ML20148D792

Transcript of 880321 Hearing in Bethesda,Md, Re off-site Emergency Planning.Pp 9,777-9,866

ML20148D792
Person / Time
Site:	Seabrook
Issue date:	03/21/1988
From:	Atomic Safety and Licensing Board Panel
To:
References
CON-#288-5981 ASLBP, OL, NUDOCS 8803240312
Download: ML20148D792 (108)

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0 UNITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of: )

)

PUBLIC SERVICE COMPANY OF )

NEW HAMPSHIRE, ET AL. )

Docket No. 50-443-OL (Seabrook Station Units 1 & 2) )

50-444-OL

)

) Off-site EP

)

O Pages: 9777 through 9866 Place: Bethesda, Mary 1hnd Date: March 21, 1988 m...........m======.m==================================="="

/ J 0 I HERITAGE REPORTING CORPORATION k OpidelReporters O 122. t s .w., s .

WasMngton, D.C. 20005 (202) 628 4888 8803240112 880721 PDR ADOCK 05000443 T DCD

9777 L 1 UNITED STATES NUCLEAR REGULATORY COMMISSION 2 ATOMIC SAFETY AND LICENSING BOARD PANEL 3

4' In the Matter of: )

)

5 PUBLIC SERVICE COMPANY OF ) Docket No.(s) 50-443\444-OL NEW HAMPSHIRE, ET AL. ) (Off-Site EP) 6 (Seabrook Station ) March 21, 1988 Units 1 and 2) )

7 )

8 Monday,

• March 21, 1988 9

Room 468, East Tower 10_ 4350 East West Highway Bethesda, Maryland 11.

The above-entitled matter came on for hearing, 12 pursuant to notice, at 2:30 p.m.

13 BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN

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( 14 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 15 East West Towers Bull,'.ing 4350 East West Highway 16 Bethesda, Maryland 20814 17 JUDGE JERRY HARBOUR, MEMBER Atomic Safety & Licensing Board 18 U.S. Nuclear Regulatory Commission East West Towers Building 19 4350 East West Highway Bethesda, Maryland 20014 20 JUDGE GUSTAVE A. LINENBERGER, JR., MEMBER 21 Atomic Safety & Licensing Board i U.S. Nuclear Regulatory Commission 22 East West Towers Building 4350 East West Highway l 23 Bethe.da, Maryland 20814 24 25 (2) l Heritage Reporting Corporation (202) 628-4888

9778

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1 APPEARANCES:

2 For the Applicant:

3 THOMAS G. DIGNAN, ESQUIRE Ropes & Gray 4 225 Franklin Street Boston, Massachusetts 02110 5

For the NRC Staff:

6 SHERWIN E. TURK, ESQUIRE 7 U.S. Nuclear Regulatory Commission Office of the General Counsel 8 Fifteenth Floor "

11555 Rockville Pike 9 Rockville, Maryland 20852 10 For Federal Emergency Management Agency:

11 H. JOSEPH FLYNN, ESQUIRE Assistant General Counsel 12 Office of General Counsel FEMA 13 500 C Street, S.W.

{} Washington, D.C. 20472 For the commonwealth of Massachusetts:

15 JOHN TRAFICONTE, ESQUIRE 16 STEPHEN OLESKY, ESQUIRE Office of the Attorney General 17 One Asburton Place Boston, Massachusetts 02108 18 For New England Coalition Against Nuclear Pollution:

19 ELLYN R. WEISS, ESQUIRE 20 Harmon & Weiss Suite 430 21 2001 S Street, N.W.

Washington, D.C. 20009 22 For Seacoast Anti-Pollution League:

23 JANE DOUGHTY 24 5 Market Street Portsmouth, New Hampshire 03801 25 Heritage Reporting Corporation (202) 628-4888

. _ . _ _ . . . ~ . . . .

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l 9779 O- 'l APPEARANCES: (Continued) -

2 For the Town'of Hampton:

I 3 _ PAUL MCEACHERN, ESQUIRE MATTHEW T. BROCK, ESQUIRE.

.'4 Shaines & McEachern 25 Maplewood Avenue I 5 '

P.O. Box 360 Portsmouth, New Hampshire 03801

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8 9

10.

. 11 12

. 13 14 15 16 17 18' 19-20 21

' 22 23 24 25 G Heritage Reporting Corporation

. (202) 628-4888

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9780

) 1 PROCEEDINGS 2 (2:30 p.m.)

3 JUDGE SMITH: This is the prehearing conference 4 requested by the Massachusetts Attorney General.

5 Prior to the beginning of the verbatim transcript, we 6 took the roll. All parties are represented except Sandra 7 Mitchell whom we were unable to contact.

8 We told the parties that the hearing will begin in .

9 Concord as scheduled on May 2nd in the Legislative Office 10 Building. If a second week is required, we have reserved the 11 week of May 16th.

12 We also indicated that we would be prepared to 13 discuss the Appeal Board's ruling with respect to the 14 scheduling an appeal, whereupon Ms. Weiss informed us that 15 there is a Motion before the Board requesting a change in the 16 schedule apparently extending times. .

17 And so long as we're oriented to that, Ms. Weiss, why 18 don't you continue your discussion.

19 MS. WEISS: Okay. Without going into the grounds for 20 the request which are stated in some detail thereia, a Motion 21 by Joint Intervenors was served on Friday whirh asks for an 22 extension of two deadlines. It asks for an extension of the 23 deadline for the filing of contentions on the mass plan from 24 April 1 to April 6th.

25 And it asks for extension of the deadline for Heritage Reporting Corporation (202) 628-4888

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9781

, ( l findings, Intervenor's proposed findings except sheltering from 2 April 6th to May 6th. And that's a motion which I filed with 3 the assent of all parties.

4 JUDGE SMITH: It might be possible that we can attend 5 to your most urgent request this very afternoon. That probably 6 would be desirable because that April 6th deadline is fast upon 7 us.

8 MS. WEISS: Yes. ,

9 MR. TRAFICONTE: Your Honor, this is John Traficonte 10 at the Mass AG's office. I just want to add to that that Mr.

11 Dignan and I discussed after Ms. Weiss had actually drafted the 12 motion she just described, Mr. Dignan and I discussed the 13 extension of the deadline for filing contentions, and would ask

( 14 that it also be granted to the Mass AG's office. And Applicant 15 had no objection to that.

16 So if the Board were going to rule on that Motion, 17 I'd like to clarify or amend it orally to include all parties.

18 I don't believe that it's written right now.

19 In any case, just so the Board is clear, we'd like 20 the order to be that all parties who would be filing 21 contentions would have until April 6th.

22 JUDGE SMITH: Yes, Mr. Traficonte, I would expect 23 that that would be the case.

24 MR. TRAFICONTE: Okay. And I don't believe Mr.

25 Dignan has any objection.

O Heritage Reporting Corporation (202) 628-4888

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l 9782 (s Tl 1 JUDGE SMITH: He doesn't have any objection to the 2 extension or to the inclusion?

3 MR. TRAFICONTE: The extension and the inclusion.

4 JUDGE SMITH: So everyone is happy with April 6th?

5 MR. TRAFICONTE: I wouldn't say happy. But under the 6 circumstances --

7 JUDGE SMITH: Well, willing to --

8 MR. TRAFICONTE: Yes, we're happy. ,

9 MR. TURK: Your Honor, this is Sherwin Turk. I would 10 note on the time for filing post-findings that when the Staff 11 was telephoned with request to that motion, we indicated that 12 we would not object as long as a similar extension was granted 13 to the Staff for filing its-proposed filings.

14 MS. WEISS: It's stated that way in the Motion,.

15 Sherwin.

16 JUDGE SMITH: Well, the Board, without further 17 consideration, can grant the extension for filing the 18 contentions until April 6th, if that meets the parties' nesor.

19 Now, is the continuation, the extension of time for 20 filing the proposed findings a part of the consideration of the 21 April 6th deadline?

22 MS. WEISS: It's one motion asking for two separate 23 . extension s.

24 JUDGE SMITH: No, what I mean, Ms. Weiss, is do the 25 parties believe that they can live with the April 6th deadline, O Heritage Reporting Corporation (202) 628-4888

9783 q

(d. 1 partly because of an opportunity of relief on the proposed 2 findings?

3 MS. WEISS: Yes. Oh, yes. -The answer to that is,

4. yes.

5 ,

JUDGE SMITH: So they are related?

6 MS. WEISS: Yes.

7 JUDGE SMITH: Well, we can give you the.6th, and 8 maybe we can take a short recess aftor a while and see if we ,

9 can give you the rest of it.

10 What is the current date for the proposed findings?

11 MS. WEISS: April 6th.

12 JUDGE SMITH: That's a full month?

13 MS. WEISS: Yes.

p 14 JUDGE SMITH: Well, we'll come back to that.

15 All right, in the reantime, Ms. Sneider, do you want 16 to proceed, or whose going to proceed for the Massachusetts 17 Attorney General?

18 MR. OLESKY: We're prepared to do that, Judge.

19 The particular reason that we asked for the 20 conference and it's something that the Board has foreseen at 21 the last hearing, is in order to deal with those issues 22 involving the filing of FEMA's position last week.

23 That position, contrary to what at least the 24 intervenors expected and I think what Mr. Flynn indicated in l 25 the week of January 11-13 in the discussions in New Hampshire

() Heritage Reporting Corporation (202) 628-4888 l

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\-) I would be forthcoming does represent a very sharp change of 2 FEMA's position.

3 Because of that, we filed last week deposition 4' notices to the panel of witnesses who FEMA now proposes to 5 p, resent. Mr. Thomas, formerly a witness on the panel, and 6 obviously someone whose given testimony in the hearings.

7 JUDGE SMITH: Mr. Traficonte, may I interrupt a 8 moment? ,

9 MR. OLESKY: Mr. Olesky, Judge.

10 JUDGE SMITH: Oh, Mr. Olesky, 11 We will insert into the transcript at this point, a 12 copy of the March 16, 1988 Notice of Taking Depositions of 13 those people 14 MR. OLESKY: Thank you, Judge.

15 JUDGE SMITil: To save you too much explanation here.

16 MR. OLESKY: Thank you.

17 ********** INSERT DEPOSITION NOTICE **********

18 MR. OLESKY: As a result of that, we had some 19 conversations with Mr. Flynn, the result of which is that we 20 have agreement on one point and disagreement on several others.

21 Without asking the Board today to resolve all the issues, we l

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22 want to apprise you of them in any event, and tell you where we 23 are, but we certainly do need some decisions on several of

.24 them.

25 As we understand, FEMA will produce Ed Thomas who is i)

Heritage Reporting Corporation (202) 628-4888 l

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Je f s UNITED STATES OF AMERICA

- ~ -

NUCLEAR REGULATORY COMMISSION

. Before Administrative Judges:

Ivan W. Smith, Chairman Dr. Jerry Harbour Gustave A. Linenberger, Jr.

)

In the Matter-of )

! )

PUBLIC SERVICE COMPANY OF NEW ) Docket No.(s) 50-443/444-OL HAMPSHIRE, ET AL. ) (Off-Site EP)

(Seabrook Station, Units 1 and 2) ) March 16, 1988

) ,

)

NOTICE OF TAKING DEPOSITION.0F EDWARD A. THOMAS, DAVID MCLOUGHLIN, DR. JOAN HOCK, JOSEPH H. KELLER, WILLIAM R. CUMMING, CRAIG WINGO, HENRY VICKERS, JULIUS W. BECTON, JR., AND GRANT PETERSON To: FEDERAL EMERGENCY MANAGEMENT AGENCY c/o H. Joseph Flynn, Esq.

Assistant General Counsel 500 C Street, S.W.

Washington, DC 20472 Please take notice that, pursuant to 10 C.F.R. S 2.740(a),

Massachusetts Attorney General James M. Shannon, New England Coalition on Nuclear Pollution, Seacoast Anti-Pollution League and Town of Hampton will take the depositions upon oral examination of the following persons, at the dates and times set forth, before a notary public or other officer authorized to administer oaths, at the offices of Attorney General James M. Shannon, One Ac5 burton Place, Room 1902, Boston, MA,

() or at such other time and place as the parties may mutually agree:

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Deponent Date Time 1

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Edward A. Thomas March 23,-1988 9:00 a.m.

Dr. Joan Hock .

March 23, 1988 2:00 p.m.

Joseph H. Keller March 23, 1988 3:00 p.m.

William R. Cumming . March 23, 1988 4:00 p.m.

David McLoughlin March 24, 1988 9:00 a.m.

Craig Wingo March 24, 1988 2:00 p.m.

Henry Vickers March 25, 1988 9:00 a.m.

Julius W. Becton, Jr. March 25, 1988 10:00 a.m.

Grant Peterson March 25, 1988 2:00 p.m.

The deponents shall bring to the deposition all documents specified in the attached schedule of documents. The deponents will be examined regarding the bases for FEMA's present position on sheltering contentions, including the process whereby FEMA developed that position.

You are invited to attend and cross examine.

Respectfully submitted,

() JAMES M. SHANNON ATTORNEY GENERAL By: ( S Carol S. Sneider bdb Assistant Attorney General Nuclear Safety Unit Department of Attorney General Boston, MA 02108-1683 (617) 727-2265 NEW ENGLAND COALITION ON NUCLEAR POLLUTION By: Phbb1 M / b5 Ellyn Weiss '

Harmon & Weiss Suite 430 2001 S Street, N.W.

Washington, DC 20009

() (202) 328-3500 4

,e n

.. SEACOAST ANTI-POLLUTION LEAGUE

/dche# 0 dachu hol ds ,

By: Robert A. Backus, Esq.

Backus, Meyer & Solomon 116 Lowell Street P.O. Box 516 Manchester, NH 03106 (603) 668-7272 TOWN OF HAMPTON By: l W0!LLtd l OC Ll{Sb Matthew T. Brock, Esql '

Shaines & McEachern 25 Maplewood Avenue P.O. Box 360 Portsmouth, NH 03801 (603) 436-3110 l

Dated: ' March 16, 1988 l .-

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. SCHEDULE OF DOCUMENTS Y

As used herein the term "Document" or "Documents" means any written or graphic matter of communication, however produced or reproduced, in the possession, cus.ody, or control of any of FEMA's officials, and is intended to be comprehensive and include without limitation any and all correspondence, letters, telegrams, agreements, notes, contracts, instructions, reports, demands, memoranda, data, schedules, notices, work papers, recordings, whether electronic or by other means, computer data, computer printouts, photographs, microfilm, microfiche, charts, analyses, intra-corporate or intra-office communications, notebooks, diaries, sketches, diagrams, forms, manuals, brochures, lists, publications, drafts, telephone

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b minutes, telephone logs, minutes of meetings, statements, calendars, journals, orders, confirmations and all other written or graphic materials of any nature whatsoever. '

If any privilege or work product immunity is claimed as a ground for not producing any document, state for each such document its preparation date(s), author (s), addressee (s),

recipient (s), custodian (s), title (s), number of pages, and subject matter to the extent not privileged, as well as the basis for withholding it.

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1) Any and all documents relied upon by FEM 2 for its determination that the "rationale for the State's choice . . . is technically supportable." FEMA Testimony at p. 3.

2) Copies of all documents pertaining in any way to communications, including all notartons, memoranda or other records of communicati7ns, occurring between NRC and/or its contractors and FEMA and/or its contractors from December, 1987, through the present and concerning FEMA's or NRC's position on the sheltering contentions and 'or the adequacy of protective actions for the beach population.

3) Copies of all documents pertaining in any way to communications, including all notations, memoranda or O other records of communications occurring between Applicants and PEMA and/or its contractors from December, 1987 through the present and cor.cerning FEMA's or the Applicants' posi' on on the sheltering '

contentions and/or the adequacy of protective actions for the beach population.

4) Copies of all documents pertaining in any way to i

communications, including all notations, menoranda or other records of communications, occurring between the State of New Hampshire and FEMA and/or its contractot from December, 1987, through the present and I concerning FEMA's or the State of New Hampshire's

1. h UW

s. __. . - , _ _ _ _ . _ _ _ _ . _ . _ - . _ - . _ . - . _ _ . . . , _ _ , _ - - _ . -. . . . _

position on the sheltering contentions and/or the adequacy of protective actions for the beach population.

5) Copies of all documents pertaining in any way to communications, including all notations, memoranda or other records of communications, occurring between the R/.C and/or individual members thereof and FEMA and/or its contractors from Dececber, 1987 through the present and concerning FEMA's or the RAC's position on the adequacy of protective actions for the beach population.

6) Copies of all documents pertaining in any way to communications, including all notations, memoranda, or

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records of communications, occurring between FEMA and the White House or any person in the Executive Branch who is not employed by FEMA or is not a member of the RAC, frcm June, 1987, through the present, concerning the Seabrook Nuclear power plant and/or FEMA's position on the sheltering contentions.

7) Copies of the rinutes of the February 29, 1988 RAC meeting and all other notes or meraranda pertaining to that meeting.

8) A list of all documents relevant to the NHRERP's creatment of the beach population that were distributed to the RAC for consideration at its February 29, 1988 meeting and copies of all documents

(' ') on thac list not previously  :.tved on the parties.

e

• (g 9) Any and all documents relied upon to support FEMA's

%.)

statement that "unless a release of radic ctive material is underway, there is little or-no likelihood -

of having reliable predictive information needed to perform dose projection calculations." FEMA Testimony at p. 9.

10) Any and all documents or materials relied upon to support PEMA's statement that "in severeLaccident sequences the ground-shine component is most likely to be the major contributor to total dose if no protective actions are taken." FEMA Testimony at p. 9.

11) Any and all documents relied upon to support FEMA's Statement, at p. 9, that "In those cases, if the dose reduction etrategy is sheltering first followed by an evacuation after plume passage, the total dose reduction would not be as great as that for the inmediate evacution strategy."

12) Any and all documents relied upon to support FEMA's statement at p. 10 of its Testimony that, 'By implementation of the immer.iate evacuation strategy, dose reduction greater than those to be derived from a

' shelter first-evacuate later' concept can be obtained by movement of the population relatively short distances even in the extremely unlikely case where the plume track and the evacution routes coincide."

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13) Any and all documents reviewed by FEMA that are

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relevant to its position that ' here exists a technically appropriate basis for the choice made by the State of New-Hampshire not to shelter the summer beach population except in very limited circumstances."

14) Any and all documents reviewed by FEMA that are relevant to its position that, "The requirement for a range of protective measures has been satisfied even though the State of New Hampshire has chosen not to shelter the summer beach population except in very limited circumstances." FEMA Testimony at 9.

15) Any and all site-specific documents FEMA has reviewed in reaching its position on the sheltering contentions and/or the adequacy of protective actions for the beach population.

16) Any and all documents FEMA has reviewed that would in any way alter the factual basis for its conclusion, stated in FEMA's prefiled testimony dated September 11, 1987, at p. 60, that, "using the standard guidance for the initiation and duration of radiological releases, and the current New Hampshire RERp including ETE, it appears that thousands of people could be unable to leave during an accident at Seabrook involving a major release of radioactivity without adequate chelter for as much ar the entire duration of tl.a t relesso."

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," -17 ) Any and all documents FEMA relies upon or may rely l upon to support a conclusion that the NHRERP "adequately protect (s) the public health and safety by providing reasonable assurance that appropriate protective measures can be taken offsite'in the event of a radiological emergency" even though as stated at

p. 60 of FEMA's Prefiled Testimony, dated September 11, 1987, "it appears that thousands of people could be unable to leave during an accident at Seabrook

-involving a major release of radioactivity without adequate shelter for as much as the entire duration of 3

that release."

18) Any and all documents relied upon by FEMA to support

, the statement on p. 3 of its Testimony that, "the Prefiled Testimony dated September 11, 1987, is ,

outdatea."

19) All telephone logs and appointment calendars of each of the deponents from June, 1987, through the present.

20) Any and all documents pertaining to FEMA's decision not to use Edward Thomas as a witness.

21) Any and all documents pertaining to FEMA's decision not to use Dave McLoughlin as a witness.

22) Any and all documents pertaining to FEMA's decision to use Joseph H. Keller as a witness, including copies of any contracts with Mr. Keller.

23) Any and all documents pertaining to FEMA's decision to

() use Dr. Joan Hock as a witness.

, _ _ _ _ , - . _ - _ _ , _ . - - ~ . _ . - - _ _ . _ _ . _ , - - - - _ _ , _ _ _ . . _ .

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24) Any and all documents pertinent to the evolution of

, FEMA's interim position, set forth in FEMA's Supplemental Testimony, dated January 25, 1988.

25). Any and all documents, including memoranda of law, pertaining to FEMA's understanding of its role as lead agency in' evaluating.off-site emergency plans and interpreting off-s'.te emergency planning criteria.

26) Any and all docu:.ents, including memoranda of-law, ,

pertaining to FEMA's interpretation of the term "range of protective actions."

27) Any and all documents which in whole or in part asaess, evaluate, describe or consider the dose savings to the beach population attributable to evacuation, assuming a quickly developing accident occurring on a peak summer weekend.

28) Any and all documents which in whole or in part j assess, evaluate, describa or consider the dose savings to the beach population attributable to early beach closing, assuming a quickly developing accident occurring on a peak summer weekend.

29) Any and all documents which in whole or in part assess, evaluate, describe or consider the health consequences associated with a quickly developing i

accident occurring on a peak summer weekend should an evacuation be ordered, either with or without early beach closing.

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) 30) Any and all documents, including all agency guidance,

, opinions, and memoranda, regarding the roles of FEMA and the NRC in evaluating emergency planning and preparedness for nuclear power plants.

31) Any and all documents which relate to, or which-FEMA relies upon for, its interpretation of its regulations as set forth at page 7 of FEMA's Supplemental Testimony, wherein it states: "FEMA interprets its regulations to mean that it must determine first whether radiological emergency response plans comply with NUREG 0654/ FEMA REP 1, Rev. 1 (44 C.F.R.

S350.5(a)) and secondly whether such plans ' adequately protect the public health and safety by providing

[

reasonable assurance that appropriate protective measures can be taken offsite in the event of a radiological emergency' (44 C.F.R. 5350.5(b))."

0608n VS o

i.

-UNITED STATES OF AMERICA

(~).

\/

, NUCLEAR. REGULATORY COMMISSION

)

In the Matteruof )

)

PUBLIC SERVICE COMPANY OF NEW ) Docket No.(s) 50-443/444-OL HAMPSHIRE, ET AL. )

(Seabrook Station, Units 1 and 1) )

)

)

CERTIFICATE OF SERVICE I, Carol S. Sneider, hereby certify that on March 16, 1988, I made '

service of the within Notice of Taking Depositions of

{} Edward A. Thomas, David McLoughlin, Dr. Joan Hock, Joseph H. Keller, William R. Cumming, Craig Wingo, Henry Vickers, Julius W. Becton, Jr.

and Grant Peterson, postage prepaid, by first class mail, or as indicated by an asterisk, by Federal Express mail, to:

• Ivan Smith, Chairman *Gustave A. Linenberger, Jr.

Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814

• Dr. Jerry Harbour *Sherwin E. Turk, Esq.

Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Office of General Counsel Commission 15 ti: Floor '

i East West Towers Building 11555 Rockville-Pike 4350 East West Highway Rockville, MD 20852 Bethesda, MD 20814

)

• H. Joseph Flynn, Esq.

• Stephen E. Merrill

() Assistant General Counsel Office of Genera 1' Counsel Attorney General George Dana Bisbee Federal Emergency Management Assistant Attorney General Agency .

Office of the Attorney General 500 C Street, S.W. 25 Capitol Street Washington, DC 20472 Concord, NH 03301

• Docketing and Service Paul A. Fritzsche, Esq.

U.S. Nuclear Regulatory Office of the Public Advocate Commission State House Station 112 washington, DC. 20555 Augusta, ME 04333 Roberta C. Pevear Diana P. Randall State Reprecentative 70 Collins Street Town of Hampton Falls Seabrook, NH 03874 Drinkwater Road Hampton Falls, NH 03844 Atomic Safety & Licensing Robert A. Backus, Esq.

Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollut. ion League

() U.S. Nuclear Regulatory Commission 5 Market Street Portsmouth, NH 03801 .

Washington, DC 20555

• Paul McEachern, Esq. J. P. Nadeau t'atthew T. Brock, Esq. Board of Selectmen Shaines & McEachern 10 Central Road 25 Maplewood Avenue Rye, NH 03870 P.O. Box 360 i Portsmouth, NH 03801 Sandra Gavutis, Chairperson Calvin A. Canney Board of Selectmen City Manager RFD 1, Box 1154 City Hall r Rte. 107 126 Daniel Street i

E. Kingston, NH 03827 Portsmouth, NH 03801 '

Senator Gordon J. Humphrey Angelo Machiros, Chairman U.S. Senate Board of Selectmen Washington, DC 20510 25 High Road (Attn: Tom Burack) Newbury, MA 10950 Senator Gordon J. Humphrey Edward G. Molin 1 Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall

() (Attn: Herb Boynton) Newburyport, MA 01950 E

Donald E. Chick William Lord Town Manager Board of Selectmen

' . k'_T

/ Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913

, Brentwood Board of Selectmen Gary W. Holmes, Esq.

RFD Dalton Road Holmes & Ell Brentwood, NH 03833 47 Winnacunr.e. Road Hampton, NH 03841 Philip Ahrens, Esq. Diane Curran, Esq.

Assistant Attorney General Earmon & Weiss Department of the Attorney Suite 430 General 2001 S Street, N.W.

State House Station #6 Washington, DC 20009 Augusta, ME 04333

• Thomas G. Dignan, Esq. Richard A. Hampe, Esq.

R.K. Gad III, Esq. Hampe & McNicholas Ropes & Gray 35 Pleasant Street 225 Franklin Street Concord, NH 03301 Boston, MA 02110 Beverly Hollingworth Edward A. Thomas 209 Winnacunnet Road Federal Emergency Management Hampton, NH 03842 Agency s

442 J.W. McCormack (POCH)

Os Boston, MA 02109 William Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter Jewell Street, RFD 2 10 Front Street South Hampton, NH 03827 Exeter, NH 03833 Robert Carrigg, Chairman Anne E. Goodman, Chairperson Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 Allen Lampert Sheldon J. Wolfe, Chairperson Civil Defense Director Atomic Safety and Licensing Town of Brentwood Board Panel 20 Franklin Street U.S. Nuclear Regulatory Exeter, NJ 03833 Commission Washington, DC 20555 Dr. Emmeth A. Luebke Charles P. Graham, Esq.

5500 Friendship Boulevard McKay, Murphy & Graham Apartment 1923 Old Post Office Square Chevy Chase, MD 100 Main Street O Amesbury, MA 01913

a l- Judith H. Mizner, Esc.

ID

'd Silvergate, Gertner,' Baker, Fine, Good & Mizner 88 Broad Street Boston, MA 02110

[2tw I b bl' A-Carol S. Sneide!

Assistant Attorney General Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2265 Dated: March 16, 1988 U-

A U.S. NRC g

1313 P.I.R I7 .c 018 RECEIh.D ' ': V "O ATOMIC f 'f 5 I ' *<

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9785 I k 1 based on Boston here for a deposition Wednesday morning of this 2 week. Thereafter, we had contemplated, as had the other 3 intervenors, deposing the three panel members, Hock, Keller and 4 Cummings. We would like to do that in Boston because we are in 5 Boston, obviously, and with the exception of Ms. Weiss, the 6 other intervenors are closer to Boston.

7 As I understand Mr. Flynn's position, although one of 8 his three panel members is in Idaho, two others are in the .

9 Washington area, and he wants them done in Washington. So 10 that's the first issue. We would like to have them produced 11 here because there are depositions that are required to be 12 taken we believe because of the substantial change in FEMA's 13 position. And frankly, it is a considerable imposition in

() 14 terms of time and money for us to go to Washington to do this.

15 In any event, it doesn't appear that those 16 depositions.of Hock, Keller and Cumming could take place on 17 Wednesday. It would have to be Thursday or possibly Friday. I 18 understand that Mr. Dignan couldn't be in Washington on the 19 24th which is Thursday, so that would put it to Friday in any 20 event.

21 So that's one question that the Board will honor the 22 motif and decide those three individuals will be deposed here 23 in Boston.

24 JUDGE SMITH: All right. Let's take Mr. Keller. It 25 seems to me that it would be about the same whether he goes to O Heritage Reporting Corporation (202) 628-4888

l 9786

'l Boston or to Washington.

2 MR. OLESKY: Yes, I would agree.-

3 JUDGE SMITH: So you could probably' accommodate him  !

4 there, couldn't you, Mr. Flynn, with respect to Mr. Keller?

5 ,

MR. FLYNN- Well, Your Honor, Mr. Keller is~1n 6 Washington now. And he has come here for our preparation for 7 the depocition.

8 JUDGE SMITH: I see. ,

9 MR. FLYNN: TSo the same consideration would apply to 10 him as to the other ones.

11 JUDGE SMITH: What standards should the Board apply- ,

12 in deciding where the deposition is taken, I'm inclined to 13 think that they should be taken in Boston simply because we try f

A 14 to do as much of this business in the vicinity of the plant as 15 possible. But depositions are soinewhat different. l 16- MS. WEISS: Well, it certainly would require moving 17 far fewer people to do it in Boston than to do it in 18 Washington.

19 JUDGE SMITH: That's true.

20 MR. FLYNN: Your Honor, should I speak to this now?

21 JUDGE SMITH: Yes, Mr. Flynn.

22 MR. FLYNN: It's traditional to take depositions in 23 the location where the witnesses can be found. The Federal 24 Rules are quite clear on that.

25 CHORUS OF VOICES: Speak up. We can't hear you.

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() 1 MR. FLYNN: I'm sorry. I'll start over again.

2 Traditionally, depositions are taken where the 3 witnesses are located, and the Federal Rules are clear about 4 this. The Federal Rule of Civil Procedure 45(D)(2) addresses 5 the issue of subpoenas for depositi Ts. And the witnesses are 6 not compelled to travel beyond the county in which they reside.

7 MS. WEISSt But that's for non-party witnesses, isn't R it? ,

9 MR. FLYNN: Your Honor, may I continue my argument?

10 JUDGE SMITH: Yes.

11 MR. OLESKY: Mr. Flynn, we are still having 12 difficulty hearing you here in Boston, at least at the Mass 13 AG's office. Can you turn the volume up on your phone at all?

() 14 MR. FLYNN: No, I can speak louder. I'm not at a 15 phone where there's a volume control.

16 MR. OLESKY: Okay.

17 MR. FLYNN: I was unable to find anything in the NRC 18 rules about where depositions may be held or the territorial j

19 effect of subpoenas. But I would argue that the NRC doesn't 20 have broader authority than the Federal Rules given to the 21 Courts for the issuance of subpoenas.

I 22 I would also point out we have the same concerns 23 about time and expense as the other parties. Our witnesses are 24 hetu and we've got large volumes of paper that we have to carry 25 and so on. And our budget has limits, too.

Heritage Reporting Corporation (202) 628-4888

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t' 9788 p

1 Another thing.that I want to respond to that Mr. '

2 Olesky somehow tied.in the need to take the depositions in 3 Boston when he characterized a substantial change in our 4 position. I'm not sure that there's any connection there.

5 But if there is, I would point out to the Board that 6 when we talked about the need for depositions when we had the 7 hearings in Boston in February, the whole assumption was that 8 if FEMA's position didn't change, then there wouldn't be any ,

9 need for depositions.

10 So that-issue at least should have been apparent to 11 the Massachusetts's Attorney General's Office from the very 12 beginning.

13 In summary, I would say that there's no compelling 14 need to change the usual order of things and make the witnesses 15 travel to where overyone else is.

16 JUDGE SMITH: Well, it is true that more often than 17 not, from what simple observation on my part, that the deposing 18 party has done the traveling.

19 We have the hundred mile rule under the Federal Rules 20 of Civil Procedure. I realize that that doesn't specifically 21 relate to a party, but I'm inclined to think that the deponents 22 should shoulder the burden of this deposition. If Mr. Flynn 23 insists upon csserting his rights on it.

I

24 MR. TURK

Well, Your Honor -- Sherwin Turk.

25 I wanted to note two things. One that like Mr.

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1 Flynn, I cannot find anything specifically in the NRC rules 2 that addresses the question except for the general provision 3 that where Federal Rules of Civil Procedure are not contrary to 4 NRC rules, in general, the NRC Boards will follow the Federal ,

I 5 Rules. .

6 So I think the hundred miles rule should be applied.

7 Secondly, FEMA's not a party in the case.

8 JUDGE SMITH: That's a good point; they're not. .

9 MR. TURK: And I think if Mr. Flynn insisted on his 10 opposition to being compelled to produce witnesses other than 11 he could probably sustain his view in the Courts.

12 JUDGE SMITH: Of course, as I say, Mr. Turk, that's a 13 good point, but it's not a great point. I mean, they're pretty 14 much involved and there's a certain amount of privity. But the 15 hundred mile rule has really been used at the NRC for as long 16 as I can remember. And as I recall -- I don't have it .

l 17 immediately before me -- but as I recall, it relates to -

10 depositions in general, and I'm not aware of any distinction 19 between a party deponent and a non-party deponent. If that is j ,

I l

20 a controlling factor, it would be up to you to point it out 1

21 now, Mr. Olesky.

22 I don't recall. I have the rule here. Let ae look r

23 it up.

24 MS. WEISS: I think the rule that governs depositions 25 of parties and witnesses is Rule 27 and that leaves it to the t (

l Heritage Reporting Corporation (202) 628-4880 5

9790 1 discretion of the Court to decide where the deposition should  !

2 be taken.

3 JUDGE SMITH: It's not Rule 45, but Rule 27?

4 MS. WEISS: That's my recollection. ,

5 ,

MR. OLESKY: I don't think Rule 45's the-operative 6 . rule, either. Any time I've ever litigated this, Judge, it'll 7 come down everything elre being equal to the site of the i

8 litigation which is in Boston. ,

9 It's not as if FEMA's absent from Boston. They have 10 a regional office here where the principal witness until last 11 week was located. The fact that they may choose to pull in 12 witnesses from Washington or Maryland or Idaho seemingly should j 13 have changed the result that otherwise exists.

f O 14 JUDGE SMITH: Could you point me, Ms. Weiss, to the i

15 part of Rule 27 which controls location?

16 MS. WEISS: I don't have the Rules in front of me.  ;

17 Is that the general deposition rule?

18 JUDGE SMITH: Yes.

19 MS. WEISS: My recollection of the rotes is that it's 20 entirely in the discretion of the Court to determine the place.

l 21 I think there's a note, one of the notes says place of 22 deposition is up to the Court depending on essentially 13 convenience.

24 JUDGE SMITH: Okay.

25 It's my impression as I sit here right now that the O Heritage Reporting Corporation (202) 628-4888 l

'I 9791 hundred mile rule applies which would mean that you would-have

( 1 2 to go Washington. However, --

3 MS. WEISS: Let-me run and get my copy.

4 JUDGE SMITH: Why don't we do this, before you leave.

5 Let's assign to somebody else while the rest of the conference 6 is going on to come up with a better shot as to what the 7 controlling rule would be.

8 MS. WEISS: I'll run and get my copy. ,

9 JUDGE SMITH: Okay. See, that Rule 27 is the 10 preservation of testimony rule.

11 MR. FLYNN: Judge, do you want me to move on while 12 the people are looking at that?

13 JUDGE SMITH: That's fine, but Ms. Weiss isn't here.

() 14 MR. FLYNN: Okay.

15 JUDGE SMITH: It's my impression pending her return 16 that the Rule 45 controls. Rule 27 is somewhat different.

17 That's for the person whose getting a deposition of his own 18 witness in case in chief for the preservation of testimony as 19 compared to discovery, I think. I don't know but that's my 20 quick memory and quick appraisal of it.

21 MR. OLESKY: What I've seen generally control in 22 Federal litigation, Judge, will be first a situation that the 23 plaintiff will be required to produce witnesses in the 24 defendant's location.

25 Secondly, if there's a dispute over relative O- Heritage Reporting Corporation (202) 628-4888

9792

() 1 dislocation costs, everything else being equal, that the party 2 wanting the deposition agrees to pay transportation costs of 3 the witness or party being deposed, the Courts will usually 4 honor the request of that party seeking the deposition.

5 ~ It would certainly be easier and cheaper, at least 6 for this office, to pay for some plane fare to Boston than to 7 have to ship ourselves and our documents down there.

8 MS. WEISS: Rule 30 -- I was wrong about 27 -- we're

• 8

, 9 in Rule 30.

10 MR. FLYNN: Your Honor, I appreciate the offer of the 11 Massachusetts Attorney General to pay air fares but it really 12 isn't quite that simple. We can't accept tickets from outside 13 the Government and if we're reimbursed, I guess we could accept

() 14 money on behalf of the Treasury but it doesn't do any good as 15 such.

16 JUDGE SMITH: Well, we will look at the matter after-17 the end of this conference and telephone our decision to the 18 parties, to Mr. Flynn and to Ms. Weiss and the Massachusetts 19 Attorney General, Mr. Turk.

20 MS. WEISS: I think that the pertinent law is if you l 21 have which I'm sure you do the Annotated Code Rule 30 and the 22 note number is 29. And I think I was probably correct in 23 generally characterizing it as within the discretion of the 24 Court depending essentially upon the convenience of the l 25 parties.

i Heritage Reporting Corporation (202) 628-4888

= .----

9793 Okay.

{} 1 2

JUDGE SMITH: Well, my intuition has not been good on this, so I'd like to defer ruling until we have a 3 chance to look at these rules, but thank you for pulling it 4 out.

5 ,

MR. OLESKY: Just to put a number on that convenience 6 of the parties issue, Your Honor, by our calculation there 7 would be five or six attorneys in or around Boston on this 8 deposition, and two in Washington. .

9 MR. FLYNN: Your Honor, if we had two or three 10 attorneys, does that tip the balance the other way?

11 JUDGE SMITE: We'll balance it and announce the 12 decision. I don't think we can make everybody happy on this 13 -- if anybody.

{} 14 MR. OLESKY:

JUDGE SMITH:

Should I continue, Judge?

Yes, please.

15 16 MR. OLESKY: Second issue had to do with the 17 designatior. in the Notice that you made part of the record of 18 certain FEMA officials who are policymakers and not those 19 who've been proffered as witnesses.

20 Since as we understand FEMA's recent testimony 21 fundamentally what's happened is a revisiting of their policy 22 position and not a change in the facts or the law, we 23 anticipate that the depositions we've just talked about of the 24 panel members would not supply all the answers reasonably 25 needed as to why PEMA, roughly a year after it began officially

() Heritage Reporting Corporation (202) 626-4888 I _

r f F 9794 1 asserting one position has now taken a dramatically different 2 position.  !

3 We think it's important to depose those additional 4 persons. As I understand it, Mr. Flynn has agreed withlas that 5 we will not press that point today, but that after the 6 deposition of Mr. Thomas and the other panel members, unless 7 something comes out there that makes it clear that the FEMA 8 policymakers were not involved in what appears to be ,

9 fundamenta)1y a shift in policy, we would be pressing for those 10 depositions, and Mr. Flynn may well file a written objection in 11 the nature of a protective order. e 12 In any event, if that happens -- I think it's pretty 13

• likely that it would on both sides -- clearly the discovery 14 would not be wound up against FEMA by this Friday or next 15 Monday which I guess technically is the last day. i 16 So we wanted to alert you to that reality and suggest 17 that we would need additional time to complete those ,

18 depositions.

19 In addition, Mr. Flynn has indicated with respect to 20 our document notice that while he would be able to produce some 21 of the documents by next Wedriesday, those dealing with what you 22 might characterize as the technical support to FEMA's new 23 position the other documents he could not produce, as I

j. 24 understand it, until about April lith, because of the tim:

25 needed to assemble and review those documents.

O Heritage Reporting Corporation i (202) 628-4888

9795 l -' 1 So in any event, looking at it in a common sense 2 perspective and wanting to have those documents before those 3 policymakers are deposed, you're talking about some day after 4 April lith before those depositions could take place.

5 And this is by way of a preview so that the Board 6 will be aware that if further motions are filed on either side, 7 you'll have a context in which to address them.

8 JUDGE SMITH: Mr. Flynn? ,

9 MR. FLYNN: Your Honor, I would agree essentially 10 with what Mr. Olesky said. Mr. Traficonte and I did agree that 11 we would alert you to this issue.at this time but not make 12 arguments and not ask you to make a ruling. I just want to say 13 for the completeness of today's record that in no way am I 14 agreeing to the depositions of Mr. Wingo, Mr. McLoughlin, Mr.

15 Peterson, Mr. Vickers and Mr. Becton.

16 All we're doing at this point is letting the Board 17 know that this issue exists and give the questions of the 18 intervenors have not answered by the depositions which we have 19 agreed to, we will be coming back to the Board to present 20 arguments on this issue.

21 JUDGE SMITH: The policy questions, you mean?

22 MR. FLYNN: Right. '

23 JUDGE SMITH: The scheme is that the named deponents, 24 Thomas, Hock, Keller and Cumming will be able to explain the 25 policy considerations. And if they are unable to, then the O Heritage Reporting Corporation (202) 628-4888 i

a . - . . . , - . _ _

e 9796

/T 1 intervenors want to be free to depose the policymakers.

U 2 1s that, do-I understand it?

3 MR. OLESKY: That's correct. Let me just phrase it 4 slightly differently.

5 We want to know not only what the policy 6 considerations are, but who made the decisions on the policies 7 and why. It might be two different things.

8 JUDGE SMITH: Isn't it possible -- excuse me. ,

9 Mr. Flynn?

10 MR. FLYNN: Yes?

11 JUDGE SMITH: Were you going to speak?

12 MR. FLYNN: Yes. I want it to be un'ierstood that I 13 am not agreeing that the issues that Mr. Olesky is announcing

{} 14 15 he wants to go into are relevant but of course relevancy questions are not grounds to have these witnesses not answer 16 questions. I full' i expect that those things will be explored 17 in the depositions.

18 And you can guess it's true that the witnesses that 19 we are producing will be prepared to talk to those issues.

20 JUDGE SMITH: Now, heretofore, FEMA's policy on 21 particular issues has been very important to the foundation of 22 the position. I'm not prepared to say that's still the case in 23 the most recently filed testimony which goes more into some 24 technical bases.

25 But to the extent that FEMA is going to rely upon its

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9797 1 prerogatives under the Memorandum of Understanding and the

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2 Presidential Order giving FEMA lead on these issues, if they're 3 going to rely upon policy, they're going to have to come 4 forward with the foundation for the policy and explain it. ,

5 All of which we've discussed before. Would it not be 6 possible to avoid a substantial delay to have one of the most 7 broadly-based and one of the most knowledgeable policymakers .,

8 attend the depositions of the witnesses? ,

9 MR. FLYNN: I'm not prepared to mak<> that commitment tu 10 right now. The obvious choice would be David McLoughlin and he

! 11 hes not agreed to do that.

12 On the other hand, I think the panel that we have 13 selected is a source of much information about that and it may 14 be that those questions will be answered.

[}

15 MR. OLESKY: I'd just there is one point about Mr.

16 McLoughlin that Ms. Sneider reminds me of. That is that he was 17 a witness on the supplemental testimony walch, as we understand 18 it, is an attachment to this testimony.

19 He may be in a different category than the other 20 policymakers by view of his being held out by FEMA at least at 21 one time to give testimony.

22 MR. FLYNN: I understand that argument. I am not in 23 a position to agree at this point to produce him. I'll have 24 that issue revisited. All I can say is that our people will 25 look at it.

() Heritage Reporting Corporation (202) 628-4888 i

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9798 1 JUDGE SMITH: When, Mr. Flynn? When?

[' } -

2 MR.-FLYNN: Well, we could do it-in the next couple

-3 of days.

4 JUDGE SMITH: Certainly this request has not been a 5 s.urprise. I mean, you're not surprised that the intervenors 6 want to go into the policy consiaerations.

7 I can recall quite clearly a dialogue between Mr.

8 Traficonte and myself in which we discussed the possible ,

9 relevance of policy and the criteria for forming policy. That 10 was back on February 10th.

11 MR. FLYNN: I'm not claiming surprise, Your Honor.

12 What I'm saying is that I think the panel that we 13 have selected is fully prepared to answer these questions.

{} 14 15 JUDGE SMITH:

MR. FLYNN:

Policy questions?

Yes.

16 JUDGE SMITH: Okay. And you're offering them as 17 people who are privy to and cuthorized to state policy?

18 MR. FLYNN: Yes.

19 JUDGE SMITH: Okay. Well, I think that'll be very 20 important.

21 Could you go one step further, Mr. Flynn, and 22 characterize for us to what extent you think that policy is an 23 important component of the testimony that you filed, the most 24 recent testimony?

25 MR. FLYNN: I'd have to say it's very significant.

J

() Heritage Reporting Corporation (202) 628-4888

9799 1 JUDGE SMITH: Certainly it is.

2 MR. TURK: Your Honor, this p.s Sherwin Turk. My 3 impression of the initial piece which had been proffered at 4 that time as a witness seemed to entirely a policy position 5 whereas now there's a technical portion upon which the 6 testimony's based as well.

7 It seems to me that even well, whenever a Federal 8 Agency takes a position on something, there's a matter of .

9 policy to some extent. I don't think that policy has an 10 overridingcharacter[thewayEdThomasinitially.

11 MS. WEISS: I would disagree with that.

12 MR. TURK: It certainly is very important.

13 JUDGE SMITH: Yer, Mr. Flynn recognizes.

() 14 I'm inclined to agree with Mr. Turk in that Mr.

15 Thomas' original testimony if you took policy away, you would 16 have little left. But that does not minimize the importance of 17 policy in the present testimony.

18 MR. FLYNN: I would agree with that characterization.

19 JUDGE SMITH: Well, I guess we'll just move on.

20 What have we agreed to here? Could somebody 21 summarize that? Where are we on this point?

22 MR. OLESKY: So far, we've agreed that Mr. Thomas 23 would be deposed in Boston on Wednesday, Your Honor. That 24 Hock, Keller and Cumming are going to be deposed either in l

25 Boston or Washington on the 24th or 25th depending on how the O Heritage Reporting Corporation

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9800 1 . Board rules on the location.

2 And that if we wish to press our point with respect 3 to deposition of FEMA policymakers following the deposition of 4 those four persons, we will tell Mr. Flynn and he will either 5 a.cquiesce or file something in the nature of a protective 6 order.

7 In addition, he's represented as I heard it that

-8 between now and approximately Wednesday, he will determine ,

9 whether Mr. McLoughlin's going to be produced volitionally on 10 account of our notice or not, and if not, he will so inform us.

11 JUDGE SMITH: All right.

12 Do you agree, Mr. Flynn?

13 MR. FLYNN: Yes.

O 14 I'd like to get the date of the deposition of my 15 panel pinned down. I had understood from the earlier 16 conversation that we were agreeing to Friday. But from Mr.

17 Olesky said, that seems to have been left open.

18 MR. OLESKY: I think that we had wanted to do it on 19 Thursday here, and then the problem had become if it was not 20 going to be here, Mr. Dignan could not do it until Friday in 21 Washington. But we prefer to have it here on Thursday.

22 MR. FLYNN: Is it going to take more than one day?

23 MR. OLESKY: For those three people? Not our 24 examination. I can't speak to what anybody else may want to 25 ask them.

O Heritage Reporting Corporation (202) 628-4888

9801

() l' MR. FLYNN: From my conversation last week with-Mr.

2 -Dignan, I assumed-it would also be his preference to do it on 3 ' Friday even if it's in Boston.

4 Is that correct, Mr. Dignan?

5 ,

MR. DIGNAN: Well, as I indicated to you, I would be 6 all right on Thursday provided we could begin Thursday morning-7 after'10:30 and we could quite promptly at 3:45~ assuming that 8 we were at the AG's office. I have commitments at the .

9 beginning and the end of the day that I simply cannot break.

10 MS. WEISS: I would certainly have a strong 11 preference for doing in Thursday if it's in Boston so that I 12 don'*. have to sit around Boston for a day just wasting my time.

13 JUDGE SMITH: Well, I don't think it's realistic that

() 14 the depositions of -- do you think it's realistic that the 15 three depositions can be conducted in the few hours that Mr.

16 Dignan has available?

17 MR. OLESKY: I'm not sure they can. But if they 18 can't, it makes it more sensible to do them on Thursday in 19 Boston to get them started and complete them on Friday.

20 MR. TURK: May I ask if the depositions of the three 21 witnesses would be donc as a panel?

i 22 MS. NEISS: No.

23 MR. TURK: That might take some time.

l 24 MR. OLESKY: They may be presented as a panel 25 testimonially but we have not noticed them as a panel nor do we d O Heritage Reporting Corporation (202) 628-4888

m ,

p- 9002 i,v' . I want them as a panel.

2 -JUDGE SMITH: You want them separately. You have 3 .them separate times. That's correct.

4. MS. WEISS: Yes. Yes.

5 JUDGE SMITH: Well, that's your right.

6 MS. WEISS: I think it would be useful, Mr. Chairman, 7 assuming that this dispute persists over the policymakers which 8 I think it's likely to do, we might set a deadline for Mr.

9 Flynn to assert his motion for a protective order so we can get

10. the motion in and the responses in and have that resolved 11 expeditiously, given that we're looking at a May 2nd hearing 12 date.

13 JUDGE SMITH: Mr. Flynn?

O 14 MR. FLYNN: Well, it sounds like I'm going to be 15 involved with depositions all week, a combination of 16 depositions and preparation for depositions and traveling.

17 I think Tuesday of next week is the earliest.I can do 18 this if we're expected to have that ready.

19 JUDGE SMITH: And we're speaking of a motion, written 20 in writing for a protective order?

21 MR. FLYNN: Yes.

22 JUDGE SMITH: With responses, replies in writing, and 23 that would probably defeat any May 2nd hearing schedule, you 24 know, but if that's what's going to happen, we just might as 25 well no' pretend we're going to go to hearing on May 2nd.

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I 9803

.f, s 1 JUDGE HARBOUR: Can we do it orally by telephone?

2 JUDGE SMITH: Either that, or we can do it orally by 3 phone.

4 MR. FLYNN: Well, I understood it was-going to be ,

5 done by phone, but the intervenors seem to prefer that'it be .

6 done in writing.

7 -JUDGE SMITH: Mr. Flynn, we're having trouble. The 8 Reporter's having trouble. ,

9 MR. FLYNN: I'm sorry.

10 JUDGE SMITH: I hear you all right, but I'm right 11~ next to the speaker phone. But the Reporter is having trouble.

12 Your voice is trailing off at the end.

13 MR. FLYNN: Should I repeat what I just said?

14 JUDGE SMITH: Please.

15 MR. FLYNN: I had understood from my conversations 16 with Mr. Traficonte that the argument, if necessary, would be 17 oral, but the intervenors seem to prefer that it be in writing.  !

18 My preference would be that it be oral. It saves me some time.

19 JUDGE SMITH: You'd be making a standard executive ,

20 privilege type of argument?

21 MR. FLYNN: Yes.

22 MR. OLESKY: I guess to help this along, Judge Smith, 4

23 we'd always contemplated we might have the arguments by 24 telephone like this. I think it would be :.elpful and probably 25 even necessary for us to see Mr. Flynn's views in writing, but J

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.w v

9804 1- we'd be happy to respond on 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />' notice over the telephone

[

. :2 without filing anything ourselves.

3 MS. WEISS: I would agree to that, too. I just think 4 I have a~ feeling that this could be a really major issue in 5 this litigation. And I think that at least the grounds for the 6 protective order ought to be asserted in writing.

7 JUDGE SMITH: Well, how does that strike you, Mr.

8 Flynn? The advantage is about equally divided. You'd have ,

9 yours in writu.g by Tuesday, and we'd have perhaps a telephone 10 conference on it Thursday next week.

11 MR. FLYNN: I would agree to that.

12 JUDGE SMITH: All right. That would be Tuesday you'd 13 have it in their hcuds on Tuesday. That would allow a day and

{ 14 15 a half say for the intervenors to prepare oral responses and the applicant and the Staff.

16 Is that satisfactory?

17 MR. FLYNN: It's satisfactory to me, yes.

18 JUDGE SMITH: All right, then let's schedule --

19 JUDGE HARBOUR: You didn't hear from anybody else.

20 JUDGE SMITH: Well, if that's not satisfactory, you'd 21 better speak up now, parties.

22 MR. TURK: Your Honor, this is Sherwin Turk.

23 I wonder if there's a compromise possible if we can 24 just move ahead already. And I haven't the stuff of either Mr.

25 Flynn or the intervenor. But I wonder if it's possible that

() Heritage Reporting Corporation (202) 628-4888

9805 1 the intervenors would agree to take one policymaker in exchange 2 for Mr. Flynn's being willing to produce his witnesses in 3 Boston.

4 It seems to me that the intervenors have named just 5 about any one in a policy position at FEMA. I don't know that 6 that's necessary particularly since they've filed a pretty 7 broad document request along with notice of depositions.

8 MR. OLESKY: I agree with Mr. Turk that it may not ,

9 even take all the policymakers, but having gone down this road 10 with corporations and government officials many times, I find 11 it very difficult to agree in advance which ones you can 12 dispense with until you depose the ones you think have the 13 information, and they either confirm they have it, or point to O' 14 somebody else. And that's my problem with this kind of a 15 compromise at this point.

16 MR. TURK: Yes, but your depositions of the three or 17 four people this week would point to one individual who'd most 18 likely have the information for you, and that's the one you 19 just spoke about.

20 MS. WEISS: Maybe it would, maybe it wouldn't. We 21 don't have any of those documents, yet. And we won't have 22 those until April lith. You know, I would certainly not agree

, 23 to that in advance. It may be possible after we get the 1 24 documents to single out one person, but I couldn't agree to 25 that now.

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9806

( 1 MR. OLESKY: Let me just respond to the timing issue 2 by saying this, Judge. If you could hold the phone conference

'3 one more day until Friday, it we find that Mr. Flynn has cited 4 a lot of cases and we want to give you some cases in writing, 5 we would get them down to you on Thursday night so you won't 6 have-to be grappling with anything over the telephone that's 7 major.

8 (Pause) ,

9 MR. OLESKY: Did you hear that, Judge?

10 JUDGE SMITH: Yes, I did. I heard what you said. I 11 don't understand the sequence here.

12 MR. OLESKY: I'm sorry. Instead of holding the 13 telephone argument on this next Thursday, if you can make it

() 14 one day later on Friday, we will, if Mr. Flynn files a 15 significant memo with some cases that we think need to be 16 responded to, we would send you something on Thursday night in 17 writing that you'd have available for the Friday telephone 18 conference.

19 JUDGE SMITH: Yes. That makes sense.

20 Where I'm having trouble now is having an 21 uninterrupted chain of events leading to that Friday 22 conference.

23 You depose next week or you depose this week.

24 MR. OLESKY: Yes.

25 JUDGE SMITH: Messrs. Thomas, Hock, Keller and?

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9807

(~\

1 MS. WEISS: Cumming.

2 JUDGE SMITH: Cumming.

3 Excuse me a moment.

4 The Reporter-needs a break, and I'll come back to 5 _that~.

6 (Brief recess is taken.)

2a' 7 JUDGE SMITH: In the first place, you don't have the 8 documents. You don't have the documents somebody said 'til ,

9 April lith.

10 MR. OLESKY: That's right.

11 JUDGE SMITH: And yet I understand that the documents 12 may very well tell you what you need by way of policymakers.

13 MR. OLESKY: I agree with that, Judge.

O 14 JUDGE SMITH: So we're going to be having a debate 15 over the policymakers before you know what you need, and before 16 the debate is crystallized.

17 MR. OLESKY: I think that's right. I think it will 18 clearly be forum debate and might save the exercise of some 19 jaws if not some pens if it came after the lith. I think we 20 got into the next week routine in a desire to keep the thing 21 moving.

22 If Mr. Flynn can give us the documents earlier than 23 the lith, then we could have the motion heard before the lith, 24 obriously.

25 JUDGE SMITH: Mr. Flynn?

O Heritage Reporting Corporation (202) 628-4888

9808 1 MR. FLYNN: Yes?

2~ JUDGE SMITH: Do you think that we should have an 3 extension of time for the beginning of the hearing? I don't 4 think that FEMA's going to be ready for a hearing.

5 MR. FLYNN: Well, that's perhaps not the issue. I 6 think the intervenors are requesting more information than we 7 see the need for. I don't think the depositions and the 8 discovery helped us get ready for the hearing. I think that if 9 we didn't have to go into this, we could be ready in a couple 10 of weeks. But nonetheless --

11 JUDGE SMITH: Well, how in the world can we not go 12 into one of the important legs of the FEMA position and that is 13 the policy behind it?

14 MR. FLYNN: I'm not saying that we shouldn't, Your 15 Honor. I'm just saying that the question is not whether FEMA 16 .can be ready. The question is whether the intervenors can be 17 ready.

18 But I would agree with you that's certainly the 19 direction that this conversation is going that we need a delay.

20 JUDGE SMITH: It certainly would be helpful if you 21 could shake loose a policymaker promptly. It would just --

22 sooner or later, you're going to be faced with this problem, 23 Mr. Flynn, as we've discussed from the very beginning of this i 24 hearing.

25 To the extent that FEMA's position relies upon l Heritage Reporting Corporation (202) 628-4888 t

9809 1 anything, technical bases, RAC, RAC deliberations and policy, 2 to that extent, FEMA's testimony will have-to be supported.

3 Either that or its rebuttable presumption is weakened.

4 And it's not that I'm trying to force FEMA into a 5- position. I just wish sun would get that point understood and 6 dealt with timely.

7 MR. FLYNN: Your Honor, the point that-I had 8 understood you to make during the hearing was that the link 9 between our position and the RAC advice was not at all clear 10 and therefore the rebuttable presumption was jeopardized. And 11 we've had --

12 JUDGE SMITH: Right.

13 MR. FLYNN: -- RAC meetings. We just distributed a 14 transcript of the last RAC meeting. We've made an effort in 15 this testimony to tie what we're saying into the advice of the 16 RAC, and particularly the advice of the NRC.

17 And now you're saying, that's not enough.

18 JUDGE SMITH: Well, no. What I'm saying is, I'm not 19 -- we don't want to put procsure on FEMA. It's not our i 20 business to do that. To come in with their policy position if 21 they don't want to rely upon it.

22 But to the extent that their testimony depends upon 23 policy and to the extent that they don't produce the basis for c 24 that policy, to that very extent, then the rebuttable l

25 presumption is weakened.

O Heritage Reporting Corporation (202) 628-4888 l

t 1

1

9810 1 Now, I recognize that you've come a long way on-2 producing the RAC minutes and the RAC considerations. If FEMA 3 does not want to rely upon policy, well, then that's something 4 else. I don't know where we are.

5 MR. FLYNN: I'm not saying that, either. In fact, I 6 said earlier in this conversation that policy is important, but 7 I've also said, number one, I think we've explained that in the 8 testimony, and number two, the witnesses that we are offering .

9 have a lot of information which will come out in the deposition 10 JUDGE SMITH: But I think that there's probably 11 universal understanding that the witnesses themselves are not 12 policymakers. >

13 MR. OLESKY: Only after Mr. Flynn stated in Concord

(~) 14 that FEMA was -- took a long time to turn that around and it

\_/

15 was being done by -- in Washington to realize that Mr. Cumming, 16 Hock and the others aren't going to be the people who'll likely 17 make the final decisions here. They are only the people who 18 implement them.

19 MR. FLYNN: Do you want the President of the United 20 States to appear at a deposition?

21 MS. WEISS: I don't think so. It would be fun, but I 22 think that's what Ollie North had in mind.

23 JUDGE SMITH: Well, it may very well be that your 24 witnesses, although they're not policymakers, are fully l

i l 25 familiar with the policy considerations.

l

() Heritage Reporting Corporation (202) 628-4888 i

i

9811 A

• t N' 1 MR. FLYNN: The issue that I see, Your Honor, is 2 first of all explaining clearly what our position is, 3 explaining the basis for the position, and we either meet that 4 test or we don't. If we don't, then too bad for us.

5 MS. WEISS: I think that the intervenors have an 6 opportunity to challenge your statement about how the policy 7 was formed.

8 You may believe you've said enough to meet your ,

9 burden, but we have the right to get behind that.

10 MR. FLYNN: Well, now this gets into the relevancy 11 which I thought we weren't going to argue about, but I maintain 12 that the process by which the policy was formed is not the 13 issue. The policy is either correct or it isn't, and that can 14 be argued and we either explain it or we don't. But I think we 15 will have explained it abundantly by the time the depositions 16 next week are over.

17 MR. OLESKY: If I may differ with that, Your Honor, 18 just as Mr. Dignan hammered away with justification, it is our 19 view, obviously, that the question of the proffer by which FEMA 20 formulated its prior position, we're certainly now allowed to 21 inquire how it came to reverse that policy position with, as I 22 think they concede in their summary of testimony, no change in 23 the facts and no change in the law.

24 MR. FLYNN: Your Honor, I think there's a lot of 25 argument about something I think is very unnecessary. The I Heritage Reporting Corporation (202) 628-4888

g n ~ - - _ , ,u -- u i

-9812 t

4}'- 1 initial Ed Thomas piece indicated that FEMA's then position was 2 a matter of or was largely a matter of policy, and for that 3 reason, Mr. Thomas was picked as the person to explain the FEMA 4 position.

5 Mr. Thomas is going to be available for deposition.

6 To whatever extent he is unable to explain the change in 7 policy, the witnesses also have Dr. Hock'who as I understand 8 her position in FEMA, and I don't have this on any insight now, 9 it's only by reading the testimony, she is among the 10 policymaking group, and I don't see that they really need to go 11 further.

12 I think what's going on, and the Massachusetts's 13 Attorney General's Office will have to excuse me if they 14 disagree, and I'm sure they will indicate disagreement, I think 4

15 what's going on is an attempt to inquire into the political 16 issues rather than into the FEMA position on beach shelters.

17 And I think what we're having here is something that 18 sets the stage for God knows what kind of Congressional 19 hearings or other inquiries that the Massachusetts AG's office 20 wants to support. And I think there's no point in us getting 21 into political inquiries. The important thing is what does j 22 FEMA's Rule 20 say and what does it mean.

23 The witnesses are there and if they can't answer a 24 question, then the intervenors can make a showing that they 25 need to go further.

Heritage Reporting Corporation (202) 628-4888

. _ _ _ . . -- . - , _ . _ = _ .

9813 l' MR. OLESKY: I don't have time to worry about what 2 Congress may or may not do. I have to litigate the case and 3 get ready for your hearing.

4 The objection of Dr. Hock, who according to her 5 resume attached to her testimony was with NOOA, until recently 6 if she still isn't can explain FEMA's policy over the last year 7 and especially the change that's been underway since October-8 November is one that I cannot follow. ,

9 JUDGE SMITH: All right. Well, she is not being 10 offered by Mr. Flynn, or she is not being identified by Mr.

11 Flynn as a policymaker.

12 Now, to review here. FEMA as an accommodation to get 13 the case along and to support their rebuttable presumption did 14 agree to not assert the executive privilege and the collegial 15 process privilage with respect to RAC. They made no agreement 16 to waive the executive privilege with respect to the 17 policymakers.

18 Although, I believe it is true that to the extent 19 that FEMA depends upon policy in its testimony, any version of 20 it, to that same extent the rebuttable presumption rests in 21 part, not as much as before, because now we have more legs to 22 support it. But nevertheless, one of the legs, if it is 23 policy, we will be looking at it to see how strong the 24 rebuttable presumption should be.

25 But nevertheless, FEMA is entitled to assert the O Heritage Reporting Corporation (202) 628-4888

9814 1 privilege and I think that they should do it in this case as

{

, 2 suggested, and that is, done next week.

3 Now, would you tell me, however, what are you going 4 ta) do about the fact that we're going to be hearing about it 5 and arguing about it before the documents are produced? What 6 do you say about that, Mr. Flynn?

7 MR. FLYNN: Your Honor, if we were talking only about 8 a request for production, I would have thirty days to respond. .

9 Now, my understanding is we're talking about a lot of 10 documents, it's going to take -- I've got an estimate of about 11 150 hours0.00174 days <br />0.0417 hours <br />2.480159e-4 weeks <br />5.7075e-5 months <br /> to search. I need time to go through and decide 12 which documents I want to protect and which I don't. I have

. 13 that right.

14 Now, I want to do everything I can to move this whole 15 process along, but these things take time and I can't hurry 16 that up, l

17 JUDGE SMITH: Well, then I think it was not realistic j 18 in Boston on February 10 to adopt a schedule that we thought, 19 that you thought was feasible. My first reading of this 20 document request was that it was very very broad and some 21 aspects of it are indeed very broad, but much of it was 22 entirely predictable, limited in time scope, and maybe we 23 should come back to it, after we go through it.

24 If we plan to go through these requests today, maybe 25 we should come back to it and see what your needs are then. Is

~

() Heritage Reporting (202) 628-4888 Corporation

r 9815

( ,I 1 it your plan to go through these document requests today?

2_ Mr. Olesky?. Has there been a dispute over the 3 document requests?

4 MR. OLESKY: Fundamentally,.no. Mr. Flynn has said 5 h,e'll produce the materials next Wednesday that relate to the 6 technical support of FEMA's position and that those relevant to 7 the process he'id produce on or about the lith.

8 JUDGE SMITH: And or -- you mean those relating to 9 what, the?

10 MR. OLESKY: The products of policy as I would view 11 it.

12 JUDGE SMITH: Right, or assert his executive 13 privilege?

() 14 MR. OLESKY: Yes, I suppose that's the case, Your 15 Honor.

16 JUDGE SMITH: Which we're talking now about next 17 Tuesday?

18 MR. OLESKY: Yes.

19 JUDGE SMITH: And then we won't know until next 20 Friday whether we can go to hearing on May 2nd, 21 MR. OLESKY: I think that's true.

22 JUDGE SMITH: All right. What's next?

23 MR. OLESKY: One other point which we haven't 24 discussed with Mr. Turk. We tried to reach him earlier today 25 and were not able to. But he'd alluded to it himself in his O Heritage Reporting Corporation (202) 628-4888

~

9816'

( 1 comments this afternoon when he said that in his view, and '

1 2 maybe the view of the Staff at the NRC, there was also 3 ' technical support for the NRC's position, for FEMA's position l 4 as just filed.

5 ,

To the extent that that can be claimed to be true, it 6 would appear to rest pretty substantially on FEMA's adoption of 4 7 the position advocated since about last January, February, by 8 Dr. Bores. We don't see how under those circumstances the ,

9 intervenors can avoid deposing Dr. Bores prior to the i

10 resumption of the hearing.  :

11 So why don't I ask Mr. Turk to respond to that now, 12 if he wants to. I did want to alert the Board and the other 13 parties to that fact now. -

) 14 JUDGE SMITH: Mr. Turk?

15 MR. TURK: I take it I'm being asked to make Dr.

16 Bores available for deposition?

17 MR. OLESKY: That's true.

18 MR. TURK: I'm going to have to consult. ,

19 Your Honor, this is the first time I have heard about 20 that. I did see a message in my in-box at 1:30 that 21 Massachusetts office had called me this afternoon, but I was 22 unable to get back to them before the conference call. I had 23 not heard about this before.

24 MR. OLESKY: I'm sorry, Sherwin. We had tried to '

25 reach you both Friday and this morning and obviously didn't get C:) Heritage Reporting Corporation (202) 628-4808 [

F v m.e------,.,,-v--+v..v-m,,--_ r,---e -

9817

(-

/^)N 1 you.

2 JUDGE SMITH: Of course, you had an opportunity to 3 examine Dr. Bores, and you apparently feel that that is not 4 adequate for the purposes?

5 MR. OLESKY: I thought I got back about that, Your 6 Honor. We went back and checked the transcript and our 7 recollection is that examination in New Hampshire in January 8 was specifically in the nature of a deposition. Secondly, and ,

9 probably more importantly, it was confined to inquiring of Dr.

10 Bores what had transpired at the RAC meeting of January 7th and 11 8th.

12 And in fact any time any intervenor particularly as I 13 recall, Ms. Weiss, tried to get beyond that, Mr. Turk objected 14 and very successfully to going beyond the confines of what was 15 actually set by way of position at those two meetings in 16 January. But we never did explore the underlying technical 17 basis, if you will, for Dr. Bores position which now becomes 18 more important since it is the other leg, if a stool can have 19 two legs, the other second leg of FEMA's new position.

20 JUDGE SMITH: Well, the thing that occurs to me, that 21 might be the case if the Staff were offering Dr. Bores, but you 22 don't know to what extent FEMA has relied upon the information 23 you seek to depose Dr. Bores on.

24 MR. OLESKY: I can only offer on that point 25 references to their testimony of last week which recite at O Heritage Reporting Corporation (202) 628-4888

9818

(} 1 2

pages 4, 5, and 6 consideration by RAC and by FEMA of Dr. Bores views, that conclude on page 6 with saying that the RAC had met 3 and endorsed Bores

• views in the meetings of January 7th and 4 8th.

5 ,

So technically, as we read FEMA's testimony, if you 6 took out the Bores' position so far as a status of support for 7 FEMA's technical judgment, you would not be left with a great 8 deal. Now, the Board obviously will be there to make its own ,

9 assessment, but that's our assessment.

10 JUDGE SMITH: Well, if that's the case, that's the.

11 case. Why quarrel with it?

12 I still don't see the relevance of Dr. Bores' 13 underlying technical bases if it was not communicated to FEMA.

14 MS. WEISS: Oh, but the testimony states that it was

[}

15 communicated to FEMA. It states it in very very general terms 16 that Dr. Bores made some statements about the special 17 circumstances at Seabrook and that he persuaded the RAC, but 18 what we don't know is exactly what it was that the RAC was told 19 and what the technical grounds were for it.

20 JUDGE SMITH: Right. All right, that is the area of 21 deposing Dr. Bores. What he told the RAC and not necessarily 22 the technical basis for what he told the RAC.

23 MS, WEISS: Both.

24 MR. OLESKY: Here's my problem with that, Your Honor.

25 In effect, what's happening here is that FEMA is bootstrapping

() Heritage Reporting Corporation (202) 628-4888

9819 O

s- 1 its technical basis onto Dr. Bores' oral and written views. To 2 the extent that there are written views -- and you may remember 3 there was a letter of February '87 --

I think it was about a 4 ten-page letter memorandum that Dr. Bores supplied to Mr.

5 Thomas and the RAC, and then a letter that came along in April 6 or May or June just before FEMA answered the interrogatories.

7 There's a lot of technical information in there which 8 by virtue of FEMA filing a position relying on the letter 9 remains a variable for FEMA and the NRC staff in effect to 10 argue that this had been fully explored. But unless Bores is 11 deposed, there's no way to get at his sources, his reasoning, 12 his authority, any of those things that lie behind his bare 13 words.

14 So that's the reason why we're concerned about having 15 a chance to make those inquiries. In our view, simply 16 inquiring what he told the RAC as we were allowed to do in New 17 Hampshire with respect to the RAC meetings of January 7 and 8 18 of '88 would seem to be insufficient.

19 MR. TURK: Your Honor, may I respond briefly?

20 JUDGE SMITH: Mr. Turk?

21 MR. TURK: I think Mass AG misses che point on where 22 they have to go with their inquiry. There are several 23 documents that they have in their possession already that 24 indicate what views were expressed by Dr. Bores before the RAC.

25 First of all, they have his original letter of February 1986, I O Heritage Reporting Corporation (202) 628-4888

9820

() 1 believe. I'm sorry, February of '87. They have his revised 2 letter of June, 1987, which is the one which was published 3 about the same time that FEMA came forward with its views on 4 detention.

5 They then have his October 1987 memo to me indicating 6 what transpired at the RAC meeting and the views that were 7 expressed. And they also have FEMA's test! mony that indicates 8 what it was that Dr. Bores said in general. And they have ,

9 these three other documents as well that indicates what Dr.

10 Bores' views were.

11 MS. WEISS: But what we've never had an opportunity 12 to do is find out -- excuse me, I thought you were finished.

13 MR. TURK: Argue once I've finished my point.

I'T 14 It seems to me if Dr. Boros is wrong, that's

(_)

15 something that intervenors can develop on their own. They 16 don't need to go to him to try to show any inaccuracles in his 17 view. If he's wrong, he's wrong, and intervenors can try to 18 develop something on their own.

19 I'm sure they have their own experts to evaluate any 20 questions that Dr. Bores evaluated and that FEMA witnesses have 21 evaluated. I don't see a need for Dr. Bores. If the Staff is 22 putting on a witness, then I would say, yes, whatever the Staff 23 views are should be subject to exploration through discovery.

24 But we're not putting on a witness.

25 And the Board is aware of the whole history where the lieritage Reporting Corporation (202) 628-4888

r 9821 j

() 1 intervenors sought to get discovery of the Staff and we r

2 indicated that we weren't going to put on a position, and Ms. >

3 Weiss herself indicated if we were not going to put on a l 4 position, they didn't need discovery against us. So it seems 5 1.ike that's been forgotten and now they want the discovery 6 anyway.

1 ,

J 7 MR. OLESKY: Well, the concern, Mr. Turk, is that 8 you're getting it both ways. You're not putting a witness on ,

9 by proffering him, but you're getting the benefit of Dr. Bores 1

10 as a witness by FEMA's adoption of this testimony, and not just 11 on its face but the presumption inherent in it because he's an 12 NRC staff member with a resume that I think is part of the l 13 record that he has the expertise to testify about tnese things.

() 14 I think we're entitled to inquire to see if he does 15 have that expertise.  :

4 16 MS. WEISS: What we've never had an opportunity to 17 do, and I think it's absolutely essential at this point to do ,

18 giving the FEMA reliance on Mr. Bores is to find out exactly i 19 what studies that are that Mr. Bores has that show the  !

20 dispersion of the wind patterns around Seabrook or w'hatever 11 else it is that he bases his assertion of their special 22 circumstances for the Seabrook site, j

, 23 We've never had an opportunity to do that, and as Mr.

24 Olesky says, what they're trying to do now is get the benefit i

25 of his conclusions while insulating him from any inquiry as to l l

I O- Heritage Reporting Corporation (202) 628-4888

9822

(} 1 what the bases of those are and what his expertise offer to 2 bring them forward.

3 JUDGE SMITH: I have not read the FEMA testimony in 4 that light. But if you are correct that that's what they're 5 doing, Ms. Weiss, I don't think that they are going to get away 6 with it. But when I read the testimony to begin with, I just 7 didn't come away with that feeling. But as a matter of fact, I 8 didn't have that thought in mind, you see, so I didn't look at .

9 it from that point of view.

10 MR. FLYNN: Your Honor, I think that this whole thing 11 is being used as an excuse to depose everybody that intervenors 12 can imagine and delay this hearing well into the summer.

13 We're getting very far away from the issue. The

(} 14 issue it seems to me is has PEMA adopted a position it can 15 defend. Well, that's been expanded to how did FEMA arrive at 16 its position. Well, FEMA arrived at its position with taking 17 into account the documents that it had in its possession, and 18 we listed them Jn our testimony.

19 Now, you want to know what was in Dr. Bores

• mind.

20 That may be an interesting exercise but that doesn't answer the 21 question, how did FEMA arrive at its conclusions.

22 MR. OLESKY: But, Judge, formerly, FEMA did not find 23 Dr. Bores' position very compelling. Now, they find it so 24 compelling it seems at least to us and I guest Ms. Weiss to be 25 the principal technical leg in the testimony. I don't see how Heritage Reporting Corporation (202) 628-4888

9823

() I wo're anything but remiss to our clients unless we try to-2 understand something more obuut that testimony than we have 3 available now.

4 If we could subpoena him, as I think we could under 5 these circumstances, we shouldn't be foreclosed from exploring 6 in advance the scope of the testimony we might elicit and 7 trying thereby not only to be better prepared but to cut down 8 the amount of time we spend at the hearing in examining him. .

9 JUDGE SMITH: It seems to me, I'm going back, to the 10 extent that FEMA relies upon Dr. Bores' views, you either have 11 had, or should have an opportunity to know what those views 12 were that were transmitted to FEMA. To the extent that the 13 testimony doesn't make that clear, you want to know what the

() 14 full views were.

15 Now, that Dr. Bores is not going to be a witness for 16 the NRC staff, you should not have the opportunity to examine 17 him beyond the views that he communicated to FEMA unless you're 18 making an argument that one way or another somehow Dr. Bores 19 may end up by being an intervenorn' witness, which I doubt.

20 He's a non-party, he has to be looked at as a third 21 party who provided information to FEMA, and it's only the 22 information that he provided that it seems to me that you can 23 inquire into.

24 MR. OLESKY: Well, I would agree with that.

25 JUDGE SMITH: Whose that? Who agrees with me?

O Heritage Reporting Corporation (202) 628-4888

1 MS. WEISS: Could I jaat ask a question.

2 Was there a transcript served on third parties of the 3 meeting of February 29th? Am I to understand that's happened?

4 MR. FLYNN: Yes. It went out Thursday.

5 JUDGE SMITH: I just received my copy today.

6 MS. WE1SS: Okay. That might explain why I haven't 7 gotten one.

8 MR- N: Perhaps it's on its way, now. ,

9 MS. JHTY: I haven't either.

10 JUDG2 SMITH: Well, that might solve part of your 11 problem, I don't know. I haven't looked at it.

12 MR. FLYNN: Excusa me o:6- c.:cond . I think I heard 13 John Traficonte say he would agree w.... Judge Smith's comments?

14 MR. OLESKY: I thought what we being said was that we 15 couldn't inquire into more than what Bores had said or written, 16 but I don't want to inquire into more than he's said or 17 written, but I want to understand it rather than simply be 18 stuck with what somebody tells me he said.

19 There was a ten-page letter which was full of a lot 20 of technical terminology which on its face is not self-21 explanatory, particularly energy which FEMA now says, as I 22 understand it, is very important and yet I understood Dr. Bores 23 has neither training or experience in that specific expertise.

24 MS. DOUGHTY: This is Jean Doughty again, and not 25 having reen this transcript of February 29th, Dr. Bores may or O Heritage Reporting Corporation (202) 628-4888

9825

() 1 .may not have'made statements that we want to explore the basis

2 of, due to RAC members present at that meeting.

3 JUDGE SMITH: I don't think that you really do agree-4 with what I said. I'm saying that right cur wrong, right or 5 wrong, whatever it is that Dr. Bores communicated to RAC and to 6 FEMA is the area that you can inquire into to make sure that 7 you have all of it.

8 If he communicated to FEMA information that you ,

9 believe is wrong, and FEMA relied upon it, you don't 10 necessarily have Dr. Bores to use to prove that. I mean, Dr.

11 Bores' opinions not communicated to FEMA are not relevant to 12 FEMA's testimony and therefore not relevant to your discovery 13 efforts.

() 14 MR. FLYNN: Your Honor, I would thoroughly support 15 that. I'm very concerned here. We've already had an 16 unprecedented incursion into the RAC review processes, and if 17 we establish a procedure whereby everything a RAC member says 18 has to be defended to the satisfaction of every intervenor, 19 we're-not going to have a RAC process anymore.

20 JUDGE SMITH: Well, that may very well be, but we i 21 can't take cognizance of that.

l 22 In this particular case, given the testimony of Mr.

23 Thomas at the outset and the events as they developed, there is 24 a basis to inquire into the process, and you've agreed that 25 your rebuttable presumption will have to stand or fall upon the Heritage Reporting Corporation (202) 628-4888

9826 1 predicate for it. I know you've agreed to that. But if you 2 haven't agreed, I'm telling you, that's right, that's the case.

3 MR. FLYNN: I understand that. I accept that..

4 JUDGE SMITH: Well, we might as well let this go by.

5 M,r. Turk has not decided one way or the other whether he wants 6 to oppose the deposition of Dr. Bores. You haven't seen the 7 last version of the RAC minutes so you don't know if you need 8 them. ,

9 But I believe that the guidelines we've given here 10 this afternoon about Dr. Bores' opinions not communicated to 11 FEMA should control.

12 MS. WEISS: I would just want to say that there's a 13 difference between the scope of the evidence that may be A

\-) 14 ad:nissible in the hearing and the scope of discovery, discovery 15 being of course far broader. And to that extent to the degree.

16 that we're preparing a case to rebut on the merits this 17 assertion that there's some special circumstances about 18 meteorology that affect Seabrook only I think we would be 19 entitled to inquire of Dr. Bores such questions as what are the 20 studies that you base your opinion on, irrespective of whether 21 that would be admissible at the hearing. We're not arguing 22 that. That would certainly be a line of inquiry that might 23 lead to evidence admissible at the hearings, whether through 24 Mr. Bores or some other witness.

25 JUDGE SMITH: That might very well be at the very O Heritage Reporting Corporation (202) 628-4888

9827 1 beginning of the hearing, but in that respect, I would regard 2 Dr. Bores as a third party deponent, except to the extent that 3- he communicated information to FEMA, he would be regarded as a 4 third party deponent, and your right to discover against him or 5 discover his information would be looked at accordingly.

6 Should we go on?

7 Mr. Turk?

8 MR. TURK: Yes? .

9 JUDGE SMITH: Have you had any opportunity to decide 10 whether you'd make Dr. Bores available for deposition without 11 limitation?

12 MR. TURK: I'm inclined to oppose any attempt to 13 depose Dr. Bores at this time. I think we've gone pretty far r)

(- 14 in making available all the documentary transmissions from Dr.

15 Bores. He was available to explore by intervenors as to what 16 transpired at the January 1988 RAC meeting.

17 The Board may recall at the same time, I led.into 18 some questions asking Dr. Bores what was stated at the January 19 meeting as to prior statements by people at the July RAC 20 meeting, and so the intervenors didn't care for that approach.

I 21 The Court may recall that was where I asked whether 22 the RAC members recounted at the January meeting what they had 23 said previously.

24 So I think we've made available to intervenors 25 already a full discussion of different communications between l

V Heritage Reporting Corporation l (202) 628-4888 l

l l

9828 1 Dr. Bores and the RAC and FEMA. I don't think they have any 2 need to go further at this point, and in terms of the substance 3 of his views whether he's right or wrong, I don't see that 4 that's relevant. In the communications to FEMA, if he's wrong, 5 then let them prove.that as part of their case assuming that 6 it's relevant. But they don't need Dr. Bores' deposition in 7 order to make that kind of'a showing.

8 JUDGE SMITH: If, as you say, all of the information .

9 communicated to FEMA and all the documentary information has 10 been produced, then we'll go back to our original position; 11 whether he's right or wrong is not a direct issue in this case.

12 MR. TURK: The alternative is, if the intervenors 13 want, I can discuss the matter further with the Staff. I don't 14 think the Staff is going to be willing to produce him.

15 MR. OLESKY: See, the problem for intervenors, Your 16 Honor, it seems to me when FEMA ultimately adopts Bores and the q 17 RAC adopts Bores, what they're saying is this Dr. Bores. We've 18 been listening to him for two years. He's a very persuasive 19 guy. He knows what he's talking about and therefore we're 20 going to buy his views technically.

21 Well, we don't know whether he knows what he's 22 talking about until he's forced to talk about it under oath to 23 us. And to have to make that difficult choice on the eve of 24 the hearings with respect to a subpoena is very difficult.

25. JUDGE SMITH: I still go back to this and we're O Heritage Reporting Corporation (202) 628-4888

9829

('/

s_

i 1 talking -- well, we'll take a break and I'll come back to'you.

2 (Brief recess is taken.)

3 JUDGE SMITH: All right, Mr. Turk?

4 (No response.)

5 MR. OLESKY: I think he took the break literally.

6 JUDGE SMITH: All right. We're just taking breaks 7 long enough to change cassettes.

8 MR. TURK: I was going to ask a question of the Mass, 9 AG's office.

10 JUDGE SMITH: That's all right, go ahead.

11 MR. TURK:- I'm wondering if they are intent on taking 12 Dr. Bores' deposition how they'd feel if I made him available 13 at the trial, then?

('N 14 JUDGE SMITH: What was the last part of your V

15 question?

16 MR. TURK: I'm wondering whether the Mass AG would 17 want Dr. Bores to appear at trial.

18 MR. OLESKY: We've never been in a position of saying 19 whether you should or shouldn't produce a witness, only in 20 asking that you designate whether you will, what.the testimony 21 will be and then we get a chance to find out in advance in a 22 deposition if we think it's important, something about that 23 testimony and the background of the witness.

24 JUDGE SMITH: Mr. Turk, did he understand your 25 question correctly?

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9830 1 1 MR. TURK: I'm not sure.

2 MS, WEISS: I think Mr. Turk's trying to get around 3 the deadline that he passed about a month ago that said he 4 wasn't going to put a staff witness on.

5 MR. TURK: Not at all, Ms. Weiss. I was not 6 intending to put a Staff witness on, but if you're intent on 7 exploring'Dr. Bores' views, perhaps we'll turn around and say, 8 if you want a productive issue, perhaps we'll put him out as a, 9 witness at trial.

10 MS WEISS: I don't even think that's cute. I want 11 to take his deposition. I don't want to put him on the stand.

12 At least, I don't want to make that decision yet.

13 JUDGE SMITH: The two considerations are not related, 14 --

15 MS. WEISS: That's right.

16 JUDGE SMITH: -- Mr. Turk. It seems to me Jf you 17 want to put Dr. Bores on you should make that decision without 18 regard to whether he's deposed.

19 MR. TURK: Well, we had made a decision not to put 20 any witnesses on, Your Honor. And it was my understanding that 21 there would be no discovery either since we're not putting on a 22 position.

23 JUDGE SMITH: The only discovery that we're even 24 thinking about, even talking about depends upon the assumption 25 that there are elements of the information by Dr. Bores to FEMA O Heritage Reporting Corporation (202) 628-4888

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() I that has not been made known to the intervenors yet. That's 2 the only thing that we've discussed favorably.

3 And that will be our ruling.

4 Do you want to move on to the next point?

5 MR. OLESKY: I think the only other point we had was 6 an inquiry of the Board on the protective order ruling and the 7 plans you might have. As I understand it, that leaves some 8 part of the Mass. plan as still being withheld because it's not 9 subject to a protective order since the material was never 10 requested by the NRC.

11 So as I view it, as soon as you issue your decision, 12 we might get the material which we are anxious to have.

13 JUDGE SMITH: We have a draft of the order extending

() 14 the protective order through discovery and this is what I would 15 be saying about that, independently, but the Board has not 16 agreed upon it.

17 But it's my view that neither the Attorney General 18 nor the applicant has read the Commission's order clearly 19 enough with respect to the Appendix H information. We don't 20 read the Commission as saying that the applicant has to turn 21 over everything that it has about the plan without delay.

22 We read it as saying that whatever FEMA and the staff 23 are going to be reviewing at a minimum the intervenors need.

24 On the other hand, we don't believe that the applicants have 25 correctly read that CLI87-13, either. Because they seem to be Heritage Reporting Corporation (202) 628-4888

e 9832 1 reading it as that sets the bounds of discovery. And it does-(}=

2 not. The Commission doesn't get into that. They were just 3 making one statement referring to the intervenors' complaints 4 and that's all.

5 The discovery rules are going to apply here, and that 6 is that if the Appendix H information is otherwise discoverable 7 and not privileged, that's a decision that stands or falls 8 independently, not based upon CLI87-13. So what we'll be 9 telling you is that we don't know, you know. We haven't seen 10 the Appendix. We don't know exactly who these people are. We 11 don't know if they need privacy or whatever. But if applicant 12 wants to go ahead and release it, they can do it under the 13 protective order.

() 14 Other than that, you'll have to come back to us.

15 It's my view that the information normally would be produced 16 under discovery and what Mr. Dignan said or what Ms. Selleck 17 said in her brief was sort of vague on that point. It.seemed 18 like that you were falling back to your position that nobody's 19 entitled to discovery yet. And yet I thought we were in the 20 posture where we would proceed as if discovery was ripe and 21 make our rulings based on whether they would otherwise be 22 discoverable.

23 So that is how I viewed that, and I'm just putting it 24 out for discussion now. It may very well be that after we look 25 at this draft that the Board may have different feelings on it.

, Heritage Reporting Corporation (202) 628-4888

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\_) 1 But I just put that out to see if the parties might resolve the 2 matter on their own in view of those comments.

3 MR. TRAFICONTE: Well, Your Honor, John Traficonte 4 for the Mass AG's office. I believe that we had the view that 5 the information, the redacted information came in two parts.

6 One part was essential and core and could be seen as 7 in fact an element of the plan, and for that reason, we raised 8 the issue early and argued that as a fundamental component of ,

9 the plan, it should be available to us prior to the opening if 10 you will of the discovery period.

11 The other parts of the information not yet available 12 if I understand your comments, Your Honor, some of the other 13 parts of the redacted information would normally be made

(.-

(_) 14 available, or at least we would argue over it at the discovery 15 phase. We coaxed those different components into one, making 16 and filing the motion and in briefing the motion that sought 17 all the information.

18 JUDGE SMITH: Yes, I recognize that.

19 MR. TRAFICONTE: And I read the brief by the 20 applicant on that particular point essentially to be as to that 21 other information, discovery is not yet open, and frankly I 22 agree with Your Honor. I thought that issue we'd already 23 gotten past as one way or the other, all of the information was 24 going to be dealt with by the order that the Board is presently 25 considering.

^

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9834 1 If the applicant's position is when discovery 2 officially opens, go ahead and request the Appendix H 3 information again, it seems to me at that. juncture, we'1] just 4 be right back in the situation we're at now.

5 JUDGE SMITH: Well, before 1 hear from the 6 applicants, let me go back to your point.

7 We recognize that you did make the argument that you 8 were entitled to have produced now without delay the entire ,

9 plan. We did not buy that argument. We didn't accept it or 10 reject it. We're reviewing the request for the information 11 through the discovery rules.

12 We do not have the authority to order the production 13 of anything except in discovery rules, and we're also ruling, 14 based upon what we believe is a misunderstanding on both sides 15 of the Commission's order.

16 The Commission did not limit discovery; they just set 17 a minimum requirement that they saw right at the outset was 18 necessary for a fair hearing. And that is, whatever FEMA and 19 the NRC staff have for their review, the intervenors need to 20 know what it is from the beginning. If you need more, then 21 you'll have to sta'dn or fall based upon traditional discovery 22 requirements.

23 And in this, we are inclined to believe that is 24 something that would be discoverable if not privileged and if 25 not burdensome.

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() 1 MR. TRAFICONTE: Well, we're in agreement, Your-2 Honor, except for the distinction between necessary. Your 3 comment was necessary for a fair hearing and to my mind, that 4 comes in two parts. Information necessary for the drafting of 5 contentions which could be defended at the contention stage, 6 and necessary for the development of an evidentiary case in 7 support of certain contentions. And that phase obviously comes 8 down the road.

9 JUDGE SMITH: Well, Mr Traficonte, we understood 10 that was your argument, but remember the Commis,sion owns the 11 store, not us. And we do not have the authority to tell what 12 has to be on the public record before the contention stage.

13 I don't think we have to beat that to death. I think

() 14 that what you're getting is probably discoverable and 15 discoverable perhaps is too much. Perhaps it's burdensome, 16 perhaps there should be privacy afforded aspects of it. I 17 don't know. But it meets the basic fundamental threshold test 18 as to is it relevant to any issue in the proceeding.

19 Mr. Dignan, do you want to comment on this?

20 Did we lose you or are you there?

21 MR. DIGNAN: Yes, I am, Your Honor.

22 I think Your Honor has correctly indicated if you 23 review the footnote of the brief we filed, our position was --

24 what I understood we all agreed to was that the AG wanted to 25 get the redacted information that the Staff and FEMA had i

C:) Heritage Reporting Corporation (202) 628-4888

9836

() 1 requested as of now. And that was' produced under this 2 temporary protective order for them without redaction. Even 3 the redactions that were in the Staff's -- the ones actually 4 sent to the Staff.

5 And that's all that was at issue at this time. The 6 only thing we meant by that footnote is to point out that now 7 they are insisting they're entitled to more than what had been 8 agreed to as being filed precontention. And we thought that's .

9 all, they were getting more than they were entitled to anyway, 10 and that's all. We said it was unreasonable.

11 On the other hand, if you read the last sentence, we 12 said if the Board thinks they ought to get it right now, fine, 13 but we want it under the protective order.

() 14 JUDGE SMITH: Well, I didn't read your footnote as 15 being quite that simple. I read it as you did not believe that 16 was discoverable either through the discovery rules or 17 certainly not through CLI87-13. And what we're saying.is it 18 may not be discoverable now but it's going to be. And if you 19 want to go ahead --

20 MR. DIGNAN: What we were talking in this footnote 21 part is in the framework of when we will file it, and if you 22 will read what we said, applicants have no difficulties for 23 providing Mass AG under an appropriate protective order the 24 information given to the Staff. We believe Mass AG's demand 25 for even more information is unreasonable.

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() 1 Mass AG's assertion that the Commission intended them 2 to receive a complete copy of the SPMC is incorrect. And I 3 think Your Honor has-indicated that you agree that that was 4 incorrect?

5 JUDGE SMITH: Yes, that's right.

6 MR. DIGNAN: The Commission merely indicated the 7

applicants were to state their willingness to give the 8

information requested by the Staff and FEMA to other parties as 9 well. The Commission said nothing about information that the 10 Staff does not deem necessary for a full power review of the 11 SPMC.

12 JUDGE SMITH: That's correct.

13 MR. DIGNAN: And then we went on to say -- Your

() 14 Honor, well, I won't say -- we did not intend to mean by that 15 that the normal discovery rules wouldn't kick in after 16 contentions and obviously anything that's relevant would have 17 to be produced,-maybe under a protective order, maybe not, once 18 contentions have been filed.

19 But then we went on to say should the Board decide 20 that Mass AG's demand for even more information is within 21 bounds -- and by within bounds, we meant within bounds of being 22 required to be produced before, or should appropriately be 23 produced before they even set their contentions, we will give 24 it to them under the protective order.

25 And we meant no more or less than that.

Heritage Reporting CorporatJ n (202) 628-4888

o 9838 O l' JUDGE SMITH: But that doesn't really fill the void.

2 Because we agree with you that the Commission's order does not 3 require it. We agree with you that they have no right to 4 discover until the contentions are filed.

5 MR. DIGNAN: Right.

6 JUDGE SMITH: We also recognize however that if we 7 should find ultimately that this information is discoverable, 8 and it probably is, and that if it produces information which ,

9 for the first time can support a new contention or a late-filed 10 contention, where are we.

11 MR. DIGNAN: Well, they'd file a late filed 12 contention, I guess.

13 JUDGE SMITH: All right. If you want that, fine.

14 MR. DIGNAN: But what I'm prepared to do is if they 15 want Appendix H under the protective order, take up that 16 question right now.

17 JUDGE SMITH: What we have ruled is, is that -- well, 18 we haven't ruled, but this is what I suggest. That some of 19 this information -- who are these people anyway, by the way?

20 Are they employees?

21 MR. DIGNAN: Some of them are, I think. Some of them 22 are not.

23 JUDGE SMITH: Well, we don't know. See, we're at a 24 loss there. We don't know who they are.

25 -

MR. DIGNAN: Your Honor, I'll be honest with you. I O

Heritage Reporting Corporation (202) 628-4888

9839

., I was not prepared to discuss this matter today.

~

2 JUDGE SMITil: Okay. Why don't you wait until you get 3 our order?

4 MR. DIGNAN: I would have pulled it and gotten 5 totally familiar with Appendix H if I'had known we were going 6 to discuss it today.

7 JUDGE SMITH: Well, all right, that's fair enough.

8 We should have our order out in a few days and you'll see what, 9 we're saying there. But I think our discussion here might be 10 helpful.

11 MR. DIGNAN: Your Honor, to put it in context in the 12 sense of the Board, I'm not retreating one inch from the 13 position I have had basic overall philosophy which I've told 14 the Board I've had. I've never deemed it in our interest to O 15 withhold information. The only thing I want is to protect it 16 from general disclosure.

17 JUDGE SMITH: You've got it.

18 MR. DIGNAN: That's been the position since day one

, 19 as far as I'm concerned.

20 JUDGE SMITH: If you want to give it under a l 21 protective order, we authorize the extension of the protective l 22 order to that.

23 And here's what our draft says. "If the Board has 24 not stated the significance of Appendix H information 25 correctly, either party may come to the Board for relief, but

() lieritage Reporting Corporation (202) 628-4888 1

9840

.Q 1 only after an effort to resolve the matter in accordance with 2 the general tenor of this Order." And we discussed the 3 different considerations we thought would prevail through the 4 whole dispute. So let's let it go at that.

5 MR. DIGNAN: All right.

6 MR. TRAFICONTE: All right, Your Honor. Can I just 7 get clarification.

8 Is Mr. Dignan going to produce to me now prior to the 9 opening of discovery the Appendix H material subject to a 10 protective order?

11 JUDGE SMITH: We can do this. We can do this. We 12 can include that under the temporary protective order to get it 13 going and then you get our order and -- well, why don't you 14 wait. We'll have this order out in a few days, and I'll 15 express mail it.

16 MR. TRAFICONTE: Okay. My concern is obviously just 17 a deadline. I haven't seen this material. I'm doing my best 18 to try and make our deadlines, and I'm imagining another fairly 19 extensive piece of information to digest before April 6th.

20 JUDGE SMITH: Mr. Dignan, you'll be prepared to 21 release that under the protective order.

22 MR. DIGNAN: I'll get them going on it, Your Honor, 23 right now.

24 JUDGE SMITH: All right.

l 25 Now, is there going to be any discussion of the O Heritage Reporting Corporation (202) 628-4888

9841

() 1 individual document requests this afternoon? You know, the 2 document requests to support the depositions of the FEMA 3 witnesces?

4_ MR. DIGNAN: I don't think that the parties -- Mr.

5 F,lynn may want to correct me, but Mr. Olesky has had to go to 6 another meeting, but I don't think the Mass AG is prepared, 7 unless Mr. Flynn is, to go over those document requests in 8 seriatim, yet. ,

9 MR. FLYNN: No, I'm not prepared to do that. I had 10 not understood that that was to be the subject of today's 11 conference call and I have not prepared anything.

12 JUDGE SMITH: I didn't know what was.

13 MR. TRAFICONTE: The only thing, Your Honor, is just

() 14 the issue of the location. In the meantime, at some point 15 during the conference cell, I went out and checked the Federal 16 Rules on location and place of deposition, and can report back 17 on the issue of the location or the law of place of deposition 18 of the other three individuals that are presently scheduled for 19 Friday?

20 JUDGE SMITH: Yes.

21 MR. TRAFICONTE: The law appears to be, and it's a 22 combination of Rule 26 and Rule 30 of the Federal Rules of 23 Civil Procedure, that generally you would take the deposition 24 of a corporation or business at its place of business.

25 Although if a party proferred a witness or had identified a O Heritage Reporting Corporation (202) 628-4888

9842

() 1 witness, fact witness or any other kind of witness, that would 2 be a consideration to be weighed in deciding the place of 3 deposition. So the Courts apparently recognize the difference 4 between an identified witness of a party and the classic 5 e.xample would be a plaintiff.

6 A plaintiff witness would be required normally to 7 have his deposition taken in the forum and in the jurisdiction 8 where the Court sits. That seems in certain cases at least to, 9 apply to other witnesses identified.

10 Those individuals are differentiated from non-witness 11 individuals --

12 JUDGE SMITH: Non-party.

13 MR. TRAFICONTE: -- which is comparable, I imagine,

() 14 to a managing agent for a corporation, and normally the 15 location of deposition there is in the place of business of 16 that corporation. And that's a very quick, you know, I just 17 went upstairs and checked for ten minutes.

4 18 But it appears the case law recognizes the difference 19 in the nature of the deponents. If it's a witness deponent, 20 then there may be and often is the requirement that he or she 21 be produced at the site of the jurisdiction, and if it's not 22 going to be a witness, well, then it's the burden of the 23 deposing party to go to the location of that proposed deponent.

24 JUDGE SMITH: Okay. Well, then that's right. That 25 seems to turn upon for whose benefit is the deposition. Then O Heritage Reporting Corporation (202) 628-4888

9843 1 there's cne other' thing. Lurking some place in the discovery

)

2 rules is a special rule for Government witnesses, and it 3 relates to the costs to be incurred with respect to Government 4 witnesses. And here our only consideration I think is costs.

5 But we'll look for that too.

6 Thank you.

7 MR. DIGNAN: Your Honor, I indicated earlier I would 8 get Appendix H ready. ,

9 Before I speak too quickly on that, I just want to 10 bring to the attention of the Board one thing. A lot of 11 Appendix H is telephone numbers,'and the telephone numbers in 12 the usual course wouldn't be released under any circumstances.

13 I mean, they give you the number that people will use in the

[} 14 15 actual emergency.

Our people may want to redact that rather than 16 release it.

17 JUDGE SMITH: Yes, that seems to be reasonable.

18 MR. DIGNAN: I mean, those numbers are normally 19 redacted anyway in anything that goes public.

20 JUDGE SMITH: Okay, that's fine.

21 MR. DIGNAN: It gives the phone numbers that you 22 actually use to get people.

23 JUDGE SMITH: And then we would also regard the home 24 personal telephone numbers of individuals as being privacy 25 matters.

l

() Heritage Reporting Corporation (202) 628-4888 L:

l

,e 1 MR. DIGNAN: Right.

2 JUDGE SMITH: As a separate consideration. Two 3_ categories of phone numbers.

4 All right. Anything further this afternoon.

5 MR. DIGNAN: Well, we finally, I guess I'm still not 6 clear. As I understand it, we're going to go with Thomas at 7 9:00 o' clock on Wednesday at the AG's Office? Is that agreed.

8 upon?

9 MS. WEISS: Is Thomas the only witness for Wednesday?

10 MR. DIGNAN: Yes.

11 MS. WEISS: Well, this is a purely personal request.

12 If he's the only witness for Wednesday, I would fly up 13 Wednesday morning if we could start him at.10:00. Otherwise, 14 I'll come up Tuesday night.

15 MR. DIGNAN: I have no problem with whatever time. I 16 just want to know when it is.

17 MR. TRAFICONTE: We have no problem with 10:00. We 18 would imagine we could still finish Mr. Thomas within certainly 19 one day.

20 MR. DIGNAN: All right. And then what happens on 21 Thursday?

22 MR. TRAFICONTE: I was just going to ask the Board 23 the same question.

24 Your Honor, what happens as to the location and the 25 timing of the three witness deponents that Mr. Flynn's already

(

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9845 l' agreed to produce?

{}

2 JUDGE SMITH: The only questicn is now if they're in 3 Washington, you hm ve to have different days?

4 MR. TRAFICONTE: That's my understanding. Didn't 5 they, Mr. Dignan?

6 MR. DIGNAN: Yes, I cannot be out of Boston on 7 Thursday, Your Honor. I indicated between certain hours, I 8 could sit a_ deposition at Boston, but I can't go out of the 9 City.

10 MR. FLYNN: There's another problem with Thursday.

11 During our conference call, I got a note that there's a 12 deposition scheduled for Thursday in the Shoreham case which 13 Mr. Cumming will have to attend as counsel for FEMA. So if the

() 14 depositions going to take place on Thursday, even if it's here, 15 he won't be available then, but he'll be available Friday.

16 MR. TURK: Okay, but we can start the depositions on 17 Thursday though of the other two and then proceed to Cumming on 18 Friday. And wrap it up on Friday.

19 MS. WEISS: Instead of going Wednesday, Friday? Goes 20 Thursday, Friday. If they're going to all be in Boston.

21 JUDGE SMITH: Well, you're asking for the Board to 22 make a quick draw decision on that issue, and that's not what 23 we like to do. On the other hand, if we research it too much, 24 it won't matter, you know.

25 MR. TRAFICONTE: I apologize. I had thought the

( Heritage Reporting Corporation (202) 628-4888 s

9846

() 1 Board was going to make a decision on the phone. If we could 2 just be contacted as early as-possible when you reach the 3 decision, then the parties should be able by phone to set up 4 depositions and make arrangements. Obviously, there's some I

5 t.ime frame in which it becomes too late, but we weren't trying 6 to coerce a decision by this afternoon, necessarily.

7 JUDGE SMITH: Well, I'm inclined to follow your 8 reasoning as striking a memory chord, Mr. Traficonte, on the ,

9 circumstances under who gets deposed where, t

10 There's also in support of your argument as I stated 11 somewhere a statement about Government witnesses and the 12 expense of it. I'm inclined to believe that the equities here 13 are for FEMA witnesses to go up to Boston, particularly in view

() 14 of the fact that FEMA has changed its testimony and to some 15 extent has created the need for the depositions. -

16 On the other hand, Mr. Flynn is standing pat upon his 17 request that the matter be resolved under traditional terms, 18 and as long as he does that, I don't know what to do. He's 19 entitled to have his argument considered.

20 MR. TRAFICONTE: As I say, if we could have a 21 decision at some point during business hours tomorrow, I still 22 think we could all make arrangements accordingly however the 23 Board decided to rule.

24 JUDGE SMITH: Okay. Well, Mr, Flynn, let me ask you 25 this. Please, pending our ruling on it, have your witnesses at i

Heritage Reporting Corporation (202) 628-4888

9847 r

1 least think'about going up there so it's not a big surprise, 2 -okay?

3 MR. FLYNN: Certainly.

4 JUDGE SMITH: All right. Anything further?

5 ,

MR. FLYNN: Yes, there is. There are two other quick 6 items that I have.

7 MR. DIGNAN: Your Honor, before we go on to anything i 8 else. ,

9 Assuming FEMA thinks properly because the ruling is 10 Boston, then do I understand we will start on Thursday in 11 Boston? I mean, _ assuming it's in Boston, are we going to start 12 Thursday with the two witnesses that are available?

13 JUDGE SMITH: Hock and Keller on --

14 MR. TRAFICONTE: In accordance with Mr. Dignan's 15 schedule, I understood.

4 16 MR. DIGNAN: That was going to be my next question 17 because if we're going to do that, that's fine with me. I 18 would like the start to be 10:30 and the finish to be about

] 19 3:45.

20 JUDGE SMITH: Let me interrupt here. Those FEMA 21 witnesses can_get up there and back on the Boston shuttle and i 22 be available for depositions during that time period. There's s 23 only two of them. So why don't you just go ahead and decide 24 that those people are going to be up there. Hock and Keller.

25 Cumming is a different matter. He's not going to be i

(

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9848 1 available as I understand it until Friday, if then, right?

2 MR. FLYNN: Yes.

3 JUDGE SMITH: And we may have a differeat 4 . consideration there. .But why don't you get the other two up 5 there. You're only talking about $320 of Government money.

6 MR. FLYNN: If that's your ruling, Your Honor, we 7 will do that.

8 JUDGE SMITH: And I think that the equities call for .

9 it.

, 10 MS. WEISS: So are we going to still start on 11 Wednesday with Ed Thomas, or are we going to move him to -

12 Thursday?

13 MR. TRAFICONTE: Oh, no. I thought we were going to

\' 14 keep Ed Thomas at 9:30 or at 10:00 o' clock in Wednesday.

l 15 MR. DIGNAN: On Wednesday.

16 MS. WEISS: Okay, and then Hock and Keller on --

17 MR. TRAFICONTE: At 10:30 either of them to 18 accommodate Mr. Dignan running them until Mr. Dignan has to 19 leave. I thought that was 3:30 or 3:45, and then resuming on 20 Friday morning if necessary with the remainder of Hock and\or 21 Keller.

- 22 MS. WEISS

And Friday we get Cumming?

23 MR. DIGNAN: No, you don't know if you get him.

24 MR. TRAFICONTE: We don't know yet.

25 MS. WEISS: Oh, I thought that the only problem was Heritage Reporting Corporation (202) 628-4888 i

l

.i  !

984.9 1 Thursday.

2 JUDGE SMITH: You know that you're going to have-3 Cumming on Friday. You don't know where.

4 Isn't that correct?

5 MR. TRAFICONTE: Okay.

6 MR. FLYNN: I still have two more quick matters that-7 I need to bring up.

8 JUDGE SMITH: All right, Mr. Flynn. ,

9 MR. FLYNN: One of them really doesn't require any 10 action on the part of the Board. I need to address this to the 11 Massachusetts Attorney General's Office.

12 My witnesses, that is, Cumming, Hock and Keller, will 13 need to be able to review the transcript of Ed Thomas' 14 deposition.

15 Are you going to ask the Reporter for overnight 16 transcription?

17 JUDGE SMITH: Of today?

18 MR. FLYNN: No. Of the deposition on Wednesday?

19 JUDGF SMITH: We don't get involved in that.

20 MR. FLYNN: No. I'm addressing this t-i the 21 Massachusetts Attorney General's Office.

22 JUDGE SMITH: Oh, excuse me.

23 MR. TRAFICONTE: We are not intending to ask for 24 overnight return on that. L 25 MR. FLYNN: Well, okay. That's all right, but in O Heritage Reporting Corporation (202) 628-4888

9850

(~)

s- 1 that case, we will be bringing a reporter of our own. This 2 will not be an official transcript. It will be for our 3 purposes, only.

4 MR. TRAFICONTE: We have no problem with that.

5 MR. FLYNN: Okay.

6 The other thing that I wanted to point out to the 7 Board is you have mentioned the week of May 16th as a backup 8 week for hearings, assuming we start on the 2nd, and we have a, 9 conflict with that. Namely, there is a hearing in the Shoreham 10 case scheduled for that same week.

11 MS, WEISS: With the same witnesses?

12 MR. FLYNN: No, but Mr. Cumming is our counsel in the 13 Shoreham case.

14 JUDGE SMITH: Well, I think that we should plan on 15 accommodating Mr. Cumming, that's all. Get him on early and 16 whatever.

17 MR. FLYNN: Okay, well that could very well be the 18 answer if the FEMA witnesses go first or go early in the week 19 of May 2nd, then there's no problem.

20 JUDGE SMITH: But actually I'm having my doubts now 21 abut that May 2nd week.

22 MR. FLYNN: I understand.

23 JUDGE SMITH: All right. Now, let's see, we were I

24 going to reserve and try to resolve today yet on the second t

25 part of the request for an extension. And that was to move the O Heritage Reporting Corporation ,

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9851 1 proposed findings to May 6th.

2 MS. WEISS: Correct.

3 MR. FLYNN: Yes.

4 MR. TRAFICONTE: Your Honor? Your Honor?

5 JUDGE SMITH: Yes?

6 MR. TRAFICONTE: I would point out that assuming it 7 is allowed and I don't have any opposition just as a matter to 8 close the loop, that will presumably move the status of ,

9 proposed findings to be due the 18th, and my response due the 10 26th?

11 JUDGE SMITH: Before we rule on that May 6th, and the 12 sequence after that, is the request from April 6th to May 6th l

13 based upon the intervenor's need to prepare those findings, or O

() 14 is it' based in part upon other considerations?

15 MR. TRAFICONTE: Well, Your Honor, from Mass AG, John 16 Traficonte, I would argue that from our perspective, it's both.

17 In the first instance, additional time to prepare the ' findings, 18 but perhaps more significantly in light of the reductior,by 19 this Board of the total of the deadline -- you'll recall the 20 original deadline for the contentions was May 1, the Order that 21 moved that back to April 1, presented a serious resource 22 problem.

23 And the fact that this movement from the proposed 24 findings forward a month essentially resolves our resource 23 difficulties between now and April 6th.

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-() 1 JUDGE SMITH: Yes, I understand that.

2 MR. TRAFICONTE: So they're connected.

3 JUDGE SMITH: Yes, r derstand the connection, yes.

4 But my question was somewhat different.

5 And that is the time between April 6th and May 6th, 6 the primary purpose is to do then what you couldn't do earlier, 7 right?

8 MS. WEISS: Yes. From my standpoint that's true, and 9 we go through in the motions, detailing all of the deadlines 10 which we've been required to meet and are still having to meet, 11 in addition to those in the'New Hampshire case for the past 12 month or so and into the future. And essentially, we haven't 13 had a chance to get -- to start getting these findings

() 14 together. That's the coalition's --

15 JUDGE SMITH: It's simply a question of needing the 16 time.

17 MS. WEISS: yes.

18 JUDGE SMITH: The reason I was asking is if there 19 could be some way that the proposed findings could be in our 20 hands earlier but not served until th, 6th, that wouldn't 21 satisfy any of your needs. You just simply need the time.

22 MS. WEISS: We need the time, yes.

23 JUDGE SMITH: Okay. All right, some times that does 24 work, though, because we could use them.

25 W.ill, the Board did go back and look at those O Heritage Reporting Corporation

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%/ 1 amendments referred to in the Appeal Board Order when they 2 first came in, I-might say, we were disinclined to look at 3 them. We received to begin with a-large box and a stack of 4 papers. We have spent some time, Judge Linenberger in 5 particular spent some time reviewing those Friday and today.

6 We do believe that an extension of time, a certain

~

7 amount of extension of time would have-been appropriate to 8 address those amendments, primarily because it takes some time .

9 to figure out just what they are to begin with, not only what 10 their substantive impact is.

11 So we're pleased with an opportunity to give you some 12 more time, and I realize that from April 1st to April 6th is 13 not very much. Therefore, having more time for filing proposed 14 findings is fair for your needs. I just wanted the Board to 15 take advantage of this' interlude to stay fully productive.

16 And I don't know if we will with that much of a P

17 delay. We're going to have a lot to do, it think. I don't 18 know. Just give us a moment to consult.

19 (Discussion held off the record.)

20 MR. TRAFICONTE: Your Honor?

21 JUDGE SMITH: Yes?

22 MR. TRAiICONTE: Can I just ask, we're having a 23 discussion and there seems to be a disagreement among us as to

24 what our memory on the transcript with regard to a partial 25 initial decision, t

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(}- 1 Is it the Board's intention to file a PID on the New 2 Hampshire Plan on the main track without the sheltering 3 proposed findings?

4 JUDGE SMITH: Well, we hadn't decided yet. The main 5' consideration is to stay busy on this case. And that's our 6 consideration now. If it means a partial initial decision, 7 that's fine. If it doesn't, well, we can't help it.

8- MR. TRAFICONTE: At least from your perspective you ,

9 would have had these materials at the earliest possible time 10 and could begin reviewing them and working over them?

11 JUDGE SMITH: That's right. We could use them. We 12 could use them now as a matter of fact. We could probably put 13 them to work. Except that I see we're going to be busy for

() 14 awhile on some other matters.

15 MR. TRAFICONTE: Speaking only for the Mass AG, Your 16 Honor, and I want to reemphasize that, our situation is pretty 17 clear cut. If you move the deadline for filing contentions 18 forward, we could live with -- forward in time, making them 19 later in the year -- if you move that deadline in that 20 direction, we could live with moving the deadline for the 21 proposed findings closer to the present.

22 That's something we could live with.

23 I understand, however, the other intervenors are in a 24 different situation with regard to resources and might not 25 agree with that.

O' Heritage Reporting Corporation (202) 628-4888

9855 1 JUDGE SMITH: What can you do? I mean, that might be 2 our_ problem right there, that could solve our problem. If you 3 -could move forward in time and allow the other intervenors more 4 time, that would still be very helpful to us, because we could 5 be working on yours then.

6 MR. TRAFICONTE: Would the Board entertain the idea 7 of Mass AG filing it's proposed findings and the other 8 intervenors having some other date for the filing of its ,

9 proposed findings?

10 JUDGE SMITH: Yes, right. We certainly would.

11 MR. TRAFICONTE: Okay.

12 JUDGE SMITH: And furthermore, you can if you wish 13 withhold service of your proposed findings on the applicant 14 until the common service date.

15 MR. TRAFICONTE: I see.

16 JUDGE SMITH: If you don't want to give them too much 17 time to shoot you down. Not that they would.

18 JUDGE HARBOUR: So what do we do?

19 JUDGE SMITH: He's going to give us a date.

20 MR. TRAFICONTE: Your Honor?

21 JUDGE SMITH: Yes?

22 MR. TRAFICONTE: We're actually caucusing on when we 23 might be able to get the Mass AG's proposed findings to you.

24 But I just want to make sure I understand moving 25 resources et this end would mean that we are counting on some O Heritage Reporting Corporation (202) 628-4888

~9856 (f 1 extension beyond April 6th for our contention filing.

2 MR. DIGNAN: .I'm not going to halfway agree to-that, 3 Your Honor.

4 MP. TRAFICONTE: We understand that Mr. Dignan has 5 not. In fact, one of the points made was that Mr. Dignan had 6 agreed to April 6th,-but I anticipate would not agree to 7 anything_beyond April 6th.

8 JUDGE HARBOUR: Let's give him an April 6th. If he ,

9 has to April 6th, when can he get his proposed findings out.

10 JUDGE SMITH: I think what he wants is to move this 11 way and this way. And what our consideration has to be is 12 filling our time, and that's probably the factor, you know, 13 filling our time. So the reason we're trying to get this date

() 14 up early as possible is so that the answers to those 15 contentions, the answers to those contentions are going to be 16 due right smack at the hearings.

17 So we can give them some more time. Let's say we 18 give them until the lith which gives them a weekend.

19 Here's something I want to throw out for 20 consideration. Can people pay attention to me now? This is l

21 Judge Smith.

22 MR. DIGNAN: Yes, sir.

23 JUDGE SMITH: If you were to file the contentions on 24 April 6th, the answer to those contentions would be due 25 normally on May 6th. We can't really use those answers on May O Heritage Reporting Corporation (202) 628-4888 l

l

9857-(} 1 6th.

2 Similarly, we cannot use-proposed findings on May 3 6th. So what we can do, if'this makes sense to the parties, 4 the-main consideration and the impacting consideration now is 5 keeping the Board busy. If we were to move filing the 6 contentions to April lith, and if Mr. Traficonte can file his 7 proposed findings.

8 Can you do that on the 22nd if we do that? Mr.

9 Traficonte?

10 MR. TRAFICONTE: Yes. Let me consult. One minute.

11 MS. WEISS: Your Honor, can I have just a two-minute 12 break?

13 JUDGE SMITH: All right, two-minute break.

() 14 (Brief recess is taken.)

15 MR. FLYNN: Your Honor, I --

16 JUDGE SMITH: Ms. Weiss has asked for a two minute 17 break.

18 MR. FLYNN: All right. Just something that may not 19 affect her interest while she's away. I thought that the time 20 for filing response to contentions was less than 30 days. I 21 thought it was ten or 15?

l 22 JUDGE SMITH: That's right. I just made a bad 23 mistake.

24 Are you back, Ms. Weiss?

l 25 Mr. Traficonte?

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l l

l

9858 1 MR. TRAFICONTE: Yes.

2 JUDGE SMITH: Ms. Weiss, are you.back?

3 MR. TRAFICONTE: Yes, Your Honor, I'm sorry. Is Ms.

4 Weiss there?

5 ,

JUDGE SMITH: Well, if we have to, we'll repeat when 6 she returns.

7 MR. TRAFICONTE: Okay.

, 8 JUDGE SMITH: Again, our major objective right now is 9 to stay busy, the Board, that is the impacting factor.

10 I think if we hold to the schedule we have now, the 11 Board will stay as busy as it can handle. And that is, you 12 have until the 6th, and we'll give you May 6th to file proposed 13 findings. If you want to file them earlier, it'll be a big 14 help.

15 In fact, if you want to file them earlier, well, --

16 MR. TRAFICONTE: Well, to be completely frank, Your

. 17 Honor, right now we had planned on April 6th over the last i

18 three days and the weekend. And we can make April 6th.

19 JUDGE SMITH: All right, just stick with that then.

20 And there's one other aspect and that is, I had 21 forgotten about 6.he need to work on the contentions and we can 22 start working on those immediately after they are filed, and we 23 can start working on the answers to them on the 18th, so we'll l

l 24 stay busy without detriment to the case if we extend the I

25 intervenors' filing time to May 6th, that's proposed findings, O Heritage Reporting Corporation (202) 628-4088 l

9859 1 May 6th.

2 MR. TRAFICONTE: Can I just ask Mr. Dignan wasn't it 3 the intent to add additional time in the date in which he would 4 file' answers to the contentions?

5 .

MR. DIGNAN: Let me answer it this way, Your Honor.

6 We are presently scheduled to file answer on the 18th to 7 contentions. That was assuming their filing on the first of

. 8 April. ,

9 The 18th in point of fact is a holiday up here. I 10 think it's one of those weird Massachusetts holidays.

11 JUDGE SMITH: Patriots day.

12 MR. DIGNAN: I' don't care if I can have service in 13 hand on the 6th from the parties, in other words, if they get

() 14 them to me on the 6th in the mail, I can certainly answer by .

15 the close of business the 19th.

16 JUDGE SMITH: Fair enough everybody? ,

17 MR. TRAFICONTE: Again, Mr. Traficonte. Mr. Dignan, 18 if they're in hand by the close of business on the 6th?

19 MR. DIGNAN: Yes. Is that all right with you?

f 20 MR. TRAFICONTE: Yes.

21 MR. DIGNAN: That's contentions.

22 MR. TRAFICONTE: Yes, contentions.

23 MR. DIGNAN: And as far as I'm concerned, I'll commit i

i 24 to answer on the 19th.

j 25 MR. TRAFICONTE: Good.

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i 9860 1 JUDGE SMITH: Okay.

2 And Mr. Turk, now's your opportunity to ask for a 3- little bit more time to answer contentions under the assumption 4 that we can only deal with the applicant's on the 19th.

5 ,

Do you want a few more days?

6 MR. TURK: Yes, Your Honor, if we can, the usual 7 five.

8 JUDGE SMITH: All right, how about the 25th? That'll 9 destroy a nice perfectly good weekend for you on the 23rd and 10 24th.

11 MR. TURK: That sounds all right.

12 ' JUDGE SMITH: The 26th better for you? The 25th?

13 MR. TURK: Just one second, Your Honor.

1 1

14 (Pause) 15 MR. TURK: The 26th will be fine.

16 JUDGE SMITH: The 26th?

17 MR. TURK: Which am I being offered, the 25th or 18 26th?

19 JUDGE SMITH: Well, take the 26th.

20 MR. TURK: All right.

21 JUDGE SMITH: In our hands. In fact, if you can get 22 it, see you don't have to worry about the other parties because 23 there's no response to that, if you can get it in our hands no 24 later than the 26th, earlier if possible, okay?

25 MR. TURK: All right.

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9861 li 1 MR. DIGNAN: Your Honor?

Q 2 JUDGE SMITH: Mr. Dignan?

3 MR. DIGNAN: My 19th commit assumes going out of here 4 express mail on the 19th, is that all right?

5 . JUDGE SMITH: That's fine.

6 MR. TRAFICONTE: And my April 6th commitment,'Your 7 Honor, is in hand to Mr. Dignan and then sent out that day and 8 Your Honor would receive it the next day.

9 JUDGE SMITH: Fine, 10 MS. WEISSt But can we givo --

11 MR. TRAFICONTE: That means that the other parties 12 have to put their contentions in the mail the day'before to get

13. it to me by the 6th.

MS. WEISS:

(}- 14 Can't we just give it on.the 6th and get l 15 it the morning of the 7th? We have a day less than everybody

'16 else.

17 JUDGE SMITH: Okay.

18 MR. DIGNAN: John, if you want to deliver on the 19 morning of the 7th, that's okay, too.

20 MR. TRAFICONTE: I'll do my best to get it to you in 21 hand on the 6th.

22 MR. DIGNAN: Okay.

23 JUDGE SMITH: Okay, anything further this afternoon? j 24 MR. TURK: May I ask Your Honor what the schedule is 25 now on proposed findings?

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-( 1 ' JUDGE SMITH: Proposed findings will be on'May 6th I

2 and'I might say that if we could give you the intervenors that 3 weekend, because we're obviously not going to be reading 4 proposed findings on May 6th after a hearing, you might as well 5 take the weekend and get them in on the 9th.

'6 MS. WEISS: That's wonderful. Okay.

7 MR. TRAFICONTE: Then, Your Honer, when will the 8 Staff's proposed findings be due? I assume we'd just go out 9 the requisite number of days?

10 JUDGE SMITH: Yes, right. I don't know what that is 11- but just add on there.

12 MR. TRAFICONTE: Okay, and my rebuttal on proposed 13 findings was going to be due the 26th off a filing date of the 14 1st so off the 9th, they become due the 34th, which is June 15 something. June 3rd.

16 JUDGE SMITH: Okay. Wait a minute.

17 MR. TRAFICONTE: Your Honor, as things stand now --

18 JUDGE SMITH: We only have you 20 days so you should 19 be filing your response to the proposed findings on the 31st.

I

20 MR. TRAFICONTE

You're right. I'm sorry.

21 JUDGE SMITH: You don't want to do it on memorial day

22 holiday. Either on the 27th or the 31st, take your choice.

23 Again, you know, you might as well not work hard to get a paper 24 before us before we can use it, and we'll not going to be doing l

25 a lot of work on -- +

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i-9863 MR. TRAFICONTE:

(]) ~1 31st is correct, Your Honor.

2 JUDGE SMITH: All right.

3 MR. TRAFICONTE: You're right. I was looking at the 4 wrong date.-

5 JUDGE SMITH: Okay. Is that it?

6 MR. BROCK: Your Honor, I understand that May 9th 7 proposed findings is that received at the Board or mailed out 8 from the office of the parties. Can we send that out on the ,

9 9th?

10 JUDGE SMITH: Yes.

11 MR. BROCK: All right. And do I also understand that 12 when the Board meets --

13 JUDGE SMITH: Well, you see, the reason we set it

( ). 14 from the 6th to the 9th is because we wanted to give you the 15 weekend, and we would not be giving you the weekend unless you 16 could mail it on the 9*.h and get-it to us on the 10th.

17 MR. BROCK: Right.

18 JUDGE SMITH: Okay.

19 MR. BROCK: And I also understand the Board will be 20 notifying parties as to the location of the Cumming deposition?

21 JUDGE SMITH: Yes, right.

22 MR. BROCK: Thank you.

23 MR. TURK: And Your Honor just to clarify for the 24 Staff, our proposed findings will be due I believe on the 19th 25 of May, ten days after the intervenors'?

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9864

'( ) 1 JUDGE SMITH: Yes. Right.

2 MR. TURK:- Filing on the 19th by-Federal Express?

3 JUDGE SMITH: Well, you don't have to worry about 4 Federal Express. You just have to get it to us.

5 MR. TURK: -And the applicants.

6 JUDGE SMITH: Oh, that's right, yes.

7 MR. TRAFICONTE: Was that May 19th for Staff proposed 8 findings? ,

9 MR. TURK: Yes.

10 MR. TRAFICONTE: Okay.

11 JUDGE SMITH: Okay.

12 Anything further? If there's nothing further then 13 we'll adjourn.

() 14 Walt a minute. One additional thing. Should we set 15 up now a time for a telephone conference call on executive 4

16 privilege arguments by FEMA?

17 We had indicated it would be next Friday.

18 MR. TRAFICONTE: Yes. ,

19 JUDGE SMITH: All right, should we make it next 20 Friday at 2:00?

21 MR. TRAFICONTE: Yes. The only point to raise is the 22 discussion we had earlier concerning the April lith time frame 23 for Mr. Flynn to actually have the documents reviewed and 24 whether we would postpone the executive privilege discussion 25 and argument after that date?

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()

1 JUDGE SMITH: Well, it may be that if we have a 2 telephone conference call next Friday that we can't resolve 3 everything that we would like to. But there's a fair shot that 4 we can resolve some things and maybe give some guidance.

5 At least we'll know whether we're going to have a 6 hearing on May 2nd.

7 MR. TRAFICONTE: That's right.

8 MR. DIGNAN: Your Honor, this telephone conference, .

9 when you said, next Friday, do you mean April 1?

10 JUDGE SMITHi Oh, yes. I was thinking --

11 MR. DIGNAN: A week from the coming Friday?

12 MR. TRAFICONTE: Yes.

13 MR. BROCK: Your Honor, if that's the date, I request

() 14 that it be a morning, because I'll be out of the office in the 15 afternoon.

16 JUDGE SMITH: Well, is 10:00 o' clock all right, 17 everybody?

18 MR. TRAFICONTE: Yes.

19 JUDGE SMITH: April 1st?

20 MR. TRAFICONTE: Your Honor?

l 21 JUDGE SMITH: Yes?

l l

22 MR. TRAFICONTE: Could it possibly be 10:30?

23 JUDGE SMITH: 10:30. Okay.

24 Anything further now?

25 MR. DIGNAN: Your Honor, I want to advise the Board O

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() 1 of something that isn't scheduling.

2 JUDGE SMITH: On the record or off?

4 3 MR. DIGNAN: In terms of is there any reason as 4 things develop.here in April, whether it be depositions or 5 anything else, it will be extremely.or it will be impossible 6 for me to be out of the New England area in the first three 7 days of the weeks of April 4, 11 and 25.

8 JUDGE SMITH: That was Mr. Dignan? .

9 MR. DIGNAN: Yes, that is, Your Honor.

10 JUDGE SMITH: Well, so we know.

11 Anything further?

12 (No response.)

13 JUDGE SMITH: Well, if there's nothing further, then

() 14 we're adjourned.

15 (Whereupon, at 4:50 p.m., the hearing in this matter 16 was concluded.)

17 18 19 20 21 l 22 23 i 24 25 i

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1 l REPOR*ER'S CERTIFICA*E i o

\ l 3 DOCKET NUMBER: 50-443/444- OL l' l'

4 CASE TITLE: SEABROOK STATION UNITS 1 &2 l 1

5 HEARING DATE: March 21,'1988 6 LOCATION: Bethesda, Maryland

~,

I hereby certify that the proceedings and evidence

. ~ .

8 are contained fully and accurately on the tapes and notes t i

9 reported by me at the hearing in the above case befere the  !

10

, UNITED STATES NUCLEAR REGULATORY COMMISSION:

12 l l

O o te: 2/21/88 l.

t 1( I 15 ,

lb t t \Nhb Official keperter 1 1,,  ;

HERITAGE REPORTING CORPORATION ;

E 1220 L Street, N.W. l Washington, D.C. 20005  ;

IS i

20 M i.

22 23 O a 3!

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