ML19325D508
| ML19325D508 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/19/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#489-9358 ASLBP, OL, NUDOCS 8910240292 | |
| Download: ML19325D508 (27) | |
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OFFICIAL TRANSCRIFT OF PROCEEDINGS r
keOG' Nuclear Regulatory Commission
Title:
postic S,yice comp ny of 3,
Hampshire, et al.,'(Seabrook Station, Units 1 and 2)
Docket No.
so-443-ot and so-444-ot
(
(offsite Emergency Planning) i MTION:
Bethesda, Maryland PAGE DAl?.:
Thursday, october 19, 1989 28297 - 28321 fj[ ll ANN RIlEY & ASSOCIKES, LTD.
1612 K St. N.W, Suite 300 Rshirgton, D.C 20006
'i6k".....!$5!O,$A43 (202) 295-3950
,Id8Ed 1
sc
l 28297 1
UNITED STATES NUCLEAR REGULATORY COMMISSION 2
3 ATOMIC SAFETY AND LICENSING BOARD 4
5
x 6
In the Matter of:
Docket Nos.
7 PUBLIC SERVICE COMPANY OF 50-443-OL 8
NEW HAMPSHIRE, et al.,
50-444-OL 9
(Seabrook Station, Units 1 and 2) :.
(Offsite Emergency 10
x Planning) 11 Nuclear Regulatory Commission 12 East-West Towers 1
I 13 4350 East-West Highway 14 Bethesda, Maryland 15 Thursday, October 19, 1989 l
16 17 The above-entitled matter came on for prehearing i
18 telephone conference, pursuant to notice, at 9:30 o' clock a.m.
19 BEFORE:
1 20 JUDGE IVAN W.
- SMITH, 21 Chairman, Atomic Safety & Licensing Board 22 JUDGE RICHARD F. COLE, 23 Member 24 JUDGE KENNETH A. McCOLLOM, l
25 Member e
28298
-l 1
APPEARANCES:
2 On behalf of the Applicant:
i 3
THOMAS G. DIGNAN, Esquire 4
Ropes & Gray l
5 One International Place l
~
6 Boston, Massachusetts 02110 7
8 On behalf of Seacoast' Anti-Pollution League:
9 ROBERT A. BACKUS, Esquire 10 Backua, Meyer & Solomon 11 222 Lowell Street i
12 Manchester, New Hampshire 03105 13 l
14 On behalf of the Commonwealth of Massachusetts:
i 15 JOHN TRAFICONTE, Esquire l
16 Assistant Attorney General 17 1 Ashburton Place, 19th Floor 18 Boston, Massachusetts 02108 19 20 On behalf of the New England Coalition on Nuclear Power:
21 DIANE CURRAN, Es[plire 22 Harmon, curren and Tousley 23 2001 "S" Street, N.W.
24 Suite 430 25 Washington, D.C.
20009
l 28299 1
APPEARANCES:
(continued)
F 2
3 On behalf of the NRC Staff:
4 EDWIN REIS, Esquire 5
Office of General Counsel 6
U.S. Nuclear Regulatory Commission 7
Washington, D.C.
I 8
9 Also Present:
f 10 ROBERT R. PIERCE, Esquire 11 Atomic Safety and Licensing Board 12 U.S. Nuclear Regulatory Commission l
13 Washington, D.C.
20555 14 15 16 l
17 18 19 20 21 I
22 23 24 25 t
n--
--n
28300 1
PROCEEDINGS 2
'[9:30 a.m.]
l 3
JUDGE SMITH:
We are on the record.
The operator, in 4
calling the roll for this conference call, indicated that Judge 5
McCollom was present.
He is not.
Judge Cole is also present, 6
however.
7 JUDGE McCOLLOM:
Judge McCollom is here.
8 JUDGE SMITH:
Oh, are you on?
9 JUDGE McCOLLOM:
I am for the time being.
l 10 JUDGE SMITH:
All right.
So all three members of the 11 Board are present.
12 Did I hear a new name in that list of those on this 13 conference call?
Who was that last one the operator mentioned?
14 Would you tell me again who is present?
Mr. Dignan.
15 MR. DIGNAN:
Yes, Your Honor. '
16 JUDGE SMITH:
Mr. Traficonte.
17 MR. TRAFICONTE:
Yes, Your Honor.
18 JUDGE SMITH:
And who is present for the Staff?
19 MR. REIS:
Reis.
20 JUDGE SMITH:
Is there anyone else, Mr. Backus?
21
' MR. BACKUS:
Yes, Your Honor.
22 MR. PIERCE:
Diane Curran.
23 JUDGE SMITH:
Oh, Diane curran.
24 MS. CURRAN:
Yes, Your Honor, I am here.
25 JUDGE SMITH:
All right.
I wanted to have the
i 28301 1
1 parties join us this morning to bring up the considerations for 7
i 2
the motion with respect to the on-site exercise.
The first 3
thing we want to identify, are there any new documents, 4
reports, motions or anything else of importance in the pipeline i
5 that we should know about?
We want to know about them as early 6
as possible.
7 I had understood from Mr. Pierce that Mr. Traficonte l
8 had alluded to another motion that he was going to file.
9 MR. TRAFICONTE:
Yes.
If you would like a report, 10 Your Honor, I can just indicate that on the 13th of October we 11 filed a second motion that set forth additional scope 12 contentions based on our receipt raf the scenario document on 13 the loth of October.
14 Upon receipt of your low power decision, which we did 15 not receive in this office until the 16th on Monday of this 16 week, we filed that day an additional supplement to both our I
17 Saptember 29 and our October 13 motions, the purpose of which i
I 18 was to address the Motion to Reopen standard which in l
l.
19 accordance with your lower power decision, it may well be that i
20 you will apply to there two on-site exercise motions.
i 21 In addition, yesterday ---
22 JUDGE SMITH:
Wait a minute.
Let me clarify that.
+
23 Right now, there are three motions or two motions and a 24 supplement.
25 MR. TRAFICONTE:
Your Honor, there are two motions to
1 28303 1
which we would seek to have two or three pagar appended as of J
2 Monday of this week which address for both motions why the i
3 scope contentions meet the Motion to Reopen standard.
4 We have not addressed that standard in either of the 5
original two motions because we did not believe, as we do not 6
believe, they are applicable.
But in reading your lower power 7
decision, it is clear to us that you either have decided that 8
that standard is applicable or that you may well decide, and to 9
protect our rights, we felt it necessary to address that 10 standard, and rather than re-file the documents in their 11 entirety, we simply sought to append to both.the two or three 12 page analysis on the Motion to Reopen' standard.
So we did that 13 on Monday.
I 14 JUDGE SMITH:
All right.
We have received all three 15 of them.
16 MR. TRAFICONTE:
Now, yesterday as I had indicated to l
17 Mr. Pierce, I believe on Monday, we had intended yesterday to l
18 file a Motion for Summary Disposition on all of the scope 19 contentions.
l i
20 We, on that day, in fact, as we were preparing to
{
o l
21 file it, we received the staff's response accompanied by l-22 affidavits.
We received the staff's response to the September 23 29 motion.
We decided to defer filing for one day because the 24 staff raised arguments, some of which were similar to the 25 Applicant's, but there were some additional points.
{
t
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I l
28303 1
We thought that we would simply respond to those 2
arguments in this same Motion for Summary Disposition.
So we 3
have filed that yesterday Federal Express and it should be
[
4 received shortly.
That motion is not designed to put new 5
issues before anybody.
It is designed to support in a Motion 6
for Summary Disposition posture our charge that the September 7
exercise was not sufficient in scope to meet the requirements.
8 JUDGE SMITH:
Do either the Applicant or the Staff 1
9 intend to issue any new documents or toports which would be 10 relevant to the motion.
t 11 MR. DIGNAN:
I have prepared -- it is not ready for 12 release yet, it is in rough draft form -- an answer to the I
13 second motion.
14 JUDGE SMITH:
I was alluding to business documents, 15 reports and not pleadings.
16 MR. DIGNAN:
Oh, I am sorry.
17 JUDGE SMITH:
I will come to that.
18 MR. DIGNAN:
I am sorry.
No, I have no business 19 documents or reports in the pipeline.
20 JUDGE SMITH:
That you know of.
21 MR. REIS:
The staff has what may be something 22 relevant to that.
We have pending and are considering the 23 issuance of an enforcement action -- no, I am sorry.
That 24 doesn't relate to the low power -- to the exercise.
I am-i 25 sorry.
~..-.
i 28304 1
MR. TRAFICONTE:
Your Honor, if I might just, I think 2
I know what the question is designed to elicit and I would just 3
indicate that we do have an open FOIA request to the staff with 4
regard to the on-site exercise.
5 It was pursuant'to that FOIA request that we received 6
the scenario document on the 10th.
That was the only document 7
we received.
We have requested pursuant to FOIA, for example, 8
the evaluator's notes and other evaluator documents and simply 9
have not received them.
e 10 Now I can make no representation whether they are 11 going to resist production, whether they will produce them, 12 whether anything would come of our receipt and review of them.
l 13 I have no idea and take no position one way or the other, but 14 we certainly have requested pursuant to FOIA more documents 15 pursuant to on-site exercise than we have received.
l l
16 JUDGE SMITH:
So we may have some additional l
17 documents produced by the staff relevant to the on-site 18 exercise?
19 MR. TRAFICONTE:
Pursuant to our FOIA request, yes.
20 Whether they could or would lead to a contention, I have no 21 idea since I don't have any idea what the documents are going 22 to indicate.
23 JUDGE SMITH:
You have asked for the evaluator's 24 notes on the on-site exercise?
25 MR. TRAFICONTE:
I don't have the FOIA request in P
a.--
--w
..n,
--e.-
r
28305 1
front of me, but essentially we had asked the staff in the FOIA 2
mechanism for the similar set of documents that the staff 3
generated or documents that they took into their position that 4
we had asked of EEMA in discovery pursuant to the FEMA review 5
of the June 1988 exercise.
6 JUDGE SMITH:
Can you give us a report on that, 7
Mr. Reis?
8 HR. REIS:
All I cangsay at this point is that that l'
9 request is pending.
I don't know at this point what documents 10 we will get and what documents exist or which we will claim 11 privilege on.
We certainly will claim privilege on those that 12 are generated in the course of and are not final documents but 13 are interagency memoranda and such.
14 MR. TRAFICONTE:
Your Honor, just to add a point, and not to belabor the issue, but just so everyone is clear, when I 15 l
16 say we have requested this type of documents, in addition, we 17 have requested, and it is pending, any documents in the form of 18 correspondence or intra-agency documents regarding the proper 19 secpe of the exercise.
l j
20 Although we a,re of the view that the issue is 21 basically a legal one and can be addressed at this point, we i
22 have still sought further documents concerning the NRC and the l
l 23 applicant's negotiations, if that is the right word, concerning 24 the proper scope of the September exercise and the approval of i.
l 25 the scenario by the staff.
So that is an additional aspect of
28306 i
1-the FOIA raquest.
~ bviously, since no contentions have 2
JUDGE SMITH:
O 3
been admitted on the on-site exercise, we have no jurisdiction 4
over the production of relevant documents or really for 5
anything else.
I am sure that Mr. Reis, that the staff, has 6
fully weighed the potential for extending the proceeding before 7
this Board from any dispute over the production of documents.
1 8
MR. REIS:
Yes, we have, Your Honor.
However, we are l
9 still gathering them and seeing whether they should be 10 released, and these would be matters, of course, that they claim we wrongfully or do not produce documents in FOIA, the 11 12 remedies are in court and not before this Board.
I 13 I think this Board can come to a decision before l
14 those matters are determined.
15 JUDGE SMITH:
That may very well be but I want it 16 clearly on this record where the responsibility for delay of 17 this proceeding lies.
i 18
- MR. REIS:
Undoubtedly, Your Honor, and we are acting 19 on those matters, I believe, promptly.
20 JUDGE SMITH:
I have seen no evidence of prompt l
l 21 action on either the Applicant's part or the Staff's part in i
22 this proceeding.
You have relaxed and you have followed the 23 ordinary time provisions for filing answers and responses which 24 is the next item I want to take up, and that is that I believe 25 that under the circumstances that we have here, there should be i
i 28307 l
1 anortened times for answers and responses to pleadings, and 2
that such answers and pleadings should be filed as soon as it 3
is practical to do so, but no later than the regulatory times.
4 I would like to hear if you acquiesce to that or 5
object to it or whatever it might be?
i 6
MR. DIGNAN:
I certainly have no objection, Your 7
Honor.
There must be some pleading that the Applicant is using 8
up time.
I didn't think we had.
j j
9 JUDGE SMITH:
No.
You are filing your pleadings l
10 based upon when they are expected to be filed according to the 11 regulations and, as far as I can see, without any feeling of --
i 12 MR. DIGNAN:
Well, Your Honor, there is a pleading 13 that I told you I have drafted, for example.
Under the 14 regulations, that isn't due until the 25th.
I plan to have it 15 out of here no later than tomorrow.
16 JUDGE SMITH:
Well, the Board will ask that answers 17 to motions be filed as soon as practical, as soon as they are 18 ready and can be made ready.
i 19 MR. REIS:
The staff has not held any pleadings for 20 the time.
The time that we have taken was the time we felt was i
21 necessary to prepare a proper pleading.
We will try and 22 expedite that to the extent possible and see if we can beat the 23 due date.
24 MR. TRAFICONTE:
Your Honor, might I just add one f
25 point.
It is Mr. Traficonte.
Obviously, I have no dog in the
28306 1
fight as to when the staff and applicants file answers to 2
pleadings.
3 I would just like to note for the record that the j
4 inspection report which we received from the applicants 5
attached to a response that they filed, I believe, last week, 6
that that inspection report was Federal Expressed or otherwise i
7 transmitted to the applicants on the 5th of October and that we i
G had not received and I don't believe we have yet to this day i
9 received it from the NRC staff, but I would have to check f
10 yesterday's mail.
i 11 We have been using the one that we received as an 12 appendix to the applicant's response, and I would just like to 13 note that if and when the staff is going to Federal Express or 14 fax documents of a public nature to the applicants, that it do i
15 so to the intervenors as well.
16 MR. REIS:
Mr. Traficonte and the Board, I have l
17 instructed the staff since that happened to do so.
I sincerely i
18 apologize to the Intervenor.
There was a foul-up, I can say, 19 in the dispatch of that document.
l I
20 Although we attempted to get it out as soon as
(
l 21 possible, apparently our mail room, which is in the Region, 22 dispatches the section reports, decided to act in the usual 23 course of business which wasn't too prompt and I certainly am 24 embarrassed by the failure to promptly dispatch that and 25 dispatch it in the same way to the Intervenors as to the
28309 1
Applicants.
2 JUDGE SMITH:
I would also suggest, Mr. Reis, that 3
you ask the staff people to keep you personally well informed l
4 as to when they are sending these documents out.
5 MR. REIS:
Yes, I have.
6 JUDGE SMITH:
Normally I share the view of the Appeal 7
Board expressed on Board notification items and that is, I 8
think it is a better procedure for the Office of General 9
Counsel to manage the provision of documents to the Board and 10 to the parties rather than the staff.
1 like to see them come 11 from the OGC if possible, at least with some indication that 12 OGC is aware that they are being provided by the staff.
13 MR. REIS:
Your Honor, in the ordinary course I 14 certainly agree with you, but the staff also has enforcement 15 duties, and I don't want to have the licensing duty impinge or 16 in any way lessen our enforcement duty and, therefore, the 17 enforcement matters -- although we will keep the Board and the
~
18 parties promptly informed of what enforcement -- and the 19 region, I don't want the licensing action to impinge upon the 20 enforcement action.
21 JUDGE SMITH:
Well, I think an argument can also be 22 made the other way, too, that the enforcement action at this 23 stage of licensing should not impinge upon the licensing.
24 MR. REIS:
Yes, Your Honor.
25 JUDGE SMITH:
Since you have a shut-down cold plant.
)
28310 i
1 MR. REIS:
Yes.
i 2
JUDGE SMITH:
So we have the commitment from OGC and 1
3 Mr. Dignan that pleadings will be filed to the Board as soon as 4
they are ready and they will be made ready as soon as i
5 practical, and they should be filed by the most expeditious way t
6 and that is Express Mail.
l 7
MR. REIS:
Mr. Chairman, one item on Express Mail.
I 8
The Express Mail the staff will make, unless other parties 9
raise the issue, is to the Applicant, Massachusetts and NECNP, i
10 and I am not sure whether Mr. McEachern should also get it by i
11 Express Mail.
He is not on the line, is he?
12 JUDGE SMITH:
As a matter of fact, I have to jog my 13 memory to recall who Mr. McEachern represents?
l 14 MT:. REIS:
The Town of Hampton.
15 JUDGE SMITH:
He still represents them.
I would not 16 put the staff to that burden.
However, I think that you should 17 also include the Attorney General of New Hampshire.
18 MR. REIS:
We will do that.
I 19 JUDGE McCOLLOM:
This is Judge McCollom.
Being 20 remote from the facilities, I would hope that you would at 21 least do it for the judges as well.
(
22 JUDGE SMITH:
Yes.
Does everyone understand that l
23 Judge McCollom, even as he speaks today is in Stillwater, 24 Oklahoma and not in East-West Towers?
t 25 JUDGE McCOLLOM:
And I am being distributed,
[
I 28311 1
unfortunately, to East-West Towers too often by the parties.
l 2
MR. TRAFICONTE:
I did not understand that, Your i
3 Honor, and I apologize.
We have been sending, I think, three f
4 copies to Mr. Pierce Federal Express and I don't believe we r
5 have had the practice of sending anything to Oklahoma.
Is that 6
what we should be doing?
7 JUDGE SMITH:
Yes.
8 MR. TRAFICONTE:
All right.
9 JUDGE SMITH:
At least I am pleased to know that those of you in Boston are aware of the existence of the State 10 11 of Oklahoma.
12 MR. TRAFICONTE:
Your Honor, I have heard of i
13 Oklahoma.
4 14 JUDGE SMITH:
That is progress right there.
15 MR. TRAFICONTE:
I have heard of it.
\\
16 JUDGE SMITH:
Good.
17 JUDGE McCOLLOM:
I have heard of Massachusetts, too.
18 (Laughter.)
19 MR. TRAFICONTE:
I am sure you have, Your Honor.
Can 20 you give me your address?
21 JUDGE McCOLLOM The address is 1107 West Knapp, t
22 K-N-A-P-P, Stillwater, that is all one word, Oklahoma, 74075.
23 MR. TRAFICONTE:
And is Knapp, K-N-A-P-P?
24 JUDGE McCOLLOM:
That is correct.
25 MR. TRAFICONTE:
You will be separately sent out on e
I 28312 1
the service list.
We had not understood we were to do that.
j 2
JUDGE McCOLLOM:
All right.
Thank you very much.
l i
f 3
MR. TRAFICONTE:
Yes.
4 JUDGE McCOLLOM:
Mr. Backus also has that problem, by
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r 5
the way.
j 6
JUDGE SMITH:
Mr. Backus.
r 7
MR. BACKUS:
Yes.
i i
I 8
JUDGE SMITH:
I wonder if you might note Dr.
9 McCollom's statement and also if you will bring it to Jane 10 Dowdy's attention, too.
11 MR. BACKUS:
Yes, I will.
l j
12 JUDGE SMITH:
Thank you.
I 13 MS. CURRAN:
You haven't been getting anything from i
23 me either, Judge McCollom, so I have taken a note of it, also.
15 I just don't remember seeing anything.
16 JUDGE McCOLLOM:
Thank you.
17 JUDGE SMITH:
We are talking about Express Mail in 18 particular there.
All right.
19 There is one last thing I want to bring up about the 20 exercise motion, and that is the Board would hope that we don't 21 have to fuss about the accuracy of undisputed facts, and I i
22 would ask the parties if they could perhaps provide us a 23 stipulation of what did happen at the racetrack or what did not 24 happen at the racetrack and that kind of thing.
25 MR. TRAFICONTE:
Your Honor, in that regard, in
I 28313 l
1 yesterday's Motion for summary Disposition, we attached i
2 pursuant to the rule a five or six-page statement of undisputed 3
facts which we based on the inspection report and the scenario 4
document, I think, exclusively.
i 5
JUDGE SMITH:
Of course, there is a problem with your
)
6 pleading, your Motion for summary Disposition, and that is r
7 there is nothing before the Board yet to summarily dispose of.
8 However, I wonder if we could explore the possibility of f
9 addressing the entire issue before us, in a manner similar to I
10 summary disposition.
11 MR. TRAFICONTE:
Well, Your Honor, the first secti,on 12 of the memorandum in support of the motion speaks to that 13 point, and we make the following argument, essentially.
We say 14 that we have researched the Motion for Summary Disposition rule i
15 as it has come down in the NRC and it apparently is designed to 16 track Rule 56 of the Federal Rules.
17 We then turn to Rule 56 of the Federal Rules and it 18 permits summary disposition within 20 days of filing a 19 complaint by a plaintiff even before an answer had been filed i
20 by a Defendant.
21 So in the first instance, I agree with you that there 22 is nothing admitted, so in some sense, it is not clear how we 23 could move for summary disposition; but on the other hand, 24 because our view of this is that the scope contentions raise i
25 purely legal issues, we thought it was appropriate to structure i
i 28314 j
1 it this way, and we argue in the alternative that since we 2
think that the entire issue is really a threshold merits 3
determination, I think in this instance the determination as to
)
4 whether the contention is admissible is at the same time a i
i 5
determination whether the contention not only has merit but the j
6 Intervenors will prevail.
7 It is one and the same issue, and for that reason, as t
8 a procedural vehicle, we thought summary disposition was 9
appropriate.
We are not resisting the characterization of this 10 decision as a threshold decision, but in order to reach that or 11 to make a decision on that, we think that the legal analysis 12 that we present in the memorandum is necessary.
13 I don't have any problem.
We don't think, for l
14 examplo, we just can't imagine what a hearing on this issue l
15 would involve.
16 JUDGE SMITH:
Right.
I am trying to cut short a l
17 needless round of pleadings, if possible.
I can envision if l
18 you file a formal Motion for summary Disposition that the 19 answers to it will predictably come in that, "Well, wait a 20 minute, you don't have any contentions and therefore the motion 21 should be denied."
l 22 But it could be cast possibly in an area where we do 23 have jurisdiction, and that is, can be cast as to raising the 24 question whether or not there is a legal basis for the 25 contention.
}
28315 1
MR. TRAFICONTE:
That is what I was trying to
{
2 indicate, that we do it'in the alternative.
We argue as a 3
Motion for Summary Disposition on the contention once it is 4
admitted or, in the alternative, we provide the legal basis for l
5 the admissibility and then, upon admission, disposition in our 6
favor.
I don't frankly see any meaningful distinction there.
7 MR. REIN:
Your Honor, this is Mr. Reis.
I don't see 8
any difference in passing on the summary disposition motion or 9
passing on whether there is a basis for this.
I think this 10 motion is redundant.
I think the issues will be based on 11 whether there is a basis for the contention.
12 JUDGE SMITH:
Well. the point is if the Motion for 13 Summary Disposition properly raises that issue, I don't want to 14 spend a lot of time on this.
15 MR. REISt It is raised by the pleadings is my point.
16 JUDGE SMITH:
I beg your pardon?
I 17 MR. REISt I believe it is already raised by the 18 pleadings that are before you, or will be filed.
19 JUDGE SMITH:
Right.
I just don't want the 20 opportunity to address the legal basis for the contentions to l
fail because of a technicality'that it is a motion for summary 21 22 disposition.
But as Mr. Traficonte explains, he has filed it 23 on an alternative basis, and I don't think we ought to pay much 24 atter; tion to the fact that contentions haven't been accepted 25 yet, that being the major distinction between Rule 56 and our n.,
28316 I
summary disposition rule.
2 MR. REIS:
Your Honor, we feel we have already 3
briefed this and the time for briefing this has passed.
We j
4 briefed this on whether there is a basis for the contention.
5 MR. TRAFICONTE:
Your Honor, let me respond to that 6
point because, as I say, this motion that we filed this morning 7
and the memorandum in support in the beginning anticipates 8
precisely what Mr. Reis just said.
9 Our concern was that we were going to get a decision l
10 on admissibility before we could actually make our legal 11 argument.
We didn't think it is appropriate in the contention
{
12 and basis statement or in the accompanying motion for late 13 filed to put in the legal analysis that supports our view.
We 14 have not done that until this motion.
l 15 MR. REIS:
Your Honor.
j 16 MR. TRAFICONTE:
Now Mr. Reis thinks that we had i
17 already had the opportunity to brief this, and I would ask him 18 at what pleading stage to date have we been given the 19 opportunity to brief our claim that this exercise was of l
20 insufficient scope, since all we have done to date is to file 21 contentions and a motion to meet a late filed standard.
When I
(
22 was that to be briefed?
l 23 MR. REIS:
Upon that motion.
Obviously any 24 contention has to have a reasonable basis and you brief it at 25 that time.
~ _ _
28317 l
1 NR. TRAFICONTE:
You actually brief as part of the 2
submission of a contention.
You put in a brief to support your 3
claim that this is a legitimate contention.
l 4
NR. REIS I am sorry, Mr. Traficonte.
You cut me 5
off.
I was speaking.
Let me continue and say, this is just 6
another example of trying to file more and more pleadings in i
7 this proceeding.
Pleadings were sufficient to cover this 8
matter and they should have covered this matter.
There is no 9
reason for additional pleadings on this point.
10 JUDGE SMITH:
All right.
3 11 MR. TRAFICONTEt, Your Honor, might I just respond i
12 again to what Mr. Reis said, because the pleading we filed 13 yesterday, as I indicated, anticipated that Mr. Reis at least 14 would take this position, and so it is also pleaded in a third 15 alternative.
16 We also plead and ottier this motion and the 17 accompanying memorandmn as an amended basis, and I set out in 18 the memorandum -- and now 1 am frankly quite glad and I would 19 like to indicate this on the record, I am quite glad that I did 20 that, and I now do believe it was necessary.
We set out in the 21 memorandum why the memorandum treated as an additional amended 22 basis meets the late filed contention standard as well as the 23 motion to reopen standard.
24 So really, frankly, no matter how Mr. Reis is going 25 to try to view this, I think the memorandum of law, which in
i f
28318 1
our view establishes that the scope of this exercise was 2
insufficient, that the memorandum of law seen as an amended j
3 basis is still timely because we received the scenario document f
l I
4 on the loth and we filed the motion and memorandum on the 18th.
5 So we have anticipated exactly what Mr. Reis has j
6 stated and the motion and memorandum address the issue of the 4
7 timeliness of this filing, even if it is viewed as a contention 8
and basis arising out of the September exercise.
9 JUDGE SMITH:
Well, we have taken up on the 10 pleadings.
My comments were just limited to a concern that has 11 been relieved now and that is that all of the discussion would
[
12 fail because it was filed in the posture of a Motion for 13 Summary Disposition.
We will consider the various pleadings.
14 MR. REIS:
Your Honor, we are put in a position then r
l 15 of filing another pleading and taking time to file another l
16 pleading.
17 JUDGE SMITH:
I am just not prepared this morning, l
18 Mr. Reis, unless you want to reschedule the telephone
]
19 conference call, to rule on the merits of the two arguments 20 that you have mode, I mean, the arguments that you and 21 Mr. Traficonte have made, r
22 MR. REIS:
Thank you, Your Honor.
23 MR. DIGNAN:
Your Honor, the only thing I hope is not 24 being lost in this dialogue between my learned friends 25 representing the staff and the Commonwealth is that it is the
i I
28319 1
Applicant's position, as it was in the first piece we filed, j
2 and will be in the second, which will respond to their argument l
i 3
on the merits made in that supplemental pleading, that they 4
must successfully satisfy 2.734 to even get this contention
{
i 5
before you.
In other words, that they must successfully move
{
6 to reopen the record.
7 If the Board's ruling, of course, is in agreement 8
with our legal position on that, that that does apply, and if l
9 the Board is satisfied that they didn't satisfy the 10 requirements of 2.734, we don't even get to all these l
l 11 questio,ns.
I take it, the Board will address that issue of 12 whether 2.734 applies, and if it decides it does, whether it 13 has been complied with before dealing with the legal or factual 14 basis of the contentions asserted?
15 JUDGE SMITH:
Yes.
However, no one asked us to, ner 16 do we intend to, make these determinations seriatim.
That is, 17 indeed we will have to address whether or not this comes under 18 2.734, but we want all the papers before us.
i i
19 MR. DIGNAN I understand that, Your Honor.
Since 20 the dialogue was taking place between two of the other lawyers 21' in this case as though that issue wasn't even in the ballpark, 22 I just want to remind everybody that at least from the 23 Applicant's point of view that issue is very much still in.
24 JUDGE SMITH:
Yes, and I think we begin with that 25 issue.
I agree with you.
28320 1
All right.
I think that is about all we had to say 2
about the on-site exercise, 3
As you know, we are under a continuing responsibility 4
to report to the Commission our progress in issuing an initial l
5 decision in this case.
In early July, following the close of 6
the hearing, we reported that November 30 was an achievable, 7
reasonably achievable, I think we said, target date.
8 We have since come to the conclusiote that it is 9
indeed achievable and the initial decision can perhaps issue i
10 earlier.
Inasmuch as the portion of the office of General 11 Counsel who is responsible for dealing with ihitial decisions l
12 has resources to consider, we advised her that the initial i
13 decision could issue as early as November 1.
That, however, is 14 not very likely.
15 But I want to inform the parties that it is possible 16 that this initial decision may issue as much as two to three 17 weeks before November 30th and that is about as accurate as we i
18 can come on this.
Therefore, you will understand that the last 19 issue before this Board, absent any remand or anything else, 20 will be the contentions on the on-site exercise.
21 Do you have any questions about that?
4 22 (No response.)
23 JUDGE SMITH:
Did anybody hear me, by the way?
24 MR. TRAFICONTE:
Yes, Your Honor.
The AG heard you.
25 JUDGE SMITH:
All right.
If there is nothing further a
i 28321 3
1 by any of the parties, we will adjourn.
Is there anything I
2 further, anybody?
t 3
(No response.)
4 JUDGE SMITH:
I as talking to the reporter now.
[
5 Let's go off the record.
l 6
(Discussion off the record.)
7 JUDGE SMITH:
If there is nothing further then, we 8
will adjourn and thank you for joining us.
We are adjourned.
9 (Whereupon, the prehearing conference was adjourned 10 at 10:05 o' clock a.m.)
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REPORTER'S CERTIFICATE This is to certify that the attached proceed-ings before the United States Nuclear Regulatory Commission o
in the matter oft NAME OF PROCEEDING:
o DOCKET NUMBER:
PLACE OF PROCEEDING:
were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and thereafter reduced to typewriting by me or under the direction of the court report-ing company, and that the transcript is a true and accurate record of the foregoing proceedings.
1/2 b
y MARILYNN NATIONS Official Reporter Ann Riley & Associates. Ltd.
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