ML20148Q462
| ML20148Q462 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 01/27/1988 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#188-5529 OL, NUDOCS 8802010116 | |
| Download: ML20148Q462 (50) | |
Text
--
I 3 ,a \. A n'
Uhn ED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF: ) DOCKET NOS.:
)
) 50-443-OL
) 50-444-OL PUBLIC SERVICE COMPANY OF )
) OFFSITE NEW HAMPSHIRE, et al. ) EMERGENCY
) PLANNING (SEABROOK STATION, UNITS 1 AND 2) )
TELECONFERENCE O
LOCATION: WASHINGTON, D.C. PAGES: 9036 through 9079 DATE: JANUARY 27, 1988
........................=............................==............................=
Al Heritage Reporting Corporation O(licial Reporters II 0 L Strat. N.W.
Wunmston. D.C, 20005 7 (202162 W 88 8802010116 443 PDR ADOM 8 PDR T
1 UNITED STATES NUCLEAR REGULATORY COli!!ISSION ATOMIC SAFETY AND LICENSING BOARD
/
- 2 3
(-
O 4 In the Matter of: )
)
5 PUBLIC SERVICE COMPANY OF ) Docket Nos.
NEW HAliPS!! IRE, et al . , ) 50-443-OL 6 ) 50-444-OL (SEABROOK STATION, UNITS 1 AND 2) ) OFF-SITE EMERGENCY 7 PLANNING 8 TELECONFERENCE 9 Wednesday January 27, 1908 10 Room 428 it East-west Towers 4350 East-west Highway 12 Bethesda, liaryland The above-entitled matter came on for hearing,
('v ) 13 34 pursuant to notice, at 2:22 p.m.
15 BEFORE: JUDGE IVAN U. StiITH , CHAIRFiAN JUDGE JERRY HARBOUR, MEf1BER JUDGE GUSTAVE A. LINENBERGER, JR., !! EMBER 16 Atomic Safety and Licensing Board 17 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 18 19 20 21 jq 22 U
23 rs 24 U
25 Acme Reporting Company
.n a, . . ...
e 9037- I
-1 APPEARANCES:
t 1
j- '[~l ss/ 2 For the Applicant:
3 . THOMAS G. DIGNAN, JR., ESO . -
L ' - Ropes &-Gray-
. ~4 225 Franklin Street
. Boston, Massachusetts 02110 5
For the'NRC Staff:, ,
6 P SHERWIN E. TURK, ESQ.
7 Office of General Counsel U.S. Nuclear Regulatory Commission 8' Washington, D.C. 20555 g For the Federal Emergency Management Agency:
10 H. JOSEPH FLYNN, ESQ.
Federal Emergency Management Agency F
11 500.C Street SW Washington, D.C. 20472 .
I 12 .i For-the State of New Hampshire:
( 13 GEOFFREY M. HUNTINGTON, ESO. ,
- i. 14 State of New Hampshire 25 Capitol Street
! 15 Concord, New Hampshire 03301 i 16 For the Commonwealth of Massachusetts: ;
17 JOHN TRAFICONTE, ASST. ATTY. GEN.
l Commonwealth of Massachusetts ,
! 18 One Ashburton Place, 19th Floor Boston, Massachusetts 02108 19 l
For the New England Coalition against Nuclear ,
20 Pollution:
21 ELLYN R. WEISS, ESQ.
Harmon & Weiss 92
~
2001 S Street NW Washington, D.C. 20009
(). !
23 For the Seacoast Anti-Pollution League:
24 !
O 25 JANE DOUGHTY, DIRECTOR Seacoast Anti-Pollution League 5 Market Street Portsmouth, New Hampshire 03801 Acme Reporting Company ;
.ns,. . ...
9038 1 APPEARANCES (continued):
ry b 2 For the Town of Hampton:
3 MATTHEW T. BROCK, ESQ.
Shaines & McEachern
,') 4 25 Maplewood Avenue PO nox 360 5 Portsmouth, New IIampshire 03801 6
For the Town of Kensington:
7 SANDRA FOWLER MITCHELL, EMERGENCY PLANNING DIR.
Town Hall 3 Kensington, New Hampshire 9
10 11 12 eO V
13 14 l 15 16 17 18 r
l 19 20 21 oo
^
O 23 I
i- 21 V
25 Acme Reporting Company
.ao , . . ...
9039 1 INDzX O
~
2 1sstars ract, 3 Memorandum following teleconference, dated 22 Jan 88 9042 O 4 5
l 6 7
8 9 .
10 11 1
12 13 14 15 l
16 17 l 18 1 ,
19 20 ;
21 O 23 91
~
0 25 Acme Reporting Company ,
! ,nea,se.... ,
I.----,.- - --.- _ ..--.----- - . - . , - - - - . . .- -.- ..-~.
9040 1 PRQ{EEDINGS
(~
(_) 2 JUDGE SliITil: Well, let's call the roll.
3 Did the operator -- Operator, are you off?
r~-
(_ )) 4 All right, this is Judge Smith, Judge liarbour and 5 Linenberger are present.
g Mr. Dignan?
7 MR. DIGNAN: Yes , Your lionor.
g JUDGE SMITil: Mr. Turk?
9 MR. TURK: Yes, Your lionor.
10 JUDGE S11ITII: Mr. Traficonte?
11 MR. TRAFICONTE: Yes, Your lionor.
12 JUDGE SMITH: Mr. Flynn?
MR. FLYNN:
[ 13 liere.
14 JUDGE SMITH: I understand that Mr. Disbee isn't
, 15 on, but did lir. Iluntington take his place?
16 MR. liUNTINGTON : Yes, I'm here, Your Honor.
l 17 JUDGE S!!ITil: Ms. Weiss?
18 MS. WEISS: Yes, Your Honor.
ig JUDGE SMITil: fis . Doughty?
20 MS. DOUGHTY: Yes, Your lionor.
JUDGE SMITil: And Mr. Backus is not present, is 21 e 22 that correct?
( ?
23 MS. DOUGIITY: That's correct.
l JUDGE SMITil: fir . Brock?
(-) o1 25 MR. DROCK: Ile r e , Your lionor.
l l
l Acme Reporting Company av .a.....
i l
9041 1 JUDGE SMITil: Ms. Mitchell?
3 (d 2 MS. MITCllELL: Yes.
3 JUDGE SMITH: I guess we're ready to proceed.
4 Ue'll begin with, did the other parties receive a 5 copy of the memorandum following the telephone conference of 6 January 21st?
7 Ms. Weiss, did you?
8 MS WEISS: Yes, I did.
9 JUDGE SMITil: Mr. Traficonte, did you?
10 MR. TRAFICONTE: I did not. I don't think our 11 office did.
12 JUDGE SMITil: Well, that went out on the 22nd.
['; 13 MR. DIGNAN: Your lionor, my secretary just walked L,-
14 in. It came in in our afternoon mail. I'm just reading it 15 now. This is Tom Dignan.
16 MR. TRAFICONTE: Well, then maybe it's in our mail 17 now, too. But I -- okay, I haven't physically read it yet.
18 JUDGE SMITil: Let's, for the record and for the l
gg benefit of those who have not received it, and that would 20 be -- Mr. Brock, have you received it?
l 21 MR. BROCK: I have not, Your Honor, but I'm with l
,-, 22 Jane Doughty, who brought it in about a half an hour ago, i
23 So I've had a chance to look at it.
<- 24 JUDGE SMITil: I'm going to place this into the k
25 transcript at this point.
Acme Reporting Company
,,c,,.,.....
.. . .- - _. .-. _ = _ .
9042 1 (The Memorandum of Telecon-2 forence dated 22 Jan 88 3 follows:)
O 4 5
6 7
8 9
10 11 12 l0 18 14 15 16 17 18 19 l 20 21
, 22 23 24 l 25 l
l Acme Reporting Company l ao,..,.....
l '
t 00tKEicc b UNITED STATES OF AMERICA BD 1/22/8'8
- C NUCLEAR REGULATORY COMMISSION '88 JAN 25 40 40 ,
ATOMIC SAFETY AND LICENSING BOARD QFFICE , e '...,e 00CKrimo , n,m u, Before Administrative Judges: 0 Ivan W. Snith, Chaiman Gustave A. Linenberger, Jr.
Dr. Jerry Harbour SET /ED JAN 2 51983 Docket Nos. 50-443-OL In the Matter of 50-444-OL PUBLIC SERVICE COMPANY (ASLBPNo. 82-471-02-OL) 0FNEWHAMPSHIRE,et,al. (Offsite Emergency Planning)
(Seabrook Station, Units 1 and 2) January 22, 1988 MEMORANDUM FOLLOWING TELEPHONE CONFERENCE The Licensing Board requested counsel for the Applicants, the -
O Massachusetts Attorney General, and the NRC Staff, respectively, to join in an infomal telephone conference call convened at 11:00 a.m. on January 21, 1988. The purpose of the conference was to discuss the implications to this proceeding of a Freedom of Infortnation Act (FOIA)
The request by Rockingham County Newspapers, Inc. (F01A-BC-28).
conference was called without notice to the other parties and without verbatim reporting because the Board believed that prorapt action on its part might be necessary for the proper management of the forthcoming evidentiary hearing on the emergency plans for the Massachusetts comunities .
O
i g
By 'way of background, the Comission, in its Memorandum and Order of November 25, 1987 lifting the stay of low power operation,I required i
as a condition of low power operation, that Applicants provide to the Staff and FEMA information previously deleted from the proposed emergency plan for the Massachusetts comunities. As we later learned, the deleted infonnation included the names and addresses of entities who have agreed to provide Massachusetts-related services in the event of an emergency at the Seabrook Station. The Comission also directed that, prior to low power operation, Applicants must indicate their willingness to provide the deleted infonnation to the other parties to the proceeding, leaving it to the Licensing Board to fashion any needed protective order. Order, Slip op. at 6-7. g The Applicants provided the information to the NRC Staff with a request that it be treated as proprietary infonnation, apparently pursuant to 10 C.F.R. I 2.790(a)(4).
The matter surfaced at the evidentiary hearing when the Massachusetts Attorney General demanded the information and the Applicants agreed to provide it, but only under a protective order with disclosure to the parties only. The Massachusetts Attorney General and other intervenors object to a protective order, arguing that the public
)
1 Memorandum and Order (Lifting the Order Staying the Director of Nuclear Reactor Regulation From Authorizing Low Power Operations f Due to the Lack of an Emergency Plan for Massachusetts), November 25, 1987 (unpublished).
O
4
!q is entitled to the infonnation. The Applicants, on the other hand, i posit that, from a purely legal consideration, the infomation need not be made available at all until contentions on the Massachusat*s plan are filed. Tr. 8398-8425, 8987-9004. No agreement was rea.W and the matter was deferred. Tr. 9004.
On January 21, 1988 the Chaiman of the Licensing Board was routinely provided with a copy (attached) of the F01A request by Rockingham County Newspapers. They request the information redacted from the public version of the Massachusetts plan -- the information that is the subject of the discovery dispute before the Board.
The Board was concerned that an early public release of the Q redacted infomation under FOIA would moot the issue before it to the detriment of its management of this proceeding. The telephone conference call was convened to determine whether the Applicants knew of the FOIA request and whether they would be informed before the infonnation is released.
The Board indicated that it was sensitive to the arguments made by Applicants and that it t'elieved that a temporary protective order might i be appropriate until the issue could be briefed. Neither counsel for Applicants nor the Massachusetts Attorney General had known about the F0IA reauest. Counsel for the NRC Staff, after consulting with Mr.
Edwin Reis Office of the General Counsel, reported that the Applicants would be advised before any release of the information and that the NRC Staff had not yet determined whether the infonnation should be exempted from FO!A release, it became evident that Applicants will be provided Q
. e f
O an opportunity to seek appropriate relief in the event the NRC Staff decides to release the infonnation under FOIA. No action by the Board is needed now.
The discussion then turned to when the request for the redacted information and the need for any order protecting it should be entertained by the Licensing Board. The Massachusetts Attorney General and Applicants agreed to brief the matter on the merits without delay.
But when the conference participants reflected on the fact that other intervenors must be heard on the issue, the matter was deferred until a fonnal recorded telephone conference of the parties to be set for the following week.2 Participants in the January 21 telephone conference call may offer any additions or corrections to this memorandum on the record during the forthcoming telephone conference.
e FOR THE ATOMIC SAFETY AND LICENSING BOARD 1
Y Y y'7 van W. 2n.1tfi.'Lhai rman ADMINISTRATIVE LAW JUDGE Bethesda, Maryland January 22, 1988 2
Subsequently a formal telephone conference of the parties was sec for Wednesday, January 27, 1988.
O
9043 1
JUDGE SMITII: Is anybody not prepared to discuss (m_) 2 that matter, the subject mattcr of the diccovery on the --
3 those to provide services for the Massachusetts communities?
,~
(_) 4 (No response) 5 JUDGE SMITil: I guess we are. The way we left it a was that Mr. Dignan and Mr. Traficonte were prepared to go 7
ahead and brief the issue, but we wanted to make t:ere that 8 the other parties were aware of what is happening and brought l
- l 9 into the briefing schedule.
10 Mr. Dignan, why don't you proceed with your ij proposal for briefing?
12 MR. DIGNAN: Well, I -- ny proposal for briefing is I
(')
v 13 simple. If Mr. Traficonte gives ne a date on which he wants g4 to file his brief, I could, assuming he doesn't hit me with 15 a date like the Monday we start a week of hearings, I would gg be prepared within a week to reply. Frankly, if other 17 parties want to support Mr. Traficonte, though, I would 18 rather there be a provision that after Mr. Traficonte files 39 his motion and brief that the parties supporting him come in 20 ahead of me so I don't have to write two briefs.
21 JUDGE SMITII: Isn't it possible in this instance
,~ o..n for the other parties who want to support Mr. Traficonte to
'~
23 communicate their position to him and have a consolidated
-, 24 brief of the Intervenors?
/ \
\_) Ms. Weiss, would you be agreeable to that?
25 Acme Reporting Company
.na,.2.....
.9044 1 31S."WEISS: 'Yes,-I don't.see any problem with that.'
2 -- JUDGE SMITH: Let's do it that.way.
3' Ms. Doughty,.would that be--satisfactory to you?
h '4 MS. DOUGHTY: Perfectly fine.
5 JUDGE SMITH: .All right. Well, let's -- would you-L6 mind, Mr. Traficonte, taking the lead on this?
7 MR. TRAFICONTE: No, that's fine.
8 . JUDGE SMITH: I think it'll be a' lot simpler. ,
.9' All right, now, with that in n.;1d, what do you 10 Propose?
11 MR. TRAFICONTE: Well, I wouldn't want to 12 overburden Mr. Dignan in that first weekend-that we resume,'
13 so I would propose, in thr week that follows that, which I y
14
- believe begins February 15, I would propose that we file the-15 Friday of that week. That must be the 19th.
MR. DIGNAN: So that I have to get a brief in by 16 17 the 26th, which is the end of the second week of hearings?
18 MR. TRAFICONTE: Well, give yourself -- no, no, I gg underst.and the problem, but it seems to me if -- I mean, we 20 could Jet a brief sooner, but it's not going to help because 21 it's still going to make your brief due sometime in the I
22
.iddle cf those hearing' weeks.
O 23 Why don't you -- I was going to propose if we filed sooner, but filing sooner's not going to help, because 24 f-i \_/ Why don't you give 25 it'll just move your filing time up.
l i
Acme Reporting Company
,ao,,.....
- - -..,,,,...-,m.m + , ,. , ,-,-%._ , , , , , ~ ..,.w ,- - . - - --,,_ .m.,, . - _ - - , - , . - - , , - - , . . - - . - - -
t 9045-1 yourself 10 days,'in which case yoa would be due on' the 29th,.
2 and we certainly would be concluded, under.the Present-3 . schedule, at'least, by the 29th.
lO 4 - MR. - NAN: We've soe heerinee echedu1ed for ehe' 5 23rd, -4th, -5th, and -6th,:which is Tuesday, Wednesday, 6 Thursday, and Friday.
7 MR. .TRAFICONTE: Right, and the 29th would be' the 8 following' Monday?
9 MR. DIGNAN: 29th is the following Monday, Jonn.
10 MR. TRAFICONTE: How about the following 11 Wednesday?
12- MR. DIGNAN: I get three days to answer; is that 13 the idea?
14 MR. TURK: Now, I, as you gentlemen know, I'm going a 15 to be making a motion during the. course of this telephone 16
' conference call that may alleviate some of that-problem.
MR. TRISICONTE: Should we turn to that motion now; 17 18 in light of the discussion we just had?
19 JUDGE SMITH: Well, we'll let this matter pend., and 20 then take the motion?
21 MR. DIGNAN: Why don't you do it this way, John?
22~ Why don't you file by the 5th, and I'll file by the 19th?
O. MR. TRAFICONTE: File by the 5th.
23 MR. DIGNAN: Is that a problem for you because of 24 25 testimony you got to prepare?
Acme depr 'Ing Company
- a. .,.....
., m _ . _ - _ _ . . . . _ . . _ . . _ . _ . . _ . . _ _ . _
~
[; . 9046 2
'1 - 'MR. TRAFICONTE: Well,_that's what I'm-thinking, 2 'yes..
3 MR. DIGNAN: All-right.
.: 4 MR.'TRAFICONTE:'- That's;why'I was going to propose.
75 to file in the week between presently scheduled hearings, 6 between presently scheduled: hearing weeks.
7 JUDGL' SMITH:- Well, Mr. Dignan, couldn't we receive 8 Mr;.Traficonte's brief during the intervening week, and then 9 receive your answer during the hearing Ueek? You're talking 10
.about a rather, I would imagine, a rather routine. discovery, l
11 protect'ive order consideration, and certainly you have the 12 staffing'to accommodate that problem, it seems to me.
MR. DIGNAN: Let me ask you this, Your Honor. Am
, '. 13 I correct in understanding that the second week of hearings 34
- 15_
is also going to be'in Boston?
16 JUDGE SMITH: Yes.
17 MR. DIGNAN: Okay. That relieves me of'a lot of i
18 problem.
JUDGE SMITH: You didn't get the notice of hearing?
39 MR. TRAFICONTE: Your Fonor, we haven't gotten
(
20 21 that, either, and that was going to be another~ question I had i
! 22 f r the Board, whether the second week had been scheduled L.O ' and if it also was in' Boston.
~ 23 MR. BROCK: Your Honor, this is Matt Brock. I also 21 -
i- O. '
have not seen that order scheduling the hearing.
- 25 Acme Reporting Compony i m , .,.....
I
-...u_.m _.u._ __, _._._ -
, , ; l. 9047.
1 :MR. HUNTINGTON: Nor have,I,.Your Honor. Geoff' b 2 Huntington.
~
3 MR.'DIGNAN: Your Hcaor?
-Q D 4 . JUDGE SMITH: Yes.
5 MR. DIGNAN: Then you're proposing that
~
6 Mr. Traficonte come in on -~- sometime during the week of the 7 15th, and I come in sometime during the week of the 22nd?-
8 JUDGE SMITH: That's right. Say the_16th, and
~
9~ maybe the matter can even be. argued during that second week,.
10 if there's more argument needed. With your brief, you 11 submit the brief to us up there, and we'd receive --
12 MR. DIGNAN: Wait a minute, he would come in'on
- )
[\.,_/ 13 what date?
14
/ JUDGE SMITH: For example, February 16th.
15 MR.-DIGNAN: Is that agreeable to you, John?
16 MR. TRAFICONTE: Yes.
17 .MR. DIGNAN: All right, and then I would come in on 18 the-23rd,'or the 22nd?
19 JUDGE SMITH: Well, yes, right.
20 MR. TRAFICONTE: And that way, if we wanted to have 21 argument, and ye needed argument, we could have it in that
^22 last week.
(
} 23 JL'DGE SMITH: Exactly.
24 MR. TRAFICONTEr That's fine.
U MR. DIGNAN: Your Honor, since we're scheduled to 25 Acme Reporting Company uo,, .,. ....
.I
7 .
- 9048-
~
1 1be together1.on the 23rd, why' don't'we make it h'and-delivery-I?%' . ,
k.)
~
2 on the 23rd,'and.I'll just deliver it at the' hearing'that-3 . morning.
I 4- JUDGE SMITH: .That's fine.
5 MR. DIGNAN: All right.
6 JUDGE. SMITH: Very good.
7 MR. TRAFICONTE:- That's' fine.
8 JUDGE SMITH: 'All'right, so be it, g' Along that line, before we move to the notice of 10 hearing, are there any corrections that.anybody wishes to it make to that memorandum following the telephone conference?
~12 MR. FLYNN: This is Joseph Flynn. I was not a
! /'Y 13 party to that conference call, and I don't really have a
..( / _
14 stake in the outcome of the argument, but as a-pcint of 15 information, Massachusetts Attorney General and Applicant may 16 wish-to know that the redacted material has been submitted 17 not only to FEMA but to the RAC co'mmittee; that'NRC has r. '
18 mailed it directly to the RAC committee.
19 JUDGE SMITH: IDirectly'to whom?
MR. FLYNN: To the members of the regional 20 21 assistance committee, the RAC.
, 22 JUDGE SMITH: Oh.
- U: MR. TURh: That's my understanding as well, Your 23 r .
21 Ilonor. This~is Sherwin Turk. ,
( Well, that presents a potential 25 JUDGE SMITH:
i Acme Reporting Company
') 12026 628 4688 r
~
g ww ,-ve w.ew--.Awrp.e,--- ~,-v.,, ens --c-.w , . ---n-
r 9049 1, problem, an'd that is' Freedom of'Information Act' requests to
~
2 -all.of those agencies.
3 MR.-TRAFICONTE:' Yes.
4 I was going to ask Mr. Flynn'if, when the
~5 information was provided, was there a confidentiality-pledge 6 extracted in any way? Was there a cover letter that indicated 7 this was confidential information, or was it --
8 MR. FLYNN: Yes. The transmittal letter to FEMA, 9 which I assume is the same as the transmittal letter to 10 everyone else that received it, did point out that the NRC 11 received it with a pledge of --
12 MR. TRAFICONTE: Okay.
13 MR. FLYNN: -- that it was proprietary and would'-
14 be treated confidential,: and requested that FEMA'~ treat it --
15 MS. WEISS: Uses the word "proprietary"?
16 MR. FLYNN: Yes.
17 MR. TURK:~ Your Honor, this is Sherwin Turk. I 18 have Ed Schumacher with me on the speakerphone.. He!s the information attorney for the NRC Staff. If you:need'a little 19 20 more background on that letter, perhaps he could give it to 21 y u.
MR. SCHUMACHER: Your Honor, this is Ed 22
.O. Schumacher.
23 I
JUDGE SMITH: Yes, sir.
24 MR. SCHUMACHER: It was, as far as I understand, i 25 Acme Reporting Company
. m > .......
9050 1 it was transmitted to FEMA with a notice that said that we i
2 had received it under a claim that it was proprietary; when 3 it was submitted to the agency, it was submitted under 7
U 4 10 CFR 2.790 of our regulation. That's where parties 5 submitting information have the opportunity to ask that the 6 information or portions of their submittal not be made 7 Publicly available.
8 It was supported by an application and an 9 affidavit. And we go through a review process for 2.790 10 determination, in part a technical review and in part legal.
11 We're in the middle of that review process now, and the 12 Staff will, in a few days, be making a determination as to whether it believes the submittal can be withheld as
) 13 14 proprietary under our regulation.
15 In the interim, we treat all submittals as 16 proprietary information that are claimed to be, and we do 17 not make them publicly available. So our transmittal to 18 FEMA of copies of this, and to the RAC people of copies, was with info-mation saying that treat this as confidential or 39 20 proprietary, that's how we're treating it. And we'll let them know the extent -- or, the final decision after we 21 22 finish our review process, 1 i 23 JUDGE St1ITH: I don't see what we can do about the problem. Presumably they will honor that request. There's 24
() an additional exemption under 2.790 alluding to interagency 25 1
i Acme Reporting Company I2021 628 4588
I '
9051 1 memoranda.
, 2; Do you know, Mr. Schumacher, are they aware of the 3 sensitivity of that information in this hear.ing?
4 MR. SCHUMACHER: Yes,.they are, Your Honor. That 5 was made clear to,them verbally before we ser' the 6 transmittal,.and then,we followed up with the transmittal.
7 They accepted it under a claim that it's proprie'tary, and 8 agreed to treat it as such. Otherwise, we wouldn't have 9 given it to them.
10 JUDGE SMITH: That's fine.
11' I see there's nothing for us to do now until the 12 matter's briefed and argued.
13 Now, is there any request that that memorandum 14 dated January 22nd, memorializing the conference of January
' 15 2st, be modified in any way, amended or corrected?
MR. BROCK: Your Honor, this is Matt Brock. I just 16 17 wanted -- I was not a party to that conference -- but I 18 wanted to make one point.
ig In the memorandum, it indicates that an issue which 20 came up was that Massachusotts Attorney General and the
- 21 Applicant had no prior knowledge of that FOIA request. I 22 just want to say on the record that it's also true for Town 23 f Hampton. We had no prior knowledge of that request until I saw this memo today.
24
, O 25 JUDGE SMITH: Okay, thank you.
l l
Acme Reporting Company aos,.>.a...
9052 g MS. DOUGHTY: Jane Doughty. I could say the same
(> 2 for the Seacoast Anti-Pollution League.
3 JUDGE SMITH: So nobody wishes to correct that j 4 memorandum --
5 MR. TRAFICONTE: Your Honor --
6 JUDGE SMITH: -- or add to it?
7 MR. TRAFICONTE: -- John Traficonte. If I could 8
just reserve my right to do that, because I haven't seen it j 0 yet. I --
10 JUDGE SMITH: All right.
gg MR. TRAFICONTE: -- I doubt I would want to, but I 12 haven't seen it, so I --
l (j]
~
13 JUDGE SMITH: All right. Now, the notice of s.
y hearing calls for a hearing beginning at 1:00 p.m. on 15 February 8th at Courtroom No. 2, Bankruptcy Court, 11th Floor, Thomas P. O'Neill Federal Building, 10 Causeway Street. And 16 37 it says the rebuttal testinony will be received at the sanc 18 place, beginning February 22nd, 1988, at 1:00 p.m.
That's a new building. Mr. Oleskey was the bird 3g 20 dog for us on that, suggested it, and I don't know if he's on or not, but I want to thank him for it, because ir promises 21 to be very useful and comfortable for us.
- 22 MR. TRAFICCNTE: He's not, Your Honor, but I will 23 convey it to him.
24
\> MR. DIGNAN: Your Honor, the notice, which I just 25 Acme Reporting Company 1202) 628 4886 1
9053 1 received --
! 'l
-' 2 JUDGE SMITII: Who's speaking?
3 MR. DIGNAN: -- is in one respect -- do I understand s 4 from that that the Board is intending to take sheltering 5 testimony on the 8th and no rebuttal of any kind until the 6 22nd? Because it was my understanding we might start with 7
the rebuttal on issues other than sheltering.
8 JUDGE SMITII: No, the only thing we were trying to 9 do there is reflect the discussion that we had on the last 10 day of the hearing. And that generally, everyone recognized 11 that we pretty well, we should count on having that extra 12 week beginning February 22nd for rebuttal. We didn't intend to shape what was going to be heard on the first week.
fv ') 13 14 MR. DIGNAN: Oh, okay. Fine, thank you.
15 But I thought the consensus was we'd clean up the 16 rebuttal on nonsheltering issues first.
17 JUDGE SMITH: Right. Yes, that's -- see, we didn't 18 say what would be heard that first week.
19 MR. DIGNAN: Okay.
20 JUDGE SMITII: But the second week was, just for 21 housekeeping purposes, identified as a need for rebuttal,
,, 22 and,of course,it would be available for anything. But it's (w/)
23 only allusion to what we already discussed.
-s 24 MR. TURK: Your Honor, along this line, as to what Iwj \
25 Acme Reporting Company I
,o,,s2.....
9054 l' issues will be . addressed during ' the ' week of February 89: I~
2 'have indicated to the parties before the Board came on the E
3 line that 1 I wanted to raise an issue while we're on the
-(~1 telenhone conference call.
~
- L/ . 4 JUDGE SMITII: Yes. I might say that'I could very dimly hear that, and I'm not looking forward to your motion.
MR. TURK: Well, let me make it, and'see what the parties say in response, but so far I haven't heard any of the parties indicate how they would view the motion. With your permission, I'd like to get into it now.
10 JUDGE SMITH: Yes, would you please?
11 MR. TURK: All right.
12 The Staff received FEMA's supplemental testimony 13
.O_ We reviewed it. We read yesterday, Tuesday, by telefax.
14 the testimony as essentially indicating, as stated on Page 2' 15 of that testimony, "that FEMA cannot conclude that the NHRERP 16 is adequate with respect'to the beach population until it is 17 clear that the State of New Hampshire has considered the use 18 of sheltering for the transient beach population and 19 l
explains what use, if any, it intends to make of sheltering.
20 "This latter point should not be interpreted to y 21 mean that FEMA has imposed a requirement that sheltering be 92 available. If the State of New Hampshire intends not to 23 employ sheltering for the transient beach population, which
( ( is not presently clear from the NHRERP, then FEMA expects 25 Acme Reporting Company 12021 628 4889
9055 s
I- the' State to develop the rationale _for:such a choice and 2- provide it to FEMA for review."
3 Now,'in essence,.the Staff reads FEMA's testimony _as f~'
Q) 4_
~
.being an interim position in which-they are anticipating.that 5-further work could be done by the State along the lines 6 suggested in this testimony, and after that work is done, that 7
it would be submitted to FEMA for review and a determination.
8 As the Board knows, Robert Bores, who incidentally'_
9 is in the office with me here now, indicated in testimony 10 before the Board that the NRC RAC representative shared the 11 view that the' plans would be enhanced by -- with further 12 consideration given by the State as to how and when', under 13 what condition, sheltering would be an appropriate option for 14 the beach population. So in essence, the Staff at this point 15 believes that better than go into unnecessary litigation and 16 .then have to revisit the issue a second time,-best use of 17 resources, and the best procedure for this Board to follow, is 18 to' defer litigation until we see what the State is going to 19 do, now that they have FEMA's viaw on paper. And I think we'd 20 all be better off if we don't have to come back to the issue 21 time and time again, but rather let the State make its l
l 22 submittal, and then we can let FEMA develop its final position 23 and go to hearing on that.
l 24 Now, as I mentioned, I have not had any response 25 from any of the parties until now. I began attempting to Acme Reporting Company aos, s,.a...
l
9056.
1
,_ contact people just an hour or-so, or-maybe an hour and a 2
half, before'the telephone conference call, and I don't..know 3
4 ifcanyone yet has had an opportunity to digest the suggestion
./ s V 4 and develop,a response.
5 JUDGE SMITH: Mr. Dignan?
6 MR. DIGNAN: Well, I'd been contacted earlier, Your
(
7~
Honor, and told about it. I've got some problems, real problems, with this,.and I've especially got a problem taking-9 a definitive position.
10 I guess the first thing I'd like to know is what's.
II FEMA's position on this.
MR. FLYNN: On the pending motion?
13 MR. DIGNAN: Well, on two things. Mr. Turk has 14 characterized the testimony in a certain way, and what is 15'
. FEMA's preference as to where we go.
16- Yottr Honor, if it's legitimate.to ask the Board to 17 so inquire; I, frankly, am in a' quandary as to what'to'do 18 about it. A lot of my instincts tell-me that I've got a 10 hearing date, I've got witnesses', I've got a piece of 20 testimony to shoot at, a piece of testimony of my own that I 21 But I could put in, and I hate to give up hearing time.
22 haven't had enough time to digest this thing.
23 And I'd like to know what FEMA's view of this is, l
l.
24 and particularly, assuming the State of New Hampshire goes 25 along, which is their call, how fast is FEMA going to review
[ Acme Reporting Company l t202 628 4088
a i
9057
~1 and come up with a position on what they file.
~
FEMA so far (G 2- has'not~ amazed me with.their speed. -They had-the shelter
~3 . study for I don't know how long, and the'RAC still hasn't got
) 4- out a review on-it.
5 Now, if I could'get a commitment from FEMA that 6 within 30 days after they receive a New Hampshire position 7 they'd have held a RAC meeting and taken a position with.
8 testimony, I might have one view of.this' motion. If,,on-the 9 o'ther hand, this is some open-ended thing for the RAC and 10 FEMA to decide whan, as, and if-they'll get to the problem, 11 I have another.
12 MR. FLYNN: Well, with the Board's. permission, let
~
) 13 me respond'to what Mr. Dignan suggested.
l 14 I agree with the way Mr. Turk characterized our 15 testimony. I'm not opposed to his motion --
16 JUDGE SMITH: You what?
i 172 MR. FLYNN: I guess you're having trouble hearing 18 me.
A little bit, yes. You oppose his 19 JUDGE SMITH:
20 motion?
l 21 MR. FLYNN: No, no, I'm not opposed to it.
f 22 JUDGE SMITH: Oh, not opposed.
f ('g .
l
%I We're not asking for more time, but I 23 MR. FLYNN:
24 certainly see the wisdom of not litigating what is in 25 essence not a conclusion.
Acme Reporting Company o u, u.....
. , , - _ , - . ,,:, . , - - , , ,.,-.,--..,--,-,--,,.n-, , - - . . , . - - . , . , ,
. 9058 1
Now,'Mr. Dignan attaches a great deal of importance O
to how much time it would take FEMA to review new material
- 2 3
that's developed, assuming that it is.- He-suggests.30 days.
.A I certainly can't commit to'that. I think 30 days is sooner 41 5
than we're 'likely to be able to turn it around. I'think 60.
-6 days is more likely, although before I make any such commitment I'd have to check with the people who do the work.
7 8
MR. DIGNAN: Mr. Flynn?
9 MR. FLYNN: Yes.
MR. DIGNAN: Could I respectfully point out 10 ig
'something? The RAC and FEMA,when for various reasons it 12 suited _their purposes, had no trouble with cranking up a RAC-meeting January 7th and 8th and having testimony done, what,
[)
v.
13 two weeks thereafter, two or three weeks thereafter. And-I 14 15 don't see why that same speed:and alacrity couldn't be 16 applied to a New Hampshire filing.
MR. FLYNN: You certainly-have a valid point there, 17 18 Mr. Dignan, but I don't -- this is something I haven't gg consulted with the management on in advance, so I don't feel 20 -
that I'm in a position, I don't feel I have authority, to make that commitment right now.
21 JUDGE SMITH: Mr. Dignan, I think that the ball is 22 O 23 in your urt here. You have the burden, you have the p nalty of delay, you have everything. We'll listen to what 24
)
25 y u have to say very carefully.
Acme Reporting Company an.>....
..,-,,.n,, , - - - - - - - , -
+ , - -- -
- , , . , , , - . c, , . - . , , , , - - - - . - - , , - - - ,
9059 MR. DIGNAN: Well, as I. said, Your lionor, what I'd 1
. ( 's V . 2' like is'a position from FEMA.on how long the process is going' to take. Mr. Turk, as usual, is extremely logical. I always 3-
~ find brother Turk logical. But the problem I've got, Your-4 5
Ilonor, is,. as the Board is.well aware, we gave them'the q shelter study. The first round was,--gosh, because you didn't
6 7
give it to us, the State didn't give it to us, under a magic 3
reg, we can't look at it at all. Then we called it technical 9
assistance, and I don' t know how many months, was it ' August 10 that' thing went down there -- they still haven't-looked at it.
- 7g JUDGE. SMITH: They've looked at it,'but they're not happy with it.
12 MR. DIGNAN: No, they haven't. They haven' t got a
( 13 RAC position on it. According to the testimony, two members 34 of the RAC:have given a position on it.
- 15 MS. WEISS: I don't think that's necessarily
~
16 g7 correct.
MR. DIGNAN: That's what the testimony says. Am gg I right, Mr. Flynn?
l gg MR. FLYNN: Yes, that's correct. You've got --
l 20
- l. Of course it's correct. That's what MR. DIGNAN:
l 21 it says in the testimony.
22
!O 23 MS. WEISS: No, I think the testimony has to do l
with the final conclusion about whether the plan's adequate 21 l
rnt, not necessarily whether sheltering is adequate or not ,
25 i
! Acme Reporting Company
,,o ,. .....
~,,.~,.-,,,,--~-.,,n,,,,,,,,-,-.-n . , , - - , , - ~ , - - - , , - - - , , , , . . - - - - - . - , - . - - - --
i
- 9060 f
1 MR. DIGNAN: About what theyve done with the
. 3
.' d 2 sheltering study.
3 My concern, Your Honor, is that if Mr. Turk's
). 4 motion!is allowed that they will, I'm sure,.take their 5 position one way or another in reasonably quick fashion, and 6
what I want is a commitment that that federal agency is going 7
to turn that thing around in 30 days. And I'm not wedded to 8 30 days; if somebody wants to make it 40, that's one thing.
9 But if it's going to stretch out, so all of a sudden there's 10 n p ssibility of any hearings before the Board for three 11 months on sheltering, that's something I've really got to 12 consult with my client on.
() 13 MR. TURK: Well, one of the first problems, Mr. Dignan, is we don't yet have a position from the State of g4 15 New Hampshire. We don't know what they're going to do.
16 MR. TRAFICONTE: I was going to --
MR. TURK: And I wanted to make one other point.
17 18 one of the two agencies that has responded on the gg shelter study was the NRC --
20 MR. DIGNAN: Correct.
21 MR. TURK: --
through the NRC RAC representative, 02 and I will promptly mail out to the parties the NRC S_taff
() 23 paper written by Mr. Bores which sets out his views on the 1
g shelter study, and his paper will make it clear that there are l O 25 pen areas that he feels need to be addressed.
Acme Reporting Company ae,,. .....
d 9061-l' MR. FLYNN: Really, I wanted to further this 2 discuss' ion. 'I'm going to excuse myself for about a' minute and 3- send word downstairs to the people who can make this decision-
- O 4 thee we need their ingee. 8e riehe hecx.
5 MR. TRAFICONTE: Your. Honor -- Mr. Traficonte -- I 6 want.to know.what Mr. Huntington thinks about the proposal, or 7
further delay until the State takes a position. I think his 8 input would be necessary, too.
9 JUDGE SMITH: Well, that certainly is the case.
10 MR. TRAFICONTE: Is he on the line?
JUDGE SMITH: Yes, Mr. Huntington is, yes.
it MR. HUNTINGTON: As Mr. Dignan's already said, I 12 think the State needs time to digest this as well. This is 13
-14 something that we have not given any consideration to. We 15 w uld have to speak with our agency and really stop and give 16 some thought to it before we could take any position.
MR. TRAFICONTE: I'm sorry, were those comments 17 directed to the FEMA position, or to the present motion?
18 gg MR. FLYNN: Excuse me, this is Joseph Flynn, I've 20 just returned.
JUDGE SMITH: Let's review what happened, Mr. Flynn.
21 22 A question was put to Mr. Huntington as to whether -- what his O 23 view as to the -- whether New Hampshire, the State of New
' Hampshire, would, and the timing of any response to FEMA's O 25 testimony.
Acme Reporting Company uo,, u.....
. s 9062 z
1- -And he stated in essence that they don't know, this O 2- is new to'him,' he'd have to check'with his_ management.
3 But I guess it was addressed.to both the testimony 4 and.the motion made by Mr. Turk.
5 Is that right, Mr. Huntington?
6 MR. HUNTINGTON: Yes, sir, Your Honor. We just 7 couldn't give any kind of response to either today.
8 JUDGE SMITH: Mr. Dignan, we're going to be waiting 9 for your lead on this. The Board, I might say, is not'very happy with the events. There are no new technical bases, no 10-11 new technical considerations, that I can see that have arisen 12 in this. hearing, this issue,'for.since.before I got into.the
- 33. hearing.
14 MS. WEISS: I would certainly agree with that.
15 MR. TRAFICONTE: As I would, Your Honor. I listened 4
to what Mr. Dignan said. I frankly cannot see why we can't 16 go f rward. FEMA has perhaps an interim position, but then I .
17 perhaps not. I mean, doesn't it depend on what does come 18 forward as a result of this position that they've just 39 l
20 announced? I can't frankly see why we -- what we would be l
21 waiting for in the absence of an affirmative move by the
@nd346 Applicant. I should say, the Applicant and/or the State.
22
$;g 47 MS. WEISS: That's right.
23 l JUDGE SMITH: Well, we would presumably be waiting 21 O 25 for FEMA's evaluation of whatever New Hampshire did. But even l
Acme Reporting Company an , .a . . . .
- _ , , , _ , , . _ _ . , _ . , . _ ~ - _ . ,_ .m, . ._ , - , . . . _ , ,,. _-, _ , , . . _ _ _ . . , - _ , . _ . - . , - _ -
o .9063
.1 that doesn't take care of all the problems.- We have the 2 problem of the reasonable assurance issue, the exercise 3 deficiency,,the range of protection actions issue. 'So it's O. 4 more then suee FEMA e eve 1ueeton of eny eubmitee1 by New 5 Hampshire on the sheltering matter.
6 'MS.-WEISS: That's right, and I noticed, because the 7
language was underlined, FEMA hasn't expressed an opinion on whether evacuation alone would be adequate. And that seems 8
9 to be wholly independent of what New Hampshire may or may not do with this sheltering.
10 JUDGE SMITH: Is there any need, Mr. Dignan, do you 11 12 feel any need for discovery of PEMA's position here?
A 14R . DIGNAN: No.
13 U
JUDGE SMITH: No.
14 15 What do you want to do, Mr. Dignan? Do you want 16 . time to think about it?
g'7 MR. DIGNAN: I'm hoping to hear Mr. Flynn tell me 18 what kind of a commitment FEMA will make on the schedule.
JUDGE SMITH: Oh, that's right, Mr. Flynn's back 19 now with that information, yes.
20
" MR. FLYNN: I'm back, and waiting for word to come 21 back to me from management, so --
22
-O 23 JUDGE SMITH: Well --
MR. TRAFICONTE: Well, could I just ask, so that I 2-1 O 25 understand the flow, would Mr. Dignan then present FEMA with Acme Reporting Company ao,, s1. ...
.] +
9064 1 something that the other parties haven't seen yet,,or would
~
2 'it be the testimony as we'know it now?
3 MR. DIGNAN: Mr. Dignan's going;to present FEMA-with 4 nothing.
~
5
7 MR. DIGNAN: Because the State of'New Hampshire is -
8 going to make --
9 MR..TRAFICONTE: Oh, okay.
10 MR.'DIGNAN: -- I mean, I'm not asking --
gi MR. TRAFICONTE: Okay.
12 MR. DIGNAN: -- to tell the State how long they'll 13 take, I'm asking for a commitment from FEMA that once the g4 State presents them.with something, will they. turn it around 15 in 30 days, one way or another, up or down.
16 MS. WEISS: Mr. Chairman?
37 JUDGE SMITH: Ms. Weiss.
MS. WEISS: I just want to say that before you rule 18 ig on this, irregardless of whether Mr. Flynn get an answer or 20 not and what Mr. Dignan's position may be, I would like to confer with the other Intervenors, and whether we get back to 21 1
22 yu n telephone or we get back to you in writing, I think we O 23 need to talk about what the implications of all this is. And I don't think we should be required to respond essentially 24 O 25 instantly, this Staff motion.
Acme Reporting Company wo,,.,.....
c 9065 14R. DIGNAN:
i Well'--
.y g ,.
' 3% - 2 JUDGE SMITH: Would th'is be helpful if we delayed 3 'this -- I mean, if we reconvened this very conference with all I 4 the; parties'-- this is, incidentally, being transcribed in 5 sequence of the page numbers, as if we were in the hearing 6 room -- would it be helpful if_we all convened again either 7 tomorrow or Friday?-
-8 MR. TRAFICONTE: I think that's a very good -- this 9 is John Traficonte -- I think that's a very good. idea.
10 MR. DIGNAN: I don't -- I'm not thrilled with 11 Friday, Your Honor, for one simple reason.
12 JUDGE SMITH: Who's this?
MR. DIGNAN: Tom Dignan. If it's Friday morning,
. () 13 g4 I'm thrilled, _but not otherwise, because-we have a 15 commitment to file testimony on Friday, if we're going forward, ig JUDGE SMITH: That's right.
MR. DIGNAN: I'd like it. settled at least fairly 17 18 early Friday morning.
JUDGE SMITH: Well, I was thinking more about 39 4 20 tomorrow afternoon, as it seems to be -- we seem to be able to 21 get people together in the afternoon easier than in the morning. Would tomorrow afternoon at 2:00 be satisfactory?
22:
- O' MR. BROCK: Yes, Your Honor.
i 23 l
4 MR. DIGNAN: 2:00 tomorrow afternoon.
(:) MS. WEISS: Could we do it a little earlier? I've 25 r
- Acnue Reporting Company
- ,,on. . .....
l
..c. ..
L
.9'066 4
1 got a meeting at 2:00. Would 1:30 or 1:00 be possible?
2 JUDGE SMITH: That's fine with us. 1:00's fine.
3- MR. FLYNN: Mr. Dignan,,if we get off the line here 4 today before I have the answer that you're looking for, I' vill 5 call you directly as soon as I know.
6 JUDGE SMITH: Mr. Flynn, would 1:00 o' clock 7 tomorrow be all right with you to --
8 MR. FLYNN: Yes.
9 JUDGE SMITH: Anybody object to 1:00 o' clock 10 tomorrow?
MS. DOUGHTY: This is Jane Doughty from SAPL. It 11 would be better for me if it were a little later. I' haven't 12 13 had a chance to talk to Mr. Backus about his availability --
14 JUDGE SMITH: Ms. Doughty, would you come back.againi 15 MS. DOUGHTY: Certainly. I would have a little difficulty with 1:00 o' clock. I haven'.t had a chance.to;first 16 talk to Mr. Backus about this. Perhaps he'd be available at 17 18 1:00. 1:15 I could probably do; 1:00 o' clock --
JUDGE SMITH: Could anybody else, could somebody 19 20 relay to me what Ms. Doughty said?
MR. DIGNAN: She said, Your Honor, if I heard her 21 22 correctly, and I'm sure she'll correct -- that 1:00 o' clock is O 23 difficult for her; that 1:15 may be possible.
JUDGE SMITH: Oh. All right. 1:15 satisfactory to 24 O 25 everybody?
Acme Reporting Company
,,o,,.>. ....
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ . _ _ _ . _ . _ _ _ _ _ . _ _ . . _ _ . _ _ _ _ _ _ _ _ . . _ _ _ _)
9067 s
1 MS. WEISS: Yes.
r- 2 JUDGE SMITH: All' right. Well, loc's nail that 3 .down, then, s
f~/
% ' 4 Now, what can we -- so we will come back to whether 5 or not.the FEMA testimony and the sheltering beach population 6 issue will'be litigated on February the 8th, tomorrow 7
afternoon at 1:15; and in'the meantime we would expect the 8 parties to have authoritative positions. Can you --
9 MR. TRAFICONTE: The~Intervenors will caucus, Your 10 Honor, and try to come up with one position.
JUDGE SMITH: .And, Mr. Flynn, you've already stated 31 12 that you're willing to do that, and, of' course, Mr. Turk is 13 Proponent of the motion, and I assume he's going.to have authority easily'available to him, too.
14 MR. TURK: I make the motion on authority, Your 15 16 Honor. .
JUDGE SMITH: Okay. So we will do that.
g7 Wait a minute, let me check.
18-gg Okay, so we'll resume tomorrow at 1:15.
p Now, what other business can we transact this afternoon?
21 MR. TURK: Your Honor, I want to mention one thing.
22 O g You had indicated that there are other issues, such as the reasonable assurance issue and range of protective action and 24 exercise deficiency. It seems to me that some of those, the 25 Acme Reporting Company wo,,. .....
l 9068 reasonable assurance, the range of protective action issues, c3 4
g I k_/
are potentially very easily to deal with as legal issues.
don' t know that you need testimony on that, unless those gs--
But I don't
'./ 4 issues are discussed in the course of testimony.
5 think we have to put on a case just to address those 6
standards.
7 JUDGE SMITH: How about the exercise deficiency 8 Is that truly legal?
issue?
9 MR. TURK: No, I left that one out of my catalogue.
10 JUDGE SMITH: All right, I'm sorry, I missed -- I 11 didn't --
12 MR. TURK: That one, it seems, would relate only to
/~N issues in contention already. In other words, different
(-), 13 I4 deficiencies were picked up on bus drivers and other issues.
15 Did you mean by that to say the areas in which deficiencies I6 were identified with respect to the beach?
II JUDGE SMITH: No.
18 MR. TURK: I don't see that as a separate issue 19 right now for us to have to litigate.
Well, no, I was alluding to your 20 JUDGE SMITH:
21 remark that I thought you had included the exercise I realize now that you 22 deficiency issue in your list.
(~',)
-v 23 hadn't.
And I was asking whether that is a purely legal 24 issue, or is it a mixed issue of fact and law.
(~)/
N_
MR. TURK: Oh, I don't, I guess, I don't see that f
25 Acme Reporting Company
.na,.,.....
t 9069 1
'that's-an issue that we need to' address at all apart from the O- 1seees thee heve e1 reedy seen preeeneed in the heerine. 1 2
3 don't guess there's any further testimony to go in on that.
4 JUDGE SMITH: Well, we have for.the time that I'm aware of a statement by FEMA that a deficiency is a' basis for _
5 6
^ finding, a rebuttable presumption, that the plan is inadequate. Isn't that -- where am I looking for it -- isn't 7
g that the first time this has come up?
MR. TURK: I think you're looking at Page 7, at the 9
10-first full paragraph on the page, in which the last sentence gg says, "If FEMA's decision not to make an overall finding of reasonable assurance, that was for the manning inadequacies 12 identified in the RAC review of the plan, and deficiencies th 13 identified in the exercise report."
14 JUDGE SMITH: Yes.
15 MR. TURK: And;that goes on to say not this, but-16 lack of explicit consideration of plans for the possibility 17 f sheltering.
18 MR. FLYNN: Your Honor, this is Joseph Flynn.
gg That definition is not new. That is found in our 20 guidance-on exercises - that's -- resolved, I think.
21 JUDGE SMITH: Well, isn't -- this is the first time 22 that I have seen in this case presented to us an argument that FEMA cannot make the finding of adequacy in the face of a O 25 deficiency identified in the exercise rcport.
1 l
Acme Reporting Company
<ao,, se......
9070.
+
1~ MR. FLYNN: Well, you're. correct that that -- yes, 2' .that is the first time --
3 JUDGE SMITH: This is the"first-time it's been 4 presented to us --
5 MR. FLYNN: Yes.
6 JUDGE SMITH: -- that I can see.
7 MR. FLYNN: What we were trying to do is put the beach population in perspective. that's one of a long list of 8
g things that can play of a finding of reasonable assurance.
10 The existence of the deficiencies was noted earlier on.
JUDGE SMITH: Yes, I know that, yes.
11 MR. DIGNAN: Yes, but the deficiencies,for purpose 12 13 of this hearing, as Mr. Turk indicated, are all encompassed within contentions that are made and to be litigated before the 14 15 Board.
MR. FLYNN: Yes, that's right.
16 MR. DIGNAN: Position -- it is our position that 17 18 the FEMA's inability to put a stamp of approval onthe whole gg plan doesn't affect the ability of the Board to go forward with a reasonable assurance finding, which would predict the 20 21 finding anyway.
MR. FLYNN: Nor do I dispute that.
22 O 23 JUDGE SMITH: All right. So there are no factual 24 underpinnings to FEMA's position, as expressed on Page 7.
O 25 MR. TURK: No new factual underpinnings.
Acme Reporting Company
.ao,,sa.....
9071 1
JUDGE SMITH: Yes, okay.
(.) 2 MR. TURK: Joe, am I right?
3 MR. FLYNN: That's correct.
!,) 4 MR. TURK: Yes.
5 JUDGE SMITH: So that could very well be a question 6
of law, too. I mean --
7 MR. TURK: If it's raised at all.
g JUDGE SMITH: Yes. Okay.
9 MR. TRAFICONTE: Well, to the extent that the exercise -- well, John Traficonte again. If I understood t.4at 10 33 flow, the only point I would want to make is that that point, 12 that inadequacy or deficiency deals with an exercise, which,
/ ;
as I understand it, is certainly not the focus of the present 13 L/
litigation.
34 15 MR. DIGNAN: Correct.
MR. TRAFICONTE: Okay.
16 g7 MR. TURK: Except to the extent that it's been picked up in contentions already. So the FEMA report on the 18 3g exercise came out a year and a half ago.
JUDGE SMITH: All right. I got it.
20 MR. TRAFICONTE: Yes, but as to an exercise that 21 I
would be relevant to a final determination in this case -- I 22 j cq '
ertainly Mr. Dignan will correct me if I'm wrong -- but I 23 understand the Applicant is looking to another exercise of the
<x 24
J
?
entire EPZ for both the New Hampshire and Massachusetts plan.
25 I
Acme Reporting Company
~ ,,. .....
1
^
9072' 11 JUDGE. HARBOUR: That's not before us here.
",d fa MR. TRAFICONTE: .That's going to happen, at some 2
3 . point.
7 JUDGE SMITH: .All right.
5 MR. TRAFICONTE: It seems to me'would moot whatever -
I 6 FEMA has said'about a now two-year-old exercise.
7 M R .' FLYNN: No, we don't see it as lhaking at that, 8 because we - well, I suppose that's true, but we would look tc ,
9 the next exercise --
MR. T."SFICONTE: Well, that's what I --
l 10 31 MR. FLYNN: -- a remedial exercise.
12 MR. TRAFICONTE: Right. No, of course. I didn't' mean n'oot in that sense. I meant as to the legal significance
( ). 13 34 of the finding of a deficiency.
15 JUDGE SMITH: Okay. Well, where are we now? I 16 forgot -- as a matter of fact, I forget why we digressed --
17 MR. DIGNAN: Come back at 1:15 tomorrow to discuss e 18 the question of Mr. Turk's motion, gg MR. TURK: And, Your Honor, I would note one more F
thing, if I may. My motion is not going to in any way affect 20
{ the fact that we' re planning on going to hearing -s :t week --
t or, I'm sorry, the week of Februacy 8. We do have a --
i 'y MR. DIGNAN: My understanding we'd go to the
,4 rebuttal testimony in any event.
MP. TURK: That's right. But there will be matters 25
. Acme Reporting Comoony
[ ,m ,. .<...
_ .-.w . .-.- .-, , _. , _ _ ~ _ ,,,__, ,._ _ _ . _ __ ._
b 9073 i
for hearing that week.
- 2 JUDGE SMITII: Ye9, I understand that. There's --
3 you know, we can go ahead up there. But the significance of d'
() 4 your motion is that thia phase of the record remains open for 5 no less than 30 days, and probably like 60, or even more.
6 MR. TURK: Well, we could close the record and write 7 proposed findings on everything else that's happened, then 8 pick this up as a separate issue later this spring in 9 litigation.
JUDGE SMITH: Well, Mr. Dignan has -- is the person 10 gi to be heard on that pcint.
t MR. DIGNAN: That -- well, Your Hcnor, I would --
12
(~') 13 I'll put that in my catalogue of things to respond tomorrow.
\J g I -- as I've said, to the extent the Applicant has a say in 15 this, I really -- m; position, I'm perfectly candid, is going 16 to be governed by what I hear from FEMA in terms of a commitment on turning this thing around.
37 JUDGE SMITH: Well, how about New Hampshire?
18 ig MR. HUNTINGf0M: We'll be ready tomorrow to --
MR. DIGNAN: Yes, I'll know from New Hampshire what 20 kind of time frames they're talking about, if any.
21 on MR. HUNTINGTON: Absolutely. We can make that
~~
s ,r) t
) e mmitment, so we will know definitiely tomorrow what kind of 23 time frame we would work with.
~
(_3
\~~J Gentlemen. could I ask s
25 JUDGE SMITH: All right.
Acme Reporting Company n ,.>. ....
I J 9074 e
1 .also -- I think this is rather important to everybody
)
2 involved -- could I ask that perhaps you-bring your principals 3 to this. conference, in case something unforeseen comes up. I p.
As ,) 1 -think maybe it's not too much to ask of them to spare an hour I 5 on it,'unless you're assured that you come.to the conference 6 thoroughly authorized to'sperA for your agencies and your -
7 principals, g MR. DIGNAN: I'll have that in mind, Your Honor..
9 MR. HUNTINGTON: I as well.
10 JUDGE SMITH: I think, generally speaking, that 33
. counsel should come to any session reasonably prepared, 12 unless they're surprised, to speak for their agencies. And if
()
13 you can't do that,-bring them with you. This is an important g hearing, and I would imagine that your principals would be 15 interested in having it concluded in an orderly way.
\
'MR.-DIGNAN: ' lour Honor, I can assure you I am here 16 17 with authority to talk for my principal, and I -- my principal s 18 and I have' discussed this. We were only given 15 minutes to
~
l 3g do it, and I've got orders to go one way on one answer from i
FEMA, and one way on another. That simple.
20 21 JUDGE SMITil: One answer from FEMA and New l Hampshire. I --
22 0 23 MR. DIGNAN: The New Hanipshire answer probably is l 24 not g ing to influence me all the.t much, although I'm pleased
( to be in a position to have that answer when I talk tomorrow.
25 Acme Reporting Company i . m . u .....
l
7,.. . - ._ . . .- _
, a .
p ,
'O s
~
9075'
.1 MR.-TRAFICONTE: . Well, Your Honor, that's -- again,-
2' John- Traficont: . -- that last point by- Mr. Dignan puzzles me.
3 - I can't understand"--
4_ MR. DIGNAN: Well_, you don't' understand how I
-5 operate with my clients,: John. That --
Oh, no, I'm, concerned about the --
6 MR. TRAFICONTE:
~
7 JUDGE SMITH: The logic.
8 MR. TRAFICONTE: -- the logic of the irrelevance'of-9 the New Hampshire position,-because-if I understand why we 10 w uld be deferring these hearings, it's so that something can ;
~
it come out of the-State; and.yct you don't seem'to be overly 12 concerned as to --
-13 MR. DIGNAN: Worked 1with the-.Statefof New. Hampshire 14 to have a pretty good working knowledge of the scope.of what. !
15 I'm going to'. hear from them. I don't know exactly what I'm
. 16 g ing to hear from them, but I'm'. fairly confident I know what 17 the scope of i c is.
i i 18 JUDGE SMITH: All righ6 .
ig MR. FLYNN: Your Honor, this is Joseph Flynn. I will have comeone from my ma.agement here '.omorrew. In the l 20 meantime, I will disciass'this fully, and I will discuss it 21 L
22 privatt.ly with Mr. Dignan no that we'll sa're time when we get -
g together tomor.ow.
,34 MR. DIGNAN: Thnak you, Joe.
~^
O 25 MR. P M N: You're welcome. .
l Acme Reporting Company a w ,....,
,, ev--*, - -,v , ,,--m-+,,ww, ,*,---er~+ -=-*-r<,,re-,.4<,,-e~-.,+=,--+.~-r ,~--.--*+w, - , - e-*, . - . * - - - - - - . - -
9076
s .
1 MR. HUNTINGTON: Your Honor,~Geoff Huntington'for-2 New Hampshire.
. I just want to make it. clear that'Mr. Bisbee-3- was not here today because we weren't anticipating that 4 something like this would come up. I'm not able to answer the 5 questions today, not because I'm without authority.to do it,
, 6 but_ simply because we were without notice.
7 JUDGE SMITH: Well, that's fair.onough, 8 Mr. Huntington, because this was not one of the matters-that g was noticed for this conference. We were mainly going to 10 discuss the schedule for the Massachusetts plan, which I guess 11 we can do. However, that's going, to a large extent, depend 12 upon what we work out with FEMA position. Can We talk any
' 't 13 more about-~the litigation of the Massachusetts plan?
14 MR. TRAFICONTE: Well, any meaningful schedule, it'
! 15 seems to us, at least -- and again, John Traficonte -- would 16 depend on the close of the record in the New Hampshire case.
37 So --
l l 18 MR. DIGNAN: Just so everybody doesn't i
10 misunderstand my position, I don't see any reason why we have 20 to close the record in New Hampshire before we can move 21 f mard in Massachusetts, especially if the result of this
- .o.2 motion is a defs. 1 of one of the issues.
JUDGE HARBOUR: Yes, I agree, 23 i
MR. DIGNAN: That makes no sense to ,me whatsoever.
l.
O 25 JUDGE SMITH: Well, the Board agrevs we do not l
Acme Reporting Company ao,. .>. ....
m
9077 categorically exclude beginning the Massachusetts plan while
~
l' 2 the record is still open on, aspects of the New Hampshire plan.
3 . JUDGE HARBOUR: They-don't have to be done serially.
O 4 MS. wE1SS. Thie le E11xn Weiee. 1 don'e keew
~
5 whether you want to go into this in detail or not. My concern i .. .
6 is that -- the technical one of whether the record is open or 7 closed, but just that we cannot be involved in doing two things g at once, and-if the record in the New Hampshire hearings is 9 still open but the case is inactive, I mean, during a period 10 when we're waiting, you know, then it's fair'to say that gg people ought to be expected to turn their attention to the 12 Massachusetts plans. But our concern in this is that our -
13 resources don't enable us to_do all these things at one time.
g4 But we do have a pleading before the Board, the 15 Coalition, SAPL, and Hampton, of September 28th, '07, which 16 makes a proposal --
17 JUDGE SMITH: 60 days.
18 MS. WEISS: That's right.
MR. FLYNN: This is Joseph Flynn. I'd like to 39 20 suggest that the outcome of the scheduling motion that's just 21 been made really doesn't affect what you do on the Massachusetts plan, because the contentions can't even be !
22 O 23 generated until a roview :f the plan is completed, and that ,
will be, I think, in March, and then next is the proposal for 24 ,
O 25 an exercise, and the exercise report won't come out --
1
- Acme Reporting Company 4,o,,. .....
, , . , , , _ _ _ _ _ - , , , - , _ . _ . _ _ . , . _ _ , - , . - ~ _ _ , . _ _ . . . . _ . - . . . , _ . .
9078 1 MR. TURK: No, I have to disagree with you. This 73
(_j- 2 is Sherwin Turk. There's no reason why contentions cannot 3
move forward while FEMA's doing a review.
f')
( ,/ 4 MR. DIGNAN: Absolutely.
5 MR. FLYNN: Okay.
6 MS. WEISS: Well, we disagree with that.
7 MR. DIGNAN: I know you do, but that's just the 8 Applicant's position. I don't see any need why we have to 9 have a FEMA review.
MS, WEISS: So far, I mean, but that's looking down 10 11 the road, I mean, at this point we have an enormous set of documents and a whole bunch of blanks, and a brand new set of 12 criteria which have never been applied before. And I think
(~ g3 g4 at a minimum we need 60 days to prepare contentions on those.
15 And if FEMA's really going to be finished in March, 16 then it's probably going to fit fine.
JUDGE SMITH: Well, all right. The only thing we 17 18 have before us right now is a rather summary motion to set a 3g schedule and rather summary anewers to it, don't do it, or 20 give us 60 days after the very, very end of the New Hampshire 21 hearing. Would the parties like to resubmit arguments on it, 1
! or -- I ust put it up to us to --
-s 22
/ \
l i /
23 MR. TRAFICONTE: Or with schedules.
l JUDGE SMITH: I beg your pardon?
l -
24
! /
1 - j MR. TRAFICONTE: This is John Traficonte. What 25 l Acme Reporting Company
,,o,,.>.....
4 , _ . . .- . . . _ , _ _ _ . . . . . .
/ a 9079 ;
. l' about'proposedLschedules?
=
2 ' JUDGE' SMITH:'= Proposed schedules, 3 MR.~TRAFICONTE: Why don't the-parties-attempt to q- 7
- a. 4 agree on a schedule?
5 MR. TURK: If'I can'suggest that we wait until-6 tomorrow's telephone conference call to talk schedule further.
7 MR. DIGNAN: I couldn't agree more, because --
8 ' JUDGE' SMITH: All right.
9 MR. DIGNAN: -- a lot of the problems may go away 10 once we know where we're going with that -- '
11 JUDGE SMITH: All right. We'll defer that, than.
12 Was there anything we can do this afternoon yet?
() 13 Nothing further? All right, then, we'll' adjourn, 14 then, until. tomorrow afternoon at 1:15. And thank you for 15 joining us.
j: 16 MR. TURK: Thank you.
17 :MR. TRAFICONTE: Thank you, Your Honor.
18 (Whereupon, at 3:09 p.m., the hearing in the 19 above-entitled matter was concluded, to be resumed the l
[ 20 following day, Thursday, January 28, 1988, at 1:15 p.m.)
21 i- --
23 l (:)
l 25 Acme Reporting Company
< sos, .e. ...
i 1 CERTIFICATE '
() 3 This is to certify that the attached proceedings before the l
4 United States Nuclear Regulatory Commission in the matter of: l 5 Name: Public Service Company- of New Hampshire, et al. l (Seabrook Station, Units 1 and 2) 6 7 Docket Number: 50-443-OL; 50-444-OL
~~
8 Place:
Washington, D.C.
9 Dates l January 27, 1988 10 were held as herein appears, and that this is the oricinal 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Commission taken stenographically by me and, 13 thereafter reduced to typewriting by me or under the direction 14 of the court reporting company, and that the granscript is a
(~) 15 true and accurate rec rd of eIfore olng prqceedings.
16 /S/
N ,/ M e
s 17 (Signature typed): Kent Andrews 18 Official Reporter 19 Heritage Reporting Corporation
- 20 21 22 23 24 25
() Heritage Reporting Corporation (202) 628-4888
.