ML20151Q732
| ML20151Q732 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/04/1988 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#388-6926 ASLBP, OL, NUDOCS 8808110270 | |
| Download: ML20151Q732 (157) | |
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UNITED STATES O
NUCLEAR REGULATORY COMMISSION
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In t.he Matter of :
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PUBLIC SERVICE COMPA11Y OF
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Docket tio s.
11EW HAMPSHIRE, et al,,
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50-44.1-OL
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50-444-OL (SEABROOK STATIOll, Ut1ITS 1 At1D 2) )
OFP-SITE EMERGE!1CY
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PLAtit1It1G P R E H E A R I t1 G C O t1 F E R E!1C E
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LOCATIOll:
Boston, Massachusetts PAGES: 14551 to 14705 DATE:
August 4, 1988 1
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HERITAGE REPORTING CORPORATION 6
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14551 1
UNITED STATES 11UCLEAR REGULATORY COMMISS70t1 f))
ATOMIC SAFETY A!1D LICEllSI!1G BOARD s
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In the Matter oft
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PUBLIC SERVICE COMPA11Y OF
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Docket tios.
5 NEW HAMPSHIRE, et al.,
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50-443-OL
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50-444-OL 6
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OFF-SITE EMERGEf1CY (SEABROOK STATIO!1, UllITS 1 At3D 2)
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PLAN!1111G 7
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PREHEARING cot 1FEREt1CE O
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- Thursday, 10 August 4, 1988 j
11 Room 12 John McCormick Building 1
12 Post Office Square Boston, Massachusetts 13 i
14 The above-entitled matter came on for hearing, (O_)
15 pursuant to notico, at 9:06 a.m.
16 BEFORE:
JUDGE IVAll W. SMITH, CilAIRMAll 17 Atomic Safety and Licensing Board U.S.
11uclear Regulatory Commission 10 Washington, D.C.
20555 19 JUDGE JERRY HARBOUR, MEMBER Atomic Safety and Licensing Board 20 U.S.
11uclear Regulatory Commission Washington, D.C.
20555 21 JUDGE GUSTAVE A.
LIllEl1BE RGE R,
JR.,
MEMBER 22 Atomic Safety and Licensing Board U.S.
tluclear Regulatory Commission 23 Washington, D.C.
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APPEARANCES:
(
2 For the Applicants
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3 THOMAS G.
DIGNAN, JR. ESQ.
KATHRYN A.
SELLECK, ESQ.
4 JAY B.
SMITH, ESQ.
Ropes & Gray 5
225 Franklin Street Boston, Massachusetts 02110 G
For the NRC Staff:
7 ELAINE I. CHAN, ESQ.
8 STEVE BERGQUIST, ESQ.
JOSEPH F.
SCINTO, ESQ.
9 Office of Ceneral Counsel U.S. Nuclear-Regulatory Commission 10 Washington, D.C.
20555 i
11 For the Federal Emergency Management Agency:
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12 H.
JOSEPH FLYNN, ESQ.
Federal Emergency Management Agency 13 500 C Street, S.W.
Washington, D.C.
20472 14 For the State of New 1lampshire:
O 15 GEOFFREY M. HUNTINGTON, ESQ.
16 State of New Harpshire 25 Capitol Street 17 Concord, New llampshire 03301 18 For the Commonwealth of Massachusetts:
19 JOHN TRAFICONTE, ASST. ATTY. GEN.
ALLAN R. FIERCE, ASST. ATTY. GEN.
20 Commonwealth of Massachusetts One Ashburton Place, 19th Floor 21 Boston, Massachusetts 02108 22 For the New England Coalition against Nuclear Pollution:
23 ELLYN R. WEISS, ESQ.
24 Harmon & Weiss 2001 S Street, N.W.
25 Washington, D.C.
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APPEARANCES:
(Continued)
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2 For the Seacoast Anti-Pollution League 3
ROBERT BACKUS, ESQ.
4 Backys, Meyer & Solomon 116 Lowell Street 5
Manchester, New llampshire 03105 6
JANE DOUGHTY, DIRECTOR 7
Seacoast Anti-Pollution League 5 Market Street 8
Portsmouth, New Hampshire 03801 9
For the Town of Amesbury:
10 MATTHEW T.
BROCK, ESQ.
Shaines & McCochern 11 25 Maplewood Avenue P.O.
Box 360 12 Portsmouth, New Mampshire 03801 13 For the City of Newburyport:
14 DARDARA SAINT ANDRD, ESQ.
JAMES REIDY, LAW ASST, O
t 15 Kopelman & Paige 77 Franklin Street 16 Doston, Massachusetts 02110 17 For the Town of Newbury:
10 R.
SCOTT HILL-WHILTON, ESQ.
Lagoulis, Clark, flill-Whilton & McGuire 19 79 State Street Newburyport, Massachusetts 01950 20 Por the Town of Salisbury:
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CilARLES GRAHAM, ESQ.
22 Murphy & Graham 33 Low Street 23 Newburyport, Massachusetts 01950 24 25 lieritage Reporting Corporation
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1 APPE ARAt1CES t (Concinued) 1 2
For the Town of West tiewbu ry :
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JUDITil MIZ11ER, ESV.
79 State Street 4
tiewburyport, Massachusetts 01950 i
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P R O,q E g D I NGS
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2 JUDGE SMITH:
Good morning.
Is there any 3
preliminary business?
4 Mr. Brock, can you proceed?
5 MR. BROCK:
Your Honor, I'm balancing some things 6
on my lap.
I'll do the best I can.
7 JUDGE SMITH:
If you would rather move over to the 8
witness stand, you may argue, but not under oath, if you 9
choose.
10 MR. BROCK:
Let me actually move over there, Your 11 Honor.
It may be a little easier.
12 (Pause..
13 MR. BROCK:
For the record, I'm Matt Brock for the 14 town of Amesbury.
And there is one contention that we would
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15 ask the Board to provide some clarification on.
That is 16 Town of Amesbury Contention Number 5.
17 And referring to Page 16 of the Board's Part 2 of 18 its Order, the Board is correct to interpret that 19 contention, and I'm quoting:
" Amesbury pos its the situation 20 where under the SPMC, the protective action recommendation 21 would be changed from evacuation to shelter-in order to 22 maximize dose. savings.
23 The Board proceeds, though, to reject the 24 contention, stating that Amesbury does not assert that those 25 posited circumstances are contemplated in the SPMC.
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In reviewing the contention as we read it, which
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2 we offered for the Board, first of all, on Page 17 of our 3
contentions, we cite the portion of the SPMC which states as 4
a specific goal of that plan that the plan will formulate a 5
PAR based upon actions which provide the greatest dose 6
savings.
7 We proceed also to cite additional sections which 8
state that once a PAR is determined, that there will be 9
ongoing review during the course of an emergency of taking 10 field measurements and determining whether in the language 1
~11 of the plan various constraints appear such as problems with 12 weather, traffic, et cetera, which may require in the 13 language of the plan that the PARS be refined.
i 14 So we believe we cited operative sections which k) 15 contemplate within the SPMC that this is going-to be an 16 ongoing process of review during an emergency -- and indeed 1
17 we think that is reasonable.
But what we allege in this 18 contention is that even if it is determined at some point 19 after an emergency is declared, and for example, evacuations 20 ordered, that for whatever reason, evacuation is no longer 21 the preferable PAR to maximize dose, there are no 22 procedures, personnel, any other implementing 23 characteristics in the plan to. shift one to another.
We 24 think that is a defect in the plan.
The plan invites that 25 inquiry, but offers no means to resolve the problem if it IIeritage Reporting Corporation
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arises.
2 We would also point.out that the Board, in 3
rejecting the contention, said that as a basis for rejecting 4
it, the plan does not contemplate those circumstances.
5.
It would be additionally our position that even if 6
the plan did not contemplate circumstances where a change in 7
PARS would be appropriate to maximize dose savings, that 8
under the case law of NRC, that is the goal of emergency 9
planning and we think that that should be taken into account 10 by the planners.
11 So we would ask for clarification / reconsideration 12 on that basis.
13 JUDGE SMITH:
Mr. Dignan.
14 MR. DIGNAN:
I confess, I don't understand the 15 argument.
I really don't.
I don't understand it.
I stick 16 to what I said. I saw no basis in this, regulatory basis 17 given for what they claim they want.
18 JUDGE SMITH:
Would you go over that point again 19 about the plan?
You said something to the effect that the 20 plan seems to invite something but doesn't provide for the 21 acceptance of whatever it is that it invites.
22 MR. BROCK:
Your Honor, I believe the plan 23 specifically calls for an ongoing review of dose 24 consequences. that based on that review --
25 JUDGE SMITH:
Dose consequences?
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MR. BROCK:
Dose projections.
O 2
JUDGE SMITH:
Dose projections.
3 MR. BROCK:
Ongoing review of dose projections 4
during emergency.
5 Based on that ongoing review, when environmental 6
data becomes available where it may not be initially, the 7
PARS will be, in the language of the plan, refined.
8 We read that as saying they're going to change 9
them if it is appro'priate to maximize dose savings.- 'Our 10 position is there is nothing-in the plan on how to implement 11 that change.
12 JUDGE SMITH:
And Mr. Dignan would argue that, nor 13 need there be.
14 MR. DIGNAN:
Yes.
I still don't understand'the 15 problem.
First of all, we're in the plan now, and we're 16 supposed to make it on the basis.
17 The argument I.made against it, which I thought 18 was sustained, was there was no basis for the contention 19 stated.
20 JUDGE SMITH:
The basis alludes to the plan.
21 MR. DIGNAN:
I thought I couldn't use the plan, 22 because if I could use the plan and get to the merits, the 23 short answer to this is, as the Board will recall from New 24 Hampshire, once you start an evacuation, you don't pull it 25 back to shelter.
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JUDGE SMITH:
Wait a minute.
h 2
MR. DIGNAN:
That.'s the problem.
3 JUDGE SMITH:
Tha whole reason for_being here is 4
to litigate asserted defects in the plan.
5 MR. DIGNAN:
Correct.
6 JUDGE SMITH:
And he asserts some defects in the' 7
plan'.
But you're not responding to his assertion.
8 MR. DIGNAN:
I'm responding to his assertion that 9
he states no regulatory basis as to why such a defect has to 10 be cured.
And he hasn't.
11 MR. Bh0CK:
The basis is that if you don't cure 12 that defect you are not assuring maximum dose savings which-13 is the stated goal in the plan and it also requires a: matter 14 of NRC case law.
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15 MR. DIGNAN:
I don't see that your basis gets you L6 there.
What in your basis says that I'm not goir.g to 17 maximize dose savings?
18 JUDGE SMITH:
Because there is no way to implement-19 the subsequent dose projections.
I mean, there is no way to 20 modify the protective action recommendations based upon 21 subsequent dose projections.
22 Therefore, you've gone halfway; you're not 23 availing yourself of the opportunity to achieve maximum dose 1
24 reductions.
That's the way I understand it.
25 MR. BROCK:
That is correct, Your Honor.
And Heritage Reporting Corporation
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essentially, to leave the plan.as is, there is a lot of A(_/-
2 language in here about this ongoing review of dose i
3 projections.
But in fact what will occur is, evacuations 4
ordered and then whether or not applicants are in possession 5
of information,.that that continues to be the best_ PAR.
6 People just keep evacuating.
7 MR. DIGNAN:
No, no.
The plan provides for i
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continuing these -- now I get the drift -- and expanding, if 9
necessary.
If you're in a shelter mode or if you're in a 1
10 mode where you've gone to a certain area, and subsequent 11 dose projections say well, look, the wind is blowing the l
12 other way now, or something of that nature, you move it 13 around and you start evacuating that area.
That's the way 14 the whole plan works.
15 But again, to answer the allegation, Your lionor, 16 you're putting me into arguing the plan.
And I still don't 17 see the regulatory basis.
18 There is none cited.
There is no provision of 19 NUREG 0654 cited.
20 JUDGE SMITH:
There's a fundamental regulatory 21 assumption established by the Commission and this Board in 22 reviewing the objectives of the emergency planning, that the i
23 objective is to achieve maximum dose savings.
24 And he's saying that you start out by taking 25 measures to do that, but you don't follow through.
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1 MR. DIGNAN:
No.
This is the point.
You take.
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2 measures and you order certain things on the basis of 3
measures that you see.
You've got a projected dose.
Here 4
we go.
When the merits -- if I'm in the merits maybe the
.5 answer is you should let the' contention in in which you try G
it.
I admit, they are forcing me into the merits now'.
7 But this is the problem with --
8 MR. BROCK:
Thank you, Mr. Dignan.
We'll accept 9
it.
10 MR. DIGNAN:
No.
The problem is that we're in a 11 procedure where they give a basis.
The basis is found not 12 to be good.
We expand the basis out, force it into the 13 merits, and then say to the Judge, hey, they're in the 14 merits, so you're going to have to try it.
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15 Now, I think the ruling was absolutely right.
16 They don't state a regulatory basis for what they're saying.
17 MR. BROCK:
Your Honor, the regulatory basis --
18 MR. DIGNAN:
And I don't see why a statement of i
19 counsel made in a clarification thing, which forces me then 20 to answer to what the plan says, should now give us a 1
21 litigable contention.
But if that be the procedure engaged l
22 in, I guess we've got a litigable contention.
23 MR. BROCK:
Your Honor, I have cited to our 24 contention, not to any clarification subsequently offered by 25 the town.
It specifically concludes with saying, whether or 1
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not that PAR presents the public with maximum achievable r)
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2 dose savings under the circumstances.
If the public is 3
going to evacuate, they'll continue to evacuate,-whether or 4
not that's the best alternative.
5 JUDGE SMITH:
Your contentions, although few in 6
number, were very, very wordy in their explanation.
And the 7
emphasis that we -- the inference that we drew-from your 8
basis seems to be, and I'm only going by not a real sharp 9
memory on our deliberations, only what we said -- seems to 10 be that you believe that the plan would require a provision 11 to switch from evacuation to shelter.
12 And you say if that is the way we read it, we 13 misread it.
That is an appropriate motion for 14 reconsideration.
If we made a mistake in. reading your k) 15 basis, it's appropriate for you to point it out-to us.
16 Do you think that we understand your position now?
17 MR. BROCK:
Yes, Your Honor, I believe you have 10 articulated it.
19 JUDGE SMITH:
Do you want to comment, Staff?
20 MS. CHAN:
Staff has no comment.
21 JUDGE SMITH:
All right.
Well, it is very wordy.
22 And rather than trying to resolve it now, we'll just get the 23 transcript of your argument, re-read the basis, see if we 24 did make a mistake.
25 MR. DROCK:
Thank you, Your Honor.
That's all I Heritago Reporting Corporation
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1 have.
Thank you.
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2 (Off the record conversation) 3 JUDGE SMITH:
City of Newburyport.
4 MS. SAINT ANDRE:
Thank.you, Your Honor. 'Your
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Honor, I have two very brief' clarifications, beginning'with 6
our Contention Number 2, which begins on Page~24 of your 7
decision on Part 2.
'O If you look at Page 25, Your Honor, the very last 9
sentence, where it says Contention 2 is accepted,--as limited 10 to the three TCP locations identified in the contention and 11 to those established by the SPMC, I believe, Your Honor that 12 that should read:
"Contention 2 is accepted as limited to I
13 the three TCP locations identified in Contention Number ~1 of 14 the City of Newburyport and to those established by the
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15 SPMC."
16 JUDGE SMITH:
I'm looking at what we thought were i
17 TCP locations identified in Contention 2.
18 MS. SAINT ANDRE:
Your Honor, in Contention Humber 19 1 we identified three additional TCPs and that was admitted 20 as a contention.
i 21 There were no additional TCPs identified in 1
22 Contention Humber 2.
23 JUDGE SMITH:
All right.
So you think the 24 contention was properly -- given our policy on accepting and 25 rejecting contentions -- you think that our policy should-Heritage Reporting Corporation
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have accepted a contention limited to the TCPs identified in
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2 Contention 1?
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3 MS. SAINT ANDRE:
No, Your lionor.
I believe that i
4 the intent was to limit it to those established already in l
5 the SPMC and to also accept it as to those three additional 6
TCPs which we asked for in our Contention Number 1.
7 JUDGE SMITil:
Right.
So Contention 2 would be 8
correctly accepted if we were to state, "as limited to the 9
three TCP locations identified in Contention 1."
10 MR. DIGilAN:
There are no TCPs.
That's the 11 problem.
There are no TCPs at those locations.
12 JUDGE SMITII:
There should be.
13 MR. DIGNAN:
That's right.
In Contention 1 you 14 admitted the point, their argument, or their contention that
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15 there should be TCPs, tnat there should be something more 16 there.
17 And Contention number 2, and the reason we 18 suggested a rewording is, we read it as alleging a number of 19 things, including personnel and equipment inadequacy for the 20 TCPs that were in the plan, but we objected to so much of it 21 as wanted to weave in more TCPs.
22 And I don't know if this can be just resolved in 23 the shakeout, because I think the Board has made clear in 24 the ruling on the two contentions, if I understand the Board 25 correctly, the Board has admitted the question of whether or l
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not there should be something more at these three --
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JUDGE SMITH:
Yes, that was our point --
3 (Simultaneous voices) 4 MR. DIGNAN:
-- but is not allowing a_ contention 5
to the effect that there should be more quote."unidentified 6
TCPs."
7 JUDGE SMITH:
That was our purpose.
8 MR. DIGNAN I think on that basis, counsel, we 9
can work out a solution between the two contentions, it 10 counse.1 agrees.
11 MS. SAINT ANDRE:
Your Honor, the ruling on. Number 12 1 was limited to the three TCPs which I identified and I'm 13 not asking that that be reconsidered.
14 JUDGE SMITH:
That you proposed.
15 MS. SAINT ANDRE:
That's correct.
16 JUDGE SMITH:
Between the two contentions, you 17 have what you want?
18 MS. SAINT ANDRE:
I want to make sure that I-have 19 what I need.
20 JUDGE SMITH:
Well, I agree.
You understand what 21 we were trying to accomplish.
Wo were trying to accomplish 22 it seems what you orally have stated.
23 MS. SAINT ANDRE:
Yes, Your Honor.
i 24 JUDGE SMITH:
And if it can't be worked out, with j
25 counsel, which is really the cleanest way to do it because i
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it has to be lot of redrafting anyuay.
Then you allude to
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2' this transcript and you. insist upon your point of view and 3
we will give it consideration.
4 MS. SAINT ANDRE:
Thank you, Your Honor.
5 Your Honor, I do have one other, which is our 6
Contention Number 8, which begins on ' age 29.
7 If I could direct your attention to.Page 30, the 8
paragraph that begins:
"An alternate interpretation of 9
Contention 8 is that the city wishes to participate in the
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10 Seabrook radiological emergency planning as it affects its 11 citizens."
12 I just want to make sure that'it's clear that that 13 was not the intent of Intention Number 8, that in fact it 14 was addressed to what we felt was an inadequacy in the' plan
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15 and it was not a request on our behalf to participate.
16 JUDGE SMITH:
Anything further?
17 MS. SAINT ANDRE:
No, Your Honor.
18 JUDGE SMITH:
The next one is Newbury.
19 MR. HILL-WHILTON:
Good morning, Your Honor.
I P
20 also have a couple of requests for clarification, regarding 21 the town of Newbury's first contention.
The Board admitted 22 that contention for litigation, except for three areas 23 dealing with first, human behavior; second amount of travel 24 speed reduction due to adverse weather and third, stalled 25 vehicles.
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According to the order, as I understand it, the
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2 reason for
- hose limitations was that those issues had been dealt with in the New Hampshire litigation.
4 My confusion is based, or my request for 5
clarification is based on my uncertainty of.what human, 6
behavior, the words "human behavior," encompasses.
7 Far. example, one of'the allegations with regard to 8
one of the bus routes, just to pick one, states that a bus 1
9 will not be able to travel the way it is going to travel i
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.under the route, for this reason.
11 The bus is supposed to cross a bridge heading
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12 North on Route 1A.
Route 1A is a major' Southbound 13 evacuation route.
l 14 The bus, we contend, would not be able to cross
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15 that bridge Northbound because of its total use by l
16 Southbound evacuees.
17 In my mind, that is not a human behavior issue.
18 And I just want to clarify, if indeed I am correct, and that 19 type of contention is something which we would be permitted 20 to litigate in this proceeding.
21 JUDGE HARBOUR:
I'm sorry.
I missed your reason 22 for the bus not being able to go across the bridge.
23 MR. HILL-WHILTON:
Route 1A is a major Southbound 24 evacuation route.
The bridge is narrow and is approximately 25 one quarter [ sic) in length.
It is our belief that both Heritage Reporting Corporation
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lanes of the bridge will be utilized by Southbound evacuees.
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JUDGE SMITH:
Now, these are people actually 3
. evacuating, not people returning to the evacuation zone.
4 MR. HILL-WHILTON:
. Correct.
5 JUDGE SMITH:.These.are literally leaving the EPZ?
6 MR. IIILL WHILTON:
That's correct.
Andlthe bus,.
'7 according to the evacuation bus route, is supposed'to head 8
North across that bridge.
4 9
Now, I don't view that as a human behavior issue 10 and just want to clarify if indeed I am correct.
11 JUDGE SMITH:
I would not identify what you have 12 just posited, no, not as a human behavior issue, as we have 13 previously regarded it.
14 MR. DIGNAN:
yes, it is.
15 JUDGE SMITH:
Ilow would that be?
16 MR. DIGNAN:
Because.he's assuming that because of 17 panic and human behavior it won't be two-way traffic but 18 evacuees will break out into a lane they're.not supposed to.
19 JUDGE SMITH:
I didn't hear that assumptien.
20 MR. DIGNAN:
I know you didn't.
But that's how 21 you get there.
22 MR. FIERCE:
It's not panic.
We want to make sure 23 we characterize things carefully here, Mr. Dignan, today.
24 Because that may well be --
25 (Simultaneous voices)
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MR. FIERCE:
-- rational behavior --
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2 (Simultaneous voices) 3 MR. DIGNAN:
Rational behavior, but-the point is 4
the plan calls for that street to be two way,-one in and one 5
out.
6 (Simultaneous voices) 7 MR. DIGNAN:
-- both lanes which is for the people 8
not to go where they're told which I believe is a-human 9
behavior point.
10 JUDGE SMITH:
I did not hear you say that.
I 11 heard you say, I thought I heard you say that the plan 12 anticipates that traffic will be on both lanes.
13 MR. HILL-WIIILTON :
No.
The plan does not provide 14 for it.
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15 JUDGE SMITH:
Reality does.
16 MR. HILL-WHILTON:
Reality does.
There's no 17 traffic control or route guides situated at that bridge.
18 JUDGE SMITH:
All right.
So you would be saying 1
19 that the plan is defective in that it does not have a 20 traffic control point or traffic guide at that point to 21 assure aberrant behavior does not exist?
22 MR. IIILL-WilILTON :
In part.
I feel that the 23 reason it would be unable for'the bus to travel North across 21 the bridge is because the drivers would be utilizing both 25 lanes, the Northbound and the Southbound.
And one of the lieritage Reporting Corporation
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reasons for that would be the lack of traffic guides there.
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2 JUDGE SMITH:
We have fairly well litigated the 3
issue as to whether drivers will disregard indicated routes, 4
disregard travel guides, disregard traffic laws and 5
indications and engage in what has been called "aberrant 6
behavior."
That seems to be what you are saying will happen 7
now.
O But your point is somewhat more refined, and that 9
is you are saying that the plan recognizes the need for some 10 traffic gu.tdes.
If it were a perfect world none would be 11 needed, and you would just have signs up.
And in that some 12 traffic guides are raquired, one is required here.
13 MR. HILL-WHILTON:
At a minimum.
Yes.
I, as the 14 Board probably knows, the town of Newbury did not t")
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15 participate in the New Hampshire litigation dealing with 16 evacuation times.
So I cannot of my personal knowledge, I 17 mean I just simply don't know what was and was not litigated 10 in that proceeding.
19 If this -- and I don't think this route was 20 identified -- and perhaps I'm wrong -- but I don't believe 21 that this route was identified as a major evacuation route.
22 If indeed it was, it would seem to me that it was 23 not litigated in the New Hampshire proceeding, and that the 24 Town of Newbury should not be foreclosed in this proceeding 25 to raise that issue, both from the standpoint of evacuees
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simply are going to utilize both lanes of that bridge, g)
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2 first; and second, that if it it intended, if the plan's 3
intent is for only one lane of that bridge to be used, then 4
it is deficient in that it does not have a traffic guide 5
present.
6 JUDGE SMITil:
Would you believe that the 7
contention would be acceptable if it asserts that the plan 8
is deficient in that it lacks a traffic guide at that point?
9 MR. DIGNAN:
You see, indeed, when I responded to 1
10 the contention, at one point I said I thought an acceptable 11 rewrite -- I think while I was talking during Basis A --
12 SPMC is deficient in that it does not call for a TCP at the 13 intersection of such and such and so and so.
14 I have no problem litigating the question of
()
15 whether we should have more traffic guides in this route to 16 assure that people get correct instruction.
That's all 17 right.
10 But I just want it clear that most of these 19 contentions about that particular road are on a theory that 20 what will happen is the traffic guides will be disregarded 21 and so forth and so on.
22 If the contention is rewritten to simply say there 23 aren't enough traffic guides to make the rules clear, no 24 problem.
25 JUDGE SMITil:
And in p&rticular at that point.
IIeritage Reporting Corporation I'T v
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MR. DIGNAN:
At that point, no problem.
[~) -
2 JUDGE SMITH:
Is that satisfactory to_you?
s-3 MR. HILL-WHILTON:
That is, but.that does raise 4
another question, which was my next request for 5
clarification.
6 As I understand -- and again,_not having 7
participated ---but as I understand'the New Hampshire 8
litigation, and the Board's ruling saying that matters 9
alleged in our contentions which were litigated in New 10 Hampanire cannot be relitigated here, which I understand and 11 I don't quarrel with, but in the New Hampshire litigation, 12 unless I am mistaken, the New Hampshire plan called for I 13 believe police tficials, presumably uniformed, who would 14 direct traffic.
(])
15 "his plan calls for, provides for no traffic 16 direction.
It provides for an uniformed private citizen who 17 members of the community, according to my understanding of 18 the plan's public education process, would know are private 19 volunteers, not to direct traffic but to encourage and 20 discourage travel in certain directions.
21 It seems to me that whether the public in New
)
22 Hampshire would disregard a uniformed police officer and 23 travel in a manner contrary to what that officer is saying 24 is vastly different than what the general public would do 25 when a member of the general public is encouraging or Ileritage Reporting Corporation (202) 628-4888
)
14573 1
discouraging travel in certain directions.
2 I think it is a big distinction between this plan 3
in that respect and what I understand the New Hampshire plan 4
to be.
5 So it does not seem to me that the New Hampshire 6
litigation really did address come of the issues that we 7
wished to raise here, that it dealt with a significantly-O different factual setting.
9 JUDGE SMI'iH:
What contention raises that point?
10 MR. HILL-WIIILTON :
Well, without -- I don't know 11 of it is specified that a non-uniformed volunteer as opposed j
12 to a uniformed police officer, would less likely be 13 regarded.
But it does say throughout the contention -- I 14 certainly can find an example, I believe there's one at Page 15 16 -- which simply states'that the route guides will in all 16 likelihood be disregarded.
17 JUDGE SMITH':
When we draft our rulings on the 10 contentions and we have later discussion, collegial 19 discussion among the Board, we are very much saturated with 20 the facts of the contention and everything else.
21 As we sit here right now,~we do not have that same 22 command of your pleadings.
There were a lot of contentions.
l 23 I would appreciate if you'd be more specific as to 24 where in your pleadings, where in our order you find a 25 defect.
!!oritage Reporting Corporation O,
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MR. IIILL-WilILTON :
Well, in the contention on Page
()
2 16 --
3 JUDGE SMITII:
I don't have your contentions before 4
me right now.
yle have the Applicant's version of your 5
contentions with us.
Just give us something to read here, 6
to know what you're talking about.
7 MR. IIILL-WIIILTON :
I will.
I can also, because I 8
would like the Board not only to know the Applicant's 9
characterization of my contention, but also what the 10 contention expressly says.
I would apprecia'e --
Il MR. DIGNAN:
No.
'I quoted them all.
I quoted 12 them verbatim is what IIis 11onor is referring to.
13 JUDGE SMITil:
Just for convenience, I have brought 14 Applicant's response because they.are organized.
()
15 MR. IIILL-WIIILTON :
Fine.
16 JUDGE SMITil:
And I save some paper that way.
17 MR. IIILL-WilILTON :
On the Board's Order, the page 18 dealing with this matter is found on Page 32 in the last 19 sentence of the third paragraph says there are three such 20 topics which would not be admitted to litigation:
human 21 behavior, amount of travel, speed reduction to accommodate 22 adverse weather and stalled vehicles.
23 This question again relates to my uncertainty as 24 to what the term "human behavior" encompasses, then as to 25 the contention, to one specific assertion in the contention.
lieritage Reporting Corporation
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JUDGE SMITH:
All right.
The Board, I recall
\\
2 now, looking at many, many bases, to go through some eight 3
pages single spaced in Applicant's thing, had aspects of 4
human behavior.
We contemplated going through them and 5
identifying them and taking them out, or letting you do it, 6
letting the parties do it, consistent with our previous 7
rulings.
We opted to let you do it.
8 MR. H ILL-WHILTOll:
I have no problem doing that, 9
Your Honcr.
10 JUDGE SMITH:
liow what you're asking for is, is 11 the difference between a citizen suggesting traffic go a 12 certain way and a uniformed policeman requiring traf fic go a 13 certain way, is that eliminated because of our ruling on 14 human behavior?
(d')
15 MR. H ILL-WH ILTOll :
Yes.
16 JUDGE SMITil:
I have no memory that such a thing 17 was litigated before.
18 MR. DIGil AN :
Could counsel point me to the 19 statement he is relying on that he's raised now?
Because 20 I've got the contention and basis in front of me, and at 21 least I cannot find anything raising a distinction between 22 uniformed and non-uniformed, or maybe I'm just not reading i
23 correctly.
24 MR. III LL-WilI LTOll:
lio, you're correct.
The 25 contention does not expressly raise that.
{~i}
IIeritage Reporting Corporation (202) 628-4888 s
14576 1
What the contention does expressly raise-1.s
()
2 Nwebury's contention that drivers will in all. likelihood 3
disregard the traffic guide who is encouraging or 4
discouraging travel in a certain-way.
5 MR. DIGNAN:
Where is that in the contention?
6 MR. HILL-WHILTON:
It's in a number of places.
7 MR. DIGNAN:
Please point me to the words'.-
0 Because I'm having a problem following it.
9 MR. HILL-WHILTON:
I'll find that for you.
It is 10 in a number of places dealing with a number of the bus 11 routes.
I'll see if I can find one quickly.
12 (Pause) 13 MR. HILL-WHILTON:
I'm looking at Page 194 of the 14 Applicant's response under C and D.
At one place in C it-()
15 says, after talking about traffic guide, it says:
Thus, the 16 guide will discourage drivers from turning right from Route j
17 1A --
1 10 MR. DIGNAM:
I said I don't object to admission of 19 contentions that there should be another guide somewhere.
~
20 Where do you say that there's a distinction i
21 between a police officer and our guide?
22 MR. DIGNAN:
As I mentioned, there is no 23 contention which expressly states there is a distinction 24 between a police officer and a private citizen.
What I'm 25 saying is the contention, and I apologize for not readily Heritage Reporting Corporation
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finding one, but I know-that'the contention states that
()
2 drivers will likely disregard the route guides.
3 JUDGE SMITH:
Why don't you find'it during the
~
4 mid-morning break and direct it to our attention?
Because I 5
can't find it, either.
6 MR. HILL-WifILTON:
I certainly will do that.
7 MR. DIGNAU:
Because I'll be honest with you.
As 8
I recall this contention, this is the one where you went 9
route by route, sign by sign --
10 JUDGE SMITH:
Yes.
j 11 MR. DIGNAN:
-- turn by turn and you said traffic 12 cones would be disregarded and stuff like that.
But-1 13 honestly don't remember any allegation in there conc ning a 14 distinction between uniformed and non-uniformed, or for that 1
()
15 matter, any assertion therein that a traffic guide.would be 16 disregarded, of any kind.
17 MR. TRAFICONTE:
Your Honor, I'd like to cut.this j
10 short.
I'm going to take up Mr. Dignan's lead of yesterday 19 and when I hear something that we might be able to benefit 20 from, I'm going to step in.
21 We had a contention that was admitted, an ETE 22 Contention Number 39, basis 0, which readst The ETEs are 23 based on the unrealistic assumption that the ORO traffic 24 guides, who are not professional traffic handlers, will be 4
25 able to move the traffic in Massachusetts just as fast as IIeritage Reporting Corporation i
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state / local professionals would.
That's.been admitted.
It i
O-2 seems to me that that, as an admitted issue, raises ~ point 3
blank the capacity.and ability of a non-professional, i.e.,
4 citizen, traffic control guide, to function as effectiveJy.
5 MR. DIGNAN:
I agree, Mr. Traficonte,.but it does 6
not raise, and we might as well have it out now, the issue 7
of whether because they are un-uniformed, they will be 8
disregarded, i
9 MR. TRAFICONTE:
Disregarded.
Ineffective, in i
10 other words.
j 11 MR. DIGNAN:
I understood that contention to be 12 that people who weren't trained police officers wouldn't 13 know how to direct traffic, that they themselves would not 14 function properly.
15 I did not understand that, nor do I think it can 16 be construed to be, a human behavior question, that because 17 this person is not a police officer and is rather some 18 utility employee, in proper garb indicating that he is a 19 traffic guide, will be disregarded.
4 20 MR. TRAFICONTE:
Maybe we should have that 21 clarified, because that was in part the intent.
22 I think the clear language of 0 says that they 23 will not function adequately.
And we are on a very subtle 24 line here, if I understand Mr. Dignan's distinction, between 25 their capacity themselves, because they're not professional, O
IIeritage Reporting Corporation (202) 628-4888 I
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14579 1
and how they would be seen and viewed by those that they are
(}
2 trying to -- the traffic that they're trying to direct.
3 Clearly, the langauge would cover both.
We say 4
because they're non-professionals, they won't be effective.
5 That means that they are untrained and that they will be 6
perceived as non-professionals and perhaps for that reason, 7
not obeyed.
O I certainly intended both, we intended both in 9
that sentence.
Let me put it this way.
Ne would have 10 intended to put in evidence running to the fact that they 11 would not be respected the way a professional, armed or 12 uniformed guida would be.
l 13 (Continued on the next page) 4 l
14
(~)
i s
16 l
10 19 20 21 22 23 24 25 lleritage Itoporting Corporation (202) 620-4000
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JUDGE SMITH:
What contention are you talking
(~xI
,i 2
about?
s 3
MR. TRAFICONTE:
Mass. AG 39, Part-O, basis O.
4 JUDGE SMITH:
Thirty-nine.
What page in our 5
ruling.
6 MR. TRAFICONTE:
Of your ruling?
7 JUDGE SMITH:
Yes.
8 MR. TRAFICONTE:
Sixty-three.
9 JUDGE SMITH:
What's the quarrel?
I think that 10 the contention anticipates a blend of inexperience in 11 getting the ebb and flow of traffic to comply with 12 directions and the perception of the traffic of the traffic 13 guide which I think probably exists no matter where you are.
14 It may even be a gender thing.
I think you are covered by F"s
(-)
15 your basis there.
16 MR. TRAFICONTE:
As I do, and I was trying to cut 17 short the discussion --
18 MR. DIGNAN:
Let's be sure what we are going to 19 do, because we are going to have to thrash this out.
20 Is the Board saying that there is open for 21 litigation in this thing under these contentions?
This is 1
22 the easy question.
The issue of whether or not the human 23 behavior question of whether people will disregard these 24 traffic guides because they are not uniformed police 25 officers, or isn't it?
i S
lieritage Reporting Corporation (J
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I don't believe that O does it-for them.
I know
(
2 it's been admitted, but it says the ETEs are based on the 3
unrealistic assumption that the ORO traffic guides, who 'are 4
not professional traffic handlers, will be able to' move; 5
that they will be able to move. traffic in Massachusetts.just 6
as fast as state and local professionals.
7 That, to me, ralses the issue of whether these 8
people who are volunteers working for us have the training 9
to direct traffic and know when to move them, how long to 10 let traffic run one way, that sort.of thing; their ability 11 to direct traffic.
12 It does not raise, in my judgment on a fair-13 reading, the issue of whether they will be disregarded 14 simply because they are garbed other than has a uniformed
(
15 police officer.
16 Now that's for the Board to decide,- but I think 17 the Board ought to decide whether that human behavior l'ssue 18 is going to be litigated.
i 19 JUDGE SMITil:
Tell us what has-been our practice.
I 20 Have we excluded all human behavior issues if they fall in 21 that category, or have we excluded human behavior issues 22 that have already been litigated?
23 MR. DIGNAN:
I think the fair assumption is the 24 latter, because you carefully articulated one yesterday that 25 you had deliberately let in because, in your judgment, that
+
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particular human behavior issue had not been litigated.
(}
2 JUDGE' SMITH:
And I think we do have here a 3
different' kind of approach to --
4 MR. DIGNAN:
Now understand my question.
I am not 5
arguing the principle -- that's gone -- that all human 6
behavior is out.
You have made clear that the Board's 7
rulings were intended to only let back in the human -- not 8
let back in ---to let in only the human behavior-issues that 9
have not been litigated.
That, I understand.
10 The point I am arguing is does this pleading raise 11 that issue, and I don't think a fair reading of it does.
1 12 do not quarrel with the principle that the Doord is picking 13 and choosing very deliberately here.
I quarrel with the 14 fact that's the assertion that basis O raises it.
I don't
()
15 think that's a fair reading of basis O.
16 Basis 0, fairly read, is a contention that the 17 police officers are not trained, whatever, capable of doing 18 what an officer ought to do.
It does not raise the question.
19 of whether they will e obeyed.
20 MR. TRAFICONTE:
Your Honor, if I could just be 21 heard one last time on that.
22 I really think that's reaching.
The clear 23 language is that the ETEs are based on the unrealistic i
24 assumption that the ORO traffic guides, who are not 25 professional traffic handler, will be able to move the Heritage Reporting Corporation (202) 628-4380
14583 1
traffic.
And.that' language -- would it be relevant evidence 1-2 in support of that contention that they are. unarmed, 3
ununiformed,'nonprofessionals?
4 Clearly it would be evidence.
That would be part 5
of the showing that because they are not 6
JUDGE' SMITH:
It seems to me we -- I-remember in 7
that long hearing up.in New' Hampshire the suggestion that'a 8
traffic guide without a gun isn't going to be ablefto 9
control traffic.
I just see them shooting aberrant drivers, 10 you know.
11 (Laughter.)
12 JUDGE SMITH:
I have that imagine in my mine.
I 13 just have a memory that we talked about this.
This has been 14 litigated.
15 But on the other hand, everything in the world has 16 been litigated in this proceeding, and I am no longer sure.
17 MR. TRAFICONTE:
I don't think Mr. Dignan is 18 disputing the fact that the issue has not been litigated.
19 JUDGE SMITH:
All right.
I don't recall.
l
?O MR. TRAFICONTE:
I think his --
l 21 MR. DIGNAN:
I am disputing that it has been 22 litigated, but I am not disputing it out loud here, because 23 before I make that assertion I want to go back and check the 24 record on it.
And the only argument I am capable of making i
25 now is a pleader's argument.
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MR. TRAFICONTE:
Right.
You don't think we said 2
it.
3 MR. DIGNAN:
I don't think 0 can be read to say 4:
what they now say it said.
5 MR. TRAFICONTE:
Right.
6 JUDGE SMITil:
Quickly,-any more to say on it?
We 7
are ready to. consult.
0
' Staff want to be heard?
9 MS. CHAN:
No, Your Honor.
10 MR. HILL-WHILTON:
Your. Honor, may I be heard real 11 briefly?
12 Your Honors?
13 (Board confer.)
14 JUDGE SMITH:
The Board, in a four-way split --
15 (Laughter.)
16 JUDGE SMITH:
-- agrees that we have not litigated 17 and we do not foreclose from litigation in this proceeding le the issue of whether the public will react t, a civil or a 19 nonuniformed, nonsworn traffic guide.
That is appropriate.
20 That goes to the contention he's trying to find, that he 21 can't find.
22 MR. IIILL-WIIILTON:
I have located one, Your lionor.
23 JUDGE SMITH:
Oh, you did?
24 And it goes to your version of basis O.
The board I
l 25 is unanimous as to that aspect.
IIeritage Reporting Corporation O
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We are split.
The two other members of the Board
(~'s 2
says your basis O does not raise that issue, and I say that
\\_/
3 a fair alternative reading would include it.
Therefore, 4
your basis does not raise the issue.
5 MR. TRAFICONTE:
Could we then hear from Mr. Scott 6
Hill-Whilton who may have found one that does fairly raise 7
it?
8 MR. IIILL-WHILTON :
I'm looking at the --
9 MR. DIGNAN:
How many more players have I got in 10 the game here?
11 (Laughter.)
12 MR. HILL-WHILTON:
The very bottom of the 13 Applicants' response, page 201, and then going into page 14 202, it states that, "In the improbable event," this is
(]
15 dealing again with one of the routes.
"In the improbable s_-
16 event that Parker Street permits freedom of movement by the 17 bus, evacuees who otherwise might observe the traffic 18 guides' activity to discourage entry on to Parker Street 19 will likely disregard the cones and guides' direction."
20 Now that, as I mentioned before, does not 21 expressly raise the distinction between volunteer versus 22 professional.
?'
MR. DIGNAN:
Well, let's put that in context.
24 MR. IIILL-WilILTON:
Let me finish, please, let me 25 finish.
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However, I think to say that it would only be
/^S
' _j 2
permissible to raise that issue if that precise distinction
(
3 was raised in the contention plainly seems to me to be a 4
requirement of pleading evidence at this stage.
5 MR. DIGNAN:
Your Honor, I wish the Board would 6
read it in complete context.
This is one of these long 7
bases that starts describing evacuation Route No. 4, up at 8
G, where it says G IV on page 201.
And it starts the bus 9
out and runs them down in the evacuees.
i 10 And then it say B, meaning it will turn left 11 easterly, turns from Green Street to Parker Street are 12 discouraged, pointing to a place in the plan.
"The bus 13 driver would thus be required to disregard traffic cones 14 located at the turn or be obstructed by the in-bound traffic ID (j
15 on Parker Street.
In the improbable event that Parker 16 Streets permits freedom of movement by the bus, evacuees who 17 otherwise might observe the traf fic guides ' activity to 18 discourage entry on to Parker Street will likely disregard 19 the cones and guides' direction."
20 How as I read that, the problem is they are saying 21 the physical makeup of that intersection is such that they 22 will disregard cones or guides or anybody else and do
- ! 3 something.
Nobody is arguing about that.
24 The problem is I don't think that can fairly be 25 read to say that the reason for disregarding is going to be 1
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because it's an uninformed guide and it's rather than a
()
2 police officer.
It's, rather, an assertion that the ss 3
physical makeup of that intersection, as I understand it, is 4
one which will cause the person to disregard whatever is put 5
there, even a police officer, to discourage them from that 6
turn.
And I don't think it's a fair reading to say it's 7'
raised this issue any more than basis O of MAG 69, whatever 8
it was.
9 MR. HILL-WHILTON:
Well, I respectfully have to 10 disagree with Mr. Dignan.
There are other Oreas of the 11 contention that deal with that issue, and I wculd like to 12 take advantage of the Board's offer to allow me to locate 13 them during the break so 1 can draw them to the Board's 14 attention after the break.
I')
15 JUDGE SMITH:
Here is what I think would be a fair V
16 test of whether you really mean that, this explanation of 17 what you intended by a contention, or talked about to 10 include, is address the point uherever it comes up.
19 I mean, there would not be a sudden abberation in 20 human behavior which at a particular traffic control point 21 would render civilian traffic guides ir, effective as compared 22 to the same civilian traffic guide at another traffic 23 control point, 24 How many times do you talk about traffic control 25 points in your many, many scenarios here?
lleritage Reporting Corporation
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MR. HILL-WilILTON :
I can't identify the precise Q
2 number'--
3 JUDGE SMITH: _ 'Okay.
4 MR. HILL-Wi!ILTON :
-- at this point.
5 JUDGE SMITH:
Well,;come back to it after the.
6 break.
7 MR. HILL-WHILTON:
Thank you.
I appreciate that.
8 JUDGE SMITH:
For now does that conclude your 9
contentions?
10 MR. HILL-WHILTON:
No, it does not.
I do have 11 some more.
12 JUDGE SMITH:
Okay.
13 MR. HILL-WIIILTON :
With regard to that same 14 contention, I had a request for a clarification regarding
()
15 that portion of the Board's order that would not permit-16 Newbury to litigate the other aspect of the New flampshire 17 litigacion which was travel reduction speed due to adverse l
10 weather.
19 A portion of Contention 1 did I think pretty 20 expressly challenge tae ETE, and I am not questioning or 4
21 contesting that we are not going to be permitted in this 22 proceeding to indeed relitigate something that happened 23 the.te.
We did feel it had to be raised in this pleading 24 nevertheless, for the same reasons espot 'ed by the Attorney 25 General yesterday.
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My reason for a request for clarification is to (3s' 2
make sure that the portions of the contention which do not
(
3 address reductions, which do not address reductions are not 4
going to be similarly precluded.
For example, the 5
contention in a couple of spots addresses or raises the 6
issue of not reduction of speed, but impassibility of 7
certain roads due to flooding, which are in flood plains and 6
are subject to periodic flooding.
9 The Board's order simply said that those issues 10 which relate to speed reduction would not be litigated.
We 11 are not talking about speed reduction.
We are talking about 12 an impassable roadway 13 JUDGE SMITH:
That is specific to the town, a 14 particular roadway that comes impassable.
(q
/
J 15 MR. HILL-WHILTON:
Yes.
16 JUDGE SMITH:
And in other towns they have offered 17 such contentions, and where they have specified them we have 18 accepted it.
In fact, in one instance we even gave them 19 leave to specify.
I would think that ruling ought to cover 20 you.
21 But if you have -- if you have intertwined a town-22 specific contention with a generic contention already 23 litigated, and they cannot be separated, then your town-24 specific contention would fail.
But if it's severable, that
?5 has been our ruling.
If you have identified a particular 1
73 Heritage Iteporting Corporation
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road that becomes impassible because of flooding, I think
/~'
2 V) the same ruling we applied to other towns would apply to 3
you.
4 MR. HILL-WHILTON:
In a similar vein --
5 JUDGE SMITil:
We didn't say otherwise either, 6
MR. IIILL-WH ILTON :
I know you didn't expressly --
7 JUDGE SMITil:
What we are telling you -- what we 8
are telling you is that you gave us too much for our plate, 9
and you see what our rulings now.
Now you have a job of 10 redoing it.
11 MR. HILL-WHILTON:
And I have no problem redoing 12 it.
I just want to make sure that I understand what the 13 Board's order is.
11 JUDGE SMITil:
Sure, this is a good opportunity.
(d N
15 MR. III LL-WH ILTON :
Another question I have which I 16, think perhaps is a more difficult question does deal with 17 the issue of snow removal.
The contention that we have I
18 raised is not that the -- well, in part we did raise that i
l 19 the evacuation time were unrealistically low because of snow 20 removal.
I understand that's out.
l 21 Ilowever, we have also raised, I think squarely, 22 the issue of impassability of roadways due to snow.
The 23 issue as we see it is not whether snowfall is going to causo l
24 a reduction in travel speed.
The issue as we see it is 25 whether the snow will be able to be removed at all during an lleritage Reporting Corporation j
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emergency evacuation, rendering those roadways impassable; k_n) 2 the same as with a flooding situation.
e 3
JUDGE SMITH:
There were, you recall, two parts to 4
our ruling on snow removal.
One part was there is an 5
assumption that snow will be removed in any event as it 6
normally is, consistent with the presumptions of the rule.
7 The other presumption -- the other conrideration 8
is that the bases, and everybody sremea to have a contention 9
like this, assumed that there would be an evacuation ordered 10 when the roads are impassable because of snowfall, and we 11 couldn't see any basis for that.
There was no basis that 12 pointed to it.
13 From what we know about emergency planning 14 generally from this case and other cases, we would assume
(-)s s_
15 that the decisionmaker would not order an evacuation when an 16 evacuation is known to be impossible.
17 MR. HILL-WHILTON:
The contention -- I think the 18 issue is not whether the evacuation would be ordered because 19 snowfall would render it impossible.
The issue, as I see 20 it, is evacuation could be commenced during a period of 21 snowfall.
Because of the evacuation snow removal becomes 22 impossible, rendering those roads impactable once the 23 evacuation has already commenced.
24 It really is very similar to the flooding issue.
25 We are saying --
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MR. DIGNAN:
I'll. concede right now that if you
()
2
' posit the case that an evacuation is ordered under a cleat 3
blue sky, and the sky opens up and the blizzard of '78 4
occurs, there is going to be one hell.of a problem, and 5
there is going to be one hell of a_ problem whether my people 6
are running the evacuation or the Commonwealth is or the 7
State of New Hampshire is.
8 And this is this thing of trying to go for the 9
maximum accident on a summer day followed with a snowfall.
10 I mean, you know, yes, I've admitted constantly you can 11 "what if" this case or any other to death.
I can "what if" 12 a plant out on the plains of the Dakotas with no one around 13 it to death.
I can give you the accident.
14 But, Judge, do we have to litigate this?
What the
()
15 contentions, as I understood it were, were exactly what Your 16 Honor said, two types of contentions.
And one we met with 17 the argument that the towns would remove snow as they 18 normally do, and the other one was met that there is no
)
19 basis for saying we would start throwing people out onto the 20 street in the middle of a snowstorm.
21 Now if what we have got to do now is litigate -- I 22 admit, I will stipulate with you we've got a problem if the 23 skies open in the middle of the evacuatien and fill up and 24 the blizzard of '78 occurs.
I'll stipulate it.
You can put j
25 that finding in, and I'll tell the judge to make it.
IIeritage Reporting Corporation
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JUDGE S!!ITH:
Let's take thia thing all the way
('T
(_)
2 through.
There is an evacuation ordered based upon whatever 3
factors the decisionmaker uses, an evacuation starts, comes 4
a big snowfall, evacuation cannot be completed for -- your 5
scenario goes on, for some reason snow removal can't get in 6
it.
Why is that?
Because cars are on the roads, and they 7
can't get in?
8 MR. HILL-WHILTOll:
That, and just the inadequate 9
ability of the town --
10 JUDGE SMITH:
Okay.
11 MR. HILL-WHILTOll:
-- under those circumstances to 12 be able to remove the snow.
13 JUDGE SMITil:
And this town is somehow different 14 than other towns?
tO
(,/
15 MR. IIILL-WilILTOll:
11 0, the town is no different 16 than the other towns.
17 JUDGE SMITil:
Okay.
So this town can't get in and 18 remove the snow, and therefore tne evacuation stops.
And 19 then what do we do?
Where do we go from there?
20 MR. HILL-WHILTOt1:
And there is nothing in the 21 plan to identify any type of contingency measure in the 22 event of the impassability of roads for that reason.
23 MR. DIG 11All:
And there is no contingency measure 24 for Your Honor if on the possibility that two airplanes are
)
25 going to crash into the middle of town while the evacuation lleritage Reporting Corporation j
I _si (202) 620-4808 j
15 JUDGE SMITil:
Which routes?
16 MR. IIILL-WilILTOll:
And that's what. I am saying, 17 and they are not.
18 JUDGE SMITil:
Which ones?
19 MR. IIILL-WilILTOll:
I don't know which ones.
j 20 MR. DIGt1AM:
Your lionor, if I --
21 JUDGE SMITil:
Well, you know the town.
You know 2?
how to get out of the town.
Ilow do you get out of the town?
23 Which egresses are not identified?
l 24 till. DIGt1Ati:
13ut more importa Your lionor --
i 25 JUDGE SMITil:
I.e t him answer the question.
lieritage Reporting Corporation (202) 628-4008
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MR. IIILL-WilILTO!1:
I think the issues is none of
[~3 2
them are identified.
That's what I am saying.
There is s/
3 no --
4 JUDGE SMITil How big is your town in square i
5 miles?
6 MR. IIILL-WIIILTOll:
I would have to really guess.
7 JUDGE SMITH:
How many people are there?
8 MR. IIILL-WIIILTOll:
I believe there are about 4,000 1
9 permanent residents, and I believe that in the summer --
l 10 JUDGE SMITilt So it's a town that is big enough to 11 accommodate 4,000 permanent residents.
)
12 MR. IIILL-WIIILTOll:
I believe so, but I am not 13 positi-nf that figure.
)
14 JUDGE SMITH:
Well, about that, five, three, 1
()
15 something like that.
16 MR. III LL-WilII '"Oll :
In that range.
The transient 17 population brings that up frequently to about 10 to 15,000.
10 JUDGE SMITil:
And so I assume that it's a town 19 that typically would be large enough to have 4,000 permanent 20 residents in it.
21 MR. IIILL-Wi!ILTOll Yes.
22 JUDGE S!!ITil:
And you are saying that part of the 23 town has egress routes marked, but another part of the town 24 does not.
25 MR. III LL-WilILTO!1:
Correct.
lieritage Reporting Corporation
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JUDGE SMITil:
And you are saying t-hat the plan is 5-)
2 defective in that respect.
3 MR. HILL-WilILTOll:
That's correct.
4 JUDGE SMITil:
All right, t'e will take your 5
argument under advisement.
6 MR. IIILL-WHILTOll:
With regard to Contention 9, 7
which was the town's contention dealing with sheltering.
H MS, CilAll:
Ycur lionor.
9 JUDGE SMITil:
Just a moment.
10 MS. CIIAll Your lionor, before leaving this 11 contention, I want to point out that Mr. lilll-Whilton 12 presumes -- he says that transients won't know the way out 13 of town because they are not familiar with the streets.
14 But the Staff would posit that that presumes that 15 the transients are going to read this plan to determine how 16 to leave town which is not a very logical presumption in our 17 mind.
10 JUDGE SMITH:
Okay.
19 MR. IIILL-WilILTOll:
Contention 9 was rejected by 20 the Board --
21 JllDGE S!!ITil:
See, now the pattern is not for you 22 to point out a mistake or clarification.
You are simply 23 rearguing the contentions so far, but continue.
I want you 24 to --
25 MR. !!ILL-WilILTOll:
Appreciate that.
Thank you, Os lieritage Reporting Corporation (202) 620-4000 i
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Your Honor.
)
2 JUDGE SMIT!!:
Yes.
3 MR. IIII.L-WilILTON :
The Board's decision with 4
regard to Contention 9, which dealt with sheltering, was to 5
reject the contention in part because of draftsmanship and 6
in part because it was covered, sheltering was covered in 7
the New Hampshire litigation.
O Again, I did not participate in that, but my 9
understanding is that the sheltering capacity of Newbury, l
10 and indeed Massachusetts, was not covered in the New 11 llampshire litigation.
I am not quarreling with that portion j
12 of the, or asking for clarification with regard to that 13 portion of the order that rejected the contention because of 14 the bases, but I am confused as ta whether it actually was O)
(_
15 litigated in New ilampshire.
16 JUDGE SMITil:
Did you make that point in your 17 reply?
l 10 MR. IIILL-Wi!ILTON :
I believe I did.
I believe I 19 said it was not litigated -- that it was not litigated in 20 New Hampshire.
21 JimGE SMITil:
I beg your pardon?
22 MR. IIILL-WilILTON I believe I did say in the 23 reply it was not litigated i.n Unw Ilampshire.
24 JUDGE SMITil:
And I think we probably read your 25 reply.
I'll have to get it out and see, fleritage Reporting Corporation g
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Now, are you -- are you simply rearguing your
()
is there a fundamental mistake in 2
point or have we made a 3
fact here?
4 MR. IIILL-WilILTON :
Well, I guess I'm not sure of 5
the distinction between fact and law.
6 JUDGE SMITil:
Okay.
But I'll try to answer --
7 JUDGE SMITil:
So you are just rearguing your 8
point.
9 MR. IIILL-WilILTON :
Well, I am trying to -- in 10 fairness, yes.
11 JUDGE SMITil:
All right.
12 MR. IIILL-WiiI LTON :
What I am pointing out to the 13 Board is that the Board's decision said that the contention 14 was rejected in part because of the way in which it was
()
15 drafted, and in part because it dealt with an icaue that was 16 1.itigated in New Itampshire.
And that is where my confusion 17 arose, because I did not believe that sheltering was 18 litigated in New llampshire, at least as far as Massachusetts 19 communities are concerned, and that's where my confusion 20 arose.
21 If it was, certainly I can't dispute that.
22 MR. DIGNAN:
Your Honor, I think the confusion is 23 what the Board actually said is that the contention was 24 being rejected in part having been covered by. prior 25 litigation.
lieritage Reporting Corporation
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Now the argument that was made to you by the Q( s 2
Applicant is the part the part that had been covered by 3
prior litigation was the fourth sentence of the basis, and 4
that was, "Moreover," and this is -- if you can look at my 5
reply on page 214-215 of my reply to contentions.
That last 6
sentence said, "Moreover, the SPMC provides no basis for 7
dealing with the realistic possibility that the owners of 0
buildings normally open to the public will not allow their 9
buildings to be used as shelters, or that potential shelters 10 are constructed of materials which provide a sufficient 11 level of protection."
12 And I said that the part that was -- in my reply I 13 said the part that was previously litigated was the human 14 behavior question of whether or not people would open their
()
15 shelters.
And that was squarely litigated up in the New 16 Hampshire proceeding.
17 My objection to the rest of it is it was without 10 regulatory basis.
There simply is not requirement for the 19 study that my brother seeks to have us make.
And I detailed 20 those things.
And I understood the Board's ruling in part 21 to deal with that problem that we had squarely litigated, I 22 submit, the question whether people would open the shelter 23 or not.
24 MR. IIILL-WilILTON:
If that was litigated in New 25 Hampshire, I have no quarrel with that aspect.
But the lleritage Reporting Corporation (202) 628-4888
14600 j
1 bases also says that the plan provides no evaluation of the
(~s) 2 sheltering capacity of Newbury or the number of public j
3 buildings available for such use.
4 It strikes me that if there is no way to determine 5
what sheltering capacity is, then the decision to shelter i
6 versus evacuate is an extremely difficult one.
1 7
MR. DIGNAN:
But there is no requirement that a H
plan have such capacity studies.
There is just no 9
regulatory requirement for that.
There was -- you will 10 recall there was one introduced in connection with certain 11 of the New Hampshire arees.
The State of New Hampshire has 12 not adopted it, and it has been our position, and no one has 13 pointed me to a regulation or a reg guide or anything else 14 that says you have got to have such a study.
We did it up n()
15 in New Hampshire for evidentiary and other reasons.
But 16 there is no regulation that requires it.
17 MR. HILL-WHILTON:
If I can respond.
The plan, as 10 I understand it, says there are two options -- shelter or 19 evacuate.
20 Now if there is no way of knowing at all whether 21 sheltering in fact would provide any protection whatsoever 22 to the public, that seems to me to be no better than saying 23 we're going to shelter, and here is how we are going to 24 shelter.
And if we can't do that, then we'll evacuate, but l
25 have absolutely no plan for how to evacuate.
IIeritage Reporting Corporation (202) 620-4888 4
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1 MR. DIGNAN:
Your Honor will recall that what wan j
(~}
2 litigated up in New Hampshire was the issue, and as the
\\_/
1 3
State of New Hampshire has done, and as the way these 1
4 decisions are made is that a conservative assumption is made 5
as to the shelter available.
You don't go around and do a 6
thing and assume everybody is going to be able to get into a 7
cement block building.
You assume frame houses is what's 8
going to be available to anyone, i
9 JUDGE SMITH:
Does the plan contain those 10 assumptions?
11 MR. DIGNAU:
Now I want my technical people before E2 12 I answer.
13 (Pause.)
14 MR. DIGNAN:
That's what I wanted to confirm.
i 15 It's the
.9 rational that was litigated up in New Hampshire
}
16 that appears in this one.
And the assumption is that a
.9 17 is what will be available.
10 JUDGE SMITH:
So if this is --
19 MR. DIGNAN:
And that use of conservative is with i
l i
20 apologies to the technical members of the Board who often 21 catch me in which way do you mean conservative.
But I think 22 it became quite clear in the record.
The kind of 1
23 conservative that only
.9 would be available when you made i
l 24 the decision, and we are assuming that everybody had better j
l 25 shelter.
l l
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14610 1
JUDGE LINENDERGER:
Correct me if I am wrong, sir, Gk-)
2 but I think I hear you saying what you would like to see in 3
the plan rather than justifying with respect to some basis 4
of support an inadequacy in the plan.
And there again we 5
have a problem with the way you have approached this.
6 MR. !!ILL-W!!ILTON :
Well, to be perfectly frank, I 7
would love to see that in the plan.
O JUDGE LINENDERGER:
Sure.
9 MR. IIILL-WHILTON :
But if there is no obligation 10 for the Applicant to do that, there is no obligation.
But 11 there is an obligation for che Applicant to have a range of 12 protective actions.
One of those protective actions is 13 sheltering.
14 But I don't know how this Board could determine O
kJ 15 that that one possible protective action is going to be 16 adequate.
We are saying it is not going to be adequate.
I 17 think that squarely raises the issues.
10 If it would help to redraft the contention, I 19 would be happy to.
20 JUDGE SMITil No.
What you are saying -- that's 21 not what you are saying.
You say that it provides no 22 evaluation, is that what tou said?
23 MR. III LL-WilI LTON :
Well, the contention also says, 24 Your Honor, that the SPMC fails to provide a reasonable j
25 assurance that adequate protective measures can and will be
(~
lleritage Reporting Corporation (202) 628-4888
14611 1
taken in the event of an emergency, and.that it does not
\\
2 provide reasonable assurance that sheltering is an adequate 3-protective measure for Seabrook, or provide adequate 4
criteria for the choice between sheltering, evacuation.or 5
other protective measures.
6 JUDGE SMITH:
'All right.
7 (Board confer.)
8 JUDGE SMITH:
We willutake it under advisement.
9 MR. HILL-WHILTON:
That's all I have, Your Honor.
10 JUDGE SMITH:
Thank you.
11 All right, a 10-minute break.
12 (Whereupon, a recess was taken.)
13 JUDGE SMITH:
The Town of West Newbury, Ms.
14 Mizner.
O(d/
15 MS. MIZNER:
Thank you, Your Honors.
16 I am requesting some clarificationzof the Board's 17 ruling on part of West Newbury Contention 4 which does 18 address the issue of snow removal, because it seems to me 19 that the Board's basis for rejecting the contention is 20 inconsistent with the meaning of the contention.
21 Now, the contention is' based on the assumption 22 that the town will use its best efforts, but that using 23 those best efforts West Newbury will simply not have 24 adequate resources, equipment or personnel to remove snow in 25 a timely fashien if evacuation of the entire town is l
l Heritage Reporting Corporation O.
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l l
I required during or immediately after a major snowstorm.
2 And by major snowstorm, I mean the normal major 3
anowst'orms that can be expected in. tliis area of New England 4
-every winter, and that routinely tie up traffic
-I am not 5
talking about the blizzard of 1978 where no amount of 6
equipment would have been able to clear the roads.
7 What. West Newbury is saying is that we do not 8
normally have any need to clear the entire. town at the.same 9
time, and that we do not simply have the equipment or the 10 resources to do that using whatever best efforts we can, 11 including the fact that West Newbury routinely employs 12 private contractors to assist in snow removal, and you 13 cannot assume that those people, who have no affiliation i
14 with the town, would come into an area that has been ordered Akl 15 evacuated.
16 Now, in addressing this contention, the Board 17 referred in its ruling to Mass AG And in that ruling, i.
18 the Board interpreted that contention to mean that'the Board i
19 must infer that an evacuation would interfere with normal 20 snow removal, and stated it could see no basis for assuming 21 that evacuation would be ordered if unremoved snow made~that i
22 protective action impractical.
23 And the Board also said it was not consistent, 24 that that contention was not consistent with the best 25 efforts presumption.
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Now, West-Newbury's contention is not that d
2 evacuation would interfere with normal snow removal, but 3
whether normal -- whether snow removal could be accomplished 4
in time to make evacuation feasible if evacuation is the 5
protective action deemed to be the necessary response to a 6
particular emergency.
7 I don't think it's fair to say that you simply 8
wouldn't order evacuation if the town couldn't rem.
9 snow, because it's like saying that you wouldn't oraer 10 evacuation if there weren't enough buses or enough emergency 11 vehicles to deal with the town population, because the p3an 12 has to address the issue of the sufficiency of resources to 13 deal with a normal situation.
And snowstorms in the winter 14 in New England is a norral situation.
15 And, further, the contention is predicated on the 16 town's using its best efforts, and the Board said in its 17 ruling on Mass. AG 30 that it wasn't consistent with those 10 best efforts.
19 So I would request some clarification of the 20 Board's position.
21 JUDGE SMITil:
I think you are simply rearguing the 22 snow removal issue.
There are several threads that follow 23 through all of them, and thut is that -- all right, we will 24 assume that the towns will do what they normally do.
The 25 fact that there is a radiological emergency will not prevent l
lieritage Reporting Corporation (202) 628-4880 0
14614 1
them from doir.g what they will normally. do.
That's an 2
assumption we have to have.
3 The next is that implicit in all of these 4
contentions, and'particularly yours, is that there has to be 5
some type of snow removal resources over and above normally 6
available to the towns because of the Seabrook plant.
We 7
find no regulatory basis for that.
8 MS. MIZNER:
Well, I believe that the regulatory 9
basis would be in part HUREG-0654 1(d), 1(c), that assumes 10 that local officials will have resources sufficient to 11 implement those portions of the utility offsite plan where 12 local response is necessary.
And snow removal is one of 13 those areas where local response is necessary under the plan 14 because there is no provision for New Hampshire ORO to 15 remove any snow.
And this assumption is simply improper in 16 this case because the local officials here do not have the 17 resources sufficient to implement that portion of the plan.
18 JUDGE SMITH:
Do you remove snow infthe winter?
19 MS. MIZNER:
Excuse me?
20 JUDGE SMITH:
Do you remove snow in the winter?
21 MS. MIZNER:
Yes, we do, but what I am saying is 22 that we do not -- we are not faced with the situation of 23 having to remove snow in all areas of the town at the same 24 time as would be required to allow e acuation along all 25 these different routes.
It takes sometimes days for West O
Heritago Reporting Corporation (202) 628-4888
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dewbury to finish its snow removal, because the' town simply
()
2 does not have the equipment to do~all of the roads that 3
would be necessary to be done here at once.
4 JUDGE SMITH:
Okay.
5 MS. MIZNER: ~ So I-think there is a regulatory 6
basis for it, and I would ask the' Board to reconsider.
7 JUDGE SMITH:
All of your arguments were taken 8
into account by the Board as we viewed all the scenarios 9
that the towns presented to us, even those which postulated 10 that the town would not exercise its best efforts.
We 11 assumed that they would.
12 You have made no argument that we have r.et already 13 considered.
14 MS. MIZNER:
Excuse me, I'm having trouble hearing
()
15 you.
16 JUDGE SMITH:
You have made no argument that we 17 have not already considered.
18 MS. MIZNER:
That's all'I have.
19 JUDGE SMITH:
Yes.
We are up to West Newbury.
20 Mr. Graham, we are ready for you.
21 MR. GRAllAM:
Yes, Your Honor, for Salisbury.
2 I have one, that's with respect to --
e l
23 JUDGE SMITH:
I wish you lawyers would move to the 24 town that you represent for the Board's convenience so that 25 we don't get confused.
1 Heritage Reporting Corporation O
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.,..., _. _,. _ _....,,. ~.....
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(Laughter.)
()
2 JUDGE SMITH:
So we don't get confused about when 3
you are addressing your client.
4 MR. GRAHAM:
I am concerned with Salisbury's 5
Contention No. 9 which appears on page 46 of your order.
6 And I wanted clarification as;to the Board's reasoning for
~
7 rejection.
In the order you recite that the Staf f stat ee 8
that the Salisbury offers no reason for presuming the Gillis 9
Bridge will be open during the evacuation usage of Fam e 1,
10 and no basis for presuming that opening the bridge will have 11 an adverse impact on evacuation and require compensatory 12 measures.
13 Quite frankly, at the time of drafting this it 14 appeared to me as a matter of fact such that the Board could
()
15 even take judicial notice that this is a drawbridge.
It's 16 one of two bridges east of Route 95 that crosses the Merimac 17 River that any boat, particularly sailboats in excess of a i
18 certain height require that it be open for their passage to 19 move back and forth in the river basin.
And that any 20 evacuation scenariv would envision some treatment and some 21 evacuation effort with respect to boaters, if not.in an 22 organized fashion, in an unorg mized fashion, which would 23 employ the opening mechanism of che drawbridge.
And-it 24 would only seem natural to me that that would have some kind 25 of traffic impact, particularly where Route 1 is a l
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southbound route for certain' portions of evacuating traffic 2
from Sall'sbury.
3 JUDGE LINENBERGER:
Mr. Graham, is it your 4
position that boaters _are not adequately-provided for by the 5
plan, or is it your position that the normal comings and 6
goings of boaters will result in a bridge opening, which in 7
turn will result in traffic not being adequately provided 1
for?
It's a little difficult for me to tell as you have --
9 MR. GRAHAM:
You have allowed a separately stated 10 contention with respect to boaters being adequately dealt 11 with in the river basin area.
12 This is addressed to the impact upon vehicular 13 traffic caused by normal and perhaps enhanced and increased 14 traffic of boats proceeding under the bridge.
I guess
()
15 fundamental is the consideration that as this is a navigeble 16 waterway.
It is commonly recognized that the boats enjoy 17 the first priority.
When a boat approaches the bridge, the 18 bridge is to open for the boat.
That being the normal state 19 of affairs, there is nothing addressed in the plan which 20 would suggest that arrangements would be made to change that 21 such that boating traffic wouldn't interfere with auto 22 traffic, and there is nothing compensatory in the plan with 23 respect to auto traffic being backed up substantially on 24 account of the drawbridge being opened for boats, be it 25 normal boat traffic or boat traffic increased due to boaters Heritage Reporting Corporation
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getting to one side of the basis or another to get off their 2
boats, in their cars, and out of the area.
3 iUDGE SMITH:
Mr. Dignan would have accepted a 4
reworded version of the plan -- I mean of the contention.
5 Ms.'Chan,.what do you have to say?
6 MS. CIIAN :
The Staff just assumed that the bridge 7
would open and'close with its normal frequency, and that if 8
traffic flow were interrupted, that it would not be a 9
permanent condition, and the contention suggests by its 10 wording says substantially impeded by closure of the Gillis 11 Bridge for passage of boats.
12 JUDGE SMITH:
Your position, if I could perhaps 13 argue it for you a little bit for you here, is to achieve 14 the best achjevable evacuation times there should be some 15 recognition of the increased road traffic and some provision 16 made to account for that.
17 MR. GRAHAM:
With respect to --
18 JUDGE SMITH:
That perhaps when a 17-foot sloop 19 comes up the river, they might make him wait a little bit 20 longer in a radiological emergency as you normally wou1d.
21 MR. GRAHAM:
Well, I won't use the 17-foot 22 example, but I guess what I'm trying to arrive at is there 23 is nothing in the plan with respect to how do you handle 24 this potential conflict between boating traffic which would 25 cause the bridge to be opened and therefore hold up auto Heritage Reporting Corporation (202) 628-4888
-l l
14619 1
traffic, and auto traffic.
Do you change priorities that 2
are normally recognized in the river basis that has a 4 knot 3
tide, or what action do you take.
And if you don't change 4
those priorities, what compensatory measures are in p.1. ace in 5
recognition of them.
6-
.For. instance, I believe it's Bus Route N >.
6, I'm 7
not sure, which turns from Bridge Road on to Ferry Road in 8
Salisbury immediately before the bridge.
'Even-a narmal 9
backup of traffic on the bridge on a summer day, ;oday, if 10 the bridge were opening now, I would be able_to offer 11 substantial evidence that traffic would be backed up such 12 that that bus route would be impassable, albeit temporarily.
13 In any increased boating traffic, perhaps due to a 14 radiological emergency, that bus route could become 15 impassable for considerably longer periods of time.
16 JUDGE SMITH:
All right.
17 (Board confer.)
18 MR. DIGNAN:
Your Honor, could I inquire 19 respectfully if counsel asserting the contention would 20 accept my rewording?
Because I am prepared to stick to-my 21 word, reword it, I have no problem with the contention, t
22 MR. GRAHAM:
I would have to ash Mr. Dignan --
1 l
23 MR. DIGNAN:
Page 225 of my document.
24 MR. GRAHAM:
I wonder if you could briefly read it 25 to me.
("3 Heritage Reporting Corporation V
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MR. DIGNAN:
Okay.
I would have -- I suggested a
()
2 rewording like this.
"SPMC has not adequately addressed the 3
problems that will occur during an-evacuation in the event 4
that Gillis Bridge is closed to traffic in order to 5
facilitate the passage of boats."
6 JUDGE SMITH:
We are going to give you license to 7
correct your language in the recommendation if you wish.
8 MR. DIGNAN:
Did I blow it?
I didn't use a past l
9 tense where I should have?
10 JUDGE SMITil:
Yes.
11 MR. DIGNAN:
Thank you.
.I always like to think.in 12 the future, Your Honor.
5 13 "SPMC has not adequately addressed," it should be 14 past tense, "the problems that will occur during an
()
15 evacuation in the event that Gillis Bridge is closed to 16 traffic in order to facilitate the passage of boats."
17 I can assure you there was no attempt to hook.
If 18 I have left something out that you wanted, I was trying to 19 state it as broadly and get out all the detail, because my 20 people would be prepared to'say, okay, here is Gillis 21 Bridge.
What are we going to do with Gillis Bridge, and I 22 am willing to litigate it that broadly.
We.will take care 23 of Gillis Bridge.
24 MR. GRAllAM:
The offer being made, I'm not going 25 to turn,it down.
I think that that would afford the town IIeritage Reporting Corporation
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the adequate range of evidentiary options that would bring-()
2 any issues regarding Gillis' Bridge.into play.
3 MR. DIGNAN:
Well, as I say,.I stand by the -- as 4
far as'the Applicant is concerned, I stand'by the assertion 5
I made.
If it is reworded, the Appl'icant has no objection.
6 Now the Staff still has objection, which.I guess 7
has to be resolved, but as long as it's reworded the 8
Applicant has no objection.
9 MS. CIIAN :
In the Staff's filing, Your Honors, 10 the --
11 JUDGE SMITil:
Ms. Chan.
Oh, I'm sorry, go ahead.
12 MS. CHAN:
In the Staff's filing, the Staff stated 13 that there was no basis for the presumption that the opening 14 of the bridge would have any adverse affect on the
()
L5 evacuation which will require compensatory measures.
16 In that respect the Staff pointed to.the ETEs, and 17 that unless the ETEs were affected, that the issue was not a 18 problem because --
19 JUDGE SMITil:
I think that the way we are viewing 20 it is that it is a factual allegation that the ETEs would be 21 affected which makes it suitable for litigation, and that we 22 believe that it is appropriate to examine whether an 23 adjustment to the normal bridge opening and closing could 24 achieve greater dose savings by improving the evacuation 25 times.
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MR. DIGNAN:
I have e great difficulty if we are
()
2 letting it in on the basis that it's affecting an ETE.
3 JUDGE SMITH:
Well, I don't understand how it 4
could get-in any other way.
5 MR. DIGNAN:- Well, if that be so, it shouldn't be 6
in.
I had taken the contention as one is are you people 7
going to just let Gillis Bridge operate, or are you going to 8
have somebody down there, or some plan of how to deal with 9
Gillis Bridge.
10 But as soon as you say that it could affect the 11 ETE, then I think Ms. Chan's argument is right on the money, 12 because unless you state a basis that the normal operation 13 of that bridge will affect the ETE, which,you remember is 14 the last person out of the area.
In other words, the'ETE-()
15 never deals with the question of particular individuals.
It 16 may well mean when the bridge operates certain people will 17 stay in a queue that would otherwise already be moving.
But 18 it doesn't affect the ETE until you state a basis --
19 JUDGE SMITH:
All right,.would you accept it if 20 we -- would you believe we are correct if we accept it that 21 there is a possibility by adjusting the normal opening 1and 22 closing of the bridge that significant dose savings could.be 23 realized?
24 MR. DIGNAN:
No, I would not accept it on that 25 basis.
To me, what's critical is that the -- a plan has two Heritage Reporting Corporation
(}
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14623 1
aspects, or the plan litigation.
One is the grand issue as 2
you stated it, which I don't think this affects.
3 My thought, and the reason I reworded it is I-4 think it's a legitimate contention to say, you people have a 5
plan here and you say it's going to work, but I have noticed 6
you haven't got -- you aren't telling us in here what you 7
are doing about Gillis Bridge, which makes sense to me.
8 Here is a drawbridge.
It opens up and a route 9
closes.
What thought?
How are you handling it?
10 JUDGE SMITH:
Why handle it at all if there is no 11 objective?
12 MR. DIGNAN:
The objective is is this something we 13 missed.
14 JUDGE SMITH:
All right.
15 MR. DIGNAN:
And should we have accounted for it.
16 JUDGE SMITH:
Toward when?
17 MR. DIGNAN:
Towards completing the evacuation, or 18 running the evacuation properly.
And I don't know --
19 JUDGE SMITH:
Properly is for what purpose.
20 MR. DIGNAN:
To achieve dose savings.
21 JUDGE SMITH:
All right.
22 MR. DIGNAN:
Okay, well done.
23 (Laughter.)
24 MR. DIGNAN:
But what I am getting back to, Your 25 Honor, is then I agree with Ms. Chan.
If we are going to Heritage Reporting Corporation (202) 628-4888 O
14624 1
.take it as a broad issue --
(
2 MR. TRAFICONTE:
Your Honor, can't he just respond 3
to the questions asked by the Board?
4 MR. DIGNAN:
No, I like to argue just f o x-fun.
5 (Laugher.)
6 MR. DIGNAN:
And I'm doing okay.
7 JUDGE SMITII:
We haven't enforced that.
8 MR. TRAFICONTE:
I realize that.
9 JUDGE SMITH:
But not reserve this of Board's-10 disclaimer, always reserving our right to.
11 MR. DIGNAN:
The point.is at that-point I jumped 12 to the Staff argument which I think at that point'it does 13 have -- should carry tne day.
Tuare is no statement of the 14 nature that you have now stated for it..And I don't think 15 it should be included on that basis.
I think it's not well 16 pleaded.
17 JUDGE SMITil:
The Board is going to accept-your 18 rewording of it.
19 MR. DIGNAN:
Thank you.
20 MR. GRAllAM:
TI)at's all I have.
21 JUDGE SMITil:
Does anybody else wish to be heard 22 now on the contentions?
23 MR. IIILL-WIIILTON :
Just for clarification --
24 JUDGE SMITil:
That's right, you were to come back 25 after the break.
IIeritage Reporting Corporation (202) 628-4888
l l
l 14625 1
MR. IIILL-WIIILTON :
I was able to identify a couple (3
A/
2 of areas in the time that was available.
I certainly don't 3
mean to say these are the only area in the contention that 4
deals with disregarding traffic guides.
But in looking at 5
the Applicants's response on page 194, the first paragraph, 6
it says, "The SPMC fails to address how traffic on Route 1A, 7
which does not heed the directions of the traffic guides, 8
and say continues south on Route 1A, will impact the 9
intersection of that street with Rolfes Lane."
This dealt 10 with one of the evacuation routes.
11 Paragraph D in that same page, it notes that --
12 JUDGE SMITil:
Well, you can just point out --
13 MR. IIILL-WIII LTON :
Very well.
14 JUDGE SMITII:
because we are not going to make (D
k' 15 a ruling today.
We are going to look at your arguments, the 16 transcript and your references.
l 17 MR. IIILL-WilILTON :
So that's another reference.
10 JUDGE SMITil:
Unless you believe your reference 19 has to be explained.
l 20 MR. IIILL-WilI LTON :
No, I don't.
21 JUDGE SMITil:
Okay.
l i
I 22 MR. IIILL-WIIILTON :
And then on the very bottom of 23 page 101 to the top of page 102.
Excuse me.
201 and 202.
24 JUI.-GE SMITII:
And give the --
25 MR. HILL-WiiILTON:
It's paragraph B.
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MR. DIGNAN:
That's the one referenced e'arlier',
-l 2
the same one?
3 MR. 1-IILL-WHILTON:
That is the same one I l
4 referenced earlier, l
.l 5
JUDGE SMITH:. Okay.
Paragraph what?
j 6
MR. IllL,L-WIIILTON :
B, beginning-at the very bottom 7
of page 201, the last two words.
8 JUDG3 SMITH:
201, last -- oh, all right.
It's 9
the same one, yes.
10
.All right, anything further?
11 MR. DIGNAN:
Your lionor, I would like to address
\\
12 the other one that has been given to you for the first' time, 13 and say I don't think a fair reading of that raises this 14 issue of uniform versus uniform.
It just says there may bc 15 traffic that disregards route guides, without reference to i
16 the reason they disregard it.
That's not the same thing as t
17 pleading this issue of whether the civilian versus the 18 police officer is going to make a difference.
19 MR. IIILL-WHILTON :
I just briefly would say that's 20 a question of evidence.
21 JUDGE SMITil:
Well, we are going to look at it and 22 see if this was a fair-inference to be drawn from your bases 23 to begin with, or rather, this is'in effect a revision on 24 it.
25 Ms. Chan.
i lieritage Iteporting Corporation
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MS. CHAN:
Your Honor, the Staff would like to.
2~
point out an internal inconsistency in_Mr. Scott Hill-3 Whilton's desire to litigate the contention that drivers 4
will disregard nonuniformed traffic guides and then in other
.5 parts of his proposed' contention he wants to ask for more 6
guides to direct traffic.
7 JUDGE SMITH:
He doesn't say that they are 8
uselors.
He says that they are inadequate.
9 MS. CHAN:
I believe that he said that --
l 1
10 (Simultaneous conversation.)
l 11 MS. CHAN:
He said that they are going to 12 disregard nonuniformed traffic guides.
At least the example 13 he just pointed out, likely to diaregard the cones and the l
14 traffic guides' direction.
If that's the basis of
(
15 litigating uniformed versus nonuniformed traffic guides, j
i 16 then I don't see why he wants more guides at these other 17 locations.
18 JUDGE SMITH:
Okay.
19 Mr. Flynn.
20 MR. FLYNN:
Thank you, Your Honor.
21 I do have some questions about the meaning of the 22 ruling that the Board has made.
My first question deals 23 with Massachusetts Attorney General Contention No. 14, and 24 your discussion of that appears on page 33 of Part I of your 25 order.
Heritage Reporting Corporation O
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Your discussion deals with bases E and F, and the 2
Staff's recommendation that the_ contention be-rejected, and
{}
3 those bases consolidated with Massachusetts Attorney General I
4 Contention 47.
5 Now, on page 34 you reject the Staff's contention 6
and accept the contention.
B u '- if.we go to page 75 where 7
you have dealt with Contention 47, you say there -- I'm 8
sorry, I referred earlier to bases E and F.
I really meant 9
to refer to C and D.
10 You say there that bases C and-D are consolidated i
11 with Massachusetts Contention 14, and that seems 12 inconsistent.
13 JUDGE SMITH:
What was the last reference -- the l
14 second --
(])
15 MR. FLYNU:
On page 75, the last sentence of the 16 disposition of MAG Contention 47.
t 17 (Board confer.)
18 JUDGE SMITH:
The remedy I guess is to proceed 19 with consolidations, and do not take as binding any Board 20 ruling on it.
I am having trouble grasping the 21 inconsistency and getting reoriented to the subject matter i
22 other than telephone communication.
23 MR. FLYNN:
I take it then that the effect of your
-l 24 order is simply an organizational one that --
25 JUDGE SMITH:
That's the way I see it.
Heritage Reporting Corporation
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14629 1-MR. FLYNN:
Okay, that answere my questions,.
O
\\_/
2 JUDGE SMITH:
Does that satisfy it?
3 MR. FLYNN:
Yes.
4 My next question deals with. Massachusetts' Attorney 5
General Contention 17, and the discussion of it.
6 JUDGE SMITH:
How many do you have?
7 MR. FLYNN:
Two more.
2 8
JUDGE SMITH:
Okay.
9 MR. FLYNN:
The discussion of it beginning on page 10 36.
It's not clear to me what the issue is.
The contention 11 talks about ORO activation of the EBS system being alien to 12 the purposes and design of the EBS.
And I am not sure what 13 the substance of the admitted contention is.
t 14 Does the issue go to the content of the EBS N
15 messages and the mechanism for approval of the content of 16 those messages, or does the -- is the issue the authorfity to 17 activate the syste97 18 Is it a legal impediment issue, or does it go to 19 the next level of detail, namely, the content of the 20 messages?
21 MR. TRAFICONTE:
I'm not sure I understand the 22 nature of this inquiry exactly.
23 JUDGE SMITH:
Are you quarreling with the Board's 24 ruling --
25 MR. TRAFICONTE:
Are you doing some informal J
lieritage Reporting Corporation O
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'l 14630 1
-discovery or ---
)
2 JUDGE SMITil:
-- or the contention itself? -Are 3
you asking the Board to -- my problem, Mr. Flynn,.is that to 4
get reoriented to Contention'17, which is two and a-half 5
single-spaced pages in Applicants' proposal, it's not 6
possible at this moment.
You are going to be very specific 7
as to what ruling the Board has made that you think is an 0
error.
9 Now as to the contention itself, you didn't file i
10 responses and replies.
11 MR. FLYNN:
I'm not suggesting any error, Your 12 Honor.
13 JUDGE SMITil To whom are you proposing the 14 question, propounding the question?
(
15 MR. FLYNN:
Well, I think you have suggested to me 16 that I should address my question to the proponent of the 17 contention, and I would be glad to do that outside of the
[
18 hearing.
19 JUDGE SMITH:
Because it's not going to be 20 possible for this Board member, at least, to get back on top-21 of this contention and all of its bases and sort them out in 22 time to deal with any additional rulings which I think you 23 are seeking.
24 MR. FLYNN:
I will accept that advice.
25 My next question may fall in the same category, IIeritago Reporting Corporation O
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14631 1
but I will ask it and see where we go with it.
()
2.
On page 98 Massachusetts Attorney General 3
Contention No. 75 deals with the issue of request'for 4
federal assistance.
And in the Board's discussion you 5
identify an issue, or in the middle of the page you say, "We 6
interpret the allegation to mean that It is not clear that 7
the respective federal agencies must under their federal 0
responsibilities respond under the FRERP."
9 And I am wondering if the issue that has been 10 admitted for litigation is what the statutes and regulations 11 say.the agencies must do, or if the issue is the willingness 12 of the agencies to tollow the requirements that are imposed 13 on them by the plan?
14 JUDGE SMITH:
I thought that our ruling made it
()
15 pretty clear.
We do accept a contention which brings into 16 question what the agencies are required under their 17 controlling federal responsibilities to do.
We reject a 1
l 18 contention that suggested they would not do what they are 19 required to do.
20 MR. PLYNN:
I think the area where 1 am confused 21 is we may find that the plan, the FRERP imposes voluntarily 22 assumed obligations on federal agencies; that-they have 23 committed themselves to doing things which strictly speaking 24 they don't have to do.
25 Now is that -- is their willingness to carry out Ileritage Reporting Corporation O
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14632 1
those voluntarily assumed obligations at issue?
2 JUDGE SMITH:
I don't know.
That was'not'before-O.
.3 me when I wrote that.
4 MR. FLYNN:
And if not --
5 JUDGE SMITH:
I did not see it asLbeing before us.
6 MR. FLYNN:
Then I think my question has'been 7
answered and'I don't-have any other questions.
8 JUDGE SMITH:
But Lf we misread it, that's one 9
thing, but I read it as being -- confusing as to whether 10 they would do what their charter says that they should do, 11 or what is it that their charter says that they should do.
12
- read it as an either/or, not extra.
But I don't know.
13 Does any of the participants in that debate:have 14 any comments on it?
15 MR. TRAFICONTE:
Well, I didn't see the -- only 16 until I read the order did I see the ambiguity.
17 MR. DIGNAN:
And now you think you might have j
18 another contention.
19 (Laughter.)
20 MR. TRAFICONTE:
I'm not as creative and 21 inventive.
. i 22 MR. DIGNAN:
They took Flynn's law, and we're not 23 asking them to do anything voluntarily.
- l 24 MR. TRAFICONTE:
Just for the record, the quoted a
25 portions of the Board's order on page 99, the portion in Ileritage Reporting Corporation (202) 628-4888 3
d 4
y
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- w-
7
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14533 1
quotes, "must respond to meet their-statutory 2
responsibilities" is a quote taken.from the contention, and ej}
v 3
in turn, the contention is a quote taken from the plan.
4 So I wasn't trying t.o be ambiguous.
I intended i
5 just to track the language of the plan, and to put in issue 6
what the plan said about those federal responsibilities and 7
capacities; nothing more and nothing -- and for the record, 8
I want to emphdJize this -- nothing less than what the plan 9
says.
10 JUDGE SMITH:
I see no language that's been 11 pointed out to us today that the contention raised or the 12 plan ~ raised any issue of what the federal agencies might do j
13 over and above their responsibilities.
14 MR. TRAFICONTE:
No.
15 JUDGE SMITH:
I just didn't see that there, and I 16 don't believe that that contention --
17 MR. TRAFICONTE:
Nor was it intended that they 18 would not fulfill their statutory obligation.
19 JUDGE SMITH:
All right, so then we have given the 20 proper interpretation to the contention, I believe.
21 MR. FLYNN:
That's helpful.
Thank you.
22 JUDGE SMITH:
Anybody else on the contentions?
23 MS, CHAU:
Your Honor, I believe it's the Staff's 24 turn to request a clarification now.
25 On a number of proposed contentions that were Heritage Reporting Corporation (202) 628-4888
14634-1 accepted pending further guidance from the Board at the 2
prehearing conference about resolving matters whers there
)
3 was no genuine issue of fact, and I believe all these were 4
surrounding the factual issue of whether or not the SPMC 5
relies on local government officials or local resources.
6 JUDGE SMITH:
Yes, thank you.
I forgot to put 7
that as a specific point on the agenda.
8 MC. CHAN:
And I have the three contentions that I 9
have identified where those issues were put on hold.
10 JUDGE SMITII:
Exactly.
That seems to be -- run a 11 thread through all the contentions, or many of the 12 contentions.
It seems to be something that can'be easily i
13 resolved, and I would expect the parties to resolve it.
I 14 mean, does it or doesn't it?
I think that we can probably 15 expect a stipulation from the parties on that.
16 That's a good point, Ms. Chan.
j 17 MS. CIIAN :
The contentions are identified 10 JUDGE SMITH:
Do you want to identify those 19 contentions?
20 MS. CIIAN :
Were the Town of Newbury No. 11 on page 21 38; Town of Salisbury No. 23 on page 53; and the Town of 22 West Newbury No 17 en 58.
I believe that's a comprehensive 23 list but when we go through --
24 MR. TRAFICONTE:
It is not a comprehensive list, 25 Your Honor.
And I think this is an important issue, and lioritage Reporting Corporation (202) 628-4808
l v
14635
-1.
would like to also add the ones that I know thatithe Mass AG Gb 2
filed.
'3 JUDGE SMITH:.
It is not --
-4 MR..TRAFICONTE:
If there is.a point to'that.
5 JUDGE SMITH:
-- then go-ahead.
6 MR. TRAFICONTE:
Well, I --
7 JUDGE SMITil:
I thought that there were more.
8 MR. TRAFICONTE :
There are more.
9 MS. CHAN:
These are ones from the towns.
10 MR. BROCK:
Your lionor, for Amesbury, I know we 11 have raised that issue as well, and I will look and see, but 12 I am not sure that I can right now identify each cor.tention 13 that raises that issue.
14 JUDGE SMITH:
I think that the point is 15 understood.
I 16 MR. DIGNAN:
The assertion of the Applicant is we 17 don't rely.
We accept nonparticipation, and that's the way 18 we understand we drafted the plan.
And all I can ask 19 everybody to do is read the plan and tell me, by letter or 20 something, where I am wrong.
.In other words, where in the 21 plan did we rely on some other official as opposed to doing j
22 it ourselves, because certainly the philosophy, the 23 draftsmanship and the technical people who did this 24 absolutely assure me, and I have drilled them on this so 25 many times they are getting sick of it, there is no lieritage Reporting Corporation
(
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14636 1-assumption that there will be help from local officials.
It A
\\;)
2 is assumed they will not participate.
3 We undertake to man the TCPs.
We undertake to do 4
everything, and that's -- and that's the way we ran the-5 exercise and so forth..And I get a feeling that what 6
happened is people are thinking there must be other things 7
of government going on, and we're expecting town officials 8
are -- and, yes, we have admitted that.
We expect the town 9
officials would plow roads in the case of a-snowstorm.
We 10 expect that police officers, if called because somebody is 11 killing somebody on a corner street,-will react to that and 12 stop the killings.
In other words, that the police 13 officers -- and that we expect the firemen will go about 14 their duties putting out fires.
Yes, that we do expect.
l 15 But I honestly ):now of no place in the plan where 16 we assume that a town or local official will-cooperate with 17 us in order to man it.
18 MR. TRAFICONTE:
This may not be the point to take i
19 this up, but if Mr. Dignan could harmonize --
20 MR. DIGNAN:
If we could describe, yeah, what we 1
21 are relying on.
Of course, we have got a mode in there that
]
j 22 says we'll just have our standby people help you out.
We do
)
23 not rely on --
24 MR. TRAFICONTE:
That has been, I think, our I
25 collective problem.
You have a mode in there that talks licritage Reporting Corporation (202) 620-4888
14637 1
about your plan being followed in Mode 1 with government,
()
2 local and state doing things.
3 MR. DIGNAN:
Right.
If the -- one of the modes of 1
i 4
operation is that we have got the equipment, we've got the 5
people and so forth.
And in its wisdom the Commonwealth G
says, look, what we want to do is send our own cops out 7
there but we need your help, we'll send the traffic guide, 8
you send the state police officer, and they will both be 9
there and our traffic guide can tell him what he ought to 10 do, if you elect it.
j l
11 But if you do not elect, we are prepared to man 4
12 that traffic post ourselves with a thoroughly trained
.i 13 traffic guide. That's the distinction I'm making.
l 14 And the contentions that we argued on this were j
()
15 ones that said it was necessary, and we had to rely on a 16 local official to do something, and the plan was drafted on 17 the assumption that local officials would do nothing more 18 than they normally do.
That is, firemen will go put out 19 fires just as they normally would; policemen will stop bank 20 robberies as they normally would; and people will plow snow I
]
21 as they normally would.
That's the theory.
22 And I am sure we can't resolve it today, but I 23 will ask each of you to just send me a letter, say, Dignan, 24 you're wrong.
On this part of the plan you are relying on 25 this selectman doing that, or you are relying on this police Heritage Reporting Corporation O
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14638 1
officar doing that.
Because, honestly,'I know of no place
()
2 in the plan whers we do that.
~
3 MR. BROCK:
Your lionor, if I can responds.to that.
4 Section 2.2.1 in the plan, and I believe this is a quote, 5
"This section provides an outline of the organizations in 6
the Commonwealth of Massachusetts capable of providing 7
responsive actions following a radiological emergency at 8
Seabrook Station --
9 MR. DIGNAN:
Exactly.
10 MR. BROCK:
May I finish, Mr. Dignan?
l 11 MR. DIGNAN:
Yes.
i i
12 MR. BROCK:
"As discussed previously, it is 13 assumed that these organizations will attempt to fullfil 14 their responsibilities to protect the public in an actual j
()
15 emergency."
16 Now I read that as saying more than simply they 17 are going to perform normal functions.
18 MR. DIGNAN:
Well, if you will look at that chart, 19 what we have done is paralleled our organization to-the 20 Commonwealth, and we eventually get to the presumption, 21 which is that everybody will do what they can to protect the 22 citizenry.
But the plan itself, the execution of the plan 23 itself is strictly by our people, and I -- you know, I can 24 understand people reading one section and saying, well, gee, 25 they must be doing something, but that is honestly the way lieritage Reporting Corporation
()
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14639 1
the people have drafted it.
I will be glad to take a Jetter 2
from somebody and we'll fix it.
We are not doing that.
3 Put the reason I made the argument I did is 4
because my people assure me -- I have been drilling them on 5
it.
I have gone through this stuff with them.
There is no 6
place where we assume, for instance, that Selectman X will 7
pick up a phone and do this.
8 JUDGE SMITH:
The parties will have the choice of 9
either conforming their contentions to reflect the reality 10 of the plan, or what would be a substantial burden, it seems 1
to me, for everybody involved to respond to diacovery 12 requests that would tend to flesh out the contentions.
1 E3 13 (Continued on next page.)
14 15 16 17 f
10 19 F
20 21 22 23 24 25 a..
IIeritage Iteporting Corporation (202) 620-4088
14640 1
JUDGE SMITH (Continuing):
I think that probably l
(~T 2
it is a very good idea on this particular point to come up
\\_)
3 with a stipulation, or conform your contentions to precisely 4
take into account what Mr. Dignan has said, if you believe 5
him.
6 MR. TRAFICONTE:
It's not a question of believing 7
him or disbelieving him, Your honor.
I take his comments to 8
be in the form of an admission.
9 But the problem I have is that the logic of the 10 plan in light of the delegation that is postulated in Mode 11 2.
12 I take Mr. Dignan at his word.
My concern is --
13 MR. DIGNAU:
We do rely on delegatio 14 MR. TRAFICONTE:
Clearly you do.
And in the event
(~sT 15 that delegation either in its pure form where total x
16 authority is given or some variant of that is held not to be 17 lawful, I would not at all be surprised to see the plan in 18 Mode 1 come back with a vengeance.
19 And Mode 1 is there.
It clearly indicates that 20 the local governments and the state government may go out 21 into the field with its resources and do various things.
22 JUDGE SMITil:
Okay.
Then the contentions should 23 be held --
24 MR. TRAFICOllTE :
In our opinion, the contentions 25 should not at this point be developed because of the clear i
lleritage Reporting Corporation
(~T (202) 628-4800 V
14641 1
statement that they are not relying on these resources, but
(~)
2 in the eventuality that Mode 2 is not lawful, and that the
\\)
3 delegation on which the plan is hinged can't take place, I 4
think the applicant is going to be coming back and saying 5
that the governments and the state have resources and that 6
they will be able to perform some functions and that they'll 7
use our plan as a set of emergency planning options.
O And that is what we understood to be Mode 1.
9 So I would say that this issue could come back and 10 the issue of our resources collectively could be very much 11 with us.
12 JUDGE SMITH:
Here is what is before the Board.
13 About six or so contentions say hey, the plan improperly 14 relies upon this and the Applicant says no it doesn't and no
/~N 15 does the Staff.
V 16 And over and over again, same thing.
We're 17 saying, do a better job.
The parties of this proceeding do 10 a better job, get together and formulate what the factual is 19 better than has been formulated now.
20 MR. TRAFICONTE:
Well, we are going --
21 JUDGE SMITH:
It's almost like yes it ic, no it 22 isn't.
' tis, ' taint, ' tis.
23 MR. TRAFICONTE:
Well, maybe --
24 JUDGE SMITH:
That's a Board directive.
I'm 25 saying that the contentions have not informed the Board as lloritage Ry rting Corporation n
(202) 628-4888 U
'14642 1
to what -- neither the contentions.nor the answers have
()
2 informed the Board as to what the issue before it is, and 3
that is one of the things that I believe needs refinement.
4 And I think it probably can be worked out, it 5
should be able to be worked out, not ao a part of but at the 6
time of the contention consolidation process.
7 MS. WEISS:
I think that is a good idea, Your 0
Honor.
For my part, I-just heard an interpretation of Mode-9 1 that was different than anything that I had understood 10 from reading the plan, and I do think we need to talk about 11 it.
12 JUDGE SMITH:
Well, will you put that on your 13 agenda, and I think it should be worked out.
14 Anything further, Ms. Chan?
( ) 15 MS. CHAN:
No, Your lionor.
16 JUDGE SMI1H:
Are we ready to go into the next 17 agenda item?
18 That is the housekeeping matters.
I don't think 19 we need to spend much time on it.
20 I wanted to bring to the parties' attention that 21 the service list they are using seems to hvae grown and I am 22 in the process of working with the Docket and Service Branch 23 of the NRC in bringing the Board's service list back to slim 24 healthiness.
It just grew and people asked to be put on it 25 and there are people on it now who really are not entitled lleritage Reporting Corporation f}
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to be on the direct service list.
l'/
\\
(-
2 I wanted to invite the parties to seek a first 3
accommodation and a clarification as to whom they do have to 4
serve.
5 Everyone seems to hvae a slightly different 6
service list.
You are cerving people like, well, bless her 7
heart, Representative Devear.
I mean, she doesn't need to 8
be served with all of these papers.
And I'm inviting you to 9
slim down your service list.
10 MR. DIGNAN:
Your Honor, I would like to put on 11 the record one strike we have made from our service list and 12 the reason why just so if there is any subsequent argument 13 about this later, not that I think anyone here would do it.
14 The Town of Brentwood we have been Porving k-) L 5 regularly.
Lately, everything we've served them with hac 16 been sent bach, after we've sent it out there, with the 17 statement to our messengers that they will accept nothing 18 nuclear.
19 I then wrote them a letter saying that unless and 20 unt '.1 they told me dif ferent I was taking them off our 21 cervice list. I continued to get back everything I sent them 22 with no further response to my letter.
23 JUDGE SMITH:
You can't even get --
)
24 MR. DIGNAN:
Get them to say I want off.
But so 25 they're off.
Which I assume is their goal.
But I want to j
i Heritage Reporting Corporation
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announce to the Board I've done this to protect the record i
2 later in case somebody shows up from Brentwood to say 3
they've been shortchanged.
4 JUDGE SMITH:
Do the parties _ perceive a-problem?
5 Is it burdensome to follow what you have been'following?
No 6
one has complained.
It's just that I saw that people were 7
doing more work really than I thought they have to.
8 MR. DIGNAN:
I would love to cut our service list 9
down.
We are serving a lot of people who are getting served 10 simply because they are Mayor of a town and so fortn and so 11 on although they have a Town Counc h now involved in the 12 case, and I'd prefer just to make one service to each party.
13 I have a feeling some of this stuff is piling up in town 14 halls unread.
And if we could have a general rule that we V 15 would go back to the usual rule that the only people you 16 serve are the attorneys-in the case, that would make my life 17 a lot easier.
18 JUDGE SMITH:
I think that is a little bit too i
19 severe.
I 20 MR. DIGNAN:
How about Gordon J.
Ilumphrey,
21 Senator.
Car I get him off my list?
22 JUDGE SMITH:
Kell, he has to be.
23 MR. DIGNAN:
I've got him twice, though.
I have 24 to serve him once in Concord and once in Washington.
25 JUDGE 3MITH:
I don't think you have to do that.
s lieritage Reporting Corporation (202) 628-4888 1
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We can either al-low you to propose a revised 2
service list or we can on those inactive-parties, we can 3
require, we can send them a mailing telling them we're doing 4
to drop them from the service ~ list unless they indicate that 5
they have a reason for it.
Or we can just arbitrarily drop 6
the inactive parties and announce a new service list.
7 I would say as a rule of thumb however.that where 8
you have counsel and an active representative that one of 9
them, I think the rules only require you to serve the 10 counsel.
But I think as a matter of courtesy, where you 11 have an active representative, that person should be served.
12 MR. DIGNAN:
Your Honor, how about people like 13 Sandra Gravutis, who is the Chairman of the Board of 14 Selectmen in Kensington, and the Town of Exeter Town O
\\_/
15 Manager.
I mean I assume they wanted the New Hampshire 16 stuff because it involved them, but now we're down in 17 Massachusetts, they aren't participating.
18 JUDGE SMITil:
Maybe the approach is that the Board 19 send them a letter saying you should respond if you wish to 20 be on the service list with justification for it.
21 But I don't see any point in serv 4.ng people who 22 have never come to the hearing, who have never proposed 23 findings, who have nevet done anything except whatever they 24 do with their mail.
25 MR. IlUNTINGTON :
In that vein, our office had a lieritage Reporting Corporation O
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conversation with the Attorney General's office of the State O
2-1 nei" thie week e"o t"er eeecitice11r eeueo thet it enie 3
issue came up that I request all the parties to make sure 4
that-they are not excluded from the' service list.
5 JUDGE SMITH:
Do we need both the consumer-6 product, the consumer advocate in Main?
7 MR. HU11TINGTON:
We only had one address for the G
Attorney General's office in Main on our service list.
1 9
didn't realize that maybe some --
10 MR. DIG 11AN :
Is Phil Aaron still the one to serve 11 in Maine?
12 MR. HUllTIl1GTOll:
Yes, he 10.
13 MR. DIG 11AN :
Because there was a rumor that he was 14 no Irnger the one.
That's who we have.
t O ts "a
"unr iiorori:
T r x"o-1eo9e-ae te ett11 tne 16 one.
Maybe that should be clarified as well.
17 JUDGE SMITH:
As the parties get together on your 18 negotiations, have an agreement with these active parties 19 that have been present here as to what their service 20 requirements are.
To the parties that are not active, the 21 Board will take a -- submit to the Board the people you 22 nominate to leave of f your service list and we will t ake a-23 look at it.
24 If you are confident that somebody should be left 25 off, you don't have to do that, If you are in doubt, submit j
i lieritage Reporting Corporation (202) 628-4888
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it to us.
But certainly the act.i.ve parties in this plan
/'T
(_/
2 must be served.
The Attorney General of Maine must be, and 3
Senator Humphrey must be.
4 Senator ilumphrey has a person in his Washington 5
office who is handling this matter for him and that's where 6
his service should be.
Unless the Senator has requested 7
both.
I don't know.
If he has, if the Senator has 8
requested both, I think we better give deference to him.
9 MR. DIGt1AN :
Yes, we will.
Your lionor, may I make 10 an inquiry?
Have any of the Town Council not been served by 11 Ropes & Gray, or does any Town Council wish a name change or 12 a street change or anything else to make life more 13 convenient?
I'd like to know it now.
14 JUDGE SMITil:
May I suggest that all this stuff
)
14683 1
Just make your motion at that time so that we can
(
2-take it in context.
3 MR. DIGNAN:
We're at-that-point, Your Honor, 4
we're now open ended on the question whether we're going to 5
litigate, when we're going to litigate.
6 JUDGE SMITH:
I don't know how to handle it. I 7
don't know how to_get a handle on the size.
8 MR. TRAFICONTE:
Why can't we go ahead and 9
schedule?
I think this was pretty clear from the motion i
10 that we filed.
11 We intend, or we hope, that the Board is going to 12 continue to address the issue of the schedule on the 13 contentions that we've just had admitted and that we just 14 discussed.
15 I know the discovery has opened and we would like 16 some notion of what the Board has in mind as a reasonable 17 time in light of the admitted -- we do have a set of 18 admitted contentions now.
We'd like to-know what the Board-19 has in mind on that so we can plan.
H 20
-MR.
DIGNAN:
How about closing discovery on the 21 admitted contention on October 4th?
That's 60 days from 22 today.
23 MR. FLYNN:
Your Honor, when we get to the subject 24 of consolidation of the contentions for hearing purposes, or 25 alternatively, when we talk about the discovery and the Heritage Reporting Corporation (202) 628-4888 i
'14684 1
scheduling of hearings on the cententions that are already j
([2 admitted, I.need to be heard.
Because we have some 3
constraints on our abil'ity to participate.in discovery until 4.
we finish writing the reports that we're deeply involved-in 5
right now.
6 JUDGE SMITH:
That's on the exercise.
7 MR. FLYNN:
No.
No,.I'm just alerting you to the.
O fact that we have some needs to finish up the-report on.the 9
plan, the review of Amendment 6 of the SPMC.
10 JUDGE SMITH:
Oh, I see.
Do you expect to be j
11 active in discovery?
Do you expect to be the subject of 12 discovery requests?
13 MR. FLYNN:
Yes.
14 MR. TRAFICONTE:
I can~ address that.
Just for the
()15 record, and I have neglected over the weeks to-say this and-16 I'm sorry I have -- we, the Intervenors, have never received 17 the various draft reviews that FEMA bas made of the SPMC.
10 We have never received that from FEMA.
And I' don't think 19 that is going to be contested.
20 So we will be getting for the first -- and I have 21 asked for it.
It's not that I tried to not -- I called Mr.-
22 Flynn on various occasions; I called Vic Nerses at the NRC 23 and said this would be a helpful document for us.
And for 24 whatever reason, probably the same reason that we're not 25 entitled to drafts of the review of the exercise, we have.
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not been given a copy.
So part of the discovery that we're going to need 2
3 on the SPMC is the FEMA material.
4 So there will definitely be some discovery on the 5
FEMA by the Mass. AG's office.
6 JUDGE SMITil:
Mr. Dignan, I appreciate your 7
frustration.
I did not notice your gesture of anger, but I-8 understand it.
I want you to1know that the Board has_done-9 everything it can do.
The pacing item here has been the 10 Board and not the parties.
We've done everything we can do 11 to move the case along.
We have taken extraordinary-steps 12 to increase our resources.
We're trying to do it now.
13 We're a little bit late on it.
We have not taken the-14 vacation that we should have been taking.
We have been 15 working as hard as we can.
We just can't do it any faster.
16 This is a problem of the system,'and not of the parties.
17 And we will continue to do that.
18 MR. DIGNAN:
Your lionor, there is no -- and if 19 there was a gesture of frustration, I abjectly apologize 20 that the Board took it as a.clerence to them or to anybody 21 in here.
22 But the frustration as I experience as a lawyer i
23 for a utility, and if I would be just permitted this one 24 time to just say it:
there's a plant up there, in our 25 judgment,. ready to run.
The New England region will hit a IIeritage Iteporting Corporation O
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new peak today.
That's another factor.
And it can't run
(
2 because we lawyers are going to get ready to litigate.
3 JUDGE SMITH:
I understand.
4 MR. DIGNAN:
And that,. when you are a private 5
attorney -- and I understand people who represent 6
Intervenors and government agencies have their problems --
7 but it is awfully tough to go back to a board of directors, 8
look them straight in the eye as their chief litigation 9
counsel, and say, 1 know you've built your plant, I know 10 everybody says it's built right and I know this.
But we 11 lawyers -- and I take the Bar as a whole, not you, not my 12 brothers here, and I include myself in the group -- are 13 going to let it sit there for three months while we get 14 ready to have a trial about it.
15 And somehow, businessmen don't understand that.
16 And that is my frustration.
It is certainly not a personal 17 frustration.
18 JUDGE SMITil:
And that is what you are going to 19 have to explain to them, as eloquently as you can.
20 MR. DIGNAN:
At my' usual hourly rate, as they say.
21 (Laughter) 22 MR. DIGNAN:
And that frustrates them, too.
23 JUDGE SMITH:
The way the hearing process works, 24 the Administrative Procedure Act and the right to a hearing 25 under the Atomic Energy Act, all this information has to be IIoritage Reporting Corporation (202) 628-4888 e
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somehow funneled, forced through our individual minds.
And I
2 that's not parallel -- all of us.
None of us are 3
eliminated.
The Executive Director for Operations has given 4
us unusual authority to seek additional resources.
There is 5
hardly any request that we can make for resources that will 6
be turned down if it doesn't flatly fly in the face of law.
7 We haven't been able to do it as fast as we want 8
because it just hasn't worked out.
We're working as hard as 9
we can.
We're putting all of the resources that can be used 10 to work in giving you a prompt and fair hearing.
11 The time restraints that you seem to think were 12 generous to the Intervenors, they don't agree, but you think 13 we are, as I say, an important component of that is that we 14 don't make people do work faster than the work can be used.
15 We will expect the Intervenors to take our 16 admonition to heart that the time we give them should not be 17 used to just expand and expand and expand.
18 Your submittal, Mr. Traficonte, was clearly a 19 product of quite a few people because the same point was 20 made over and over again, and it is not necessary to do 21 that.
I i
22 There was a very, very large contention, I mean 23 body of contentions.
It didn't have to be that~1arge.
I 24 think you could have got your points in better.
You had a 25 pretty good batting average. I think that you should be IIeritage Reporting Corporation O
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pleased with how you came out with them.
() 2 But I think you can do even better if you tako 3
into account the rulings of law that we have made,-the fact 4
that you can contaminate a perfectly good contention by 5
mingling it with one that isn't very good, and make your 6
point once and be assured that~we will read and.try to y
7 understand the point once made.
It doesn't really get-8 proved with repetition.
It deteriorates eith repetition, 9
We can't set a schedule for the exercise until we 10 look at it.
But the parties can count on the fact that we 11 are going to push it as fast as it can be pushed consistent' 12 with a fair hearing.
13 MR. DIGNAN:
Can we set a cutoff date on discovery 14 on the contentions that have just been admitted?
h 15 JUDGE SMITH:
Yes, I think that that is 16 appropriate now and I think 60. days is a pretty good period.
17 MR. FLYNN:
May I be heard on that, Your Honor?
18 JUDGE SMITH:
Go ahead.
19 MR. FLYNN:
As a said a.few moments ago, we have 20 some particular needs that have a bearing on that.
21 We are in the process of preparing an evaluation 22 of the SPMC.
23 Now, the Nuclear Regulatory Commission had asked 24 us for a consolidated finding that would include evaluation 25 of the New Hampshire plan and the. Maine plan.
But it has lieritage Reporting Corporation
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become very clear.to us that we can't do all of those things
(}
2 and cooperate fully with this Board in moving the schedule 3
along.
4 So by agreemc 7t with the Nuclear Regulatory 5
Commission, a review of -- a consolidated finding. dealing 6
with New Hampshire and Maine as well as Massachusetts will 7
not be done at this time.
That will wait.
8 The schedule for the completion of the review of 9
the SPMC is as follows:
10 By September 7th, a draft report will be sent to 11 the RAC.
There is now scheduled a meeting of the RAC to 12 discuss that plan on September 20th.
There is a RAC meeting 13 scheduled for September 20th.
14 Now, we have accelerated the process somewhat in
(}15 that it has been the practice in the past for the RAC to 16 convene, generate comments during the RAC meeting and then 17 for a report to be written on the basis of those comments.
18 The process has been turned around, and that is, 19 FEMA is generating a draft report which is subject to full 20 review by the RAC and any comments that are brought to light 21 will be folded in.
22 But in the absence of major revisions coming out 23 of the RAC meeting, the report will be made final very 24 shortly after that.
25 The schedule currently calls for the proposed Heritage Reporting Corporation O
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final report to be sent to Region 1 on October 7th, to be'
()
2 immediately transmitted to Headquarters and to go to the NRC 3
in final form on October 14th.
4 Now, the point of all this is that the principal 5
party involved in this is Richard Donovan, who essentially 6
ran the exercise for FEMA and is the-principal reviewer of 7
the plan.
8 He is committed to a schedule which has him 9
working six and seven days a. week, 14 hours1.62037e-4 days <br />0.00389 hours <br />2.314815e-5 weeks <br />5.327e-6 months <br /> a day.
The 10 schedule that I have outlined for you is as compressed as it 11 can possibly be.
12 Now, the effect of.it is that he and all the other 13 people involved in producing these documents will really not 14 be available to respond to discovery until after the 14th of
(])15 October.
And that obviously has an impact on the rest of 16 the litigation.
17 MR. DIGNAN:
So what I'm being told right_here is 18 discovery can't commence against FEMA until after the 14th 19 of October?
It could commence, I take it, but we wouldn't 20 get answers.
21 MR. FLYNN:
The kind of answers you'll get is, we 22 don't yet have a position.
23 And this may appear to be obstructing the process, 24 and I want to assert vigorously that that is absolutely not 25 our purpose.
In fact I submit that we are accelerating the Heritage Reporting Corporation (202) 628-4888 l
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process by completing the review of our position and doing
(}2 as thorough a job as we can because we all have very vividly 3
in cur memory what can happen when we assert a position that 4
has not been fully reviewed.
5 We will save time at the end of the hearing by 6
having everything pinned down before FEMA is called upon to 7
explain its position or.to produce documents and do the 8
normal things that it is called upon to do in discovery.
9 MR. TRAFICONTE:
Your Honor, if I could be heard 10 on our suggestion, because I don't think I got an 11 opportunity to make it.
-12 The Intervenors have collectively gathered and 13 talked over what we think a reasonable --
14 MR. DIGNAN:
Can I just cutin one thing?
Having
()15 heard that, then I will move my 60 days, to give the 90 16 days, and that will bring us until November 4, which means 17 they can do all kinds of discovery on us and they will file 18 their discovery with Mr. Flynn.
We will be able to start 19 reacting to it October 14th and that ought to be able to 20 take care of it.
21 JUDGE SMITH:
What does that come to?
22 MR. DIGNAN:
That would come to November 4.
Just j
23 for the fun of it, let's make it election day.
24 MR. TRAFICONTE:
In the hope-that that might --
25 (Simultaneous voices, laughter) lieritage Reporting Corporation
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MR. TRAFICONTE:
In the hope that might save us a
()
2 lot of work.
3 Our proposal was November 15 and that was after 4
discussion with the Intervenors.
i 5
The other thing that hasn't been put on the. table, 6
but the Board doesn't hvae to be reminded, we're judging the 7
reasonable period of time not just with regard to what Mr.
8 Dignan has to go back and tell his Board of Directors but 9
looking at the contentions that we have gotten admitted and I
10 would want to pursue discovery with respect to.
11 So we're looking at what we feel like we have to 12 do in discovery and we were going to propose November 15.
13 It doesn't sound to us like we're that far apart.
14 MR. DIGNAN:
November 15.
I'm agreeable.
()15 Discovery closes out.
16 Now, Ms. Weiss, that's as far as I'm going.
17 JUDGE SMITH:
It is very likely that we will also 18 be closing out discovery on the exercise at the same' time.
19 But we're not setting that.
But for planning purposes.
20 MR. TRAFICONTE:
Well, just so the schedule as 21 we've set it is clear, if I understood the Board's last 22 comment -- if the Board comes in with a decision on the 23 admissibility of contentions on the exercise in the latter 24 part of October, which as it now stands, is a possibility.
25 The only way the discovery closure on November 15 lieritage Reporting Corporation
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1 could
-- it would hvae to be a two-week discovery period on
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2 the exercise to have that happen.
3 JUDGE SMITH:
We'll see.
I say it's possible.
4 MR. TRAFICONTE:
Okay.
5 JUDGE SMITH:
I'm not setting
.t.
Just whatever i
6 benefit that observation has to you, so be it.
7 MR. DIGNAN:
Your Honor, that.date having been set 8
and with all the other unknowns, I guess at this point it is 9
the Applicant's preference at least that we probably stop 10 there, for the simple reason, I would like -- as I 11 understood the Board indicated, they would at least look 12 favorably upon, to keep my flexibility to make the decision 13 that date, as to whether what I wish to do is press the 14 schedule towards a combined hearing or things have worked
(
15 out that I feel it would be more rapid from my point ~of view 16 to try to do seriatum.
And that is a judgment I probably 17 will be able to make by the 15th, indeed before the 15th, 18 and I will advise the Board of it as soon as I do, but at 19 that point I guess I would just as soon stop trying to set 20 dates.
l 21 JUDGE SMITil:
I agree.
i 22 MR. DIGNAN:
Because I would like the flexibility 23 of making that decision --
24 JUDGE SMITH:
We know what the traditional 25 sequences have been, but I agree that that is probably Heritage Reporting Corporation O
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1 overplanning to go beyond that.
() 2 Anything further?
3 Do we need a date to report on lead Intervenors, 4
or will that be taken care of in the consolidation process.:
5 I ought to leave that up to you, Mr. Traficante.
6 MR. TRAFICONTE:
Well', as I understand the 7
process, after we have. consolidated and grouped -- after we l
8 have consolidated the contentions in light of the Board's 9
orders, grouped them with the benefit of the staff's input 10 according to issues, or issue areas, it would be at that 11 point that we could -- I take it the Intervenors could 12 identify lead Intervenors by grouping area.
13 JUDGE SMITH:
Yes.
My question was, when do you 4
14 report?
15 MR. TRAFICONTE:
If the' Board doesn't have a 16 problem, we are going to have some scheduling and vacation 17 problems in August.
18 JUDGE SMITH:
There's no big urgency on that.
I 19 don't see that that's an urgent matter.
20 MR. TRAFICONTE:
Shortly after Labor Day.
21 JUDGE SMITH:
All right.
22 MR. DIGNAN:
T have one other matter, Your Honor.
23 I am assuming that when discovery ends, let's take that 24 first, it will be in order -- I don't want a deadline set 25 for doing it or not doing it -- but it will be in order to Heritage Reporting Corporation O
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file summary disposition motions at that point on these (q
,f 2
contentions.
g 3
JUDGE SMITil Yes.
4 MR. DIGNAt:
And I am wondering would the Board be 5
willing to entertain -- and I'm not going to-play a tactical 6
game, and I'll give Mr. Traficonte the other side of this --
7 even before that date, would the Board be able to use 8
summary disposition motions directed at the purely legal 9
issues that we know are in this case?
10 And I want it clear, I won't try to out-tactic my 7
11 brother by filing it just as he's leaving for vacation.
12 I'll file it and if he wants.610 days to answer it that's all 13 right with me, whatever is reasonable.
14 or would the Board prefer to leave all summary.
()15 disposition matters until after the discovery period is-I 16 completed?
- 1. 7 JUDGE SMITil:
When were you talking about summary 18 disposition on legal matters?
19 MR. DIGNAN:
Well, I'm thinking of one legal i
20 matter in particular.
The basic thrust of the 4
21 Commonwealth's case.
Incidentally, I have drafted and will 22 file in due course the certification question.
I assume 23 that if the Board receives thic in due course that's fine.
24 They weren't expecting it today, and I apologize.
It just 25 couldn't be drafted overnight.
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But one of the fundamental issues in this case is
( )
2' this question of delegation of authority.
They-have urged 3
upon you that Massachusetts law would preclude our governor 4
from delegating the authority.
5 Wholly apart from what forum, wholly apart from 6
whether or not that is a legitimate contention any more 7
after.my reading of Shoreham, there is the fundamental 0
question of Massachusetts law.
Are they right?
I happen to 9
think they are wrong.
I think there is more than enough 10 power in the Governors to delegate both in_our State li Constitution and in our state statute.
12 So at some point I would file with you a summar, 13 disposition motion that says here's the law of the 14 Commonwealth, they're wrong.
And they would brief to you
()15 the opposite thing.
16 And the quertion I am really putting is would the 17 Board prefer that that motion be held to be filed as one of 18 whatever summary disposition motions come in in this 19 exercise or would the Board be in a pocition to entertain 20 such a motion prior to that time?
Becauso that one doesn't 21 depend on discovery or anything else.
22 JUDGE SMITH:
I wasn't sure that was the case.
23 MR. TRAPICONTE:
I don't disagree that it doesn't 24 involve, as long as we could come to some agreement on the 25 issue.
That is to say, we would have to describe a plan.
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1 MR. DIGNAN:
No, I would move for summary
() 2 disposition of the contention.
I would move for summary 3
disposition of contention whatever it is, 1,
2, 6.and 8 and 4
say the grounds is there is legal authority in the Governor 5
to make the delegation.
And presumably he will write a 6
brief as to uhy I am wrong.
-7 JUDGE SMITH:
I think under our regulation that 8
you can probably make a summary disposition motion whenever 9
you elect to.
10 MR. DIGNAN:
I understand that, Your Honor.
11 JUDGE SMITH:
And enter it; and will we entertain 12 it?
13 Well, I would say that we would try to entertain 14 it early.
It's important.
(
15 But Mr. Traficonte will be free to come back with 16 an antwer to the summary disposition as to reasons why ho 17 cannot yet answer, if that's the case.
18 MR. DIGNAN:
1 understand that, i
19 JUDGE SMITH:
And there you are.
20 MR. TRAFICONTE:
Can we just address that?
What 1 21 would say, just so the record is clear, we intend to go into 22 the state courts.
We are going to go affirmatively into the 23 state courts with this issue and seek a declaration of law, i
d 24 which our state procedure would permit.
I 25 Whenever Mr. Dignati would present this issue to 4
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you, and maybe I was mis-speaking yesterday, we obviously'
{}2 think this is the issue.
This issue has to be decided by 3
this Board.
There is no question.
4 The contention has been admitted by this Board and 5
the contention is going to hvae to be dealt with by this 6
Board.
7 We on the other hand have the burden of coming C
forward with evidence to support our position.
That 9
evidence, in our view, is the statement from the state 10 courts.
You don't want the Attorney General, because we 11 also by the way can speak the' law of Massachusetts, you 12 don't want us to do it.
f 13 MR. DIGNAN:
That's the point. I say that this 14 Board, if they haven't gotten their declaration -
file the
(}15 papers anytime they want, we all know where the courthouse 16 is.
IF they haven't gotten their declaration, it is going 17 to be for this Board to decide what the law of the 10 Commonwealth is.
I 19 And with all due deference, I just ask the Board 20 to read the cases that were cited to you because I've read 21 them, too, and they seem to be thoroughly consistent with 22 what I am saying.
23 By that I mean the cases that Mr. Traficonte 24 cited.
25 And this is no different, if you will, than a 4
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Federal Judge sitting in divers'ity or a Federal Judge
() 2 sitting with a' pendent claim'in a case before him under 3
Federal jurisdiction.
4 MR. TRAFICONTE:
Thet's right, Your Honor.
It may 5
not be any different.
And in fact, I have researched the 6
law of exactly that issue'and-when there is an issue of 7
uncertain state law arising under a state constitution, or a 8
state statute of public nature, it is reversible error for a 9
Federal court not to certify the issue, assuming there is a 10 certification procedure available.
In the alternative, it 11 would Se a declaratory judgment.
12 MR. DIGNAN:
And you rely on the authorities you 13 cited.
14 MR. TRAFICONTE:
Pardon me?
) 15 MR. DIGNAN:
And you rely on the authorities you 16 cited for that preposition?
17 MR. TRAFICONTE:
The authorities I cited in the 10 motion for agenda.
19 MR. DIGNAN:
Yes.
20 MR. TRAFICONTE:
Wright & Miller, Section 4247 I 21 believe.
22 MR. DIGNAN:
I will submit the question on those 23 authorities to the Judge.
I've read them.
24 JUDGE SMITH:
It's the Pullman Abstaining issue?
j 25 MR. TRAFICONTE:
It is a variant of one of the'15 l
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1 types of abstention.
But-the point-is7that-the key to
'2 grasping it as an abstention issue is that this is an 3
uncertain area of state law.
4 Mr. Dignan argued yesterday on that point that 5
this is not unlike other issues of stato law that would come 6
up that I would immediately agree that the Board would and 7
should address.
8 Those are not uncertain.
Those are issues of 9
state contract law to which you could go to a black book and 10 find out the answer.
11 In our case, we really have an issue -- I can't 12 cite you the statute or the case that says a private utility 13 cannot be delegated the authority.
If I could I don't think 14 you would have much of a problem.
()15 We have an issue here that is uncertain and it 16 rises, it arises in part under the Mass. Constitution. I 17 would certainly, certainly argue that Mr. Dignon is not 18 going to win the day, carry the day on whether a Federal 19 Court would address that issue.
20 The Supreme Court has reversed appellate courts 21 that have addressed that issue without seeking declaration 22 from the state courts.
23 The Board will do whatever the Board will do.
nut l
24 it is my opinion that if the Board -- I take it Mr. Dignan's l
25 view is well, if you just haven't got your answer back from i
i n
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the state court, we can't wait.
()
2 MR. DIGNAN:
Let's get Mr.~Dignan's view.
You 3
have cited the case to the Board of Commodity Features 4
Trading Commission v.
Schor, 106 Supreme Court 3245,-3258.
5 MR. TRAFICONTE:
On a different point, Mr. Dignan.
6 On a different point.
7 MR. DIGNAN:
Hold on.
And you state agency 8
determination of state law claims not narrowly linked to 9
agency's Federal claims jurisdiction.
Then you put quotes:
10 "may create greater constitutional difficulties."
11 So I pulled the case.
And what the case says is:
12 while wholesale importation of concepts of pendent or 13 ancillary jurisdiction into the agency context may create 14 greater constitutional difficulties, we decline to endorse
()15 an absolute prohibition on such jurisdiction out of fear 1
16 where some hypothetical slippery slope may disposit us.
17 Indeed, the CFTC's exercise of this type of 18 jurisdiction is not without precedent.
j i
19 And then the Court goes on, and this is why I just 20 commend the cases to the Board --
21 JUDGE SMITH:
We're not really prepared --
22 MR. DIGNAN:
And it lists all the times when 23 Federal agencies have decided these very kinds of questions.
24 And with the permission of the Supreme Court.
25 JUDGE SMITH:
I know that it.is almost Heritage Reporting Corporation
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1 Irresistible, in fact it is irresistible --
() 2 MR. TRAFICONTE:
It is irresistible.
That's my 3
problem.
It is irresistible.
I 4
JUDGE SMITH:
I will forbear from responding to 5
that.
Believe me, it-is not necessary.
We will approach 6
this issue with innocent minds.
7 (Laughter) 8 JUDGE SMITH:
And give it careful consideration.
9 We will start fresh. I would like for you to not rely upon 10 your reply or even your motion, but to bring it as a cogent,.
l 11 and at the proper time, I guess it would be the summary 12 disposition time?
13 MR. DIGNAN:
The reason I brought this particular 14 one up is this.
If you are forced to decide it, and I think
()15 one way or another you are going to be, I was really asking 16 the Board, bearing in mind the Board's admonition that one 17 thing has to be, and properly so, considered, is the Board 18 can only do so many things at one time.
Did the Board feel 19 it useful if this issue was raised before, when I would 20 normally contemplate filing summary disposition, which is 21 after discovery closes, or not; and secondly, we're probably 22 going to need a little different kind of procedure in this 23 sense.
As the Board is aware, you file your summary 24 disposition motion, a reply comes in and normally nothing 25 else is entertained.
I have a feeling I will be asking you j
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right up front that I will probably want to write a reply
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2 and not to cut Mr. Traficonte off any further.
3 The point being he is making a legal argument and 4
a contention.
I have to move on it and I haven't seen his 5
whole legal argument first.
And so I will want to write the 6
reply.
7 JUDGE SMITH:
I don't know how it could be 8
resolved, projecting it without a reply.
And of course we 9
have to have the Stafi's input and any other party's input.
10 MR. TRAFICONTE:
Just so we leave this, before we 11 leave this, so it's clear.
12 In my view, there are two issues.
The threshold 13 issue is, would the Board in the first instance decide the 14 issue of Massachusetts law?
O) 15
(_
I take Mr. Dignan's point to be that at some point 16 fairly ear.y on he may ask you to do that in the form of a 17 motion for summary disposition.
10 What I wold intend to do at that point, I already 19 would have started a state case seeking the declaration that 20 we think we will get.
21 I would put in a reply at that point -- two 22 things.
I would brief, substantively brief, unless the 23 Board wou]d want me to brief it earlier than that -- I would 24 brief at that point why the Board should simply not reach 25 the issue and wait until we get a determination from the IIeritage Reporting Corporation fs()
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State court.
() 2 I guess in the alternative I would also-stomit to 3
you the brief that we would hvae filed and the pleadings we 4
would have filed in the State court.
5 5
We will have two proceedings going on.
We'will be 6'
seeking a declaration of law from.the State Court.
Ile will 7
be seeking the identical declaration, the opposite 8
declaration of law from this Board, 9
So that issue is going to be there and it sounds 10 like it's going to be there on the short term rather than 11 the long term.
12 JUDGE SMITH:
You've excluded the possibility Mr.
13 Dignan's brief may have persuaded you.
You haven't even 14 seen it yet.
.15 MR. TRAFICONTE:
Mr. Dignan's brief on the 16 delegation of authority by the Governor to an out of state 17 corporation is going to persuade me that that is 18 constitutional?
I guess I have excluded that as a 19 possibility.
20 MR. DIGNAN:
You see, I guess the' reason I might 21 take a whirl at this, Your Honor, is the operative statute 22 in our state is the so-called Civil Defense Act, Section 4 23 of which has a piece of language that prompts me to maybe 24 file the motion, per a new Governor.
Ile may cooperate with i
25 the Federal Government, with other states, and private i
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3 Well, that sure sounds to me like our Governor can 4
cooperate with me.
5 JUDGE SMITH:
Mr. Dignan, when I said that we're 6
not prepared to-entertain arguments on it---
7 MR. DIGNAN:
That was an hors d' oeuvre.
8 JUDGE SMITH:
I'm listening to your argument also 9
with my eye on the clock wondering'if I'm going to miss my 10 airplane.
11 Anything further?
.I hvae plenty of time for the 12 airplane.
13 Anything further today?
i 14 (No response) 15 JUDGE SMITII:
All right.
We're adjourned.
Thank 16 you very much.
17 (Whereupon, at 1:00 p.m.,
the pre-hearing 18 conference was adjourned.)
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CERTIFICATE 3
This is to certify that the attached proceedings before the 4
United States Nuclear Regulatory Commission in the matter 5
of:
PUBLIC SERVICE CO. OF NEW HAMPSHIRE, et al 6
Name:
7 8
Docket Number:
50-443-OL, 50-444-OL 9
Place:
Boston, Mass.
10 Date:
0~4~00 11 were held as herein appears, and that this is the original 12 transcript thereof for the file of the United States Nuclear 13 Regulatory Commission taken stenographically by me and, 14 thereafter reduced to typewriting by me or under the
(}
15 direction of the court reporting company, and that the 16 transcript is a true and accurate record of the foregoing 17 proceedings.
18
/s/
A o
P 1 _ _h _
Jhalid C. Sekander 19 (Signature typed) :
20 Official Reporter 21 Heritage Reporting Corporation 22 23 24 25 Heritage Reporting Corporation
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