ML20206S662
| ML20206S662 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 07/03/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Backus R, Dignan T, Gad R, Oignan T, Pirfo O, Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), PUBLIC SERVICE CO. OF NEW HAMPSHIRE, SEACOAST ANTI-POLLUTION LEAGUE |
| References | |
| CON-#386-840 ALAB-839, OL, NUDOCS 8607070406 | |
| Download: ML20206S662 (13) | |
Text
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N.d UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCMETED ATOMIC SAFETY AND LICENSING APRSMC BOARD Administrative Judges:
36 JW. -3 P2 :20 Alan S. Rosenthal, Chairman July 3, 1986 Gary J.
Edles CFF!CE Gr EU'f (ALAB-839)
Howard A.
Wilber DOCMET"G <."
"r!
Bi:A hki fM In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, ET AL.
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50-444-OL
) (Offsite Emergency Planning)
(Seabrook Station, Units 1
)
and 2)
)
)
Robert A.
Backus, Manchester, New Hampshire, for the Seacoast Anti-Pollution League.
Thomas G.
Dignan, Jr., and R.K. Gad, III, Boston, Massachusetts, for the applicants, Public Service Company of New Hampshire, et al.
Edwin J.
Reis and Oreste Russ Pirfo for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER Before us is a petition-for directed certification filed by the intervenor Seacoast Anti-Pollution League (SAPL) asking us to examine a Licensing Board ruling denying SAPL's motion to amend the transcript of a prehearing conference held on March 25, 1986.
The applicants assert that the petition does not satisfy the test for directed certification but claim to lack sufficient information to address the merits of SAPL's request.
The NRC staff supports SAPL's petition.
Finding ourselves in agreement with SAPL and the staff, we grant the petition for directed 8607070406 60703 PDR ADOCK 05000443 3
O f)f0Z PDR
2 I
certification, vacate the Board's ruling, and order the transcript to be corrected.
A.
Background.
SAPL's motion to the Licensing Board asserted that the official transcript was incomplete because it failed to contain a portion.of an exchange between SAPL's counsel, Robert A. Backus, and the Licensing Board chairman.1 SAPL noted, more specifically, that the transcript does not reflect "the chairman's direction that the reporter 'will strike that from the record' (referring 4
to a prior statement by Attorney Backus) or the attempt made by Attorney Backus to preserve his rights on the record."
It alleged that "[a] substantial portion of this interchange was either deleted from the record or altered byLorder of Judge Hoyt to the official reporter."3 The motion appended a comparison of the exchange in question, first, as set out in the official transcript and, second, as taken from a tape recording made by a reporter from one of the radio stations present in the room on the day of the prehearing conference.
l If the comparison is accurate, certain sentences do not appear in, and others differ from, the official version.-
1 Seacoast Anti-Pollution League's Motion to Amend Record of Prehearing Conference of March 25, 1986 (April 10, 1986) (hereafter, SAPL Motion of April 10).
2 Id. at 2.
Id. at 1.
gm e-n g-m 4--
l 3
SAPL told the Licensing Board that it had been informed that the official NRC reporter "has available for transcription the original stenographic notes of all proceedings in the hearing room that day, and can, if and when requested by the Board, prepare a full and complete transcript of the proceeding of that date, with particular reference to the materials omitted at page 2098-2099."4 1
In a brief order, the Licensing Board denied SAPL's request, noting simply that "[t]he sole official transcript of the proceeding is that prepared by the official reporter designated by the Commission (10 CFR S 2. 750 (a) ). "
The petition for directed certification followed.
To preserve our jurisdiction to decide the request for directed certification, we instructed the Licensing Board to ensure the preservation of all stenographic notes and other materials in connection with the prehearing conference.6 Thereafter, we directed the official reporter to provide us with a transcript of the stenotype notes of that portion of the March 25 prehearing conference that is the subject of 4
Id. at 2.
5 Order of April 15, 1986 (unpublished).
6 See Appeal Board Orders of May 30, 1936 and June 2, 1996 (unpublished).
l l
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4 SAPL's motion and to explain any discrepancies between the stenotype notes and the official transcript.
By affidavit filed with us on June 27, 1986, the reporter advised us that her stenotype notes reveal various differences from the official transcript.
Among other things, the reporter indicated:
The words which were omitted from the transcript of Mr. Backus' statement, and which are indicated above in the corrected version of the transcript, were deliberately omitted because of Judge Hoyt's direction to the reporter, also cited above:
"The reporter is to strike that comment from the record."8 B.
Directed Certification.
As recently reemphasized in this proceeding, we employ our directed certification authority only where a licensing board ruling either threatens the party adversely affected by it with immediate and serious irreparable impact that, as a practical matter, could not be alleviated by a later appeal, or affects the basic structure of the proceeding in a pervasive or unusual 7 Appeal Board Order of June 24, 1986 (unpublished).
O Letter of Wendy Cox to C. Jean Shoemaker, Secretary, Atomic Safety and Licensing Appeal Board (June 24, 1986) at 2.
At our direction, a copy of Ms. Cox's letter was transmitted to the Docketing and Service Branch, Office of the Secretary, for service on all parties to the proceeding.
1 l
1 5
4 manner.'
The first test is plainly met here.10 The Commission's regulations and policy guidance mandate that a verbatim transcript of proceedings be prepared.11 As the staff points out, the Rules of Practice require that any issues presented on appeal be supported by the precise portion of the record relied on.12 If SAPL is correct that the official transcript is incomplete or inaccurate, its ability to challenge the Licensing Board's decision by way of an appeal would be compromised.
It may be possible to correct errors in the transcript at the end of the case because the reporting company is apparently obliged under its contract with the Commission to retain stenotype notes and other material until the l
expiration of its contract, when they are turnest over to the i
Commission.
Nevertheless, it is the written transcript 9 ALAB-838, 23 NRC (June 25, 1986) (slip opinion at 9), citing PuSIIe service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
10 We need not decide whether the second test is satisfied as well.
11 l
10 CFR 2 750 (a) and 10 CFR Part 2, Appendix A, V(a) (1).
l l
13 See Certification of Licensing Board (Regarding Reporting of Seabrook Prehearing Conference on March 25-26, 1986) (June 3, 1986) at 2 (hereaf ter, Licensing Board June 3 Order).
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6 filed in the docket and available for inspection at the Public Document Room -- not any underlying notes, tapes or other memorials -- that constitutes the official record.14 As the Licensing Board pointed out, it does not receive or exercise control or custody over the underlying materials.
Thus, we cannot assume that such materials will always be available at the end of a proceeding.15 Moreover, the recollections of the parties, the official reporter, and the Board, which could be critical to an accurate disposition of a motion to correct, will become far less reliable as time passes.
It may well turn out that we will be unable to reconstruct the facts surrounding this incident if we await the end of the case.
Thus, there is a strong likelihood that SAPL will be seriously and irreparably injured if we do 14 See 10 CFR 2.750.
See also 5 U.S.C. 556 (e).
15 The retention of such materials by the reporting company is a matter of contract between that company and the Commission.
We gather that it is standard practice, for example, to destroy the backup magnetic cassette tapes after verifying the stenotype notes.
However, the Licensing Board in this proceeding has ordered all materials retained.
See Licensing Board June 3 Order at 1-2.
We directed the Licensing Board to ensure the preservation of stenographic notes and other memorials concerning the March 25-26 prehearing conference so that we would have ample information with which to rule on the pending petition.
Now that we have done so, we dissolve any requirement we have imposed for the retention of underlying materials.
Nothing in our prior orders should be taken as requiring the reporting company to retain materials in the future except as specifically provided in its contract with the NRC.
7 not act now to determine whether the transcript is accurate.16 i
The applicants contend that SAPL has not been seriously 1
injured and that, in any event, any injury can be alleviated later.
The gist of the applicants' arguraent is that the material purportedly not transcribed related to the Board's exclusion of SAPL Contention 13, and the reasons for such exclusion are set forth elsewhere in writing.
In the 1
applicants' view, "[i]f SAPL is arguing that it should have 1
available to it on such an appeal a record which shows counsel was not permitted fair argument below, the official transcript shows where and on what basis he was cut off."17 4
It may be, as the. applicants contend, that a particular line of argument will not be compromised even if the transcript is incomplete or inaccurate so that no prejudice to the intervenor will eventuate.
But we cannot be certain of such result.
SAPL may wish to present other or different arguments on appeal and an inaccurate or incomplete transcript could impair its ability to do so.
In the absence of an accurate transcript, it may be difficult, if 16 Cf. National Farmers' Organization, Inc. v. Oliver, 530 F.2d 815, 816-17 (8th Cir. 1976) (incomplete record-compromises later appellate review and is sufficient to justify interlocutory relief).
17 Applicants' Brief in Response to SAPL's Motion for Directed Certification (June 10, 1986) at 4.
8 not impossible, to ascertain precisely what transpired at the prehearing conference and determine what bearing that had on the Board's ultimate decision to exclude Contention 13.
C.
Correction of the Transcript.
The Commission's regulations provide that the hearing will be reported by the official reporter under the supervision of the presiding officer and that "[t]he transcript prepared by the reporter shall be the sole official transcript of the proceeding."18 The regulations specifically authorize a presiding officer to order or approve correction of the official transcript.
Corrections are to be made by the presiding officer in the manner provided in 10 CFR 2.750 (b),
i.e.,
in a way that also preserves the transcript as originally recorded.19 18 10 CFR 2.750 (a).
19 10 CFR 2.750 (b) reads as follows:
Corrections of the official transcript may be made only in the manner provided by this paragraph.
Corrections ordered or approved by the presiding officer shall be included in the record as an appendix, and when so incorporated the Secretary shall make the necessary physical corrections in the official transcript so that it will incorporate the changes ordered.
In making corrections there shall be no substitution of pages but, to the extent practicable, corrections shall be made by running a line through the matter to be changed without obliteration and writing the matter as changed immediately above.
Where the correction consists of an insertion, it shall be (Footnote Continued)
=
9 If confronted by a motion to correct, a licensing board is duty-bound to make some good faith effort to ascertain whether the transcript is accurate.20 The Licensing Board's April 15, 1986 order reveals no such effort.
Although the Board noted that SAPL had submitted a recording purporting to show conflicts with the official transcript, it simply recited the self-evident proposition that the official transcript is the one prepared by the reporter.
In response to a request to correct that transcript, such rationale is wholly inapposite and thus insufficient.
It does not explain why the Board rejected the proposed corrections of the transcript or even whether the Board believed the 1
transcript to be accurate or not.
(Footnote Continued) added by rider or interlineation as near as possible to the text which is intended to precede and follow it.
O The regulations permit, but do not require, the stenographic reporting of prehearing conferences.
See 10 CFR 2.751a (c) and 10 CFR 2. 752 (b).
When such reporting is used, the rules pertaining to stenographic transcripts apply to prehearing conferences.
See generally Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1),
LBP-80-22, 12 NRC 191, 193-94, aff'd, ALAB-619, 12 NRC 558 (1980) (Licensing Board declines to approve or rely on transcript of prehearing conference because of its poor quality).
21 Cf. United States v. Carter, 347 F.2d 220, 221 (2d Cir.), cert. denied, 382 U.S.
888 (1965) (statute providirsg that the transcript "shall be deemed prima facie a correct statement of the testimony taken and proceedings had" clearly implies that the transcript is subject to correction).
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10 1
We do not suggest that the Board was obliged to i
undertake extensive investigation to rule on the motion.
An 4
examination commensurate with the need to ascertain the facts (if not airaady known to the Board) can be conducted a
promptly and efficiently, without elaborc'o procedures.
Nor does the requirement that a licensing board seriously entertain motions to correct in order to ensure an accurate transcript impinge upon a presiding officer's authority to l
regulate the conduct of a proceeding, including the authority to " strike" material from the record.22 i
i In the instant case, the affidavit embodying a j
transcript of the reporter's stenotype notes and the 1
reporter's recollections of the incident makes it clear that not all of what actually took place at the prehearing 4
22 A licensing board may properly " strike" material i
from the record during the course of a proceeding.
Such
" striking" is noted in the transcript and the material is not relied on for decisional purposes.
As with a correction j
of the transcript, the record must nonetheless preserve what was stricken so that a reviewing tribunal can decide whether 1
the board's action was proper.
Except perhaps in highly i
unusual circumstances and with appropriate safeguards, the stricken material is not to be physically excluded or expunged from the record.
Cf. Metropolitan Edison Co.
j (Three Mile Island Nuclear Station, Unit,No.
1), ALAB-807, j
21 NRC 1195, 1212 (1985) (transfer of testimony from public transcript to in camera portion of the record).
Striking j
material from the record contrasts with an "off-the-record" discussion, which must be identified as such at the outset.
i N
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11 conference is included in the official transcript.23 It is unclear from all the circumstances, including the reporter's affidavit, whether the presiding officer intended that a portion of the conversation literally be expunged from the transcript or whether the reporter simply assumed that the presiding officer's direction to her to " strike" material required physical excision.
In either case, the exclusion of the material was improper and the transcript should have been corrected.
We therefore order the transcript corrected to reflect what actually transpired -- as embodied in the reporter's stenotype notes -- as follows:
Page 2099, lines 3-5 should read:24 JUDGE HOYT:
Mr.
MR. BACKUS:
Madame Reporter, would you please
[ indicate} the chairman is forbidding me to make a statement on the record.
I will go on.
23 On the day following the exchange, SAPL asked the Licensing Board orally to amend the transcript.
The Board, as is its prerogative, declined to consider the matter at that time and, instead, insisted that the request be made in writing.
Tr. 2308-09.
As far as we can tell, the Board thereafter ruled on the request without either awaiting the receipt of answers from other parties or requesting the views of the offical reporter.
24 The reporter indicates that lines 2-5 of page 2099 should be changed.
But the reporter's changes appear to be confined to lines 3-5.
12 JUDGE HOYT:
No, sir, you will not.
You will continue, Mr. Backus.
We will consider your argument.
The 1
reporter is to strike that comment from the record.
Do you wish to continue or do you wish to cease at this point?
We have not made all the corrections requested by SAPL.
As to the others, the reporter indicated that no further changes were warranted.
Yet the transcript, as now corrected, differs from the radio station tape recording.
As SAPL acknowledges, the tape recording cannot be assumed to be definitive,25 and any differences between the versions may ultimately have to be resolved in favor of the official transcript.
But, not having been present at the prehearing conference, we have no basis for determining whether any additional changes are justified.
If SAPL wishes, it may promptly tender a motion to the Licensing Board to make the remaining changes.
The Board shall thereafter rule on SAPL's request based on appropriate criteria, which may include its own recollections.26
'l 25 SAPL Motion of April 10 at 1.
6 See generally United States v. Smith, 562 F.2d 619, 620-21 (10th Cir. 1977).
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The petition for directed certification is granted and the Licensing Board's April 15, 1986 order is vacated.
The transcript shall be corrected as provided in this opinion and, in accordance with 10 CFR 2.750(b), the Secretary is requested to make the necessary physical corrections.
It is so ORDERED.
FOR THE APPEAL BOARD QO_ SN --
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C. JQn Sho'emaker Secrevary to the Appeal Board l
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