. Thomas to the RAC circulating 25 several other responses from other RAC agencies to the RAC, Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11849 k- 1 along with this document asking for comments relative to the 2 responses from the RAC committee members that had been 3 received, and indicating that there would be a RAC meeting. I 4 believe, in the near future.
5 To get exactly where this came about. I believe there 6 is a memoranda in here and the exact wording is there, but this 7 is my general recollection as to what the steps were.
8 Q And did a meeting of the RAC in fact take place?
9 A (Bores) A meeting of the RAC did in fact take place, 10 and that took place on April 15th of 1987.
11 Q And did you attend that meeting, Dr. Bores?
-12 A (Bores) I did attend that meeting, and Mr. Lacarus 13 also attended that meeting. I believe.
}
14 Q Is that your recollection as well, Mr. Lazarus?
15 A (L azarus) Yes. I attended that meeting.
16 Q Dr. Bores, could you please describe what took place 17 in that RAC meeting of April 15th with respect to --
18 MR. OLESKEY: For what it 's worth, consistent with 19 the sequestration I asked yesterday, this being one of the 20 meetings I want to cross-examine on extensively, it seens to me 21 the value that the soquestration may have will be pretty well 22 gone if Dr. Bores now testified with Mr. Lazarus sitting beside 23 him.
l 24 JUDGE SMITH: We had already addressed that. This is 25 his direct. He could very well have reviewed it with him i (
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BORES. LAZARUS - DIRECT 11850 0 1 beforehand. It 's his opportunity to -- in f act, it 's 2 beneficial for him to have an opportunity to have a complete 3 record at this point. It in no way diminishes your right to 4 cross-examine and test separately their memories.
5 BY MR. TURK:
6 Q Dr. Bores, there 's a question pending that 's asking 7 you to please describe your recollection of events as they took 8 place in the April 15, 1987 RAC meeting with respect to the 9 Seabrook beach issues.
10 A (Bores) After the preliminary issues on the agenda 11 had been taken care of, and there usually are several, we got 12 to what we view to be the central issue, and that was 13 formulation of the RAC position relative to the beach issues,
[}
14 if we could resolve it at that time.
15 Mr. Thomas, in introducing the matter, did furnish 16 the letter which I had sent him dated February 18, 1987, and 17 indicated that it was his understanding that the position that 18 I had taken in my paper was that the New Hampshire plans were 19 generally adequate with the exception of the Seabrook beach 20 population. And that with the added features such as the 21 strong containment in the systems there, that I was now saying 22 that that plan was now adequate for the beaches as well.
23 I corrected him at that point, and I indicated to him 24 that that is not at all what I was saying with my position 25 paper. That in fact in review of where RAC had left the items O
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BORES, LAZARUS - DIRECT 11851 I')
\_- 1 relative to the planning, that in fact it appeared that all of 2 the items were adequately addressed; that in fact for the ,
3 Seabrook beach situation the plans were adequate as they were; 4 and in addition, the Seabrook beach -- I 'm sorry, the 5 containment features were an additional feature which dealt 6 with reduced probability. But the plans were adequate as they ,
7 stood without consideration of the contait. ment irsues.
8 JUDGE SMITH: Are you saying containment features?
9 Is that what --
10 THE WITNESS: (Bores) Containment and plant features 11 as well.
12 JUDGE SMITH: I just couldn 't get the word 13 "features", but that's what it was.
1 14 THE WITNESS: (Bores) Okay. Yes. ,
15 BY MR. TURK: !
16 Q When you refer to the plans. I take it you 're 17 referring to the New Hampshire Emergency plan as it then 18 existed?
19 A (Bores) That is correct.
20 When I did reiterate this, the general consensus was, 21 okay, that 's the statement you have made, and this is the way 22 we went on to deliberate going through the paper featuring I 23 guess most of the consideration of RAC at that point, not 24 really focusing too much on the individual elemant-by-element-25 type approach for the J-9 elements and subelements and where O
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BORES. LAZARUS - DIRECT 11852 1 they were left, nor really very much on the containment aspects 2 either.
3 It seemed the focus of the RAC at th6t point was 4 basically on the distance to the beaches and the 5 meteorological-type considerations. There were two members of 6 NOAA there at this particular meeting. That 's National Oceanic 7 and Atmospheric Administration. And they were there. I think, 8 primarily to look at, you know, what I had said relative to 9 meteorology, and there was quite a bit of discussion on that 10 aspect.
11 As a result of it, there was a sentence that I had 12 agreed to put in which would indicate that there was the
{} 13 14 possibility of recirculation, but also -- that is.
recirculation of material back over the beaches, but that they 10 also indicated that if such recirculation did occur, that there f 16 would be, you know, tremendous dilution by such wind 17 recirculation.
18 So the outcome of that particular discussion was a 19 minor change in the mateorological situation.
20 The other area that consumed a bit of time was 21 relative to a portien of the paper where I did compare the 22 statements I believe made in the Brookhaven studies relative to 23 the risk. There was a statement in the paper that indicated 24 that from the Brookhaven analysis it appeared that the risk at ,
25 two miles f rom the Seabrook Station was essentially equivalent O
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r BORES, LAZARUS - DIRECT 11853
) 1 to the risk at a plant let 's say considered in NUREG-0396 at 10 2 miles.
3 Now the fact that the risk at two miles at this 4 station was equivalent to the risk at 10 miles there, words to 5 that effect, provided a problem in comprehension. So I agreed 6 to rework that and put a definition in there relative to what 7 risk meant, essentially the inverse of safety, and then 8 apparently with using those words, it became much more 9 understandable. So that relative safety, if you would, ut two 10 miles at this plant is the same as that at 10 miles at a 396 11 plant. ,
12 But those were essentially the areas that we had i 13 covered in this meeting, and everyone came away agreeing that f~)
C/
14 in fact the issues apparently for the beach population were 15 resolved, at least to the extent that they were resolved for 16 the entire EPZ generically.
17 Let 's see if there is anything else I want to add on 18 that.
19 Q Do you recall --
20 A (Borec) Excuse me.
21 Q Go ahead.
22 A (Bores) . guess I was sort of surprised when I asked 23 Mr. Thomas how he wcs going to handle the then resolution 24 aspect, whether it was just going to be a change to the spread 25 cheet. And he had indicated that in fact he was simply going O Heritage Reporting Corporation (202) 628-4888 u____._______._______.______
BORES, LAZARUS - DIRECT 11854 1 to adopt the working paper that I had developed. I had not 2 expected that.
3 Q Did you say adapt or adopt?
- 4. THE WITNESS: (Bores) I probably said adapt, and I 5 probably should have said adopt.
6 JUDGE SMITH: Well.
7 BY MR. TURK:
8 Q Which is correct?
9 Which did he indicate he was going to do?
10 A (Bores) I really can't tell you. I mean, I don't f 11 know.
12 Okay, that 's my word, i
13 Q But essentially, as I understand what you 're saying.
j ()
14 he had indicated to you that he was going to go with your 15 paper --
- 16 A (Bores) That is correct.
17 Q --
expressing the RAC view.
18 A (Bores) That is correct; as modified by these slight 19 modifications.
20 And Mr. Rospenda, who was at the meeting, was tasked i 21 with providing modified spread sheets to take care of the 22 wording on these elements, and I was to provide to Mr. Rospenda 23 some wording changes as I had agreed to at the RAC meeting.
24 Q Do you recall if in the course of the April 15th
' 25 meeting there was any discussion of the phrase "reasonable O
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BORES, LAZARUS - DIRECT 11855 1 assurance", or as to whether or not reasonable assurance had 2 been provided for the beach populations?
3 A (Bores) I cannot specifically recall whether 4 reasonable assurance was expressed per se. I think the general 5 sense of the RAC was that we had reasonable assurance because 6 in fact everybody seemed satisfied that in fact we had resolved 7 these issues.
8 Q Mr. L azarus, I 'd like to ask you one brief point 9 about the April 15th meeting.
10 Do you recall any discussion at that meeting in which 11 Mr. Thomas indicated his initial understand of what Dr. Borea 's 12 paper meant?
13 A (Lazarus) I don 't recall any specific comments. I
{;
14 recall that there was a sense that he accepted that as a 15 reasonable position to take. And the meeting was a fairly 16 harmonious meeting. It seemed to be the first time that 17 everyone was coming together on agreement.
18 Q My question was getting at something a little bit 19 different.
20 I was asking whether you recall anything along the l 21 line that Dr. Bores testified to as to Mr. Thones 's opening 22 discussion stating what his understanding of what Dr. Bores 's 23 paper meant?
24 A (Lazarus) No, I can 't recall any specific comments.
l 25 Q All right. Subsequent to the April 15th meeting, can l
(
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BORES, LAZARUS - DIRECT 11856 O 1 you describe the next events that took place?
2 You indicated you were going to be making some 3 changes. Did you go ahead and write up some changes to your 4 paper?
5 A (Bores) I did, and those changes are provided in the 6 attachments to my October 15th memoranda to you. What I 7 provided in Attachment 10 was in fact modifications proposed by 8 Mr. Rospenda, the Argonne contractor, to Mr. Thomas. And then 9 in Attachment 11, my markup, again some additional markups. I 10 believe, of -- let me take a look at those attachments.
11 Q I don 't --
12 A (Bores) Attachment 10 is the letter dated April 17th from Mr. Rospenda to Mr. Thones containing the proposed
{} 13 14 revisions. And if we go to his Enclosure 1, without the 15 scratched out portion, that was his proposed revision. What 16 you see written --
17 Q Let me stop you right there, so we 're sure to 18 understand it. It 's a rather lengthy attachment.
19 A (Bores) Yes, it is. '
20 Q The first portion of the attachment, as I see it, is 21 a one-page letter dated April 17th, from Mr. Rospenda to Mr.
22 Thomas. 1 23 A (Bores) It is.
24 Q The page following that is Enclosure 1 25 A (Bores) Mm-hmm.
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BORES, LAZARUS - DIRECT 11857
\ 1 JUDGE SMITH: Could we make that -- would the parties 2 obj ect if we marked on that Rospenda Enclosure 1, because that 3 sort of gets us off into that direction?
4 Of course, it 's already bound in the transcript.
5 MR. TURK: Yes. Your Honor.
6 JUDGE SMITH: But that 's what it is, isn 't it?
7 THE WITNESS: CBores) Yes, it is.
8 MR. TURK: All right. I 'm going to count those pages 9 so we have a clear identification here.
10 count eight pages to what 's labeled as Enclosure 1, 11 Mr. Rospenda's April 17th memo.
12 Is that agreeable with --
What is the eighth page that you count?
{} 13 14 JUDGE SMITH:
MR. TURK: The eighth page is immediately following 15 the April 17th letter.
16 JUDGE SMITH: And what would be the eighth page that 17 you count? The Rospenda letter to Thomas?
18 MR. TURK: No.
19 MR. DIGNAN: He 's counting the title page that says 20 Enclosure 1. Your Honor.
21 MR. TURK: That 's right. Your Honor. I 'm starting my 22 count with the page that bears only the cloud with the words 23 "Enclosure 1" inside of it. Cloud: C-L-0-U-0.
24 So the last page of that is a spread sheet which at 25 the top right-hand corner indicate.9 Pege 17 of a number which O
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BORES, LAZARUS - DIRECT 11858
(~)
1 is obliterated on my copy.
2 JUDGE SMITH: Thirty, it looks like.
3 MR. TURK: Something like that.
4 BY MR. TURK:
S Q And this is the set of changes which Mr. Rospenda 6 made following the April 15th meeting with respect to the 7 spread sheets on the beach issue?
8 A (Bores) That is correct. Minus on the handwritten 9 sheet, which is the second page of the enclosure as indicated 10 by Mr. Turk, there are some handwritten in a clearly different 11 handwriting than Mr. Ro spenda 's. Those are my handwritten 12 comments on his handwriting which slightly rtodified the sense of the comment for the -- for the spread sheets.
{) 13 14 And the reason for that modification was that I 15 pointed out to Mr. Rospenda and to FEMA that we had been 16 discussing at the April iSth meeting the Seabrook beach aspects 17 only, and there were several items that still awaited either 18 information or something else for closure for the EPZ in 19 general.
20 And since the spread sheets are designed for the plan 21 as a whole, the entire EPZ rather than for a specific area as 22 the beach, we could not close them in that fashion.
23 Q Let me see if I understand that a little bit more.
24 On the second page of the enclosure to Mr. Rospe nda 's 25 April 17th letter, the bulk of the writing appears in a larger 4
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BORES. LAZARUS - DIRECT 11859
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1 printed hand, and then there are some smaller handwriting, 2 which I believe you 're identifying as yours, the smaller 3 handwriting.
4 A (Bores) That 's right. The poorer, smaller writing 5 is mine.
6 Q And I assume that the crossouts are also yours?
7 A (Bores) That is correct.
8 Q Now, do I understand the sense of what you 're saying 9 to us to be that Mr. Rospenda had written this up to say that 10 the spread sheet should be marked as adequate?
11 A (Bores) That is correct.
12 Q And you were correcting that to say that, no, you 13 still had open items; you could not yet find adequacy? ,
' .O 14 A (Bores) For the EPZ in general, or at least they i 15 were open.
. 16 JUDGE LINENBERGER: Excuse me, Mr. Turk, but at this ,.
17 point it would help my following this discussion if I could get t
18 Dr. Bores to explain a little bit more the functional purpose r
19 and significance of the term "spread sheets" that you have been j
t' 20 using. ;
21 THE WITNESS: (Bores) Okay. It 's a good point.
l 22 For illustrative purposes, let 's go to Page 4 of that 23 enclosure.
L 1
24 The way we had been working, particularly in Region 1 I 25 of RAC, is that each of the RAC comments or recommendations in ,
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BORES. LAZARUS - DIRECT 11860 -
1 accord with the various NUREG elements or subelements, for 2 example. J-9, we had a previously existing RAC comment on that ,
3 element, or a bunch of comments.
4 And so this was our mechanism of tracking comments 5 through various plan revisions through other input, or other t 6 things which we may want to modify this. So in f act we 'd have 7 a tracking system.
8 We go through a plan and identify a numoer of 9 deficiencies, or concerns, or areas in which we need more 10 information to resolve an issue, or in fact we may have a 11 recommendation that we wish to convey back to the state for 12 their consideration or action. We would note it there.
(} 13 14 But then this provides a means of tracking through to see if in fact resolution was required, that we got a response; 15 that response was indeed adequate or inadequate, or still i 16 pending. So that is what I'm referring to by the spread sheet.
17 So for each element starting, you know, from A-1-A i 18 all the way through the final one, we had something which --
19 JUDGE LINENBERGER: Thank you, sir.
20 BY MR. TURK: ,
i ;
21 Q Let me turn for a moment two pages into that same s
22 document which on my set of sheets is labeled Page 64 of one 23 something. ,
4 ,
j 24 Do you see that? ,
25 A (Bores) Yes. '
()
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BORES, LAZARUS - DIRECT 11861 1 Q Next to the element J-9 in the next to the last 2 right-hand column. I see that the letter "I" has been crossed 3 off, and the letter "A" inserted.
4 Is that your marking?
5 A (Bores) It is not.
6 Q Whose marking was that?
7 A (Bores) This was Mr. Rospenda's coming back f rom the 8 RAC meeting with his understanding of what we had done.
9 Q And the same, I take it, would be true on the 10 subsequent pages where we see -- it 's marked 86 of 139 -- a 11 question mark has been crossed off and a letter "A" put there.
12 A (Bores) That 's correct.
13 Q That again is Mr. Rospenda's marking?
)
14 A (Bores) Yes.
15 Q Which indicated his understanding that the matter had 16 been resolved as adequate already for the whole EPZ?
17 A (Bores) Yes.
18 Q I 'm sorry.
19 A (Bores) I was just going to elaborate. We see, you 20 know, also it says "insert" there. And for those to whom it 21 hasn 't been obvious, that 's where this second page of the 22 enclosure was meant to follow in each of those where it says 23 "insert". That is the insert that was proposed in the spread 24 sheet at these areas.
25 Q All right. So with respect to the markings on that
() '
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BORES, LAZARUS - DIRECT 11862
$ 1 page, Page 86 of 139. in-the second to the farthest right-hand i f
2 column. I see a question mark has been crossed off and the ;
3 letter "A" inserted. :
i .
!' 4 A (Bores) Yes. '
l 5 Q That 's Mr. Rospenda 's writing; is that correct? !
i 6 A (Bores) That 's correct. !
7 Q And this is a place next to the NUREG-0654 element l) i 8 J-10-M. j l 9 A (Bores) That is correct. l ES2 10 (Continued on next page.) !
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BORES, LAZARUS - DIRECT 11863
/03 1 Q And going to the last page, the eighth page of this 2 same enclosure, which I identified earlier as marked page 17 of 3 3 something. Again, the question mark has been replaced by an 4 "A." is that Mr. Rospenda 's writing?
5 A (Bores) It is.
6 Q And that 's next to the NUREG element J-9?
7 A (Bores) Yes.
8 Q All right.
9 And your comment --
10 A (Bores) This J-9 is different than the first J-9 11 because this is for the EPZ communities.
12 Q All right. Maybe you can explain that a little bit?
(] 13 A (Bores) Okay. Where a number of spread sheets --
U 14 there was a spread sheet for the State plan; there is a spread 15 sheet -- one spread sheet in general for the EPZ risk community 16 plans, which they didn 't answer, there was a separate spread 17 sheet for the host community plans.
18 And in fact, they got more complicated because there 19 were some supplements to Rev. 1 of the plan which seemed to 20 spurn additional spread sheets. For example, the portion of 21 the plan that came in with the compensating actions.
22 And so there were a nunber of these spread sheets.
23 So. in looking through a given NUREG element you had to be sure 24 of which plan or set of plans you were dealing with. But the 25 same comment, this enclosure, held here.
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BORES, LAZARUS - DIRECT 11864
) 1 Q And j ust so it 's all clear to us, in the same 2 enclosure I notice, for instance, that the third spread sheet, 3 labeled page 64 of something, bears the title "RAC Review of 4 the State of New Hampshire, Radiological Emergency Response 5 Plan for Seabrook." And on that page Mr. Rospenda had croseed 6 off the "I," inserted an "A" next to element J-9?
7 A (Bores) That 's correct. .
1 8 Q The next page. page 86 is also labeled at the top, 9 "RAC Review of State of New Hampshire, RERP for Seabrook "
10 where Mr. Rospenda had crossed off the question mark and put in 11 an "A" next to element J-10-M; is that correct?
12 A CBores) That 's correct.
13 JUDGE HARBOUR: Was that a yes?
14 THE WITNESS: CBores) Yes. :
15 BY MR. TURK:
16 Q And then on the lect page of this enclosure, which 17 has been labeled page 17 of 3 something, the label at the top 18 says, "RAC Review of the Municipal EPZ Communities, RERP for 19 Seabrook." And it is on that page that Mr. Rospenda has marked 20 out the question mark and inserted an "A" next to element J-9; ,
21 is that correct?
22 A CBores) That is correct.
23 Q All right.
24 Now, I-- in the same attachment to your October 15th I
25 memorandum to me, Staff Exhibit No. 2. Attachment 10 continues
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BORES, LAZARUS - DIRECT 11865 1 with another letter from Mr. Rospenda to Mr. Thomas; do you see 2 that?
3 A (Bores) Yes.
4 Q And that 's dated April 22, 1987. Now, am I -- could 5 you describe what this letter represents?
6 A (Bores) This letter represents a modified response 7 from Mr. Rospenda to Mr. Thomas, taking into account the 8 changes I had suggested on the spread sheets being put in, in a 9 clearer, shall I say, marked-up form than my hand scratching 10 over the original one.
11 And in fact, you 're going to have the same problem 12 here relative to numbering pages in the enclosure, but if we
{} 13 14 look at -- following what says, section one, following the handwritten section in there, page 64 of 134 of that particular 15 enclosure.
16 Q Let me stop you to identify that.
17 MR. OLESKEY: Your voice is dropping. Dr. Bores.
! 18 THE WITNESS: (Bores) I 'm sorry, I 've got somewhat 19 of a throat problem.
20 MR. TURK: Mr. Oleskey, let me see if I can help 21 identify this document a little better.
22 MR. OLESKEY: Do you have water up there?
23 THE WITNESS: CBores) I do have some. It 's j ust 24 that I had a cold all week.
25 MR. TURK: If Mr. Oleskey is finished I'll continue.
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) 1 MR. OLESKEY: I just wanted to make sure that he 2 could be heard and he 's comfortable, counsel.
3 THE WITNESS: CBores) I appreciate that.
4 BY MR. TURK:
5 Q Counting the pages that follow the Rospenda letter of 6 April 22 I see the fifth page, subsequent to the April 22 7 letter is marked on the right hand upper corner of page 64 of 8 134, and do you have that page in front of you?
9 A (Bores) Yes, I do.
10 Q And on that page I see that in the second to the 11 right hand column the letter "I" has been crossed off, next to 12 that a letter "A" has been inserted and crossed off, and then 13 there 's a letter "I" in brackets, again, with an arrow marking 14 that it should be put into that column. And is it your 15 understanding that this reflects the comments you had made as 16 to those spread sheets which we discussed a few minutes ago?
17 A (Bores) Yes, it is.
18 Q And the same thing on the next page which is labeled 19 page 86 of 139?
20 A (Bores) Yes.
21 Q We see the question mark has been crossed off, the 22 letter "A" has been inserted and then crossed, and then a 23 question mark has been reinserted; again, that -- it 's your 24 understanding that represents your comments to Mr. Rospenda?
25 A (Bores) Yes.
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BORES, LAZARUS - DIRECT 11867 1 Q And I won 't belabor this, but I see there are 2 numerous pages following, as part of thia attachment, if you 3 can look at those briefly and tell us whether it 's your 4 understanding that these subsequent pages which make up the 5 balance of Attachment 10 also represent Mr. Rospenda 's 6 accounting of the changes you had suggested?
7 A (Bores) That is correct.
8 Q All right. Now, subsequent to these two letters, did 9 you have occasion to provide any further comments to Mr. Thomas 10 in writing with respect to the Seabrook Beach issues?
11 A CBores) Well, following my discussions with Mr.
12 Rospenda, and in fact. FEMA Region 1 in provioing my comments 13 to Mr. Rospenda for incorporation, I followed up with my
{
14 promise at the RAC meeting to provide some wording changes 15 relative to the sentence on rink; and that is provided in my 16 letter to Mr. Thomas on April 24th of 1987 which is included as 17 Attachment 11.
18 Q And that 's a one page document?
19 A (Bores) That is a one page document; yes.
20 MR. OLESKEY: Let me ask for clarification. I 'm a 21 little lost in these various enclosures leading up to the point 22 where the witness now is. Just before Attachment 11 there 's 23 another document labeled "Enclosure 2." which is not the 24 Enclosure 2 sequence we 've been discussing un+.il now, what is a 25 letter from Bores to Thomas dated February 18th. Could that be O
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BCRES. LAZARUS - DIRECT 11868
(~- 1 put in context of this recitation?
2 MR. TURK : I think that 's a good idea.
3 THE WITNESS: (Bores) This particular Enclosure 2 4 was Mr. Rospenda 's Enclosure 2 to his letter --
5 BY MR. TURK:
6 Q April 22nd?
7 A (Bores) -- of April 22nd 8 JUDGE SMITH: Mine looks like he miscounted then, 9 didn 't he?
10 THE WITNESS: (Bores) Well, we may have -- let 's i 11 see. I 'm not sure, perhaps in the copying that was provided i
12 for the Board, this Enclosure 2 was -- the first Enclosure 2
(} 13 14 perhaps is out of place in my copy.
JUDGE SMITH: No, I misspoke.
15 MR. TURK : Let me see if I can correct the confusion.
16 BY MR. TURK:
17 Q It does appear to ne that the page which immediately 18 follows the April 27th -- 22nd letter from Mr. Rospenda is out 19 of place. And it reappears as the last page, I believe. the .
20 subsequent page -- the last two pages to the April 22nd letter? !
21 A (Bores) I think that 's correct. In a reduced form.
22 it appears again, the same cover page I think was in some --
23 MS. WEISS: You 're going to identify those again. ;
24 MR. TURK : Let --
25 MR. OLESKEY: I 'm going to make what I hope is a {
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BORES. LAZARUS - DIRECT 11869 em
(_) 1 practical suggestion, we seem to be near lunch, when we get 2 there I would suggest that this be reassembled in the form that 3 the witness originally sent it or that it came to him, and that 4 we use what we before -- to before as global numbers, so that 5 this -- so that the record, which I think is going to be really 6 quite confusing, at least hereafter would be less confused by 7 reference to global numbers in this maj or piece.
8 MR. TURK: It 's a good suggestion. Your Honor. We 9 have a practical problem in that the document has already been 10 bound into the transcript of yesterday 's session as it appears 11 today.
12 MR. OLESKEY: So it will get bound in today in the 13 right order with global numbers and help us all.
O 14 JUDGE SMITH: It 's going to be -- also, it is an 15 exhibit. Binding it in is not a substitute for providing the 16 three copies as an exhibit; that 's j ust a convenience. And I 17 think it would be helpful to the Board, too, if we can do that.
18 MR. TURK: All right. I 'l l --
19 JUDGE SMITH: Because there 's no other reason, even 20 if you master it the citation in proposed findings and findings 21 will be --
22 MR. TURK: Awful.
23 Your Honor, the Reporter informs me that the edition 24 to the copy that was bound in yesterday, the three exhibits 25 which I provided have been shipped to Bethesda already.
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BORES. LAZARUS - DIRECT 11870 i O(/ 1 JUDGE SMITH: Well, that 's -- we can take care of 2 that. We can have a substitution. If you think there 's merit 3 to it. I do, at least, we can call it Staff Exhibit 2-A, if we 4 want to.
5 MR. TURK: Fine.
6 JUDGE SMITH: Or Staff Exhibit 2 Revised.
7 MR. TURK: I'll have it globally numbered and 8 recopied and distributed this -- probably tomorrow morning.
9 I'll have to have the copying done later today.
10 JUDGE SMITH: How are you going to do that?
11 MR. TURK: I'll have to write a check out to~a 12 reproduction center.
- 13 JUDGE SMITH: Oh, you have the resources to do that?
14 MR. TURK : I hope I get it repaid.
15 Let me indicate, however. I am not going to alter the 16 document in any way other than to insert global page numbers, 17 and I mention that in particular because of this problem with 18 the, apparently, erroneous duplicate reproduction of the first 19 page following the April 22nd cover letter. That I will leave i
i 20 in the document and assign a global page to it and we can all ,
21 understand that that 's the way the document appeared initially ;
22 when it was put into evidence.
23 MR. OLESKEY: I 'm not sure I 'm with you still, i 24 counsel. My inquiry that started this had to do with the 25 second document labeled "Enclosure 2." which appears to be j i
(:) I f
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BORES. LAZARUS - DIRECT 11871 0 1 another copy of the February 18 letter from Dr. Bores, which is 2 followed by a page 8, which I think is from his Bores 1 memo.
3 both of which precede Attachment 11.
4 MR. TURK : That 's right.
5 MR. OLESKEY: Those are supposed to be in that 6 sequence?
7 MR. TURK: Dr. Bores can help us with that.
8 THE WITNESS: (Pores) What Mr. Rospenda provided was 9 the cover page and this nodified page of my February 18th 10 letter as Enclosure 2.
11 MR. TURK: I think --
4 12 THE WITNESS: (Bores) So, I think that first
! /~ 13 Enclosure 2 in copies that we have received was just a cover
(_S) 14 page of that memoranda; my letter is the one that should not I 15 have been there.
16 MR. OLESKEY: If I could just ask one more question.
17 MR. TURK : To me it appears to be an error in the 18 reproduction process. l 19 BY MR. TURK:
20 Q Does that sound to you to be something that sounds 21 possible? t
- 22 JUDGE SMITH
- That's what it is, you can see the --
23 it 's identical, the handwritten part is identical.
24 MR. OLESKEY: Just one more clarification. This page 25 8 which is the last page before Attachment 11.
l l(2) Reporting Corporation l
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BORES. LAZARUS - DIRECT 11872 i THE WITNESS: (Bores) Yes. l 2 MR. OLESKEY: Could you explain again what that 3 represents in this sequence? [
4 THE WITNESS: (Bores) Okay. This page 8 is a page j 5 coming back from Mr. Rospenda to Mr. Thomas with the wording 6 changes that we had agreed to at the April 15th RAC meeting.
7 So, and he put them in handwritten form so that the 8 changes would be evident.
9 MR. OLESKEY: So it relates back to what we call 10 Bores 1, your first document? It 's that -- i
+
11 THE WITNESS: (Bores) Bores 1 as modified.
12 MR. OLESKEY: Right. Thank you.
q 13 BY MR. TURK: t
)
14 Q In fact, it 's Mr. Rospenda 's markup of this 15 particular page in Bores 1? f 16 A (Bores) That is correct. I think, the only reason 1
17 for including the cover page of my transmittal memoranda was to 18 identify where the document came f rom or the page came f rom, e 19 Q All right. Let 's cone back now for a minute, we 20 already discussed briefly Attachment 11, which is the one page -
21 document from you to Mr. Thomas. And just to summarize. I t
22 understand thet you 've indicated these are the changes you 23 provided to Mr. Thomas consistent with your commitment in the 24 April 15th meeting?
1 25 A (Bores) That is correct. And as you can see. I also [
(
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BORES, LAZARUS - DIRECT 11873
) 1 provided it to Mr. Rospenda.
2 Q Now, could you explain to us the reasons why you 3 indicated in your markup of Mr. Rospenda 's write up, and that 4 is Attachment 10, why did you indicate that the plans could not 6 yet be found to be adequate?
6 A (Bores) The reason for indicating that the plans for 7 these particular elements were not yet adequate was that we had 8 not focused on the EPZ in general; we only were looking at the 9 Seabrook Beach issues at our RAC meeting, and we still had some 10 outstanding information requests.
11 Q And what were those?
12 A (Bores) Well, for that we would need to go to the 13 spread sheets to take a look at the individual items that were 14 requested.
15 Q As I understand it, then, those items which are left 16 open applied generically to the entire EPZ?
17 A (Bores) That is correct.
18 Q And they were not unique to the beach population?
19 A (Bores) That is correct.
20 Q For instance, if there was a personnel item left 21 open, that would be something of a general applicability 22 throughout the EPZ?
23 A (Bores) That is correct. I envisioned the April 24 15th RAC meeting as essentially resolving the issue that, as of 25 that point we had no issues at the beaches that were unique,
.]
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BORES, LAZARUS - DIRECT 11874 r
kml 1 that needed to be considered separately then from the rest of 2 the EPZ areas. But if we had deficiencies open in the EPZ 3 generically, they may in fact also apply, in some instances, to 4 the beaches.
5 So, f rom that aspect, simply by looking at the beach 6 issues we could not close the issue when we 're dealing with, 7 for example, the State plan. I hope that 's clear.
8 Q Yes. As long as I understand that the reason you 9 couldn 't close it is because of these generic considerations 10 which applied to all areas of the EPZ including the beach?
11 A (Bores) That is correct.
12 MR. TURK : Your Honor, I not e it 's 10 to 12 : 00, is 13 this a good stopping point?
14 JUDGE SMITH: All right, it will be a good time; 15 return at 1:00, 16 MR. TURK: Judge Linenberger has a question. I think.
17 JUDGE SMITH: Do you have any estimate of how much 18 longer you 're going to be in your direct?
19 MR. TURK: It 's probably going to be about an hour 20 and a half, two hours, the way things are going, Your Honor.
21 JUDGE SMITH: Okay. We may want to talk about next 22 week 's schedule again.
23 MR. TURK: All right.
24 MR. DIGNAN: Your Honor, has the Board made any 2S preliminary, at least decision, as to how long a day we 're 4
' q%)
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P BORES, LAZARUS DIRECT 11875 1 going to go tomorrow, I 'd j ust like to know for planning 2 purposes.
3 JUDGE SMITH: 4 o ' clock.
4 MR. DIGNAN: 4 o ' clock.
5 JUDGE SMITH: No later than 4:00, preferably a little 6 bit earlier. Well, we usually arrive at a consensus on 7 adj udicating matters, we don't easily arrive at a consensus on 8 how much margin for airplane time there should be, f
9 MR. FLYNN: I have two matters which seems 10 appropriate to bring up at this point. The point at which we 11 broke is just before getting to Attachment 12 and there was a 12 request made yesterday that I tried to obtain a legible copy of that attachment, which it was a transmission by telefax machine
{} 13 14 from Robert Rospenda to Elaine Chan, l
i 15 I have attempted to do so. I 've passed the request i 16 on to my headquarters who now have to try to reach Robert 1
17 Rospenda. However, there is a significant problem in doing 18 that in that there is a major problem with the telephone system 19 in Chicago, and it 's dif ficul t to reach him by telephone. We 20 are working on that; I will provide the copies as soon as they 21 are made available to me, but i t 's no t an easy process 22 The other thing I wish to report is that I have l
23 obtained a commitment from Mr. Peterson, Mr. McLoughlin and Mr.
24 Krimm. they will be here on Wednesday through Friday of next !
25 week for testimony.
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t BORES. LAZARUS - DIRECT 11876 9 1 JUDGE SMITH: Okay. Break for lunch.
^
2 (Whereupon, at 11:52 a.m. the hearing was recessed to 3 reconvene at 1:00 p.m. this same day. Thursday. May 19, 1988, f
et/53 4 at the same place.)
5 [
6 7 i 8
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23 24 25 9
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BORES. LAZARUS - DIRECT 11077 <
54 i AFTERNOON SESSION 2 ( 1: 04 p. m. ) }
4 3 Whereupon.
l' 4 ROBERT BORES l
5 WILLIAM LAZAktIS 6 having been previously duly sworn, were recalled as witnesses 7 herein, and were examined and testified further as follows:
8 JUDGE SMITH: During the lunch break, Mr. Backus was 9 kind enough to bring to our attention that members of the :
1 10 public and the audience were having confusion, or wore having 11 dif ficulty following the testinony becauce of the use of ,
12 initialisms. And I think it would be very helpful if maybe a 13 few of them were explained.
14 FEMA stands for Federal Emergency Management Agency i 15 which together with the Nuclear Regulatory Commission has :
16 responsibility for emergency planning and commercial nuclear 17 reactors. l 18 The word RAC has been used. which ie initialism for ;
19 Regional Assistance Committee, which is a committee made up of l
20 various agencies of the United States Government, which advises }
l t 21 FEMA on the adequacy of emergency plans.
. 22 OGC refers to the Office of General Counsel, and in l
l' 23 this instance the Office of General Counsel of the Nuclear l 24 Regulatory Commission which is referred to. f 25 We welcome inquires f rom people. If there is t
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BORES & LAZARUS - DIRECT 11878 '
O 1 difficulty understanding the testimony because of these '
2 initialismo, raise your hand or bring it to the attention of "
3 one of the parties because if you gu to the trouble coming ;
4 here, we want you to understand what you 're hearing.
5 Proceed.
6 MR. TURK: Thank you, Your Honor.
7 Let me start first by offering a report on the 8 reproduction of NRC Staff Exhibit No. 2. I have made global l 9 numbering on each of those pages and I 've taken it over to the ,
10 photocopying center. They will be ready this evening, so I can !
11 distribute those the first thing tomorrow morning.
12 Also, I have spoken with Mr. Lazarus, and he would 13 like to make a correction to his testimony at this time based
[}
i 14 on something which transpired earlier today in direct 15 examination. ,
t 1G DIRECT EXAMINATION (Continued) 17 BY MR. TURK: ,
18 Q Mr. Lazarus, would you please inform the Board and f
^
19 the parties what transpired over the lunch hour?
20 A (Lazar us) Yes. In order to clarify Mr. Schumacher 's 21 separation date from the NRC. I called the NRC regional 22 personnel office, and confirmed that his separate date was j 23 October 23, 1987.
24 Q And j ust to be clear, that 's af ter the date of his ;
25 October 15th memo. r C:)
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BORES, LAZARUS - DIRECT 11079 1 A (Lazarus) Yes, that was the following week.
2 JUDGE SMITH: That, however, did not play a role in 3 the Board 's decision not to receive it into evidence.
4 MR. TURK : I understand. Your Honor. I 'm merel y 5 clarifying for purposes of having a good record.
6 BY MR. TURK:
7 Q Dr. Bores, where we left off before luncheon was with 8 the letters in April making revisions to the spread sheets and 9 otherwise reflecting the discussions of the April 15th RAC 10 mit e t i ng.
11 Can you, also in that same vein, identify for us the 12 document which appears as Attachment 12 to Staff Exhibit 2?
-m 13 MR. TURK- And since I do have a copy of this
/
~
14 document with global numbers, f rom now on I 'll begin ref erring 15 to the numbers, both with the global number and the page 16 reference.
17 BY MR. TURK:
18 Q I 'm looking now at Attachment 12 which appears to be 19 a telecopy of some sort. It 's global Page 43, 20 Do you see Attachment 12 to your paper?
21 A CBores) Yes, I do.
22 Q Can you identify it for us what that document is?
23 A CBores) This document is a telefax from Robert 24 Rospenda of ArEonne National Laboratory. to Elaine Chan of the 25 Nuclear Regulatory Commission. It 's dated May 7.
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BORES, LAZARUS - DIRECT 11880
/~T
(_/ 1 Q Had you seen this document prior to its transmission 2 by Mr. Rospenda to Elaine Chan on May 7th?
3 A (Bores) I had not.
4 Q You had not.
5 A (Bores) I had not.
6 Q At various places in this telecopy I notice that 7 there are some handwritten insertions or revisions. Are those 8 your markup?
9 A (Bores) No, they are not.
10 Q Do you have any opinion as to whose markups they are?
11 A (Bores) My assumption is that they are Mr.
12 Rospenda 's or someone at the Argonne staf f.
13 Q Have you had an opportunity to go through that 7s b 14 document and form any opinions as to whether it correctly 10 reflects the RAC 's view of matters pertaining to the beach 16 population?
17 MS. WEISS: Excuse me. Does it correctly reflect 18 what? I didn 't hear.
19 BY MR. TURK:
20 Q Whether it correctly reflects your understanding of 21 how the RAC has treated the beach population issues for 22 Seabrook as of the April meeting.
23 MR. OLESKEY: Well, if we 're going to be -- if it 's 24 going to be that que-tion, I would like the witness to be as 25 specific as possible when he refers to the RAC, because there Heritage Reporting Corporation (202) 628-4888 i
BORES, LAZARUS - DIRECT 11881
(~s
\- 1 were a number of people at the April 15th meeting as I 2 understand his testimony, and it may not be entirely accurate 3 to talk about a "RAC view".
4 MR. TURK : Maybe I can withdraw the question and ask 5 something a little bit different, and I'll make it a simple 6 question, and perhaps Mr. Oleskey wishes to explore more on 7 vross-examination.
8 BY MR. TURK :
9 Q In the course of your looking at that document, did 10 you heve occasion to determine whether or not it correctly 11 reflected your understanding of what happened at the RAC?
12 A (Bores) It does not in all cases.
13 Q In particular I 'd like to direct your attention to
[}
14 what I have as global Page 47. It 's the fif th page in.
15 including the cover page. It 's a document which at the upper 16 right-hand corner reads No. 177-PO-5, which I assume is Page S.
17 This is again on global 47 for purpones of cross-examination 18 later.
19 And do you have that page?
20 A (Bores) I do.
21 Q And do you note in the bottom, there 's a bottom l
22 paragraph on that page which begins with the words "With the 23 use of early precautionary protective actions such as beach 24 closing and evacuation are not the sole means for protection of 25 the beach population."
}
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BORES, LAZARUS - DIRECT 11882 I) 1 Do you see that paragraph which begins with that 2 sentence?
3 A (Bores) Yes, I do.
4 Q Do you have an opinion as to whether this paragraph 5 accurately reflects your understanoing of how the RAC addressed 6 the beach population issues in April?
7 A (Bores) That is not my understanding of how the RAC 8 addressed the beach containment issues.
9 This particular paragraph in fact indicates that 10 reliance on that containment system is necessary for the l' protection of the beach population. That is, the special or 12 unusually strong containment system as it 's worded her e.
That is not my understanding as to what the RAC had
{) 13 14 agreed to at the April 15th meeting. At the April 15th meeting 15 the New Hampshire RERP as it stood had indicated that there was 16 reasonable assurance for protection of the beach population.
17 The contais. ment features were in additiin to.
18 Q And that 's again your understand of what the RAC did?
19 A (Bores) That is correct.
20 Q Now, after the April RAC meeting, did there come a 21 time when discussions commenced between yourself and NRC 22 headquarters concerning your position as expressed in your 23 February 18th memorandum -- February 18th letter to Ed Thomas?
24 A (Bores) Yes.
25 Q Could you describe for us those discussions, and O
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11883 BORES. LAZARUS - DIRECT
'1 approximately when did they begin, and identify the persons O- 2 involved in those discussions, and the types of comments which 3 were made?
4 A (Bores) The discussions probably occurred around the 5 first part of May is the best of my recollection. And they 6 were initiated basically by the people in the Emergency 7 Preparedness Branch -- I believe that 's the correct title -- of 8 the Division of Nuclear Reactor Regulation.
9 Q And that 's in Washington?
10 A CBores) In Washington, D. C.
11 The individuals involved were primarily Mr. Kantor, 12 that 's K- A-N-T-O-R, and Mr. Matthews. And their discussions 13 based primarily on a need, or a desire at least, to see what I 14 had provided to RAC, because they were in the process of
(])
15 developing responses to contentions, and they would like at 16 least to follow the same line of reasoning, if in fact they 17 agreed with it, in responding to the contentions. And since 18 they had not been privy to what I had provided to the RAC, they 19 were seeking to get a copy of the paper.
20 At that time I still had reservations aoout providing 21 the paper, which I still viewed as the RAC member input to the 22 FEMA RAC decision process as proprietary under th: Freedom of 23 Information Act, and still had concerns at that point about 24 even providing them copies.
25 But I did provide an information copw to the Office
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t BORES, LAZARUS - DIRECT 11884
~
. j 1 of General Counsel for that particular purpose.
2 Q And, incidentally, I understood you to say that 3 headquarters was in the process of responding to contentions.
4 Could it have been -- are you sure that it was 5- contentions, or could it have been some other legal pleading?
6 Are you certain on that?
7 A (Bores) I 'm not certain on it. It was my 8 understanding that it was contentions, but it could have been 9 something else.
10 Q What sort of reaction did you receive from 11 headquarters with respect to your paper?
12 A (Bores) Well, I guess I got some mixed views. I 13 guess they were generally pleased with the format I had 14 utilized in summarizing the beach issu~s. I got some negative 15 response, particularly relative to the containment features and 16 the paragraph that discussed probabilities of risks and risk 17 reductions specific to the Seabrock site.
18 Q And could you give as a little more information about 19 those negative comments?
20 A (Bores) Well, in particular, if we go back to I 21 believe it 's our Exhibit No. 5.
22 Q That 's the February letter from you to Ed Thomas?
23 A (Bores) That is correct.
24 And we go to Page 7 of Enclosure 1, which discusses 25 the plant features and considerations. The first three Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11885 1 paragraphs there relate to either probability analyses or the 2 site-specific, plant-specific features themselves.
3 In addition, in my conclusion section on Page 10, I 4 had several bullet items that I had indicated that I had S utilized in reaching my conclusion. Near the bottom of the 6 list, the last three, or starting at the fourth bullet from the 7 bottom and then going on to the third and second bullets from 8 the bottom, also related to the containment features, site-9 specific features.
10 Q Those are the three bullets which read, "Cont ainment 11 at Seabrook is very strong," et cetera. "Containment bypass is 12 unlikely to'cause severe off-site problems." And the third 13 one, "Site-specific studies for Seabrook indicate risks," et d(T 14 cetera.
15 A (Bores) That 's correct.
16 Q Those are the three bullets you 're referring to?
17 A (Bores) Yes. Yes, it is.
18 Q All right.
19 A (Bores) So these areas of the paper caused some 20 problems with the headquarters staff, including OGC staff. And 21 we had a number of discussions. I had proposed a number of 22 modifications. I guess my inclination at the time was to hang 23 on to some of them, and I guess I was asked, is it necessary 24 for the paper -- that 's one of the first questions I was asked 25 as a matter of fact.
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I BORES, LAZARUS - DIRECT 11886
(,,)
s' 1 Q Who asked you that?
2 A (Bores) I believe it was asked by NRR, probably_Dr.
3 Congel -- I 'm sorry, NRR is Nuclear Reacter Regulation. It 's a 4 division of NRC -- Dr. Congel and his staff, and by the Office 5 of General Counsel. Mr. Turk expressed some concern about the 6 use of this area.
7 Q Were you ever arked whether you believe the plans are 8 adequate without regard to these containment and plant-specific 9 features?
10 A (Bores) Yes.
11 Q And what answer did you give?
12 A (Bores) I gave them a definite yes.
(T 13 Q All right.
(/
14 A (Bores) So, with that, the question was, why is the 15 site-specific materials included, or is it necessar" to include 16 the site-specific materials.
17 The answer is no.
18 Q No, it 's not necessary?
19 A ( Bo . e.o It is not necessary. It was provided, I 20 guess, as a point of information speaking to risk, risk 21 reduction probabilities, which would indicate a less severe 22 probability, if you will, for e serious accident for people on 23 the beaches at Seabrook.
24 In considering all of these items, the recommendation 25 of the staff was that I do withdraw these areas since it wasn 't O
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BORES, LAZARUS - DIRECT 11887 I")
\- 1 necessary for my position.
2 Q In the course of those discussions, was there any 3 discussion as to the use of probabilities as a part of your 4 paper as being appropriate or inappropriate?
5 A CBores) Yes, there was.
6 Q Could you tell us a little bit about that?
7 A (Bores) The discussion basically centered on the 8 f act that for emergency preparedness we 're not j udging a site 9 based on probabilities of accidents, nor really on risks, but 10 in fact based on the finding in the plans themselves which 11 would ensure reasonable level of protection.
12 Q And I assume in that regard those discussions were rg 13 consistent with your understanding of NUREG-0654?
O Could we have a little less leading, 14 MR. OLESKEY:
15 Your Honor?
16 MR. TURK: I 'll withdraw and rephrase.
17 BY MR. TURK :
18 Q Are you familiar with NUREG-0654?
19 A CBores) Yes, I am.
20 Q And what is your understanding of NUREG-0654 's 21 treatment of probabilities of accident occurrence?
22 A CBores) Probabilities are not directly included in 23 NUREG-0654. The planning bases themselves take into account a 24 spectrum of accidents which were included, not necessarily 25 based on probabilities, but in fact ranges of severity in the Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11888 I) 1 plans were needed to be designed around a given bases provided 2 in the NUREG.
3 Q Is it fair to say that for emergency planning 4 purposes you must make a certain assumption as to the 5 probability of an accident?
6 A CBores) If you 're going to be considering the type 7 of accident, then for that particular accident you're assuming 8 essentially the probability is 1. That is, the accident 9 happens, how do you cope with that particular accident in that 10 particular situation. So that is where we go with an emergency 11 preparedness use of that.
12 Q And was that concept raised at all in your 13 discussions with NRC headquarters, the assumption of the O 14 probability of 1? -
15 A (Bores) Yes, it was.
16 JUDGE SMITH: Well, would you stop a minute?
17 (Board confer.)
E54 18 (Continued on next page.)
19 20 21 22 23 24 25 r
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BORES, LAZARUS - DIRECT 11889
'-/55 1 JUDGE SMITH: Mr. Turk, we understand the reason for 2 your questioning now, and there has to be some contextual basis 3 for how the NRC arrived at its position and evolution here.
4 But we also believe you are getting very, very close to what 5 you said you were not going to do, and that is, address the 6 position on the merits.
7 MR. TURK: Yes, Your Honor.
8 JUDGE SMITH: And, of course, the parties will be 9 allowed to follow you wherever you go.
10 MR. TURK: Your Honor, I 'm not seeking to --
11 JUDGE SMITH: It 's a --
12 MR. TURK : I 'm not seeking to do more than simply 13 elucidate the nature of the discussions had between Dr. Bores
}
14 and the NRC staff headquarters.
15 fo the extent any of this testimony snould be found 16 to relate to the merits, it 's certainly not my intention. It 's 17 simply to elucidate and draw f rom the witness 's r ecollection of 18 discussions.
19 BY MR. TURK:
20 Q Dr. Bores, looking at your October 15th memo to me.
21 Staff Exhibit No. 2, I see a summary on global Page 4. I t 's 22 the fourth page in. There 's a paragraph at the top numbered 6.
23 And as I understand it, this paragraph further 24 describes the nature of discussions held between you and the 25 NRC staff headquarters; am I correct?
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BORES, LAZARUS - DIRECT 11890 (7_)
1 A ' Bores) That 's correct.
2 Q Well, after these discussions had commenced, did you 3 have occasion to discuss the matter with Mr. Thomas?
4 A (Bores) Yes. I believe since we had several 5 opportunities to discuss where we were going on a number of 6 occasions relative to other aspects of the Seabrook site, on 7 one of those -- at least one of those occasions I informed him o that NRC staff at headquarters was looking at this, and in fact 9 were recommending that I withdraw certain paragraphs from my 10 February 18th document.
11 Q And did you identify the paragraphs to Mr. Thomas?
12 A (Bores) I did not identity specifically as I did 13 here just a few minutes ago, but in general as to the content.
(')')
\.
14 Q In other words, you indicated that these were the --
15 A (Bores) Yes.
16 Q -- discussions of containment and ris??
17 A (Bores) That 's correct.
18 Q And plant-specific features?
T9 A (Bores) That 's correct.
20 Q What was his reaction?
21 A (Bores) He was not very pleased with it. His words 22 essentially indicated that if the NRC withdrew these 23 paragraphs, FEMA would no longer support a finding of 24 reasonable assurance.
25 Q What happened next?
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BORES, LAZARUS - DIRECT 11891 1 A (Bores) What happened next was that I redrafted the 3
J 2 position paper that I had written on, or sent out in February, 3 and deleted the paragraphs that we had just been speaking about 4 along with the bullet itena.
5 I provided a cover memo on that particular letter 6 which explained, in part, the rationale for my removing those 7 particular pages, or particular sections.
8 Q And what was the date of this paper, this revised 9 position paper?
10 A (Bores) It was June 4, 1987.
11 MR. TURK: May we go off the record?
12 JUDGE SMITH: Okay. Off the record.
13 (Discussion off the record.)
() 14 JUDGE SMITH: We 're on the record.
Mr. Turk, before you go on to this, I 15 JUDGE HARBOUR:
16 just had one question to clarify something here.
17 Dr. Bores, where is the corresponding paragraph, or 18 the paragraph that corresponds to the three bullets that you 19 were talking about?
20 Is that in your February 18th --
21 THE WITNESS: (Bores) It 's on Page 10 of my February 22 18th letter. It 's in the conclusion sec'. ion.
23 JUDGE HARBOUR: Those are the three bullets. And 24 then where is the paragraph?
25 THE WITNESS: (Bores) Oh, the paragraphs that were I
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BORES. LAZARUS - DIRECT 11892-k- 1 withdrawn?
2 JUDGE HARBOUR: Yes.
3 THE WITNESS: (Bores) Okay, I 'm sorry. I 4 misunderstood.
5 That is on Page 7. the first three paragraphs.
6 JUDGE HARBOUR: Thank you.
7 THE WITNESS: CBores) Now there was some --
8 MR. TURK: Wait -- I 'm sorry , go ahead. I didn 't 9 understand you were directing yourself to Judge Harbour.
10 THE WITNESS: Okay.
11 BY MR. TURK:
12 Q Dr. Bores, I believe you were going to say something
(~ 13 further in response to Judge Harbor?
V}
14 A (Bores) I was going to point out that in fact there 15 was some reorganization of the particular paragraph in the 16 submitted June 4th document.
17 Q Some reorganization of what had previously appeared 18 in --
19 A (Bores) Yes.
20 Q -- the February document?
21 A (Bores) Yes, previous paragraphs.
22 Q And were there also some other minor changes?
23 A (Bores) It also incorporated the changes relative to 24 the meteorology as had been discussed earlier here.
25 The changes relative to risk are now gone.
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BORES, LAZARUS - DIRECT 11893 gg 1 MR. TURK: All right, now, before we go any further, V 2 Your Honor, I would like to offer for identification and then 3 offer into evidence Staff Exhibit No. 6. This is a document 4 dated June 4, 198'/, to Edward A. Thomas. It 's f rom Robert J.
5 Bores, and the signature on the cover memo is Thomas T. Martin 6 for Robert J. Bores.
7 BY MR. TURK:
8 Q And first I 'd ask the witness to identify if this is 9 in fact the revised position paper which he transmitted to Mr.
10 Thomas.
11 A (Bores) It is.
12 MR. TURK: And let me note also. Your Honor, that 13 this document as we 're introducing it today consists of a one-() 14 page letter from Dr. Bores to Mr. Thomas, an enclosure which On the last line of that 15 immediately follows of nine pages.
16 ninth page of the enclosure, there is an indication that there 17 is an attachment, letter f rom Christenbury to Perry, dated June 18 18, 1986 That attacnment follows the nine-page enclosure.
10 And then again we have, as the last item in this package, the 20 five-page undated memorandum which is Mr. Dignan 's memorandum 21 with respect to the so-called three misconceptions.
22 MR. OLESKEY: It 's attributed to Mr. Dignan.
23 MS. WEISS: Wall, we can never have too many copies 24 of that.
25 MR. TURK: And at this time. Your Honor, I would like
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BORES, LAZARUS - DIRECT 11894
,f s 1 to offer this document into evidence.
2 JUDGE SMITH: Any obj ections?
3 MR. OLESKEY: No.
4 MR. TURK: For purposes of --
5 JUDGE SMITH: Staff Exhibit 6 is received.
6 . MJL DIGNAN: Wait a minute. Is that a general offer 7 or --
8 MR. TURK: No, same --
9 MR. DIGNAN: -- is it like the other one, offered for 10 the purpose of showing what was sent to Mr. Thomas?
11 MR. TURK: Same purpose, Your Honor. This is 12 historical. We 're not going to be arguing the merits of the 13 positions expressed in either Bores 1 or Bores 2, which
() 14 incidentally are the February 18 and June 4, 1987 memos. We 15 are introducing these to show the evolution of the position 16 with respect to beach shelter.
17 JUDGE SMITH: All right. Staff Exhibit 6 is received 18 for the purposes stated.
19 (The document referred to was 20 marked for identification as 21 Staff Exhibit No. 6 and 22 received in evidence.)
23 BY MR. TURK:
24 Q And j ust so we 're clear also, Dr. Bores, in your memo 25 to me, which is Staff Exhibit No. 2 dated October 15, 1987,
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F BORES, LAZARUS - DIRECT 11895 1 there is an Attachment No. 13; do you see that? This is at my 2 global Page 59.
3 A (Bores) Yes, I see it.
4 Q And as I understand Attachment 13 to Staff Exhibit 2, 5 it consists of the first page -- excuse me.
6 It consists of the cover meno i com Martin on behalf 7 of you to Thomas dated June 4th, as well as the first page of 8 the enclosure that follows; is that correct?
9 A (Bores) That is correct.
10 Q And also while we 're at it, on that second page that 11 I referred to, the first page of the enclosure, and this is 12 global 60, at the bottom there is a handwritten note.
13 Can you identify that for us?
)
14 A (Bores) That is a handwritten note that I put on 10 just indicating that since the documents were already 16 available. I didn 't feel I needed to provide the full document, 17 just to identify it.
18 Q The attachment to your memo to me?
19 A (Bores) That 's correct.
20 Q All right.
21 Just so the record is clear, I 'l l read that quote.
22 that sentence. It reads, "Complete copy not provided since 23 document is readily available." I believe that 's "RJB". ,
24 And essentially, then, is this document, Staff 25 Exhibit No. 6 of June 4, 1987, substantially the same as the O
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BORES, LAZARUS - DIRECT 11896
\l 1 February 18th document, Staff Exhibit 5, except as to the 2 changes which you have already described?
3 A (Bores) That is correct.
4 Q Does Staff Exhibit No. 6, the June 4th letter or 5 Bores 2, does it contain anything new that had not been offered 6 as a consideration in support of the adequacy of New 7 Hampshire 's plans beyond what was contained in the February 8 18th memo?
9 A (Bores) Nothing new in words. There is a new aspect 10 of this in that this particular document did receive the 11 staffing through the region as well as through our headquarters 12 staff.
13 JUDGE SMITH: Received?
14 THE WITNESS: CBores) Staff approval, or 15 concurrence.
16 BY MR . TURK:
17 Q It received concurrence at NRC headquarters?
18 A (Bores) That 's correct.
19 Q And as indicated in the cover memo, this document, 20 the June 4 '87 letter, was transmitted to Mr. Thomas at FEMA; 21 is that correct?
22 A (Bores) 'iha t is correct.
23 Q Dr. Bores, are you familiar with the timing of the 24 issuance of this document with respect to the submission of 25 FEMA 's position on contentions in June of 1987?
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BORES, LAZARUS - DIRECT 11897 k' 1 A (Bores) Did I know -- well, if you 're asking did I 2 know that FEMA needed to submit, or was requested to submit 3 their response to contentions within the same sort of time 4 frame?
5 Q Yes.
6 A (Bores) The answer to that question is yes.
7 Q And are you aware of whether there were any meetings 8 between NRC headquarters and FEMA concerning the submission of 9 FEMA 's position on beach shelter?
10 A (Bores) At that time I was not aware of any 11 meetings.
12 Q You didn 't attend any?
r"T 13 A (Bores) I did not attend any. I was on annual leave V
14 at that time.
15 Q Now, the next thing that happened -- well, maybe you 16 can tell us.
17 Do you recall the next thing to happen with respect 18 to the issuance of a FEMA position on beach shelter?
19 A (Bores) Yes. I got back from annual leave, and I 20 was hit with a call from a reporter asking me about the FEMA 21 position, which I had not seen.
22 Q You had not seen it?
23 A (Bores) No.
24 Q And did you have an opportunity then to find and look 25 at the FEMA position on contentions?
O Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11898 rn k_/ 1 A (Bores) Not at that time.
2 Q Approximately when did you first have an opportunity 3 to review the FEMA positions?
4 And let me, just so the record is clear, indicate 5 it 's my understanding the FEMA position was filed approximately 6 June 5, 1987, on or about that date.
7 MR. OLESKEY: That 's a date that Mr. Flynn would know 8 best.
9 MR. TURK: Mr. Flynn --
10 JUDGE SMITH: These were the responses to 11 interrogatories that had been alluded to earlier?
12 MR. TURK : Yes. Your Honor, for clarification, FEMA
~s 13 was required to identify its position with respect to (O They did so in --
14 contentions.
15 JUDGE SMITH: Oh, by the Board?
16 MR. TURK: By the Board. And they did so in the way 17 of providing a response to interrogatories with the position of 18 our contentions attached.
19 JUDGE SMITH: Yes.
20 MR. FLYNN: The document served a combined purpose.
21 There had been an appeal of the scheduling order, and the order 22 which came down from the Appeal Board required FEMA to provide 23 its position to the parties 30 days in advance of their 24 prefiled testimony.
25 The statement of position which accomplished that was Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11899
/~x
(,,) 1 an attachment to answers to interrogatories propounded by the 2 Massachusetts Attorney General 's of fice.
3 MR. OLESKEY: The clarifying question, though, was it 4 the 4th or the 5th? Do you know?
5 MR. FLYNN: My belief is that it was on June 4th.
6 MR. OLESKEY: Thank you.
7 MR. TURK: Your Honor, may I have j ust a moment?
8 (Pause.)
ESS 9 (Continued on next page.)
10 11 12 7- 13 14 15 16 17 18 19 20 21 22 23 24 25 O Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11900
/56 1 BY MR. TURK:
2 Q Dr. Bores, appro::imat e ly , when did you first have an 3 opportunity to read and review the FEMA position on 4 contentions?
5 A (Bores) My best estimate would be that I probably 6 got that opportunity around the 15th of June.
7 Q Do you recall what your reaction was when you had an 8 opportunity to review that position as it related to the beach 9 shelter conte- lons?
10 JUDGE SMITH: Well, whose reactions?
12 MR. OLESKEY: You mean what he did or said, Mr. Turk?
13 THE WITNESS: (Bores) I 'll try to answer it. My
- 14 reaction, when I saw it, was that --
15 MR. OLESKEY: Well. I think that if he did something 16 that 's probat ive. If he reacted or had a view, that 's not 17 particularly probative.
18 Mx. TURK : Oh, I strongly disagree, Mr. Oleskey.
19 JUDGE SMITH: It 's not an obj ection, but, he can 20 answer it his way.
21 THE WITNESS: (Bores) In a way I guess I was 22 surprised that FEM / filed it, but not all that surprised 23 perhaps after the d.iscussions I had had with Mr. Thomas in sort 24 of indicating to him what changes would likely come in the 25 redrafted enclosure.
l r.
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BORES, LAZARUS - DIRECT 11901
\ -
1 The surprising -- well, the area that certainly did 2 change is that this was not the position that we had agreed on 3 at the April 15th RAC meeting.
4 BY MR. TURK :
5 Q Now, when you say it was not the position that.
6 quote, "We," close quote --
7 A (Bores) We the RAC.
8 Q -- did not agree --
9 A (Bores) We the RAC, and at that time I would include 10 FEMA, certainly.
11 Q I 'd like to ask you to turn to a further attachment 12 to your October 15th meno, Staff Exhibit 2, and that is Staff 13 Exhibit -- I 'm sorry, that is Attachment 14, and this begins on 14 global 61. That document is a September 11, 1987 filing by Mr.
15 Flynn for FEMA entitled "FEMA Prefiled Testinony. " And 16 attached to it in comprising the last two pages of this 17 attachment. I have them as global pages 68 and 69, are pages 18 which bear the numbers on the upper right hand corner 38 and 19 39; do you recognize those two pages, in pacticular?
20 A (Bores) Yes.
21 MR. TURK: Am I confusing this. Your Honor?
22 JUDGE SMITH: I beg your pardon?
23 Mx. TURK: Am I confusing this?
24 JUDGE SMITH: I don 't think so.
25 THE WITNESS: (Bores) Yes, I recognize it.
O Heritage Reporting Corporation (202) 628-4888
BORES. LAZARUS - DIRECT 11902 1 JUDGE SMITH: And I have a low threshold, so it must 2 be all right.
3 (Laughter) 4 BY MR. TURK :
5 Q Can you tell us what these two pages are?
6 A (Bores) These two pages are essentially the FEMA 4 7 response to the Town -- the Revised Town of Hampton Contention 8 No. VIII to Revision 2 of the New Hampshire RERP for Seabrook, 9 SAPL Contention 16 and NECNP Contention, RERP-8.
10 Q Do you recall whether these two pages, without the 11 handwritten comments, constituted the FEMA position on beach 12 shelter contentions as filed by FEMA in June of 1987?
r' 13 A (Bores) They 're essentially the same.
\_]/
14 MR. TURK: I just note. Dr. Bores may not have been 15 present at an earlier day in the proceeding, Mr. Flynn has 16 previously indicated that these pages which are attached to 17 FEMA prefiled testimony of September, in fact, were the pages 18 at which comprise part of their position on contentions back in 19 June.
20 BY MR. TURK:
21 Q Whose handwriting appears on these two pages or on 22 the second of them?
23 A (Bores) That 's my handwriting.
24 Q Do you have an understanding of the thrust of this 25 position?
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BORES, LAZARUS - DIRECT 11903 D
's / 1 MR. OLESKEY: Obj ec tion. It 's there for all of us to 2 read. I don 't know what that question means or what it could 3 possibly produce that would be probative.
4 JUDGE SMITH: If it goes to -- certainly it 's 5 relevant to -- overruled. It 's relevant to the evolution of 6 the position and his observation of it.
7 MR. OLESKEY: What 's relevant is what FEMA said. His 8 observations are worth no nore than anybody else 's.
9 JUDGE SMITH: Yes, they are when it tells how he 10 reacted and how -- what his role was, which is the issue.
11 MR. OLESKEY: No, the question was something like, 12 would you tell us what -- the thrust of what it says, which is.
13 in my judgment, a very different question, which is why I 'm 14 obj ec t ing.
15 JUDGE SMITH: Oh, I see.
16 MR. TURK : Your Honor, let me --
17 JUDGE SMITH: If it were, how did you view it, that 's 18 another matter.
19 MR. OLESKEY: This is something he 's been going 20 through generally.
21 JUDGE SMITH: I see. I agree.
22 MR. OLESKEY: All right.
l 23 MR. TURK: Your Honor. I 'm quite happy to have that 24 question reread, I 'm certain that I asked Dr. Bores if he had 25 an understanding of the position.
O O
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BORES, LAZARUS - DIRECT 11904 4
f-s 1 MR. OLESKEY: Rather than reread it, why don 't we b 2 treat that as the question.
3 JUDGE SMITH: Well, that 's all right --
4 MR. TURK : That is the question.
5 MR. OLESKEY: Yes.
6 MR. TURK : And I also note that Dr. Bores has 7 previously indicated that the FEMA position of June 1987 did 8 not express what Dr. Bores believed to have been the RAC 9 position of April. And I think it 's f air to ask him --
10 JUDGE SMITH: No one is questioning that.
11 I t 's -- I think you misperceived the obj ection and the concern.
12 MR. TURK: No, I didn 't, Your Honor, but I 'm willing 13 to let things go. i
() 14 THE WITNESS: CBores) Okay. My perception as to 15 what FEMA 's position is, is that they 're going to find or 16 cannot find the protection for the Seabrook beaches adequate 17 because there are not adequate shelter for the summer beach 18 population. That 's a short summary of it.
19 BY MR. TURK:
20 Q And had that been the position of the RAC in April?
21 A (Bores) No, it had not.
22 Q Also, I recall that when we first began this direct <
23 examination you related to us that Mr. Thomas had a concern 24 over the risk to summer beachgoers in the Seabrook area; do you 25 recall that general line of testimony?
() Heritage Reporting Corporation (202) 628-4888 l
BORES, LAZARUS - DIRECT 11905
<- 1 A (Bores) Yes.
k% )s 2 Q How do you -- well, do you feel that this position on
'3 contention as expressed by these two pages has any relationship 4 to that earlier concern expressed by Mr. Thomas?
5 MS. WEISS: Obj ec t ion.
6 MR. OLESKEY: Obj ection.
7 MR. TURK: Leading? What 's the obj ection?
8- MR. OLESKEY: My obj ection is it 's calling for a 9 conclusion from the witness. It doesn 't go to any issue that 's 10 before the tribunal.
11 MS. WEISS: You 're trying to argue the merits of 12 FEMA 's position. That question is going to the merits.
13 MR. TURK: No, it is not.
() 14 JUDGE SMITH: Is it -- do you intend to follow on here with, did he react -- I mean, did he act upon any such 15 16 impression.
17 MR. TURK: Pardon me. did he --
18 JUDGE SMITH: When you elicit the answer to the
. 19 question, then you intend to follow on. I guess, what did he 20 with that impression? How did that impression -- what did he 21 do about it?
22 MR. TURK: Your Honor, the staf f 's presentation of 23 its views of the evolution of FEMA 's position will consist of 24 two parts. The first part is before the Board now, and that 's 25 the input from the RAC member, other persons in the region,
( Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11906
/^}
\- 1 their understanding of the initial FEMA position.
2 What will follow then will be, what happened or at 3 least how does the NRC interpret the evolution of that position 4 as the NRC staff understood it. And we are talking about the 5 staf f 's understanding of FEkA 's position, because that 's the 6 only thing we can tell you in terms of our understanding of the 7 evolution.
8 JUDGE SMITH: That 's not my point. The point is, if 9 Dr. Bores developed an impression and that impression died 10 there at that point; then the obj ection has meri t.
11 MR. TURK: I certainly will follow up.
12 MI: . OLESKEY: Then I 'll withdraw my obj ection.
13 BY MR. TURK :
l 14 Q Do you recall the question, Dr. Bores?
15 A (Bores) Yes.
16 Q All right.
17 A (Bores) The way I would characterize the response l
18 here is that, the previous position -- let me relate it back to 19 the previous FEMA RAC position --
20 Q Of April?
21 A (Bores) Of April, and as was stated in the draft 22 contention from Argonne to Ed Thones, included an asper' there 23 which dealt with the containment features. At that point, 24 since the inclusion of that, apparently, made this acceptable 25 to FEMA, when I withdrew those aspects which related to O
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BORES, LAZARUS - DIRECT 11907
/T k/ 1 probability and risk, the plan suddenly became inadequate.
2 In other words, the risk aspect of it suddenly made 3 this plan unacceptable.
4 Q And when you say, it made the plan inadequate or 5 unacceptable, you mean to FEMA?
6 A (Bores) To FEMA; that 's correct.
7 Q I 'd like to ask you to turn to one further attachment 8 in Staff Exhibit 2, and that is Attachment 15 which commences 9 at global page 70. Can you identify that document, please?
10 A (Bores) Yes. Excuse me. That 's a letter f rom Mr.
11 Edward A. Thomas of Chief Natural and Technological Hazards 12 Division. FEMA Region 1, to Mr. Richard H. Strome, Director of 13 New Hampshire Civil Defense Agency. I t 's dated -- I 'm sorry. I 14 don 't see the date right now.
15 Q I 'd note that my copy does not bear a date either. i r
16 There is a telefax date on the third page, upper left hand 17 corner which to me reads June 15, 1987. I don 't guarantee that
! 18 date, but --
l l 19 A (Bores) That 's what it says.
20 Q -- do you agree with that?
21 A (Bores) June 15 J'ne 19.
22 Q June 19th?
23 A (Bores) Yes. ,.
24 AR. OLESKEY: June 19 on mine, too.
25 MR. TURK: Excuse me one second, I da have a better O
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i BORES, LAZARUS - DIRECT 11608
~' 1 copy here.
2 THE WITNESS: CBores) 6-19-87.
3 MR. TURK: All right. Thank you, that helps. Yes.
4 it does look like June 19.
5 MR. DIGNAN: Your Honor, could we have a stipulation 6 of all counsel that the telefax that the witness is being 7 referred to, the original letter was actually dated June 11, 8 1987. I think Mr. Oleskey and I at least can agree on that.
9 He introduced it during the Thomas deposition. The actual date 10 of the communication is June 11th, 1987.
^1 JUDGE SMITH: Is that si, f ulated to by the parties?
12 MR. OLESKEY: It is by me. I don 't think we know 13 when it was sent, but tho' 's certainly the date on it.
p\j 14 MR. DIGNAN: That 's the date on the original.
?,5 JUDGE SMITH: All r3ght, that would be a stipulation 16 then.
17 MR. TURK: Let me note an asid. here. Your !!onor, in 18 copies of the globally numbered, global page numbered version 19 which you don 't have yet in f ront of you, it seems that I have 20 given the printer something that beara some b acketing on my 21 part. So the parties may wiuh to note, tomorrow when they get
- 2 that c . bully page numbered docunient that there is some
. I- ,ing r .kal page 70 and 71, just the bracketing. Just
' 'ords which are my own and not -- they do not 24 t 25 .pl ,
you in Staff Exhibit 2.
( t i
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BORES, LAZARUS - DIRECT 11909 1 BY MR. TURK :
2 Q Dr. Bores. I 've asked you to turn to the third 3 paragraph of the first page of this Attachment 15?
4 A (Bores) I have it.
5 Q And that 's the paragraph which reads: "The current 6 FEMA position is largely based upon the FEMA and Regional 7 Assistance Committee. RAC reviews which were previously
. 8 provided to you. A portion of the current FEMA position 9 dealing with the beach population is based on a thorough 10 analysis by FEMA and the RAC." close quote. The paragraph goes 11 on, but I 'd like to address nay comments to that particular 12 segment of the document.
13 In your opinion, does the FEMA position on the beach 14 shelter contentioris, which we discussed a few minutes ago, in 15 your mind, does that 7:e f lect the position of tne RAC as of 16 April or even June of 1987?
17 A (Bores) It could not reflect the position of the RAC 18 since the RAC had previously found the plans were adequate at 19 the April 15th meeting. We had not had a subsequent maeting on 20 this issue until July 30th. And to my knowledge. I don 't
?i have -- let me back on t~1st. I was not contacted, let 's say.
- 2. relative to FEMA in terms of developing a separate position.
23 and to my P.nowledge none of the other RAC members had either.
24 Q Also. I 'd ask you to turn to the second page of this 25 document, in the first full -- first paragraph on that page O
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r BORES, LAZARUS - DIRECT 11910 i
V 1 which begins, "In addition," approximately nine lines down 2 thare 's a sentence which I'll read as follows, quote: "The 3 availability of shelter as an option in the more fast breaking 4 scenarios is conaidered to mitigate the need for some hard time 5 obj ective for evacuation. However, in this case the sheltering 6 option is also clouded or the absence of sheltering for what is 7 even in the more favorable estimates amongst several thousand 8 individuals in the absence of apparently effective shelter for 9 many others.
10 Thus, the information provided or, evacuation and 11 sheltering compound ed one another in a manner of individuals 12 that might be involved. I might add that these numbers es 13 apparently hold, not simply for the worse case accident, but G) for a number of lesser scenarios," close quote.
14 15 Do you see that statement?
16 A (Bores) Yes, I do.
17 Q Do you believe th;t that statement reflects the f 18 position of the RAC as it had been expressed prior to the 1
19 issuance of this letter? -
20 A (Bores) It does not. ,
t 21 Q And I notice on the right hand margin of that same
{
l 22 paragraph somebody has written in the word "No" with two l ,
23 exclamation marks, whose writing is that?
I I 24 A (Bores) That 's mine. If I might add, I put that in 25 before it was enclosed as an attachment, and since I didn't Heritage Reporting Corporation .
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E BORES, LAZARUS - DIRECT 11911-1 have a clean one that 's the way it came in.
-O 2 Q Did you make that note when you read this letter, the 3 first time you had seen it?
4 A (Bores) Yes.
5 Q That was your immediate response to reading that 6 paragraph?
7 A (Bores) Yes. If I might note here, at the April 8 15th RAC meeting very little was discussed relative to 9 _ sheltering, because sheltering, when we read the plan, was 10 simply not conuide red as a maj or option in the summer for the 11 beaches.
12 Q I 'm sorry, I missed that last statement, could you 13 say it once more?
'()
~
14 A (Bores) What I said was, at the April 1Sth RAC 15 meeting sheltering was not given n lot of consideration in i 16 terms of reaching that agreement that the protection for the
! 17 beach population was adequate, because sheltering, as we .
10 understood it, in the exiscing New Hampshire plan had been 19 indicated as not being very feasible for a large summertime i
20 population on the beaches.
gp 21 Q Why is that or what was expressed in that respect at 22 the RAC meeting?
I 23 A (Bores) I said wry little was expressed at this ;
24 particular RAC meeting because it had been accepted generally by the RAC members. We had gone through this on several 25
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BORES, LAZARUS - DIRECT 11912 O
\m/ 1 occasions relative to the beaches and the efficacy, if you 2 would, of sheltering versus evacuation for such populations.
3 Q What is the next event that occurred in the evolution 4 of the beach shelter position, to your recollection?
5 MR. TURK: Oh, before getting to that question, let 6 me note, Your Honor, that this same Attachment number 15 7 consists of three pages, my global page is 70, 71 and 72, and 8 continues on with an attachnent which is numbered global 73 and 9 74. And let me direct a question to Dr. Bores about those 10 pages, if I may.
11 BY MR. TURK:
12 Q Dr. Bores, am I right that these two pages which are
- 13 attached -- okay.
14 JUDGE SMITH: Can we have --
15 MR. TURK: Attachment 15 consists of a three page 16 letter from Mr. Thomas to Mr. Strome.
17 JUDGE SMITH: Yes, I have that.
18 MR. TURK: With an attachment consisting of two 19 pages.
20 JUDGE SMITH: Oh, I see. All right. The attachment 21 has an attachment.
l 22 MR. TURK ~ Yes. And those latter two pages are
, 23 global pages 73 and 74. Let me just ask if Dr. Bores l
24 recognizes those two pages.
! 25 Heritage Reporting Corporat ion (202) 628-4868
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r BORES, LAZARUS - DIRECT 11913 Og
\> 1 BY MR. TURK:
2 Q They begin with, in the left hand corner, with the 3 words. "NECNP contention RERP-8?"
4 A (Bores) I see that.
5 Q What are these two pages?
6 A (Bores) These two pages. ':a 4 1. are FEMA response to 7 Revis ed Town of H:impton Contention VIII to Revision 2 of the 8 New llampshire RERP for Seabrook, SAPL Contention 16 and NECNP 9 Contention, RERP-8.
10 Q And are these in fact the same two pages which we 11 discussed earlier being the FEMA position on beach shelter 12 contentions of June 4, 1987?
13 A (Bores) Yes.
14 kR. TURK: ,I think counsel can stipulate to that.
15 BY MR. TURK :
16 Q And also, on this same document I notice again some 17 handwriting, that 's global page 74, that 's the last page of 18 this attachment; can you tell us whose handwriting that is?
19 A (Bores) That 's my handwriting.
20 Q And that 's the handwriting which reads on the lef t 21 hand margin, quote: "What basis," question mark, "Not 22 considered by RAC or NH RERP," close quote. What 's that 23 nandwritten comment refer to, do you recall?
4 24 A (Bores) I Just want to read the paragraph first.
25 Q Sure.
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BORES, LAZARUS - DIRECT 11915 lh57 1 THE WITNESS: (Bores) Okay. It goes back to again 2 what I had just related before, I believe, that we did not 3 spend much time looking at sheltering because we did not 4 belie /e sheltering was a feasible or practical way to treat the 5 summer beach populations in most instance.
6 BY MR. TURK :
7 Q And when you say we, again you refer to the RAC?
8 A (Bores) I 'm ref erring to the RAC.
9 In fact, I believe some of the earlier plans did have 10 a heavier reliance on sheltering, and that was later removed.
11 I think the RAC felt better about it.
12 Q When you refer to earlier plans, you mean the --
c 13 A (Bores) The draft, or the plans submitted for 14 technical review.
15 Q What time frame?
16 A (Bores) '82 to about '84, I believe they were, time 17 frame.
18 Q And those plans, you say, did include --
l 19 A (Bores) There was more of an indication there 20 relative to sheltering.
21 Q Had those earlier drafts of the New Hampshire plans 22 relied to some extent on sheltering the beach population?
23 A (Bores) They discussed it as though they would rely 24 nore on it. There were no provis.ons for essentially 25 sheltering the beach population.
/ \
N_ ]
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BORES. LAZARUS - DIRECT 11916 i MS. WEISS: Can we have a point of clarification?
2 What plans are you talking about? What dates?
3 MR. TURK: Yes. Dr. Bores indicated that these are 4 the earlier drafts in the 1982 to 1984?
5 THE WITNESS: CBores) These were plans submitted by 6 the State of New Hampshire to FEMA for technical review. They 7 were not submitted as part of a formal submission by the state.
8 BY MR. TURK:
9 Q And what 's the time f rame again?
10 A (Bores) The earlier one is probably 1982. The 11 second version, my guess is approximately 1984.
12 Q Did FEMA or the RAC ever provide technical assistance 13 comments?
14 A (Bores) Yes, we did.
15 Q With respect to those earlier versions?
16 A (Bores) Yes.
17 Q Do you recall what the comments were with respect to 18 the sheltering provisior.s?
19 A (Bores) I could relate a general sense, but I can 't 20 give you the specific wording.
21 Q What was the general sense?
22 A (Bores) The general sense is either you have to come 23 forward with, you know, more solid provisions if you are going 24 to sheltering. Otherwise, yuu know, you can 't really rely on 25 it at all. And if you 're not going to rely on it at all, fine.
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BORES. LAZARUS - DIRECT 11917 1 Then provide the justification or explain why you wouldn't use I 2 it. .
3 Q And that 's in the 1982 to 1984 time f rame?
4 A (Bores) Yes. !
5 Q All right.
6 JUDGE SMITH: Did you establish when that notation 7 was put in the margin?
8 MR. TURK : Not yet.
9 BY MR. TURK:
10 Q Could you tell us when these handwritten notes were i
11 placed on the last page of Attachment 15. global 74?
12 A (Bores) This was put on when I first saw the 13 memoranda, or the letter from Mr. Thomas.
14 Q They represent your immediate reaction to the --
I 15 A (Bores) Yes.
16 Q --
letter as you read it?
17 Would this in fact possibly have been your first l
i 18 reading -- would these notes reflect in fact your first reading 19 of the FEMA position on the beach shelter contentions of June 20 1987?
21 A (Bores) I can 't say it 's the first reading, but it L
22 certainly is one of the very early ones.
23 Q In approximately June of 1987.
24 A (Bores) Yes.
25 Q Did there come a time in the summer of 1987 that the
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BORES, LAZARUS - DIRECT 11918
) 1 beach shelter issues were discussed by the RAC?
2 A (Bores) Yes.
3 Q Could you tell us -- was that in a meeting? l 4 A (Bores) This was at a meeting, and the meeting was l S on July 30, 1987.
6 Q July 30th?
7 A (Bores) Yes.
8 Q Did you attend that meeting?
9 A (Bores) I did.
10 Q And Mr. Lazarus, did you attend that meeting?
11 A (Lazarus) I did.
12 Q Dr. Bores. can you describe for us what transpired at 13 that meeting?
O 14 A (Bores) Well, there were a number of items that were 15 on the agenda. As a matter of fact, a large number of items 16 that were on the agenda. And perhaps it 's easier to take a 17 look at some of the items that were on Atta hment 17.
18 Q Could you -- all right, now that we 're talking about 19 that let 's for a minute ta:te a look at Attachment 16 and then 20 Attachment 17 to NRC Staff Exhibit No. 2 I
! 21 Can you identify those two documents?
22 A (Bores) Okay. Attachment 16 was sent to the RAC 23 providing a number of areas here for comments and work that 24 needed to be discussed with the RAC. and provided the meeting i
25 date for the upcoming meeting. It included a preliminary -- on O Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11919
, 1 the first page -- a preliminary agenda, if you will.
2 Q I 'm sorry, on the first page?
3 A (Bores) On Attachment 16. I 'm sorry. It provided a 4 preliminary agenda for that RAC meeting.
5 Q I note that in that same document. Attachment 16 to 6 Staff Exhibit 2. there is an indication that reads, "Please 7 plan on attending a RAC meeting here at 10 a.m. on July 30, 8 1987, to discuss the following", and it goes on to list three 9 items which include -- there 's the bullet No. B which reads, "A 10 revised RAC position on the Seabrook beach memorandum as a 11 result of the change in NRC 's position. "
12 Now, is it fair to say that this is the document 13 which informed the RAC mernbers that there would be a meeting to
.) 14 discuss --
15 A CBores) That is correct.
16 Q -- the beach population issues for Seabrook?
17 A (Bores) Yes.
18 Q All right. And it is from Mr. Thomas to the RAC; is 19 that correct?
20 A (Bores) That is correct.
21 Q All right. Now, can you identify Attachment 17?
22 A (Bores) Attachment 17 was the agenda provided at the 23 RAC meeting for discussion.
24 Q That 's -- all right.
25 It was distributed at the meeting?
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BORES, LAZARUS - DIRECT 11920 1 A (Bores) That is correct.
2 Q And I notice there are quite a few handwritten notes 3 on this page, Attachment 17.
4 Whose handwritird is that?
5 A (Bores) That 's my handwriting.
6 This handwriting occurred during the course of the 7 meeting to jot down some things for future reference, or how 8 they were handled, or further action.
9 Q Were all the handwritten notes on this page written 10 at the RAC meeting on July 30th?
11 A (Bores) All of the handwritten comments were made at 12 the RAC meeting with the following exception.
13 On the lower right-hand corner there is a listing of 14 some agencies, but to the immediate left of that, it says.
15 "Positions noted by statements at the meeting," and then under 16 that the initials RJB. I put that on some time later.
17 Q Did you put that on when you were preparing the 18 document for transmission to me in October?
19 A (Bores) That 's correct.
20 Q What about the statements immediately to the right of 21 this October entry, the ones which indicate a tabular list of 22 FEMA, RAC, DOE, EPA, HHS, and DOA. when were those handwritten 23 remarks and what is the right of them entered into the 24 document?
25 A. (Bores) Those were put on during the RAC meeting.
(
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BORES. LAZARUS - DIRECT 11921 ss 1 Q What about the pluses and minuses and the question 2 marko in that same lower right-hand corner?
3 A (Bores) They were also entered at the time of the 4 RAC meeting.
5 MR. TURK: Your Honor, is this a good time to take a 6 break, or do you want to go further?
7 JUDGE SMITH: It 's up to you.
8 MR. TURK: I 'd appreciate five minutes.
9 JUDGE SMITH: All right. Let 's take our break until 10 2:30.
11 (Whereupon, a recess was taken.)
E57 12 (Continued on next page.)
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BORES. LAZARUS - DIRECT 11922
.q k-// 58 1 JUDGE SMITH: Are you read,v. Mr. Turk?
2 MR. TURK: Yes, sir.
3 BY MR. TURK:
4 Q Gentlemen, we left off just before the break, we had 5 reached the July 30th, 1987 RAC meeting.
6 A nd. Dr. Bores. I 'd like to ask you at this time to 7 describe for us, first of all. -- well, let me strike that.
8 Dr. Bores. Attachment 17 does provide a number of different 9 items for discussion at the July 30th RAC meeting, and I 'd like 10 to ask you, first of all, to describe briefly the types of 11 issues that were' discussed at the RAC meeting without focusing 12 yet on the beach issue?
13 A (Bores) The issues that were discussed or perhaps 14 not even in some instances issues per se. but status on various 1S items, upcoming work loads, things that had been worked on and 16 still needed additional work; and then trying to proj ect ahead 17 where RAC needed to be or would be much more involved in terms 18 of the work load, fer example, in roman number II. coming work 19 load.
20 So, these items had been gone through primarily to 21 update the RAC as to what would yet be coming for them to 22 handle.
23 Q And these matters included things other than 24 Seabrook?
25 A r. Bores) They did include matters other than
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BORES, LAZARUS - DIRECT 11923 1 Seabrook. For example, the FEMA 350 process for Vermont, New ,
4 2 Hampshire. Maine. They required annual letters of 3 certification from the states on the emergency plans. Status 4 of review, for example, on previous plans which had been 5 submitted to RAC for review and were in some status of 6 completion or going back for comment or information to the 7 states for additional information.
8 Q Approximately what time did the meeting commence?
9 A (Bores) The meeting began, as I recall, shortly 10 af ter 10 o ' clock.
11 Q And approximately what time did it conclude?
)
12 A (Bores) My best recollection is that the meeting 13 concluded on the order of about 2:30 p.m.
14 Q Is that -- Mr. Lazarus, can you give us your opinion 15 of the starting and ending times of the meeting, approximat ely ? l
?
16 A (Lazarus) They coincided very closely. I know it 17 was shortly after 2:00 p.m., around 2:30 when it concluded.
18 And based on our flight time up there and arrival at the 19 office, it started some time after 10:00 a.m. in the morning.
20 Q At what point in the meeting -- I 'm sorry.
21 JUDGE LINENDERGER: I 'm sorry, Mr. Turk, but I should c t
22 like to ask for a clarification here. We 're talking about this [
t 23 Attachment 17 agenda and I 'm j ust -- i t 's not clear in my mind 24 how this agenda docunent would typically come into existence.
4 25 Could you -- do you know an answer - can you explain [
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BORES. LAZARUS - DIRECT 11924 1 that. Dr. Bores?
2 THE WITNESS: (Bores) Yes. FEMA prepared this. FEMA 3 Region i prepared this as an agenda for the convenience of the 4 RAC members when they got to the meeting.
5 JUDGE LINENBERGER: Thank you.
6 MR. TURK 2 Thank you.
7 THE WITNESS: CBores) Talking poir.ts, if you will.
8 BY MR. TURK:
9 Q Dr. Bores, approximately what time did the discussion 10 of the Seabrook beach issues commence, if you recall?
11 A (Bores) My estimate would be that the commencement 12 of the Seabrook beach issues began approximately 11 o ' clock.
13 Q And how long did they continue?
14 A (Bores) Well, we generally take a break somewhere 15 around the lunch period.
16 Can I have a second for conference on this?
17 Q Sure.
18 (Witnesses conferring) 19 THE WITNESS: Clazarus) Mr. Bores just asked me if I 20 remember breaking for lunch. I don't recall whether we broke 21 for lunch or whether -- the exact time of the discussion on --
22 the issues on the beach population started.
23 THE WITNESS: CBores) Reflecting back on it. I can 't 24 remember taking a lunch break either, so we -- we have on some 25 of these occasions worked straight through. And I. at this O
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Or BORES. LAZARUS - DIRECT 11925 1 point. feel we did work straight through from 11:00 till O 2 approximately 2:30 or thereabouts.
3 MR. TURK: I note that this is May, the meeting was l
4 last July.
5 BY MR. TURK:
6 Q Did the discussion of the Seabrook beaches consume ;
7 the rest of the day 's discussions until the meeting adjourned?
8 A (Bores) Yes, they did.
9 Q Dr. Bores, could you describe for us the or recount 10 for us, to the best of your recollection, the discussions at ,
11 this RAC meeting concerning the Seabrook beach issues?
12 A (Bores) When we got to the Seabrook beach issues Mr. l 13 Thomas introduced the issues along with an explanation for the 14 filing that FEMA had made relative to the contentions that were
(])
15 being litigated in this case, with the FEMA position that was 16 expressed in the response to those contentions.
17 He apologized to the RAC for not getting them 18 involved with the response, but indicated that there simply was l 19 not time after my position paper had withdrawn the containment 20 risk aspects of it. So that FEMA had to go ahead and decide. ;
3 i
21 without benefit of the RAC. and thought it would be appropriate
- 22 to bring it now to the RAC nttention and to. I guess, reach a i 23 closure again on those issues. ,
l 24 Q Now, when you say, he indicated there was not enough ;
i 25 time after the withdrawal of your paper, could you elaborate on t r
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I BORES, LAZARUS - DIRECT 11926 1 that a little bit? Thera V:;n ' t enough time ' etween what event 2 and what event?
3 A (Bores) Okay. There wasn 't enough time between the 4 time I sent the June 4th -- hold on a second, let me make sure S I get the dates right.
6 MS. WEISS: Does the question go to what Mr. Thomas 7 said?
8 MR. TURK: Yes.
9 MS. WEISS: You 're asking what Thomas said.
10 THE WITNESS: (Bores) My June 4th letter to Mr.
11 Thomas, and the time which FEMA had to get their response in on 12 the contentions, to have a RAC meeting simply was not enough 13 time. So therefore, FEMA mtde a decision relative to the 14 position and filed the contentions.
1S BY MR. TURK :
16 Q All right.
17 Now, can you relate for us what next transpired in 18 the meeting, as you recall?
19 A (Bores) What next transpired was that, I again 20 reiterated the position that I had, that the paper that we had 21 before us, the June 4th letter and enclosure, was essentially 22 the same letter. the same plan that we were talking about; 23 nothing was added. And only those elements which related to 24 probability were withdrawn.
25 So we had the same issue before us as we did before.
(
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BORES, LAZARUS - DIRECT 11927 1 And the conclusion before was that the plans were adequate; and 2 therefore, withdrawing the probability aspects of it didn 't 3 change that finding. And therefore, we should still find that 4 the plans are adequate.
i 5 Q All right. Was there any discussion at the meeting 6 about those containment or plant specific features?
7 A (Bores) Yes. Mr. Thomas, certainly, indicated that 8 he had relied very heavily on the earlier letter of mine where i I had indicated that these features reduced the probability of 9
10 having that severe-type accident, saying in effect that, you 11 know, he wasn 't really looking at the plan per se, but had read -
12 that to mean that when you read the paper with the containment r~s 13 thing that satisfied him.
\_] Now, that I 've withdrawn the containment portion, i
14 15 that he could not and did not feel that the plans were 16 adequate.
17 In addition, you know, there were other comments by 18 various RAC members relative to containment issues. One of 19 them I cited in my memo to you, Mr. Lutz, for example.
20 Q I 'm sorry, what 's that reference?
21 A (Bores) This is page three of my memoranda to you, I 1
22 believe it 's marked Staf f Exhibit No. 2. It 's page three of 23 the enclosure. I 'm not sure -- r guess it 's --
24 Q Global four, global page four. Is that the page with 25 paragraph number nine? 7 i
( r Heritage Reporting Corporation l C202) 628-4888 {
l BORES. LAZARUS - DIRECT 11928 1 A (Bores) That is correct.
2 Q Is that the paragraph you 're referring to?
3 A (Bores) Yes.
4 Q All right.
S A (Borca) Mr. Lutz did allude to the fact that, in 6 fact, whether or not it was stated in the paper the containment 7 was there, and couldn't really be ignored in the back of your 8 mind.
9 I don 't remember anything else by any of the other 10 RAC members sper.ifically that related to the containment per 11 se, of the containment features per se other than the position 12 that I had related that in fact it wasn't necessary to come to 13 the finding of adequacy.
14 Q Did Mr. -- all right, strike that. Can you tell us 15 whether in the course of that meeting, the various RAC members 16 expressed their views with respect to the adequacy of the New 17 Hampshire plans as they pertained to the beach population?
18 A (Bores) Of all the RAC members there I think all of 19 them expressed -- there was a lot of discussion among the RAC 20 members. All of them. I think, made statements indicating the 21 adequacy of the plan with the exception of FEMA and the 22 representative from the Department of Energy. The Department 23 of Energy -- I 'm sorry, the Department of Agriculture.
24 Q Who was the representative for the Department of 25 Agriculture?
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BORES. LAZARUS - DIRECT 11929
[D v 1 A (Bores) That 's Ms. Nevitt.
2 Q All right. And what did Ms. Nevitt say, if anything?
3 Did she express any comments that you recall?
4 A (Bore;) I 'm not aware of any comments that she made.
5 Q All right.
6 A (Bores) Nothing that I can recall.
7 Q Let me turn for a moment to Attachment 17. and on 8 this document we had previously discussed the listing of 9 different individuals in agencies, plus or minus signs. Can 10 you tell us what these entries on this paper represent and when 11 the entries were made in particular? This is the lower right 12 hand corner of Attachment 17 global page 76.
13 A (Bores) These entries were made during the course of 14 the discussion that afternoon. And they were made by me in the 15 course of that discussion relative to statements indicated by 16 individual RAC members as to their position relative to the
! 17 adequacy of the Seabrook beach issues as we saw them at that j 18 time.
19 Q Let 's look at the first or.e entered there which reads 20 FEMA, and then to the right of that there 's an entry; could you 21 tell us what those entries are and what they mean?
22 A (Bores) Next to FEMA there is a negative.
23 Q A minus sign?
24 A (Bores) A minus sign. I guess there 's a question 25 mark there as to whether or not that minus would change as a O
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BORES. LAZARUS - DIRECT 11930 $
1 result of the meeting. Negative meant that they did not feel t
2 the plans, as they existed, based on the statements that they >
3 had made, were adequate. Therefore. negative meant reasonable 4 assurance could not be found. ,
5 Q And this is based upon statements --
6 A (Bores) Statements made during the meeting, yes. -
7 Q By whom?
8 A (Bores) By the FEMA representative, and at this v 9 meeting the principal representative, the one who is 10 essentially espousing the position was Mr. Thomas. [
11 Q All right. And essentially, have you already l 12 captured for us Mr. Thones ' remarks with respect to adequacy of .
I 13 the plans for beach populations?
14 A (Bores) That 's correct.
t 15 Q Is there anything you wish to add to that in terms of j 16 e.cpressions of positions he made? j 17 A CBores) Mr. Thomas'?
18 Q Yes? .;
19 A (Bores) Well, Mr. -- )
j 20 Q Anything in particular that cones to mind?
i
! 21 A (Bores) Mr. Thomas at this point introduced _the 22 subj ect of. I guess, sheltering again for the entire beach !
23 population, which, as I had indicated earlier, was not a I 24 subj ect of the April meetings. RAC had not be'q looking for {
t f
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BORES, LAZARUS - DIRECT 11931 1 population in April or in previous meetings on this.
2 Sheltering, since it was part of the FEMA response.
3 then became a source of continued discussion among the RAC 4 members in general.
S Q Let me see if I understand you. Are you saying that 6 Mr. Thones advocated the position whereby the RAC would find it 7 necessary that there be shelter for the beach populations? Or 8 if I 've mischaracterized that, please let me know. I 'm trying 9 to understand the gist of his comments?
10 A (Bores) I 'm not sure that he had indicated that RAC 11 needed to find it necessary to have shelter, but in fact he 12 made it clear that it was, in his words. FEMA 's position that 13 shelter was required for the peak summer populations on the 14 beach.
15 Q And did he indicate whether or not he felt such 16 shelter existed?
17 A (Bores) Relative to the existence of that shelter he 18 did not allude to the fact that he knew that such shelter did 19 or did not exist in quantities sufficient to take care of the 20 beach population. He was aware of the Stone & Webster study.
21 at least -- I guess the initial one was done.
22 It did not become a source from which we looked at 23 it. looked at the availability of shelters per se.
24 Q And did he provide reasons why he believed that 25 shelter should be required?
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BORES. LAZARUS - DIRECT 11932 1 A (Bores) He felt -- again, he goes back to the one 2 type of scenario, the fast breaking accident, severe release 3 situation, summer weekend, mid-afternoon, the beach, you know, 4 jammed with people, and in fact, you have traffic jams and 5 people are out potentially exposed to the plume, so there are 6 levels of radiation for extended periods of time. And he felt 7 that in this situation sheltering needed to be available for 8 the peak summer population.
9 And without such provisions in the plan, the plans 10 were inadequate.
11 Q All right. Now, does that pretty much conclude your 12 statement about Mr. Thomas ' position or is there anything else 13 that comes to mind that you haven't already mentioned?
14 A (Bores) It may come to mind as we 're talking about 15 some of the others.
16 Q All right. The next entry underneath the entry for 17 FEMA on Attachment 17 reads, "RAC " and next to that "Paul 18 Lutn " L-U-T-Z?
19 A (Bores) Yes.
20 Q What -- could you describe that entry or am I making 21 a mistake in my understanding of that?
22 A (Bores) I 'm not sure why I put RAC there. R-A-C.
23 Paul Lutz is the member from the Department of Energy.
et/58 24 (Continued on next page.)
25 Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11933 59 1 Department of Transportation. I 'm sorry. Just as 2 much trouble with my mouth today.
3 Q And next to Mr. Lutz 's name appears something. What 4 is that?
5 A (Bores) That 's a plus sign.
6 Q And that represents?
7 A (Bores) That represents statements that his position 8 supported a finding of adequacy for the beach population.
9 Q In other words, he made some statements which 10 indicated he supported a finding of adequacy?
11 A (Bores) That 's correct.
12 Q Can you recall what Mr. Lutz said?
13 A (Bores) Mr. Lutz had discussed several times during O 14 the course of the afternoon his belief that the plans that we 15 had looked at were perhaps the best plans that he had seen. He 16 had looked at the resources. He had looked at the beaches. He 17 felt with the precautionary measures that everything was there 18 that needed to be there, and in fact he said, you know, we have 19 done our job. The plans are adequate.
20 MR. TURK : As an aside. I'll note that one nice thing 21 about doing direct examination is you can take all the time you 22 need to complete your notes.
23 THE WITNESS: (Bores) That does not happen sometimes 24 at other meetings.
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BORES. LAZARUS - DIRECT 11934
('
1 BY MR. TURK:
2 Q Do you recall anything else in particular stated by 3 Mr. Lut ?
4 We 've already discussed his comment about l 5 containment.
6 A (Bores) Yes. After Mr. Thomas had indicated what 7 the FEMA position was relative to sheltering for the beach 8 population. Mr. Lutz said, you have a problem, indicating that 9 FEMA has taken a position different than what RAC had. And 10 then he followed it with a statement that we have a problem, 11 and we need to get together d resolve it.
12 MS. WEISS: Your Honor. I 'm going to move to strike.
i 13 Unless I have misunderstood, the witness has said Mr. Lutz 14 said, you have a problem. ,
15 JUDGE SMITH: Referring to something else.
16 MS. WEISS: Yes, indicating that RAC disagreed with 17 Mr. Thocas.
18 Now if Mr. Lut: said, you have a problem because you ;
19 disagree. Mr. Thomas, with the RAC, that 's fine. But I think 20 his interpretation of that ought to be separated from what Mr. ,
21 Lut= said.
?
22 MR. TUkK: Now let me -- Your Honor. let me see if I 23 can ask the witness. and I note that the comment does appear 24 L-fore us also in Staff Exhibit 2. Paragraph 9. global Page 4, 25 MS , WEISS: The comment without the elaboration f
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BORES. LAZARUS - DIRECT 11935 1 appears.
2 MR. TURK: Let me see. Your Honor, if I might. I 'll 3 ask Dr. Bores to clarify that.
. 4 BY MR. TURK:
5 Q Dr. Bores, do you recall if Mr. Lut= stated at the 6 meeting, with regard to his comments to Mr. Thomas, that "You 7 have a problem"?
8 Do you recall if he stated that the~ problem related 9 to FEMA taking a position dif ferent f rom the RAC?
i 10 A (Bores) It was in that context. Now, he did not ,
il restate the problem per se. but this is what we were 12 discussing. It is in that context.
13 Q All right. Do you reca*1 anything further about Mr.
14 Lutz?
- 15 A (Bores) Mr. Lutz had indicated that he had made a t 16 number of trips up the beach areas over the course of the year ,
17 since he is a member of the Department of Transportation. And
- 18 he felt that the numbers of people on the beaches, as expressed t
19 in some of the documents that RAC had before, were very high 20 compared to his actual observations at the times he was there. :
1 4 21 Q All right. The next entry after Mr. Lut: reads. DOE.
$ 22 Could you explain that entry to us?
23 It in again Attachment 17. j s
24 A CBores) The Department of Energy member is Mr. Herb i
25 Fish. ;
. (
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l BORES, LAZARUS - DIRECT 11936 I
1 Q And there is something to the right of his name.
2 A (Bores) Okay.
3 Q What is that?
4 A (Bores) That 's a plus sign.
5 Q And, again, does that represent something about the 6 statements he made? ,
7 A (Bores) Yes, it represents that he made statements 8 indicating that his position supported a continued finding of a 9 reasonable assurance, or at least that the beach population 10 could be adequately protected under the -- with the current 11 plan provisions.
12 Q Do you recall anything in particular beyond this with 13 respect to Mr. Fish 's comments? ,
14 A (Bores) I would not care to contribute to any 15 specific statements to Mr. Fish at this tine, because it 's a 16 long time ago. But the statements that he had made were 17 generally supportive of statements that had been made, or 18 restatements of what others on the RAC had nade indicating ,
i 19 their continued belief that the plans were adequate.
20 Q And the entry of a plus next to Mr. Fish 's name, does ;
21 that indicate that during the course of the meeting it was l
r 22 clear to you that Mr. Fish supported a finding of adequacy for 1
23 beach population? l 24 A (Bores) That is correct.
25 Q All right, the next entry, could you read that one e l (
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BORES, LAZARUS - DIRECT 11937 (j -
1 for us? Again. Attachment 17.
2 A (Bores) The next entry says. EPA -- that 's 3 Environmental Protection Agency -- Byron Keene who was the 4 representative, and there is a plus statement following that.
5 Again, indicating that his position as expressed at the meeting 6 indicated his support for the position that the beach 7 population would be adequately protected with the current 8 plans.
9 Q Do you recall anything in particular about his 10 comments?
11 A (Bores) Mr. Keene had discussed a number of areas.
12 One was a situation. I think raised by Mr. Thomas again, 13 talking about these people that Mr. Thomas says are going to be O 14 trapped for hours and hours in the plume. Mr. Keene indicated 15 that he felt that it would be much better for people to stay in 16 line, to get out of the area than to try and go back or be 17 housed somewhere and perhaps be in a situation where the plume 18 might be over you much longer.
19 In that context, you know, we talked about the length 20 of time of plume might be over a given area, assuming it was 21 goin3 to the beach population; time it might take even if you 22 are in a long line of cars waiting to get off, that the plurae 23 may not stay overhead, if it is overhead at all very long; you 24 can traverse through the plume. These things considered, it 25 still would be preferable to get off of the beach rather than l }
Heritage Reporting Corporation (202) 628-4800
BORES. LAZARUS - DIRECT 11938 !
l 1 to stay there, 2 Q And this is a representative from the Environmental !
3 Protection Agency?
4 A (Bores) That is correct. >
5 Q Do you recall anything further about. Mr. Keene's ,
6 comments?
7 A (Bores) Yes, we also got into a discussion raised by 8 another RAC member relative to the EPA PAGs. and an 9 interpretation of the protective action guides. And he !
10 provided clarification on what was meant by the protective 11 action guides; that they are --
12 Q Could you tell us what he stated in that regard?
13 A CBores) Basically he related the use of the EPA PAGs 14 were to -- PAGs are protective action guides, and their use is 15 primarily to assist decisionmakers in determining whether to 16 take a particular type of protective action, or protective 17 action raay not be necessary, but is sort of a trigger point.
18 rather than a point at which radiation is safe, unsafe, or in 19 f act a level at which the adequacy of plans can be judged 20 adequate or inadequate.
21 JUDGE LINENBERGER: Excuse me, Mr. Turk. but I should 22 like to inquire of Dr. Bores.
23 Your most recent statement involving PAGs. is this i
- 74 your characterization of them, or do you represent + hat this is 25 a characterization of them discussed by Mr. Keene at the C)
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BORES, LAZARUS - DIRECT 11939 i
O' 1 meeting? '
i' 2 THE WITNESS: (Bores) It 's a representation that Mr.
3 Keene had discussed this. It doesn't mean that Mr. Keene was 4 the only one who discussed this interpretation. I, for 5 example, share that interpretation.
6 BY MR. TURK:
7 Q But this was an interpretation offered expressly by 8 Mr. Keene?
9 A (Bores) Yes, it was.
10 Q Now let me see if I understand that, however, with 11 one question.
12 When you say that the PAGs were not a basis, or when 13 you relate that Mr. Keene indicated that PAGs are not a basis 14 upon which to find plan adequacy, what did he say in that i
15 regard? ,
r iu Do you recall anything further?
17 A (Bores) Perhaps I ought to put it in the context.
18 The issue was raised by Mr. Church, who is the member from 19 Health & Human Services, or FDA more specifically. ,
20 Q Now one clarification. FDA is Food and Drug l 21 Administration? .
i 22 A (Bores) That is correct.
23 Q And thet 's a part of Health & Human Services. l 1
24 A (Bores) Health & Human Services, yes. ,
25 Q All right.
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t BORES. LAZARUS - DIRECT 11940 (
1 A (Bores) Mr. Church had raised, or made a comment O 2 that indicated somethind to the effect that, you know, safety 3 is judged by whether or not doses could exceed the EPA j 4 protective action guides.
?
5 And Mr. Keene then provided the clarification as to 6 what these protective action guides were, and how they were 7 used, and clearly were not to be utilized as a level by which 8 one would j udge the adequacy of plans. ;
9 That is. if you have a plan designed so that for any 10 accident that you can imagine you can keep the exposures below 11 the level of the protective action guide, the plan is adequate.
So he explained that !
12 And if you can 't, it is not adequate.
13 that was not ine purpose rf the protective action guides. It i i
was a guide for a decisionmaker. basically to nake -- help him
() 14 determine at what level protective action should be taken.
15 16 Q Did he indicate anything along the line that really ;
i because you could postulate an uccident exceeding the PAGs.
17 18 that that either would or would not require a finding of plan 19 adequacy?
20 Did he say something along that line?
21 A CBores) Okay.
22 MS. WEISS: Your Honor, this is mostly leading, and 23 it 's also get ting well into the merits of the issues of the 24 case, and I think beyond any reasonable discussion of the RAC 25 mee t i ng.
() Heritage Reporting Corporation (202) 628-4688
P BORES. LAZARUS - DIRECT 11941 1 MR. TURK: It is to a certain extent leading. Your 2 Honor. I recogni=e that. I 'm seeking to elicit recollection !
3 on this; actually clarification to make sure I under stand the ,
L 4 gist of what Dr. Bores has already related.
5 THE WITNESS: (Bores) I don't know to whom you were 6 referring with your last question.
7 JUDGE SMITH: Well, there 's an obj ection.
[
8 THE WITNESS: (Bores) Oh, I 'm sorry.
s MR. TURK: Let me see if I can rephrase it. Your P
10 Honor.
11 JUDGE SMITH: Okay.
12 BY MR. TURK:
13 Q You were indicating that Mr. Keene was clarifying the 14 meaning and use of the PAGs, and you further were discussing the relationship between the PAGs and emergency plan adequacy. !
15 16 Let me see if I can ask you one more time to tell me 17 what he said in that regard. l 18 A (Bores) He indicated that the protective action 19 guides could not be used to determine the adequacy of the "
20 plans. That is, whether or not you could keep exposures below 21 the levels of the PAGs should not be used to judge the adequacy 22 of plans. : hat was not their intended purpose. [
r 23 Q Did the RAC come to some sort of a common ;
24 undert tanding or agreement with Mr. Keene 's posit ion?
4 l
l 25 A (Bores) Yes.
(
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': 1 BORES. LA?.ARUS - DIRECT 11942 l -
N l (d i
i Q They agreed with him?
l 2 A (Bores) Yes.
3 Q Do you recall anything further about Mr. Keene 's 4 remarks at the meeting? ,
5 A (Bores) No specific statements, j 6 Q All right. The next entry on Attachment 17 is for 1
) 7 HHS. Could you describe that entry for us? !
8 A (Bores) Okay. That is Mr. Church, who was the l 9 representative for Health & Human Services. Food and Drug l
- 10 Administration. l' l
j 11 And on my copy there 's a mark there. j 1 12 MR. TURK: Your Honor. I do observe that the entry 1
( 13 next to this person's name is somewhat illegible.
14 JUDGE SMITH: Mine looks negative. i 15 MR. TURK: Don't reach that conclusion, Your Honor.
16 I do have the document which Dr. Bores transmitted to me before
, 17 all the additional photocopying was done.
18 May I have a moment?
j 19 CPause.)
i j E59 20 (Continued on next page.) I 21 f
22
- 23
j j
j 24 1
25 l O
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I-BORES. LAZARUS - DIRECT 11943 l "60 1 MR. TURK: Your Honor. I 've placed in f ront of Dr.
2 Bores a copy of Attachment 17, which is -- and the document 3 that I 've placed in f ront of him is the precise document as I 4 received it f rom Dr. Bores. It indicates in red ink the 5 comment which Dr. Bores previously indicuted had been added on 6 to the document when he transmitted this paper to me; that is.
7 a line that reads. "Positions noted by statements at meeting.
8 RJB." And I think it provides a bet ter copy, a more legible ,
9 copy of this same document. Attachment 17. than the parties and 10 Board have in front of them.
i 11 BY MR . TURK:
12 Q Dr. Bores, first, let me ask you if in fact this is 13 Attachment 17 to Staff Exhibit 2 as the attachment was
}
14 initially transmitted to me in October of 1987?
15 A (Bores) It is.
16 Q And are you able to read on that document what the l
17 entry says next to HHS?
) 18 A (Bores) Yes. it --
1 i
19 MR. BACKUS: Your Honor. I just wish to inquire.
20 Isn 't the original available? If there is some great 21 importance as to whether this is a plus or minus, can 't we have 22 the original?
l 23 MR. TURK: I will ask Dr. Bores --
i 24 MR. BACKUS: Does he have it? l 25 MR. TURK: He does not have it in New Hampshire.
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BORES, LAZARUS - DIRECT 11944 I
() 1 I'll ask him to see if he can find it when he goes back home 2 over the weekend. This is the best available copy we have in l 3 New Hampshire today.
4 BY MR. TURK: j 5 Q Dr. Bores, are you able to indicate to un what that !
6 entry is next to HHS? f 7 A (Bores) It is a plus symbol.
8 Q And is that plus symbol the entry you made during the 9 RAC meeting of July 1987? !
10 A (Bores) It is.
11 Q And what does that plus symbol represent? !
12 A CBores) The plus symbol represents my understanding i 13 of his position based on statements that he had made relative
() 14 to the adequacy of the New Hampshire plans to protect the beach l
15 population; the plus symbol indicating that he had made l 16 positive statements of his position; that is, that the plans :
l 17 were adequate.
l 18 JUDGE SMITH: Do you remember from your own memory r l
19 that that was positive, or are you just reading it from that 20 copy?
21 THE WITNESS: (Bores) No. it was positive.
22 JUDGE SMITH: From your own memory. ,
23 THE WITNESS: (Bores) That is correct. !
24 BY MR. TURK:
25 Q Dr. Bores, can you relate to us what Mr. Church said (
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i BORES. LAZARUS - DIRECT 11945 ;
1
- v. 1 about the adequacy of the New Hampshire plan for the beach 2 population, if you recall? I I
3 A (Bores) I can 't attribute any specific statements to i 4 Mr. Church in that regard other than the general sense that 5 they were supportive of what other RAC me'abers had said.
6 Like Mr. Fish's I had alluded to earlier, provided 7 more supportive statements than specific points that needed to be considered or should be considered as an advocacy position. !
8 9 Q You 're saying, in other words, that Mr. Church s
10 indicated support for other speakers' positions? ;
11 A (Bores) That is correct.
i 12 Q And when you refer to these other speakers, are you ;
i 13 including Mr. Thomas, or are you talking about the RAC members 14 other than Mr. Thomas?
6 15 A (Bores) I 'm talking about RAC members other than Mr. ;
s i 16 Thomas, and to statements of Mr. Lazarus. l 17 Q I 'm sorry?
18 A (Bores) And to statements of Mr. Lazarus, j
19 Q What do you mean?
20 A (Bores) Well, Mr. Lazarus was not a RAC member. P 2
21 Q In other words. Mr. Church indicated support for .
]
L
! 22 statements made by Mr. Lazarus? ;
1 23 A (Bores) Yes. ;
24 Q What is the last entry in this Attachment 177 ;
! 25 A (Bores) The last entry says. DOA. or Department of l i
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I BORES. LAZARUS - DIRECT 11946 l l5 1 Agriculture. Dorothy Nevitt. And following her name is a j 2 question mark.
t 3 Q What does that entry represent? j 4 A (Bores) As I had indicated earlier, there was fairly 1 f lively discussion among all of the members present with the 5
6 exception of Ms. Nevitt. She really didn't say much of ;
7 anything. And from her statements, therefore. I couldn 't draw I 8 any conclusion as to which -- which way she was leaning in this t i
9 regard. ;
i 10 Q So you entered a question mark as the meeting -- at 7 some time during the progression of that meeting; is that I 11 '
t 12 correct?
13 A (Bores) That's correct. ,
14 MR. OLESKEY: What was that last? Sometime during [
- 15 what? Could you repeat that? I missed it. (
E i 16 MR. TURK: Why don 't we have it reread for you.
17 JUDGE SMITH: Well, it 's a simple word. During the )
i, 8 progression of the meeting. !
. 19 MR. TURK: Yes.
j 20 MR. OLESKEY: I j ust didn 't get what it was during 1
{ 21 the progression of the meeting. Judge, c I 22 JUDGE SMITH: He marked -- the question mark was 23 placed -- l
, t 24 MR. OLESKEY: Ah, fine. j i 25 JUDGE SMITH: -- during the progression of the t
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I BORES. LAZARUS - DIRECT 11947 2 MR. OLESKEY: Tha nks.
3 BY MR. TURK:
4 Q Mr. Lazarus. I'm going to ask you a series of similar 5 questions.
6 MR. DIGNAN: Your Honor. Mr. Turk, before you 7 proceed, if I may be permitted.
8 In my copy, at least, there is a mark at about the 9 1:00 o ' clock direction f rom the minus question mark next to 10 FEMA. Is it just my copy that has that, or what is it?
11 MR. TURK : Could I see what --
12 JUDGE SMITH: I have it, too.
13 MR. TURK : Let me take out the original again. Your 14 Honor; at least the original in my possession as I received it.
15 JUDGE SMITH: Before you waste a lot of time. Dr.
16 Bores will say what it means.
17 MR. TURK : Let me show it to Dr. Bores.
18 JUDGE SMITH: He saw it. You j ust showed it to him.
19 MR. TURK : No.
20 THE WITNESS: (Bores) I wasn 't sure if it was the 21 same copy.
22 JUDGE SMITH: Okay.
23 MR. TURK: Your Honor, we will attempt to locate the 24 original.
25 MR. DIGNANt I guess all I wanted in the record was O Corporation Heritage Reporting (202) 628-4888
BORES. LAZARUS - DIRECT 11948 1 an acknowledgement, if it be so, that that 's not part of -- if 2 I ccn use the vernacular, the score sheet. In my copy it looks
-3 like another minus, and I just wanted to be sure it wasn 't part 4 of the score sheet. I 've seen the origina)..
5 MR. OLESKEY: We 'l l take it. j 6 MR. TURK: Let 's ask Dr. Bores what he can tell us
' 7 about that.
8 THE WITNESS: (Bores) Okay. The first thing I 9 indicated that it had no meaning for me, what I saw there. But 10 when I look at the copy that I had transmitted to Mr. Turk. it j i i 11 appears to be a circling of the entire grouping of markings l l
12 there; that is, including, you know, what I had marked for { '
FEMA. for Department of Transportation. DOE. EPA. HHS. and DOA.
13 l 14 Simply an enclosure looping.
15 BY MR. TURK :
1 16 Q Sort of a circle --
17 A (Bores) And what you see is --
l 18 Q A circle. This represents then the top edge of a 1
19 circle --
20 A (Bores) It 's the top edge --
21 Q -- you drew around the pluses or minuses. l l
22 A (Bores) -- of the circle which copied on I guess +
f l 23 ours, but which the rest of the circle did not copy the rest of 24 that loop.
25 MR. TURK : Pardon me? j i
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i BORES. LAZARUS - DIRECT 11949 1 JUDGE SMITH: I didn 't say anything.
i 2 BY MR. TURK . t 3 Q Just for clarification, was there any other RAC 4 member present at that meeting, other than the ones listed i 5 here? Of course, not including yourself, in addition to r 6 yourself.
7 A (Bores) Department of Commerce was not present.
8 Department of Interior was not present. So, none other than ,
9 this.
10 Q So in fact. then, we should not in any way interpret !
11 that mark which appears above the minus of FEMA to be a 12 negative vote for anyone else. It 's really just the circling. ,
13 A (Bores) That 's correct.
14 JUDGE SMITH: Well, you say vote. Having read the l
15 reference to Mr. Lazarus 's part in it, you mean vote -- l 16 MR. TURK: I didn't mean vote. ,
17 JUDGE SMITH: -- or interpretation of comments?
18 MR. TURK: Excuse me. If I said vote. I withdraw i I mean interpretatior,of comments. We haven 't gotten i 19 that.
20 there yet.
21 BY MR. TURK: [
22 Q Mr. Lazarus, let me ask you if you recall any 23 particular statements made by any of these individuals at the 24 RAC neeting of July? !
! 25 A (Lazarus) The only statement that I remember that I
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L BORES. LAZARUS - DIRECT 11950
\O 1 can attribute to an individual is the statement by Paul Lutz. l 2 because there was a flash of anger with the. you 've got a 3 problem, and that stuck in my mind.
4 But I remember the general discussions that were >
$ taking place on the other issues, but am unable to attribute 6 any particular quotes to any particular individuals.
7 Q Do you recall whether or not Mr. Thomas made any 8 specific remarks that come to mind? ,
9 A CLazarus) Mr. Thomas 's remarks during the meeting 10 were, you know, along -- as chairing the meeting, he made 11 several marks as far as that goes, as far as presenting the 12 FEMA position, their concerns with the protection of the beach 13 population, the NRC 's removal of the site-specific information.
14 When it got to the point of people were really 15 voicing opinions, and it became apparent to me -- most of the 16 meeting I was sitting listening as I was not the RAC member; I 17 was not doing any presenting. Mr. Bores was doing most of the 18 speaking for the NRC. That I was j ust watching, watching the 19 positions develop.
20 Q Lo you remember whether Mr. Thomas made any remarks 21 about his relience on RAC members for any particular --
22 MR. OLESKEY: No, this really does go too far.
23 MR. TURK : I 'll withdraw it.
24 MR. OLESKEY: Now, as I understood the rules. if a 25 witness indicates a complete absence of memory as to a O Corporation Heritage Reporting (202) 628-4888
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i BORES, LAZARUS - DIRECT 11951 l
'([)
i particular event under some circumstances, if you make tr,e l
i
~
2 preliminary -- ask the preliminary questions, and the court 3 makes the finding there 's a total absence of memory, then the l 4 interrogator on direct or on cross can suggest a possible )
L
! 5 answer. '
6 But here we have a witness who has some recollections l
[
i 7 and says he recalls nothing else. I don 't think it 's !
8 appropriate to suggest answers on direct of your own witness in 7
! 9 that circumstance, and I obj ect.
10 MR. TURK: I'll withdraw the gutstion. f 2 i j 11 BY MR. TURK: ;
' F 12 Q Does anything further about Mr. Thomas 's remarks come 13 to mind?
! 14 A (Lazarus) I did indicate that as he opened the l
l 15 meeting that he indicated that he depended on the expertise of [
! I i 16 the RAC, and that 's in the memorandum that I submitted to you (
l.
17 dated October 15th; that he had no special technical expertise; [
r
]
l 18 and that he depended on the expertise of the RAC members. And i 19 that was how the discussion began.
i
, 20 Q And those were his remarks? I I
]
21 A (L azarus) His specific, you know, quote? l 22 Q ga you recall --
23 A (Lazarus) Yes, I recall. He had -- a specific quote l i
24 was that, all I know about nuclear power plants is that they 're 5
25 big. I depend on the technical experts here for the technical f
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BORES. LAZARUS - DIRECT 11952 i expertise.
2 Q Well, we've gone through your recollections of 3 specific statements.
4 What do you recall about the manner in which the S meeting wrapped up? And here let me ask Mr. Lazarus.
6 A (Lazarus) As Mr. Bores indicated, almost everyone on 7 the RAC voiced an opinion as to the adequacy of the New 8 Hampshire Radiological Emergency Response Plan after the site-9 specific information had been removed.
10 Q And by site-specific information, you mean --
11 A CLazarus) We 're talkirig about the risk -- the 12 assessment of risk, the contain -- you know, the special 13 containment, and those sorts of aspects; anything that dealt 14 with the Seabrook specific design feature.
15 Q All right. And then what happened?
16 A CLazarus) At approximately 2 p.m.. after I had heard 17 almost everyone voicing their opinions. Mr. Thomas started 18 talking about. well, let 's take this information and we 'll get 19 something out to the RAC on a revised position.
20 And I indicated at that point that we have everyone 21 here. Why don 't we try to resolve this while we have everyone 22 here. It 's only 2 : 00 o 'c lock. Let 's continue on with this 23 until we come to sone resolution, 24 Q All right. And did you get a response to that 25 comment?
Heritage Corporat ion O Report ing (202) 620-4080
i BORES. LAZARUS - UIRECT 11953 i i A (Lazarus) His response was that he 'd been up late l q 2 and he was tired, and he thought it would be better and more f 3 orderly to redraft the position and send it out to the RAC 4 members for review. .
i 5 Q All right. Then what happened? l i 6 Oh, did he make any other statements in that regard? !
t 1 L
- 7 A (Lazarus) I don 't believe so, not -- j t
i 8 Q All right, then what happened?
i i 9 A (Lazarus) I was unwilling to leave the meeting with e !
l 10 the vague promise of sending a position out to the RAC that had f il not been discussed or even outlined as to what that position l l
i 12 would be. t 13 I asked him to at least take a vote of the members of 14 the RAC to find out where each one stood on the issue. He [
i i$ declined to do that. At one point he indicated --
i 16 Q Did he indicate why?
1 I
17 A (Lazarus) He also indicated correctly that the NOAA ;
i l 18 representatives that attended the previous meeting weren't ,
5 4
- 19 there, and he declined to take a vote on the issue, i
i 20 Q Then what happened?
i 21 A (Lazarus) Then I -- based on his declining to take a :
- 22 vote -- f
', 23 Q Just one minute, ,
I i 24 JUDGE SMITH: NOAA representative is National Oceanic i
l l 25 and -- l 4
(
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BORES. LAZARUS - DIRECT 11954 1 THE WITNESS (L azarus) I 'm sorry. Yes. National 2 Oceanic Atmospheric Administration.
3 MR. TURK: Mr. Lazarus, I would just ask you to slow 4 down. I'm trying to write, and I want to make sure the record
?
- 5 is clear too.
. 6 THE WITNESS: CLazarus) Sorry. i t
i 7 BY MR. TURK: {
8 Q What happened af ter he declined to take a vote? !
I i I 9 A (Lazarus) I stated that I would like to know for my l
10 own information then clearly where each one stood on the issue.
11 He did not respond to that.
l l
l 12 So then I stated a question to the RAC members, and 13 asked each one for their position.
14 Q Could you tell us about that? What did you ask?
15 A (Lazarus) The statement that I presented was that in 16 light of what you know about the New Hampshire Radiological 17 Emergency Response Plan as far as the early closure of the i
l 18 beaches at the alert level, the protective actions being able 19 to be disseminated over a PA system on sirens. their knowledge 1
20 of the evacuation time estimates and people were unlikely to be i 21 in the plumes for lengthy periods of time during evacuation, i
22 and the fact that we had discussed just prior to this dose 23 reduction factors wculd be on the order to 10 percent.
l 24 whether --
l 25 Q en percent.
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BORES. LAZARUS - DIRECT 11955 i A (Lo; :s) Ten percent dose reduction factor for 2 sheltering.
3 Q For sheltering.
4 A (Lazarus) Yes. Whether or not each one thought that S the New Hampshire RERP. Radiological Emergency Response Plan.
6 was adequate as it was written at that time.
7 And I raised my hand, and looked around at each one 8 of the persons at that table for a sign of whether or not they l 9 agreed with that position.
10 Each person on the RAC that I looked at raised a 11 hand. It was not an aye or nay thing; it was a --
12 Q Did Mr. Thones raise his hand?
13 A (Lazarus) No, he did not.
14 Q Do you recall anyone in particular raising their iS hands?
16 A (Lazarus) I recall that each person I looked at 17 raising their hand. I recall especially Ms. Nevitt from the 18 Department of Agriculture. because she had said very little. if 19 anything, during the whole meeting. So I was sort of surprised 20 that she did signal her consent with the question as stated. l 21 Q She raised her hand?
22 A (Lazarus) Yes.
23 Q Did all of the RAC members other than Mr. Thomas ,
I 24 raise their hands?
25 A (Lazarus) Yes, they did.
O Corporation Heritage Reporting (202) 628-4808
BORES. LAZARUS - DIRECT 11956 1 Q Dr. Bores, do you recal1 anything about this 2 incident?
3 A (Bores) Yes.
4 Q Where were you sitting at the time?
5 A (Dores) I was sitting directly on Bill 's right, as I 6 am right now.
7 Q And you heard him ask the question?
l 8 A (Bores) Yes, I did.
9 Q Did you look around at the RAC members?
10 A (Bores) Yes, I did.
11 Q And what did you observe?
12 A (Bores) I observed the same thing as related by Mr.
13 Lazarus. That each of the members, other than the FEMA 14 representatives and the contractors, had signaled consent by 15 raising their hand.
16 Q By raising their hand?
17 A (Bores) That 's correct.
18 Q hhat happened next ?
19 A (Lazarus) At that point Mr. Thomas reiterated that 20 he would have the position redrafted by Mr. Rospenda, the 21 ArEonne Laboratories contractor, and provide it to the RAC for 22 review. And the meeting edjourned within minutes of that i 23 discussion.
l 24 Q Mr. Lazarus, did you have occasion to observe Mr.
25 Thomas 's behavior while you were asking your question and l
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( i signaling with raising your own hand what you were asking the i
2 RAC members to do? Did you observe Mr. Thomas?
3 A (Lazarus) Yes. I did.
4 Q What did you observe?
5 A CLazarus) Stony silence mostly. He was obviously 6 not pleased based on my judgment of his body language.
7 Q What do you mean by that? l 8 MR. OLESKEY: Move to strike. Move to strike the 9 conclusion.
10 JUDGE SMITH: Overruled.
11 THE WITNESS: (Lazarus) Would you repeat the 12 question, please?
I 13 BY MR . TURK:
14 Q When you say you observed his body language, what did 15 you observe?
t 16 A (Lazarus) That he was sitting stiffly and he was !
17 staring at me, and he did not have a pleased expression on his 18 face. That 's all I was trying to indicate.
19 Q Well, if he didn't have a pleased expression, did he 20 have any expression?
21 MS. WEISS: Oh, he said two times he stared at him in 22 stony silence. Is that enough?
23 MR. TURK: No.
24 MR. DIGNAN: Is that an obj ection?
25 MS. WEISS: It 's an obj ection that the question has O Reporting Corporat ion Heritage (202) 628-4888
r BORES. LAZARUS - DIRECT 11958 f' .
i been asked and answered twice. ,
4 :
2 JUDGE SMIT!!t I think that Mr. Lazarus has said all l 3 he 's going to -- whst he has said on his own about Mr. Thomas 's j i
I 4 appearance. [
S Sustained. ,
i 6 BY MR. TURK: )
7 Q And did the RAC meeting then adjourn?
. i j 8 A (Lazarus) Yes, it did. ;
- 9 Q Do either of you recall whether Mr. Thomas made any 10 remarks concerning his interpretation of the phrase "reasonable a i i 11 assurance" -- !
I l 12 A (Lazarus) I do not recall.
f
- 13 Q -- during the course of the RAC meeting?
- 14 A (Lazarus) I da not recall that, i i
15 Q Dr. Bores? I i
l 16 A (Bores) I 'm trying to recall whether it was this RAC l
3 1 17 meeting or the succeeding one where he certainly did rnise the 1 i
< 18 question of reasonable assurance. ;
4 i
i 19 Q You 're not sure which meeting it transpired at? {
s t
- 20 A (Bores) No, not without checking back at my notes ;
t
! 21 and perhaps I can find it.
22 Q Well, I don 't know if it matters as a matter of .
i 23 function of time. so let me just ask you.
1
- 24 What do you recall about his comments in that regard? l t i 25 JUDGE SMITH
- At the meeting that he doesn't recall
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BORES. LAZAh0S - DIRECT 11959 1 that he made the comments.
2 MR. TURK: No. I understand Dr. Bores to have said 3 that he recalls Mr. Thones making commentu either at the July 4 RAC meeting or the subsequent RAC meeting. And now I 'm saying 5 vithout regard --
6 JUDGE SMITHr All right.
7 MR. TURK -- .aen the comment was made, what does 8 Dr. Bores recall about Thomas 's conment s.
9 THE WITNESS: CBores) Mr. Thomas said that the FEMA 10 definition of reasonable assurance is not the same one that the 11 NRC maintains. That, in fact. FEMA 's interp - N.' ion is 12 different. And what he had indicated at that particular 13 meeting was that reasonable asuurance meant what the reasonable 14 person would find acceptable.
15 He had further indicated that the interpretation in 16 the FEMA, NRC Christenbury letter that was provided as an 17 attachment in response to the Dignan memo was not a proper 18 characterization of the FEMA position.
EGO 19 (Continued on next page.)
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k-I/61 1 BY MR. TURK:
2 Q And j ust for clarification. I 'd ask you, is that 3 Christenbury letter the same one that 's attached to your 4 letters to Mr. Thomas of February and June 1987?
5 A (Bores) That is the same one.
6 Q And, Dr. Bores, I 'd also like to ask you to turn to 7 another attachment, to your October 15th, 1987 memo to me.
8 Staff Exhibit 2. And I 'd ask you to look in particular, first.
9 at Attachment 4, global 11, can you identify that document? 1 10 A (Bores) Yes. This is a memoranda from Spence Perry 11 who was the Acting General Counsel for FEMA to Edward Thomas, i 12 FEMA Region 1. It 's dated June 25th, 1985. I believe it is.
(~T . 13 Q Could it be 1986?
(>
14 A (Bores) '-6? Possible.
15 Q Should I show you the original? ,
16 A (Bores) Please. My copy is not very good.
17 JUDGE SMITH: Well, look at the stamp on the bottom 18 rather than taking time there. I t 's s t amped.
19 THE WITNESS: CBores) Yes. 1986.
20 BY MR. TURK:
21 Q And could you tell us when you received this or how 22 you received a copy of this document?
23 A (Bores) Well, the way I got a copy of this one was 24 that, Mr. Charles Berry of the Office of Public Safety of the 25 Commonwealth of Massachusetts had provided to FEMA a copy of O
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BORES, LAZARUS - DIRECT 11961
() 1 what is called the Berry Report on Pilgrim; and this was 2 subsequently distributed also at the NRC. And this memoranda 3 was attached to the previous memorandum on -- I 'm corry, 4 attached to the letter which is in my Enclosure i es Attachment 5 3, in that Berry document.
6 Q A nd I 'd like --
7 JUDGE SMITH: Now, Mr. Turk, if I didn 't know better 8 I would think that you 're entering into an attack on the merits 9 of Mr. Thomas' interpretation, but I know better than that.
10 because you wouldn 't do that.
11 MR. TURK: Let me turn from this document then, and 12 also ask you to turn to Attachment No. 3.
13 BY MR. TURK:
O 14 Q Could you identify that document?
15 A (Bores) Yes. That 's a letter f rom Mr. Edward Thomas 16 to Mr. Boulay of the State Emergency Management Director, 17 Massachusetts Civil Defense Agency and Office of the Emergency 18 Preparedness. And it is dated July 9th, 1986.
19 Q And how did you happen to get a copy of this?
20 A (Bores) This was also attached to the Berry report.
21 Q Gentlemen, did you ever receive from Mr. Thomas or 22 from FEMA the revision of the RAC pos:. tion on beach population 23 as he indicated he would send out at he close of the July RAC
, 24 meeting?
25 A CLazarus) No, I did not.
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BORES, LAZARUS - DIRECT 11962
,s l' '
1 A (Borca) No.
2 Q Are you aware whether something like that, these 3 revisions that Mr. Thomas promised had been sent out to the RAC 4 members?
5 A (Bores) They have not been sent out to date.
6 JUDGE SMITH: You say, to date, to this day?
7 THE WITNESS: (Bores) To this date we have not 8 received them.
9 JUDGE LINENBERGER: Question, sir. When you answered 10 that they have not been sent out, are you indicating that 11 answer based on your not having received them or do you have 12 independent knowledge that nothing has been prepared and 13 transmitted?
14 THE WITNESS: CBores) Okay. Let me try and answer 15 it this way. On -- I forget what date it is specifically, but 16 in August of last year following this meeting, I was at a 17 meeting up here at the Office of Civil Defense with a number of 18 individuals, representatives of public service, the State of 19 New Hampshire, FEMA, and the FEMA contractor was there; and I 20 took trie opportunity to ask the FEMA contractor if that 21 position was developed. And he had indicuted that he had in 22 fact developed the position, had provided it to FEMA Region 1 23 the previous weekend or previous Friday, but it had not been 24 submitted.
25 I had checked several tines subsequent to that with O
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BOR2S, LAZARUS - DIRECT 11963 :
(~x
' k- 1 FEMA Region 1 as to whether or not they were going to submit or 2 provide a revision to the document, and he had indicated that 3 they still hadn 't had time or something along that way. But I 4 have not gotten a copy.
5 BY MR. TURK:
6 Q For information, Dr. Bores, who is the FEMA 7 contractor with whom you had this discussion in August?
8 A (Bores) This would be Mr. Rospenda cf Argonne 9 National Laboratory.
10 Q And when you indicated that you checked several times 11 with FEMA Region 1 as to whether the document had been issued, 12 I forget your words, was issuing -- let me characterize it that 13 way -- who did you speak with in FEMA Region 1?
14 A (Bores) Either Mr. Dolan or Mr. Thomas.
15 Q And you recollection is that the response you 16 received on those occasions was that, they were too busy to get 17 it out right away or something -- what -- I 'm sorry, I don 't 18 vant to mischaracterize. what did you say the response was?
19 A (Bores) That they had not had the time to get it 20 back, to get it out yet.
21 Q Dr. Bores, do you recall a time in October of 1987 in 22 which I placed a telephone call to you?
23 A (Bores) Yes.
24 Q And could you describe what you were requested to do 25 in that telephone -- were you requested to do something in that O
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BORES, LAZARUS - DIRECT 11964 1 telephone call?
2 A (Bores) Yes. I was requested to provide my -- a 3 history or a chronology of my involvement with the Seabrook 4 emergency preparedness situation, and in particular, you know, 5 the beach issues, and my recollections of the April 15th and 6 July 30th, 1987 RAC meetings.
7 I was also to notify or request Mr. Lazarus to 8 independently' prepare his recollections of the two RAC meetings 9 that he had attended. And since my discussions with you, you 10 learned of Mr. Schumacher 's attendance at the July 30th 11 meeting. You had requested that I try and obtain a similar 12 independent recollection from him.
13 Q And did you relay this request to Mr. Schumacher and 14 Mr. Lazarus ?
15 A (Bores) I relayed it to Mr. Lazarus, and since Mr.
16 Lazarus was the supervisor of Mr. Schumacher, I assume Mr.
17 Lazarus relayed it to Mr. Schumacher.
18 Q And in fact, is the Staff Exhibit No. 2, cover memo 19 with the four page Enclosure 1, and that 's global pages 1 to 5, 20 does that represent your response to my request. Dr. Bores?
21 A (Bores) Yes.
22 Q Was it prepared independently by you?
23 A (Bores) Yes, it was.
24 Q Was it prepared in consultation with any other 25 person?
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BORES, LAZARUS - DIRECT 11965
.() 1 A (Bores) No.
2 Q Mr. L azarus , do you recall Dr. Bores asking you to 3 prepare an independent recollection of these matters?
4 A CLazarus) Yes, I do.
5 Q And is Staff Exhibit No. 3, which is the October 6 15th, 1987 memo from you to me, does that represent your 7 response to that request?
8 A- (Lazarus) Yes, it does.
9 Q Did you prepare it independently?
10 A (Lazarus) Yes, I did.
11 Q Did you prepare it with consulcation with any other 12 person?
13 A (L azarus) No, I did not. ,
, 14 Q And did you ask Mr. Schumacher to prepare an 15 independent accounting?
16 A (Lazarus) I did.
17 Q And did he provide you with one?
18 A (Lazarus) Yes, he did.
19 MR. TURK: Your Honor, I would like to reoffer at 20 this time the Schumacher memo, for no purpose other than to I
21 show the -- a response received -- that a response was provided 22 by Mr. Schumacher.
23 JUDGE SMITH: That there was a response?
24 MR. TURK : Yes.
25 JUDGE SMITH: That there is -- the idea is that there i
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BORES, LAZARUS - DIRECT 11966
/'~N l 1 is 'no unheard of -- there 's no person unheard f rom on this?
2 MR. TURK: Well, frankly, Your Honor. I believe that 3 given the f act that we 've now established that Mr. Schumacher 4 was still employed by the NRC on the date that he wrote this 5 memo. I believe that it does constitute an exception to a 6 hearsav rule.
7 I understand your prior ruling to be that, because it 8 was prepared in the course of litigation it does not constitute 9 a normal business record.
10 If I may nave just a moment.
11 As I recall, and I don't use my Federal Rules of 12 Evidence too often, there 's a further exception to the hearsay 13 rules with respect to government documents. I could be wrong, 14 but let me see if I can take a minute to find the reference I'm 15 thinking of.
16 CPause) 17 JUDGE SMITH: There 's a whole series that pertain to i
18 official records and that type of --
19 MR. TURK: It 's exception number 8 to Rule 803, 20 stated in Rule 803 which is the listing of hearsay exceptions.
21 Let me read as follows: "Public records and reports. Records, 22 reports, statements or data compilations in any form of public 23 offices or agencies setting forth: (a) the activities of the I office or agency; or. (b) matters observed pursuant to duty 24 f 25 imposed by law as to which matters there war a duty to report
()
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BORES, LAZARUS - DIRECT 11967 i excluding, however, in criminal cases matters observed by 2 police officers and other law enforcement personnel; or, (c) in 3 civil actions and proceedings cnd against the government in si 4 criminal cases factual findings resulting ,-]m an investigation S made pursuant to authority, granted by law, unless the sources 6 of information or other circumstences indicate lack of 7 trustworthineus," close quote.
8 Let me come back and emphasize item "B" which are, 9 quote: "Matters observed pursuant to duty imposed by law as to 10 which matters there was a duty to report," close quote.
11 JUDGE SMITH: If there had been a duty to report that 12 he would have reported it right after the meeting and not until 13 you needed it for the litigation. However, your other point. I
)
14 think, is -- has merit and that is, it cannot -- you offer that 15 for the purpose of showing that the missing person, Mr.
16 Schumacher, did in fact make a report.
17 MR. FLYNN: Your Honor, that is not at issue.
18 MR. TURK: Your Honor, I assume I can get it in for 19 that reeson, but I would like a general offer.
, 20 JUDGE SMITH: Well, you can 't have that.
21 MR. TURK: All right. I accept the ruling, Your 22 Honor.
23 JUDGE SMITH: But you don 't want to offer it for any 24 other reason?
25 MR. TURK : Yes, I would. And I would offer it simply l
(
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BORES. LAZARUS - DIRECT 11968 D
~\ / 1 for the purpose of showing the historical --
2 JUDGE SMITH: That he made a report.
3 MR. TURK: He made a report, this is the paper trail.
4 JUDGE SMITH: You see. I think it 's important -- I 5 think it 's appropriate to be in evidence, so it cannot be 6 argued -- there were three people there, what has happened to 7 the missing one.
8 MR. TURK: That 's right.
9 JUDGE SMITH: But it 's not for the purpose of what he 10 stated, but the fact, he did in fact make a report.
11 MR. TURK: Yes.
12 JUDGE SMITH: All right.
13 MR. FLYNN: Your Honor, may I address that briefly.
14 I submit that that is not in issue, and I would invite a 15 stipulation that Mr. Schumacher responded to the request to 16 report what he observed.
17 If that 's the only question, I would submit it 's 18 already been established by the testimony of these two 19 witnesses.
20 JUDGE SMITH: So you 're saying is, that we don 't have 21 the possible prejudicial ef fect of Mr. Schumacher 's letter, we 22 can accomplish the same thing by other means.
23 MR. FLYNN: Yes. And the other concern that I have 24 is, is the scope of the hearing. It invites the whole entire 26 new line of examination that I see is unnecessary.
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.o
~
1 JUDGE SMITH: No, it doesn 't.
2 Does anybody else want to be heard on this?
3 Does anybody have any obj ection to it being offered 4 for the --
5 MR. TURK: For the limited purpose.
6 MS. WEISS: No.
7 MR. OLESKEY: No.
8 JUDGE SMITH: You don 't. Okay.
9 MR. TURK- We had previously --
10 JUDGE SMITH: But your obj ection is, it 's not going 11 to be opened on the merits of it; it simply shows that John A.
12 Schumacher made a report.
(3 13 MR. FLYNN: Well, I 'll subside. I think it 's V
14 redundant. I think it 's entirely cumulative. But if that 's 15 all it 's being of f ered for, it 's harmless.
16 MR. OLESKEY: Just to remind the Board, I have said 17 twice that I intend to use it to impeach, for that limited 18 purpose.
19 JUDGE SMITH: Yes.
20 MR. TURK: For what purpose?
21 MR. OLESKEY: Impeachment, counsel.
22 JUDGE SMITH: So it's going to be offered, not for 23 the truth of the matter as asserted by the staff, but for the 24 fact that Mr. Schumacher did make a report. So that Staff 25 Exhibit 4 is received then, previously rej ected is now Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11970 2 (The document referred to having 3 been previously marked for 4 identification and rej ected 5 as NRC Staff Exhibit 4, was 6 received in evidence.)
7 MR. TURK: And, Your Honor, I don 't know if we had 8 closed the trail on this. Let me make sure we get 9 identification -- may we go of f the record?
10 JUDGE SMITH: All right.
11 (Discussion off the record) 12 MR. TURK: Your Honor, I note that it 's the i
13 recollection of the group that this has -- this document, Staff 14 Exhibit 4, has been identified as the document prepared by Mr.
15 Schumacher at Mr. Lazarus ' request.
16 JUDGE SMITH: All right.
17 BY MR. TURK:
18 Q Dr. Bores, do you recall any instances in the fall of 19 1987 at which you had occasion to speak to other persor.s 20 employed by or associated with FEMA concerning the Seabrook 21 beach position, which FEMA had taken? .
22 A (Bores) In October of '87, late October '87 I was 23 participating in an emergency exercise at th? Ginna site in New 24 York State.
25 Q How do you spell Ginna?
(
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BORES, LAZARUS - DIRECT 11971 1 A (Bores) G-I-N-N-A. It was a New York State Ginna 2 ingestion pathway exercise.
3 Q And that's a nuclear powerplant?
4 A (Bores) That is correct.
5 Q All right.
6 A (Bores) At the exercise I was working in conj unction 7 with Mr. Roger Kowieski of FEMA Region 2, 8 MR. OLESKEY: I couldn 't hear that because someone 9 slammed the table, would you give that name again.
10 MR. TURK: And spell it, please.
11 THE WITNESS: CBores) Roger Kowieski.
12 MR. OLESKEY: I wouldn 't have gotten it even if I g 13 heard it.
{J 14 bY MR. TURK:
15 Q How do you spell it?
16 A (Bores) I t 's K-O-W-I-E- S-K- I .
17 MR. DIGNAN: If Gleskey doesn 't get it, who does.
18 (Laughter) 19 MR. OLESKEY: Because it 's "I" and not "EY.
20 BY MR. TURK:
21 Q And this was approximately what time frame?
22 A (Bores) October, late October of last year.
23 Q All right.
24 A (Bores) I was working in conjunction with Mr.
25 Kowieski in the observation of a portion of this exercise, and O
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BORES, LAZARUS - DIRECT 11972
() 1 in the course of, I guess, nonexercise observation times the 2 casual discussion got on to the Seabrook topic. And Mr.
3 Kowieski related to me --
4 MR. OLESKEY: Just a minute, if there 's going to be a 5 conversation come in by Kowieski that 's going to be of fered, 6 I 'm going to obj ect unless it 's of fered for some non-hearscy 7 reason or as an exception.
8 MR. TURK : Your Honor, Mr. Oleskey is seeking to 9 apply a very stringent application of the interpretation of the 10 hearsay rule, which as we all know does not strictly apply to 11 administrative proceeding where the testimony is reliable. And 12 I submit that there 's no reason to exclude the following 13 conversation.
14 MR. OLESKEY: Well, we don 't -- as you have often 15 said, Judge Smith, sometimes when counsel signal where they 're 16 going with things we all get a grip on it that may be different 17 than our first assumptions. But where credibility is at issue, 18 and I have a reasonable surmise that this conversation may be
]
19 offered to affect either the credibility of FEMA or one of its 20 witnesses, Mr. Thomas, I 'm certainly going to invoke a normal 21 and reasonable definition of hearsay unless I hear something 22 from Mr. Turk which persuades me that that caution is not 23 necessary in this instance. I haven 't heard it yet.
24 MR. FLYNN: What concerns me is, I don 't know what 25 the subj ect matter of the conversation is. If it follows the O Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11973
{} 1 2
line that was previously established in simply tracking the evolution of the FEMA position, it may not be obj ectionable.
3 But I don 't know that that 's been established.
4 MR. TURK: Your Honor, the purpose of this 5 discussion, in fact the whole direct examination of Dr. Bores 6 and Mr. Lazarus has only been to show the NRC staf f 's awareness 7 of -- to the extent that we 're aware of matters af fecting the 8 evolution of FEMA 's position.
9 I would offer this next piece of testimony --
10 MS. MITCHELL: Time to go --
11 JUDGE SMITH: What 's that , fire?
12 MS. MITCHELL: Fire alarm!
13 SECURITY OFFICER: Clear the building.
at/61 14 CWhereupon, an unscheduled fire drill took place.)
15 (Continued on next page.)
16 17 18 19 20 21 22 23 24 25 i
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BORES, LAZARUS - DIRECT 11974
/l
\-t/62 1 JUDGE SMITH: Do you want to argue the obj ection 2 of --
3 MR. TURK: Before we argue the obj ection I 'd like to 4 identify the -- have the witness identify who this person is 5 with whom he spoke, so it puts a little more information in 6 front of the Board.
7 THE WITNESS: CBores) Roger Kowieski is an employee 8 of FEMA, Region 2 of New York City and he --
9 BY MR. TURK:
10 Q I 'm sorry, of what?
11 A (Bores) Of FEMA, Region 2 his office is in New York 12 City. And they 're responsible for New York and New Jersey and
(~) 13 I believe Puerto Rico in their region.
%)
14 Q Do you know what his title is within FEMA, Region 2?
l 15 A (Bores) I 'm not sure what his current title is in 16 FEMA, Region 2. Mr. Kowieski had been the RAC Chairman for 17 FEMA, Region 2 for a number of years and had provided extensive 18 testimony in the Shoreham and Indian Point cases.
19 MR. TURK: Your Honor, I take it at this time there 's 20 an obj ection to a line of questions which I will ask if I can 21 maybe suggest a single question as to Dr. Bores ' recollection 22 of statements made by this other individual, Mr. Kowieski, an 23 official of FEMA, in a conversation to which Mr. Bores -- to 24 which Dr. Bores was a party.
25 As I understand the obj ection it 's hearsay.
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BORES, LAZARUS - DIRECT 11975 (Tk- 1 JUDGE SMITH: Yes. Just flat-out ordinary day in 2 and out hearsay.
3 MR. FLYNN: I think there 's another problem and that 4 is, that a necessary predicate hasn't been established and that 5 is, that Mr. Kowieski had any role in the development of the 6 FEMA position.
7 JUDGE SMITH: Well, of course, we don 't have any idea 8 what Kowieski 's testimony is being of fered for. So you have us 9 on that.
10 MR. TURK: Not for the truth. Your Honor. I will 11 make this offer, just following question and answer simply for 12 the purpose of indicating the evolution of FEMA 's position, not
("T 13 as to whether or not the merits of FEMA 's position at any time U
14 are correct or not, but simply the evolution.
15 MS. WEISS: Well, perhaps Mr. Turk could explain how 16 so.nebody from Region 2 would have played a role in the 17 development of the FEMA 's position on Seabrook?
18 JUDGE SMITH: Well, you just opened the door there, 19 didn 't you.
20 MS. WEISS: Well, that 's a necessary --
21 MR. TURK: I do not represent that Mr. Kowieski l
22 played a role. I don 't know if he did or did not.
23 MS. WEISS: Well, in that case I think --
24 MR. TURK: Dr. Bores may be able to answer that i
25 question.
() !
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BORES, LAZARUS - DIRECT 11976
() 1 MS. WEISS: I think it 's obj ectionable.
2 MR. OLESKEY: Well, you prepared Dr. Bores, how can 3 you be having him of fer testimony that 's on its f ace hearsay, 4 and represent to the Court you don 't know what his answer is 5 going to be.
l 6 MR. TURK: Your Honor. I do kr.ow what Dr. Bores will 7 say about his conversation with Mr. Kowieski. The additional 8 question raised by Ms. Weiss I have not posed to the witness 9 until now.
10 MR. DIGNAN: I sometimes say. I guess I don 't have a 11 dog in the fight, but as Mr. Oleskey said, I might have a horse 12 in the race. I'd like to be heard on this one.
13 As I understand that the reason we 're convened here 14 in dealing with this subj ect is because the Board indicated
. 15 that it was very concerned about how the position of FEMA l L
16 developed, how it changed. There 's been concern as to whether i
17 prior testimony was forthright.
18 In short, it 's a question of whether there is reason 19 for the Board to question FEMA and its position. Now, that
. 20 being the case and without getting into the ramifications of
- 21 whether FEMA is a separate party or the NRC is a separate party t 22 f rom FEMA or whether FEMA is a party at all, normal court .
1 23 parlance, since the main thrust of this inquiry, as I 24 understand it, is how did FEMA get to the position it did. I 25 say anything that he was told by a responsible FEMA official is Heritage Reporting Corporation 4
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BORES. LAZARUS - DIRECT 11977
() 1 admissible as hearsay on the basis it 's an admission of FEMA.
2 And FEMA is a party for that purpose, if this inquiry 3 is to have any meaning at all. And that 's a well-recognized 4 exception to the hearsay rule.
5 JUDGE SMITH: It 's a well-recognized exception, but 6 it doesn't take into account the subtleties of the situation we 7 have before us where we have the actual expressions.
8 statements, and events that are in dispute are being inquired 9 into.
10 Let me -- I would like to ask a few questions about 11 this. Was this conversation you had, was it a conversation 12 directly related to the Ginna exercise?
13 THE WITNESS: (Bores) Was it directly related to 14 Ginna?
15 JUDGE SMITH: Yes?
16 THE WITNESS: CBores) No.
17 JUDGE SMITH: It was more conversational?
18 THE WITNESS: (Bores) It was conversational --
e 19 JUDGE SMITH: Like water cooler gossip, that type of ;
20 thing, about the problem that we had, that -- the problem that 21 was going on in Region 1?
22 THE WITNESS: CDores) I wouldn't necessarily call it 23 water cooler gossip in that I had worked with Mr. Kowieski for 24 a number of years in a number of different plans, and I thir.k.
25 you know, we had mutual respect for one another in terms of our Heri'; age Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11978
(~\
\s 1 professional capabilities, in capacities.
2 MR. TURK: Maybe we could also clarify, Your Honor, !
3 what was -- rather than ask an open-ended question to which !
4 there may be an obj ection, let me put it in a leading form.
5 BY MR. TURK:
6 Q Did this conversation concern FEMA 's testimony on the !
7 Seabrook beach population. issue?
8 A CBores) That it did.
4 9 JUDGE SMITH: We would approach hearsay in this 10 situation that we started out that i t 's -- it is a flat-out 11 hearsay, and you say it 's not going to be of f ered for the truth ,
12 of the statement, but I j ust -- you haven 't made any other 13 offer that makas any sense.
[
14 I mean, you want what he said to be in the evidence 15 and to be considered.
16 MR. TURK: Let me offer -- let me indicate what my 17 offer is. Your Honor. Under the hearsay rule, a statement is I
18 hearsay only if it is, quote: "Offered in evidence to prove 19 the truth of the matter asserted " close quote.
20 JUDGE SMITH: That 's right.
21 MR. TURK : That 's Rule 801(c). I am not going to J
22 of f er this next piece of testimony to prove that Mr. Kowieski 's i 23 statement represents a true statement of fact. Rather, with 24 respect to whether or not he was correct in his evaluation or 25 in his comments concerning the FEMA testinony. -
r Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11979
() 1 Now, the offer is simply for the purpose to indicate 2 that there was an awareness within certain persons within FEMA, 3 of certain concerns or that certain persons in FEMA had 4 concerns about the position expressed in this proceeding by 5 FEMA.
6 JUDGE SMITH: That 's what I thought.
7 MR. TURK : The existence of concern, not -- well, 8 I 'll await a ruling.
9 MR. OLESKEY: You know, there may be a million 10 concerns running around inside FEMA and the NRC, and I 'm sure 11 they 're all ver entertaining, but whether this guy Kowieski 12 who has no discernible relationship to the development of the 13 testimony between Washington FEMA headquarters and Region 1 has 14 any authorication to make any comment that binds his agency or 15 has any probative value is a very different question.
16 This could have been a water cooler conversation with f 17 anybody in FEMA in the country and has equal merit.
18 JUDGE SMITH: You would approach a hearsay situation 19 involving a regulatory agency, as we are doing, as a hearsay
- 20 conversation -- a conversation by declarant, not present, who I
f 21 is reporting a routine matter and saying this case, the guy j 22 says, we j ust told them to go on stored feed up in Ginna, and 23 that might be something perfectly appropriate to report as a 24 hearsay. It has all the elements of trustworthiness.
25 But in this instance it was a conversation, not in Heritage Reporting Corporation
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BORES, LAZARUS - DIRECT 11980 1 the ordinary course of the exercise, it was a conversation not 2 as a part of the duties of Mr. Kowieski. It was j ust -- as he 3 states it, as an ordinary garden variety hearsay statement.
4 And the closer it gets, the closer the statement gets to the 5 issue being litigated, the more obj ectionable it is, not as a 6 question of reliability so much, but as a question of 7 fairness --
8 MR. TURK: All right.
9 JUDGE SMITH: -- to the adversaries in not being able 10 to confront the declarant. Now, I know you 're not of fering it 11 for the truth of it, but at bottom you are offering it for the 12 truth of it.
13 MR. TURK: Certainly. I understand your ruling and I 14 withdraw the question, Your Honor.
15 BY MR. TURK:
16 Q Dr. Bores, in that same time frame. October 1987, did 17 you have occasion to talk to anyone else employed by or 18 af filiated with FEMA, and if so --
19 A (Bores) Well --
20 Q Go ahead.
21 A (Bores) Yes, I did. I talked to a couple of their 22 contractors who were involved in the exercise, the same 23 exercise.
24 Q Were any of those conversations concerning Seabrook 25 population issues?
O Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 11981
(-)
(/ Yes.
1 A (Bores) 2 Q And can you state with whom such a conversation 3 occurred?
4 A (Bores) Mr. Keller.
5 Q Do you know his first name?
6 A (Bores) Joe. Joseph Keller.
7 MR. TURK : Your Honor, I submit that this next 8 inquiry relates to the testimony which the witness nmy be 9 expected to -- relates to a conversation in which a witness who 10 will appear in this proceeding was the out-of-court declarant.
4 11 And I 'm not sure if I 'm going to get the same ruling, but I am 12 going to ask Dr. Bores to relate to us the conversa+1on he had 13 with Mr. Keller.
14 MR. OLESKEY: Well, you 're certainly goit (o get the 15 same obj ection.
16 MR. TURK: Will I have the same ruling?
17 MR. OLESKEY: Well, he 's going to get the witness on 18 a panel, if it 's a relevant question he can put it to the i
19 witness when he gets here.
2C JUDGE SMITH: Well, that 's not the solution to it.
21 The solution is, since the witness will be available the 22 weakness of the hearsay is removed. We want both his version 23 of the conversation with Dr. Keller, and Dr. Keller 's version I 24 of it; and all of that confrontation aspects will be satisfied. -
25 MR. OLESKEY: Well, except there 's this problem.
O Heritage Reporting Corporation (202) 628-4888 f
BORES, LAZARUS - DIRECT 11982
~T
('J - 1 Keller is not authorized to speak for FEMA, he 's a contractor.
2 JUDGE SMITH: Well, you can establish that; that 's 3 differen . That 's an entire dif f erent matter.
4 MR. OLESKEY: Well, then. I want to Voir Dire the 5 witness before the question is asked to establish that, if it 's 6 - not on the record yet to your satisfaction.
7 MR. TURK: To establish what?
8 MR. DIGNAN: Your Honor, could I respectfully suggest 9 that there 's no j ury here. We 're dealing with a Judge tri al. -
10 I guess we 've all demonstrated we took Evidence 101. But the 11 easy solution to this, let him ask the question. Let him 12 answer it. And if you 're not satisfied, you 've heard something 13 trustworthy in violation of the hearsay rule, we can move to 14 strike it and out it goes. It 's not a jury case. We 're going 15 to waste an awful lot of time. As I say, we all demonstrate 16 our proficiency in the rules of evidence.
17 Now, we all did it. I mean, he probably got a better l
18 course, I went to Michigan, he went to Harvard, but, you know, 19 we all went through it and it really is a waste of time.
20 because you can simply strike stuff if it 's out of line once it 21 comes out.
22 I see no reason --
23 JUDGE SMITH: Does Michigan have a law school?
24 (Laughter) 25 JUDGE SMITH: I know. This is a little bit out of
(
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BORES, LAZARUS - DIRECT 11983
() 1 the ordinary.
2 MR. DIGNAN: Don 't think you offended me. I came to 3 the law firm Ropes and Gray and everybody assumed it was 4 Michigan State, you know. I mean, it 's tough coming to Boston. r 5 JUDGE SMITH: Well, you 're right.
6 Claughter) 7 JUDGE SMITH: I think we have -- we h;e a situation 8 pertaining here which is somewhat -- is quite a bit different 9 than the ordinary regulatory testimony. We want the answer.
10 Give us the answer. ;
11 MR. OLESKEY: You understand my obj ection. Judge? !
12 JUDGE SMITH: Well -
13 MR. OLESKEY: It goes --
(:) 14- JUDGE SMITH: You didn 't make it completely.
l 15 MR. OLESKEY: All right, let me complete it. It was ;
i 16 twofold: it was hearsay; and it was also that, under no -
r i
17 circumstances, as I understand the context of this dialogue at 18 the water cooler again in October with a contractor for FEMA, -
19 can anything that the contractor said be used to impeach or 20 bind FEMA, and agency for which he works under contract, as we 21 know f rom the deposition that he 's given in this proceeding.
22 He works for the Idaho National Laboratory which does contract i
23 work for FEMA. and as such he 'll be a witness here.
24 JUDGE SMITH: It 's not being of f ered -- the i 25 testimony, the evidence concerning the conversation between Mr.
- (:) Heritage Reporting Corporation l (202) 628-4888 i
< i
BORES, LAZARUS - DIRECT 11984
() 1 Keller and the witness is not being offered as an admission by 2 FEMA, but simply as a statement of the facts that are being 3 litigated.
4 MR. OLESKEY: Well, once --
5 JUDGE SMITH: As any witness, he could have been one 6 of the farmers up there at Ginna.
7 MR. OLESKEY: I think that will be the next 8 conversation. But in any event, once it 's in, it 's in for all 9 purposes unless you limit it now.
10 JUDGE SMITH: Well, let 's see what it is.
11 We'll take Mr. Dignan 's advice on that, if it turns 12 out that it is so unreliable, it should be thrown out, we 'l l 13 just have to use discipline and throw it out and ignore it.
14 Would you answer, please?
15 BY MR. TURK :
16 Q Dr. Bores. would you relate to us the conversation 17 you had with Mr. Keller concerning the Seabrook beach 18 population position that FEMA had taken?
19 A (Bores) The conversation I had with Mr. Keller was 20 quite similar. I might say to the one with Mr. Kowieski --
21 MR. OLESKEY: Now, that 's obj ectionable --
22 MR. TURK: I'll accept a motion to strike that.
23 JUDGE SMITH: Okay.
24 THE WITNESS: (Bores) The conversation related to 25 the Seabrook testimony as provided by FEMA, and its ;
F O Heritage Reporting Corporation (202) 628-4888
I BORES, LAZARUS - DIRECT 11585 1 relationship to the testimony provided by Mr. Keller and Mr.
2 Kowieski at the Licensing --
3 JUDGE SMITH: Now, wait a minute, you just bet ter 4 leave Kowieski out of this.
5 THE WITNESS: (Bores) Well, both of them appeared on 6 a panel, Your Honor.
7 JUDGE SMITH: Oh.
8 BY MR. TURK:
9 Q And you 're relating Keller 's comments to you?
10 A (Bores) Yes. !
s 11 Q All right. Let 's only stick with what Keller has .
12 told you in this October encounter.
(~s 13 A (Bores) Okay. These two witnesses -- these two d individuals appeared as witnesses in the Shoreham and Indian 14 15 Point emergency preparedness cases. And Mr. Keller related to 1
16 me the dif ficulty he had in -- with the current FEMA position i L
17 in that it contradicted jositions that had been taken by FEMA 18 in those two procJedings. ;
19 MR. BACKUS: All right. I have a motion to strike 20 that on a basis that perhaps has not been addressed by Mr.
21 Oleskey. My understanding that the current rule change that 22 was adopted last December 3rd has said that you do not compare l i
23 any emergency plan to any other plan. I think that was the f
24 gist of Mr. Turk 's argument that underlay the decision the i
25 Board made on the Sholly-Beyea testimony. l
[
! Heritage Reporting Corporation I (202) 628-4888 !
I 6 l ?
r BORES. LAZARUS - DIRECT 11986
() 1 Now we 're getting testimony about what FEMA 2 contractors say about being embarrassed because testimony given 3 at one panel from one plant, apparently, is not entirely 4 congruent with testimony in another plant. I think on the 5 basis of the Commission 's position taken a rule change, that 's 6 inadmissible.
7 MR. OLESKEY: I move to strike as well unless the 8 Board is prepared to have us litigate the circumstances under 9 which the evidence was given at Shoreham and whatever the other 10 proceeding was. This is really far afield unless you want to 11 open that door. I don 't want to encourage you to do that.
12 CBoard conferring) 13 MR. DIGNAN: Your Honor, can I be heard before you 14 make a final decision?
15 JUDGE SMITH: Yes.
l 16 MR. DIGNAN: You will recall that the witnesses whose 17 testimony -- the individual witness ' testimony, which is much 18 of a focus of this hearing, was deliberately of f ered by FEMA as 19 a policy witness speaking for its agency, solely alone. That 20 was brought cut ad nauseam, when they first sat in that witness 21 stand. No Tanzman, no Swiren or whoever the other people were, 22 Thomas alone would speak for FEMA, giving a FEMA position. I i~
23 consider it highly relevant, probative, and an admission i 24 against FEMA, if the responsible witnesses who gave the FEMA 25 position in another proceeding say that the FEMA position given
- (
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Heritage Reporting Corporation (202) 628-4888 J
BORES, LAZARUS - DIRECT 11987
() 1 in -- or at least originally to be given was inconsistent with 2 the one given in those proceedings.
3 I can think of nothing more relevant to this inquiry.
l 4 MR. OLESKEY: We know -- well, you don 't know it yet. [
5 but we know f rom Thomas ' deposition how the position was i 6 evolved as far as his testimony goes here. We don 't know what 7 went into the position at Shoreham and the other plant. nor do 1 8 we know what it is.
9 MR. TURK: But we do know -- !
10 MR. OLESKEY: The only way to counter this evidence ,
11 for what it would be worth, if it came in, would be to put on :P 12 evidence of the development of the position there and what it 13 was, and show that it was wron0 It 's -- you 're opening the 4
14 barn door very wide.
15 MR. BACKUS: One other point. Your Honor, and that r 16 goes back to the point that none of this is in the material ,
17 that we had in advance of these witnesses testifying. This is ,
18 really truly rsew evidence being elicited for the first time on t 19 direct which we 've had no opportunity to respond to. l l
! 20 MR. TURK: Your Honor. I would note one thing before 21 you confer and rule. I have in front of me two volumes of a Y
22 deposition of Mr. Joseph Keller taken at the instance of 23 Massachusetts. Mr. Keller, in his deposition, relates concerns l
24 he had about FEMA 's position over time. And I think that Dr.
25 Bores ' testimony will corroborate the statements by Mr. Keller I
( Heritage Reporting Co rporat ion l (202) 628-4888 1 i I
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5 L,
- BORES.-LAZARUS - DIRECT 11988 i i 1
g 1 in his deposition and the statements which we may expect to 2 come out during the hearing, j i
j 3 MS. WEISS: Because it was questioned during the !
i .
l- 4 deposition doesn't mean that it 's relevant and admissible at -!
5 tnis hearing. ;
6 VR, OLESKEY: Multiple proposition, counsel !
! 7 (Board conferring) i e'/62 8 (Continued on ney.t page.)
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BORES. LAZARUS - DIRECT 11989 1 JUDGE SMITH: The obj ection will be sustained. I (J63 2 mean the answer, I don 't know what it is, but the conversation 3 with Keller -- your testimony. Dr. Bores 's conversation with 4 Dr. Keller will be stricken, because although as you indicated 5 not all hearsay would be unreliable, in this instance it l 6 purports to be not just a simple statement of fact as stated by l
l 7 Dr. Keller, but something broader, an opinion; and an opinion 8 undefined as far as we know, and it is virtually impossible to 9 confront that opinion through this witness, i
10 Furthermore, with all those infirmities in it, it is 11 not needed, because Dr. Keller himself will be here and the 12 same position can be put to him, and there would be an 13 opportunity to e< amine what he meant if in fact he said it.
lpv 14 So for that reason the obj ection is sustained.
15 MR. TURK: All right, Your Honor.
16 BY MR. TURK:
f 17 A Dr. Bores, over the fire alarm break that we had a 18 few minutes ago, did you -- did something come to mind that you 4
19 wished to add to your prior testimony here today?
20 A CBores) At the close of the July 30th meeting, or s
l 21 prior to the close, one of the reasons that Mr. Thomas I 22 indicated that he felt he wanted to end the meeting there 23 rather than going on is because we were essentially at a 24 stalemate. He felt he did not -- he felt we needed more 25 information from somewhere in order to make a decision. And in O Heritage Reporting Corporation (202) 628-4888 l
BORES, LAZARUS - DIRECT 11990 ss' 1 f act since NOAA wasn 't there, he felt that we couldn 't reach a 2 consensus.
3 In particular, he said that NOAA had raised 4 considerable concerns about the meteorological aspects in the 5 February paper that we had discussed at the April meeting.
6 And so without their presence there, he felt he needed to 7 adj ourn.
8 Q To your knowledge, had the concerns expressed by NOAA 9 been resolved at the April meeting?
10 A (Bores) They had. They had been as indicated in the 11 attachments to my memorandum to you of October 15, 1987.
12 JUDGE SMITH: In that ruling, did I specifically 13 state that the answer is stricken" 14 MR. TURK: Yes.
15 BY MR. TURK:
16 Q Dr. Bores, has there been an -- has it ever -- strike 17 that.
18 After the writing of your October 15, 1987 memo to 19 me , was there ever an occasion in which you had a conversation 20 about that memorandum with Mr. Thomas?
21 A (Borea) Yes.
22 Q And when did that conversation take place?
23 A (Bores) This conversation was not that much of a 24 conversation. It was a short, very short discussions, comments 25 if you will, which occurred at the RAC meeting in January.
O Heritage Reporting Corporation (202) 628-4888
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BORES, LAZARUS - DIRECT 11991 1 Q Wns" we.s the approximate date of that RAC meeting in 2 January? Do yo,1 know?
3 A (Borea) I don 't have the date in f ront of me.
4 Q Was it in the early part, or the later part?
5 A (Bores) The first part of January.
6 JUDGE SMITH: This is the same meeting that Dr. Bores 7 testified to on January lith?
8 THE WITNESS: (Bores) That is correct.
9 JUDGE SMITH: And it is the same conversation that he 10 reported, I believe, at that time by Mr. Thomas about the 11 memorandum, or em I -- !
12 MR. TURK: About the RAC meeting.
13 JUDGE SMITH: About the memorandum. Well, it may 14 have been that Mr. Thomas testified, but Dr. Bores and Mr. ,
15 Thomas were sitting on the witness stand, and they were asked.
16 one of the two was asked about that memorandum --
17 MR. TURK: Yes.
18 JUDGE SMITH: -- in that conversation. {
19 MR. TURK: Yes, that 's correct, Your Honor. -
20 BY MR. TURK :
21 Q And can you elate to as what transpired in this
- 22 conversation with Mr. Thomas? ;
23 A (Bores) Well, Mr. Thomas handed out my October 15th ,
24 memo to the RAC, had explained that he had just gotten it and i 25 1ust read it. He was very upset about it, and essentially felt i ;
(
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4
BORES, LAZARUS - DIRECT 11992
() 1 that he was stabbed in.the back by it.
d 2 He indicated that if the NRC perceives the j 3 proceedings of the July meeting that differently, they should 4 have approached him or his counsel as opposed to releasing it i 5 the way it was.
6 Q When you say if the NRC had perceived the July i 7 meeting that differently, that different from what?
8 A (Bores) Than -- than he had.
9 MR. BACKUS: Excuse me. Is this the subj ect of prior 10 testimony in this proceeding. Mr. Turk? Is there a page -- ,
11 JUDGE SMITH: That 's what I stated. There was a 4
12 reference to that memorandum and that conversation, but this 13 testimony has never been adduced, to my memory. ,
14 MR. TURK: That 's correct. Your Honor.
15 MR. BACKUS: I j ust wondered if there was a reference 16 to a date or a page in the transcript we should go where this i'
- 17 came up, if you know.
18 JUDGE SMITH: January 11.
19 MR. BACKUS: January 11th?
20 MR. TURK: Eleventh, 12th, and 13th.
21 Your Honor, that concludes the major portion of my 22 direct examination. There were a series of comments made in 4
23 testimony by Mr. Thomas earlier, on October 7 and November 4 24 1987, in which Mr. Thomas attributed certain remarks to NRC 25 employees or officials.
i Heritage Reporting Corporation (202) 628-4888
B03ES, LAZARUS - DIRECT 11993
\ 1 I don't want to get into it now. I don 't know thet 2 there is any need for a presentation of rebuttal on that. That i 3 certainly was not the purpose for bringing Dr. Bores and Mr. i 4 Lazarus here. But I do note that at some point I may wish to 5 address those matters through testimony.
6 JUDGE SMITH: As rebuttal, you mean.
7 MR. TURK: Yes. However. -- well. I don 't want to ,
8 digress, Your Honor. I don 't feel a need to digress at this 9 time. I want to hold my -- I want to put a bookmarker in place i.
10 so that if I need to come back to this at some point, I 'll be 11 able to.
12 MS. WEISS: Your Honor, we prefer to get it all over [
13 with now rather than to call these people back again, so we 'll ;
14 know everything we have to meet when the next panel of 15 witnesses comes up.
16 MR. OLESKEY: We 've already spent a day. We might as ;
17 well finish it.
18 JUDGE SMITH: Well, Mr. Turk. I 'm not sure I 19 understand your position. You are deferring a judgment as to 20 whether you go into these matters depending upon some event f 21 that is yet to happen. That 's why I characterized it as 22 rebuttal, although that 's not an easy label to put on it given ,
23 what we 're doing here.
24 But if you now plan to offer that testimony, you l 25 should do it now, I would think. I don't understand your !
l Heritage Reporting Corporation f (202) G28-4880 i, I
BORES. LAZARUS - DIRECT 11994 1 position really.
2 MR. TURK: All right. I 'll proceed. Your Honor.
3 JUDGE SMITH: Well, or -- or correct my misimpression 4 or whatever, you know. But I agree with you. If you have 5 examination of this panel which may not be necessary, don 't do 6 it.
7 MR. TURK: Your Honor, the next line of questions 8 would address comments made by Mr. Thomas during Mr. Dignan 's 9 voir dire of him. In the course of Mr. Thomas 's test imony. he 10 attributed various remarks to NRC employees and officials.
11 Now, I have really an ambivalence about whether I ;o 12 ahead on this. I 'm not looking to throw dirt. I 'm not looking 13 to get into fine points. I think we have already established a 14 good accounting of what transpired at the RAC meetings based 15 upon my understanding and belief of these witnesses who appear 16 here today.
17 The only residual concern I have is that at some 18 point I may find Intervenors ' proposed findings of f act relying 19 upon that former voir dire.
20 Actually. I have a solution to this problem. As I 21 recall, the voir dire was not to be relied upon for proposed 22 findings of fact; is that correct?
23 JUDGE SMITH: No. that's not correct. It was in the 24 evidentiary record. But it would not be relied upon unless 25 the -- it would be somewhat on the order like this. You could Heritage Reporting Corporat ion (202) 628-4888 l
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BORES, LAZARUS - DIRECT 11995 :
O 1 not cite direct testimony and propose findings when the I
i 1
2 opportunity for cross for some reason was not -- you know, was 3 not afforded. But I could be wrong; I don 't recall. I i
4 I specifically remember --
5 MR. DIGNAN: I have a memory, Your Honor, that you j 6 indicated at one point in a bit of a firefight going, and you 7 said -- you did make a ruling close to it or not exactly, if 8 not exactly what Mr. Turk indicated, that the voir dire would 9 not be available.
10 My memory is dim but I 've got both voir dires here.
11 If I can have a moment. I might be able to refresh the ,
12 situation if it 's important to do so. l 13 JUDGE SMITH: I remember one statement that what O- 14 started out to be a cross-examination on the relocation f
j t
15 centers, decontamination centers, turned out to be a cross-16 examination or a voir dire. !
17 MR. DIGNAN: That 's correct.
18 JUDGE SMITH: Well, it would be helpful if that point 19 can be clarified. My memory is not reliable at all.
20 MR. FLYNN: May I make a suggestion. Your Honor?
21 It 's near the end of the day, and I have another j 22 matter in which I wish to take about five minutes. Since we i 23 are near a natural breaking point, perhaps this will allow Mr.
24 Turk --
25 MR. TURK: I 'd like to continue --
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P BORES. LAZARUS - DIRECT 11996 O
\/ 1 MR. DIGNAN: Your Honor --
2 MR. TURK : -- because I may release one witness for 3 him to go back to Washington -- to the regional office at this 4 time given the fact that we 're going to lead into cross-5 examination.
6 Actually. I 'm not sure what 's next. I don 't know if 7 the Board is going to have questions that we ask before we get 8 to cross-examination. Presumably, that 's possible. And if so.
9 I won 't release my witnesses, or either one of them yet.
10 JUDGE SMITH: Did you plan to allow Mr. Lazarus to 11 leave and then come back? t 12 MR. TURK : Well, my understanding of Mr. Oleskey is -
13 that he has a substantial amount of cross-examination for Dr.
, O-14 Bores.
15 MR. OLESKEY: True. ,
t 16 MR. TURK : And let me ask if Mr. Oleskey feels that !
17 will consume all of tomorrow.
J 18 MR. OLESKEY: I 'm sure it will, 19 MR. TURK: So as far as M/. Oleskey is concerned.
20 there is no need for Mr. Lazarus to remain tonight or tomorrow 21 morning.
i 22 MR. OLESKEY: I 'm going to get to Lazarus at a point.
23 I think ironically we 're back to the position I was contending 24 for yesterday because of the sequestration, even if it 's now a 25 voluntary one. So I'm in a poor position to contest it, and i
!( Heritage Reporting Corporation l (202) 628-4888 .
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BORES, LAZARUS - DIRECT 11997 1 won 't . As long as the man comes back next week.
2 MR. TURK : Well, there 's another solution. If 3 there 's j ust a litt le bit of cross-examination for Mr. L azarus ,
4 maybe we can finish that off tomorrow morning, let him return, 5 and never have to come back to Concord, and take Dr. Bores 6 seco nd. I think that 's pref erable --
7 MR. OLESKEY: Since Bores has the most to say and has 8 said the most here, in fact, it 's much more sensible for the 9 continuity and clarity of the record to do him, and to do clean 10 up, if you will, with Lazarus.
11 JUDGE SMITH: Well, that nay be, but we have tried 12 very much to accommodate the witnesses. And that may be ideal.
13 but I think you -- can your needs be met in another sequence?
14 MR. OLESKEY: Sure.
15 MR. TURK: All right. Then I assume we 'll have 16 cross-examination of Mr. Lazarus begin tomorrow, and then we 'll 17 have Dr. Bores afterwards, presumably also starting tomorrow.
18 Does the Board wish to engage in Board questioning 19 before the witnesses are sequestered?
?.0 MR. OLESKEY: May I ask before that if Mr. Turk is 21 indicating that he 's made a decision --
22 MR. TURK : No.
23 MR. OLESKEY: -- that he 's concluded with direct or i
! 24 not?
25 MR. TURK: No, I 'm looking for the transcript cite Heritage Reportirg Corporation (202) 626-4888 l
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BORES, LAZARUS - DIRECT 11998 1 for the indication of --
2 MR. DIGNAN: That 's why I was . trying to help out.
3 In the first voir dire that I conducted of Mr.
4 Thomas, Your Honor, at Pages 3094 and 3095 of the record, and S this is the date of October 7, 1987, Your Honor and I engaged 6 in the following colloquy.
7 Judge Smith: "That 's why I termed it somewhat as a 8 voir dire. Massachusetts Attorney General and other 9 Intervenors, but Mass. AG. in particular, are concerned. They 10 weren 't prepared to go into other issues than the substantive H
11 issue today and the particular sheltering.
12 "However, the way I understand it, the cross-13 examination on introductory aspects will not be available for 14 use to propose substantive findings as to any of the issues."
15 Mr. Dignan: "That certainly would be my view. Your 16 Honor."
17 Judge Smith: "Yes."
18 Mr. Dignan: "And I 'm perfectly prepared to so 19 represent. If I have to come back and get something, I 'll get 20 it later."
21 And so my understanding, a t. least of that first voir 22 dire, was that it would not be available for substantive 23 findings.
24 Now, having said that, I took at the time and I 25 assume Your Honor meant the word "substantive", and I meant O Heritage Reporting Corporation (202) 628-4808
BORES. LAZARUS - DIRECT 11999 1 that to be substantive findings in the case.
2 MR. TURK: The answer to that --
3 MR. DIGNAN: I do not think it 's not available to me 4 if for any reason I need, or have to propose a finding as to 5 credibility of a witness.
6 JUDGE SMITH: Well, that 's the whole purpose of voic 7 dire.
8 MR. DIGNAN: Yes. It is available for that.
9 But substantive findings, as I understand it, it is 10 not available. Credibility findings. I assume it still would, 11 MR. TURK: Out of an interest in completing the 12 statement. Your Honor. Mr. Dignan certainly is correct that 13 your first comment about findings did reference substantive 14 findings.
15 After the colloquy that Mr. Dignan related, the very 16 next entry says:
17 Judge Smith: "If you have to come back and pick it l
18 up at the time, you are free to do it. But this session this 13 afternoon would not be available for proposed findings."
20 But I certainly don 't disagree with Mr. Dignan 's 21 characterization that the ',hrust of this went to substantive i 22 findings.
- 23 MR. OLESKEY
- I would throw in one cautionary note 24 here.
25 If Mr. Thomas r.-ver reappeared and we had held by i
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BORES. LAZARUS - DIRECT 12000 1 right, as we did, our cross on the so-called voir dire, it 2 would be my view that the testimony might not be available for 3 anyone for any basis.
4 MR. TURK: The Thomas testimony of October and 5 November on beach shelter.
6 MR. OLESKEY: Right.
7 MR. TURK: I have no obj ection to thet.
8 MR. DIGNAN: No. no, no.
9 MR. OLESKEY: I 'm not saying that. Mr. Turk. I 'm 10 just forecasting --
11 MR. DIGNAN: No, my position --
12 MR. OLESKEY: -- a possible scenario, 13 MR. DIGNAN: -- the Board can overrule it if it is 14 not, anytime a witness goes under oath what he says is 15 available for credibility finding on that witness if it becomes l
16 relevant.
17 MR. OLESKEY: Only --
! 18 JUDGE SMITH: Don 't forget, we did allow cross-19 examination on the voir dire for the purposes of voir dire, l
20 whatever it was.
21 MR. OLESKEY: Yes, but the discussion that 's set 22 forth here. I believe, was that we weren't prepared for that 23 issue to have arisen, that Mr. Flynn wasn't prepared, and had
[
24 told us he didn 't think it was going to come up, and we wanted 25 to hold our voir dire - cross-examination until the subsequent O Heritage Reporting Corporation (202) 628-4888 I
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BORES, LAZARUS - DIRECT 12001 1 date.
2 JUDGE SMITH: Did it say that?
3 MR. OLESKEY: That 's my recollection. I 'm looking at 4 it now.
5 Apparently, you had said,. "Would you have any 6 obj ections to doing what you would like to do this af ternoon 7 next Monday? I mean Monday when we reconvene."
8 And then it goes on at great length, which I can 't 9 summarize fast enough to respond to your question.
10 My recollection is it was left that we pick it up i
11 later when he testified on sheltering, and do it all at once.
12 JUDGE SMITH: See, the issue might be, and I think 13 I 'd have to read the whole thing, but the issue nay be, truly 14 your voir dire was for the very purpose of bringing into 15 question Mr. Thomas 's account of was there a -- without this 16 being a pej orative statement, but was there an opportunity for 17 full rehabilitation on the part of those who were advancing his 18 point of view.
E63 19 (Continued on next page.)
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\-lS4 i That 's what I don 't know. I don 't recall.
2 MR. DIGNAN: The answer is Your Honor may have to 3 decide that, but I remind the Board -- I don 't think this is 4 something anybody has to decide now, because no findings have 5 been proposed, no one knows if a credibility finding will be in 6 order or necessary.
7 But lest my silence be acquiesence of something, I 8 would remind the Board that if that is the approach that 's 9 being taken, that I cannot use his prior statements under oath 10 because there was not an opportunity for rehabilitation, and no 11 pejorative intent, the reason there will be no opportunity is 12 one of two reason: Either he elects to resist a subpoena and 13 not come, or the Attorney General drops the subpoena, but there 14 is no bar to his sitting on that witness stand again.
15 JUDGE SMITH: But he 's not a party.
16 MR. DIGNAN: That 's true, but inferences can be drawn 17 by the refusal to come and testimony.
18 MR. OLESKEY: Not against the parties.
19 JUDGE SMITH: See. not against the party. He 20 can 't --
21 MR. DIGNAN: No, against the witness.
22 JUDGE SMITH: Against the witness.
23 MR. DIGNAN: Yes.
24 JUDGE SMITH: All right.
25 MR. DIGNAN: And that 's what a credibility finding O Heritage Report i ng Corporat ion (202) 628-4888
BORES. LAZARUS - DIRECT 12003 1 is; it 's against the witness.
2 JUDGE SMITH: But I don 't know how we 're going to 3 have --
4 MR. DIGNAN: That 's my --
5 JUDGE SMITH: Well, it 's very complicated.
6 MR. DIGNAN: Your Honor, my point is it may never 7 come to pass if Mr. Thomas never testifies again for all 1 8 know. I am just -- don't want my silence to indicate that if 9 it becomes relevant to have a finding made on his credibility.
10 that I can't use that voir dire material in proposing such a 11 finding.
12 MR. OLESKEY: Just so you 'll know it later if we have 13 to deal with it, at 3099. Judge Smith, you said, after I said.
14 "We 're willing to have Dignan go ahead as long as we can do it i 15 later." You said, "Yes, you do agree, do you not, that they L
16 must have an opportunity to address the points that you are i 17 going to make this afternoon?" !
18 Mr. Dignan: "I sure do. Your Honor. I think a lot 19 of people are looking for a hidden motive here." f i
20 You said, "Well." !
21 Mr. Dignan: "Let me explain right out, if the l 22 testimony is admitted if I don't cross it now, if I don 't make i 23 the move. I did, somebody could say later you passed your i f
24 opportunity."
25 And it goes on in that vein, so that 's consistent [
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i with my recollection.
2 MR. DIGNAN: That 's right, and you have an 3 opportunity. All you have to do is enforce your subpoena.
4 MR. OLESKEY: Well, we 'll enforce our subpoena.
5 We 're only talking about the eventuality which may never come l t
6 to pass if there is a successful effort to resist this 7 subpoena. That 's all, f
8 MR. DIGNAN: And an inference can be drawn as to the [
c 9 witness 's credibility when he makes that successful attempt. j 10 MR. OLESKEY: As you said, Judge Smith, that becomes 11 a fascinating issue, because if the witness isn't a party, then !
12 that adverse inference as to the witness could only be useful i 13 for someone who was attackina the position which the witness is O 14 advocating. which would be as of October the position of the i
[
15 Intervenors.
16 MR. DIGNAN: That 's right. Attack the position by l 17 saying your witness isn 't credible. It 's an age old thing. l f
18 MR. OLESKEY: Yes, but --
19 JUDGE SMITH: See, the witness --
20 MR. OLESKEY: It's not that situation.
21 JUDGE SMITH: The witness is not a party. He has no 22 incentive or no duty to come forward with respect to -- l
?
23 MR. DIGNAN: Your Honor. I understand that. !
24 JUDGE SMITH: Okay. j 25 MR. DIGNAN: You cannot ask for an inference to be [
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BORES, LAZARUS - DIRECT 12005
( 1 drawn against a party. But a case is evidence. And one of the 2 fundamental rules -- for example, on the civil side of the 3 court, it has always been my understanding that the rules is, 4 if somebody puts a witness on and you start cross-examining 5 that witness, and all of a sudden the witness gets in trouble 6 and says, I take the Fifth, you can ask the civil court to draw 7 an adverse inference --
8 MR. OLESKEY: Against that witness.
9 MR. DIGNAN: -- from his taking of the Fifth, against 10 the witness.
11 JUDGE 3MITH: You mean he has to sponsor that 1 12 witness.
l 13 MR. DIGNAN: No, against the witness. And by doing 14 so. you throw out his sponsor 's evidence. That 's my point. l 15 JUDGE SMITH: All right. With respect to the quality ;
16 of the evidence --
17 MR. DIGNAN; Exactly.
18 JUDGE SMITH: -- presented by that witness All 19 right. I think we 'll probably work it all out.
20 MR. OLESKEY: The sponsor 's thrown -- the sponsor has 21 thrown out the evidence anyway.
22 MS. WEISS: It 's already gone.
l 23 MR. OLESKEY: I suggest we return to Mr. Turk 's 24 decision, so we 'll know, and Mr. Flynn has a point, apparently.
25 that he 'd like to make. ;
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BORES. LAZARUS - DIRECT 12006 j
() 1 JUDGE SMITH: Okay. Thank you.
2 MR. OLESKEY: Off of this issue. Something fresh.
f 3 MR. TURK: I'm not sure I understand where we 're at i
4 on this. l t
S MR. OLESKEY: I want to know if you are through with i 6 direct. f i
7- MS. WEISS: Well, just tell us when you are done.
8 MR. DIGNAN: Evidence 201 9 Claughter.)
10 MR. DIGNAN: The advanced course.
11 MR. TURK: Your Honor, my question initially was will !
12 the prior testimony of Mr. Thomas be available for use as 13 proposed findings. I understano now that it will not be. [
f 14 except possibly for credibility. t t
i 15 I 'm not interested in doing any further direct 16 examination, because that direct examination will not relate to 17 Mr. Thomas 's credibility but rather, to the truth of the ,.
I 18 matters as he related them in testimony before the Board.
19 So if I am correct in understanding that there will i i
20 be no substantive findings possible on Mr. Thomas 's prior !
21 testimony. I have no need to do any further direct. I 22 JUDGE SMITH: I think everyone agrees that that is [
l 23 the case, that was the case. That as far as the merits of the l-l 24 issues before us --
25 MR. TURK: I would note if at some t ime -- l Heritage Reporting Corporation (202) 628-4888 ;
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BORES, LAZARUS - DIRECT 12007 l
, 1 JUDGE SMITH: That the so-called voir dire 2 testimony. I 4 t 3 MR. TURK: Yes, both on the October 7th and November !
I 4
4 4th dates.
S I would note, though, that if at some time Mr. Thomas 6 does appear and makes -- either adopts his prior testimony of 7 his voir dire examination and any part material to my interests !
8 here, or makes similar state ents. I will at that time want to ;
9 conduct cross-examination. And I will then wish to bring a ,
10 rebuttal witness on those points. l i !
- 11 JUDGE SMITH
- All right. I t
12 Mr. Flynn. l
. 13 MR, FLYNN: The matter that I wish to bring up is I
14 marginally related to what we were j ust discussing, but it is ;
15 essentially a separate matter. And it has to do with the i
16 factual question of whether there was a vote at the RAC meeting !
1 1 17 in July or not. i i '
i 18 Now, at this point I don't see that FEMA has a stake
\
19 in the resolution of that issue, but I want to raise this just j 20 as a matter of fairness. f a !
l 21 I have expressed concerns about the scope of the l 22 hearing when the matter was first brought up in October or
{
l 23 November. I expressed -- I started an obj ection and expressed 24 concerns about the relevancy of whether there was a vote or f 25 not. I made the argument that what was relevant was that the t
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( 1 views of the RAC members were expressed, and that they were 2 taken into account regardless of what the numbers were.
3 Nevertheless, the question of whether there was a 4 vote or not seems to have taken on a life of its own, and the 5 significance of it to this hearing seems to be it 's the test as-6 to whether Mr. Thomas is credible or not.
7 Now, the information that I feel obligated to bring 8 to the attention of the Board is that in the end of November --
9 MR. TURK: I 'd like to interj ect one thing if I may, 10 Your Honor. ,
11 MR. DIGNAN: Mr. Flynn is about to testify. Andif 12 he wants to take an oath and get up there, he can testify.
13 MR. TURK: And I 'm going to cross-examine.
14 MR. DIGNAN: Yes. We, too.
15 MR. TURK: I want the Board to understand something, j 16 Mr. Flynn advised me in November that he was going to the 17 Vermont Yankee site to interview RAC members. And I told him.
18 I want to come, too. This was in the evening.
19 He knew of my concern. We were in the hearing the 20 next day. He went up anyway that night. He left in the 21 morning without telling ne that he was cetually on his way, and 22 I had no opportunity to be present during any interviews he 23 conducted.
24 And if Mr. Flynn is going to testify here now about 25 his interviews with the RAC members. I 'm going to want to i
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l l l BORES. LAZARUS - DIRECT 12000 l V i cross-examine him and be able to pursue him on the witness 2 stand.
3 MR. FLYNN: I don 't need to get into what I was told.
4 The point is the information that I have would suggest that if 5 you wish to explore that issue of whether there was a vote or 6 not, then it would be important to hear from all of the RAC l l
7 members. j 8 MR. TURK: And. Your Honor. I don 't agree with that.
9 We have witnesses here. Mr. Thones is a witness -- Mr. Thomas He is I 10 is a witness with a different recollection of events.
{
11 able to testify. His credibility as well as the credibility of j 12 the two witnesses here today is subj ect to examination. l l
13 MR. OLESKEY: What we have here is very simple. Mr.
l 14 Thones has testified in January. I believe, and certainly in 15 his deposition, that he and Mr. Flynn had separately 16 interviewed the other RAC nenbers, and none of them have a 17 recollection of any vote.
18 MR. TURK: That 's not his testimony, t
19 MR. OLESKEY: Well, that 's my recollection of i
20 counsel. ;
)
21 MR. TURK: He indicated he was satisfied with their {
t 22 responses.
23 MR. DIGNAN: Why doesn't he bring in the rest of the I
24 RAC?
25 MR. OLESKEY: I 'm happy to have that done. What Mr.
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)
1 Flynn was doing --
2 MR. DIGNAN: Get a subpoena for the rest of the RAC.
3 MR. OLESKEY: Mr. Dignan, may I complete my i
4- statement. please?
5 I understood Mr. Flynn as an officer of 'the court to
{
i 6 be telling you that he has information based on work he did as
, i 7 counsel to a party that supports Mr. Thomas 's version, and l- 8 would substantially be at variance with the version the 9 witnesses are giving you.
I 10 What he 's saying, and I agree, is if this is the i
11 witness test --
i 12 MR. DIGNAN: But he caean 't agree with you.
13 MR. OLESKEY: Well, he 'll state his position in a 14 moment.
15 MR. FLYNN: My comments --
16 MR. OLESKEY: I agree with the position. If this is
} 17 the witness test for whether Ed Thomas 's candor and 18 forthrightness is to be accepted, or one of them as it seems to i
19 have been, then either through examination of Flynn on the 20 subj ect , or by calling in the other RAC members, we 't e entit led 21 to have that information. I hoped it would come out sooner.
22 but I 'm pleased that Mr. Flynn is dealing with it now.
! 23 MR. FLYNN: I 've lost --
24 MR. TURK : Obviously. Your lionor. Massachusetts would like the opportunity to extend the hearings, to bring in as l 25
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m BORES. LAZARUS - DIRECT 12011 1 many people as possible. to search to follow down the smallest 2 detail of an item.
3 MS. WEISS: We 'll take an af fidavit.
4 MR. TURK: I don 't see the necessity.
5 MS. WEISS: You 're the one who vants to cross-6 examine.
7 MR. FLYNN: I appreciate your helpfulness, but I 've 8 lost control of the comments that I wish to make.
9 I made a point of not getting into the substance of 10 what I was told. I simply want to bring to the attention of 11 the Board that the matter is more complicated than it may have
, 12 appeared, and that you have a fundamental choice to either i 13 minimize the importance of thht particular issue of fact. or to 14 expand it. That was my point.
15 JUDGE SMITH: Would you summari=e exactly -- are you 16 making a recommendation to the Board now?
17 MR. FLYNN: No, I simply -- not exactly. It 's j ust 18 that I continue to insist that the matter really is not 19 relevant. .
20 JUDGE SMITH: Well, now let 's take that up.
21 FEMA sent testirony to this hearing in which the I t
I 22 person with the authority to represent -- to implement and i 23 explain FEMA 's policy came to the hearing, and said that FEMA 's 24 position was reviewed by the RAC.
1 25 If these gentlemen are to be believed, the review by l
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i BORES. LAZARUS - DIRECT 12012
.() 1 RAC consisted of five or something to zero against FEMA 's {
i 2 position. l 3 MR. TURK: Your Honor, t
4 JUDGE SMITH: Now, if that is what was meant by j I
5 review, that was what was represented to us, it is a sense of 8
6 the word in the context that it was presented with which I am 7 not familiar. It is somewhat the way a dog might review a :
I 8 tree, if that 's the way the verb is being used. [
9 I mean, that was a very, very sharp thing to have 10 said there, and that is what has caused our attention, so it is l 11 relevant. i
}
12 MR, FLYNN: Your Honor, may I respectfully l 13 suggest --
i O. 14 JUDGE SMITH: I want to apologize for that remark. f 15 It was not considered -- [
i 16 MR. FLYNN: No. I accept that. But the point that I !
17 wish to make in response to that la FEMA never said, in the ;
I j 18 person of Ed Thomas or anyone else, that the RAC agreed with I J i 19 the position that we were taking.
5 20 What I said at -- {
i j 21 JUDGE SMITH: He said that they reviewed it. j 22 MR. TURK : He said there was a collegial process; i
i 23 that RAC was a big part of it. That the position of FEMA was f L
1 24 based -- i t
25 MR. FLYNN: Excuse me. May I --
!C:)
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() 1 MR. TURK: -- on the considered j udgment of --
2 MR. FLYNN: May I have --
3 JUDGE SMITH: Whatever was said was said. We know 4 what it is, but we --
5 MR. FLYNN: May I have this conversation with Judge 6 Smith?
7 JUDGE SMITH: Yes, let Mr. Flynn proceed.
8 MR. FLYNN: Your Honor. I think we very frankly 9 acknowledge that there was a sharp difference of opinion within 10 the RAC. There was no attempt to hide that the position that 11 was developed under those circumstances where we had to react 12 to what we perceived as the change in position by the NRC.
13 Whether that was a fair reaction or not was something that 14 was -- that was put forward without RAC review at that time, in 15 June, and that there was -- and that when the matter came up 16 again at the next RAC meeting, which was in July, there was the 17 sharp difference of opinion that was developed in the voir 18 dire.
19 MR. TURK: With Mr. Thomas being on one side, and 20 everyone else on the other.
21 MR. FLYNN: Excuse me. I would like to be able to 22 finish.
23 MR. TURK : Excuse me.
24 JUDGE SMITH: Please let Mr. Flynn speak.
25 MR. FLYNN: And the focus not narrower and narrower, O Heritage Reporting Co rpo rat io n (202) 620-4688
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BORES. LAZARUS - DIRECT 12014 1 and it came down to a question of not what views were 2 expressed, but was there a poll or a vote as a separate 3 question from who said what. !
[
4 And if you compare Mr. Thones 's account of the ;
5 nonagreement, as he put it, with what Mr. Bores and Lazarus !
G have said about who espoused which position, I think you will l 7 find a very close' congruence.
8 Where the accounts differ is on whether there was a 9 vote at the end of the meeting. And I am saying that is a very 10 minute point, and it had nothing -- and for the purpose of 11 FEMA 's determining what its position at that time should be, it 12 didn 't matter. We had the views. We knew what the views were.
13 And for reasons which will be developed in our own testimony at 14 that time, we chose to take a different position.
15 JUDGE SMITH: Okay.
16 MR. FLYNN: Now what I 'm saying is if, indeed, that 17 very minor. or that very narrow point assumes the importance 18 that everyone here is attaching to it, then there 's more to it 19 than what you 've heard so f ar. And I leave that with the 20 Board, and I 'm not suggesting you do any particular thing at 21 all.
22 JUDGE SMITH: So if I understand your point, you 're 23 not -- you 're not disputing directly the testimony of Dr. Bores 24 and Mr. Lazarus that there was a formal vote taken.
25 MR. FLYNN: I am very pointedly not --
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! () 1 MR. TURK: Your Honor, that is not -- that is not the 2 testimony.
3 MS. WEISS: Let him answer. i 4 MR. TURK : I want to be sure that Mr. Flynn is not 5 asked to agree to a statement that I don 't consider to be the l 6 witness 's testimony.
I Your Honor. I believe you were talking to e 7 MR. FLYNN:
8 me and I am talking to you.
9 MR. TURK: I apciogize.
10 JUDGE SMITH: Well, yes, Mr. Flynn. I 'm having also l
)
11 difficulty in what they said they said is on the record. My !
J charactarization of it, when they asked for a show of hands. I I
. 12 l
13 would regard that as something more formal than the consensus, i
p V 14 soft conse.isus approach that was before. So if you don't like 15 formal, okay. I 'm j ust trying to identify in context what they 16 said.
17 Do you dispute their account that a show of hands or 18 a specific demonstration of position was asked at the end of 19 that meeting? Or is it your position that it doesn't matter; 20 it 's not that important?
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( J/65 1 MR. 2LYNN: Well, I would certainly say that it i 2 doesn 't matter. And I also have to remind everyone that I was 3 not at that meeting, I 'm reporting what other people or I 'm 4 reflecting what other people said to me. And my recollection 5 on that precise point, frankly, is vague with the passage of 6 time.
7 JUDGE SMITH: So you don 't have any position on it?
8 MR. FLYNN: No. What I 'm reflecting is, the memory 9 that I have that when I went and talked to them I came away 10 with the impression that -- well, thet the events could be 11 interpreted in different ways, and as I 've said, there was more 12 to it. I guess what I 'm sugge ' ing is that, if it really is 13 important to get to the bottom of that particular question.
O 14 then it 's correspondingly important to talk to the other people 15 who were there.
16 MR. TURK: Your Honor, if I may make a note of 17 something. I don 't contend that it 's significant that there 18 was this show of hands. I think it 's clear f rom the witnesses '
19 testimony that there was a clear expression of views by 20 everyone present except the lady from the Department of 21 Agriculture. It 's the recollectic of the witnesses, as I 22 understand it, that Ms. Nevitt did raise her hand during this 23 show of hands.
24 I think that 's a Ldnor point compared with the 25 indication of what the RAC position was, of all persons Heritage Reporting Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 12017
() 1 indicating positions other than FEMA.
2 JUDGE SMITH: You mean, the mechanism of hand showing 3 or whatever?
4 MR. TURK: The mechanism itself -- I could have asked 5 the witnesses, in fact maybe it would help if we asked them how 6 long that whole process took. I did hear Mr. Lazarus say he 7 asked a question, he put up his hand indicating, you know, 8 showing -- asking for a show of hands; it was a question and an 9 answer. I don 't think that is as significant as the fact that 10 the RAC during this long extended meeting expressed its views, 11 and those views were contrary to the views of Mr. Thomas.
12 MS. WEISS: If I may be heard, Your Honor. I really 13 think that that is a disingenuous remark considering all the
~
s/ 14 time you spent asking about the mechanics of this so-called 15 vote and three or four questions about what was Mr. Thotas '
16 expression on his face while this vote was being taken. You ;
17 certainly emphasized it, and I think your remarks are 18 disingenuous.
19 MR. TURK: Let me clarify that. I certainly accept 20 the truth of these witnc- 's ' comments about that hand raising, 21 the show of hands process. I think it is relevant. My point 22 is that the most relevant thing is the expression of positions; 23 and this is really the icing on the cake.
24 I am prepared, however, to let anyone be subpoenaed, 25 if that 's necessary, to get to the bottom of whether there was O Heritage Reportiiig Corporation (202) 628-4888
BORES, LAZARUS - DIRECT 12018
() 1 a show of hands. I agree with Mr. Flynn, it 's not the crucial 2 part'of what happened at the RAC meeting.
3 As I understand it, it 's a question and answer, 4 perhaps later on we can find out from the witnesses how long 5 the process of that show of hands took.
6 But I do know that I 'm not convinced that when Mr.
7 Flynn went up to the Vermont Yankee meeting he asked the right 8 questions in order to probe and determine for sure what the 9 witnesses ' recollections were. And I was excluded from that.
10 I wanted to be present. I had hoped that Mr. Flynn and I could 11 pursue the matter jointly, we were not able to. There was an 12 NRC person who sat in the room who had no familiarity with the 13 background, he was simply the person participating in the 14 Vermont Yankee exercise. He certainly is not a lawyer, and he 15 wasn 't aware of the background that he couldn 't probe, he 16 simply was present.
17 And I think the -- if we 're going to get any 18 testimony frcm Mr. Flynn on this it 's going to have to be 19 examinable. And I personally don 't think it 's necessary.
20 JUDGE SMITH: Gentlemen, going from July 30, 1987 at 21 the RAC meeting, as to which you 've testified, until -- and 22 through the time you prepared your memo to Mr. Turk, did you 23 two consult about Mr. Lazarus ' request to Mr. Thomas for a vote 24 and Mr. Lazarus' initiative on his own to ask for a 25 demonstration of opinion of the PAC members; did you consult?
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k/ 1 THE WITNESS: CLazarus) Yes, we did.
2 JUDGE SMITH: And what was the nature of your 3 consultation?
4- THE WITNESS: (L azarus) That we agreed that that 's S what transpired at the meeting, Your Honor.
6 JUDGE SMITH: Did you agree at any time to put that 7 information in a memo?
8 THE WITNESS: CLazarus) We did not put it in a memo 9 until we were requested by Mr. Turk.
10 JUDGE SMITH: And after that time you did not -- when 11 you consulted did you have any agreement that that would be 12 your story, if called upon to restate it or did you just r-)
(/
13 compare memories?
14 THE WITNESS: (Lazarus) No. Your Honor, we did not 15 agree that that would be our story, if we were called upon to 16 compare it. At the time we really thought it was moot because 17 we were waiting for another draft of the FEMA position.
18 JUDGE SMITH: When did it first occur to you that it 19 was not noot?
20 THE WITNESS: (Lazarus) When we saw the copy of the 21 FEMA submitted position, I believe, in October. And we had 22 not, up to that time, received the promised revision to the 23 FEMA testimony.
24 JUDGE SMITH: When did you, after the RAC meeting on 25 July 30th, when did you talk about your shared memory of it, O
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BORES, LAZARUS - DIRECT 12020 1 approximately?
2 THE WITNESS: CBores) We talked about it, I think, 3 when we left the meeting. We talked about it the next day. We 4 certainly informed our management. I believe I had talked to 5 Mr. Turk the evening I got back from that RAC meeting.
6 JUDGE SMITH: From that meeting.
7 THE WITNESS: CBores) We had also talked to, you 8 know, our, you know, the staff at headquarters.
9 JUDGE SMITH: When?
10 THE WITNESS: (Bores) Very shortly after that .
11 meeting.
12 JUDGE SMITH: And then did you have anymore r~- 13 conversations between you two after those?
t 14 THE WITNESS: (Bores) Sure.
15 JUDGE SMITH: On that subj ect matter?
16 THE WITNESS: (Bores) Well, the meeting in general, 17 that 's al l .
18 JUDGE SMITH: But I mean on the events where Mr.
19 Thomas was asked to make a vote and failing that Mr. Lazarus 20 asked for an expression of --
21 THE WITNESS: CBores) Yes.
22 THE WITNESS: CLazarus) Yes. Your Honor.
23 JUDGE SMITH: Continue to tell us the occasions you 24 talked about it?
25 THE WITNESS: CLazarus) I think that -- I don 't know O '
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\- 1 specific dates. I know we talked about the meeting several 2 times, because in my mind, at least. it was a very special 3 extraordinary meeting. Things transpired at this RAC meeting 4 that I had not seen ir. my previous two years in the Emergency 5 Preparedness Section and my frequent attendance at RAC 6 meetings.
7 It stuck in my mind as being extraordinary to the 8 extent that we discussed it, and we. you know, immediately 9 briefed my management. And I included the briefing of the fact 10 that at the end of the meeting that I took a poll, because the 11 sense was that -- I indicated earlier, I sensed that Mr. Thomas 12 did not like my stepping in and doing that, to brief them and 13 let them know that there may be some repercussions on this.
14 JUDGE SMITH: When were you first informed that your 15 views of it were wanted for the purpose of coming to this 16 hearing? When were you first informed that you were -- that a 17 memorandum was requested? When did Mr. Turk first request you 18 to put it in writing?
19 THE WITNESS: (Bores) I don 't have, excuse me. I 20 don 't have the specific date, but it was very close to October 21 15th.
22 THE WITNESS: CLazarus) We responded in a matter of 23 a day or two of his request by telephone to put it in writing.
24 MR. TURK : Your Honor, if I can offer something on 25 that. It 's my recollection it was either the same day of Mr.
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BORES, LAZARUS - DIRECT 12022
~(sJ 1 Thomas ' testimony or within a day thereaf ter.
2 JUDGE SMITH: And from the time you got the request 3 from Mr. Turk, did you confer with each other? I think you 4 already testified on that, but would you just tell me again?
5 THE WITNESS: CLazarus) No, Your Honor, I did not.
6 JUDGE SMITH: In that time you didn 't?
7 THE WITNESS: (L azarus) Yes, sir.
8 JUDGE SMITH: Is that your memory, Dr. Bores?
9 THE WITNESS: CBores) I guess I don 't know on which 10 part you 're ref erring.
11 JUDGE SMITH: When Mr. Turk called, as you -- I 'm 12 really covering what you pr iously said, so it 's not a 13 different question. You testified that Mr. Turk called you and 14 asked you to prepare a memorandum of your memory of that 15 meeting and you told Mr. Lazarus of that request; and did you 16 consult after that as to what your memorandum would say?
17 THE WITNESS: (Bores) No. And I did not see his 18 memoranda -- memorandum, and he did not see mine until they 19 were completed, and I enclosed them in my -- with mine and a l 20 cover letter to Mr. Turk.
21 JUDGE SMITH: Now, when you conveyed Mr. Turk 's l
22 request to Mr. Lazarus, did you discuss what your memorandtim
, 23 might state at that time?
24 THE WITNESS: CBores) No, I did not.
I 25 JUDGE SMITH: Did any other person at the NRC, I
(
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() N' 1 earlier, ask you to be preparing a nemorandum? _
2 THE WITNESS: CBores) No.
3 THE WITNESS: CLazarus) No, Your Honor.
4 JUDGE SMITH: I think we should adj ourn for the 5 night.
6 MR. TURK: May I ask one followup question in light 7 of the Board 's questions.
8 BY MR. TURK:
9 Q Gentlemen, I 'd like each of you to reflect for a 10 moment and indicate to us whether it is your clear recollection 11 of events of the July meeting, as you s;t here today, do you i 12 clearly recollect this show of hands, and I 'd ask each of you
/ 13 to reflect on that and give us your clear personal 14 recollection?
15 MS. WEISS: So I guess this is important now?
16 THE WITNESS: (Lazarus) Yes, I recall it as I 17 testified. j 18 BY MR. TURK:
19 Q Dr. Bores?
20 A (Bores) Yes.
21 MR. DIGNAN: Your Honor, before we adjourn there 's 22 been some indication of letting Mr. Lazarus leave, and I guess 23 what I 'd like to inquire as a matter of procedure. Mr. Turk has 24 inquired as to whether the Board is going to have questiontng 25 before Mr. Oleskey begins to cross-examine. And then the next <
1 () '
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BORES, LAZARUS - DIRECT 12024 1 thing is, if I haie any questions I assume Mr. Oleskey would 2 want me to proceed him.
3 MR. OLESKEY: I should think so. I would want you to 4 get done with Lazarus, if that 's what you 're asking.
5 MR. DIGNAN: Yes, get done with both of them before 6 you proceed.
7 MR. OLESKEY: Actually, I 'd like to -- I thought the 8 order was going to be I start out on cr oss and then we 'd go --
9 MR. DIGNAN: That 's fine with me. I 'm not -- I 'm 10 trying to avoid putting you in a position I of ten fir.d myself 11 in. It would be ridiculous for me to say, I am not, and 12 indeed. His Honor has already indicated that my rights on cross 13 may really be in the nature of direct because of the position 14 I 'm in, in this case.
15 What I 'm asking you, essentially, do you want me to 16 do whatever examination I have of this panel before you cross 17 or do you want to do your cross and then let me --
16 MR. OLESKEY: How much are you going to have?
19 MR. DIGNAN: Very little.
20 MR. OLESKEY: Then let 's get it done.
21 JUDGE SMITH: Well, not tonight anymore. So that 22 means that they will both come back in the morning.
23 MR. TURK: Yes, sir.
24 MR. DIGNAN: The problem is that I have very little.
25 at least one of the questions is for Mr. L azarus . I hate to O Corporation Heritage Reporting ;
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BORES, LAZARUS - DIRECT 12025 O 1 make him stay over to answer one question.
2 MR. TURK: Well, as I understand it he 's staying over 3 anyway, he 'll be the first of the sequestered witnesses to 4 appear.
5 MR. DIGNAN: Oh, all right.
6 JUDGE SMITH: Now, we 're going -- there 's a chance 7 that we -- we 're adj ourned f or the night.
8 (Whereupon, at 5:22 p.m. the hearing was adj ourned to
, 9 reconvene tomorrow morning at 9:00 a.m., Friday, May 20, 1988, 10 at the same place.)
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1 CERTIFICATE O 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 6 NEW HAMPSHIRE, et al.
7 Docket Number: 50-443-OL, 50-444-OL 8 Place: CONCORD, NEW HAVPSHIRE 9 Date: May 19, 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 Rep.ulatory Conunission taken elect ronically by me and, 13 thereafter reduced to typewriting by me or under the direction 14 of the court reportinE company, and that the recording is a 15 true and accurate repr d of "le f o r egoint p:aceedings.
t f
16 /S/ 1 l __
17 (Signature typed):V.ENT ANDREWS 10 Officia1 Reporter 19 Heritage Reporting Corporation 20 21 22 23 24 25 O
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