ML20195C428
| ML20195C428 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/16/1988 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#288-6564 ASLBP, OL, NUDOCS 8806220200 | |
| Download: ML20195C428 (341) | |
Text
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-----c ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )
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EVIDENTIARY HEARING -
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PUBLIC SERVICE COMPANY OF )
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NEW HAMPSHIRE, et al ) DOCKET: 50-443-OL 50-444-OL (SEABROOK STATION, UNITS 1 AND 2) ) OFFSITE EMERGENCY
) PLANNING
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l l Pages: 13951 through 14265 Place: Concord, New Hampshire Dat e : June 16, 1988
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13951 1 UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 2 T 50Ttl L} 3 In the Matter of: ) \ 4 ) l PUBLIC SERVICE COMPANY OF ) Docket Nos. l 5 NEW HAMPSHIRE, et al., ) 50-443-OL \
) 50-444-OL 6 ) OFF-SITE ENERGENCY (SEABROOK STATION, UNITS 1 AND 2) ) PLANNING 7 )
EVIDENTIARY HEARING 8 9 Thursday, 10 June 16, 1988 11 Room 302 Legislative Office Bullding 12 Concord, New Hampshire 13 The above-entitled matter came on for hearing, l l 14 pursuant to notice, at 9:00 a.m. 15 BEFORE: JUDGE IVAN W. SMITH, CHAIRMAN Atomic Safety and Licensing Board 16 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 17 . JUDGE JERRY HARBOUR, MEMBER l 18 Atomic Safety and Licensing Board l U.S. Nuclear Regulatory Commission l 19 Washington, D.C. 20555 20 JUDGE GUSTAVE A. LINENBERGn3 JR., NENBER Atomic Safety and Licensing Board 21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 O
13952 1 APPEARANCES: 2 For the Applic8nLL V 3 THOMAS G. DIGNAN, JR. ESO. GEORGE LEWALD, ESO. 4 KATHRYN h. SELLECK, ESQ. Ropes & Gray 5 225 Franklin Street Boston, Massachusetts 02110 6 For the NRC Staff: 7 JOSEPH F. SCINTO, ESQ. 8 Acting Assistant General Counsel, Hearing Divlsion EDWIN REIS, ESQ. 9 Deputy Assistant Chief Counsel U.S. Nuclear Regulatory Commission 10 Washington, D.C. 20555 11 For the Federal Emeraencv Manacement Aaency: 12 H. JOSEPH FLYNN, ESQ. GEORGE WATSON, ESQ. 13 Federal Emergency Management Agency 500 C Street, S . W. 14 Washington, D.C. 20472 L For the State of New Hampshire: O 16 GEOFFREY M. HUNTINGTON, ESQ. State of New Hampshire 17 25 Capitol Street Concord, New Hampshire 03301 18 For the Commonwealth of Massachusects: 19 CAROL SNEIDER, ASST. ATTY. GEN. 20 STEPHEN OLESKEY, ESQ. Commonwealth of Massachusetts 21 One Ashburton Place, 19th Floor Boston, Massachusetts 02108 22 For the New Enaland Coalition against Nuclear 23 Pollution: 24 ELLYN R. NEISS, ESQ. Harmon & Weiss 25 2001 S Street, N. W. Washington, D.C. 20009 Heritage Reporting Corporation (202) 628-4888 O
13953 1 APPEARANCES: (Continucd) 2 For the Seacoast Anti-Pollution Leaaue: 3 ROBERT BACKUS, ESO. Backus, Meyer & Solomon 4 116 Lowell Street Manchester, New Hampshire 03105 5 JANE DOUGHTY, DIRECTOR 6 Seacoast Anti-Pollution League 5 Market Street 7 Portsmouth, New Hampshire 03801 8 For the Town of Hamnton: 9 MATTHEW T. BROCK, RSO. Shainos & McEachern 10 25 Maplewood Avenue P.O. Box 360 11 Portsmouth, New Hampshire 03801 12 For the Town of Kensinaton: 13 SANDRA FOWLER MITCHELL, EMERGENCY PLANNING DIR. Town Hall 14 Kensington, New Hampshire 15 For the Towns of HamDton Falls and North () 16 Hampton and South Hamoton: ROBERT A. BACKUS, ESO .. 17 Backus, Meyer & Solomon 116 Lowell Street 18 Manchester, New Hampshire 03105 19 For the Town of Amesbuxy: 20 (No Appearancu ' 21 l 22 23 1 24 j 25 l Heritage Reporting Corporation \ (.:02) 628-4888 1 O l l l l
13954 1 INDEX 2 WITNESSES DIRECT CROSS REDIRECT RECROSS EXAM 3 PANEL: 4 WILLIAM CUNMING JOSEPH KELLER 5 by Mr. Flynn 13964 by Mr. Backus 13969 6 by Mr. Brock 14035 by Ms. Weiss 14098 7 by Mr.-Reis 14140 by Ms. Weiss 14141 8 by Ms. Sneider 14222 by Mr. Reis 14252 9 by Mr. Flynn 14253 10 11 12 13 14 15 O 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 O
13955 1 I_N_D_E_X (Continund) 2 EXHIBITS: IDENT. REC'D. REJ, DESCRIPTION /m N- 3 Massachusetts Attornev General: 4 No. 48 Prev. 14256 Nultipager FEMA-REP 3 5 Feb. 1981, Dynamic Evacuation Analyses 6 (abridged) 7 8 INSERTS: 9 Descriotion: Page: 10 Direct testimony of 13968 11 Joseph Keller and William Cumming 12 Mr. Backus cross- 14084 13 examination plan on Joseph Keller and 14 William Cumming 15 Massachusetts Attorney General 14251 () 16 cross-examination plan on Joseph Keller 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 O
13956 T42 1 PROCEEDINGS 2 JUDGE SMITH: Ready to proceed. (~)) 3 Is there any preliminary business? 4 NR. FLYNN: Yes, Your Honor. There are two matters. 5 At the end of the day there was a discussion about 6 reading into the record, or having bound into the record an } 7 amended version of the pending contention NECNP Content 8 RERP-8. I have' discussed the matter with hW. Cumming, and we 9 have concluded that it is not necessary to do that. , l 10 The other matter is -- l 11 JUDGE SMITH: Okay, but there is still standing in j l 12 his testimony about that effort and it passed over all three of l 13 us. We didn't understand. 14 Is there something we should be concerned about ? () 15 NR. FLYNN: No, Your Honor. The discusslor that I 16 had with hW. Cumming was to the point that he detected some 17 subtle difference in the wording of the original contention and 18 the rewording of it as it had been admitted, and we went over 19 that, and the subtle difference he thcught he detected turned 20 out not to be there. 21 JUDGE SMITH: Okay. 22 hR. FLYNN: Now, the other matter that was left 23 pending at the end of the day was the extent to which Mr. 24 Keller relied upon NUREG-1210 in the formulation of his 25 opinions. And I have discussed it with, and Your Honor's Heritage Reporting Corporation (202) 628-4888
13957 1 supposition was correct. And that is that he would have 2 arrived at those came conclusions independently. Mr. Keller 3 has referred to NUREA-1210 in his testimony, -largely because 4 for the point that he cited it for e that was the one place 5 where there was a written record. 6 JUDGE SMITH: Okay. 7 RR. SCINTO: Mr. Chairman. 8 JTJDGE SMITH: Mr. Sainto. 9 NR. SCINTO: I think you then asked the parties to 10 see if they can come to some arrangement about the Staff's l 11 offer of Mr. McKenna's testimony. 12 JUDGE SMITH: Well, I think it's ripe. 13 NR. SCINTO: We have not had an opportunity to do 1 14 that. I think maybe I can shortcut some of that. l l () 15 It's the Staff's position fairly simple and 16 straightforwarc. In this proceeding, or in any proceeding when l 17 any party refers to an NRC staff document in support of, in 18 guidance for, reliance on for any aspect before an NRC 19 licensing board, and the NRC Staff believes that there has been l 20 a misapplication of that NRC Staff document, we feel that we l l 21 have an obligation to an NRC licensing board to bring that i l 22 information to their attention and to offer such information as 23 we correct the record. 24 We thina that Mr. McKenna's testimony does in fact 25 have sufficient probative value in this proceeding to warrant Heritage Peporting Corporation s (202) 628-4888
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13958 1 admission under 2.743. (v 2 I understand the Board may visw the probative value
'3 to be somewhat less than what we think. I will nevertheless 4 make the request so it can be denied and I can have it marked 5 as a proffer.
6 JUDGE SMITH: Well, I don't know, Mr. Scinto, if you 7 believe that -- the reason we were going toward not having the 8 McKenna testimony come in was as stated last night, the purpose 9 seemed to be to correct the misicpression in the view of the 10 NRC Staff of Intervenors' witnesses, and we felt that if it 11 could be understood that any reliance upon that report is not 12 available for purposed findings, then your need would 13 disappear. 14 MR. SCINTO: That's correct, Your Honor. (% 15 JUDGE SMITH: If you feel, nevertheless, that the V # 16 record to be complete should have those views in, wsil, we will 17 take a look at it from that direction, too. 18 NR. SCINTO: That's the purpose for our offer, is to 19 ensure that the record for this licencing board is fully 20 complete with respect to matters referred to by any party that 21 relate to che staff for - you know, Mr. -- we are about to l 22 hear testimony from FEhA witnesses, and they may or may not l 23 refer to the Staff document. 24 If they refer to the Staff document in a manner which 25 we thought was incorrect, we would then bring that to the Heritage Reporting Corporation , (202) 628-4888 () l l l
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13959 1 Board's attention. 2 JUDGE SMITH: All right, what would be your response (~ %j 3 to a proposed stipulation that references to reliance upon 1210 4 be deleted from -- constructively deleted from the record and 5 not available for proposed findings? What would be your 6 response? 7 NR. SCINTO: That would be acceptable to the Staff. 8 JUDGE SMITH: Yes, okay.' 9 NR. SCINTO: And we would find :.0 need to offer Mt. 10 McKenna's testimony. 11 MS. WEISS: Mr. Chairman. 12 JUDGE SMITH: In the meantime, it may be well to 13 defer final ruling until the point is addressed by the witness 14 in testimony, but it seems like that's the way we're going. () 15 MS. NEISS: Well, Mr. Chairman, when we lefc 16 yesterday, it was our impression that the only thing standing 17 in the way of that stipulation was hearing from FEMA; that Mr. 18 Keller did not intend to rely or it wasn't necessary for him to 1 19 rely on 1210, and our cross-examination was prepared so as 20 specifically not to elicit that informat:.on. l 21 So I thought that - 22 JUDGE SMITH: Well, did you know earlier -- I mean, 23 in the first place, we haven't heard from Rt. Keller. But did 24 you know earlier that hW. Keller does not need 1210 to support l 25 his testimony? Heritage Reporting Corpora t:lon (202) 628-4888 O
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13960 1 MS. NEISS: Well, it's my belief from his deposition 2 that he -- 3 JUDGE SMITH: Oh, I ree. 4 MS. NEISS: -- would say that he reached his 5 conclusions, and if he asked he would say they were supported 6 by 1210, but that was my understanding of what he would say and 7 I expected to hear what I heard this morning. 8 JUDGE SMITH: So you believe that an appropriate 9 solution is to delete the references to 1210, too. 10 kW. NEISS: Yes, and that's -- we prepared our 11 examine. tion so as to make that stipulation possible. 12 JUDGE SMITH: There is only one thing standing in -- 13 to that, and that is what does kW. Keller say. 14 MS. NEISS: And I'm sure he has been well instructed. 15 JUDGE SMITH: Mr. Keller, first let's be sworn, 16 pinase. I 17 Whereupon, ; 18 JOSEPH KELLER 13 having been first duly sworn, was called as a witness herein 20 and was examined and testified as follows: 21 Whereupon, 22 WILLIAM CUMMING 23 having been previously duly sworn, was recalled as a witness 1 24 herein and was examined and testified as follows: 25 JUDGE SMITH: You've heard this dialogue, and I guess Heritage Reporting Corporation (202) 628-4888
13961 1 you know the background but so it's on the record, is that the 2 Staff has offered the testimony of hW. McKenna for the reasons (~ 3 stated by hW. Scinto who is representing the NBC Staff in this 4 hearing. 5 It was offered because they perceived a 6 misunderstanding of the implications of that document by the 7 Intervenors' witnesses. 8 Finally, last night it boiled down to it that, welle 9 so long as you're relying upon it in your testimony maybe we'd 10 better have a better explanation of what this document is, and 11 we left it at that. 12 If you can support your testimony without dependence 13 upon NUREG-1210, maybe it can be stipulated that 1210 will not 14 be a factor in this hearing. Tf that is not the case, well, (~) 15 then, we wanted you to have a chcnce to, and Mr. Flynn a chance (/ 16 to keep the issues alive. 17 We made the distinction between having a dependence 18 upon the document as compared to agreeing with it, or as 19 compared to even perhaps even getting the idea originally from l 20 the document, but the point is, can you support your testimony 21 intellectually without dependence upon NUREG-1210? 22 THE WITNESS: (Kel).er) I believe I can. The reason 23 that we referenced it, as was mentioned here, is that this was 24 a document that had many of the conclusions which I would agree 25 and had come to some partly during the synthesis of that Heritage Reporting Corporation (202) 628-4888
13962 1 document, some independently, they were all in one place. And ,~ 2 it seemed that it was a place that you could reference and that 3 people could go to and pick them up. 4 It is not necessary to have -- particularly necessary 5 to have 121), but it is convenient because there are a number 6 of things in that document which are, while they are in other 7 places, they may be more succinctly put in that document. 8 JUDGE SMITH: So I think that the parties are pretty 9 much in agreement. If we have a Board-approved stipulation l 10 that references to 1210 are constructively, let's say, instead 11 of trying to go back, constructively deleted from the record, \ l 12 and 1210 will not be available for proposed findings or 13 findings by the Board. 14 Does anybody object to that? j l 15 hR. SCINTO: I would slightly request a modification 16 of that And that is, references thus far. I don't know how 17 things era going to develop in the future, and ue may want to 18 do something in the future. 19 JUDGE SNITH: Okay, well -- 20 NR. SCINTO: Our burden would be to reopen and things i 21 like that. 22 JUDGE SMITH: Well, that's prudent, and, of course, 23 that's the effect. Right now we're making the determination 24 that you don't have to bring kW. McKenna. 25 hE. SCINTO: Thank you. Heritage Reporting Corporation (202) 628-4888
I l 13963 1 JUDGE SMITH: For purposes -- j 2 hR. SCINTO: I agree with the stipulation understood 3 that way. I 4 JUDGE SMITH: For pre-existing purposes. l l 5 All right. And then we will be denying Ms. l 6 Sneider here, I was going to wait until she came here, but we l 7 will be denying the motion for rebuttal testimony essentially l 8 because of other reasons argued yesterday, that it is late and 9 its value does not justify keeping the evidentiary record open l 10 as would be required to receive it. i 11 It may, however, be proffered. 12 MR. OLESKEY: We will' proffer it, Your Honor. 13 JUDGE SMITH: I was going to suggest -- I don't ;< ant 14 to make you jump through hoops to do that. You don't have to () 15 prepare the piece of testimony unless you wish. 16 hE. OLESKEY: Well, it's in the process of 17 preparation. 18 JUDGE SMITH: All right. 19 MR. OLESKEY: The problem has been that Ms. Sneider 20 has been here and she couldn't edit it here while it was in 21 Boston. But we will be filing it shortly. 22 JUDGE SMITH: All right. Well, we will receive it. 23 You can file it after the record closes as a -- 24 MR. OLESKEY: Nunc pro tunc, okay. 25 JUDGE SMITH: And give it an exhibit number and we'll Heritage Reporting Corporation (202) 628-4888 C)<
CUNMING, KELLER - DIRECT 13964 1 put it in the rejected exhibit file unless combody objects to 2 that procedure. . 'w f)/ 3 All right, would you proceed, Mr. Flynn? 4 MR. FLYNN: Yes, Your Honor. 5 Yesterday I conducted a brief direct examination of 6 Mr. Cumming. Mr. Keller was not here at the time so I will' 7 address my queetions to Mr. Keller. 8 DIRECT EXAMINATION (Resumed) 9 B Y MR . FLYNN: 10 Q Mr. Keller, will you state your name, by whom you are il employed, and your position ? 12 A (Kel1er) My name is Joseph H. Kel1er. I am employed 13 by the Westinghouse Idaho Nuclear Company at the Idaho National 14 Engineering Laboratory, and I am a fellow scientist with that
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16 Q And your statement of professional qualifications is 17 attached as Attachment B to the proposed testimony before you? 18 A (Kellsc) I believe that's correct, yes. 19 Q And you have before you a document which bears the 20 heading Amended Testimony of William R. Cumming and Joseph H. 21 Keller on Behalf of the Federal Emergency Management Agency on 22 Sheltering / Beach Population Issues, which bears the date of 23 June in 1988. 24 A (Keller) I have a copy, but it does not have the 25 attachments with the professional qualifications. But, yes, I Heritage Reporting Corporation p (202) 628-4888 d
CUNMING, KELLER - DIRECT 13965 1 have that copy. ~ 2 Q Did you have a role in the preparation of document? 3 A (Keller) Yes, I did. 4 Q Have you read the document? 5 A (Keller) Yes, I have. 6 Q Do you adopt that as your testimony and wish that it 7 be bound into the record of this proceeding? 8 A (Keller) I do. 9 0 kW. Cuwaing, I don't believe I asked you yesterday if 10 your statsment of professional qualifications was attached to 11 this document. 12 A (Cumming) Yes, it was. 13 Q And do you wish that to be made part of this record 14 as well? 15 A (Cumming) That 's fine.
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16 MR. FLYNN: At this point I offer the amended 17 testimony of William R. Cumming and Joseph H. Keller into 18 evidence, and ask that it and the attachments, the statements 19 of professional qualifications of the witnesses, ks bound into 20 the record. 21 hR. BACKUS: At this point, Your Honor, I assume that 22 the offer is with the reference to NUREG-1210 on Page 9 23 deleted. 24 JUDGE SMITH: Well, that's a very good point. I 25 think we should have an understanding exactly what is deleted. Heritage Reporting Corporation (202) 628-4888 O
CUNMING, KELLER - DIRECT 13966 1 NR. FLYNN: Your Honor, it places a severe r~i 2 constraint on the witnesses to have to 90 through the entire _U cross-examination without ever mentioning the forbidden word 3 4 '1210. 5 I understood the stipulation to be that whatever 6 references there are in the record to date to 1210, they are to 7 be considered superfluous. 8 I would submit, in view of that, the reference to 9 1210 is harmless. 10 I think there is a larger question here, and that is, 11 do I need to instruct the witness never to mention 1210. 12 JUDGE SMITH: Well, no r that's not the point. 13 We try to, to the extent -- I agree that there is no ; 14 great harm that will be done if nothing happens to this. 15 But to the extent that weeks from now, months from
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16 now when people are preparing proposed findings, and we're 17 making decision, and we pick up this piece of testimcny and !
- s it 's forgotten, you know, for the moment, or word processors 19 don't pick it up, there you go. It seems like somebody is 20 relying upon 1210.
21 I don't think that any damage is done to the 22 stipulation when he refers to 1210. I don't think that at , 1 23 all. I mean it's a fact of life. It's just that we were 24 trying eliminate any independent status of 1210 in the hearing, 25 and that simple little phrase as stated in NUREG-1210 does seem t Heritage Reporting Corporation (202) 628-4888 (V
CUMMING, KELLER - DIRECT 13967 1 to do that. 2 I think it's harmless in or out, but I'think it's-O 3 neater out. 4 MR. FLYNN: Then physically you would ask me to line 5 out that reference ~~ 6 JUDGE SMITH: That's what I would do. 7 MR. FLYNN: -- in the copy that's bound in the 8 record. 9 JUDGE SMITH: Just a simple phrase, "as stated in 10 NUREG-1210". That seems to accommodate it. l 11 MR. FLYNN: Very well, I will do that, Your Honor. 1 12 JUDGE SMITH: That's on Page 9. And just draw a line 13 so that it's visible. 14 (Pause.) I i 15 (Continued on next page.) 16 \ 17 18 19 20 i 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
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KELLER, CUMMENG - DIRECT 13968 .T/43 1 NR. FLYNN: I have done that, Your Honor. 2 JUDGE SMITH: All right. Thank you. 3 NR. FLYNN: Is the testimony now received int.o 4 . evidence ? 5 JUDGE SMITH: Yes, the testimony is received. The 6 motion to strike having been ruled on yesterday is preserved. 7 (Amended testimony of 8 William R. Cumming and 9 Joseph H. Kel1er on behalf 10 of the Federal Emergency 11 Management Agency on 12 sheltering / beach population 13 issues follows:) 14 15 16 17 18 19 20 21 l 22 l 23 24 25 Heritage Reporting Corporation (202) 628-4888 O i l l _ _ _ _ _ . . ..- . _ . ~ _ . . _ _ _ . _ . _ . ._ _ _ . _ _ _ _.. . .._ ,_.. , _ _ . , .. _. ___._._ J
June 10, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATCRY CCNMISSION BEFORE THE ATOMIC SAFETI AND LICENSING BOARD JUDGE IVAN W. SMITH, CHAIRFAN JUDGE JERRY HARBOUR JUDGE GUSTAVE A. LINENBERGER, JR.
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In the Matter of )
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Public Service Co. of New Hampshire, ) Docket No. 50-443-OL et al. ) 50-444-OL
) Offsite Emergency (Seabrook Station, Units 1 & 2) ) Planning Issues
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O AMENDED TESTIMONY OF WILLIAM R. CUMMING AND JOSEPH H. KELLER CN BEHALF OF THE FEDERAL LMDICY MANAGEMENT AGDJCY CN SHELTERING / BEACH POPULATICN ISSUES INTRODUCTION OF WITNESSES I, William R. Cuming, am an attorney in the Program Law Division of the Office of General Counsel, Federal Emergency Management Agency (FEMA) . I, Joseph H. Keller, am employed by Westinghouse Idaho Nuclear Company as a Fellow Scientist at the Idaho National Engineering Laboratory, a Department of Energy Laboratory. Our Statements of Professional Qualifications are included in this testimony as Attachments A and B, respectively. 4 O i 1
4-BACKGROUND Cur testimony addresses several issues. The first is whether the-requirement for a range of protective actions specified in Planning Standa-d J of NUREG 0654/ FEMA REP 1, Rev. 1, applies uniformly to each special popula.cion within the EPZ. A closely related issue is whether the. requirement for a range of protective actions has been met with respect to the summer beach population in the New Hampshire portion of the EPZ. We also consider the issue of whether the decision by the State of New Hampshire not to shelter the summer beach population except in very limited circumstances is supported by a technically appropriate basis. The NRC Staff has advised FEMA that it does not interpret its regulations to require sheltering for each segment of the EPZ population. In the Supplemental Testimony which was prefiled on January 25, 1988, FEMA stated:
% (a) that it is appropriate to consider further the adequacy of the emergency response plan for the transient population of the beaches within the Se0 brook Emergency Planning Zone (EPZ) during the summer, that is, from May 15 to September 15, as indicated in the New Hampshire Radiological Emergency Response Plan (NHRERP); (b) that the requirement of FUREG 0654/ FEMA REP 1,-Rev. 1, for a "range cf protective actions" may or may not be satisfied by evacuation alone- (c) tb.c FEMA cannot conclude that the NHRERP is adequate with respect to that beach population until it is. clear that the State of New Hampshire has considered the use of sheltering for the transient beach population and explains what use, if any, it intends to make of sheltering. This latter peint should not be interpreted to mean that FEMA has imposed a requirement that sheltering be available. If the State of New Hampshire intends not to employ sheltering for the transient beach population (which is not presently clear from the NHRERP), then FEMA expects the State to develop the rationale for such a choice and provide it to FEMA for review.
The materials submitted by the State of New Hampshire make it clear that it O. AMENDED FEMA TESTIMONY CN SHELTERING / BEACH POPUIATION ISSUES .(6/10/88), Page 2.
,~ has considered the use of sheltering for the transient beach population and explains what use, if any, it intends to mak~ of sheltering. It also provides a rationale for the State's ch ice which is totanically supportable. As a consequence, FEMA now finds that the provisions in the NHRERP regarding planning elements J.9. and J.10.m. of NUPE 0654/ FEMA REP 1, Rev. 1, are adequate with respect _ to the summer teach population. The focus of is testimony is primarily two-fold: our position is based on both legal and technical considerations. Legal considerations were a very important influence. In the discussion which follows, the purpose is not to present a legal argument, but to present as accurat ly as possible the history of how FEMA developed its position. For this reason, the narrative below follows a chronological sequence. In a memo to the Regional Assistance Committee dated December 31, 1985, O Edward A. Thomas, Chief of the Natural and Technological Razards Division, Region 1, FEMA, identified the summer beach population within the EPZ as a special planning issue. The June 18, 1986, letter from the Chief Hearing Counsel of the URC Staff to the General Counsel of FEMA, which has been served on the parties to this litigation, dealt in part with the question of minimum dose reduction. It expressed the position that no pre-set minimum dose reduction was required for , 1 offsite emergency plans to be acceptable and that such plans were intended to cope with a range of accidents, not a single accident. I The Commission ruled, on July 24, 1986, in the Long Island Lighting 1 Company (Shoreham) case (24 MRC 22, 29 (CLI-86-13 1986)) that emergency i planning requirements do not require that an adequate plan achleve a pre-set AMENDED c'EMA TESTIMONY ON SHELTERING / BEACH pol'ULATICN ISSUES (6/10/88), Page 3. O
minimum radiation dose savings or a minimum evacuation time for the plume exposure pathway emergency planning :one in the event of a serious accident; rather they attempt to achieve reasonable and feasible dose savings under the circumstances. On February 18, 1987, Dr. Robert Bores, Technical Assistant, Division of Radiation Safety and Safeguards, NRC Region I, King of Prussia, Pennsylvania, i sent a letter to Edward A. Thomas expressing the view that the NHRERP does ! achieve significant dose savings for the transient beach population and that there are a number of Special circumstances which work together to lessen the risk. At the next meeting of the Regional Assistance Committee (RAC), in April, 1987, a consensus was reached that the issue had been adequately ; treated in the NHRERP. FEMA was prepared to endorse that position in l g- testimony before this ASLB. \, , The proposed rule change dealing with the evaluation of utility-sponsored l emergency response plans, published by the NRC at 52 Fed. Reg. 6980 (March 6, 1987), included a comment that offsite emergency response plans in general were not to be judged by any specific quantitative standard. This view was reiterated with the publi:ation of the final rule change at 52 Fed. Reg. I 42,078 (November 3,*1987). l 1 Dr. Bores's letter of June 4,1987, to Edward Thomas essentially repeated the views stated in the earlier letter, but the most notable difference was the omission of any reference to the containment structure at Seabrook Station. The foreknowledge that this second letter would be sent prompted FEMA to review the beach population issue. This lettee was delivered to Mr. Thomas only hours before FEMNs Statement of Position was filed and served on the parties. AMENDED FEMA TESTIMONY CN SHELTERING / BEACH POPULATION ISSUES. (6/10/88), Page 4. .
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1 1 I I l ('T \> 1987, FEMA filed a Statement of Position which took the On June 4, . position that, until the beach pcpulation issues were resolved, it could not make a finding of reasonable assurance. The testimony which FEMA prefiled on September 11, 1987, reiterated the position taken on June 4. At the start of the current hearings in this case on October 4, 1987, Sherwin Turk, Counsel for the NRC Staff, filed a proposed rebuctal plan with this Board, outlining the testimony which the NRC was considering offering. It included a statement that NRC's regulations were not contravened by the absence of shelter for the beach population. On October 15, 1987, Dr. Bores sent to Sherwin Turk an account of the RAC meeting of July 30, 1987 in which he expressed the view that the lack of a reference to the Seabrook containment in his letter of June 4, 1987 made no difference in the technical rational or conclusions. On November 6, 1987, the ASLB heard arguments on the admissibility of testimony of Stephen C. Sholley, et al. At that time, counsel for the NRC cited the material published with the final rule at 52 Fed. Reg. 42,078 (November 3, 1987) and the Commission's ruling in the Shoreham case (24 NRC 22, 29 (CLI-86-13 1986)). On November 16, 1987, this Board ruled from the bench that the proffered testimony of Stephen C. Sholley, et al. , was not admissible, citing as controlling the Commission's ruling in the Shoreham case (24 NRC 22, 29 (CLI-86-13 1986)). On November 30, 1987, Sherwin Turk wrote to Stephen Oleskey, Deputy l Attorney General of the Commonwealth of Massachusetts, and indicated his i l (m/ AMENDED FEMA TESTIMONY CN SHELTERING / i BEACH POPULATICN ISSUES (6/10/88), Page 5. I l
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perception that TEMA's prefiled testimony was based on an erroneous legal standard. On January 7 and 8, .1988, the RAC met and the majority of the RAC endorsed the views stated in Dr. Bores's letter of ' June 4, ~ 1987. FEMA filed its Supplemental Testimony on the Sheltering / Beach population Issues on January 25, 1988.
- On February 11, 1988, the State of New Hampshire submitted t,o FEMA a Response to FEMA's Supplemental Testimony. This was followed by additional material on February 19, 1988.
On February 18, 1988, Sherwin_ Turk sent a letter to H. Joseph Flyan, FEMA courael, affi. ming FEMA's understanding that NRC Staff's interpretation of its i regulations did not require sheltering for all accidents at all times and at () all locations within the plume exposure EPZ.
.The RAC met and discussed the state of the plans for the summer bea'ch population on February 29, 1988. Tne majority reaffirmed its position that the NHRERP was adequate in itt treatment of the summer beach population.
Over the period encompassed by the foregoing discussion, it became increasingly clear to FEMA that to require sheltering for the transient beach populution as a condition of a finling of reasonable assurance is inconsistent l with the precept that emergency planning requirements do not require that an adequate plan achieve a pre-set minimum radiation dosc savings or a minimum evacuation time. This testimony reflects that realization as well ta deference to the NRC Staff and Commission on their interpp::ation of the requirement for a range of protective actionc. FEMA agrees with that inte rpretation. AMENDED FEMA TESTIMCNY ON SHELTERING / BEACH POPULATIC.! ISSUES (6/10/88), Pena 6. i
O v Furthermore, events since the filing of FD4A's Prefiled Testimony on-March 14, 1988, and a continuing review of the record of this litigation t ve' tended to reinforce FEMA's position on the beach population / sheltering issues. In addition to the items listed above, FEMA also relies on: The Appeal Board ruling in Public Service of Ne" Hampshire (Seabrook) ALAB-838, 23 NRC 585 (1986), affirming the decision of the ASLB (ASLBP 82-471-03, April 29, 1986) rejecting the contention of the Cortconwealth of Massachusetts on the beach population: Partisl Initial Decision in Long Island Lighting Co. (Shoreham) LPB-88-13 (May 9, 1988), holding, in part, that monitoring and decontamination are considered protective actions within the meaning of the phrase, "range of pectective actions" All events occurring on the record during the course of these proceedings to date; and The bench culing of tr.is ASLB on May 10, 1988, on the admissibility of the Shollsy/Beyea testimony. TECHNICAL APPROPRIATOIESS ANALYSIS, On page 2 of the prefiled Supplemental Testimony of January 25, 1988, FEMA stated that it expected the State to consider the use of sheltecing for the transient beach population and explain what use, if any, it intends to make of sheltering. On February 11, 1988, Richard H. Strome, Director of the Office of Emergency Management of the State of New Hampshire wrote to Mr. Henry G. Vickers, Regional Director of FEMA Region I, enclosing a document entitled O l AMENDED FD4A TI?STIMONY CN SHELTERING / BEACH POPULATICN ISSUES (6/10/88), Page.7.
O "New Hampshire Response to FEMA Supplemental Testimony" which presented the State's justification for-choosing to use shelter in the beach areas only in limited circumstances. In essence, the justification is that Wheltering for the transient beach population is a protectivo action of limittd usefulness in realizing dose savings, regardless of the season (page 1) and that the public is much more likely to be afforded meaningful dose reitctions by moving out of the EPZ thtn by moving to a shelter within the EPZ (page 2). The February lith submission considers an evacuation of the general beach population in the vicinity of the plant as a protective action strategy at the Alert level. In the case of transit dependent transients, temporary sheltering as it is outlined in the proposed plan changes is sensible because it does not delay their evacuation.
/~ . The responsa by New Hampshire to the FEMA Supplemental Testimony is %)T '
adequate in concept. The transient beach population is treated as a special I population and the special. considerations afforded this- special population include precautionary actions such as early heach closure at Emergency l Classification Levels (ECLs) prior to the necessity for considerations of protective actions for the general public. ECLs range f rom Notification of Unusual Lient (the least severe) through l l , Alert, Site Area Emergency, and General Emergency (the most severe). The current NERERP calls for beach closure to be considered at the Alert ECL and l implemented no later than the Site Area Emergency ECL. For these ECLs there will be no significant doses associated with beach closure as a precautionary action. f O AMENDED FEMA TESTIMONY ON ZU.TERING/ BEACH POPULATICN ISSUES (6/10/88), Page 8.
r N It is FEMA's understanding of NRC's current guidance and internal response procedures, :: :t z t : d i- L".'n00 1210, that initial protective action decisions for areas near the site should be based on plant status without inclusion of calculations of projected doses unless a release of radioactive material is already underway. The basis for the immediate evacuat.an of the
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clost-in areas without dose calculations is based on the fact that, unless a release of radioactive material is underway, there is little or no likelihcod of having reliable predictive information needed to perform dose projection calculations. The information necessa y to make an accurate calculation would include the projected duration of a release, the time at which such a release would begin, and the magnitude of a projected release. In addition, in severe accident sequences the total dose potential is comprised of several components. These are the direct exposure from immersion in the plume, cloud-shine from a p.ame overhead, exposure from inhalation of the plume, and ground-shine from deposited radionuclides. The exate relationship among the various components will vary with time and distance from the point of release: however, in severe accident sequences the ground-shine componer.t is most likely to be the major contributor to total dose if no protective actions are taken. In those cases, if the dose reduction strotogy is sheltering first followed by an evacuation af ter plume passagn, the total dose reduction would l l not be as great as that for the 3 mediate evacuation strategy. The sheltering i part of .he strategy reduces dose primarily from the plume immersion and inhalation component. In the New E.npahire submission, the dose reduction factor aaerib4d to the available shelters is 0.9. That means that an , I () AMENDED FEMA TESTIMCNY CN SHELTERING / BEACH POPULATION ISSUES (6/10/85), Page 9. !
. )
., . = . .. -- . - - - - . .
r individual.inside such a shelter would receive 90% of the plume immersion dose he or she would receive without shelter. Another way of expressing this measurement is-to say that-a building with a dose reduction factor of 0.9 - provides a dose reduction of 10%. The dose reduction for the inhalation dose is greater than 10%, but-
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approachesderodependingontherateatwhichoutsideair,theplume, infiltrates the shelter. It is generally accepted-that after two hours, the effectiveness of a shelter to reduce the inhalation exposure begins to degrade. For the "unwinteri=ed" structures-in the New Hampshire beach areas, this degradation would likely begit. much sooner. During the evacuation after
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plume passage, the individual previously in shelters would still receive the ground-shine dose, poteatially the major component. Therefore, sheltering followed by evacuation is likely to be a less effective means of achieving dose reduction than evacuation a' lone, particularly for severe a'ccident sequences. In the immediate evacuation case, as stated above, the dose reduction involves the ground-shine component. The exact dose reduction which would result in most cases is difficult to predict due to the many potential combinations of the geometries of the plume and the evacuation routes. In the , l extremely rare case where the evacuation routes coincide with the plume path, l l an estimate of the dose reduction can be made. Because of the dispersion and dilution of the plume as it moves downwind from the point of release, the dose I rate decreases with distance. The rate at which the dose rate decreases as a l function of distance (r) from the source can be approximated by an inverse power series (c-*, where a varies between 1.5 and 3 depending on the O I AMENDED FD4A TESTIMONY ON SHELTERING / l BEACH. POPULATION ISSUES (6/10/88), Page 10.
o O d atmospheric stability class). Generally speaking, the closer an area is to the point of release, the greater the potential doce savings to be achieved by early evacuation. By implementation of the immediate evacuation strategy, dose reduction greater than those to be derived from a "shelter first-evacuate later" concept can be obtained by wvoment of the population relatively short distar :es even in the extremely unlikely ca.e where the plume track and the evacuation routes coincide. CCNCLUSIC-N The requirement for a range of protective measures has been satisfied even though the State of New Hampshire has chosen not to shelter the summer beach population except in very limited circumstances. With respect to the summer beach population, the planning elements J.9. and J.10.m. of NUREG 0654/ FEMA REP 1, Rev. 1, have been met. There exists a technically appropriate basis for the choice made by the State of New Hampshire not to shelter the summer beach population except in very limited circumstances. At the same time, whenever this choice is incorporated into the NHRERP, implementing detail will be necessary. I i O 1 l l AMENDED FEMA TEST *.MCNY CN SHELTERING / BEACH PCPULATION ISSUES (6/10/88), Page 11.
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O d0SEeN M. xEttEa PROFESSIONAL OVALIFICATI0fs Education: Bachelor of Science in Chemistry, Washington College, Chestertown, MD, 1956. Haster of Science in Inorganic Chemistry, Pennsylvania State University, University Park, PA, 1958. Graduate Assistant in Chemistry, Pennsylvania State University, University Park, PA, 1958-61. Professional Positions: 1961-1966 Assistant Professor of Chemistry at Idaho State University, Pocatello, 10. Responsibilities included teaching courses in freshman chemistry, quantitative analysis, instrumental analysis, advanced inorganic chemistry and laboratory radiochemistry. 8/66 - 10/73 Employed at the Idaho National Engineering Laboratory in Idaho , O- Falls, 10 (then called the National Reactor Testing Station). The site 1:. government owned and administered by the Department of Energy Research and Development Agency. I was employed by one , of the operating contractors, initially Idaho Nuclear Corp. followed by Allied Chemical Corp. My position was a technical - one in the research and development area of fission product behavior and properties. 10/73 - 6/74 i Employed as research scientist by Nuclear Environmental Services i division of SAI, Inc., Idaho Falls, 10. responsibilities included contract support on performance of gaseous rad waste processing equipment in a BWR and analysis of sources of inplant radiation exposure to workers. 6/74 - 12/78 Employed as scientific and engineering supervisor _by Allied Chemical Corporation at the Idaho National Engineering. Laboratory. Responsibilities included supervision of a research laboratory involved with analysis of fission product levels in irradiated nuclear fuel specimens and analysis of the fission product content of samples of the worlds 1st known natural fission reactor and the supervision of an analysis laboratory for environmental samples. Conducted contract research in support of O NRC. 1
U(3 - 12/78 - present Employed as scientist by Allied Chemical Corp.,' Exxon Nuclear Idaho Co.,'Inc., (after 7/3/79), and Westinghouse Idaho Nuclear Company, Inc. (after 3/1/84), at the Idaho National Engineering Laboratory. Responsibilities include "asearch and development contract support to NRC and FEMA. Attended FEMA orientation training course on Radiological Emergency Preparedness Planning for DOE Contract Personnel. Experience: Prove existence of previously unrecognized airborne radiciodine species to be hypoiodous acid. Developed sampling device to differentiate various chemical forms of airborne radioiodine. Developed inorganic adsorbent to retain airborne radioiodine. Measured gaseous fission products in effluents and process streams in 5 BWR's stations. Performed effluent and environmental measurements to assess i dine-grass-c w-milk d se pathway at BWR's. O Made effluent and environmental measurements of radioiodine at a pharmaceutical plant to assess environmental impact. Analyzed fuel specimens to determine accurately the fission yields in the fast flux region of the neutron spectrum. Analyzed fuel specimens to establish breeding er conversian ratio in Th-U fuels from the light water breeder program. Developed a sampling device for airborne 14C and3 H in nuclear plant effluents and process streams. Participated in environmental program to measure movement of radionuclides through process equipment in PWR's so that the predictive models could be evaluated. Responsible for technical evaluation of commercial BWR off-gas systems. . ; Evaluated applicability of off-site, real-time instrumentation to determine the magnitude of unmonitored releases in accident situations. O 2
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4 V Evaluated soil to vegetation transfer of stable cesium and strontium. . Revieaed current state of knowledge on scavenging in the environment airborne radioiodine by rain or snow. Testified as FEMA witness at Indian Point'and Shoreham ASLB hearings. Adjunct' faculty member at FEMA Emergency Management Institute. Invited instructor at Atomic Energy Council of the Republic of China / Taiwan Power Company sponsored "Training Course on Planning, Preparedness, and Response to Nuclear Accidents" Publications: J, H. Keller, F. A. Duce, and F. O. Cartan, "Retention of lodine on Selected Particulate Filters and a Porous Silver Membrane 82ing Considered for the LOFT Maypack", IN-1078, May 1967 W. J. Maeck, D. T. Peace, and J. H. Keller, "A Highly Efficient Inorganic Adsorber for Airborne Iodine Species (Silver Zeolite)- Development Studies", IN-1224 October 1968 R. L. Nebeker, J. H. Keller, L. T. Lakey, D. E. Black, Pd W. P. Palica, and R. E. Schindler, "Containment Behavior of Xenon and Iodine Under Simulated Loss-of-Coolant Accident Conv'.tions in the Contamination-Decontamination Experiment", IN-1394, June 1971 B. Weiss, P. G. Voilleque, J. H. Keller, B. Kahn, H. L. K A. Martin, and C. R. Phillips, "Detailed Measurements'of g ger,I in Air, Vegetation, and Milk Around Three Operating Reactor Sitcs", NUREG-75/021, March 1975 W. J. Maeck, F. W. Spraktes, R. L. Tromp, and J. H. Keller, "Analytical Results, Recommended Nuclear Constants and Suggested Correlations for the Evaluation of OKLO Fission Product Data", at IAEA International Symposium on the Oklo Phenomenon, Liberville, Gabon, IAEA-SM-204/2, June 1975 W. J. Maeck, W. A. Emel, L. L. Dickerson, J. E. Delmore J.H.Keller,E.A.gce,andR.L. Tromp,"Discrepanciaand gmentsRegarding Pu Thermal Fission Yields and the Use of Nd as a Burnup Monitor", ICP-1092, December 1975 . N. D. Dyer, E. B. Neischmidt, J. H. Keller, and B. G. Motes, "Procedures Source Term Measurement Program", TREE-ll78, October 1977 O , 3 1
A V N. D. Dyer, J. H. Keller, R. L. Bunting, B. G. Motes, S. T. Croney, D. W. Akers, C. V. McIsaac, T. E. Cox, R. L. Kynaston, S. W. Duce, D. R. Underwood, J. W. Tkachyk, "In-Plant Source Term Measurements at Ft. Calhoun Station-Unit 1", NUREG/CR-1040, July 1978 J. L. Thompson, S. W. Duce, and J. H. Keller, "An Atmospheric Tritium and Carbon-14 Monitoring System", NUREG/CR-0386, September 1978 N. C. Dyer, J. H. Keller, R. L. Bunting, B. G. Notes, S. T. Croney, D. W. Akers, C. V. McIsaac, T. E. Cox, R. L. Kynaston, S. W. Duce, D. R. Underwood, J. W. Tkachyk, "In-Plant Source Term Measurements at Zion Station", NUREG/CR-0715, February 1979 J. H. Keller, L. W. McClure, M. Hoza, A. L. Ayers Jr. , R. Lo, and L. W. Barrett, "Boiling Water Reactor Off-gas Systems Evaluation", NUREG/CR-0727, June 1979 R. W. Benedict, A. B. Christensen, J. A. Del Debbio, J. H. Keller, and D. A. Knecht, "Technical and Economic Feasibility of Zeolite Encapsulation for Krypton-85 Storage", ENIC0-10ll, September 1979 J. H. Keller, B. G. Motes, D. W. Akers, T. E. Cox, S. W. Duce, and O J. W. Tkachyk, "Measurement of Xe-131, C-14-and Tritium in Air and I-131 Vegetation and Milk Around the Quad Cities Nuclear Power Station", NUREG/CR-1195, ENIC0-1023, March 1980 J. W. Mandler, S. T. Croney, N. C. Dyer, C. V. McIsaac, A. C. Stalker, B. G. Notes, J. M. Keller, T. E. Cox, D. W. Akers, J. W. Tkathyk, and S. W. Duce, "In-Plant Source Term Measurements at Turkey Point Station - Units 3 and 4", NUREG/CR-1629, September 1980 P. G. Voilleque, B. Kahn, H. L. Kreiger, D. M. Montegomery, J.H.Keller,andB.H.Weis;,"gluationofthe Air-Vegetation-Milk Pathway for I at the Quad Cities Nuclear Power Station", NUREG/CR-1600, November 1981 W. J. Maeck, L. G. Hoffman, B. A. Staples, and J. H. Keller, "An Assessment of Offsite, Real-Time Dose Measur? ment Systems for Emergency Situations", NUREG/CR-2644, ENICO-ll10, April IW2 L. G. Hoffman and J. H. Keller, "Characterization of Soil to Plant Transfer Coefficients for Stable Cesium and Strontium", NUREG/CR-2495, ENICO-1105, June 1982 P. G. Voilleque, L. G. Hoffman, and J. H. Keller, "Wet Deposition Processes for Radioiodines", NUREG/CR-2438, ENICO-llll. ' August 1982 4
O 8. J. Saimonson, t. G. Hoffman R. J. Hoakus. end J. H. Keiier.
"Guidance on Offsite Emergency Radiation Measurement Systems -
Phase 2 - Milk Pathway", WINC0-1009, April 1984 W. J. Maeck, R. J. Honkus, J. H. Keller, and P. G. Voilleque, "Laboratory Measurements of Parameters Affecting Wet Deposition of Methyl Iodide", NUREG/CR-4041, WINC0-1023, September 1984 B. J. Salmonson, L. G. Hoffman, R. J. Honkus, and J. H. Keller, "Guidance on Offsite Emergency Radiation Measurement Systems - Phase 3 - Water and Non-Dairy Food Pathway", WINC0-1012, October 1984 B. J. Salmonson, R. J. Honkus, a'id J. H. Keller, "Guidance on 0 'fsite Emergency Radiation Measurement Systems - Phase 1 - A rborne Release", FEMA-REP-2 (Rev. 1), WINC0-1029, December 1985 Papers: F. O. Cartan, H. R. 8eard, F. A. Duce, and J. H. Keller, "Evidence for the Existence of Hypoidous Acid as a Volatile Iodine Species Produced in Water Air Mixtures at Tenth AEC Air Cleanina Conference, New York, NY, August 1968, CONF 680821 J. H. Keller, F. A. Duce, D. T. Pence, and W. J. Maeck, "Hypoldous Acid: An Airborne Inorganic Iodine Species in Steam-Air Mixtures at Eleventh AEC Air Cleanina Conference, Richland, WA, September 1970, CONF 700816 J. H. Keller, F. A. Duce, and W. J. Maeck, "A Selective Adsorbent Sampling for Differentiating Airborne Iodine Species at Eleventh AEC Air Cleanina Conferg_nce, n Richland, WA, September 1970, ; CONF 700816 l l J. H. Keller, T. R. Thomas, D. T. Pence, and W. J. Maeck, "An i Evaluation of Materials and Techniques Used for Monitoring 1 Air-Borne Radioiodine Species at Twelfth AEC Air Cleanina l Conference, Oak Ridge, TN. August 1972, CONF 720823 J. H. Keller, T. R. Thomas, D. T. Pence, W. J. Maeck, "!odine Chemistry in Steam Air Atmnspheres at Fifth Annual Health physics Society Midvear Symoosium, Idaho Falls, ID, November 1970 J. H. Keller, L. L. Dickerson, F. W. Spraktes, and W. '. Maeck, Determination of the Natural Abundance of Kr. pton in the Atmosphere at Am. Chem. Soc. Nuclear Chemist: I and Technoloav j Division Meetina, Newport Beach, CA, February 1973 J. H. Keller, "iodine Species Measurements", invited paper at Nuclear Safety Analysis Center Workshop on lodine Releases in Reactor Accidents, Palo Alto, CA, November 1980 l S 1
-O hi as I Hypoiadous Acid", Health Physics 40, p 91-94, 1981o voin eaue >ad J. H. Keller and L. G. Hoffman, "Proposed Federal. Guidance on Emergency Monitoring in the Milk Pathway", at 13th Annual National Conference on Radiation Control, Little Rock, AX, May 1981 J. H. Keller, "Update.on Radiciodine Monitoring", at the 14th-Annual National Conference on Radiation Control, Portland, MA, May 1982 J. H. Keller, "Iodine Sampling Under Emergency Conditions",
invited paper at IEEE Nuclear Science Symposium, Orlando, FL, November 1984 O ; [ l O
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. 1 WILLIAM R. CUMMING
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4243 Vacation Lane Arlington, Virginia 22:07 m (703) 527 3919 ; i ; } l I PROFESSIONAL QUALIFICATIONS Offer over fifteen ye.:" eerience in a senes of increasingly significant public policy positions where legal / i adminimative knowledge was used to achieve pnority management objectises. Areas of expenise include: l Legal Adminntration - History of success in cordinating difficult policy and legal issues . . . expert in developing systems and procedures for detecting and controlling fraud and abuse of governmental programs . . . experienced in developing legal frameworks for new programs and decentralizing act",ities. Management / Administration - Successful in undertaking many new, understaffed, misJion-onented assignments and achieving management objectives in both civilian and rmlitary settingi . broad background in program development . . . knowledge of contracting and procurement law . . . skiLed in handling debarment and suspension of contractors and program panicipants. PersonnelSupervision - Supervised groups ranging from 5 to 130. . . experienced in designing training and program matenals . . . skilled in handling employee and urdon relations . . successful in developing program alternatives to conserve personnel resources . . . effective at motivating staff members to deliver maximum performance levels. PROFESSIONAL EXPERIENCE O OFFICE OF THE GENERAL COUNSEL FEDERAL EMERGENCY MANAGEMENT AGENCY 1979 to Present Ne*=t General Counset (Projects)(1986 to Present) Responsible for development of legal positions related to planning, preparedness response and mitigation for both peacetime and wartime civil emergencies and integration into existing National Secunty institutions.
- Coordinate Technical Assistance to the Associate General Counsel for Litigation, General Law, Insurance and Mitigation; the Assistant General Counsel and the Regional Counsel.
- Conceive and implement legal policies and procedures related to warning systems, communic:. l tions, population relocation protection and damage assessment to be u;iliaed during disasters and l)
National Secunty Emergencies.
- Coordinate legal plans to assure continuity of the Federal Civil Government in a wide range of l' National Security Emergencies. t
- Develop legal plans for the protection of industry, post. attack recovery and economic stabilization ,
during National Security Emergencie :nd disasters. ! j Il
- Develop legal authorities for emugency eveuation and sheltering decisions,
- Senior attorney responsible for legal aspects of agency telecommunications policies, including '!'
AT&T consent order impact on National Secu-ity Emergencies.
- Provide legal advice and technical support to State and Local governments, on emergency preparedness.
- Develop legal systems to prevent fraud, waste and abuse in programs.
Associate General Counsed (Utigation)(1980 to 1085) Supervised all attorneys performing litigation serWces for the Director and Ceneral Counsel of the l Federal Ernergency Management Agency. D
- Supervised an average open caseload of 300 dafensive and affirmative cases in vanous state and 'I federal trial and appellate courts: savings to government exceeded $85 mtllion.
- Established aad cuorcmued Regional Counsels.
- Determined irial and appellate recommendations and strategy for FEMA, coordinated with <j Department of Justice on cases having government wide impact, y
l WILLIAM R. CL*MMING Puc! PROFESSIONAL EXPERIENCE . Continued s
.2. Asststant General Counsel (Insurance)(19'9 to 1950)
Provided legai advice to the Federal Insurance Admimstration tr'ENA) including responsu:iiety fer preparation and sign off of legal opimons, regulations and conduct of litigation
- detenced e er "CO claims with many individual cases exceeding $5 million in potential liability.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 1971 to 1979 Attorney. Advisor, Supervisory Trial Attorney Offlee of the Associate General Counsel for Regulatory Pro > rams Supervised six attorneys: prepared all appropnate pleadings, motions and appellate briefs in cases related to HUD programs in federal tnal and appellate courts. Reviewed, draf ted asid commented on legislation. INTERNAL REVENUE SERVICE 1970 to 197a Senior Tax Law Specialist (Projecu Section) Estate and Gift Tax Branch (1973 to 1974) Prepared numerous private and published revenue rulings which determined IRS position concerning ) income, estate, gift and fidiciary returns. : O V Special Advisor to the Assistaat Commissioner (Stabilization) 1972 Developed regulaijons of the Pay Board, Price Commission and Rent Advisory Board; served as the
'y
-- Assistant Commissioner's liaison with these organizations on enforcement issues.
O i Tax Law Specialist, Vadous Branches under Assistant Commissioner (Technical)(1970 to 1971) EDUCATION I Juris Doctor,1967 1 University of Virginia Bachelor of Arts, History, Afagna Cum Laude.1964 I Lehigh University MIIJTARY : l United States Army,1967 to 1970; Cornnussioned 1968 ILT Field Anillery Highest Rank Nuclear Weapons Unit Commander 1968 to 1969 Staff Officer, Inte!11gence and Operations 1969 to 1970 Overseas Service Federal Republic of West Germany Decorations: Army Commendatics Medal LEGAL Admitte ! to Virginia State Bar; admitted to practice before the Virsinia Supreme Court and United States D Tax Court. References Avadable Upon Request
KELLER, CUNMING - CROSS 13969 1 MR. FLYNN: At this point the witnesses are available 2 for cross-examination. 3 CROSS-EXAMINATION 4 B Y MR . BACKUS: 5 O Good morning, gentlemen. 6 A (Cumming) Good morning. 7 Q As I indicated yesterday -- 8 MR. DIGNAN: Don't I get one. Oh, this is the cross-9 examination plan. 10 NR. BACKUS: Sure. 11 NR. DIGNAN: Oh, I thought it was an exhibit. 12 MR. BACKUS: As I indicated yesterday my examivation 13 under t:he plan we've worked out on the lead cross-examiner 14 concept is going to be directed, I think, primarily perhaps 15 exclusively to Mr. Cumming. 16 B Y MR. BACKUS: 17 Q Mr. Cumming, as it's clear from your statement of 18 qualificatione you are a lawyer with the Federal Emergency 19 Management Agency; is that correct ? 20 A (Cumming) That's correct. 21 Q And I take that you have never had any training in l l 22 radiation health physics? l 23 A (Cumming) That's inccrrect. 24 0 You have had training in radiation health physics? l l 25 A (Cumming) That's correct. ! l l
\
Heritage Reporting Corporation ! (202) 628-4888 i l 4 1
KELLER, CUNNING - CROSS 13970 1 Q ,Do you havc any degrees in that area? 2 A (Cumming) No. The extent of my training was on O 3 active duty with the U.S. Armed Forces. The term of art, at 4 the time, was a nuclear accident incident control officer and I 5 went through full training to -- which involved certain types 6 of dosimetry, decontamination procedures, certain aspects of 7 health physics, and certain aspects of population preparedness, 8 is a general term, with respect to nuclear weapons accidents. 9 0 In any event, you have said that you come here 10 prepared to defend the entire testimony as filed on June 10th 11 including that portion of it on pages seven through first half 12 of 11 down to conclusion which is under the heading "Technical 13 appropriateness analysis;" is that right? 14 A (Cumming) That's correct. 15 Q You recall that in your deposition that you 16 t estified, among other things, that you would not have us rely 17 too heavily 'on your technical understanding of the sheltering 18 issue; is that correct? 19 A (Cumming) That's correct. 20 0 You also testified, did you not, on your deposition 21 that, "As a lawyer I felt that if the FEMA position was 22 referenced on technical analysis, it actually -- it lacked the 23 understanding to be able to defend the technical analysis;" l 24 correct? 25 A (Cumming) That's correct. l i Heritage Reporting Corporation (202) 628-4888 \ I
KELLER, CUNMING - CROSS 13971 1 Q So you would not feel comfortable, I take'it, 2 defending the technical part of this testimony alone? Od 3 A (Cumming) I feel very comfortable defending it. 4 Nhat weight the Board would give to my expertise, I'm sure it 5 will be quite different than the weight it gives to hW. Keller. 6 Q Okay. 7 A (Cumming) But to the extent I have technical 8 underetanding I am very comfortable with this testimony. 9 Q And you said yesterday when you started out that the 10 one part of that analysis on'pages nine through 11r^ the first 11 part of page 11, that you claim particular responsibility for 12 was the reference which we' ve been discussing to NUREG-1210; is 13 that correct? 14 A (Cumming) That's correct . I said I was -- I had at (\ 15 least joint responsibility. You sala primary; I said thcre is V 16 a legal aspect of that for which I would certainly be the 17 primary sponsor. 18 0 Nhy was it that you said you would be the primary 19 sponsor of referring to 12107 l 20 A (Cumming) It's becsase I have cleared the training 21 materials that are taught in both the accident assessment 22 course and the exercise evaluators course of the Offices of 23 General Counsel and I have approved that document and prior 24 drafts as one of the principal training documents for i 25 utilization at our Emmitsburg facilities as being an authorized Heritage Reporting Corporation (202) 628-4888 n v l
KELLER, CUMMING - CROSS 13972 1 approach to offsite emergency response training, where state 2 and local officials,' FEMA officials, and others that are not (V~) 3 directly under NRC auspices. 4 NBC has, obviously, the responsibility for the 5 training of its own officials. 6 0 You recognize, of course, that NUREG-1210 is a 7 document authored by personnel at the NRC; is that correct? 8 NR. REIS: I'm sorry, Your Honor, I didn't hear the 9 end of the q:testion, his voice dropped. 10 B Y NR . BACKUS: 11 Q Is authored by personnel either at the NRC or under 12 contract of the NRC; is that correct? Well, let me strike 13 that. 14 A (Cumming) Principally that's correct. I believe I () 15 may be sitting next to a person who had some input into that 16 document. 17 Q Well, let me jast ask this question. NUREG-1210 is 18 an NRC document; la that correct? 19 A (Cumming) That's correct . 20 Q Okay. 21 NR. REIS: Your Honor, I wonder whether we ought 22 to -- I object to this question because the line has gone on 23' too long since it's been stricken from the record; I don't know 24 where we're going with it. And since the reference to the 25 document is not to be relied on by anybody, it seems Heritage Reporting Corporation (202) 628-4888
KELLER, CUNMING - CROSS 13973 1 immaterial. Therefore I object to the line. 2 JUDGE SMITH: Do you want to leave that in? 3 MR. FLYNN: I have another purpose for this. Who.is 4 this gentleman? S MR. REIS: I failed to introduce myself for the 6 record. This is Edwin Reis, Deputy Assistant Chief Counsel of 7 the Nuclear Regulatory Commission. 8 MR. BACKUS: Oh. 9 JUDGE SMIT.: Mr. Reis made his appearance before and 10 has -- 11 MR. DIGNAN: He shaved. 12 (Laughter) 13 MR. DIGNAN: Mr. Beis is in disguise, he hasn't got 14 his beard. 15 MR. REIS: That's right. 16 MR. SCINTO: Mr. Chairman, I apologize for not having 17 identified Mr. Beis. 18 JUDGE SMITH: I didn't think it was necessary because 19 he's been here before, made his appearance before. 20 NR, SCINTO: But that's courtesy of other counsel, I 21 should have done so. 22 MR. BACKUS: I guess I would have corrected that. 23 MR. REIS: I thought you were being facetious, Mr. 24 Backus. 25 Heritage Reporting Corporation (202) 628-4888 O, ; i l 1 l l I
- _ _ ._ _ __ _ . . . . . _ _ _ ~ _ _ . _ _ . . -
KELLER, CUNMING CROSS 13974 1 1 BY NR. BACKUS: l 2 O Mr. Cumming, you were at the meeting on January 19the bl
'- 3 1988 interagency meeting that there's been much testimony about 4 between FEMA and NRC; were you not?
5 A (Cumming) Yes, I was, the entire time. 6 Q And you heard Nt. Stello of the NRC make some comment 7 along the lines that there would be total war between the 8 agencies in certain circumstances? 9 A (Cumming) My memory is that he made the statement 10 "all out war r " not total war. 11 Q All out war. And what prompted the statement that 12 the NRC would make all out warr what was the initiating casus 13 belli? 14 A (Cumming) It dealt with the issue of whether FEMA -- 15 NR. REIS: Mr. Chairman, I object to the question and 16 the phrase "casus belli, " there has to ha a war for there to be 17 casus belli. In other words, the phrase implies there's a war. 18 I think the question could be answered without that 19 implication. 20 BR. EACKUS: I'll rephrase it. , 21 BY NR. BACKUS: 22 O Nhat was the predicate for Nt. Stello saying that 23 there would be all out war between the agencies; what would 24 bring that on ? \ 25 A (Cumming) Who was the definitive authority on Heritage Reporting Corporation l (202) 628-4888 ()
KELLER, CUNMING - CROSS 13975 1 interpreting NRC regulations.
- 2 O Was it in substance then that Mr. Stello was saying, 3 if FENA undertook to interpret NRC regulations that would be 4 the start of an all out war between the agencies?
5 A (Cumming) My memory, to be honest, Mr. Backus, is 6 not that clear. I think there was some phraseology like that, 7 but I'm not precise. 8 Oddly enough, in my memory that was not a very 9 significant event in the course of the meeting. There were 10 other more significant events that occurred in the course of 11 that meeting, which was rather lengthy, it was five hours. 12 Q All I'm trying to get is your memory of what was that 13 prompted the comment tha' NRC might engage in all out war with 14 FEMA; what was it? 15 A (Cumming) What I just stated. 16 Q And that was ? , 17 A (Cumming) Who was the controlling authority for 18 interpreting NBC's regulatory scheme. 19 0 In view of that, Mr. Cumming, did you have any 20 concern about yourself referencing an NBC document, NUREG-1210, 21 in the course of preparing to testify? 22 A (Cumming) Not at all. 23 Q Okay. Now, the testimony that we have admitted here, 24 kW. Cumming, is dated June 10th, 1988 and it came to us with a 1 25 cover letter from Mr. Flynn which went to the Board and the Heritage Reporting Corporation (202) 628-4888 O i
\
KELLER, CUNMING - CROSS 13976 1 parties indicating the items in which the June testimony was 2 different from the March 14th testimony; you're aware of that? ('d)
'~ 3 A (Cumming) Yes. I'm aware there were two separate 4 filings, one on March 14th and one on June 10th.
5 0 And you're aware that on the Oune 10th testimony 6 there was a cover letter detailing the differences between the 7 June 10th and the March 14th testimony? - 8 A (Cumming) Yes, I am. 9 Q Okay. Are you -- have you assured yourself that the 10 changes from June 10th -- from March 14th to June 10th as set 11 forth in Mr. Flynn's cover letter are accurate? 12 A (Cumming) I have not done that comparison. I trust 13 Mr. Flynn to have accurately reflected the differences. 14 Q You would agree, would you not, that some of the (\ 15 changes from March 14th to June 10 are not merely typos being V 16 corrected or grammar being improved, but are indeed substantive i 17 changest correct? 18 A (Cumming) I would argue that certainly the ! 19 conclusion is the same, The reason that I insisted, and 20 certain data being added to the testimony is, since the March 21 14th filing I have had it reenforced in my own mind, there were 22 a variety of circumstances, even more so the position we filed 23 on March 14th was correct.
,. 24 O There is new text added to the June testimony over 25 what was on March 14th? j Heritage Reporting Corporation (202) 628-4888 i l
. i KELLERo CUNMING - CROSS 13977 j 1 A (Cumming) Absolutely.
I 2 0 And whereaa in March 14th the interim testimony which l 3 was filed on' January 15th mar *:&i Mass. AG 42 was incorporated l 4 by reference to the extent not inconsistent, on June 10th it's 5 been deleted; is that right? l i 6 A (Cumming) I'm sorry, could you repeat that. 7 . The March 14th testimony incorporated, to an extent, 8 did it not, the interim testimony of January 25th on which you 9 were also a witness? 10 A (Cumming) That's correct. 11 Q And as of the June 10th testimony there is no longer 12 any reference or incorporation of any part of the June or the 13 January 25th testimony; is that correct? 14 A (Cumming) That's incorrect. There is a reference on 15 page two to the January 25th, 1988 testimony. 16 Q Okay. You're quite carrect. With the exception of 17 that inclusion of the January 25th testimony, the June 10th 18 testimony differs from the March 14th testimony in that there 19 is no langer appended to it the Jsnuary 25th testimony which is 20 incorporated by reference? 21 A (Cumming) That's correct. 22 Q Now, we've had much discussion about the process that 23 FEhA went through to have approved the March 14th testimony; 24 you're aware of that ? 25 A (Cumming) I'm aware I've been deposed on that Heritage Reporting Corporation . (202) 628-4888
KELLER, CUNMING - CROSS 13978 1 subject. I am aware of the lengthy transcript in this 2 proceeding, and I assume there have been lengthy discussions. O. 3 U I mean, for example, you certainly know because 4 you're aware that prior to the approval of the -- what became 5 'the March 14th testimony there was an extensive meeting in 6 Washington on March 4th involving high officials of FEMA; is 7 that correct? 8 A (Cumming) Absolutely. 9 Q And that the final result of that meeting was that 10 the present director of the -- associate director for state and 11 local programs and support, Mr. Peterson, specifically approved 12 what was to become the March 14th testimony; is that correct? 13 A (Cumming) He approved on March 4th what has been 14 referred to as the bottom line of that testimony. The 15 rationale, ho some extsnt, was developed subsequent to that V,r % 16 date. 17 Q All right. Did he approve that testimony, the March 18 14th testimony, as it was finally drafted before it was served? 19 A (Cumming) I don't know that. 20 Q And now I want to ask you, was there any similar 21 review and approval process for the June 10th testimony insofar 1 22 as it reflects changes from the March 14th testimony? 23 A (Cumming) I don't know that. 24 Q Who was the highest official within the agency, so 25 far as you know, who agreed that the June 10th testimony should Heritage Reporting Corporation (202) 628-4888 1 1 1
KELLER, CUMMING - CROSS 13979 1 no longer incorporate by reference the interim January 25th
, 2 testimony except for the limited portion that's reproduced on 3 early page of the June 10th testimony?
4 A (Cumming) I have no direct understanding of that, 5 and the reason I don't is because I was at the Shoreham 6 exercise. And while I had faxed the testimony to me to 7 apprcie, I have no understanding of what transpired at 8 headquarters on that matter. 9 Q So you don't know whether the decision to leave off 10 the January 25th testimony, understanding there's a minor or 11 there's some paragraph that's included, but with exception to 12 that, you don't know under whose authority it was to not 13 include that January 25th testimony as incorporated by 14 reference? 15 A (Cumming) On June 10th? 16 Q Right. 17 A (Cumming) I 'have no understanding of that. 18 O And under whose -- who was the person that finally 19 approved the inclusion of the additional materials that are l 20 listed on pages -- on page seven about events since the filing? 21 A (Cumming) Well, I certainly said that I felt that it 22 would be an inaccurate statement to the Board if they were 23 included, and I strongly urged that they be included. But I l 24 have no understanding of who else reviewed that. 25 0 As far as you know it could have been purely a Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUMMING - CROSS 13980 1 decision made by agency lawyers? 2 A (Cumming) Could have been. ! ( ). 3 O Now, you, hW. Cumming, were, of course, listed as a ; 4 witness on the January 25th testimony which has been marked as 5 an exhibit here along with Mr. Thomas and Mr. McLoughlin; is l l 6 that correct? l 7 A (Cumming) That 's correct. I've been a witness 8 designated on the January 25th, the March 14th, and the June 9 10th. 10 Q And the Jsnuary 25th testimony, did you subscribe to 11 that testimony as true and accurate at the time that you 12 attached your name to it ? 13 NE. FLYNN: I object to the relevance of all of this. 14 There's been a long discussion or repeated discussion on the 15 record about that January 25th testimony, back when we were 16 still arguing about discovery the Board protested that it was 17 unfair of FEMA to try to back-door the January 25th testimony 18 if we weren't going to submit hW. McLoughlin for examination. 19 At that time I said, we'll withdraw it. And it 20 subsequently turned out that Mr. McLoughlin testified. The 21 Board observed that anything that the Intervenors wanted to ask 22 Mr. McLoughlin about that testimony, they had the opportunity 23 to do that. 24 I don't see the relevance of the line of questioning. 25 JUDGE SMITH: You mean the need for rather than Heritage Reporting Corporation (202) 628-4888
KELLER, CUNMING ~ CROSS 13981 1 relevance. I guess maybe you can say it's the same thing. But
-5 2 I think that we had a pretty good understanding of what t -
3 happened to that January 25th testimony. 4 NR. BACKUS: This is a credibility line of 5 examination. 6 JUDGE SMITH: Credibility. Okay. 7 MR. BACKUS: May I proceed? 8 JUDGE SMITH: Yes, Please. 9 B Y NR . BACKUS: 10 Q Mr. Cumming, do you have the question? 11 A (Cumming) I'm not certain that I do, I'm sorry. 12 Q Okay. I'm directing your attention to the January 13 25th testimony as which you were listed as a witness. 14 A (Cum ning) Yes. 15 0 And I'm asking you, if as of the time that you filed 16 that testimony there was anything in there that you believe was 17 inaccurate or untrue? 18 A (Cumming) I was a principal author of that 19 testimony. There were a number of other principal authors. My 20 memory is vague, but I think at the time I filed it I certainly 21 or I approved it and agreed to it; I certainly thought that 22 every statement in there was true. 23 0 With particular regard to pagee seven -- I'm sorry, 24 six and seven of that testimony, section IV entitled "The
)
25 reasonable assurance issue, " are the statements made in there l Heritage Beporting Corporation (202) 628-4888 O' i i
KELLER, CUNMING - CROSS 13982 1 accurate and true? 2 A (Cumming) Excuse me, can I take a minute to get it O 3 in front of me. 4 O Sure. 5 A (Cumming) Could you repeat this.. 6 Q I'm directing your attention to the heading IV, roman 7 IV, "The reasonable assurance issue, " as set forth on pages six 8 and seven? 9 hR. FLYNN: Is the testimony being offered into 10 evidence? Is it being offered as an exhibit, it's not in 11 evidence now? 12 hE. BACKUS: It's already marked as an exhibit. It's 13 Massachusetts Exhibit 42. 14 NR. FLYNN: Thank you. 15 THE WITNESS: (Cumming) Okay. I have roman IV, "The 16 reasonable assurance issue, " what is the language you want me 17 to focus on? 18 B Y NR . BACKUS: l 19 0 Well, first of all, I want, were you the principal 20 author of that language on reasonable assurance? et/43 21 (Continued on next page.) 22 l 23 l i 24 1 l 25 Heritage Reporting Corporation (202) 628-4888 O
CUNMING, KELLER - CROSS 13983 T44 l' A (Cumming) At this point in time I would have 2 difficulty separating out what was mine and what wasn't mine. 13 I I think as I testified in my deposition this January 25th 3 4 filing was developed as a collegial process. I would certainly 5 take responsibility for any of the statements that are in here. 6 Q All right. 7 The testimony we've been talking about, of course, 8 was attached to the March 14th testimony which stated on Page 9 3, and I quote, "We adopt the FEMA supplemental testimony filed 10 on January 25, 1988, ta the extent that it is consistent with 11 this testimony and incorporated by reference. " 12 Do you recall that? 13 A (Cumming) I'm sorry, what page is that again? 14 Q Page 3, middle of the page. 15 A (Cumming) Yes, my memory is very clear with respect 16 to the language in those three sentences. 17 Q Okay. Now my question, Mr. Cumming, is, is the 18 discussion of the reasonable assurance issue in the January 19 25th testimony part of -- is that consistent with the March 20 14th testimony, and therefore incorporated, or is it 21 inconsistent with it? 22 NR. FLYNN: I object. It calls for legal 23 conclusions, unless you're asking for his perception, but 24 otherwise I submit this is simply argumentation. 25 NR. BACKUS: Well, I think, Your Honor, this is Heritage Reporting Corporation (202) 628-4888 1 J
CUMMING, KELLER - CROSS 13984 1 this witness, as he pointed out, has been in all these pieces 2 of testimony. This testimony says that they were incorporating V,- 3 that January 25th testimony to the extent that it was 4 consistent. And I'm just asking him it, in his opinion, the 5 reasonable assurance discussion in the January 5th testimony is 6 indeed consistent,- or if it was not part of what they intended 7 to include by this. 8 JUDGE SMITH: I think it's perfectly appropriate 9 cross-examination. e 10 MR. FLYNN: The distinction that I want to make here il is that Mr. Backus represented that this was a credibility line 12 of questioning. And if there are some inconsistencies that Mr. 13 Backus wants to point out in proposed findings, then I submit, 14 yes, it is relevant. 15 But the point is whether Mr. Cumming perceives the 16 inconsistencies or not. And if he says there are none, then 17 that opens up the argument that he missed something. 18 But if the point of the question is, does B follow 19 from A, then it's just argumentation. 20 JUDGE SMITH: I don't think that the March testimony, 21 when it uses the phrase "inconsistent " made clear. As a matter 22 of fact, when I read it myself, I was wondering, well, you 23 know, that's a pretty loose term, and I think he has a right to 24 inquire and follow it through to the witness's state of mind at l l 25 the present I think is what you're -- l Heritage Reporting Corpora tion l (202) 628-4888 l () l 9
CUNMING, KELLER - CROSS 1398S 1 NE. FLYNN: Well, if it's understood that we-are 2 inquiring into the witness's state of mind either then or now, 3 then I'll withdraw the objection. 4 hE. BACRUS: Okay. S B Y NR . BACKUS: 6 Q Do you have the question, Mr. Cumming? 7 A (Cumming) Yes, I do. 8 O All right. 9 A (Cumming) And I would state that I was the person 10 who insisted that to the extent that it is consistent with this 11 testimony be put in there. l 12 Q Okay. 13 A (Cumming) And you want me to say if all paragraph 14 four is consistent with the March 14th filing. 15 O Right. 16 A (Cumming) Not the June 10th, but the March 14th. 17 Q Right. 18 A (Cumming) I think there is consistency with the 19 entire first paragraph that goes over to the top of Page 7. I 20 think there is some inconsistency with paragraph two. 21 Q Okay, and what is that inconsistency? 22 A (Cumming) To the extent that paragraph two implies 23 that there is an independent, or states that there is an 24 independent judgment outside of NUREG-0654, and I'll explain in 25 a minute why I'm using that term rather than 350.5 (a) or (b), Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 13986 1 it's inconsistent, in my judgment. Otherwise, I would say it's 2 consistent. The reason I state that is thia. 3 There is a bridge between the NRC and the FEMA 4 regulatory scheme, and the bridge is 10 CFR Part 50, Section 5 4 7 (b) (1 16) , and that this almost exactly identical to 6 44CFR 350. 5 (a) (1-16) . 7 In other words, both of those regulatory schemes 8 lists planning standards which 3: fact are identical and track 9 to the NUREG. 10 0 Okay. You've just identified the language I wanted 11 to direct your attention to. 12 The first full paragraph on Page 2, or the second 13 paragraph of the discussion of reasonable assurance issues 14 states, does it not, on the January 25th testimony, "FEMA ' 15 interprets its regulations to mean that it first must 16 determined whether radiological emergency response plans comply 17 with NUREG-0654, FEMA-REP-1, Rev. 1, " (citing the regulation); 18 and secondly, whether such plans, "adequately protect the 19 public health and safety by providing reasonable assurance that 20 appropriate protective measures can be taken off-site in the 21 event of an emergency." Citing the appropriate regulation sub 22 (b) instead of sub (a), correct? 23 A (Cumming) That's correct. You've restated exactly 24 what's there. 25 Q So doesn't that not imply, but in fact state that as Heritage Reporting Corporation (202) 628-4888 9 ,,- m - m- g- q v- '-+ =-
CUMMING, KELLER ~ CROSS 13987. 1 of January 2Sth, you as a FEMA witness in this testimony were 2 saying there is a two-part or two-tier test for adequacy: 3 Compliance with NUREG-06S4 elements, and a determination of , 4 reasonable assurance? S Isn't that what it says ? 6 A (Cumming) Absolutely. 7 Q A;3 that's not what you believed at the time, is it? 8 A (Cumming) If you are asking me what my personal 9 opinion at the time was, my position at the time was that there 10 was legal support for this position. I did not argue at the 11 time it was the best legal position. 12 'Q Your name is on this testimony, and you've testified 13 that you believed every sentence in here was true; is that 14 correct, Mt. Cumming? l 15 A (Cumming) Yes. To that extent, it's true. 16 Q All right. 17 A (Cumming) If you are trying to distinguish between 18 my legal arguments and my personal opinion, I have no problem 19 with that except this is an agency filing. 20 MR. FLYNN: Your Honor, this line of questioning is 21 misleading. The statement is that that is FEMA's 22 interpretation that that is the policy that FEMA has adopted at 23 that time. 24 Now to ask Mt. Cumming did he personally believe that 2S is a very different question. l 1 i Heritage Reporting Corporation (202) 628-4888 l () , i l J
CUNMING, KELLER - CROSS 13988 1 JUDGE SMITH: Well, it may be, but I think Mr. 2 Cumming is doing quite well explaining what - you know, what f 3 is role is and what his position is in response to the 4 questions. It's a natural logical area that the Intervenors 5 have a right to flesh out, and we can read the testimony, the 6 January 25th testimony, and we're hearing Mr. Cumming and 7 everything is falling into place. I don't see how anybody is 8 being injured. 9 NR. FLYNN: Very well. 10 BY MR. BACKUS: 11 Q Mr. Cumming, you did testify on the second day of 12 your deposition, which was back on Friday, April 1st, that -- i
'3 and you can refer to this if you want to. It 's Volume 2, Page 14 125-126, in response to questions thac it was your testimony if i
15 the planning standards of NUREG-0654 are met, that a reasonable O 16 assurance finding must issue from FEMA; is that correct? 17 And your answer was, "that 's correct ", right? Do you 18 recall that? 19 A (Cumming) I don't have it right in front of me. 20 Could you repeat that? j I 21 O Yes. In fact, I'll be glad to share it with you if l 22 you want. 23 JUDGE SMITH: Would you repeat it, please? 24 h3. BACKUS: Okay. 25 THE WITNESS: (Cumming) Question: "Mr. Cumming, I Heritage Reporting Corporation (202) 628-4888 O
CUbb!ING, KELLER - CROSS 13989 1 understood your testimony if the planning standards in 2 NUREG-0654 are met, that a reasonable assurance finding must I L 3 issue from FEMA; is that correct?" 4 Answer: "That 's correct . " 5 BY MR. BACKUS: 6 O And the next question and answer. 7 A (Cumming) Question: "Has that always been your 8 vie w? " 9 "It has always been my view. " 10 That has always been my view. 11 Q Okay. 12 A (Cumming) It's still my view. 13 Q All right. 14 A (Cumming) However -- 15 Q Okay. O 16 A (Cumming) -- as a lawyer, I can make an argument 17 there is some legal support for the posture that there is some 18 independent analysis under the way the FEMA reg is worded. , 19 Q Okay. And it was because as a lawyer you could see 20 some merit to a view that there was a requirement that might 21 have to be . met beyond NUREG-0654 that you were willing to sign 22 this January testimony with that statement we've been referring 23 to, stating that there is a two part test? 24 A (Cumming) I felt that there is -- I still feel there 25 is some legal support for that argument. In fact, if pressed, i Heritage Reporting Corporation l (202) 628-4888
CUNMING, KELLER - CROSS 13990 1 I would say that there is some indication, because ,f the
- 2 tracking of the two sections in NRC's tsgulatory scheme, and (G 3 I'll read the language.
4 But, remember, FEMA is not expert on NRC's regulatory S scheme. 6 Reading form S0.47 -- 7 Q Does that include NUREG-12107 8 hE. BACKUS: I withdraw that . I'm sorry. 9 JUDGE HARBOUR: Mr. Backus, that's not a regulation. 10 hE. BACKUS: No, guidance document. 11 THE WITNESS: (Cumming) (a) (2) , the sense reads, "A 12 FEMA finding will primarily be based on a review of the plants. 13 Any other information already available to FEhA may be 14 considered in assessing whether there is reasonable assurance 15 that the plans can be implemented." 16 BY MR. BACKUS: 17 Q All right. As we've previously discussed, Mr. 18 Cumming, we now know that the January 25th testimony has been 19 entirely removed except for the one paragraph that's quoted in 20 the June 10th testimony as part of the June 10th testimony, 21 correct? 22 A (Cumming) That's correct. 23 O And is it now the agency's legal position, which I 24 take it is consistent with your, as you said, long-held view, 25 the view you've always held, that there is no independent Heritage Reporting Corporation l (202) 628-4888
CONNING, KELLER - CROSS. 13991 1 reasonable assurance standard beyond the meeting of the 2 requirements of NUREG-06S47 O 3 MR. FLYNN: I object. This is clearly calling for a 4 legal conclusion from this witness. He isn't asked what his 5 opinion is. He asked -- the question was specifically what is 6 FEMA's legal position. 7 MR. BACKUS: Well -- 8 JUDGE SMITH: If you change it to policy position, 9 program position, whatever, I don't think it really matters. 10 MR. FLYNN: Well'-~ 11 JUDGE SMITH: In any event, FEMA has to have a 12 position on the issue, I guess. I mean if they do or don't, I 13 think that that should be established, and what it is, and he's 14 qualifled ta give it. 15 The fact that he's a lawyer may help him. The fact 16 that he's part of the -- 17 MR. FLYNN: My point is, this is one of the ultimate 18 issues in the case, and it's a matter of legal argumentation. 19 It's a matter for the ultimate decision of the Board. 20 JUDGE SMITH: But it's also a program matter and a 21 policy matter. And we are asked to 1ook at FEMA's position 22 whether it flow from legal, program, policy, inspiration, or 23 whatever. 24 MR. FLYNN: Certainly it's appropriate for that to be , 25 brought out. But I still submit it's a matter of argumentation Heritage Reporting Corporation (202) 628-4888
CUMMINGr KELLER - CROSS 13992 1 to be developed in proposed findings. 2 Nevertheless, I understand your ruling and I will 3 subside. 4 JUDGE SMITH: Wel1 i ali right. 5 No r I think FEMA should have an opportunity to tell^ 6 us, and I don't know, duty, if it goes that fare but an 7 opportunity to tell us how they view that issue. 8 MR. FLYNN: And I'm not resisting that. I just -- 9 but to the extent that it's a legal conclusion, I think that's 10 my role and not his. 11 JUDGE SMITH: Well, I think that the -- it is too 12 blurred the way it is. FEMA has to make policy determinations 13 and program determinations based upon legal interpretations, 14 and they are so mixed up that I don't think the distinction is 15 going to be meaningful anymore. O 16 MR. FLYNN: Very well. I will subside. 17 THE WITNESS: (Cumming) Judge Smith -- 18 MR. BACKUS: In addition, Your Honor -- 19 THE WITNESS: (Cumming) -- if I may make a brief 20 ccmment. 21 MR. BACKUS: Just a second. 22 I just wanted to adde this testimony starts off Page 23 3 which a chronology headed by legal considerations were a very 24 important influence r and we had a discussion yesterday about a 25 motion to strike on the grounds that this was a legal Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 13993 1 conclusion. 2 MR. DIGNAN: Well, Bob, he subsided. O 3 NR. BACKUS: All right. 4 hR. DIGNAN: Let's go. 5 NR. BACKUS: I'm used to lawyers that say they're 6 going to subside and don't. So I -- but I acknowledge your 7 comment. 8 THE WITNESS: (Cumming) Judge Smith, I'm going to 9 give this speech once, and then I hope I do not have to repeat 10 it. 11 At the time of my deposition, because I was once 12 counsel on the case, I asked that -- all the parties if they 13 purported that they had ever conveyed anything to me that was 14 privileged, that they waive that privilege. Some did, some 15 didn't. O 16 I have since decided that that's an improper 17 approach, and in some cases I have hesitated in responding to 18 give the lawyers, and eventually you will see that an 19 opportunity to raise, if there are any objection. 20 I feel that I am obligated to rely on any information ! 21 conveyed to me. I don't bel!. eve any of it was conveyed to me 22 in a privileged manner, and that may explain the slowness of my 23 response. I have no hesitance in answering any of these 24 questions of Mr. Backus. l 1 25 hE. BACKUS: I have not detected any hesitance l l Heritage Reporting Corporation (202) 628-4888 1 ! I
CUNMING, KELLER - CROSS 13994 1 whatsoever, Mr. Cumming. 2 BY MR. BACKUS: 3 Q Now, do you remember the ques tion? 4 A (Cumming) Yes, I do. 5 Q Okay, what's the answer? 6 A (Cumming) My answer is that it's true that the focus 7 of the regulations that were the underpinnings from the June 4, 8 1987, September 11, 1987, January 25, .1988 filings of FENA 9 focused on the FEMA regulatory scheme. 10 It's also true that the March 14th and June 10th 11 filings reflect the influence of various decisions of the 12 Commission and other materials on the NRC regulatory scheme, 13 and there's a reason for this, and it was part of the debate 14 that went on from June. , 15 And the reason for this is very simple. Basically O 16 the FEMA position is now that there is in fact one definitive 17 set of determinations that are made on the regulatory scheme, 18 FEhA has no independent adjudicative bodies. It has no 19 commission. And that for FEMA to adopt before licensing boards 20 positions that do not reflect what in fact is either settled 1 21 law or largely settled law is to be banking its head against 22 the wall. l 23 Q Well, NW. Cumming, what I'm trying to get at, and I l 24 hope is of interest here, is the fact that on January 25th FEMA 25 filed, with you as one of its witnesses, a piece of testimony , l l 1 Heritage Reporting Corporation l (202) 628-4888 I
CUNNING, KELLER - CROSS 13995 1 that you say is true that said there is a two-part test before 2 FEMA will sign off on an off-site emergency plan. O 3 Now we have testimony dated June 10th without any 4 assertion of a two-part test. And if I hear you correctly 5 saying, nor there is no two-part test. You meet NUREG-06S4 and 6 you win. , 7 What happened between January 25th and June 10th to 8 cause the agency to have a different opinion of whether there 9 is a two-part test or not? 10 A (Cumming) Well, probubly my hammering on them for 11 those six months had a material impact on them -- 12 Q Okay. 13 A (Cumming) -- as to what the law is. 14 Q All right. 15 So finally some time in the first six months of 1988, 16 your legal opinion as to the better legal view prevailed and 17 become the agency position which you are now here asserting as 18 a witness on the June 10th testimony, right? , 19 A (Cumming) I would agree with that. i E44 20 (Continued on next page.) 21 l l
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KELLER, CUNNING - CROSS '13996 t/45 1 Q Just to end this up, had it prevailed by Narch 14th 2 when you included the January 25th testimony as incorporated by 3 reference? 4 A (Cumming) In my judgment I would say, yes. 5 0 Although you were the one that said you insisted that 6 the January 25th testimony be appended to the March 14th 7 testimony? 8 A (Cumming) That's correct. , 9 NR. FLYNN: I object. 10 THE WITNESS: (Cumming) Are you objecting? 11 NR. FLYNN: Yes. I'm ~~ 12 NR. BACKUS: Wall, I think it's now time for a motion 13 to strike, because he's answered the question. 14 THE WITNESS: (Cumming) No, I haven't answered the 15 question. 16 hR. BACKUS: I thought he said, that's correct. 17 THE WITNESS: (Cumming) I said that's correct, but 18 with one exception. I don't know if ~~ ' 19 JUDGE SMITH: Do you want to hear it or not? 20 (Laughter) . 21 JUDGE SMITH: Do you want to gamble? 22 NR. DIGNAN: It's a winner, Joe, I got a feeling. l 23 Let him go. j 24 NR. FLYNN: I'll withdraw the objection. 25 NR. BACKUS: Subsides. Heritage Reporting Corporation (202) 628-4888 I
KELLER, CUNNING -CROSS 13997 1 BY NR. BACKUS: 2 O Would you want to - finish your answer, hW. Cumming?
\- 3 A (Cumming) on the March 14th filing I argued 4 strenuously that there be no reference to the January 25th 5 filinge and because of my strong insistence I didn't win, did 6 not have it referred to at alle but the language r to the extent 7 not inconsistente got put in there.
8 Q Oh, did I mishear you. Then you were the one that 9 didn ' t want the January 25th testimony included? 10 A (Cumming) I absolutely did not want the January 25th 11 in. , 12 Q All right. 13 A (Cumming) And you should know why from my 14 deposition. 15 Q Okay. Your testimony on both March 14th and on June O 16 10th includes after the heading "Legal considerations were very 17 important, " a chronology of events or decisions made that you 18 believe were important to the determination of the ultimate 19 FEhR position; is that correct? 20 A (Cumming) That's correct. 21 O And this is on pages, I think, six through nine of l 22 the June 10th testimony; right? 23 A (Cumming) I believe it starts at three. l 24 Q I'm sorry, three. 25 A (Cumming) Four, five r six and seven of the June i l Heritage Reporting Corporation (202) 628-4888 . () l i
KELLER CUNMING - CROSS 13996 .; 1 10th. 2 O Right. And the purpose of this was to list those 3 developments that were important to influence how or understand 4 how FEMA arrived at its present position; correct? 5 A (Cumming) That's correct. 6 Q Now, I notice here that you made no mention of 7 FEMA-REP-3 which is listed in the index of guidance documents, 8 which has been marked as an exhibit in this proceeding; is that 9 correct? 10 A (Cumming) That's true. And it's certainly true that l 11 if anyone understood that absolutely everything that had ever 12 transpired on Seabrook with respect ha the agency had to be 13 included in this list or I somehow was misstating the case, I 14 apologize. Since that record, in my judgment, would fill ,this 15 roosa with paper, not all chose references are made. O 16 Q Welle I understand that, but FEMA-REP-3 la still 17 listed as a operative FEhR document at some level of agency 18 guidance, is it not? 19 A (Cumming) I believe that FEhA-REP-3, in my judgmento 20 could very well have been included. But there are other l 21 documents that could also have been included. 22 O Okay. And were you aware of FEMA-REP-3 when you were l l 23 preparing this testimony, did y'u know it existed and basically 24 what it dealt with? l l 25 A (Cumming) I've been aware of FEMA-REP-3 since it was Heritage Reporting Corporation 1 (202) 628-4888 l 4 () , i l _ -_ .-. __ _ - - , - i
KELLER, CUMMING - CROSS 139.09 ' 1 first published. 2 Q Zn fact, it's based on that that you felt, since long b,_ 3 before you became a lawyer or a witness in the Scabrock 4 proceeding that Seabrook was a case that was going to be 5 difficult and controversial, weren't you? 6 A (Cumming) Absolutely. 7 Q I think you told us in your deposition that it was 8 through your efforts that you arranged for Region 1, FEhA 9 which, of course, is the area that includes the Seabrook site, 10 to be the very first region to have its own regional counsel at 11 the time when you had that luxury; right? 12 A (Cumming) That was certainly my ulterior motive. 13 O And you recognized long before you started working on 14 the Ceabrook litigation as a lawyor that there were likely to 15 be serious and difficult icauas for the agency regarding this 16 particular plant; right? 17 A (Cumming) Absolutely. 18 O And part of that would have come from what was 19 involved in FENA-REP-3 which describes Seabrook as a special 20 case; right? 21 A (Cumming) FEMA-REP-3 speaks for itself, whether they 22 use the words "spec 1a1 case" or not, I don't remember. I 23 O Do you remember that in FEMA-REP-3 there was talk 24 about consideration being given to road construction or ramp 25 construction at Seabrook7 Heritage Reporting Corporation (202) 628-4888 y . - - . . - n v ~ , - -
KELLER, CMMMING - CROSS 14000 1 A (Cumming) Yes. 2 O Is there any FEMA documents that have raised those
-O 3 considerations for other plant sites nhat you know of? .
4 MR. FLYNN: 1 object to the question. The line of 5' questioning up- until now has to do with what hW. Cumming 6 understood to be influential in FEMA in arriving at its 7 position. The pending question has to do with the comparison 8 of Seabrook to other sites, and I submit that that's 9 immaterial, irrelevant, and improper. 10 NR. BACKUS: Well, I'm just exploring the il decisionmaxing that went into the inclusion or exclusion of 12 items in this chronology of significant events. And obviously, 13 we think it's surprising that FEMA-REP-3 was not mentioned, and 1 14 I'm just exploring the importance that FEMA-REP-3 could 15 reasonably be determined to have for somebody trying to list
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16 the significLnt events. 17 JUDGE SMZYH: I don't understand the relationablp 19 between that end ramps at other sites. 19 hR. BACKUS: Well, I think that -- I don't know, l 20 maybe the witness is going to tell me there are other sites. 21 When you have a site, as at Seabrook, wherc the agency itself 22 is considering the prcblem so severe that they are suggesting
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23 that you need major conatruction, that would seem to me to 24 elevate the importance of this document to the point where it i l 25 ought to be included in a chronology, if it's intended to be a Heritage Reporting Corporation (202) 628-4888 i i i i
KELLER, CUNNING ~' CROSS 14001 1 full and accurate chronology of significant events. That's 2 all. 3 NR. FLYNN: And I haven't objected to the line'of 4 questioning until this pending question. It calls for a S comparison of -- 6 JUDGE SMITH: Well, we've frequently cited;the 7 Commission's admonition that one plant is not to be compared to 8 another, and for that reason we have not allowed inquiries into 9 othsr plants. On the other hand, when the issue is consistency 10 -- when the issue is the basis for the planning for Seabrook 11 and he's cross-examining and he might want to show an 12 inconsistency and this witness's actions or the agency's
- 13 actions, that might be another matter, I don't know. It would 14 depend somewhat upon the value of it.
I i 15 But the fact is, you're correct, the planning for i 16 another site as such is not relevant to the planning for
, 17 Seabrook by Commission flat.
l l 18 JUDGE LINENBERGER: Mr. Chairman, I have a slightly i 19 different observation here with respect to Mr. Backus's 20 comments about inclusion or not inclusion of FEMA-REP-3. I - 21 thought I heard Mr . Cumming earlier say, these are my words not~ 22 bis, a line had to be drawn somewhere, it was drawn in a way 23 that excluded FEMA-REP-3, but that in his judgment that is a l 24 document that could well have been included.
- 25 Do I characterize what you said correctly, sir?
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KELLER, CUMMING - CROSS 14002 1 THE WITNESS: (Camming) That's correct. 2 JUDGE LINENBERGER: Thank you. O 3 NR. BACKU3: Well, let me withdraw the question, 4 then. 5 B Y NR. BACKUS: 6 O And just follow that up by saying, in your judgment, 7 would it have been better to include it? 8 A (Cumming) No, because the truth is that FEMA-REP-3 9 is a contractor produced document which, in my judgment, never 10 gained the influence in the agency that it probably should 11 have. 12 Q Supposed it had gained the influence in the agency 13 that you think it should have, then it would have been 14 included, I take it? , 1 15 NR. FLYNN: That 's pure.ty speculative. j 16 THE WITNESS: (Cumming) To the extant that I have 17 control over the testimony, yes. 18 NR. DACKUS: Thank you. All right. 19 B Y NR. BACKUS: 20 0 Now, another itcm that's not mentioned here, Mr. 21 Cumming, but that you testifled about in your deposition was 22 the self-initiated review on the Pilgrim plant in the summer of 23 1987; is that right? 24 A (Cumming) That's correct. 25 0 And I understood you to say that you were the senior i Heritage Reporting Corporation j (202) 628-4888
4 KELLER, CUNMING - CROSS 14003 1 legal person in the agency that concurred in that finding? 2 A (Cumming) Absolutely. O 3 MR. FLYNN: I'm going to object at the beginning of 4 this line r again on relevance grounds. We're going right smack S back into a comparison with other cites. 6 NR. BACKUS: Well, Mr. Cumming has testified in his 7 deposition, as he said, that that was a significant event in 8 the course of this, in his mind, and yet it's not included in 9 the testimony. 10 hR. FLYNN: Well, the fact that I didn't object il during the deposition shouldn't be taken as a"waiver of the 12 objection -- the standards far the admissibility of the proper 13 questioning in a depositions are different from at a hearing. 14 I press the objection. 15 MS. NEISS: May I be heard, Mr. Chairman. I think 16 this evidence is intended to show inconsistency between the 17 approach being taken at Pilgrim and the approach being taken at 18 Seabrook. And it's particularly relevant because the same 19 person whose testifying here was the senior person who approved 20 the approach taking at Pilgrix with regard to how FEMA's rules 21 ought to be interpreted. 22 NR. REIS: Mr. Chairman e if the staff can be heard, 1 23 that's the very reason why we should not go into it here. It 24 gets to other plants. We have 100 other licensed plants. It's 25 just too tangential and doesn't have enough probative force to I l l
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i KELLER, CUMMING - CROSS 14004 1 be inquired into here. 2 What was the cause or not cause of anything done at O 3 Pilgrim is just -- should not be opened up in this proceeding. 4 hE. OLESKEY: Welle there's testimony that's been 5 given consistently here including testimony, as I recall it, by 6 the NRC panel. In any event, by FENA witnesses, that both 7 matters which with respect to beach populations posed for the 8 RAC and FENA substantially the same issues were being evaluated 9 at the same time. 10 So it'r c:ost fundamental that we ought to bu 11 allowed to explotu s.sether or not this agency takes a 12 consistent position to what it defines as substantially the 13 same issue going on in the same region within the agency. 14 hB. FL YNN: But that assumes t b<t ths Lrcumstances 15 at Pilgrim are the same as they are at Seabcook, and that 16 hasn't been established. Once we get out of that you're back 17 in a comparison of the sites. 18 MR. OLESKEY: There's clear testimony in the record 19 at this point that the beach population issue and the adequacy 20 of the emergency response plans with respect to evacuation and 21 sheltering were viewed by the RAC and FEMA as ~~ for purposes 22 of NUREG-0654 and reasonable assurance, substantially the same 23 in '37 -- especially in 1987 when these matters were current. 24 MR. DIGNAN: Where's that evidence in the record? 25 Just tell me the page reference to that one. Heritage Reporting Corporation (202) 628-4888
KELLER, CUNMING - CROSS 14005 1 Nh. OLESKEY: I don't carry page references on my
- 2 sleeve, Mr. Dignan, you're going to have to take \'
(V 3 representation. If you disagree -- 4 NR. DIGNAN: I do. 5 NE. OLESKEY: -- go ahead and make your argument. 6 MR. DIGNAN: I do. I don't 'know of any place in the 7 record where evidence of that nature appears. I could be 8 wrong, but if you give me a cite, I'll ba glad to retracc that. 9 NR. OLESKEY: I wasn't intending to~have to make this 10 argument this morning. I thought it u a so established by the 11 record. I didn't go back and hunt for references. 12 hE. DIGNAN: Well, maybe the Board has it clearly in 13 mind and will rule in your favor, if they do, I'm sure. 14 JUDGE SMITH: This member does not have any (' 15 independent memory of what he's saying, although I do recall 16 the subject matter. 17 Mr. Backus, what was your question ? 18 MR. BACKUS: I'm not sure, but the question I was
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19 trying to get at was to ask this witness, given the fact that ; 20 he_ was the senior legal official in the agency to approve a 21 negative finding on the Pilgrim emergency planning in the 22 summer of 1987. If, in his opinion, that's consistent with tha . L 23 position that the agency, including him, is now taking on 24 regard to the Seabrook plans. That's the gist of what I want ' 25 to ask him. i Heritage Reporting Corporation l (-) (202) 628-4888 l l 1
KELLER, COMMING - CROSS 14006 1 JUDGE SMITH: But just -- the overall conclusion of ,e 2 negative finding, without any specifics. V BR. BACKUS: Bight. Well, I guess I should ask a 3 4 predicate question, and I can do that. 5 B Y MR. BACKUS: 6 0 would you agree, Mr. Cumming, that although Pilgrim 7 and Seabrook are both plants on the sea coast in New England, 8 that the emergency plan'ning problems are more difficult at 9 Seabrook because of the population and the road network there 10 than they are at Pilgrim; would you agree with that ? 11 MR. FLYNN: Same objection. 12 JUDGE SMITH: Was there an objection ? 13 NE. FLYNN: Yes, I said, same objection. 14 JUDGE SMITH: Well, I see where you're going. I want f~\ 15 to consult with the Board as to what the guideline we think GI 16 should be on it. 17 MR. BACKUS: I'm not - you understand, I'm adopting 18 what Attorney Weiss said completely. My purpose here is not to 19 compare the sites per se, but to compare whether the agency's 20 position is consistent. 21 JUDGE SMITH: I understand that. That's -- let's 22 take our mid morning break and we want to talk about this. Is 23 this going to be an important part of your cross-examination we 24 better have a pretty firm aspect of it. 25 NR. BACKUS: On a scale of one to 10, fi ve . Heritage Reporting Corporation (202) 628-4888
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KELLER, CUMMING - CROSS 14007 1 (Laughter) 2 (Whereupon, a brief recess was taken.) (~\ t[46 3 JUDGE SMITH: We want to announce our ruling on the 1 4 objection about FEMA's finding 'in Pilgrim. As we've observed 5 the Commission will not permit Licensing Boards to compare the l 6 plans of one plant to another cecause generally they're not l 7 comparable. 8 However, the same regulations and planning standards 9 apply. And the admonition not to compare emergency plans does j 10 not bar categorically an inquiry into the quality of FEMA's 11 position, and that inquiry can be tested by consistency where 12 it is possible to test consistency. 13 So we don't categorically bar an inquiry contrary to i 14 Mr. Reis's argument. 15 On the other hand, we do not have an evidentiary (~') 16 record nor are we likely to have an evidentiary record in this 17 case which will permit comparisons because we have no evidence 18 before us that the situation driving FEhA's finding in one case 19 is comparable to this one. So you have not yet, with the 20 question that you have posed, established a basis to test 21 consis t en cy'. 1 22 MR. BACKUS: All right, let me ~~ 23 MS. WEISS: If I may be heard. Mr. Thomas testified 24 on this yesterday or the day before, and did state that in his l 25 view the situations were quite similar with respect to the I l 1 l Heritage Reporting Corporation (202) 628-4888
KELLER, CUMMING - CROSS 14006 1 beach population and he felt the rulings were inconsistent. 2 JUDGE SMITH: Well, we don't foreclose your asking h, , . 3 the witness. 4 MS. NEISS: Okay. 5 JUDGE SMITH: Whether their actions were consistent. 6 But we do not accept the premise that there was a commonality, 7 as far as he's concerned, you know, we don't accept that i 8 premise. But we don't foreclose testing on consistency. 9 MS. NEISS: I was just responding to your assertion 10 that there wasn't anything establishing that on the recced, and 11 I think that there is. 12 JUDGE SMITH: Well -- 13 MS. WEISS: It may not be dispositive, but there's ? l 14 evidence on this.
~) 15 JUDGE SMITH: We do not have an evidentiary record
(%J 16 establishing the situation at -- Pilgrim is so comparable to , 17 Seabrook that there is a presumption that there should be 18 consistency. But you can ask him, you know, were you ! 19 consistent? How about this, how about that? But there's no 20 assumption. 21 MR. BACKUS: Well, let me go right to that. 22 B Y NE . BACKUS: i 23 0 kW. Cumming, you certainly think it's important for i I 24 the agency to apply -- FEhA to apply consistent standards to l l 25 its review of plans taking into account plant characteristics j Heritage Reporting Corporation (202) 628-4888 , (
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KELLER, CUMMING - CROSS 14009 1 and site considerations, but that the standards be applied 2 consistently to reviews of plants in various places, don't you? (-)\ \a 3 A (Cumming) Absolutely. I think I am one of the 4 leading bugs in the agency about the issue of technical 5 uniformity. 6 Q And as of last summer on a self-initiated basis FEMA 7 had come up with a negative finding on the Pilgrim planti is 8 that correct? 9 A (Cumming) That's correct. 10 Q And in effect, as of last summer after the filing of 11 the June 4th statement of position, the agency had a negative 12 finding on Seabrook in regard to the beach population issues; 13 is that correct? 14 NR. FLYNN: I -- objection. Well, let me call for a 15 clarification. You talk about negative finding, you're
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i 16 implying that FEMA's positi on said, there is no reasonable l 17 assurance, and that is a mischaracterization of what the 18 testimony said. And that's the basis for my objection. I 19 MR. BACKUS: All right. Do you want to suggest l 20 something to me; I don't want to get into arcane terminology 21 that may have some significance in your -- 22 MR. FLYNN: Well, I don't have the testimony in front 23 of me, but my recollection is that it said that we were not 24 prepared at that time. Until the issue was resolved, we were 25 not prepared. Heritage Reporting Corporation (~) (202) 628-4888 v
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1 1 KELLER, CUMMING - CROSS 14010 1 NR. BACKUS: W611, let me try this. 2 BYNR. BACKUS: (-) RJ 3 Q As of last summer, in light of the agency's position 4 filed on June 4th, the well known pages 38 and 39 of that 5 filing, it was fair to say that the agency was saying that the 6 New Hampshire emergency plans for Seabrook did not pass muster 7 as of that time; right? 8 A (Cumming) Yes. 9 Q Okay. So as of last summer the agency had a 10 consistent view of the emergency plans for these two plants 11 we've been mentioning, in a general sense? 12 A (Cumming) To the extent that the Pilgrim finding was 13 premised on beach population issues, in my judgment, they were 14 consistent ae of last summer. () 15 Q Are they consistent as of today? 16 A (Cumming) As I testified in my deposition, I thought 17 that in light of our formal change of position before this 18 Board that to the extent the same issue controlled the Pilgrim 19 finding it should be revisited. 20 Q Meaning, in your opinion the negative finding on 1 21 Pilgrim would have to be withdrawn in light of the position the 22 agency has taken on March and June on Seabrook? 23 A (Cumming) Okay. I testified at my deposition that 24 the FEMA finding on Pilgrim, was formally trensmitted to NRC, 25 and it was my understanding based on a Federa2 tegister notice Heritage Reporting Corporation (202) 628-4888 O l l
KELLER, CUNMING - CROSS 14011 1 that was published, that the director of NRR had formally 2 overturned that finding and indicated that it was not an issue 3 any longer at Pilgrim. 4 In a meeting on April lith with officials of NRC, my 5 understanding of what had been done was corrected. I was 6 incorrect in my deposition, and I was told, yes, NBC still has 7 substantial concerns about Pilgrim based on our transmittal of 8 our finding. 9 O Well, in Jight of that, that there was a meeting on 10 A}pril lith of 1988 with NBC officials that I take it indicated 11 support for the FEMA position, negative position on Pilgrim, 12 these -- 13 A (Cumming) There were a variety of factors upon which 14 the Pilgrim determination was made or finding was made. In my () 15 judgment, the beach population was not the most significant. 16 There are reasons for that including the numbers of persons, as 17 I understand it, that are on the Massachusetts beaches. 18 But given that the treatment is uniform, my 19 understanding was, yes, there were still significant concerns, 20 and that NRC had treated with the greatest respect our negative 21 finding on Pilgrim. 22 Q All right. And did that have to do then primarily 23 with issues other than people on the beaches near Pilgrim as 24 opposed to beaches -- beachgoers at Snabrook? 25 A (Cumming) It wasn't detailed. But it's clear that Heritage Reporting Corporation (202) 628-4888
KELLER, CUNMING - CROSS 14012 .
.l 1 the written public documents l'iled by FEMA indicated that in 2 part the Pilgrim negative determination rested on a beach 3 population analysis under the NUREG.
4 Q Now, when you say, your deposition, you were talking 5 about what you said on the second day of your deposition on 6 page 83, I believe, where you said and I quote: "To the extent 7 that the negative finding in Pilgrim rests on those issues, to 8 my knowledge, they would have to be reevaluated in light of 9 what we filed on March 14th. " 10 A (Cumming) That's correct. 11 Q And you're now saying that, in view of what the NRC 12 told you on April lith that you may not feel you need to 13 reevaluate what you had done in regard to Pilgrim? 14 NR. FLYNN: I object to the characterization that I () 15 don't believa that is what the witness said. 16 JUDGE SMITH: Well, you know what would be helpful to 17 me, if you could start with the time that you believe that the 18 FEhA finding at Pilgrim should be used or revisited, if you 19 could start with that point and just, in a straight and 20 narrative way, tell us what has happened and where we are. 21 THE WITNESS: (Cumming) Okay. Approximately the 22 first week of August FEMA transmitted a negative finding on 23 Pilgrim. About two weeks later I saw a letter authored by 24 Chairman Zech to the Governor of Massachusetts which related 25 the FENA finding and indicated that they were ~~ the concerns Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUMMING - CROSS 14013 1 were of significance and should be fully considered by the ( 2 Commonwealth. And that went from Chairman Zech to the Governor 3 of Massachusetts. 4 And one of the specifically listed issues was, styled S beach population or beach population issues, _my memory is not 6 quite accurate on that. 7 I was very concerned because when FEMA makes a 8 finding, either favorably or-unfavorably on reasonable 9 assurance, I can assure you that everyone who is involved with 10 that gives their fullest attention, their most meaningful 11 purpose to making sure it's the best position an agency can 12 transmit. 13 And I have to state that I was extremely upset when I 14 saw the Federal Register notice, and I was quite relieved when 15 I saw Chairman Zech's letter that we had not been officially U\ 16 ignored. 17 To that extent, the issues were consistent, and the 18 analysis was consistent. In fact, one of the reasons that over 19 the summer of 1987 FEMA probably didn't focus enough attention 20 on Seabrook was that it was consumed throughout most of that 21 Summer with Pilgrim. 22 We had had a formal report by the Commonwealth of , l 23 Massachusetts that stated that they had significant concerns 24 with offsite planning at Pilgrim. And we had had that report l 25 for over a year, and had never transmitted that document, Heritage Reporting Corporation (202) 628-4888
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l 14014 KELLER, CUMMING - CROSS 1 although it was -- and this is part of the arcaneries of NRC's
- 2 own internal procedures. It had been received in certain v It had been received by FEMA, but FEMA had 3 elements of NRC.
4 never taken a position on it. 5 I felt to have documentation by the Governor of a 6 State that a plan was inadequate and had not have officially 7 communicated our position on that information to the Nuclear 8 Regulatory Commission was close to neglect. 9 So I have to admit that I was pushing to make sure 10 that FEMA had a position, even though the plant was not 11 operating, that we had somehow communicated that-to the Nuclear 12 Regulatory Commission. i 13 And that's the basis of why they were consistent at l 14 that time. j 15 JUDGE SMITH: Now, your answer, at my invitation, I 16 think has gone beyond the area of consistency, which is the 17 only justification for inquiring into anything about Pilgrim. 18 Would you state again your view about consistency and 19 re visi ting, as we sit here today? l l 20 THE WITNESS: (Cumming) Since our filing, I j 21 testified at my deposition at the end of March and it's still j 22 my opinion, that to the extent our filing concerned the beach l 23 population issue at Pilgrim that we would have to revisit that, 24 and it's my understanding that there is some revisitation of 25 that going on. Heritage Reporting Corp 0 ration (202) 628-4888
KELLER, CUMMING - CROSS 14015 1 JUDGE SMITH: And is your concern there consistence ?
,r 2 THE WITNESS: (Cumming) Absolutely.
V) . 3 B Y NR . BACKUS: 4 Q I thought you were starting to say, Mr. Cumming, and 5 I may be wrong and I want to give you a chance to correct it if 6 I am, that what you originally thought might not be consistent 7 between the agency's position at Seabrook beaches versus 8 Pilgrim beaches, would not be a concern to you if the NRC told 9 you they shared the concern about Pilgrim? 10 A (Cumming) I think we have to break down your 11 question. The NRC has conveyed to us that they feel that 12 FEMA's concerns on beach population issues are significant. l 13 It's also true that the regulatory scheme of NBC and their 14 decisions on that have significance within FENA. We are not () 15 granted independent authority to challenge NRC positions. We l 16 accept them as the final position of the federal government. i l 17 And to that extent, we have had significant 18 information that's come in since the summer of 1987, which is 19 detailed in my testimony, the agency's position. 20 Q So that, in your opinion, if NRC has no concerns 21 about Seabrook, is FEMA entitled to have concerns as an agency? 22 A (Cumming) I would be very concerned officially if I 23 had any indication that NRC had no concerns about Seabrook or 24 Pilgrim. I have absolutely nothing in the past record of time, 25 and I have been in every meeting with Victor Stello since 1987, Heritage Reporting Corporation f'\ (202) 628-4888 U
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KELLER, CUMMING - CROSS 14016 1 throughout 1987 and 1988 with the exception of one meeting on - 2 October 9th or October 8th when I was up here the first week of 3 the hearing where NW. Stello came over and indicated to FENA 4 staff that they were going to have a staff recommendation to l 5 the Commission on the NRC rule r with the exception of that 6 meeting I've been at every meeting with Victor Stello ; 7 throughout 1987 and 1988. i 8 I have absolutely no impression that anyone at NRC'is 9 not fully concerned with health and safety issues, particularly 10 about this plant. .) 11 Q Well, that wasn't my question. Let me ask this 12 question. You previously testified in your deposition, as far 13 as you're concerned NRC's interpretation of reasonable l 14 assurance is binding on FEMA as well as NRC; is that right?
) 15 A (Cumming) There is no statutory definition of j s :
16 reasonable assurance. Both regulations, the FEMA regulations l 17 and the NRC regulations use the term "reasonable assurance." i 18 To my knowledge, that term is undefined by either 19 agency and any other document. So if you're stating that if 1 20 there is a final determination of reasonable assurance on a 21 plant, which is in fact what the statute vests that ' 22 responsibility in NRC, then, yes, that would be binding on FEMA 23 irrespective of whether we found there was reasonable assurance 24 or did not. 25 Q Suppose FEMA felt, Mr. Cumming, that a plant was a ' Heritage Reporting Corporation (202) 628-4888 O l _ _ - ._ ,__ - _ . ~ _ _ ~ .
KELLER, CUNMING - CROSS 14017 1 horrible site, let's just say as once somebody described a 2 particular site, lousy shelter and lousy evacuation, but NRC 3 thrcugh its, say, representative to the RAC, something like 4 that, is saying the plans are adequate; does FEMA then have, if 5 that's an authorized NRC position, does FEMA tnen have an 6 independent right to say the plans are inadequate? 7 NR. FLYNN: Objection. The question is calling for 8 the witness's opinion on what is an adequate site, and that is 9 -- first of all, it's a legal conclusion. 10 Secondly, it has nothing to do with FEhA's role. 11 JUDGE SMITH: No, he's not -- I just disagree with 12 you. I think it -- I'm not sure that I agree that's the best 13 hypothesis to put to him, but I think that the concept is 14 valuable for testing just how you go about it. 15 The Board would like to have the guidance from FENA O 16 as to how they deal with reasonable assurance and relationship 17 to NRC, and I think it's relevant. 18 I didn't care much for that particular hypothesis 19 because there's too many weaknesses in it. 20 NR. DIGNAN: I want to make a form objection, it's to 21 the words "lousy site. " Now the reason for this, it's not just 22 for the pejorative content. It's because there is no sice, 23 that I'm aware of in the country, where the NRC has permitted 24 the construction of a nuclear powerplant or itj operation which 25 has not fully met the guidelines of 10 CFR 100. Heritage Reporting Corporation (202) 628-4888
- 'KELLER, CUMMING - CROSS 14018 1 Now, when you start throwing words like "a lousy 2 site " around, that's the problem. I suggest that the question 3 be required to be, assume NRC has ruled the sito meets 10 CFR 4 100, then what follows. Because I have a real problem -- 5 JUDGE SMITH: That's implicit in everything that we 6 talk about here. But let's let him have his hypothesis and 7 let's -- 8 NR. DIGNAN: Yes, but what does "lousy" mean in - that 9 context, Your Honor. That's a plastic word in any 10 conversation, and it is more than plastic in a legal question, il especially when a witness is now being asked to say, what 12 position sill you take if everybody agrees the site is -- 13 Presumably-- I'm very serious about this-- no one at the 14 Nuclear Regulatory Commission is going to be arguing for a site 15 or a plan to be allowed at a site if the site doesn't mean 10 O 16 CFR 100. There wouldn't be anything there. 17 JUDGE SMITH: Mr. Dignan, you don't have to argue 18 100. We've gone through that and I think everybody has an 19 understanding. I think the question assumed that, but doesn't 20 make it clear. 21 Mr. Backus, you work on that question, but you can 22 pursue the concept. 23 NR. BACKUS: I did not say "lousy site, " I was using 24 Mr. Flynn's ~~ 25 JUDGE SMITH: Lousy -- Heritage Reporting Corporation (202) 628-4888 1
KELLER, CUMMING - CROSS 14019 1 MR. BACKUS: -- description which he said, it was : 2 partly in jest but had a kernel of seriousness to it, that you O 3 take a site where there are lousy evacuation times, lousy 4 shelters. 5 BY MR. BACKUS: t 6 Q And I'm asking you if you have a site that has - 7 evacuation times similar to those that we're dealing with at 8 -Seabrook, the sheltering problem similar to those that we're - 9 dealing-with at Seabrook, and an NRC person who is an 10 authorized person is telling you that the plans are adequate; 11 does FEMA have the independent right to say, no r they're not? 12 MR. FLYNN: Objection. First of all, I have to 13 respond to your reference to my remarks about lousy sheltering 14 and lousy evacuation times. At the time that I said them I ' 15 made it clear that I was not representing my views or FEMA's 16 vie ws, I was attempting a facetious paraphrase of the views of 17 everybody in the case, although not individually. 18 MR. DIGNAN: What? 19 hE. FLYNN: It was in context -- Tom, I know you i 1 20 don't agree with that, and that's my point. i 21 It was in the context of attempting to work out a 22 stipulation. 23 JUDGE SMITH: I remember the context. 24 hE. FLYNN: Right. 25 JUDGE SMITH: It was -- so even given that -- Heritage Reporting Corporation (202) 628-4888
KELLER, CUMMING - CROSS 14020 1 MR. FLYNN: My other objection goes to the question 2 which has just been put to Mr. Cumming and that is, he's been (. V 3 asked to assume that the NRC tells him that the plans are 4 adequate, and that's not established in this record. 5 hR. BACKUS: It's a hypothetical question. 6 JUDGE SMITH: How -- 7 NE. FLYNN: It's not even established in this record 8 that it should happen. 9 JUDGE SMITH: He wishes to establish what the effect 10 of such an NRC position would be -- 11 hR. REIS: Mr. Chairman, in that -- 12 JUDGE SMITH: -- on the FEMA, and I think he has to 13 get his hypotheses in a row before he can do it, and he has 14 doesn't done it yet. 15 NR. REIS: Yes. I mean, there's a difference between 16 the NRC's role in the RAC where it's a part of a collegial body l l 17 and Mr. Bores or whoever it is speaks there. And it's a final ' 18 determination of the agency through the Boards or if there is 19 no Board finally made by the staff on the adequacy of the 1 l 20 plant. And we're working towards that here. l 21 I think the question was that they heard off the cuff 22 from somebody that the NRC thought this plan was great and that 23 therefore that bit 's or from a lower level in the staff that 24 the plan was great and therefore that binds the whole agency 25 and binds FEMA as well. And we don't have that situation here. Heritage Reporting Corporation (202) 628-4888
KELLER, CUMMING - CROSS 14021 P 1 Therefore the question is so vague as to -- because
. 2 of these -- this lack of knowledge of what he's talking about 3 is so vague as to be meaningless and can't be answered. ,
4 JUDGE SMITH: Mr. Backus, one of the difficulties of , 5 your question is that you require the witness to assume that 6 lousy evacuation times fall to meet some standard for 7 evacuation times, and lousy sheltering f'all to meet some 8 standard for sheltering. And that's not an assumption that he 9 may or may be willing to accept in his question. 10 However, we call upon your creativity to come up with 11 a hypothesis that will have tried to establish a relationship 12 between the position of the NRC staff with respect to these 13 issues and the impact upon FEMA. et/46 14 (Continued on next page.) l (:) 16 17 ,
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CUNMING, KELLER - CROSS 14022 T47 1 MR. BACKUS: Let me try it this way.
,- 2 BY MR. BACKUS:
3 O Mr. Cumming, if NRC has determined for a particular 4 site that its regulatory requirements are met in 50. 47 (a) and 5 (b), does FEMA have any independent right to reach a finding 6 that the standards are not met? 7 MR. REIS: Mr. Chairman, I object to the question. 8 MR. FLYNN: And I object, too. 9 MR. REIS: It presumes that there is a final i 10 determination of the NRC before FEMA has its input. And the 11 regulations don't read that way. 12 MR. BACKUS: All I'm trying to find out, Your Honor, l 13 is what the agency, through its new testimony, and we're all 14 aware that there has been quite an evolution here, what they 15 think their proper role is here in providing under 50. 47(a), 16 findings and determinations, what their role is. That's what I i l i 17 want to know. i 18 MR. SCINTO: Sounds like a good question. 19 MR. FLYNN: I want to be heard on my objection. 20 MR. SCINTO: Ask it. 21 JUDGE SMITH: Well -- ' 22 MR. FLYNN: My objection goes to this. That the j l 23 predicate or the hypothesis is that NRC tells FEMA we think the 24 NUREG-0654 criteria are met a 'his site. So FEMA, you do 25 whatever you want, but make suta it's consistent with what we Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 14023 1 told you.
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o3 2 But the discussion and the testlmony that we've I 3 prefiled and the discussion on this record is not to that 4 effect at all. The issue has been what is the effect of an NRC 5 staff or Commission interpretation of its regulation, which is 6 by its nature generic. And then given that generic guidance, 7 then how does FEMA apply it. 8 That's very different from saying NRC tells you this 9 site is okay, or not okay. 10 JUDGE SMITH: Assume, contrary to fact, assume that 11 you received a letter at the direction of the Executive 12 Director for Operations of NRC from hW. Scinto telling you that 13 contrary to your belief, FEMA, that there are two standards 14 that have to be met under the NRC emergency planning rule. 15 One is you've got to meet the 16 planning standards ( 16 of Paragraph (b). 17 The other, as a separate standard to be applied upon 18 the entire factual situation, you must find that there's 19 reasonable assurance that the emergency plans have adequate 20 protection for the public will be afforded. 21 As contr&ry to your belief, would you feel bound by 22 that? 23 Let's further assume that no more justification for 24 that position is given othe: than I've given it to you, and 25 it's just a naked position, a naked interpretation. Heritage Reporting Corporation (202) 628-4888 O
CUMMING, KELLER - CROSS 14024 1 THE WITNESS: (Cumming) My argument -- I would 2 argue that FEMA is -- has independent judgment on whether the b(x 3 standards have been met. Whether that's acceptable -- 4 JUDGE SMITH: The standards. 5 THE WITNESS: (Cumming) The standards. 6 JUDGE SMITH: Okay. 7 THE WITNESS: (Cumming) Whether that is ultimately 8 upheld, rejected, reversed, modified by the Commission in a way 9 is of no interest to FEhR. 10 JUDGE SMITH: But that's a factual determination. 11 THE WITNESS: (Cumming) Yes. 12 JUDGE SMITH: A factual determination that the 13 standards have been met. 14 THE WITNESS: (Cumming) That's correct. f'% 15 JUDGE SMITH: Now I'm talking about a regulatory O 16 interpretation. 17 THE WITNESS: (Cumming) We basically now, I think, 18 have all arrived at the conclusion that I have argued since 19 last June. That to the extent the NRC had reached a definitive i 20 position on an issue, either through a full Commission decision ' 21 or a rule, or a licensing board decision, that FEMA was 22 obligated to the extent possible to try and follow that 23 decision. It would not independently somehow reargue, try and 24 restate, try and wriggle out of it. 25 And I hava to say that there are opinions all Heritage Reporting Corporation (202) 628-4888
I CUMMING, KELLER - CROSS 14025 1 different ways on this issue, because there are some licensing 2 board decisions I'm sure the Staff would love to have us l l 3 follow, and there are some they'd love to have us not follow. 4 But my consistent advice has been, and I believe it's 5 the agency's position, to the extent that there is a definitive 6 position out of the Commission for its adjudicatory process, 7 that it is binding on FENA. 8 ' JUDGE SMITH: So the hypothesis that I gave you that 9 kW. Scinto wrote a letter on behalf of the Executive Director 10 for Operations, that would not do it for you. 11 THE WITNESS: (Cumming) That's correct. 12 JUDGE SMITH: Okay. 13 km. SCINTO: I doubt that NW. Scinto would send such 14 a letter. , 15 BY MR. BACKUS: 16 O On the March 14th testimony, Mr. Cumming, on Page 7, 17 second paragraph, testimony says, "This testimony reflects that 18 realization," no minimum dose savings is the reference, "as 19 well as a deference to the NRC staff on its interpretation of 20 the requirement for a range of protective actions. " 21 Correct? 22 A (Cumming) That 'e correct. 23 And as you remember, I corrected that. I said when I 24 adopted this testimony, if I ever did, I would correct that to 25 say "and Commission". Heritage Reporting Corporation ~ (202) 628-4888 1
CUMMING, KELLER - CROSS 14026 1 Q Okay. Dut in fact it's your opinion that FEMA shoul'd* 2 defer to NRC staff as well as the Commission; isn't that so,
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3 the Commission or its adjudicatory tribunals? 4 MR. REIS: Mr. Chairman, I'd like -- I object to_the 5 question as being vague, because when he says defer to the 6 staff or the Commission, I'm not sure whether he's referring to 7 particular interpretations on particular plants or generic 8 interpretations. 9 JUDGE SMITH: It's a very broad question. 10 NR. B CKUS: Well, if you look at the testimony of 11 June 10th or March 14th, numerous of these items'in the 12 chronology refer to things such as letters from Sherwin Turk of 13 November 30th and February 18th as being influences that caused 14 FEMA to evolve into the present position. , i 15 JUDGE SMITH: Well, can we put it in the context ? 16 I think one of the elements that should be put on the l l 17 floor here when these questions are put to Mr. Cumming is that < _l 18 the memorandum of understanding that is still operative now 19 requires the two agencies to cooperate together to the extent l 20 that they can to present testimony in hearings. 21 And I would assume that that would suggest 3 give and 22 take and, you know, some type of deference or whatever to 23 arrive at a common testimony if possible. 24 Is that what you're getting at? To what extent would 25 they defer to the staff? Heritage Reporting Corporation (202) 628-4888 ss/
i o CUMMING, KELLER - CROSS 14027 1 THE WITNESS: (Cumming) Judge Smith, maybe I can 2 help the Board out on this, and Mr. Backus. 3 Everyone in FEMA is fully aware of 10 CFR 50. 3 with 4 respect to interpretations. I drafted that sentence. I should 5 have put in Commission. 6 The purpose of it was to point out that there are -- 7 there was information available to FEMA from a variety of 8 sources. If out of the blue a staff interpretation showed up 9 that flat out reversed a Commission decision, FEMA is not going ' 10 to be influenced by it. 11 However, if FEMA receives a staff interpretation 12 which it believes is consistent with Commission position or 13 regulations, then obviously it's going to lend weight to it. 14 We are fully cognizant of the fact that 10 CFR 50.3 exists, as 15 I believe everybody in the Commission and the General Counsel's ; 16 staff is fully aware of it. 17 JUDGE SMITH: Al1 right, 1et me point out an 18 exception here. 50.3. 19 MR. DIGNAN: He's got the purple book, too. 20 MR. BACKUS: Mr. Cumming ~~ is there a question 21 pending? 22 I should ask, right. 23 BY MR. BACKUS: 24 Q Mr. Cumming, you have previously testifled, have you ; i 25 not, that in your opinion FEMA's regulations, which closely Heritage Reporting Corporation (202) 628-4888 l l,
CUNMING, KELLER - CROSS 14028 1 parallel as you've said NRC regulations, your regulations at 2 44 CFR 350.5 (a) and (b) are procedural only, correct? O(s 3 A (Cumming) That is my opinion. 4 Q Okay. 5 A (Cumming) Professional opinion. 6 O And you said in your deposition, and I take it it's 7 still your belief that FEMA doesn't regulate anybody. 8 A (Cumming) That's correct. 9 Q And you've testified that if there is -- 10 A (Cumming) In fact, Mr. Backus, the comments -- I 11 have since my deposition reviewed the comments which came in on 12 the FEMA regulation when it was first finalized, and I would 13 point out or reinforce that, that the following discussion 14 which occurred in the publication of the regulation, and I'm 15 happy to bring it to your attention or anyone else. We can 16 bind it in the transcript. 17 A comment came in. FEMA should use different 18 language throughout the rule to reflect both FEMA and states' 19 proper relationships to local governments. Specifically the 20 word should, shall, and will need to be replaced by the phrase 21 are encouraged to, or requested to affects many sections in the 22 rule said discussion. 23 This recommendation i? made on the basis that neithor 24 FENA nor states can mandate any actions to local governments 25 except under specific emergency powers. A change in the Heritage Reporting Corporation (202) 628-4888 O~
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CUMMING, KELLER - CROSS 14029 1 language as indicated will reflect the proper role of both FENA 1 l 2 and the states with the local governments. l (~)r \_ 3 Response. There was a change -- the present language 4 reflected the FEMA relationship to both state and local l
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5 governments. l 6 I believe to the extent there is mandatory language 7 in the regulation, it is incorrect, but I was not the reviewer 8 on the rule, if it does exist. And I think -- 9 O And you do -- 10 A (Cumming) -- that may have created a misimpression l l 11 in FEMA that they were somehow regulating. 12 We are not a regulator, and the states and local i 13 governments voluntarily participate in emergency planning. 14 0 You do acknowledge that there is mandatory language 15 in the FEMA regulations we've referred to. (~ 16 A (Cumming) I would argue that there is, and it's 17 incorrect. 18 0 okay. There is also regulations in -- a requirement 19 in your regulations, is there not, for -- and I'll let you l I 20 refer me to it because I'm sure you know it better than I -- a 21 governor of u state in submitting a plan to FEMA for review has j 22 to certify that in the opinion of the state it provides l 23 reasonable assurance of adequate protection. l l 24 Is that not correct? 25 NR. FLYNN: Excuse me. I object to the extent that Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 14030 1 the question is asking for Mr. Cumming's opinion of what is in 2 the regulations. It's calling for legal conclusion. It's 3 calling -- I mean the regulation says what it says. 4 NE. BACKUS: He just disagreed with what it says, and 5 he volunteered that. I think he certainly opened it up. 6 JUDGE SMITH: Yes, I didn't understand -- 7 MR. FLYNN: -- anything more than legal 8 argumentation. 9 JUDGE SMITH: I beg your pardon? 10 NR. FLYNN: I object that this is legal 11 argumentation. 12 JUDGE SMITH: Well, that type of objection has been 13 made from the very first day this hearing opened, and we've 14 always dealt with it pretty much the same way when you've got a 15 witness like this. ( 16 I think the objection could be made on relevance. I 17 don't understand what's the relevance of that question to 18 anything that we're doing. i 19 NR. BACKUS: Well, the witness -- 20 JUDGE SMITH: Are you going to go into a debate with l 21 him whether they're a regulator? , l 22 NE. BACKUS: .. What he is now testifying to is 23 that in his opinion FEMA has no substantive regulations at all. 24 I'm going to explore that with him, because I think it's a i 25 critical part of what FEMA is now -- what its current position Heritage Reporting Corporation (202) 628-4888
CUNNING, KELLER - CROSS 14031 1 is, p 2 JUDGE SMITH: Well, this -- V 3 MR. BACKUS: That they have no substantive 4 regulations on which to determine ~whether a plan is adequate. 5 That they are - you know, I'm sure it can be explored further 6 with him, but that's what I understand his testimony to be. 7 JUDGE SMITH: Well, I think that a question and 1 8 answer approach that's going to be very belabored because I 9 don't know if you share a meaning on what you mean by 10 substantive regulation, and regulators, and that type of thing. 11 You're the one that has the time problem. 12 NR. BACKU3: All right. 13 JUDGE SMITH: Do you have -- t 14 NR. BACKUS: Oh, I have a question pending. 15 JUDGE SMITH: ~~ any enforcement authority? 16 THE WITNESS: (Cumming) Absolutely none. 17 BY hR. BACKUS: , 18 O Isn't there in fact a regulation that requires a a 19 governor or his designee to submit to FEMA a statement that the 20 plans provide reasonable assurance of adequate protection when 21 they are submitted for review? I 22 RR. FLYNN: Mr. Backus, if that's in the regulatlan, 23 why don't you simply point it out to us. . 24 NR. BACKUS: Because he knows them better than I do, 25 and I'm trying to short-circuit so I don't have to search Heritage Reporting Corporation ' (202) 628-4888
CUMMING, KELLER - CROSS ?.4032 1 through here. 2 THE WITNESS: (Cumming) Under 44 CFR Part 350, there -l 3 is a requirement that if a governor wants to have FENA review 4 its plans, and that determination is voluntary, okay, the 5 governor should ship in with that plan a certification that in 6 his or her opinion there is reasonable assurance with respect 7 to protection of the health and safety of the public. And that 8 is in the regulation. 9 NR. BACKUS: Okay. All right. 10 hR. DIGNAN: Mr. Backus, so we don't get an 11 incorplete record, could the witness be asked if it also could 12 be the governor's designee? 13 hR. BACKUS: Sure. 14 ( THE WITNESS: (Cumming) The answer is, yes, it can (~ 15 be. FEhW has consistently accepted the certification of V 16 appropriate delegees with respect to that certification. 17 NR. BACKUS: All right. 18 BY MR. BACKUS: 19 Q All right now, I was going through the chronology 20 that you had set forth in your direct testimony, and I had 21 gotten through two points, I think, that were not in the 22 chronology which led us into some of these other discussions. 23 I note that also in your chronology you make no 24 reference to che meetings held at FEMA on June 2nd and June 4th 25 regarding the filing of the agency position; is that correct? Heritage Reporting Corporation (202) 623-4088 L i .
Cute!ING, KELLER ~ CROSS. 14033 E' 1 A , _( Cumming) I don't believe I've referred to any NRC 2 meetings in tho testimony.
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'I (Cumming) 6 )A That's correct.
7 Q You've omitted that. t i 8 A (CumminjG ;
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. 15 , O All right. What sort of an influence?
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CUNMING, KELLER' CROSS. 14034 t 1 the best understanding of the agency officials.- They were
~ 2 considered positions and they were decided in that way. And s- -
3 NRC was not an influence, in my judgment, on any of those 4 decisions at any step of the way. t S It's not say that there aren't people made 6 uncomfortable. Some people have a much lower tolerance for 7 people harassing them than maybe I do, or other people within 8 FEMA do. And I think that that may have occurred. Actually it 9 occurs both ways. 10 I think we have given our fair share of abuse to NRC 11 at the lower level, or even among legal staff. 12 Q Have you done that? 13 A (Cumming) Absolutely. , 14 Q Oh, yes? t (~) 15 A (Cumming) But I treac other lawyers as appropriate U 16 targets of whatever sparring is necessary to assert and defend 17 my agency. I 18 Q Now another thing that you do not mention in your l 19 chronology here is the events that occurred before this Board 20 on January 13th of 1988. And you're aware that there was a 21 hearing before this Board on that date; is that correct? 22 A (Cumming) I disagree with that, by the way, and 23 that's one of the reasons I insisted that I put in all events 24 occurring on the record during the course of these proceedings 25 on Paga 7. Heritage Reporting Corporation (202) 628-4888 O :
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CUNMING, KELLER - CROSS 14035 1 Q Okay. 2 A - (Cumming) I believe that the conduct of this hearing 3 and the events that transpired during this hearing had a 4 significant impact ' on FEMA and its understanding of the issues. 5 Q All right. You're now referring to a sentence that ; 6 was added in the June 10th testimony that was not in the March 7 14th testimony which is found on Page 7, right? 8 A (Cumming) I'm looking at June 10th. 9 Q Bight. And added there is a statement that had not 10 previously appeared, that among the significant things were 11 "all events occurring on the record during the course of these 12 proceedings to date", right ? 13 A (Cumming) Absolutely. 14 Q And one of those significant events was what happened 15 on January 13th; is that right? , ( 16 A (Cumming) The events of January lith, 12th and 13th 17 in this hearing, with the exception of the voir dires of Mr.' 18 Thomas on October 7th, November 4th, and the Sholly ruling were 19 perhaps the most significant of the entire course of eve.sts, in 2C my judgment, on FEMA. 21 hM. FL YNN: Mr. Backus, for the sako of the clarity 22 of the record, could I ask that the witness specify what those ' 23 events were? 24 MR. BACKUS: Just a second. I want to get this down. ; 25 Can I have his answer back? ! Heritage Reporting Corporation (202) 628-4888 ; s- ; l
i CUNFtING, KELLER - CROSS 14036 .i 1 (Accordingly, the-record was read back by'the_ , 2 court reporter.) ' 2*r 3 (Continued on next page.) l . 4 5-i 6 i 7 I 8 i 1 j 9 ; 10 l i II l .I' 12 . 13 i l
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CUMMING, KELLER - CROSS 14037 T48 1 MR. BACKUS: All right. You got something you want n 2 to say? b 3 MR. FLYNN: Yes. My comment at the end of the answer 4 was for the sake of the clarity of the record, could I ask the 5 witness to specify what those events were. 6 MR. BACKUS: I'd rather have my examination proceed ; 7 and leave this for recross. I'll probably get to it. 8 MR. DIGNAN: Mr. Backus, just for my benefit and the 9 record, what -- 11, 12 and 13. I don't want any detail. I 10 honestly don't have the memory of what those dates signify. l 11 MR. BACKUS: That was -- 12 JUDGE SMITH: Mr. Backus, yes, it would be helpful if 13 we could -- 14 MR. DIGNAN: Just what hearing room and what basic 15 subject, Mr. Backus, would really help me. 16 MR. BACKUS: It was the -- actually surprised you I 17 don't remember it. This was the Board-supervised deposition of 18 Bores and Thomas. i 19 MR. DIGNAN: That's correct. Is that what you're I 20 referring to' 21 MR. BACKUS: At least on 12 and 13. I'm not sure 22 about 11. i 23 THE WITNESS: (Cumming) May I consult with counsel a , 24 minute? l 25 MR. BACKUS: Sure. Heritage Reporting Corporation (202) 628-4888 O
CUMMING, KELLER - CROSS 14038 1 JUDGE SMITH: Eleven was -- there was also'a 2 milestone on the lith, but I forget. G(~ 3 (Witness and counsel confer.) 4 THE WITNESS: (Cumming) If it's of help the Board, S there is Monday the lith and the transcript. 6 hR. BACKUS: All right. ; 7 MR. FLYNN: Your Honor, if I bring up the image of ; 8 the oceanliner turning, I think that would -- 9 hE. DIGNAN: Yes. , 10 NE. FLYNN: -- remind you of what happened on January 11 lith. 12 NE. DIGNAN: Thank you, hW. Flynn. 13 NE. FLYNN: I hesitated to do that, but I thought it l l 14 was important to establish a context. . ,r 15 NE. BACKUS: And hold those metaphors. 16 BY NE. BACKUS: 17 Q Mr. Cumming, you have now elucidated something I was 18 going to get to, and this sentence that you've added about all i 19 events, and you've identified certain things. 20 Does that capture the major events that are 1 21 encompassed within our statement, "all events occurring on the l l 22 record"? l 4 23 A (Cumming) Yes. \ 24 O Okay. Now, with regard to the first item that ~~ 25 A (Cumming) Well, I shouldn't say -- certainly the Heritage Reporting Corporation (202) 628-4883 i
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CUNMING, KELLER - CROSS 14039 1 events of the last two weeks in the hearings have been , 2 significant, and it reenforced my view, because I had no way to O 3 put Mr. Peterson and hW. McLoughlin under oath, or hW. Krimm. 4 I didn't know whether there had been some abuse of the process. 5 Their testimony under oath confirms, to the extent I had an 6 understanding, that they were not influenced improperly by NRC. 7 And I would say that is significant. 8 I think if they had said under oath, yeah,_ I was 9 influenced, there would have been a problem for me. 10 Q would have been very surprised, too. > 11 A (Cumming) Because everything I saw in the system was 12 perfectly legitimate, and I'm more than happy to explain to 13 this Board, which I'think is entitled to an explanation, and 14 cne of the reasons why I am a witness, is that there was a 15 significant legal play from June on that impacted on FEMA's 16 decisionmaking. 17 Q All right. l 18 A (Cumming) And without my becoming a witness, you , t 19 would not have that in the record.
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t 20 Q All right, we're appreciative. t 21 Now, with rcgard to January 11, 12 and 13, was the 22 significance of January lith what Attorney Flynn just referred 23 t o, the fact that he had an oceanliner that he suggested might 24 be turning around? I t 25 A (Cumming) Not in my judgment. r Heritage Reporting Corporation i (202) 628-4888 i O
CUMMING, KELLER - CROSS 14040 1 O Okay. On , January 13th, you testified in your (y 2 deposition, and I'm looking at Page 38 of Volume 2, a lot had (/ I believe I identified. In fact, I made 3 happened in January. 4 a large number of copies of the transcript of January 13, 1988, 5 where I believe the issues were laid out clearly by Judge 6 Smith, by the parties and I believed it was helpful for people 7 to understand what' had transpired at the hearing. 8 Correct? 9 A (Cumming) Absolutely. 10 Q Did you just take any day and make large copies of 11 transcripts, or was January 13th a particularly significant 12 day? 13 A (Cumming) I made extracts from the lith. I'm not 14 sure about the 12th. The reason the 12th was significant is f () 15 16 lace in the afternoon Bores and Thomas were put on in a "deposi tion " . And the 13th was largely consumed by that 17 continued deposition. 18 Q All right. What was so significant about the 13th 19 that it caused you for that day to make large numbers of 20 copies? i 21 A (Cumming) For a long period of time, and I'm about l 1 22 to violate hW. Flynn's admonition to me to give short answers, l I 23 I have stated the following principles with respect to 24 operations of the RAC and reversal of a position of a RAC, or 25 reversal of the positions of the RAC chairman, or reversals of Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 14041 1 the position of a regional director, or reversals of the 2 position of an associate director, and the principle is as O 3 follows. 4 0 Well, wait a minute. 5 A (Cumming) We are an administrative agency. 6 O Wait a minute. 7 I'm going to join Mr. Flynn and ask you to give short 8 answers. And if I can e can I just ask you r is it the 9 relationship ~~ 10 MR. DIGNAN: hW. Backus e you asked him why did he il consider it significant, and now you're gotag to hear. 12 NR. BACKUS: All right, I'm sorry. I'm just trying 13 to save a little tirae. 14 This is not -- f^\ 15 (Simultaneous conversation.) V 16 NR. FLYNN: It is responsive. 17 MR. BACKUS: I don't think it's the least bit 18 responsive r but go ahead. 19 THE WITNESS: (Cumming) A RAC chairman has the l l 20 absolute right and prerogative under our administrative and 21 regulatory scheme to reverse the members of the RAC. But in 22 order to do so he must produce documentation and a detailed 23 rebuttal of why he disagrees with the position of the RAC, or l , 1 24 the individual RAC members in order to reverse them. 1 25 A regional director can reverse a RAC director, a RAC j l Heritage Reporting Corporation l (202) 628-4888
CUNMING, KELLER - CROSS 14042 1 chairman. But to do so he again must do it on the record. Mc 2 must state his reasons. I'm not saying they have to be most 3 extensive in the world, but he must state his reasons on the 4 record so that you have the appropriate administrative record. 5 The associate director for SLPS may reverse the 6 regional director, and all permutations and combinations 7 thereof, but he also must do it ~~ that reversal -- on the 8 record. , 9 The director of FEMA may reverse the associate 10 directcr. He also must do it on the record and state his , il reasons for so doing. 12 As far as I'm concerned, that's black letter 13 administrative law -- on the record. 14 What had happened is that there was an apparent -- 15 some of these things I know about only because of reading the 16 transcripts, and other things. There was a RAC meeting in 17 October '86; April 15, 1987; July 30, 1987; January 7th and 8, i 18 1988; February 29, 1988; and also on May 25, 1988, concerning 19 the New Hampshire plan. . I 20 Prior to January 13th, I believed that we did not t 21 have reliable, probative evidence on the record of what had ; 22 transpired at the RAC meeting of July 30th, or even of April , 23 13th. And I felt that it was of significance for the first 24 time we had Bores and Lazarus under oath stating what had ; 25 transpired to the extent that they' had memory of what had Heritage Reporting Corporation (202) G28-4888 > () !
CVMMING, KELLER - CROSS 14043 1 occurred in those two meetings. 2 We also had something significantly different with O 3 respect to January 7th and 8th. Although I had advocated ~~ 4 h3. BACKUS: Your Honor, this is just -- 5 THE WITNESS: (Cumming) -- and it was rejected -- 6 hR. BACKUS: -- I mean ~~ 7 THE WITNESS: (Cumming) -- that that be transcribed, 8 Mr. Flynn was in attendance, and I had some understanding of 9 what Mt. Flynn understood had gone on. That's why I found it 10 significant . We knew what was on the record. 11 JUDGE SMITH: Mr. Backus, part of the problem is 12 you're probing the events which formed FEMA's position, and 13 they may not always be as simple as you might like. I don't 14 know what you can do about it. 15 BY NR. BACKUS: 16 O Mt. Cumming, I take it then that what was significant 17 about the January 13th transcript was not what Attorney Flynn 18 said about this agency was only going to fine-tune its position 19 and not change it. That wasn't what caused you to make up 20 these copies and send them around. 21 Bather, it was discussion about what happened at the 22 RAC. 23 A (Cumming) That's correct. 24 And, incidentally, Attorney Flynn on Pages 8390 to 25 8398 on Monday had described his version of what had occurred Heritage Reporting Cor.poration (202) 628-4888
CUNMING, KELLER - CROSS 14044 1 at the RAC meeting, and it comported with what he had told me. ,- 2 Q I don't know whether you've copied this or not, but V 3 at Page 8960 of the transcript of January 13th Attorney Flynn 4 said, and I quote.r "I've talked with the people in Washington 5 since then and I mean again, I'm not prepared to say what the 6 details will be, but I've gotten a very clear indication that 7 the position we will be taking is that which we have already 8 stated." 9 See that? t 10 A (Cumming) Yes, I do. 11 O Were you one of the people in Washington with whom 12 kW. Flynn talked prior to making that sthtement? , 13 A (Cumming) No. , 14 Q Was that part of the transczipt that you copied and j 15 sent out to the people you sent it out to? 16 A (Cumming) Yes. 17 0 Was that a significant statement, in your opinion? 18 A (Cumming) Yes, and I have it asterisked in my normal . I 19 style and underlined and folded over so I'd be able to find it. 20 0 Okay. Do you have any knowledge as to who in 21 Washington authorized Mr. Flynn to make that statement? 22 A (Cumming) I have no direct knowledge of the events ! 23 of that week except what transpired in the transcript. l 24 0 Okay. 25 A (Cumming) I was not involved. i Heritage Reporting Corporation : (202) 628-4888 '
CUMMING, KELLER - CROSS 14045 1 Q All right, now, let me turn now to the agency 2 position as filed on June 4th, refiled as prefiled testimony on O. 3 September lith. 4 You have testified in your deposition that at the 5 time that position was flied you were prepared to support it as 6 a legally defensible position; is that correct? 7 A (Cumming) Absolutely. 8 Q Okay. And let me just go back to something you said 9 just before our morning break in regard to the January 25th 10 testimony, and the statement in there about reasonable i 11 assurance being a separate test from NUREG-0654. , 12 And you said that although that was not the better c 13 legal opinion, you still thought there was legal support for 14 that opinion at the time that testimony was filed; is that l () 15 16 correct? A (Cumming) I'm going to answer yes, and I have to 17 explain further. 18 Q Of course. 19 A (Cumming) Throughout the period June '87 through the 20 time of the filing on January 25th, in various meetings I heard 21 various arguments was the reasonable assurance a separate testi 22 was there a separate scandard of judgment. ' 23 Some people argued that there was a separate test. l 24 Some people said, no, all that means is that when you are , 25 making a determination as to whether the standards are met, you l 4eritage Reporting Corporation (202) 628-4888 1 I
CUNMING, KELLER - CROSS 14046 1 are applying the criteria of NUREG-06S4, and because some of 2 them are not that precise you do -- there is an element of O 3 professional judgment involved. 4 Now'I have heard a variety of theories, and if the 5 Board wants to hear the variety of theories that went around in 6 FEMA on its own regs, I am more than happy to try and document 7 them to the extent I have memory. 8 0 I don't intend to ask you about them. 9 A (Cumming) Fine. 10 0 If the Board wants to, they will. 11 All right. So my understanding is that you felt on 12 June 4th that the agency position as then filed on the beach 13 population was legally defensible. 14 As of January 25th you still felt it was legally 1S possible to argue that there was' a two-tier test for measuring 16 reasonable assurance, correct? 17 A (Cumming) I would state, Mr. Backus, that it's 18 legally possible today, without being unethical. It's not the 19 best legal position, in my judgment, but it is possible to make 20 that argument. 21 Q And yet at some time 'between the filing on September i 22 lith and the time you gave us your deposition on March 25th, 23 you came to the conclusion that the agency's position as filed i 24 on September lith was legally incorrect, right? l 25 A (Cumming) Yes. Heritage Reporting Corporation (202) 628-4888 a J
CVMMING, KELLER - CROSS 14047 l 1 Q And therefore you have some things that occurred i 2 subsequent to September lith that you feel made the agency's O 3 position as filed on September lith legally insupportable. 4 A (Cumming) That's correct. S And when I say legally incorrect, legally 6 insupportable r I'm saying that the overwhelming weight is 7 contrary to that position. 8 Q Okay. 9 A (Cumming) I'm not saying that you cannot find 10 someone- who is willing to make an argument. 11 Q Okay. 12 A (Cumming) And I think it's very important that this 13 point be brought out, because there has been a tradition in 14 FEMA which, without understanding that tradition and the 1S original assignment of FEhR, it makes it seem almost like 16 that's a -- what we did was nonsensical, and that's not true. 17 0 All right. The first thing that you mention, as I 18 understand it, Mt. Cumming, was the filing by Sherwin Turk of 19 the proposed NRC rebuttal testimony, right, of the things that 20 are subsequent to September lith ? 21 A (Cumming) Yes. 22 O Okay. Now you recognize r of course, that Nt. Turk is 23 a staff lawyer, a lawyer for a party in this proceeding; is 24 that right? 25 A (Cumming) That 's correct . Heritage Reporting Cor,pora tion (202) 628-4888
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CUMMING, KELLER - CROSS 14048 1 Q And I believe that the second thing you mention in 2 determining whether or not enere was going to continue to be a O 3 legally supportable position is the promulgation of the 4 Commission's rule change on November 3rd? 5 A (Cumming) No, actually I have the Bores memos and 6 Sholly, but Bores is not in appropriate sequence because the 7 agency didn't have the Bores memos of October 15th until later, 8 whenever they were served by Shep Turk on all parties. 9 Q All right. 10 A (Cumming) I think it was late December. 11 Q All right. 12 A (Cumming) That was of significance, however. 13 Q Okay. Let's turn to the Bores thing. Dr. Bores is 14 the NRC RAC member for Region 1, and not a lawyer with the 15 agency; la that correct? 16 A (Cumming) Dr. Bores is not a lawyer. l l 17 Q Okay. And yet you feel that his memorandum to 18 Attorney Turk of October 15th was a significant thing in 19 undermining the legal correctness of FEMA's position of 20 September lith ? 21 A (Cumming) Well, I naven't put the label that all of 22 these are legal, but I think there was significance to it, yes. 23 And -- 24 0 Well, was it legal -- 25 A (Cumming) -- I think I have explained already why. l Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 14049 1 Q All right. But I want to -- what I'm trying to 2 expl' ore is why you came to the conclusion that the position O 3 you'd signed off on of September 4 -- June 4 and September lith 4 became legally unsupportable, or not easily supportable, if you 5 want to put it that way. 6 And does the Bores memo have anything to do with 7 undercutting the legal supportability of -- 8 A (Cumming) Yes. 9 Q -- the prior FEMA position ? 10 It does. How does it legally undercut the prior FEMA 11 position? 12 A (Cumming) Because it indicated that there was a 13 misimpression within FEMA way back in June with respect to both 14 Bores 1 and probably Bores 2 and the implications of those 15 documents for FEMA, including legally. 16 Q What was that misimpression? 17 A (Cumming) Going back to the December 31, 196S' memo , 18 written by Ed Thomas, in my judgment, Ed Thomas inappropriately 19 asked the question, and this is my interpretation of that memo, } 20 for some modification of the PRA, or the risk assessment for 21 the Seabrook plant. And that absolutely was outside the scope 22 of FEMA's regulatory scheme with respect to REP or its 23 administrative activities. l 24 Q Am I correct, Mr. Cumming, that you would agree with ' 25 other opinions that have been expressed that for the purpose of 1 1 Heritage Reporting Corporation j (202) 628-4888 i l 1
CUMMINGr KELLER - CROSS 14050 1 measuring the adequacy of emergency plans you assume the 2 probability of an accident within the spectrum that needs to be
) 3 considered as 17 It's going to happen, right?
4 A - (Cumming) Absolutely. l 5 Q Okay. And is that why you say you disagreed with Ed 6 Thomas asking for NBC to give you-material pertaining to risk 7 factors peculiar to Seabrook? 8 A (Cumming) That is correct. 1 9 0 Okay. 10 A (Cumming) And Dr. Bores, in my judgmento compounded ; 11 that error by discussing containment in his eventual response. 12 O Okay. You have no reason to doubt that that ; 13 containment discussion in the Bores 1 memorandum was an ' 14 important factor in the RAC meeting that discussed it on April l 6 15- 15th, do you? ; 16 A (Cumming) I have significant doubts about what 17 occurred at the RAC meetings of April 15th and July 30th. The I 18 first RAC meeting for which I felt there was some certainty was 19 the meeting of January 7th and 8th. ; 20 Q All right. In any evente the Bores memorandum of l
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21 October 15th was of legal significance in that it stated that , 22 there was no consideration as far as Dr. Bores, and to the > -l 23 extent he's authorized, NRC is concernede in regard to the ? i 24 special features of the Seabrook containment?
! 25 A (Cumming) Well, it certainly gives the appearance of ,
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CUNMING, KELLER - CROSS 1405t 1 being a self-serving statement. And I must admit that it's 2 only because of the events in this transcript that I have made O' 3 this connection. But there was a meeting between NRC and FEMA 4 on October 15th, and I think Dr. Bores was in the meoting as 5 well as Shep Turk. And I believe notes of that meeting were 6 released to the Intervenors in a FOIA or discovery request. 7 But what I find important about it ~~ whether it's 8 self-serving or notr I think that there is validity to that . 9 memor in my judgment, because it explained accurately that 10 there was no significance to the containment discussion. 11 Now, FEMA did not have that information from NRC 12 until late December. E46 13 (Continued on next page.) 14 p 15 O 16 17 . 18 19 ' 20 21 \ 22 ; 23 24 25 l Heritage Reporting Corporation (202) 628-4888 1 O
m KELLER, CUNNING - CROSS 14052 t/49 1 Q Are you saying that you did not understand from 2 Bores 2 which we were told was furnished in June omitting (~d) u 3 reference to containmento you didn't get from that that NRC 4 felt that the containment was not of significance to its S position as taken in the Bores letter? You didn't know that 6 until December? i 7 A (Cumming) Okay, let me explain. My personal 8 involvement began on this issue June 2nd, 1987 when I was 9 called to a meeting with NRC. Based on my impression of that 10 meeting, my impression which could be inaccurate r there was no 11 discussion in that meeting from NRC that we were completely 12 incorrect to have relied on the containment discussion in Bores l 13 1. 14 Q Nobody from NRC said that ? () 15 A (Cumming) That 's right . But I believe that we were 16 significantly misled by someone not stating at that time r in ; 17 that meeting, and I understand there was a May 19th meeting i 18 between NRC and FEhA which I was not a party to where this was l 19 earlier discussed which may have been of significance. And I 20 believe at the time then to straighten it out, it could have 21 been straightened out in that meeting. 22 In fact, in the meeting I made some statements about 23 the fact that we could not find reasonable assurance r but we 24 also were backing off from the Christenbury memo. j 25 Now, I think there was a distortion, though. I think i Heritage Reporting Corporation 1 ( (202) 628-4888
KELLER, CUMMING - CROSS 14053 1 that everybody in the meeting understood that certain people in , 2 FEMA felt containment was an issue. I personally believe that 3 I may have misled the people in that meeting by not picking up
, 4 on that issue right away.
5 Containment is not an issue in emergency planning. 6 Q All right. But you're saying that from your 7 participation on that June 2nd meeting, the first one you went 8' to, you understood that some people it TEhR did have that 9 impression? 10 A (Cumming) Absolutely. 11 Q Okay. 12 A (Cumming) And I was probably incorrect in not 13 pointing out to them that that was un erroneous approach. 14 Q And everybody at that meeting knew that the Bores 1 , 15 memo was being pulled and was going to be replaced by a memo ( 16 that would not reference the containment; is that true or not? 17 A (Cumming) I think we were told in the meeting that 18 there would be another memo whether, you know, as I said in my ; 19 deposition, no one knew there was a Bores -- Bores 1 didn't 20 become Bores 1 until there was Bores 2. I don't --
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i' 21 Q We understand. 22 A (Cumming) I've been told I will get things from NRC 23 before and never gotten them, and they've been told they will 24 get things from us and never gotten them. We're 25 bureaucracies, which this probably establishes more than any I Heritage Reporting Corporation (202) 628-4888 l 1 l
KELLER, CUNMENG - CROSS 140E4 1 other point. 2 Q All right. Going on from the September lith filing 3 which you found to be legally supportable, we've covered the i 4 Bores memo insofar as I want t o, and there may be others, of I 5 October 15th. We've covered Sherwin Turk's proposed rebuttal i 6 testimony of October 5th. Am I correct that the next things I 7 would be the NRC's rule change and its accompanying statement 8 of considerations of November 3rd and the Board's ruling on the 9 Sholly-Beyea testimony of November 16th? l 10 A (Cumming) Yes. 11 Q Okay. l 12 A (Cumming) Actually the rule was made available by i l 13 the Commission on October 29th, and it was published in the 14 Federal Register on November 3rd. 15 0 And the significance of the rule change was that the
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16 statement of consideration said, no minimum dose savings, no 17 minimum ETEs; is that right ? 18 A (Cumming) That's correct. The statement of I i 19 considerations. 20 0 And that rule -- l 21 A (Cumming) Not the rule itself. l i 22 Q And as you know as a lawyer and you've mentioned it l 23 in your chronology, you know that that was a Commission l 1 24 decision, that principle was contained in a Commission decision i 25 in Shoreham issues in July of 1986; right ? i Heritage Reporting CGrporation (202) 628-4888 ; 1 O J
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KELLERr CUNMING - CROSS 14055 1 A (Cumming) July 2Sthe 1986 CLI-86-13. 2 Q So that was not a new principle;; is that correct ? 3 A (Cumming) At the regulatory level it was a new i 4 expression of that principle. ; I S O It was a new expression, because now it was going to 6 be a rule, statement of considerations instead of a decision; 7 right? 8 A (Cumming) And to that extent generic. I 9 Q All right. Now, the Board ruling, bench ruling of 10 November 16the Mr. Cumming, excluding the Sholly-Beyea il testimony, you have described that, have you not, as extremely 12 significant; correct? ; 13 A (Cumming) Absolutely. 14 O And why was that extremely significant in rendering ( 15 the FEMA position as filed on September lith, no longer legally ( 16 supportable? i 17 A (Cumming) While the containment analysis and its 18 impression on FEhR might have been completely erroneous e the l 19 Sholly profiled testimony, in my judgment, was very close to 1 20 the arguments I had heard expressed by a number of people in 21 FEMA including Ed Thomas. 7 22 And to the extent that that argument had any 23 validity, after the date of the Board's ruling it had 24 absolutely no validity. I t
- 2S Q Is it fair to sayr Mr. Cumming, that after you had i
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KELLER, CUNMING - CROSS 14056 1 received and digested the Board's ruling of November 16th that 2 that was kind of the straw that broke the camel's back insofar 3 as being abie r for you r to legally say we can support the prior 4 FEMA position? ! 5 A (Cumming) No. No. I -- if you want me to find the 6 straw? 7 Q Yes, find me the straw? 8 A (Cumming) Has to be part of my deposition, I know, t 9 because I said I had already said that. t 10 I would say that my earlier information base 11 confirmed by the Shep Turk letter was probably the straw that 12 convinced me. , i 13 0 Which Shep Turk letter? ! 14 A (Cumming) Of February 18th. 15 Q Why was the Shep Turk letter more crucial in causing 16 the FEMA position to become legally and supportable than the 17 Board's ruling?
- 18 A (Cumming) Because we had it in writing admittedly by 19 a staff attorney. But I knew that there had been some review 20 of the position, because as I stated in my deposition, I had a 21 conversation with Bill Olmstead which happens to be during the ,
22 January 19th meeting where he indicated that was certainly his 23 informal position. Informal in the sense that it did not i 24 comply with 50.3 10 CFR. But I have a high level of respect I 25 for a number of NBC attorneys including Mr. Olmstead. i t Heritage Reporting Corporation (202) 628-4888 I
KELLER, CUNNING ~ CROSS 14057 1 And I believed that his overall judgment was ; 2 confirmatory of a position which I believe was first O 3 established by Edward Christenburyr his memo in June '86 which 4 within a month the rationale was in part confirmed by the f . 5 , Commission in CLI-86-13. , 6 Q All right. Now, I want to turn back to the prior 7 FEMA position on page 39 as filed on June lith; I think page 70 8 on the global numbering, if I'm not mistaken. And I want to 9 ask you very quickly, hW. Cumming, with regard to the 10 statements made in paragraphs one through three, whether there 11 were any factual errors in light of present knowledge. 12 First of all, turning to paragraph one which 13 discusses the primary guidance document which is NUREG-0654, , 14 FEMA-REP-ir is there any factual misstatement in that ; 15 paragraph? Well, let me be more precise in my question. Is 0 O 16 there any reason to believe that those statements are not t 17 accurate today as they were when filed on September lith? , l 18 A (Cumming) It attempts to be an accurate reflection s ; 1 , 1 19 and I think it is substantially an accurate reflection, 20 paragraph one of the NUREG. 21 Q Okay. Now, paragraph two speaks of, "On peak summer l 22 days thers are thousands of beachgoers in the Seabrook EP3 in ; I
, 23 areas beginning approximately 1. 7 miles from the plant. " Is 24 that a correct statement toaay?
25 A (Cumming) You convinced me in my deposition that Heritage Reporting Corporation (202) 628-4888
KELLER, CUNMING - CROSS 14058 1 it's certainly thousands, as to how many thousands, I'm not 2 certain. A V 3 Q And the sentence doesn't say, does it? 4 A (Cumming) It doesn't say. 5 Q All right. It says, "The current New Hampshire plans 6 contemplating evacuating the many thousands of beachgoers who 7 have access to no adequate shelter is a protective action in 8 the event of an accident at Seabrook. " Is that an accurate 9 statement for today's plan? 10 A (Cumming) My testimony is premised on Rev. 2 with 11 the submissions through February. I understand that on April 12 22nd formal plan amendments were made which are under formal 13 review by the RAC; I am not familiar with those formal 14 amendments. I am familiar with the submissions through 1S February. 16 Q All right. 17 A (Cumming) To the extent that it says, plans -- the
-18 plan prior to those amendments certainly said there was no 19 consideration of sheltering for the day trippers.
20 Q Okay. And isn't it still true today, even in the 21 light of the February submissions from the State r the February 22 lith, February 19th, that for the vast majority of accidents it 23 is not planned to shelter the day trippers who are not transit-24 dependent? 25 A (Cumming) That's my understanding. Heritage Reporting Corporation (202) 628-4888
KELLER, CUNMING - CROSS 140S9 1 Q Okay. 2 A (Cumming) Are we still on that paragraph two? O 3 0 Yes. The next sentence says, "We understand the 4 plans contain no consideration of sheltering the day trippers 5 because on summer days there are large number of people, of ( 6 thesO people, it is not possible to find reasonably accessible 7 shelter for them." Is that still a factually correct statement 8 today so far as you kncy? 9 A (Cumming) To'the extent that has facts I would l 10 disagree. I think that's a statement of opinion. 11 Q It says, "There are an additional number of persons ,
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12 who would be in or have access only to shelterbunwinteri!:e,d 13 cottages and motel rooms." Is that a. factually correct ' 14 statement today? ' l ' 15 A (Cumming) I would agree with that. , 16 Q And the last sentence says, "The protection \ afforded i 17 by sheltering in these structures will definitely,be less than i 18 that afforded in a normal wood frame house." f 19 A (Cumming) I would disagree with that. /
.i 20 0 You would? ',/
21 A (Cumming) Yes. I'd like to defer to my expert on l 22 sheltering, Mr. Keller. 23 0 Okay. 24 A (Cumming) But if you force me to explain I'll try 25 to.
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KELLER, CUNMING - CROSS 14060
,e' I li ; n - 0 I think I'll leave that for the next examiner.
2 The third paragraph says,'well, .$ donft vant to take ,
'- 3 up the time to go through it sentence by sentence. Do you 4 agree,- sir, that that sentence generally discusses the l r
. S evacuation time astimates and that there is now a controversy \
6 about whether those time estimates for evacuation may be
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7 1 understated? 8 A (Cumming) I was here when Mr. Thomas testified' that
> 9 his knowledge, officially, FEMA had only used the Rev. 6 10 numbers. In my .fudgment, Achile tbat kay be true at the RAC, I il think everyone who has cons;;dered this issue formally or y ,
12 informally at FEMA has tended to agree that the numbers in Rev.
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13 6 are low, and it's probably the numbers that come out of this { 14 Licensing Board ultimately which will be the controlling 15 numbers. I certainly agree with that. O 16 Q Okay. I 17 A (Cumming) I think the Rev. 6 numbers are low and I , 18 believe the Applicants and the State of Now Hampshire have done , L 19 some work, I'm represented based on their filings with the l i e 20 Board, 20 modify that Rev. 6 ~~ those Rev. 6 ETEs.
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21 O so to the extent -- 22 MR. DIGNAN: Your Honor, for cIstity sake in the l
,\ 23 record the witness has used the term "Re v. 6" and I bel 1 eve he ;
24 means Rev. 2, Volume 6. ' 25 THE WITNESS: (Cumming) I'm sorry, Rev. 2, Volume 6. I f i i l 1 Heritage Reporting Corporation i a (202) 628-4888 (1
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CUMMING-('C]fQ' ; . f,q %N1 ,u MR. BACKUS: Thank you. A ', I > n t. . ' F. p I .2 . B Y MR . BACKUS: f3)(:.;< . s
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7 , d, (Cumming) In my judgment that'5 fair. - 1 i ,
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10 , JUDGE SMITH: How are you dci.ng with your time? i
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- .i . at:0 hee him: to go and can come back for chat. So if you
, 13 mant to take a luncheon break at this point, that's fine with
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15 JUDGE iMITH: We'11 defer to your needs on it.
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16, MR. BACKUS: Well, why don't I --- if it 's okay with - s!If L 'i you I'd like to take perhaps just a - 'if it's okay with you
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,{ ' 18 I'd just as soon try and go to 15::30 and see 'if' I can finish.
l 19 If we could have maybe a two minute break now, , which I do need. l l 20 (Where;.pon, a brief recess was takan.) et/4b 21 (CorLinued on next page.) ' l
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CVHMING, KELLER ~ CRCSS 14062 T50 1 JUDGE SMITH: Go ahead, Mr. Backus. 2 BY MR. DACKUS:
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(~/ ns 3 O Mr. Cumming, you recall that during the hearing at an 4 early point there was a motion in limine filed with regard to 5 the then proffered FEMA testimony? 6 A (Cumming) Absolutely. , 7 O And you would agree with Mr. Thomas's 8 characterization that how the agency should respond to that was i 9 a cause celebre? 10 A (Cumming) Yes. 11 Q And did you argue the view that there should not have 12 been an opposition to that motion in limine? r 13 A (Cumming) Yes. ; 14 Q But as you are well aware, the agency did on or about 15 October 30th file an opposition to t' hat motion? , 16 A (Cumming) Tha t 's correct . ! r 17 Q When you say it was cause celebre, were you involved 18 in the discussions in FEMA in Washington as to whether the 19 agency should oppose or resist that motion? 20 A (Cummings Yes. 21 Q And who argued that the motion should be opposed? 22 A (Cumming) Actually I don't think hW. Flynn argued it 23 should be opposed. I think ultimatelv he deferred to the 24 program officials who felt that to somehow not oppose it was to 25 concede that the legal issue was paramount, and that there was Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 14063 1 no program input'to be made on this issue. 2 O All right. Now on Page 7 of your testimony you've 3 added new material over what was there on March 15th. 4 A (Cumming) Yes, I did. 5 Q In particular, three items: An Appeal Board ruling 6 on the Seabrook litigation that came down in 1987; a Long 7 Island Lighting Shoreham decision that cama down in May of 8 1988; and then what we've previously discussed, all events 9 occurring on the record. Well, there was a fourth item, the 10 renewal of the Sholly-Beyea ruling on May 10th, correct? 11 A (Cumming) Tha t 's correct . i 12 O Okay. Now the first item you've listed, the Appeal i 13 Board ruling in ALAB-838, of course is something that predates 14 by about a year the filing of the FEMA position that became the 15 FEMA prefiled testimony in 1987; is that right? (~ , V 16 A (Cumming) Over a year. < l 17 Q Yes. So you were aware of that at a time when you . 18 signed off on the legal -- as legally on the FEMA -- 19 A (Cumming) No. 20 0 You were not? ! l 21 A (Cumming) I was not. I found out about the Board 22 ruling, and I consider myself negligent to not have run down 23 that April 29, 1986 Board ruling originJlly. Although it's 24 unpublished, I certainly should have run it down. And I 25 realized that it was of great significance when on April 26 the Heritage Reporting Corporation (202) 628-4888
CUNMING, KELLER - CROSS 14064 1 Applicant filed its position on the contentions on the 2 Massachusette side, and it basically cited to that. r~'\ N-l 3 And I had gone back originally in the published 4 rulings when I first got involved in the summer of 1987 on the 5 Seabrook issue, and looked at all the rulings I could find that 6 were published. 7 For some reason I even overlooked ALAB-838. I think 8 it's because the headnotes deal with the fact it was an 9 interlocutory appeal, whether or not that was appropriate. 10 To my great dismay, I found out that the rejected 11 Massachusetts AG contention, which the Appeal Board confirmed 12 the rejection of that by Judge Hoyt in this Board, was very 13 close in wording to the position we filed in June. And I was 14 extremely upset that I didn't know that and didn't know that in 15 June 1987. O 16 Q All right. This Appeal Board decision, as you say, 17 states that it determines that the appeal was premature because 18 it was . interlocutory. Isn't that the gist of the holding? 19 A (Cumming) That's correct, but the wording of the 20 contention except with the phrase "meteorology" was 21 substantially what FEMA filed on Page 39 in June 1987. 22 O Okay. And did you also, in the course of reading l 23 this, happen to note the last footnote in the opinion that 24 says, "Nothing in our discussion of the issues under 25_ consideration by the licensing board should be construed as a Heritage Reporting Corporation (202) 628-4888 O
CUMMING, KELLER - CROSS 14065 1 determination on our part of the merits of the 13 sues to be 2 decided."? 3 A (Cumming) That's correct. 4 Q Okay. Now, the other thing that you mentioned that 5 came up was the Shoreham decision of May 9th, entitled partial 6 initial decision on suitability of reception centers, correct? 7 A (Cumming) That 's correct. 8 O And you alte that as a support for the proposition 9 that there is a range of protective actions even though 10 sheltering may not be a protective action in the case of 11 Seabrook for the beach population; is that right? 12 A (Cumming) In my deposition you showed some shock and 13 dismay, in my judgment, when I said that monitoring and 14 decontamination is within the range of protective actions. 15 That Board order confirmed that its own prior order O 16 affirmed by the Appeal Board had fully determined that 17 decontamination, or monitoring and decontamination was within 18 the range of protective actions. 19 You had asked me to describe what were some of the 20 protective actions under the NUREG, and there was clearly 21 reinforcement of the position I had told you in my deposition. 22 Q Okay. In your opinion, that position supports that. 23 A (Cumming) Absolutely. 24 Q All right. We all recognize, I think, that at 25 Seabrook, with some -- with what are called few or minor l Heritage Reporting Corporation (202) 628-4888 , () 1 l
l t CUNNING, KELLER - CROSS 14066 1 situations, that for the beach population the protective action 2 in the event of a fast -breaking, serious accident is going ^to 3 be evacaation under the New Hampshire plans; la that right? 4 A (Cumming) There are a variety of protective actions 5 under the New Hampshire plan. 6 Q All right. 7 A (Cumming) Evacuation is not the only protective 8 action. 9 Q You would consider other protective actions to be 10 such things, as I think you mentioned in your deposition, 11 access control, correct? 12 A (Cumming) Absolutely. 13 Q Okay. Will access control have a protective 14 capability if the accident occurs when the beaches are capacity 15 and there is no more parking space? O 16 Will it still be a protective action? 17 A (Cumming) The merits or effectiveness of various 18 protective actions varies. Un der the NUREG, there is in fact a 19 range. It is up to the decisionmaker to determine what's 20 appropriate. 21 Q Okay. Now you've mentioned monito1 ng and 22 decontamination at reception centers. Are you aware that under 23 FEMA guidance provided under signature of Mr. Krimm, as 24 discussed in the Shoreham decision, that the decontamination 25 and monitoring is targeted to deal with about 20 percent of the Heritage Reporting Corporation (202) 628-4888 O w e-e-n- -
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CUMMING, KELLER - CROSS 14067 1 population within EPZ? 2 RR. REIS: hW. Chairman, I object. I don't T 3 understand the relevance of what percentage is dealing with, 4 and what the relevance is generally of these questions. 5 JUDGE SMITH: We ll, I think he's saying if you're 6 not -- if you don't get the benefit of the protective action, 7 then it's not a protective action. 8 hE. BACKUS: Right. 9 JUDGE SMITH: But if you take that to its extreme, if 10 you have an evacuation and there is never a release, then that 11 would not have been a protective action. I don't know how far 12 you can go with your argument. 13 BY MR. BACKUS: 14 Q Am I correct, Mr. -- 15 BY MR. BACKUS: May I proceed? 16 MR. BACKUS: 17 Q Am I correct, NW. Cumming, that for measuring -- for 18 assessing the adequacy of decontamination at reception centers 19 the guidance is that you anticipate about 20 percent of the l 20 population will be appearing at those centers for 21 decontamination? 22 A (Cumming) This is my issue, and I raised it at 23 Shoreham, and that's an incorrect statement. 24 Q Okay. What does FEMA require that reception centers 25 be able to handle for decontamination? Heritage Reporting Corporation (202) 628-4888 O l -
CUMMING, KELLER - CROSS 14068 1 A (Cumming) You use the term "decontamination". 2 There is no requirement both in terms of ti ae or r' N]\ 3 numbers on decontamination. 4 What was determined was that in order to be judged 5 suitable, or adequate if you will, that the plan sponsor, 6 whoever that may be, must have personnel, equipment, et cetura, 7 capable of man,itoring 20 percent of the total population of'the 8 EPZ within about a 12-hour period. 9 0 Okay. thank you. 10 Mr. Cumming, with that explanation, you say that the 11 monitoring is a protective action; is that right? 12 A (Cumming) Absolutely. 13 Q All right. And you include the food protection 14 measures that are planned for the ingestion pathway, r!.ght ? 15 A (Cumming) Yes. ( 16 And you have defined whether or not a plan achieves Q s 17 dose savings as whether or not it achieves aggregate dose 18 savings for the entire population at risk, right? 19 A (Cumming) Could you repeat that question? 20 0 Well, how do you ~~ is it your opinion that in order 21 to be adequate a plan has to achieve some dose savings? l 22 A (Cumming) My belief is-that the objective is always 23 to achieve maximum dose savings for the entire population of i l 24 the EPZ. 25 In other words, when I say dose savings, I'm talking Heritage Reporting Corporation (202) 628-4888 A U
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CUMMING, KELLER - CROSS 14069 1 about dose rates integrated over time for the entire population 2 of the EPZ. That's the objective. %) 3 However, if you took that to its logical extreme, 4 there is a decision, San Onofre, which would have you 5 constructing new facilities to some degree. That's not the 6 approach that's taken. You take what you have at the site. 7 And so the question is then, okay, what is the actual 8 legal requirement in our position; what is FEhA's policy or 9 regulatory position as to what must be achieved. And it would 10 be some dose savings to the entire population of the EPZ, plan 11 versus no plan. 12 In other words, the plan must achieve some dose 13 savings in the aggregate to the population of the entire EPZ. , 14 Q Okay. Hypothetically -- 15 A (Cumming) That doesn't mean an individual -- one guy O 16 can walk out and not suffer doses and the plans' adequate. 17 It's aggregates. i 18 O Well, if one guy can walk out and not suffer 19 radiation injury, that's dase savings isn't it ? 20 A (Cumming) But that is not what we use. ; 21 Q What do you use? 22 A (Cumming) I just said. It's aggregate doses of an 23 entire population of the EEZ, and it'c dose rates integrated 24 over time. 25 Q Now I understand that nobody is going to agree that l l Heritage Reporting Corporation l (202) 628-4888 () i I y .- . . , , . - . , _ . p
CUMMING, KELLER - CROSS 14070 1 this is a fact. But suppose it was a fact that the plan gets 2 one person out who would otherwise not get out and get a dose, ~O 3 and that's the best you can do because the plant's in Boston 4 Common and earthquakes have leveled every building so there is 5 no streets available to get out, okay? 6 But because you got a plan, one guy walks away. Is 7 that dose savings? 8 hB. REIS: Objection. If NW. Backus isn't willing to 9 accept his own hypothetical, I submit the question is 10 irrele vant . 11 MR. BACKUS: I'm trying to explore the standard that 12 Mr. Cumming is using here. 13 JUDGE SMITH: Well, just ask him if he see any limit 14 to the amount of dose savings that would meet the requirement. 15 THE WITNESS: (Cumming) No. In other words, there O 16 is no minimum dose savings which must be achieved. 1 17 BY MR. BACKUS: 1 18 Q hW. Cumming, you're, of course, very familiar with 1 19 the memorandum of understanding of April 15, 1985 between NRC l l 20 and FEMA; are you not? l 21 A (Cumming) Yes, I am. l 22 Q And you're aware that in that document FEMA is l 23 described as having the lead in offsite emergency planning, to l 24 review and assess offsite emergency plans? 25 A (Cumming) Yes. Heritage Reporting Corporation (202) 628-4888
CUNMING, KELLER - CROSS 14071 1 Q And to your knowledge, that memorandum of 2 understanding still sets out the role FEMA should perform in 3 participating in review of emergency plans for nuclear 4 licensing? 5 A (Cumming) Does it still accurately set out the role i 6 for FEMA, is that your question? 7 Q Well, is that memorandum of understanding still l 8 outstanding? I 9 A (Cumming) The memorandum is still in effect. I 10 think there are a number of areas where I would argue it is not I 11 accurate. 12 O So you have some quarrels with the memorandum of 13 understanding as you indeed do with the regulations at Part 14 350; is that correct? 15 A (Cumming) That 's correct . - 16 Q Now you mentioned early on that you did think that _ P 17 the regulations were incorrect in using mandatory language. 18 But that did you mean the regulations were not properly 19 authorized, in your opinion? ' 20 A (Cumming) Yes. 21 Q Okay. So if we decided to attack them in the Court l 22 of Appeals, do you think wo'd win? 23 NB. FLYNN: Objection. That's clearly argumentation. , 24 NR. BACKUS: That is, I agree, I agree. l 25 NR. DIGNAN: You've got to argue it right firs t, Bob. Heritage Reporting Corporation (202) 628-4888 O , P 1
CUNMING, KELLER - CROSS 14072 1 Otherwise, you lose. 2 THE WITNESS: (Cumming) I could argue if you win, N.h 3 you'll lose. 4 MR. BACKUS: In other words -- 5 (Simultaneous conversation.) 6 hE. BACKUS: -- regulations are unauthorized. 7 BY hE. BACKUS: 8 Q Let me turn, then, to the conclusion of your 9 testimony, and also the statements on Pages 2 and 3 about the i 10 submissions from the State of New Hampshire on the sheltering 11 issue. And for the record, I think we understand we're talking 12 about the submissions of the state of February 11 and February 13 19, 1988, correct? 14 A (Cumming) That 's correct . 15 Q And those submis_sions state, do they not, that in O 16 certain circumstances the state may choose to use sheltering as 17 the protective action of choice; the primary protective action 18 of choice for the beach population? , 19 A (Cumming) Yes. l 20 Q Okay, and do you agree that as of this time there is 21 no plan that would meet the requirements of NUREG-0654 for the 22 sheltering of the beach population? 23 A (Cumming) Based on their submissions, Rev. 2, in my 24 opinion, was adequate to meet the requirements of NUREG-0654, 25 Q Okay. So in your cpinion, unlike that expressed by l l l Heritage Reporting Corporation : (202) 628-4888 l O I
CUMMINGr KELLER - CROSS 14073 1 Mr. Thomas yesterday, you don't need to have specifically 2 designed EBS messages to direct people to shelter. You don't 3 need to have specific shelters identified for specific 4 segments. You don't need to have those sorts of things in 5 order to have reasonable assurance that the sheltering option 6 can be carried out with reasonable assurance;'is that right? 7 A (Cumming) If you look at the last sentence on Page 8 11, my testimony reads, "A t the same time, whenever this choice 9 is incorporated in the New Hampshire Radiological Emergency 10 Response Plan, implementing detail will be necessary. " 11 I think you've asked me about the implementing 12 detail. 13 Q Okay. 14 A (Cumming) Our testimony is that it's adequate in 15 concept because -- and there's a very specific reason for it. 16 So I went through the fuss with Mr. Flynn about the contention. 17 The contention talked in terms of sheltering and 18 whether or not it said, before being modified to incorporate 19 both the state and local plans, it said the New Hampshire RERP 20 does not provide a reasonable assurance that adequate 21 protective measures can and will be taken in the event of a 22 radiological emergency as required by 10 CFR S0. 47 (a) (1) in 23 that the plan does not provide reasonable assurance that 24 sheltering is an adequate protective measure for Seabrook. 25 O Well ~~ Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 14074 l 1 A (Cumming) But we don't do an overall plan finding l 2 or reasonable assurance finding, on single elements.
.} 3 Q All right. In using the words that you did there in l
1 4 that last sentence, implementing detail will be necessary, you l l 5 don't intend to create any impression that that's not 6 important; that those details are minor items, right? 7 A (Cumming) The whole reason that is important, and I 8 do believe it's important, is that to the extent possible of 9 planning you want to plan and reduce, to the extent possible, 10 ad hoc responses. 11 But I will also state that basically the information 12 through February did in fact indicate that to some degree there 13 would be situations in which an ad hoc sheltering response, so- l 14 called sheltering in place would be appropriate. And I believe 15 that is adequate in concept to meet the stardards if the NUREG. (~/\ s_ ' 16 O An ad hoc sheltering plan given these circumstances 17 is adequate. 18 NE. FLYNN: Objection. The question is nonsensical. 19 Anything that's ad hoc is not a plan. 20 NR. BACKUS: I certainly agree with that. 21 BY MR. BACKUS: 22 Q Treating sheltering on an ad hoc basis is sufficient 23 to have you agree that the New Hampshise plans for the beach 24 population are adequate; 1s that what you said? . l 25 A (Cumming) This may be an oversimplification but I l Heritage Reporting Corporation (202) 628-4888 1
CUNMING, KELLER - CROSS 14075 1 think it's accurate, Mr. Backus. 2 Ny testimony is that prior to all the convolutions 3 that we've gone through with this proceeding through February 4 and the February submissions is that there full consideration 5 given to sheltering, but in fact the plan, even prior to that 6 consideration, was in fact adequate on J-9 and J-10-M. 7 Q For the beach population. 8 A (Cumming) For the beach population. E50 9 (Continued on next page.) 10 11 12 13 14 1S ( 16 l 17 l 18 19 20 21 22 1 23 \ 24 25 l Heritage Reporting Corporation (202) 628-4888
KELLER, CUNMING - CROSS 14076 t/5: 1 Q Okay, Just a few more things. First of all, you've 2 previously testified and I'd like to know if you still agree 3 that as far as NRC is concerned, in your opinion, if the plan 4 achieves some dose savings rather than maximum dose savings, a 5 plan can be adequate; is that right ? 6 A (Cumming) The Zimmer decision, ALAB-727 said very [ 7 clearly that the objective of emergency planning -- objective ; 8 ~~ was a maximum dose savings. Some people, I believe, have 9 interpreted that to be the regulatory standard. 10 The NRC including in CLI-86-13 has used other terms. 11 They have used reasonable and achievable; reasonable and 12 feasible. The Christenbury memo, I believe r used two terms. 13 I don't -- I would not speak to what NRC standard is. 14 I would say that FEMA standard is that our objective is maximum 15 dose savingJ, but our standard is some dose savings for the , 16 aggregate doses for the population of the EPZ. 17 O So the objective is shooting higher than the standard 18 may require, and the standard for FEMA is some dose savings; is 19 that right? 20 A (Cumming) In my judgment. l 21 Q All right. You also have expressed, and I take it, 22 it would still be your opinion that evacuation time estimates, 23 the length of evacuation time estimates is legally irrelevant 24 to a determination of plan adequacy; is that correct? 25 A (Cumming) Yes. Heritage Reporting Corporation (202) 628-4888
KELLER, CUMMING ~ CROSS. 14077 1 O Now, we have a situation here at Seabrook, and if I 2 can put aside the situation where they may go to sheltering,
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(- 3 which is, I think we would agree, the State saying a very 4 limited number of possible scenarios where that might happen; 5 correct? 6 A (Cumming) Yes. 7 Q If we put t.'.at aside and the thing that's going to 8 happen at the beach when the gong sounds and the alarms go off, 9 that people are going to be asked to leave, is it true that the 10 evacuation time estimates are irrelevant because a 11 decisionmaker really has no choice about what they're going to 12 do, and the only purpose of an evacuation time estimate is to 13 help make a decision? 14 A (Cumming) The real purpose of the ETEs as part of x 15 the planning standard and the approach, the review criteria of i 16 the NUREG is to try, to the extent possible, to get the most 17 accurate information possible into the hands of a 18 decisionmaker. 19 I think I testified at my deposition, you have the 20 poor guy or gal who is standing thcre, the time has come that 21 they must make a decision. They have various advisors, you 22 hope that they have the best information possible. ETEs is , 23 something that can be worked out in advance. There are , l 24 well-respected models concerning that; it's an important piece l 25 of information. i l l Heritage Reporting Corporation l
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KELLER, CUMMING - CROSS 14078 1 And to the extent possible, planning -- advanced 2 planning chould try to make sure that those ETEs are as 3 accurate as possible. 4 As to how in that decisionmaker's mind the ETE is S factored in, I would think it would depend on the expertise of 6 the decisionmaker and his or her advisors. I think it would be 7 extremely useful information, even in the Seabrook situation. 8 Q Even in the Seabrook situation where it's not one of 9 those situations where you're going to consider sheltering the 10 beach population? 11 hE. FLYNN: I object to the question. In one sense 12 it's misleading; in another sense it's irrelevant. The 13 question treats evacuation times as if they were only for the 14 Seabrook and Hampton Beaches. The evacuation times is for the 15 entire EPZ. Emergency planning is for the entire EPZ. The (\ V 16 judgments about reasonable assurance and adequacy of the plans 17 are for the entire EPZ. 18 Now, this contention focuses on those beaches and 19 that's appropriate. But the question is trying to lead the 20 witness to say, that because the decision to evacuate the beach l 21 areas is virtually automatic. That the ETEs are worthless, 22 And I submit that that's misleading. ; 23 NR. BACKUS: Well, not worthless. I'm just asking 24 him -- well, let me just put it very directly. ! 25 Heritage Reporting Corporation l (202) 628-4888 l O , l I i
KELLER, CUMMING'- CROSS. 14079 1 B Y hE . BACKUS: 2 O We do require p eparation of the evacuation time
' l 3 estimates for the ent).re EPZ and various circles out to the 10 I
4 mile radius, do we not, Mr. Cumming? , 5 A (Cumming) The ETEs are computed based on the last 6 car, essentially leaving the EPZ. 7 Q And we have ETEs, are fine, for ccrtain segments of 8 the EPZ population, do we not? . l 9 A (Cumming) And I have said that they're extremely
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11 Q All right. I 12 A (Cumming) I believe that they are very important. 13 0 If we have a situation where it's been predetermined l t 14 that the evacuation is going to be the protective action 15 strategy, does an ETE serve any purpose? 16 MR. REIS: Mr. Chairman, I object to the question, 17 and that the word was "predetermined" that the evacuation 18 strategy would be used; and I don't think that's in the record. 19 MR. BACKUS: I think it is. 20 THE WITNESS: (Cumming) hW. Keller says not in that 21 situation. I would disagree. I think that in the accident 22 progression there might be, you know, not knowing exactly what 23 the accident progression will be that may make it of limited 24 usefulness. But I still think it would be of some importance. 25 Heritage Reporting Corporation (202) 628-4888 I
KELLER, CUMMING - CROSS 14080 1 BYNR. BACKUS: 2 Q How? s 3 A (Keller) I thought -- 4 hR. DIGNAN: Mr. Backus, before you pursue the line, 5 could we have in the hypothetical, are you assuming that the 6 accident is one where the evacuation order is dictated to be 7 for the entire EPZ? I mean, you haven't put a parameter of 8 what the accident is in here. 9 NR. BACKUS: My understanding -- 10 NR. DIGNAN: And I can't believe you intend to cover i 11 all accidents with this. t 12 NR. BACKUS: No, I don't. 13 NR. DIGNAN: All right. l 14 NR. BACKUS: Ny understanding is -- 15 MR. DIGNAN: Can we have an accident parameter. (")) 16 MR. BACKUS: My understanding is, and I'm sure , 17 somebody can correct me if I'm wrong, but my understanding of 18 the State's testimony was that if they were going to evacuate i 19 the beach areas there would not be inconsistent directions, 20 that the order would be to evacuate everybody within, I think 21 it was the two mile, maybe the three-mile ring. But that's l 22 definitively what's going to happen. 23 My further understanding is that there are just, 24 according to the State and the FEMA witnesses that have i 25 evaluated tt'e State, there were very few instances in which Heritage Reporting Corporation (202) 628-4888 {
KELLER, CUNMING - CROSS 14081 1 evacuation would not be ordered in the event of protective 2 action offsite was needed. O 3 Given that, and assuming that we're not in one of 4 those rare situations where the road obstructions was one of ; 5 them, I'm asking what purpose does ' an ETE serve. 6 B Y MR . BACKUS: 7 Q And I'll ask hW. Keller, if he did express the 8 opinion that Mr. Cumming said that in that situation it doesn't 9 serve a purpose? } 10 A (Keller) For that small segment of the population ' 11 that you're talking about, and for that specific instance that 12 you're talking about, it doesn't serve a great purpose. 13 Q All right. hW. Cumming, you're familiar with FEMA's ; 14 guidance memorandum I presume that had been served on the 15 parties? O 16 A (Cumming) Yes, I am. i l 1 17 Q Are you familiar with guidance memorandum 21 on 18 technological hazards except in criteria for evacuation plans 19 dated February 29th, 1984? 20 A (Cumming) I think so. 21 Q Have you got that in front of you? 22 A (Cumming) Well, I'm looking at a chart which shows 23 what existing quidance is and it says that that will be r 24 superseded by -- GM-21 will be retitled GM-EV-1, and I think 25 EV-1 is out. But unfortunately, I don't have a distinct memory '
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KELLER, cub 9fING - CROSS 14082 , 1 of what EV-1 says. So if you want to work over superseded i 2 guidance, I'll -- () 3 Q Well, we were served these by Attorney Flynn quite , 4' recently, I believe, and this was in the package. 5 A (Keller) May I ask what the date on the cover-is? 6 Q Unfortunately, the more recent one Attorney Flynn 7 served me I left in my car. I'm working with one that bears 8 the date of April 21, 1987. 9 A (Keller) No, that's not the last one. There are 10 later packages than that, I am sure. , il O Well, have you got anything there labeled "Guidance 12 memorandum 21, " and subject to finding out whether it has been 13 withdraw or something, I've got a question I want to ask about 14 it.
- 15 A (Keller) We have 21.
(V 10 Q Look at page one under "background" in the fourth 17 paragraph which states, does it not: "It is also important to 18 note the time period necessary to effect a partial or complete 19 evacuation, faced with a decision whether to shelter or 20 evacuate authorities must compare the time period predicted for , 21 release of gaseous and particulate material with the time 22 needed for evacuation. Unless evacuation can proceed the 23 release, the public may be exposed to higher doses of radiation 24 in their cars than the} would have been in basements or other 25 shelters; " correct ? Heritage Reporting Corporation (202) 628-4888
KELLER, CUMMING - CROSS 14083 1 A (Cumming) I think that's why I made my statement and 2 disagreed with NW. Keller. 3 O Okay. 4 A (Cumming) I think I intuitively remembered that some 5 place. 6 O That does not suggest -- 7 A (Cumming) The point is that the ~~ the accident 8 progression is typically unknown. The likelihood nature and 9 duration of the release is something that is uncertain. It 10 doesn't mean that the decisionmaker is not forced to make a 11 best judgment, and you want to put as much information as you 12 can in the hand of that decisionmaker. That's why I support 13 the importance of ETEs. 14 Q Doesn't that suggest, Mr. Cumming, that you need to 15 know an evacuation time estimate, among other things, in order 16 to know whether you can move people before they're going to be 17 affected by a radioactive plume or particulates? 18 A (Cumming) The whole thrust of our testimony is that 19 evacuation may be a very important protective measure. , i 20 0 And you don't dispute that given the evacuation time 21 estimates at Seabrook that it indeed may not be able to carry 22 out the evacuation before the entire time of plume passage? 23 MR. DIGNAN: In what accident series? 24 NR. BACKUS: Serious fast-breaking accident. l 25 THE WITNESS: (Keller) I will agree in some l l Heritage Reporting Corporation (202) 628-4888
4 i KELLER, CUMMING - CROSS 14084 1 accidents your statement is a true statement. 1 2 NR. BACKUS: All right. Thank you. Thank you, t r^g i
-l 3 gentlemen. ?
4 And thank you, members of the Boald for putting up 5 with me_until 12:30. l 6 JUDGE SMITH: We'll take an hour, return at 1:30. I i 7 (whereupon, at 12:28 p.m. the hearing was recessed to , t 8 reconvene at 1:30 p.m., this same day, Thursday, June 16, 1988, ; 9 at the same place.) at/51 10 + 11 ; i 12 13 l 2 14 i 15 i O 16 (tk . Backus's cross-examination , 17 plan on Joseph Keller and 18 William Cumming follows:) { 19 20 ! 21 22 23 24 25 l l Heritage Reporting Corporation l (202) 628-4888 i ()
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CROSS-EXAMINATION PLAN FOR FEMA' PANEL (CUSNING) The purpose of the cross-examination will be to ~ explore the' ! witnesses' qualifications, the f actors ' relied upon for his belief f i that the agency should change its position, the reasonableness of {
. . . l those factors, and the s tandards used for arriving at a determina tion l that reasonable assurance.is provided by the current New Hampshire ,
plans. l
- 1. Qualification of the witness, in regard to his claimed l response of the technical part of the testimony.
- 2. The J une 10 th testimony. Are there significant changes in i the tes timony as filed on March 14 th, and by whom was the new tes t imony i i
authorized?
- 3. The rela t ionship o f the new tes t imony to the in terim t es t imony l
ON of J uly 25th. Is the January 25th testimony, sponsored by this . I wi tness, s ta t ing tha t reasonable assurance is a separa te ma t ter from compliance with NUREG 0654 consistent with his position then or in : t i the new testimony? l
- 4. In his lis t ing of chrenology of signi fican t even ts, why did ;
i the testimony Ieave out certain events, including the publication j
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of REP 3, the June 2nd and June 4th meetings in Washington, the J anua ry 19 th mee t i ng wi th t he NRC, t he so-called "would-coul d" mee t i ng of January 22 or 25, and the Pilgraim negative finding. i Does the witness recognize, as set forth in REP 3, that ; S. i Seabrook is indeed a special case. ,
- 6. Which f actor was crucial in changing the witness' view that i the prior agency posi tion was legally based? Was i t not the boa rd's O decision of November 16th on Sholley-Beyer, i
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- 7. The subsequent things listed in the~ June 10th testimony, ALAB 838 and the Shoreham decision of May 10th. How can these be related to the agency's change of position. Do they establish, as the testimony claims, tha t decon tamina t ion or access' control are part of the range'of protective action.
- 8. Doesn't the wi tness have the opinica that NRC determination of wha t cons ti tutes reasonable assurance cre binding on FEMA. Doesn't' he agree that those determinations indicate that.as long as a plan achieves some dose savings a reasonable assurance finding must be made, if the NUREG elements have been met.-
- 9. Does he acknowledge tha t a t Seabrook there are, . in the words
-of At torney Joseph Flynn be fore this board, "lousy ETE's and lousy sheltering", and does he believe this is legally irrelevant?
O 10. Isn't it in fact true that the NH plan still calls for sheltering all of the beach population in certain circumstances and - that there is no sheltering plan for this? In light of this, does the wi tness s till claim tha t reasonable assurance is provided by the New Hampshire plans?
- 11. Does the witness agree that Mr. Thomas was a dedicated civil servant and a highly credible person?
i 't O
i KELLER, CUMMING - CROSS 14085 t/52 1 A F'T E R N O O N SESSION
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p 2 (1 : 31 p.m. ) b 3 Whereupon, 4 JOSEPH.KELLER q; 5 N!ILLIjtM CUNM1NG , t 6 having been previously duly sworn, resumed the witness stand 7 and was examined and testifled further as follows: 8 JUDGE SMITH: Are you ready? Who is going to 9 proceed? 10 MR. BROCK: I am, Your Honor. , 11 CROSS-EXAMINA TION , 12 B Y MR . BROCK: 13 Q Mr. Cumming, I think we're starting. I'd like t.o L. t'
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t 14 follow up on a couple lines raised by Mr. iBackus. The first 15 one, as I understood, you agreed wit him that the regulations 16 contained in 44 CFR 350.5 are mandatory;.).o that a fair . 17 characterization? , 18 A (Cumming) %J1, as Mr. Flynn pointed out the 19 regulations speak for themselves. There is certainly language 20 in there that appear to indicate that they're mandatory. 'Th e 21 problem is that they are, in a way, nisleading because 22 participation in radiological emergency preparedness 11s a 23 voluntary progran with respect to Jtate and local govern 20Cnts.. 24 It's a voluntary act by a governor to submit plans. It's not, 25 there's no regulatory authority vested in the Federal Emergency Hericage Reporting Corporation (202) 628-4888 O /
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f't ' i \ KELLER, CUL9fING. '- CROSS 14086 e , 1 Management Agency.
,- 2 Q Are you through.
(_ You would agree that once a state submits plans to 3 it', FEMA, though, under 350.5 in order to get FEMA apprGval the \ t 5 regs as presently promulgated, that the plans musc meet the j' 6 standards outline in there; isn't that correct? 8 ;. 7 A (Cumming) Yes. My point is s.fmply that there's no i
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8 commerce clause adhhority vested in FEMi; it's a voluntary
? L 9 program. The 36thority 'is vested in the Nuclear Regulatory 10 . Commission. '
q / 11 Q So when you said earlier or agreed with Mr. Backus 12 earlier that the 350.5 is not properly authorized, did I *
,13 understand that to me that in your opi;l3.on FEMA does not have
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{ 14 legal authority to promulgate mandatory regulations or to set ; 15 mandatory standards for, nuclear powerphsnts? 16 A (Cumming) That's correct. But my discussions with 17 lw. Backus, he didn't follow up. ky interpretation of 350.5 is 18 perhaps 'sligStly different than other people. I think that the 19 majcrity of the view in FEMA'at.chis point is, that the i I 2q application of the review critoria is how judgment is asserted. 4 l l 21 I think that a misimpr&stip2 existed in the minds of 22
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certain people because it was a separate subparagraph, it was 23 (b) . ann it reads: "In order b; " state, " misprint o f, it should 24 be "or local plans in preparedness to be spproved such plans 25 and preparedness must be determined to adequately protect the I> Heritage'/ Repcrting Corporation (' 't202) 628-4888 l l l i
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;i KELLER, 'Of. ,NG i
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% YRO.'9S-1 public health and safety by providibg a reasonable assurance 2 that appropriate protective ^measur a can, be taken. "
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3 i Now, I haven't fihished the statement. A 1ot of
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4 people, I don't think, read;5urther, "Offsite in the; event of a
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,5 radiological emergency. " The rqason I think that's important yr' 6- and it goes to the vesting of some responsthilities by the
, a 7 Carter Administration in FEN.i is, that there 13 some expertise 8 la emergency preparedness.
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9 , And to grossly oversimplify and just to use an
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1 10 example, a bus driver who is t involved in evacuation may have a J
, 11 Losimeter fnd he may bs ah'a rged under the plan with reading r
C12 that dosimeter. But'if he reads the dosimeter to the effect of 13 driving the,pns into a tree, he has affected the health and
. i 14 safety 'o?: his paspengers.
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15 It's c. tear, however, that where emergency management 16 judgmenhy stri made, and they could be made liker for example, a 17 in a shelte.hing situation it could be that a long term , i [i 18 sheltering situation you had other typical emergency management 19 a,spects to it, that there might be energency t'tanagement l 20 concerns. Basically, medical carc, fo cd, sewage and water.
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21 , But it's cles.r that 350. 5 t<tiks about in terms of 22 Yadiologicalpreparedneds. 'And radiological preparedness, the 23 e::pertise, the two expertise is vested in the Nuclear
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', " f. Elegulatory Commission. ( ,g I '26 0 Would ycu agree that'on the face of 350.5 as 1 Heritage Eqporting Corporation p , (2 02) 628-4888 9 < t /,,,,.. , ki ,
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KELLER, CUMMING - CROSS 14088 1 presently promulgated, it requires FEMA to conduct a, what's 2 been referred to, a two-tier review; the first, as you've ('b 3 indicated in part A, the 16 standards referencing the NUREG, 4 and separate and independent from that part B, the reasonable 5 assurance standard? 6 A (Cumming) I don't believe anyone in FEMA today 7 accepts a two-tier standard. I will willingly admit that in 8 the summer of 1987 many people believed that there was a two- ; 9 tier standard. 10 Q Have you communicated to FEMA officials in Washington 11 your view that the mandatory regulations in 350.5 are illegal? 12 A (Cumming) No, because I haven't been in a position i i 13 that I would communicate that, other than to say I have ' 14 repeatedly on occasions prior to today expressed the view to 15 them that they think that they are -- because of the use of the 16 word "shall" in those regulations, thac they in fact mandate ! 17 the state or local government must submit plans or must comply l i 18 with those requirements, irrespective of the issue of approval. l 19 That they are not regulating state and local government or any i 20 other submitter of plans. i 21 Q Well, as I understood your prior testimony you said l l 22 that the regulations in 350.5 or at least some of those could l 23 be read as mandating certain planning standards, and to the 24 extent they did, in your view, FEMA has no authority to do 25 that. And my question is to you r have you advised FEMA Heritage Reporting Corporation (202) 628-4888 (-~)
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4 KELLER, CUMMING - CROSS 14089
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1 officials in Washington or discussed the matter that in your 2 opinion those regulations are outside the scope of FEMA's 3 authority? 4 A (Cumming) Yes. I have told them that if that is 5 their interpretation they're wrong. I can make an argument, I 6 looked at the regs over lunch. That you can make the argument 7 that that's not what the regs say, that they do clearly 8 indicate it's a voluntary submission. Once you've passed that 9 threshold, then you get approval; it's mandatory in that sense. 10 But without getting over that threshold voluntary 11 submission you never reach the ultimate point. In other words, 12 you cannot argue, in my judgment, that those regs somehow 13 mandate state and local participation. 14 0 I'm going to .nove to another line, if I could. 15 Do you have yesterday's transcript, Mr. Cumming? 16 A (Cumming) No. 17 NE. BROCK: Is there a copy you have, Joe, you could 18 provide him. 19 I'm looking at page 13733, this is part of the Thomas 20 direct testimony. And I'm going to read a portion of it, 21 anybody for context, if they feel it needs to be expanded upon 22 please comment it. 23 But as I understand Mr. Thomas's answer which begins 24 at about the middle of that page, 17 -- excuse me, 13733. He's 25 describing what Mr. McLoughlin outlined to him in a meeting of Heritage Reporting Corporation (202) 628-4888 0-
KELLER, CUMMING - CROSS 14090 1 January 5, 1988 regarding the proper standard for reviewing ,, 2 emergency plans. k,) 3 And a portion of his answer reads, this is Mr. 4 McLoughlin's view being expressed to kW. Thomas: "We ignore 5 any recommendation along the lines that FEMA had once made in 6 REP-3 for consideration of additional road construction or ramp 7 construction. We just focus on doing the best emergency plans 8 that can be, considering the nature of the site." 9 B Y hR . BROCK: 10 0 My question to you r kW. Cumming, is, in your opinion, 11 is that FEMA's present position with respect to the standard 12 for reviewing emergency plans? 13 A (Cumming) First of all, I was not in that January 14 5th meeting.
,q 15 O I understand that.
(> 16 A (Cumming) I found out for the first time when I read 17 Ms. Hock's deposition that there was such a meeting. 18 There have been discussions in at least one other 19 plant site, but they were not initiated by FEMA, at Indian 20 Point, as to whether there needed to be 12:provement in the 21 ramps, and the turnoffs. 1 l 22 O Well, can you answer -- 23 A (Cumming) REP-3 was promulgated in a time in which , 1 24 FEMA had no final regulations. And there's no question in my 25 mind that there may have been misunderstanding because of the Heritage Reporting Corporation (202) 628-4888
KELLER, CUNMING - CROSS 14091 1 way that NRC and FEMA originally agreed as 'to where this 2 emergency planning was going. There's no question that the (u~)) 3 impact of various Board orders, rulings, Commission decisions 4 have affected the trend of emergency planning. 5 0 I understand that's your view, Mr.-Cumming. What I'm 6 asking is, is the quotation which I read, does that 7 characterize FENA's present position with respect to emergency 8 planning as you understand it? 9 A (Cumming) I would say, yes. 10 Q Now, based on your prior discussions, as I understood 11 them, that to the extent NRC takes a position on these 12 emergency planning issues FEMA is bound by that, now that is 13 generally your testimony; is that correct? 14 NR. FL YNN: Objection, it mischaracterizes what he 15 said. It's not just the taking of a position. The deference 16 that is given to NRC is on matters of interpretation of NRC r 17 regulations; and that's what the wihness hgs said. 18 B Y NR . BROCK: 19 O kW. Cumtring, would you agree that the quotation which 20 I read, to the extent that you understand it, does that also 21 reflect NBC's present view with respect to emergency planning? l I 22 MR. FLYNN: Objection. - l 1 23 THE WITNESS: (Cumming) Well, I'm not an expert on 24 NRC's view. But I would say, yes. I would also state, so that 25 there's no misunderstanding, that it's also true that Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUMMING - CROSS 14092 1 frequently in review of plant sites, bantered around is the discussion of the fact that, hey, if they're going to spend all (- 2 \_/ 3 chis money on a plant, they could significantly do such and 4 such, left blank, for a nominal amount of money and improve , 5 safety. t 6 But everyone understands that that's not a call of 7 FEMA. 8 B Y NR . BROCK: ' 9 Q Is that view which you understand NRC presently . 10 holds, has NRC, to your knowledge, always held that view with 11 respect to emergency planning? , 12 A (Cumming) I would say it's much clearer after the L 13 San Onofre decision. And I'll tell you the reason for it. 14 O Could you give me a date on that decision? 15 (Cumming)
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A It's '83, I think. 16 Q All right. 17 A (Cumming) Two Commissioners, in fact in the context . 18 of Seabrook, Gilinsky and Bradford I believe r in an order or h 19 directive or whatever to send it and argue that there should be 20 some physical improvement to egress and access for the purposes l 21 of minimizing the ETE back as early as 1981; and was filed with 22 Bob Backus's brief to the First Circuit. , 23 Q You're familiar with the Christenbury memo, I believe i 24 you cited it in your testimony; is that correct? 25 A (Cumming) Yes, I am. Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUNMING - CROSS 14093 1 Q' Do you'have a copy of that? 2 A (Cumming) Yes, I do. [~s) m 3 0 I'm looking at page three of that memo, if you could 4 get that. Do you have that? 5 A (Cumming) Yes. 6 O And again, for context let me just read a portion of 7 it, quoting: "These statements demonstrate that the goal of 8 emergency planning is to reduce the impact and achieve dose 9 savings in a spectrum of accidents, " and it goes on. It says: 10 "Notwithstanding our opinion that Mr. Dignan is essentially 11 correct in his conclusion as to item A, two statements 12 contained in this portion of his memorandum required 13 clarification . " 14 And the last paragraph on that page says: "Secondly, () 15 his memorandum states that emergency planning is intended to 16 limit any adverse health effects to as low a level of 17 reasonably possible, quote, "given the facilities at hand," 18 unquote, possibly implying that additional facilities will 19 never be required to be built or installed to satisfy NRC 20 emergency planning regulations." 21 Continuing the quote: "In support of this statement 22 Mr. Dignan cites the San Onofre decision, " I believe that is 23 the one that you just referred to. 24 A (Cumming) Yes, it is. 25 0 "However, that decision provides only limited support Heritage Reporting Corporation (202) 628-4888
s KELLER, CUNMING - CROSS 14094 1 for this conclusion. There-the Commission addressed only the 2 issue of whether additional hospital construction should be 3 undertaken, and concluded that such extraordinary measures are 4 not required." 5 Now, isn't it a fair characterization of that comment 6 that, at least in the view of Mt. Christenbury at that time, he 7 was not ruling out that additional construction, perhaps 8 substantial construction would be required in order to meet 9 emergency planning standards? 10 NR. FLYNN: Objection. I object to the question and l 11 I object to the line of questioning. Th e -- hW . Brock is 12 examining Mr. Cumming on Mr. Christenbury's views; it's 13 irrelevant. The relevance of the line of questioning is to I 14 establish the standard that FEMA has applied. 15 The witness has stated the standard. Apparently, Nt. 16 Brock is trying to argue him out of that statement. , 17 hR. BROCK: Your Honor, the memo is cited in the 18 testimony that's being offered by this witness as a legal 19 consideration -- as one of the legal considerations which was 20 an important influence on FEMA. 21 The San Onofre decision, this witness cited himself. , i 22 I'm simply referring to the Christenbury memo in more detail 23 for the propositxon that what this witness says it says is ! I 24 insccurate. 25 hR. FLYNN: The pending question is, does the quote l l Heritage Reporting Corporation l (202) 626-4888 l O i I
KELLER, CUNMING - CROSS 14095 1 reflect NW. Christenbury's views? And I submit that's 2 irrelevant. 3 BR. BROCK: The views of the agency, Your Honor. It s would be the views of the NRC as expressed in this memo as this 5 witness understands them, has testified to them, and has cited 6 the case which Mr. Christenbury also cites. 7 The point being, Your Honor, this witness has given a 8 view of the present FEMA position with respect to emergency 9 planning and whether additional facilities or construction may 10 be required. 11 I think the reference impeachee that vie w. I'm 12 simply asking the witness, based on this comment, if he wishes 13 to restate his position or retract his prior statement. 14 JUDGE SMITH: I've miesed the logic of it. One of () 15 the things chat troubled me is, the San Onofre case with which 16 I'm familiar, the one that you alluded to in the Christenbury 17 memo did in fact refer to facilities for the treatment of 18 contaminated injured individuals. 19 I thought you alluded to yet another San Onofre case 20 that I had never heard of, that had something to do with egress 21 and egress -- I mean, ingress and egress to roadways. 22 So I got sort of off the thread of logic right there. 23 And while I was thinking about that, I didn't follow the nexus 24 between your question to him and Mr. Christenbury's use of San 25 Onofre. I'm in a fog here. Heritage Reporting Corporation (202) 628-4888 O b
KELLER, CUMMING - CROSS 14096 1 MR. BROCK: Let me make one more effort here, Your (') () 2 Honor, I'll withdraw the question. 3 B Y hR. BROCK: 4 Q As I understood your testimony, Mr. Cumming, you 5 stated it was FEMA's present view and NBC's present view, as 6 you understood it, with respect to emergency planning that you 7 accept the site as it is; isn't that correct? 8 A (Cumming) Yes. And the San Onofre decision, whether 9 or not I agree with Ed Christenbury's -- that's not the portion 10 of this opinion for which I draw legal support for the FEMA 11 position as filed and to which I'm testifying today. 12 What I would also buttress this is say, in the NUREG 13 itself it says the following -- sorry, not the NUREG, the 0396, 14 the predecesror document states at page 15: "No special () 15 radiological medical provisions for the general public. No new , 16 construction of special public facilities for emergency use. 17 No special stockpiles of emergency animal feed. No special 18 decontamination equipment for property and equipment. No 19 participation by the general public of test exercises of 20 emergency plans." 21 Now, there's something important for you to 22 understand. NUREG-0396 FEMA never was involved with; that was 23 EPA /NPC. But it is certainly a document that is substantively l i 24 incorporated, and the premises of which NUREG-0654 adopts, in 25 my judgment. Heritage Reporting Corporation (202) 628-4888 l I
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KELLER, CUNNING -' CROSS ~ 14097 i' l' NR '. BROCK: Could I have just one minuter-Your Honor. , s l i ; 2 (Pause) ^ {
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CUMMING, KELLER - CROSS 14098 T53 1 NR. BROCK: That's all I have, Your Honor. 2 MS. WEISS: I'm not exactly sure how to proceed, Your i b\ 3 Honor. I seek the Court's guidance. 4 Ms. Sneider and I have divided up the main 5 responsibility for the questioning on Mr. Keller. I do have a 6 few follow-up questions -on Mr. Cumming, though. And I wonder 7 if we want to all finish with hW. Cumming or -- and then go to 8 kW. Keller? 9 JUDGE SMITH: Well, we give deference to you. But 10 everything being equal, I think for better continuity if you 11 finished Mr. Cumming, that would be better. 12 kW. NEISS: Okay, I'll just do that. < 13 CROSS-EXAMINATION 14 B Y MS , WEISS: () 15 0 Would it be accurate to say, Mr. Cumming, that the , 16 focus of FEMA's various pieces of testimony up through that 17 filed on March 14th were based on FEMA's interpretation of its ; 18 own rules ? 19 A (Cumming) Absolutely. 20 Q And that the March 14th and the January 10th 21 testimony is based on FEMA's interpretation of NRC's rules? 22 A (Cumming) June 10th. 23 It still is an interpretation of our rules and our 24 administrative process. But it relles heavily, if not 25 definitively, on a construction of our understanding of NRC's Heritage Reporting Corporation l O (202) 628-4888 ' L_) 1
CUMMING, KELLER - CROSS 14099 1 own positions. (^ 2 Q It's your position now, I think you testified, that V) 3 there is one definitive set of interpretations of emergency 4 planning and that the source of those is the NRC, correct? 5 A (Cunming) I pointed out at the start of my I 6 testimony, or cross-examination, that there is a bridge between , 7 both regulatory schemes dealing with the standards 8 10 CFR 50. 47 (b) (1-16) and 44 CFR 350.5 (a) (1-16) . 9 So it is understandable that given normal agency , 10 practice that some people would understand that FENA had an 11 obligation to interpret the standards which are incorporated in 12 its regulations. 13 I'm not saying that we don't have that obligation. l 14 What I am saying is, however, the definitive interpretation of () 15 what that scheme means as far as the overall regulatory scheme 16 for radiological emergency preparedness has been left in the ; 17 hands of the Nuclear Regulatory Commission and its adjudicatory 18 bodies, and ultimately the federal courts. ; 19 Q But as to the -- 20 A (Cumming) We don't have the last word. 21 Q Both as to the overall requirements and all the , i 22 particular elements thereof; lan't that your opinion? , 23 A (Cumming) Well, if I could analogize, I would think 7 24 that there are cases where de novo issues come up, and they may , 25 burgeon up or boil up on the FEMA side in the RACs. That's one Heritage Reporting Corporation (202) 628-4888
CUNNING, KELLER -CROS$ 14100 1 of the reasons the NRC is a member of the RACs. And it seems 2 to me that ' ultimately many of those get resolved amicably. { }. 3 But in the case if you actually had a difference of 4 opinion, ultimately there has to be a final say, and the final S say is with the Nuclear Regulatory Commission and its 6 adjudicatory bodies. 7 Q As to all of elements of -- 8 A (Cumming) As to whether the plan -- 9 Q As to all of the elements of what's required to 10- determine whether emergency preparedness is adequate; isn't 11 that correct? 12 A (Cumming) As to whether those bridge planning 13 standards have been met. 14 Q And didn't you also testify at your deposition that () 15 NRC has absolute authority to change any of those 16 planning 16 standards which were jointly adopted in 0654 and appear jointly 17 in both agencies' rules without consulting ~ FEMA, much less 18 getting its concurrence? 19 A (Cumming) Yes, I did. 20 0 And isn't -- 21 A (Cumming) We haven't had that situation yet in the 22 sense of formal amendment of the rule without our input. There 23 is no question that there have been cases where there have been 24 Commission or adjudicatory dccisions where our input has been 25 extremely limited. Heritage Reporting Corporation (202) 628-4888
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CUMMINGr KELLER - CROSS 14101 1 Q That's the logical conclusion of your interpretation 2 of the relationship between FEMA -- ( - 3 A (Cumming) That's correct. , 4 Q -- and the NBC. 5 NR. FLYNN: I would instruct the witness to allow the 6 examiner to finish the question before -- 7 MS. WEISS: (Cumming) We're doing fine r Mr. Flynn. 8 NR. FLYNN: -- starting to answer. 9 MS. NEIFS: We're doing fine. 10 B Y MS . NEISS: 11 Q And if the NRC were to adopt a position inconsistent 12 with yours with respect to what the criteria should ber or 13 whether the criteria are met, it's your view that FENA must 14 yield to the NRC's definitive interpretation; correct? () 15 A (Cumming) Well, I suppose we could march on on our 16 own without any legal impact of those decisions. ; 17 Q You are legally bound. 18 A (Cumming) But we are certainly -- 19 Q It's your legal opinion. 20 A (Cumming) Legally we have no basis upon which we 21 could challenge. We have no standing. We are in a 22 relationship with NRC under che NOU which, in my judgmente 23 accurately reflects the Atomic Energy Act. 24 0 Welle the MOU refers to FEMA as having lead 25 responsibility for establishing the criterla r doesn't it? t Heritage Report 1ng Corporation (202) 628-4888
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9 l CUNMING, KELLER - CROSS 14102 i 1 Is that one of the parts you think is wrong? ; 2 A (Cumming) That I disagree with. 3 0 In other words, you think the MOU is wrong? 4 A (Cumming) I think if -- I think if you are 5 interpreting the MOU to say that FEMA had the lead 6 responsibility for developing these bridge planning standards, 7 I would absolutely disagree. I think they were clearly joint, 8 or to some extent in this case, EPA was the predecessor P organization to FEMA that was involved with-the planning 10 standards, not FEMA. t 11 Q So the MOU should -- 12 A (Cumming) But we've adopted them. 13 O The MOU should not be interpreted as giving FEMA lead 14 responsibility for estabilshing the criteria for emergency i () 15 preparednessi is that yout opinion? ; 16 A (Cumming) If you are saying by "lead" sole or -- I 17 Q No, no. I would interpret lead as at least requiring 18 a concurrence before changing a standard. 19 A (Cumming) I would say that "lead" means in this case ' 20 to surface issues perhaps, but it's a joint responsibility as 21 to how the standards are ultimately adopted and promulgated or l 22 required. i 23 Q Well, you just testified to me that NRC can change I 24 any of those rules without consulting you r much less gaining 25 your concurrence. So how is that joint responsibility? r Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 14103 1 NE. DIGNAN: Could I object to the relevance of this 2 line? 3 what difference does -- first of all, what difference 4 to this case does it make what he thinks on the subject. And 5 what difference does it make to this case whether he's right or 6 wrong on that subject, as to whether NRC can or cannot changes 7 these standards. 8 The standa::do are there. The Board's going to judge 9 the plan against tLo.te stancards. And what is the -- until 10 they change in mid cout; - what's the relevance of this 11 inquiry? 12 MS. WEISS: Well, it might not surprise you to learn 13 that I'm going to argue that FEMA's current interpretation of 14 its relationship to the NRC is absurd on its face and c i () 15 inconsistent with prevailing law, and I hope that I can 16 establish that. 17 MR. DIGNAN: Well, that's fine. Argue it. The 18 brief's the proper place, and hopefully you won't use the word 19 "absurd" about a federal agency, but you might. 20 MS. WEISS: Oh, I think I might. , 21 hR. DIGNAN: And you argue it. But what do you ask _ l 22 him for? He's not the judge. 23 MS. NEISS: Because he's the person who is going to P 24 tell me what the logical extension is of his opinion. And I 25 submit it is far from apparent on the face of his testimony. Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 14104 1 JUD3B SMITH: I thought I understood the relevance 2 of your questioning before, but since you explained it, now I 3 don't. 4 MS. NEISS: Well, that's a bad sign. 5 NE. DIGNAN: Definitely go in the brief now. 6 JUDGE SMITH: Want to give it another shot, or have 7 you -- has she satisfied you? 8 NR. DIGNAN: No, I'm pressing the objection. I 9 see ~~ I enjoy listening to hW. Cumming's legal philosophy 10 ccurse here, and I think it's good philosophy. I think it's 11 right. But I'm not sure that it's relevant to the case. 12 MS. NETSS: The witness has been brought here to - 13 explicate FENA's legal position. That's the underpinning of 14 FEMA's current position is that their decisionmaking is totally 15 driven -- ( 16 hE. DIGNAN: Well, but -- 17 MS. NEISS: Walt a minute. Let me finish. 18 By their legal interpretation of their authority and 19 the requirement that they defer to NBC, and I'm just exploring 20 it. 21 NR. DIGNAN: I concur, and he's e.yplicated that. But 22 that's not what you're asking him now. You're asking him 23 should in the future NRC on its own change one of the planning 24 standards, would you be bound. And that might be a very 25 interesting question when, as, and if tomorrow they change it, Heritage Reporting Corporation (202) 628-4888 l O' l
CUMMING, KELLER - CROSS 14105 1 and that becomes an issue in this case.
) 2 But the last time I looked those 16 standards, bless.
f~/ s. 3 their little hearts, are sitting out there and my client has to i 4 satisfy them. ; 5 MS. NEISS: Well, I think that -- 6 hE. DIGNkN: And what difference does it make, 7 assuming they changed it, whether or not his agency would feel 8 bound by the change? i 9 NS. NEISS: It goes to the reasonableness of his 10 current -- agency's current legal position. 11 MR. DIGNAN: The agency hasn't been required to take 12 a position on that that will affect this case. 13 MS. NEISS: It's a logical extensicn of his position i 14 in Seabrook. ' () 15 NR. DIGNAN: I object. I can't say my objection 16 is -- 17 JUDGE SMITH: It's marginally relevant. You know, 18 you're testing his -- how submissive do you believe his agency ; 19 is to NBC, and this was a theoretical hypothetical test. It's ' 20 not -- Mr. Dignan says that it hasn't happened, and it doesn't j 21 mean much. , t 22 But isn't your basic point - your basic argument is l t 23 that FEMA surrendered its independent and it was exercising its : 24 independence in its original position, and it has improperly 25 deferred to the NRC. Therefore, its present position should be , Heritage Reporting Corporation (202) 628-4888
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CUMMING, KELLER - CROSS 14106 1 disregarded and, volla, -- p) 2 MS. WEISS: Beyond that. 3 JUDGE SMITH: -- the original position is -- 4 MS. WEISS: Beyond that.. 5 JUDGE SMITH: -- back ~~ 6 MS. WEISS: Beyond that. That its current position 7 is inconalstent with preval1ing iaw and the agency's 8 obligations. That it's irrational. 9 JUDGE SMITH: The prevailing law of what agency? 10 MS. WEISS: Of FEMA. 11 MR. DIGNAN: Well, we're the NRC. 12 MS. WEISS: And the NRC. For the MOU -- 13 MR. DIGNAN: We're the NRC. 14 MS. WEISS: -- and the presidential order. 16 NR. DIGNAN: We don't care what FEMA thinks. Those 16 guys give us the ticketi not FEMA, 17 JUDGE SMITH: Well -- 18 MS. WEISS: .9911, what's his testimony al1 about? 19 You need FEMA's testi:nony in order to get your plant licensed. 20 MR. DIGNAN: I don't know about that. 21 MS. WEISS: Well. 22 MR. DIGNAN: I was going without it before we 23 started. You had FEMA's testimony before we started. 24 MS. WEISS: FEMA has to appear here. 25 MR. DIGNAN: And I didn't quit. Heritage Reporting Corporation (202) 628-4888 I l
CUNMING, KELLER - CROSS 14107 1 MS. NEISS: FEMA has to appear here. You need it in i (') v. 2 that sense. Rules require it. 3 MR. DIGNAN: Well, I thought -- 4 JUDGE SMITH: I think this -- 5 hE. DIGNAN: They've appeared. 6 Now can I have my licensed? 7 (Laughter.) 8 NS. NEISS: That's necessary but not sufficient. I 9 I think the question was asked and answered, wasn't 10 it? 11 NR. DIGNAN: Well, if it's asked and answered, then 12 we can move on? 13 MS. NEISS: I think it was. 14 NR. DIGNAN: Great. I guess there's no question 15 pending.
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16 JUDGE SMITH: All right. Do you have another 17 question? 18 MS. NEISS: I think it was asked and answered. 19 B Y NS . NEISS:
- 20 0 Let's go on to another subject.
21 You mentioned that you had argued strenuously when 22 the March 14th testimony was being prepared in Washington, that 23 it should not at all refer to the January 25th FEMA 24 supplemental testimony, but you were overruled; is that i 25 correct? Heritage Reporting Corporation (202) 628-4888 O' t 1
CUMMING, KELLER - CROSS 14109 1 A (Cumming) That's ' correct. ~ 2 Q Who overruled you? 3 A (Cumming) Well, I guess Joe Flynn, with the 4 concurrence of his superiors and program officials. 5 I don't know that. I honestly don't know that. I 6 Vnow Joe Flynn told me that that it was going to be filed as 7 part of the testimony. 8 Q Well, would we be -- it would be fair for us to 9 conclude that that decision was approved by program officials 10 within FEMA? 11 A (Cumming) Absolutely. 12 Q But I think Grant Peterson had the final call on that 13 testimony? 14 A (Cumming) He certainly had the final call, and I'm 15 certain, in my own mind reasonably certain that he did approve
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16 it. I -- 17 O And do you know -- I'm sorry. 18 A (Cumming) -- can't close that final inch gap. I 19 didn't see him sign off on a document. I've never seen a 20 signed off document. 21 Q And we don't know if kW. Peterson approved the 22 excision of all reference to the January 25th testimony, do we? 23 A (Cumming) Same thing stands. I would make the same 24 argument. 25 I'm assuming Mr. Flynn went through the appropriate Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 14109 1 approval process. I think that's a very safe assumption. 2 Q There was some discussion of the consistency between f) 3 the Pilgrim and the Seabrook cases and FEMA's role in both of 4 those. And you testified at your deposition and here earlier 5 this morning chat you satt an inconsistency between the agency's 1 6 current position on Seabrook and its position this summer on 7 Pilgrim; is that accurate, with respect to the beach 8 population ? 9 A (Cumming) Yes. 10 Q And you also testified that there was a meeting with 11 NRC on April lith, and you found out that the NRC still had i 12 substantial concerns about the beach population issues at 13 Pilgrim. 14 Is that also correct? , () 15 A (Cumming) They didn't specify the beach population 16 specifically in the meeting, but they indicated that I was 17 absolutely incorrect in my deposition to say that they had 18 ignored FEMA's finding, and that they did have legitimate , 19 concerns that -- I need a word and I can't find it -- that they 20 were at least sympathetic to FEMA's concerns that we had 21 expressed in the transmittal of the finding, and they had not 22 just unilaterally tossed out the piece of paper we sent over. 23 I think NRC knows when va send a piece of paper over l 24 that its a negative finding, that there is a legitimate concern 25 on behalf of the agency as to the issues raised by those Heritage Reporting Corporation (202) 628-4888 (
CUNMING, KELLER - CROSS 14110 1 negative findings. 2 Q Is it still your view that the position that FENA is
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3- currently taking on Seabrook and the position it took on 4 Pilgrim this summer are mutually inconsistent? 5 A (Cumming) The beach population issue was one of six, 6 five or six specifically identified at Pilgrim. And I would 7 7 say to that extent there is an overlap. 8 I am not the program official. There has to be a 9 weighing as to the factors. In fact, one of the things that i 10 goes to is that I found out -- one of the really significant 11 things I found in the January 19th meeting was that a single 12 inadequacy does not cause a no reasonable assurance finding. 13 The plans I have signed off on legally had all As, ; 14 and while some of the negative findings had Is, I ain't never () 15 signed off on a plan that didn't have all As. But I understand 16 from some people -- 17 Q There are others who have. 18 A (Cumming) -- that there are others. : 19 Now I can understand the rationale for that, because : 20 you have P. number of planning elements. And yet you could 21 argue that you could have an inadequate element, and yet the 22 overall planning standard is made. And that might be a j 23 situation in which the true judgment of the emergency planner , 24 would have to apply. And I think that's what Mr. McLoughlin 25 was trying to indicate in his testimony, to the extent I Heritage Reporting Corporation (202) 628-4888
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< r q< CUNNING, RELIAR - CROSS N14111 i L 1 remember. i 2 (Continued on'next page.) 3
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CUMMING, KELLER - CROSS 14112 TS4 1 Q Okay. Just with respect to the beach population 2 issues. Is it still your opinion today that the position the
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3 agency is taking with respect to Seabrook with respect to the 4 beach population issues, your agency, is inconsistent with the 5 position it took this summer on Pilgrim? 6 A (Cumming) That's my position, yes. 7 Q And you don't know whether NBC sees that 8 inconsistency or not. 9 A (Cumming) I don't know. 10 0 In any case, they seem content to let the two lie? 11 MR. FLYNN: Objection. Beyond the competence of the 12 witness. , 13 MS. NEISS: Wi thdra wn . 14 BYNS. WEISS: () 15 0 And you are the senior official of the Office of 16 General Counsel that signed off on the Pilgrim self-17 initiated ~~ 18 A (Cumming) Yes. 19 MR. OLESKSY: Just for the record, Your Honor, I 20 think the FENA finding of last summeri not this summer. 21 THE WITNESS: (Cumming) August '87. 22 NR. OLESKEY: Right. 23 MS. NEISS: Thank you. l l l 24 BY MS. WEISS: 25 0 With regard to your testimony about it being required i [ Heritage Reporting Corporation i
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k CU,!%fING,lKELLER - CROSS : '\ 14113 I b / 1 that if a RAC chairman choose to overrule the RAC he must R 2 document his decision and rebut on the record /the argwnents on N) , 3 the majority of the RAC, isn't it true that Mr. Thomas tried to 4 do this? 5 He specifically requested that he be provided 6 re.aources to prepare that rebuttal, and tihat FEMA refused?
+l 7 A (Cumming) Well, I was intinat .-).y involved with this
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8 issue from June '87 on. And I have to st{stte on the record that 9 I could never obtain a clear unders$andingi what had occurred in' 10 thbse RAC meetings, or what the positioE of the individual RAC 11 members were until the first significant trustworthy, probative 12 evidence, in my judgrun$, \ was the joint deposition of Thomas 13 and Bores on January 12th and 13th. 14 Q Nell, thah was specifically about the January 7th RAC l r 15 meeting, right? h ,' 16 A (Cumming) Thea January 7,th RAC meeting ~~ in the ! 17 Janupry 7th RAC meeting, Gth RAC meeting, there was significant { 18 discussions about l what had occurred A)t', the/ prior RAC meeting. 1 < 7 19 O Let mo follow you down thnn '<Ugfession.
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20 There were lots of FEMA personnel at those July 30th , 21 and April 15th RAC meetings besides Mr. Thomas, weren't there? - (i, 22 A (Cumming) I don't know that. *'! 23 0 But don't you know for a fact that it's typical for \ 24 Mr. Dolan to be there, Mr. Swhjen to be there, in addition to l l 25 Mr. Thomas, and for Mr. Rospenda from Argonne National Labs to I l l l Heritage Reporting Corporation l
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2 y. 'A (Cumming) Noi I don't know that. I know Mr. 3 Rospendt's name is .iateof., but I don't know defLnitively who 4 was in those meetintys. , 5 Q Nhat kind of -- t 6 A (Cumming) As far as I'm concntned, the notes I have 7 seen of Bob Rospenda, I would characterize as unreliable and 8 not adequate description of the events of those RAC meetings. 9 Q Pardon me for interruption. 10 What kind of effort did you make to find out what 11 happened at those RAC meetings? 12 A (Cumming) A lot of effort. 13 (0 Did you call Mr. Rospenda? kA 14 (Cumming) Did I ca.'.1 Mr. Rospenda. l 15 iV6, I think all my communications were to Attorney 16 Flynn. 17 Q Did pu ~~'all your commu ~~ back to the question 18 that I originally asked you. Isn't it true that Mr. Thomas
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19 tried to get resourc.ns from FEMA headquarters to prepare a ,( 20 detailed rebuttal to the majority RAC views, and that FEMA j i 21 ret *uned to provide the resources ? \ l 22 A (Cumming), That's not true. i - 23 O Tell me what's not true about it. 2^ A (Cumming) It's true in the sense that once the 25 agency had adopted the position, Ed said, following my advice
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,'.c' CUMMING, KELLER - CROSS' t4115 1 in paqt e need technical support for this position. We need ge\ 2 other support, any appropriate support we can get.
Q _, s. ,
'3 What happened was'that when tho headquarters program
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4 officials eventually responded to that request, and 5 incidentally, I have testified in my deposition, or gave my 6 ,&eposition, I personally t ook steps to try and find out whether lli / o 7 'othex people within the agency whose ji.dgement I relied upon,
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& ,and outside~ the agency, whether I thought that our position was y 9 defensible.
. . 10 l ., a There was no one who would defend the posicion.
.1 i 11 MS. WEISS: Your Honor, thicris not responsiva to my
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- ) 12 question. Could we just stop it here? I'm not going to move
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p 13 to sc'rike it, but I want t'o get back to my question. i l 14 JUDGE SMITH: Well, the narrw question is, did Mr. ij s w/ (D 15 Thomas seek rdsot'rces to rebut the -- . 16 MS. WETSEh Majority -- to mal.e~a technical rebuttal l ~i 1 Y ', 17 to the views of the majdrity of the RAC, and was he not refused ia I 18 ,those resources by FEMA h,adquarters, j
) 19^ ' MR. DIGNAN: Welle the problem is the witness 20 answered that question. Snid that wasn't true.
i' ,, 21 JUDGE SMITH: I know but his explanation -- l 22 MR. DIGNAN: And then the next question essential 1y, v ,, 1 23 I'm not saying literally, essentielly was why. And we all know ( 24 what happens when you ask 'why, Judge. 'You find out. 25 JUDGE SMITH: The thinbiihs, is it he's not done with s
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CUNMING, KELLER - CROSS 14116 i 1 bis answer yet? f' 2 NR. DIGNAN: I gather he's not. 3 JUDGE SMITH: I don ' t kn o w i f ~ ~ 4 NR. DIGNAN: I think he should be allowed to finish 5 his answer. 6 NS. WEISS: You started off .~~ , 7 JUDGE SMITH: Everyone's speculating on what his 8 state of mind is. Let's here it from Mr. Cumming. 9 B Y MS . WEISS: 10 Q You did start off this second answer by telling me it 11 was tre) ~~
- 12. A (Cumming) Ed Thomas very clearly --
i 13 0 '-- in a sense. 14 A (Cumming) -- asked for all the support he could , () 15 get -- 16 Q Right. 17 A (Cumming) -- from day one for his position. There I 18 should be no doubt in anybody's mind about that. 19 But as to whether he was denied technical assistance, 20 the answer is, in my judgment, no r he was not denied technical l t 21 assistance. l 22 The question was finding someone who could l 23 technically support his position. And the problem was no one 24 could be found, including those who had signed of technically 25 originally, because they had in the meantime changed their Heritage Reporting Corporation f's (202) 628-4888
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CUhMING, KELLER - CROSS 14117 1 minds. t 2 O Well, he was never given that option, was he? (Cumming) Given what option? ' 3 A 4 Q To go and retain the resources necessary to support 5 his position. 6 Wasn't he told no, no, nor by Mr. Wingo; you can't 7 have it? Weren't not going to take your view, and we're not 8 going to give you an opportunity to buttress it. We've decided ' 9 we disagree. Isn't that what happened? 10 A (Cumming) No. 11 Q Just for clarify of the record with respect to the ' 12 January 2nd meeting with the NRC. You were told, weren't you, 13 that Bores 1 was being withdrawn ? I i 14 MR. FLYNN: Excuse me. i () 15 THE V.TNESS: (Cumming) June 2nd. I 16 B Y MS . NEISS: 17 O June 2nd, I'm sorry. What did I say? 18 A (Cumming) January. 19 Q Sorry. , i 20 A (Cumming) I never remember that statement being 21 made. 22 MR. FLYNN: Let her finish the question. . 23 MS. NEISS: Well, that was the question. 24 B Y MS . NEISS: 25 Q Were you told in substance bl.ac the NRC was no longer Heritage Reporting Corporation (202) 628-4888
CUWIING, KELLER - CROSS 14118 1 relying on the statements with regard to special design 2 features at Seabrook contained in Bores 1? 3 A (Cumming) My memory of that meeting, to which I went 4 to on very short notice, is that the bulk of the talking was 5 done by FENA employees; that basically NRC sat and listened. 6 Q So you just simply don't recall the'NRC saying we're 7 withdrawing Bore 1 -- 8 A (Cumming) I do not recall -- 9 O -- or words to that effect? 10 A (Cumming) -- that statement being made. 11 Q Okay. You don' c have any doubt, do you, that as you 12 define a definitive statement from the NBC, CLI-86-13 was a 13 definitive statement from July of 1986, forward, a ruling of 14 the full Commission? (} 15 A (Cumming) At the time of the June 2nd meeting my 16 focus was on the Christenbury memo. 17 To be honest, since I've litigated Shoreham, my real 18 intimate knowledge with that decision deal not with the issues 19 that are applicable here, but the so-called realism decision. 20 And I don't think that in the meeting on June 2nd, the pre-21 meeting to the NRC meeting, I focused on anything but the 22 Christenbury memo. 23 In fact, it's only over the course of time that I 24 realized that the Christenbury memo came just before the full 25 Commission adopted much of the racionale in CLI-86-13. i l Heritage Reporting Cor,poration (202) 628-4888 i l l
CUMMING, KELLER - CROSS 14119 ; 1 Q Well, my point was actually a more narrow one. f's 2 A (Cumming) So, so to defend Dave McLoughlin, I (-) 3 probably didn't even bring until later on in the summer that as 4 part of my legal ammunition for why our position was legally 5 incorrect. 6 0 You didn't realize the significance of it until 7 later; is that correct? t 8 A (Cumming) I've always known its significance. I i 9 don't think I argued its significance to the program officials. 10 Q You understood its significance it. the same way you i 11 today understand its significance from the time it was issued, 12 July of '86, correct? b 13 A (Cumming) Well, I was not directly involved in REP l t 14 litigation or matters until September 1, 1986. That order had () 15 gone out over a month beforehand, and I had to go back and 16 recreate. So it wasn't something that came in while I was 17 actively working on REP. , 18 But what I've always found significant is it gives at ; 19 the Commission level specific statement of two of the primary 20 assumptions that emergency planners at NRC and FEMA have . 21 operated on since day one. No minimum dose savings, no minimum 22 ETEs. 23 I don't find a Commission level expression of that 24 prior to that date. But it was always assumed by both NRC and 25 FEMA people as far as I can discern. Heritage Reporting Corporation (202) 628-4888 O
CUMMING, KELLER - CROSS 14120 1 Q So that was nothing new then. It didn't conflict
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2 with any prevailing views at FEMA. In fact, it was fully 3 consistent with how FEh% had always interpreted its rules, 4- correct? S Isn't that what you just testifled? 6 A (Cumming) Let me state that September 1, 1986, when 7 I came back into REP, I did not find a large number of 8 significant interpretative legal memoranda concerning. the REP 9 program, and certainly none that focused on that issue. 10 So as to whether the program officials had been told 11 legally this is what you're required to do, I don't know. 12 Q No. Well, that wasn't my question. 13 I mean, didn't you just testify that those two 14 principles stated in CLI-86-13, no minimum dose savings, no () 15 minimum ETEs, were consistent in the manner in which FEMA had 16 interpreted -- 17 A (Cumming) Yes. 18 0 -- its requirements since day one? 19 A (Cumming) Yes, because there are many plants with 20 longer ETEs even than those litigated at Seabrook. 21 Q Indeed. l 22 A (Cumming) And there are in fact many plants that 23 have no sheltering for which plans have been approved by my l 1 24 predecessors at FEMA. l 25 Q So there is nothing new in that. Heritage Reporting Corporation (202) 628-4888
CUMMING, KELLER - CROSS 14121 1 A (Cumming) I would argue there's nothing new. l l 2 That's right. ( ; 3 What was new was the Commission-level reaffirmation ' 4 of it, or affirmation of it; whichever. 5 Q But that reinforced FEMA's policy. It didn't cause 6 any change in FEMA's contemporaneous policy. ; i 7 A (Cumming) I don't know whether it did or not, 8 whether it reinforced it or not. I have no knowledge. , 9 0 It should have. , 10 A (Cumming) It should have, in my judgment. 11 Q It should have. ; 12 You mentioned that the straw, in your view, that l 13 tipped the balance, to mix two metaphors, was this Shep Turk : i 14 letter of February 18th, correct? [ l 15 A (Cumming) The straw that turned the ship? 16 (La ugh t er. ) 17 THE WITNESS: (Cut. ming) Yes. k 18 B Y MS . WEISS: l l 19 Q Because then you had it in writing; is that correct? l 20 A (Cumming) That 's correct . 21 Q And then you testified that you had had some . 22 conversations with Bill Olmstead who said that he held this 23 same opinion as reflected in the Turk letter. And I just -- 24 you know, would like you to tell me who Mr. Olmstead is, and 25 when you had these conversations with him. , Heritage Reporting Corporation
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CUMMING, KELLER - CROSS 14122 1 A (Cumming) Well, I tried to tip you off in my 2 deposition. 3 0 I guess I -- 4 A (Cumming) But you didn't listen. 5 Mr. Olmstead and I had the conversation in the 6 January 19th meeting. I thought all throughout my deposition 7 you were going to ask me, what have you meetings been with NRC 8 on this issue. You never asked me. So I never answered. 9 Q That must have been the one subject -- 10 A (Cumming) But the truth is it was in the January 11 19th meeting. 12 0 -- on which you were reticent. 13 A (Cumming) No, I everi ask hW. Flynn after the -- I 14 said, why didn't you ask me about the NRC meetings. 15 Q If he'd mentioned total war, I think we probably (') 16 would not have passed that by. 17 A (Cumming) All-out war, please. 18 Q All-out war. , l 19 So who is Mr. Olmstead? : 1 20 A (Cumming) William Olmstead is the successor to Ed 21 Christenbury. I don't know if their titles are exactly the 22 same. He's presently on leave of absence to be ths ex.ecutive 23 director of the Administrative Conference of the United States. 24 Q All right. I want to follow up on a comment you made 25 to -- Heritage Reporting Corporation (202) 628-4888 O
CUl&!ING, KELLER - CROSS 14123 1 JUDGE SMITH: Those positions, everybody know what 2 those are? That's the chief of the Hearing Division that's 3 responsible for the hearing lawyers. , 4 Nr. Scinto is now Mr. Olmstead's acting replacement. 5 B Y MS , WEISS: 6 0 When you talk about meetings plural with the NRC, 7 were there a serica of meetings on the subject of -- - that you 8 were involved in?
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9 A (Cumming) Okay, the only meeting that I was not 10 involved with with NBC, which 1 would consider a high level, 11 was the May 19, 1987, so-called steering committee meeting. 12 Okay? 13 Q Yeah. 14 A (Cumming) The June 2nd meeting, I was involved with. 15 The October 15th meeting, I was involved with. And then the 16 January 19th meeting. 17 Q And you said earlier meetings plural with Mr. Stello. 18 A (Cumming) When I came back into the REP program, I 19 became very concerned because william Dirks, who had been the 20 EDO, was -- had some sort of working relationship with the FEMA 21 top brass. This is September 1, 1986, when I came back. 22 I can't remember exactly when Mr. Dirks left and when 23 Nr. Stello became EDO. But I realized that there was so much 24 misinformation throughout FENA and NBC about each other that 25 there was only going to be resolved by head-to-head meetings. Heritage Reporting Corporation (202) 628-4888 O
CUMMING, KELLER - CROSS 14124 1 The first issue that precipitated this dealt with ; 2 whether or not FEMA and NRC were going to appeal an Appeal 3 Board decision, and we felt that it as of significance that we 4 would take it all tha way up. And Mr. McLoughlin, at my ; 5 request, scheduled a meeting with Mr. Stello. And Mr. Stello I 6 have known about although I have not known for a long time r 7 ever since Three Mile Island. And he and Dave McLoughlin are i 8 very direct; people. And I found the meeting very helpful. And i 9 everyone agreed afterwards that there should be more such r 10 meetings, although there have been very few, and I am sure 11 after the all-out war Mr. Geello will stay over on his side of 12 the block, and that was the first one. 13 And then the next issue came out with respect to -- 14 on October 9th Vic Stello came over -- * (~% 15 0 Of this past year? l () l 16 A (Cumming) -- with somebody the first week of the 17 hearing up here, and there was discussion of the proposed rule. 18 The next Stello meeting was the very end of the 19 holidays, and it was again on a legal issue, unrelated 20 completely to Seabrook. ; i 21 And the meeting after that was the 19th. 22 Q Okay. On October the 9th you say that he came over 23 and there was discussion of the proposed rule. Was that -- 24 A (Cumming) It was on the proposed rule. Basically it 25 was the staff's submission. They wanted to be able to : Heritage Reporting Corporation (202) 628-4888
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CUMMING, KELLER - CROSS 14125 1 represent that they had at least consulted with the Federal (-{ 2 Emergency Management Agency in their submission to the full V 3 Commission. 4 I believe you had FOIAed our agency and you have 5 documentation, or whatever documentation exists, or your law 6 firm has, of that meeting. 7 Q Is that the siren rule that we're talking about, or 8 what rule? 9 A (Cumming) No, no. This is the emergency planning 10 rule for utility plants. 504 7- (C) (1) . 11 Q Good comments you had on that. 12 You mentioned a meeting on October 15, 1987? 13 NR. FLYNN: I object to this line of questioning. 14 We're getting away from this contention. We're getting away 15 from Seabrook. This is discovery. This witness has already (J^) 16 been deposed and it is very clear from his answers already I l 17 today this is subject matter that could have been gone into at l l 18 the time of his deposition, and wasn't, and it's not relevant. ' 19 JUDGE SMITH: I guess I--- I forgot to listen for 20 relevance. 21 kW. WEISS: Well I'm just -- I'm following up on an 22 answer the witness gave to a question by -- I'm not sure l l 23 whether it's -- yes, Mr. Backus. 24 hR. FLYNN: He identified other meetings, but they 25 don't ~~ Heritage Reporting Corporation (202) 628-4888 d(~s e yy e ,-- r- -- - -rT r---
CUMMING, KELLER - CROSS 14126 1 MS. WEISS: Ne ll, no, nor this is a particular one. The fact that it's follow up to a question j 2 hR. REIS: (~
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3 that somebody else got an answer to doesn't show that this is l 4 in any way relevant. 5 MS. NEISS: Well, I don't know. , 6 hR. REIS: I don't know, unless we can show that the 7 October meetir g was in some way relevant to the issues here 8 involving sheltering, we're not -- 9 NS. NEISS: I think that -- 10 hE. REIS: It should not be permitted. l 11 MS. WEISS: Sorry. 12 If I may, Your Honor, my recollection of the 13 testimony is that the vitness stated that that was a meeting 14 where Mr. Turk and hW. Bores were present, and I think, 15 although I may be incorrect, that there was some discussion of
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16 Mr. Bores's memorandum that's been introduced in this case of 17 October 15, 1987. The discussion between the agencies on how 18 they should deal with the Seabrook beach population. E54 19 (Continued on next page.) 20 21 22 23 24 . 1 25 Heritage Reporting Corporation (202) 628-4888
i KELLER, CUNMING - CROSS 14127 t/55 1 JUDGE SMITH: Ny memory is this morning, that was, t 2 that was it, yes. 3 THE WITNESS: (Cumming) Ny testimony this morning, 4 Judge Smith, was that I didn't include any of the NRC meetings 5 in my testimony because in my considered opinion none of the 6 NRC meetings impacted on how FEMA arrived at its conclusions. 7 JUDGE SMITH: And hW. Backus suggested that certain 8 other -- after developed other meetings that they should have 9 been, and that was the relevance of it. 10 MS. NEISS: As I recall. Well, I don't intend to 11 belabor this a long time. 12 JUDGE SMITH: Go ahead. But what is the question 13 now? 14 MS. NEISS: There isn't a question pending. The 15 question that I wanted to ask was whether the Bores memorandum ( 16 of October the 15th, 1987 that's in evidence in this case was 17 in fact given to FEMA at that point, given out -- 18 THE WITNESS: (Cumming) No, absolutely nat. We ' l L 19 didn't receive it until it was served in late December. 20 B Y MS . NEISS: 21 Q What was the subject of the meeting? l 22 A (Cumming) On September 2nd Dave McLoughlin had j 1 23 written to Vic Stello asking for a meeting, and asking for a 24 discussion on the beach population issue. I believe everybody 25- has that memo. Heritage Reporting Corporation (202) 628-4888
KELLER, CUMMING - CROSS 14128 1 For whatever reason that meeting never came off. And (~) 2 on October 15th that and a lot of other followup issues ended V 3 up in discussion. 4 Now, I recall almost no discussion of the Seabrook 5 beach issue except for the fact that Shep and I lived through 6 the first week and we were at least speaking to each other 7 again, you know, and it was nice to see each other in another 8 forum. And I did think it was odd at the time that Bob Bores, 9 and my belief that Bob Bores was there, and it wasn't a 10 significant meeting, it didn't have a significant impact. The 11 real discussion was, what are you guys going to do? What are 12 we -- meaning what are we going to do? And what is NRC going 13 to do with the Seabrook SPMC that had been submitted in late 14 September, particularly in light of the fact that everybody was , 15 working then madly on what we were going to do about the rule.
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16 And my significant input was, because I had been l 17 pushing for a long time to have FEMA adopt procedures to review 18 utility plans. And that was the primary issue. l 19 Q So are you saying that what now strikes you odd about 20 that is that neither hW. Turk nor Mr. Bores told you about the 21 dispute or presented this memoranda about the dispute over what 22 had happened? 23 A (Cumming) Yes, I find that odd. 24 l Q That's what I thought. Okay. l i 25 Now, I believe it was also your testimony that you Heritage Reporting Corporation ,
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KELLER, CUMMING - CROSS 14129 1 believed that the New Hampshire plans are adequate or were 2 adequate without any necessity for further consideration -- let 3 me try that -- strike that and ask that question another way. 4 The FEMA supplemental testimony of January 25th 5 without getting the exact words, but in substance, takes the 6 position that before reaching a conclusion on whether elements 7 J-9 and J-10-M are met, it is necessary for the State of New 8 Hampshire or was necessary for the State of New Hampshire to 9 further clarify the use, of which it intends to make, of 10 sheltering, and that's accurate, isn't it? 11 A (Cumming) Yes. 12 Q And I believe you testified this morning that it's 13 your opinion that that really wasn't necessary, you believe the 14 plans were adequate with respect to J-9 and J-10-M as of (~) 15 January 25th without any further elaboration by New Hampshire; V 16 is that correct? Are you telling your lawyer to make an 17 objection? 18 A (Cumming) I find this repetitive, but maybe none of 19 the lawyers do. 20 Could you restate the question. 21 MS. WEISS: Could we hear it back. 22 THE WITNESS: (Cumming) I think I heard you state 23 what my testimony was this morning, but maybe I did not. 24 JUDGE SMITH: Your voice fell at the end. 25 MS. NEISS: All right. Heritage Reporting Corporation (202) 628-488R
KELLER, CUhMING - CROSS 14130 1 B Y MS . NEISS: . 2 O It was your opinion in January and it is your opinion 3 today that that wasn't correct, that the New Hampshire plans 4 could be found adequate as of January 25th without any need .for 5 further submissions by the State on the use it intends to make 6 of sheltering; isn't that what you testified this morning? 7 A (Cumming) There's a little bit of dissynchronization 8 between FEMA's process and the Licensing Board. With respect 9 to the admitted contention I have always felt that sheltering 10 was not legally required. And one of the reasons I felt that 11 is because I knew that FEMA had approved favorable, given a 12 reasonable assurance on plans that did not have sheltering in 13 them prior to our filing oar testimony. 14 I thought we were changing our position on this plan , 15 at that time. What's really happened is, we did change our ; 16 position and now we've gone back to our prior position. 17 Because in my judgment, the interim position you could argue i 18 that prevailed from June through January was not defensible. 19 0 Well, the answer to my question is, yes, isn't it, r r 20 you believe that the January 25th supplemental testimony of 21 FEh% is incorrect to the extent that it takes the position that i 22 New Hampshire had to state further the uses ~~ 23 A (Cumming) No. The reason I got ~~ 24 MR. DIGNAN: Your Honor, I want to get an objection l l 25 in here now. Now, this is where it does get to be a problem Heritage Reporting Corporation (y (202) 628-4888 L'
KELLER, CUMMING - CROSS 14131 1 when people go looking for legal opinions. Now, if she wants 2 to ask, was not -- was or was not legally defensible, that's 3 okay. But when you put it incorrect, you're giving the witness 4 a wife-beating question. Because what this witness has clearly , 5 said a number of times is'that the legal position that was 6 presented in that testimony was one he felt as a lawyer was I 7 legally defensible. In other w^cds, you could ethically dsfend 8 it. And we all know, those of us who are lawyers, what that ; i 9 means. i t 10 It does not mean that he thought it was the~better i i 11 legal position. i i 12 MS. WEISS: I'll accept that. l t 13 NR. DIGNAN: And you throw that word "incorrect" in 14 there and it becomes a wife-beating question, Judge. I 15 MS. WEISS: I'll accept that. Let's go to page two ( 16 of the FEMA supplemental testimony which is Mass. AG Exhibit 17 42, I think. 18 B Y NS . NEISS: 19 Q Are yc t with me? , 20 A (Cumming) Yes. 21 Q We'll go to the top paragraph and the letter "C." 22 JUDGE LINENBERGER: What page ? 23 MS. NEISS: Page two, top paragraph letter "C." 24 JUDGE SMITH: That's Exhibit 42. 25 MS. NEISS: It's Mass. AG 42, is that correct? Yes. Heritage Reporting Corporation (202) 628-4888
KELLER, CUNMING - CROSS 14132 1 B Y MS . NEISS:
'y 2 Q And that states that FEMA's position is, quote:
(V "That FEMA cannot conclude that the NH RERP is adequate with 3 , 4 respect to that beach population until it is clear that the 5 State of New Hampshire has considered the use of sheltering for 6 the transient beach population and explains what use, if any, 7 it intends to make of sheltering, " end quote. 8 Now, do I take it that it's your testimony that that 9 is not legally the best statement? 10- A (Cumming) No, I think I understand the confusion. 11 As yoa may recall from my deposition, in November 3rd the 12 Commission issued a full decision, CLI-87-13, where they said 13 that FEMA's position that sheltering is le preferred 14 protective action for hospitals or for special facilities was 15 not adequate. That full consideration had to be given to all (~) 16 protective actions. In other words, they had to be explored. 17 That was certainly my thinking at the time we wrote 18 this. I personally believe that full consideration has to be 19 given to all protective actions. But whether or not when that 20 consideration is given whether they're required because they're 21 not effective or efficacious or whatever, that's not my 22 position. 23 0 No, that's not what I'm asking. \ 24 A (Cumming) So that would be my response. 25 0 All I'm asking you is at the time this testimony was Heritage Bcporting Corporation M , (202) 628-4888
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KELLER, CUNMING - CROSS 14133 1 written or submitted on January 25th, did you believe that the 2 plans were already adequate with respect to J-9 or J-10-M or 3 did you believe that it was necessary for New Hampshire to make ; 4 the submittal that's outlined here? 5 MR. FLYNN: Objection. 6 THE WITNESS: (Cumming) I was -- 7 hE. FLYNN: Objection. We're getting -- this l 8 witness's op1nion, independent of his advice to FEMA, his 9 influence on FEMA's decisionmaking and so on is irrelevant. 10 I've refrained from making objections about legal 11 argumentation, about calling for a legal opinion from the 12 witness, but this really crosses over the line. This goes 13 beyond asking what FEMA's position was and why. This is asking 14 for a personal legal opinion from this witness. () 15 MR. OLESKEY: Well, this witness isn't here to give 16 personal legal opinions; he's here to give agency opinions and 17 that's what he's being asked about. 18 hE. FLYNN: That's not the question. 19 JUDGE SMITH: Ir that your question? Is that the 20 agency's? 21 MS. NEISS: No. What I'm trying to find out, Your 22 Honor, is whether there's a divergence between Mr. Cumming's 23 personal legal opinions and the agency's legal opinions. How 24 much of this testimony are his personal opinions; and how much 25 the agency's opinions; and how can we tell the difference? Heritage Reporting Corporation (202) 628-4888
KELLER, CUMMING - CROSS 14134 1 JUDGE SMITH: He may answer.
- 3 2 THE WITNESS
- (Cumming) Ny testimony is presented on l Q_) l 3 behalf of the Federal Emergency Management Agency. It's true, l 4 when you question me about prior versions of the testimony, at 5 certain points I personally either agreed or disagreed with 6 portions of the testimony, but overall I felt that they were 7 legally supported, both the June, September and January 25th 8 filings . There was some legal argument which could be made. l l
9 MS. WEISS: Well, let's just take it one step at a l 10 time. 11 B Y MS . WEISS: l l 12 Q It is true that you believed the plans were adequate 13 as of January 25th withOut any further need for l 14 supplementation; that was your legal opinion, correct, as to l (~ 15 J-9 and J-10-M? ' (_-) i 16 A (Cumming) Actually, in January I was on the "could" l l l' 17 side and not the "would" side, as has been testified. I 18 believe that censideration had to be given to that option. It 19 had to be explored. But if it turned out it was not 20 efficacious that did not mean that the plan was not adequate. 21 Your approach, as Counsel Flynn has suggested, is in 22 fact quite accurate, because in my judgment today, my personal 23 opinion would be that this is a legal issue now. However, we 24 have technical testimony to support our position, also. 25 The agency's position is that it's both legal and
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KELLER, CUMMING - CROSS 14135 1 technical. (~\ 2 Q And this testimony on January 25th was approved by l
%] l 3 Mr. Peterson, correct? \
4 A (Cumming) Mr. Peterson, I think, had been sworn in 5 by then but I think -- I'm not sure that he had active l 6 participation other than his decision on "could versus would" 7 at the January 22nd meeting. And I think that was a reasonable 8 decision, because all that was really happening is they're 9 saying, explore this option further. 10 Q With respect to the issue of the authority of FEMA to l 11 set the standards for radiological emergency planning for 12 nuclear powerplants, was it your testimony that your 13 interpretation on that issue is slightly different from that of 14 other people? 15 JUDGE SMITH: Ms. Weiss -- 16 MR. DIGNAN: Everybody in the universe? l 17 MS. NEISS: No, I wrote down the words, my 18 interpretation of 350.5 is slightly different from other 19 people, and I just wanted to focus in on what issue you were 20 referring to. I thought that's the issue you were referring 21 to. I know the witness remembers the statement. 22 JUDGE SMITH: Ms. Weiss, we've allowed you to inquire 23 into the difference between FEMA's opinion and Mr. Cumming's 24 opinion. It's not that we didn't recognize the merit to kW. 25 Flynn's objections, but we felt that it was, as you said, the Heritage Reporting Corporation (202) 628-4888
KELLER, CUMMING - CROSS 14136 1 difference -- who's speaking here, Cumming of FEMA is as 2 important. Furthermore, his testimony has been helpful. I hy 3 think it's crystallized the issues and that people recognize 4 it. We're all familiar, however, as attorneys that you get 5 into a collegial process you don't always have a way that you 6 come out of a meeting having been heard and you feel 7 comfortable in supporting. Now you're going to beat it to 8 death, I'm afraid, on slight differences. 9 MS. NEISS: No. The only question that I have is 10 whether he knows if the agency has expressed an official policy 11 on that issue, that's my only question on the subject that I \ 12 intend to ask. 13 JUDGE SMITH: What is the question? i 14 MS. WEISS: Well, let's -- whatever it was let's () 15 start it over again. 16 B Y MS . WEISS: 17 0 You stated that your interpretation of 44 CFR 350.5 18 is slightly different from other people; do you recall that 19 testimony? 20 A (Cumming) Yes. l 21 Q And was the issue that you were referring to at that l 1 22 point, the authority of FEMA to set standards for emergency 1 i 23 plans for nuclear powerplants ? 24 A (Cumming) No. I think everyone in FENA understands 25 that FEMA has not been delegated any rulemaking authority under Heritage Reporting Corporation (202) 628-4888
KELLER, CUMMING - CROSS 14137 1 the memorandum of understanding from the Nuclear Regulatory 2 Commission. It is also true that with respect to 44 CFR 3 350. 5 (b) , as I expressed this morning, some people didn't read 4 the end of the line. Radiological preparedness, they felt 5 th0y'd put their emergancy planner hat on and they said, hey, 6 for whatever other reasons we know about, and we are involved 7 with other health and safety issuas, too, NRC may be -- have i 8 the lead on radiological emergency preparedness in some, but 9 with respect to other aspects of emergency planning we have 10 concerns. 11 I think these were legitimate concerns. They were 12 being legitimately expressed. And for whatever reason the 13 agency had a difficult time groping with them. As close as you 14 can come to an analysis. As Ed Thomas's memo from October '86 15 which took nine months or something to get to our office, we 16 asked questions back, there was a meeting. In fact, one 17 critical meeting which apparently occurred on that issue I was ; 18 not in was on April 8th, a FEMA only meeting on reasonable 19 assurance. Well, I don't know what happened in that meeting. 20 All -- that's one of the meetings I missed. : at/55 21 (Continued on next page.) 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 sO
KELLER, CUMMING - CROSS 14138 t/56 1 Q The issue you were referring to on which your views 2 are slightly different .from others, is the issue of -- to'just 3 shorthand it -- the vitality of 44 CFR 350.5 (b) ? 4 A (Cumming) Yes. 5 Q Is that it? 6 You said that REP-3, FEMA-REP-3 was promulgated 7 before FEMA had final regs, what was the date that FEMA-REP-3 8 was issued? 9 A (Cumming) Final form I believe was January 1981. 10 Our final regs were published September 28th, 1983. 11 Q When were your rules proposed? 12 A (Cumming) They were proposed twice. 13 Q When was the first time they were proposed? 14 hE. DIGNAN: I object. Isn't this all a matter of 15 not only record, but you can argue it in a brief because it's 16 legal stuff. 17 MS. NEISS: Yes. 18 THE WITNESS: (Cumming) Would you like a copy of ~~ 19 MS. NEISS: No. 20 THE WITNESS: (Cumming) -- the final rule, I 21 believe -- 22 NR. DIGNAN: It sounds like a law school exam now, 23 Your Honor. 24 MS. NEISS: I have nothing further. 25 RR. DIGNAN: He got an A. Heritage Reporting Corporation (202) 628-4888
KELLER, CUNMING.- CROSS 14139 1 MS. NEISS: Depends on who's grading. 2 RE. DIGNAN: We ll, you'd give him at least a B. O,- 3 JUDGE SMITH: Is that the end of your examinction? 4 MS. NEISS: On Mr. Cumming. 5 JUDGE SMITH: 'On Mr. Cumming. Now you're ready to 6 start -- 7 MS. NEISS: You know, I thought what we wanted to do . 8 was go around on Mr. Cumming 9 JUDGE SMITH: Oh, yes, that's a good idea. All 10 right, do we want to do that? Do we want to take a break? 11 What would you like to do? Let's take a 10 minute break. ; 12 Oh, how do you feel about the possibilities of ending 13 up this afternoon. We haven't even started on Mr. Keller. 14 without binding yourself, just put your feeling -- we have -- ('y 15 MS. NEISS: I think we probably have an hour and a (J 16 half between us, maybe two. , 17 JUDGE SMITH: So it's still within the realm of l 18 possibility. All right. Let's take a 10 minute break, but no 19 more than 10 minutes. You know, now we're getting down to 20 minutes that can make a difference between -- 21 MS. NEISS: Official notice that I have been here on 22 time for every break. 23 (Whereupon, a brief recess was taken.) ; 24 JUDGE SMITH: Mr. Flynn, will you have questions ? 25 NE. FLYNN: I have no redirect. l Heritage Reporting Corporation (202) 628-4888 b<~ r
KELLER, CUMMING - CROSS 14140 1 JUDGE SMITH: You can be the 1ast questioner. As a 2 matter of fact, yor' should be. I should not have ca11ed upon 3 you now. 4 MR. FLYNN: Al1 right. 5 JUDGE SMITH: Mr. Reis, do you have questions? 6 MR. REIS: Yes, I have one question. 7 CROSS-EXAMINATION 8 B Y MR . REIS: 9 Q This testimony of June loth, 1986, is this testimony 10 the testimony that was approved by the FEMA organization to 11 file in this proceeding? 12 A (Cumming) The testimony of June loth, 19887 13 Q Yes, that's right. 14 A (Cumming) Yes. 15 Q And that's the official testimony of the Federal 16 Emergency Management Agency? 17 A (Cumming) Absolutely. I 18 Q Thank you. 19 A (Cumming) That's correct. l l 20 JUDGE SMITH: Mr. Huntington, did you have questions? 21 MR. HUNTINGTON: No, sir. 22 JUDGE SMITH: Mr. Dignan? 23 MR. DIGNAN: No questions. 24 JUDGE SMITH: All right. I guess you can star'.: on 25 Mr. Keller then. Heritage Reporting Corporation (202) 628-4888
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' KELLER, CUNMING - CROSS 14101 1 MS. WEISS: Okay,n ( (' ,,
p 2 FURTHER CROSS-EXAMINATION 3 B Y MS . FlEISS:
't 4 Q Good afternoon, Mr. Keller.
5 A (Kel) er) Good afternoon. ,I, 6 0 Yob are an employee of the Westinghouse Idaho 1l' t 7 National Engineering Lab; .La that correct? I' 8 A (Keller) No. The laboratory which 'is a DOE-owned , fi 9 facility is called the Idaho National Engineering Laboratory.
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10 It's one of a berles' of DOE laboratories around the countfy ! t t , '1 11 These are government owned and company operated, 'qcm$h'5mes( ' t 12 called GOCOs. ,' > '
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13 The company which I am currently associated with ib 14 the Westinghouse Idaho Nuclear Company, Incorpocated, which has r~ 15 a contract to operate certain facilitich on the iTdaho National 16 Engineering Lab for DOE. :
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17 Q Okay. So you're an employee :of the Westinghouse 18 Idaho Nuclear Company? <
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19 A (Kellers Yes, ma'am, that's correct. , 20 Q And that's a subsidiary of the Westinghouse l 21 Corporation? 22 A (Keller) Mother Westinghouse, yes. Westinghouse l t 23 Electric, that's correct. l 24 Q And those are the people that designed and built the
, i 25 reactor systems for the Sea) rock Station?
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r KELLER, CUMMING - CROSS 14142 1 A (Keller) That's my ynderstanding; yes. O t' y, 2 Q And you work for FEMA under contract, consultant
\,3 , contract?
4\ A (Keller) Not exactly. W hat
, Westinghouse Idaho 5 Nuclear Corporation has a' contract,with tbs Department of l' !i -
6 Energy, the Idaho Operations Office' of the Department of 7 Energy. :7EMA has what is called an int +tragency agreement
,, ur 8 between FENA and the Idaho Operations Office of the Department i
9 0,f Energy which basically says, wvald' yon have your contractor 10 do this work for us. 11 l') O So it goes FEMA to DOE to Westinghouse? 12 A 'iKeller) That's correct. All of Westinghouse's 13 monby, and hence mine, comes from DOE. They in turn get their 14 money or a portion of it for this work from FEMA. 15 0 And are you hired for sppcific tasks or contracted 16 with for specific tasks by FEMA through DOE 7 17 A (Keller) No. We have what lu called -- what we call l l 18 level of effort contract, which basically says, expend X FTE in i 19 thic Fiscal Year for tasks as assigned. ' 20 ! JUDGE HARBOUR: FTE being? j s 21 \ THE WITNESS: (Keller) Full-time equivalence, I'm 22 sorry. \ 23 , BY NS. WEISS: 24 Q And who does the assignment of tasks? 25 ' A (Keller) The 10 regions and headquarters. l 4., , t
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'2 A 4XM, )ler) The 10 FEMA regions. Our contract is a O 3 three part contract.
i There 'is one part which has to do with 4 the training programs which are carried out at Emmitsburg, 4: ~ l, 5 Marylr :sd. 6 There is another part which has to do ;<lth the
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9 assistance ' r to t,he s' Regional Asplat9nce Committees. And that, by 10 and large, takes the form of exercise scenario review and
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13 that region a very much ro,diological ),xpertise, we are,also s ,; i e 14 involved with the' reviqw' of plans.' 'And in specifically, we're
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15 talking about Region'2, the New Yc,ck regicn.
/5 '16 O 'So you've done both review exercises bnd review i To l
l') plans? 1 A (Keller) Yes, ma'am. i? Q Nhat s
--~ is it.'} fair to say that the bulk of your time y 20' } is spent on exercise reisted activities?
21 A (Keller) I was a witness in the Shoreham 22 proceedings, and in the time that we're talking about last ( . 23 summer, the bulk of my time was spent on Shoreham. M 24 0 Is it accurate that your contact e{i.th FEMA i ,_ 25 headquarters, at least with respect to your assi'q nments e W.x,i t a ge Reporting Corporation O ,f,
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4; . KELLER, CUMMING CROSS 14144' 1: relevant to the Seabrook case has been with Margaret Lawless? ,s , 2 A (Keller) Ny contact with headquarters is almost d 3 exclusively through Margaret Lawless. Margaret Lawless is the 4 contract administrator for this interagency agreement. And 5 therefore I have been instructed that my contact should be 6 through Ms. La wless . She's my contractor administrator, I'm 1 7 sorry. 8 Q She would typically call you up and give you an 9 assignment and that's how you'd know what to do? 10 A (Keller) Typically. Now, let me add, as I said, we il do respond to all 10 FEMA regions, and we've had this contract 12 in place for about seven years now, seven and a half years. , 13 We have a fixed amount of resources, both manpower 14 and dollars. Only when we get assignments or requests for 15 assistance which we can't handle. In other words, if more than 16 one region asks for things and we can't handle the requested 17 activities within the time frame required, we then go to FEMA 18 headquarters and headquarters sets the priority as to which p 19 region we will respond to. , 20 But if headquarters wants something done, typically 21 it would come through Margaret. 22 O And it is - pardon me, is it accurate that your 23 first involvement with the Seabrook beach population issue came ; 24 after June 4th, ' 8 7 when Mr. Cumming sent you a copy of FEMA's 25 position? i Heritage Reporting Corporation (202) 628-4888
KELLER, CUMMING - CROSS 14145 1 A (Keller) That's correca. 2 O And your first work on Seabrook began when Ms. 3 Lawless ccntacted you in approximately September 1987 and asked 4 you to analyze the timing of potential releases? 5 A (Keller) Tho time frame is correct. The timing 6 sequence was my ~~ I was not instructed by Ms. Lawless on what ; 7 to do. 8 Q What were her instructions to you? 9 A (Keller) Basically, and the exact content of the r 10 telephone call I don't remember, but basically, you are aware 11 that we filed this testimony. You're aware of Bores 1 and 12 Bores 2. And when we had -- when we r FENA, had Bores 1 FEMA 13 was in a position agreeing with the majority of the RAC that 14 there were no problems. 15 And onca the information in Bores 2 became available, ( , 16 whether the letter itself was available or not, FEhA position 17 became that there was a serious problem with regard to the 18 beach issues. , 19 What can you do from a technical basis to either , i 20 support or negate our position? And I was the ore that made 21 the choice of what to do. I was not instructed to either i 22 support the position or to negate the position. What can you 23 do with regard to this position? l 24 Q So the decision or what kind of analysis to perform 25 was left totally up to your discretion? i Heritage Reporting Corporation (202) 628-4888 O~ i l l I 1
KELLER, CUNNING - CROSS 14146 1 A (Keller) That's correct. That's my recollection. /~ 2 Q Did she tell you that Mr. Wingo wanted this done ? k)) I believe she did, but I'm not sure on 3 A (heller) 4 that. 5 Q And would it be accurate -- I'm going to describe in 6 a summary fashion my understanding from the deposition of what 7 it is you did in response to that request. That you went to 8 NASH-1400 for a listing of pressurized water reactor accident 9 sequences, and took the 38 detailed accident 32quences 10 contained therein and performed a simple calculation, maybe I 11 should stop there and ask you if everything so far is right ? 12 A (Keller) Everything you said is correct. I want to 13 point out that the 38 that I used were the entirety of the 14 sequences in WASH-1400 for which there is detailed time and 15 core fraction releases.
)
16 Q And those encompass a range from serious releases 17 to -- 18 A (Keller) It encompasses a range PNR-1 through PNR-9. 19 Q Okay. And you made assumptions with regard to l 20 stability class and wind speed, and using those 38 scenarios } 21 you calculated the time at which a person at two miles from the 22 release point would receive a dose in excess of the EPA i 23 protective action guides or PAGs; is that correct? 24 MR. FLYNN: Objection, irrelevant. We're going down l 25 a line here that has to do with an analysis of the timing of I Heritage Reporting Corporation l (202) 628-4888 O-
KELLER, CUNMING - CROSS 14147 1 accident, release rates, e.yposure to the public. We have
- 2 already represented, and he will confirm if you ask him, that
\"' 3 this was not the basis for the testimony which is filed before 4 the Board today. S I thought the point of the line of questioning was to 6 get into what support was given or not given to Mr. Thomas, but , 7 this level of detail suggest that the purpose is something far 8 beyond that. And whatever it is I submit it's irrelevant. 9 MS. NEISS: Well, the Board will recall that this is ; 10 the piece of work that Mr. McLoughlin testified was the largest , 11 single factor, in his mind, in determining that FEMA's position 12 as presented in June and September ought to be reversed. . 13 He said that many times during his testimony. Mr. 14 Krimm also said it. Mt. Thomas testified that when Mr. Wingo 15 told him that FEMA's position had to be changed the source of 16 support he cited for that was the Keller presentation. 17 When Mr. Krimm tried to persuade him he ought to 18 change his position the source that he cited was the Keller ' 19 analysis and Keller presentation. 20 And I'm going to ask this witness what he did and 21 it's certainly going to be my contention that that was a 22 significant development in FEMA's evolution of its pcsition. l 23 I mean, I think the record is perfectly clear that it 24 was. 25 JUDGE SMITH: And all this is in response to Ms. , l l l Heritage Reporting Corporation l (202) 628-4888 O l
KELLER, CUWfING - CROSS 14148-1 Lawless request that he develop something to support or negate , 2 the -- 3 MS. NEISS: Exactly. 4 JUDGE SMITH: -- the -- I don't understand your : S objection, hW. Flynn. It does seem to be very relevant. I 6 mean, it certainly can be explained and examined on. 7 MR. FLYNN: Well ~~ 8 JUDGE SMITH: It's at least' relevant. 9 NR. FLYNN: It's relevant to the evolution of FEMA. 10 JUDGE SMITH: Whether it may be appropriate or not, I : 11 don't know. But it certainly is relevant. 12 MR. FLYNN: The problem that I have is this, as I 13 said before we've been very meticulous not to include dose 14 consequence analysis into our testimony or the basis for our 15 testimony. And again, this witness would confirm that. 16 Now, under the guise of probing the evolution of 17 FEhA's position we're getting into the validity of that i 18 analysis. And I submit that we are getting very far away from I 19 the contention and from the parameters that the Board has set :
- 20 in ruling on the admissibility or the nonadmissibility of the 21 Sholly-Beyea testim 2ny.
22 MS. NEISS: Well, you know, I can assure the Board 23 that I don't iuLend to get into any detail on the merits of the l 24 analysis; I've never seen it. All I know about it is what I e 25 know from the depositions. But it certainly was a vital factor Heritage Reporting Corporation
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KELLER, CUMMING - CROSS 14149 1 in FEMA's thinking in changing its position, and we think we're 2 entitled to know what it was so that we can argue whether it 73 %.) 3 was a rational grounds for changing its position. 4 JUDGE SMITH: You're correct, the testimony is S heading into an area which we understand the Commission does 6 not want us to inquire into in assessing -- in a hearing the 7 adequacy of emergency plans. 8 I think, however, we should hear the questions and 9 answers for the purpose stated by Ms. Weiss. If the position 10 changed because of -- in part of inappropriate grounds, I think i 11 she has a right to demonstrate that. 12 hE. FLYNN: Even in the face of our representation 13 that this is not the basis for our testimony. 14 JUDGE SMITH: Whose representation ? ('\, 15 hE. FLYNN: It's mine and I submit that it would also
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16 be the witness's. 17 JUDGE SMITH: Let 's find out . That may very well be. 18 But 1 mean, he started out by saying, all right, hers's what I 19 started to do, and let's find out if that's the case. I 20 I mean, if it is the case we don't have -- we will l 21 not accept nor may we accept either directly through him, 22 directly through the testimony or any other way inappropriate i 23 considerations for the evaluation of emergency plans. ; 24 RR. FLYNN: Shall I put the question to the witness? 25 JUDGE SMITH: Well, Ms. Weiss is doing all right so Heritage Reporting Corporation * (202) 628-4888 O -
.. .. - . .. .--_ =.. . . .. . .- . - . . - - ., . . . . . . .
KELLER,-- CUM 4ING - CROSS 14150 1 far. Why don't you hold back a minute and just see what we i 2 have to do^to clean up the problem, if there is one. t 3 Wait'a minute r hang on. 4 (Board conferring.) , t at/56 5- (Continued on next page.) l i 6 l 7 i 8 b 9 - I i 10 l II I i 12 j 13 14 O ' 16' 17 18 I t l 19 l l 20 l 21 22 23 24 25 Heritage Reporting Corporation , (202) 628-4888 i
CUMMING, .KELLER - CROSS 14151 T57 1 JUDGE SMITH: Onc of tha things thct ths Bosrd dogs 2 have a little bit of confusion ir., there's no doubt that Mr. ( 3 McLoughlin says that's one of the factors that entered in his 4 mind as he began to hear about some of the work that Mr. Keller 5 was doing. I don't know whether it's this exact work or not. 6 MS. NEISS: I represent to the Board that it is. 7 JUDGE SMITH: Nel1. 8 MS. NEISS: And that the witness will testify. 9 hE. FLYNN: And I don't challenge that. What I'm 10 saying -- the problem is this. 11 We've stated a position. It's in our prefiled 12 teetimony. We've outlined the bases for it, and we're prepared 13 to defend those bases. But the bases don't include the time 14 sequence analysis that Mr. Keller did back in October even 15 though it was instrumental in getting the position to be (~ 16 reevaluated in the first place, and that's my cencern. 17 JUDGE SMITH: All right. All we'rs coing now ~~ all 18 we're doing now is challenging the bona fides of FEMA's change 19 in position. ThiJ does not mean that through that means you 20 bring into the hearing, the evidentiary record, inappropriate 21 bases for testing emergency planning. , 22 RE. FLYNN: Well, I understand. I've made the l 23 argument before, and I won't belabor it, that frankly I don't l 24 think that the -- the good faith of the agency or not in 25 deciding to reevaluate its position i.s really in issue. Heritage Reporting Corporation (202) 628-4888 O
CUMMING, YELLER - CROSS 14152 l' Bscausa the icsva,-in my Gatimstion, is tha position corrsct 2 and technically defensible. () 3 JUDGE SMITH: Well, I know, but the Intervenors have 4 placed it into issue, and we've allowed them to do it. 5 NR. FLYNN: I understand. 6 NR. DIGNAN: But keep in mind what was placed into 7 issue. I really ask the Board to reconsider this ruling for 8 this reason. 9 What was placed into issue is a charge was leveled 10 that this agency had changed its position not for good 11 technical reasons or good legal reasons, but because some sort 12 of outside pressure had been brought upon it. 13 Now we went sd nauseam. We brought three officials 14 up here and asked them about it. The Board had concerns about : 15 it end finally said, let the NRC people stay home, because the 4 O 16 Board was satisfied the NRC was going to come in here and say, ; 17 well, they didn't think they were intimidated, but really we i 18 did intimidate them, and you will recall all of that. 19 Now having struck out on the political influence 20 line, we're now trying to create a basis supposedly used for , 21 this testimony and knock it down. i 22 As I understand from Mr. Flynn if the simple question 23 were put to these witnesses, did you rely on this study in ; 24 developing this testimony, the flat answer will be no. \ 25 Now once that is said -- once that is said, there may Heritage Reporting Corporation (202) 628-4888 : () l l l l l l
CUNNING, KELLER - CROSS 14153 i 1 ba a grost argumsnt that I don't know about thEt says thDy ; r 2 should have relied on it, and they'd have a better position if l () 3 they had. But that's all you get out of that. 4 If the witness says he didn't rely on it, the i b question of whether you should accept the position now, 6 assuming we're through with the political stuff, and I gather 7 we are, is only whether it stands up technically to analysis. 8 And if the witnesses are saying we didn't rely on this study, 9 you may fault them for not relying on it, or the Board may say, 10 gee, we don't understand why you didn't rely on that because 11 that would have helped your position. But that's what they 12 did. I 13 And once you get the answer no to that question, that i 14 ends the inquiry into how the study was conducted. l 15 JUDGE SMITH: Well, maybe it does, maybe it doesn't. l ( 16 I think this has unfolded very, very logically. Here we are, i i 17 we have a position. We have filed testimony. Ms. La wless, the 18 contract officer, calls the man up, what can you do; are we , 19 right or wrong. Tell us. l l 20 He says, all right, I'll analyze it for you. He 21 begins a dose consequence analysis. We don't know how it turns , 22 out yet. She hasn't completed her questioning. I don't care 23 how L: turns out. If it is an inappropriate basis for us to 24 consider the plans, it won't be. ' 25 But, nevertheless, it can be brought out to test his Heritage Reporting Corporation (202) 628-4888 O
CUMMING, KELLER - CROSS 14154 1 direct testimony-which he has hara. 2 hE. DIGNAN: On the theory, Your Honor, that :sre is () 3 some merit to moving the hearing along, can I beg the > 4 indulgence that the Board put in a question, did you rely on r 5 this study in developing this testimony. 6 MS. NEISS: We know the answer to that is no. 7 hR. DIGNAN: And if the answer to that is no r then I 8 submit you should cut off interrogation on the study, because 9 it's irrelevant. 10 JUDGE SMITH: Well, how come you were -- why were you l 11 doing dose consequence analysis? 12 THE WITNESS: (Keller) Well, I think I was doing 13 probability analysis, not dose consequence. 14 JUDGE SMITH: Okay. 15 NS. NEISS: We were interrupted far too early. l O 16 THE WITNESS: (Keller) But in the Indian Point 17 hearings, at which I also was a participstnt, there was 18 testimony on consequence analysis similar to the Sholly 19 testimony. In fact, I believe Beyea and Polenick had offered \ l 20 it. And the Board at that time ruled that it was inadmissible l l 21 because it did not have the two halves of the risk equation. 22 If you're going to discuss consequences, you have to discuss 23 probabilities also. 24 Nhat I did, because when I analyzed, independent of l 25 any legal counsel or anybody's help, I looked at Bores 1 and I i Heritage Reporting Corporation l (202) 628-4888 \ () 1 l I
CUMMING, KELLER - CROSS '14155 1 lookcd at Borca 2, and to ms the diffarcnca b3twacn tho two was 2 a matter of timing. r~ , Q)g 3 Bores 1 said we have this -- what I call robust i 4 containment, very strong containment. Doesn't say you can't t 5 have the accidenti said you can't have it fast. So everything, r 6 to me at least, revolved around how fast you can have the 7 accident no matter what size it was -- big accident, little
- 8 accident.
9 So I wanted to look at -- since my understanding was ; 10 that FENA had agreed with the majority of the RAC when they had 11 this thing that said you can't have a fast accident, and that 12 FENA had decided to disagree with the majority of the RAC when 13 they thought you might have c fast accident, look at ; 14 WASH-1400 to see what could be brought to bear, because in my 15 way of thinking at that time, and it still is, the best ' p'J 16 analysis of time sequences for potential source terms, and i 17 looked at the timings: What could you say about how fast would 18 the EPA PAG be exceed at two, five and 10 miles. l l 19 I think your question was did I do two miles. And ; 20 the answer was, no, I did two, five and 10. But that's what I I l 21 did. 22 Now, after the Board ruled on the Sholly testimony, ? 23 okay, you had ruled out the dose consequences part. I wasn't 24 going to bring the probability part in, because I think the two 25 are two halves of the risk equation. And, clearly, the risk Heritage Reporting Corporation (202) 628-4888 O
CUMMING, KELLER - CROSS 14156 1 cnslysis and final judgmint on risk is tho NRC's primarilyr 2 starting with you people. . \_ D) 3 And when you had said I don't want to talk about 4 consequences, I studiously did not include the probability 5 parts -- 6 JUDGE SMITH: Probability parts. 7 THE WITNESS: (Keller) -- in this testimony. 8 Now, we talked about this at length at the 9 deposition, what was done. 10 JUDGE SMITH: So you already know this. 11 MS. NEISS: We sure do. 12 THE WITNESS: (Keller) This was gone over at great : 13 length. 14 MS. NEISS: So do they. That's why there are 15 objection. to
\- 16 MR. DIGNAN: Yes, but at a deposition you can't f
17 object and get it sustained. And now I'm objecting and I want > 18 it sustained. 19 MS. NEISS: Your wants are perfectly clear. 20 JUDGE SMITH: So initially you started out to try to 21 explain to FEMA just what was, for their purposes and their i 22 concerns, the significance of Bores 2. But in the process of 23 that along came our ruling, and then that came to a dead end, 24 and you didn't use it anymore. 25 THE WITNESS: (Keller) that's correct. Heritage Reporting Corporation (202) 628-4888 O
l \ CUMMING, KELLER - CROSS 14157 1 JUDGE SMITH: N:ll, so thct's enough, you know. 2 THE WITNESS: (Keller) I think what --
'q\_/ 3 MS. NEISS: It's not, Your Honor.
4 Go ahead. l 5 THE WITNESS: (Keller) In the deposition I was 6 asked, because I believed that Mr. Thomas had talked to the -- 7 I know he had been deposed and was -- voir dire, the same 8 thing ~~ about this meeting that we had had because we 9 presented -- I presented my part and Dr. Baldwin did a part, 10 and I read the deposition transcripts fro.m day bef' ore il yesterday, that was discussed here. There was a large 12 discussion on that work. 13 About the same time, at ths end of September, the 14 fiscal year comes to a conclusion, and I think you may all know 15 that the Congress did not expeditiously pass a budget. So 16 everybody was working on a continuing resolution. 17 Ms. Lawless called with another task, which we've not 18 discussed anywhere because I was not asked about it. And that 19 was to do a piece on sheltering, the efficacy of sheltering as l 20 a protective action. 21 Now since we were working on a continuing resolution, 22 the DOE eople, who this contact came through, said, no, no. 23 You may continue to do what you've been doing, but you will not 24 do any new things. So I did not and I have not to this time 25 completed that piece. We had begun to gather some information. Heritage Reporting Corporation (202) 628-4888 O
CUMMING, KELLER - CROSS 14158 1 Wa hKd bcqun to build tha basis for it, but it is not complcta. 2 JUDGE 3MITH: Now what piece is that again? O)
%. 3 THE WITNES.": (Keller) This is a generic piece for 4 FEhA in use as a potential guidance memorandum document, right, 5 un the use, the efficacy -~ j 6 JUDGE SMITH: Of sheltering. !
7 THE WITNESS: (Keller) -- sheltering as a protective 8 action. 9 I think, in my opinion, there's a historic reason for i 10 this. Most of the people in FENA who have a radiological 11 background have come up through the civil defense program. 12 hE. REIS: hW. Chairman, can I interrupt? 13 This is going on quite awhile, and I think we've i 14 gotten off the subject and we've gotten off the question. I 15 don't know .ere we are right now, frankly. And I think this
/~N : \- 16 may be interesting from a historic point of view, but it ,
17 doesn't lead to a determination of the questions here, i 18 JUDGE SMITH: hW. Beis, we've allowed the i 19 Intervenors, because of the very marked change of position of , j 20 FEhm, and because of other circumstances which we have 21 discussed on several occasions, to inquire into the bases for ) 22 FEhA's change of position. 23 Ne've had testimony from the persons who -- the 24 program person who was primarily responsible for the bases -- I \ 25 mean the grounds for the change, the influences for the change, ! I i Heritage Reporting Corporation (202) 628-4888 l () i
CUMMING, KELLER - CROSS 14159 1 cnd ho did allud3 to Mr. Kallcr's work. 7 2 The issue that we're changing here -- we're f'\ \_) 3 addressing here is should the original position be entitled to 4 rebuttable presumption, one; should the original position rebut 5 the present position, two; or some of all of this, three. 6 but the bona fides and the good faith and the 7 rationale and everyching else between the change from position - 8 one to the present change has been inquired into. That is the i 9 sole basis for it. We are not going into probabilities or dose . 10 consequences as a matter of analyzing emergency plans. ; 11 NR. REIS: I didn't think we were in the testimony { 12 that I just heard, but I thought we were going into continuing ; 13 resolutions of Congress, and I thought we were -- 14 JUDGE SMITH: Well, Mr. Keller is trying to be very 15 helpful, and I guess if he could just be allowed to say what it , 16 is, we can all get on with it. 17 It does save time sometime if he gets to the 18 narrative statement, gets rid of some of the problems, and we 19 move on. But you're right. Continued resolution is getting a 20 little bit away from it. 21 THE WITNESS: (Keller) But basically I had made some i i 22 statements to Ms. Lawless about the fact that where we were 23 going on this sheltering study it did not look as though l 24 sheltering was going to be a very efficacious protective action 25 in a nuclear power plant emergency. i Heritage Reporting Corporation { (202) 628-4888 C) :
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CUNMING, KELLER - CROSS 14160 1 And if that's what FEMA hetdquarters wantsd ma to 2 come up with, that's not probably what I was going to have. 3 JUDGE SMITH: Okay. 4 THE WITNESS: (Keller) Now, one more thing. 5 In the meeting with hW. Thomas on the 28th and 29th, 6 there was a statement in that -- there was a three page cover 7 letter with some graphs. There was some point bullets if you 8 will, conclusionary bullets. Most of them had to do with the 9 timing and the probabilities. 10 There were statements to the effect that shelter is 11 not very effective and that ground shine dose is the major 12 contribucor, much like the testimony that we filed on March 13 14th and June 10th. 14 And how these things meshed together and when people 15 learned things, I can't tell you. Eu 16 (Continued on next page.) 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 O
CUNMING, KELLER - CROSS 14161 TS8 1 JUDGE SMITH: It sufficcs to say you hava r movsd 2 site-specific considerations of probabilities and dose 3 consequences from your analysis and from the basis of your 4 testimony. 5 THE WITNESS: (Keller) That is correct. 6 JUDGE SMITH: One other thing. Are you in a position 7 to know whether Mr. McLoughlin, when he was acting deputy 8 associate director, used your work on probabilities as a basis 9 for his concern? 10 If you don't know, that's fine. 11 THE WITNESS: (Keller) I have no way -- I read the 1 12 transcript. But I have no way ~~ 13 JUDGE SMITH: You don't know what he's talking about? : 14 THE WITNESS: (Keller) No, I have no independent 15 knowledge, no. 16 MS. WEISS: Well, I think I'm entitled to follow that 17 up, Mr. Chairman, 18 I mean, you know. 19 JUDGE SMITH: He don't know. 20 MS. WEISS: Well, we can match his testimony up with 21 Mr. McLoughlin's at a later date if you will allow me a few 22 questions on this, and I'm not going to get into the merits of 23 this analysis, but I'm convinced that I can show that this was, 24 this analysis and Mr. Baldwin's analysis are the factors that 25 Mr. McLoughlin testifled to were the key factors in changing Heritage Reporting Corporation (202) 628-4888 O l
l CUNMING,.KELLER - CROSS 14162 1 his mind. 2 JUDGE SMITH: Let's assume that that's the case. 3 MS. WEISS: Then this testimony is -- 4 JUDGE SMITH: What's the worst case? 5 MS. WEISS: Then this testimony is misleading, 6 because it -- 7 JUDGE SMITH: Whose? 8 MS. WEISS: -- omits -- t.he FEMA testimony that's 9 been submitted today, because it omits the factor, the single ! 10 factor that Mr. McLoughlin, who was a senior program official 11 at the time has testified that was the most important in his 12 mind. 13 JUDGE SMITH: All right. How are you going to 14 establish it any better or worse with Mr. Keller? 15 MS. WEISS: Oh, yeah, I can, because I'm going to C\ O 16 establish that it was presented at a meeting on a specific date ' 17 and that's exactly the meeting that Mr. McLoughlin testified 18 to. 19 JUDGE SMITH: Did you -- did you ever make a report 20 based upon probabilities and consequences? 21 THE WITNESS: (Keller) I went to a meeting -- I went 22 to a meeting in Washington, D.C. on the 28th und 29th of 23 November. Mr. McLoughlin was not -- of October, I'm sorry. 24 Mr. McLoughlin was not at the meeting. I had a series of 25 graphs and three typewritten pages. They were draft. They Heritags Reporting Corporation (202) 32th-4888 A V
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CUMMING, KELLER - CROSS 14163 1 wcre not a formel rcport. 2 I had just come from the Ginna exercise; had just () 3 gotten this finished before I went to the Ginna exercise. And t 4 because of the nature of the report ana where we stood, I 5 picked up all the copies. So there was no written material r 6 left in Washington, D.C. 7 JUDGE SMITH: But you made a presentation. 8 THE WITNESS: (Keller) I made a presentation. 7 9 BY MS. NEISS: 10 0 And this is the only work you did on Seabrook in the 11 fall of 1987, correct? 12 A (Keller) This was a nonsite-specific analysis of l 13 accidents and timing out of NASH-1400. It was not specific to 14 Seabrook. i 15 Q Right. - () 16 A (Keller) It would have been generic to any l i
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17 pressurized water reactor in the country. 18 0 But it was responsive to Ms. Lawless's request --
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19 A (Keller) Ms. Lawless's question. , l 20 0 -- that you analyze the Seabrook testimony. 21 A (Keller) That 's correct . I 22 Q And that's the only piece of work you did responsive l 23 to that request in the fall of 1987, correct? 24 A (Keller) The work that we were doing on sheltering i 25 that she asked me to start, to look at the efficacy of j l Heritage Reporting Corporation (202) 626-4888 l
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CUNMINGr KELLER - CROSS 14164 1 shaltaring in gsnerci, which was also not ep2cific to Szabrook, 2 but generic to all sheltering at all plants across the country (h 3 would have just -- had been just as applicable to Seabrook as 4 it would have been to anyplace else. 5 0 You didn't present that at a meeting, did you? < 6 A (Keller) That is correct. I did not present that at 7 a meeting. 8 0 This is the only meeting at which you presented this 9 data to FEMA headquarters responsive to hWs. Lawless's request 10 on Seabrook. That 's correct, isn't it? 11 A (Keller) That's correct. 12 Q So don't you know that when Mr. McLoughlin, or Dr. 13 McLoughlin referred to the Keller work in the fall of 1987, 14 this is the work he's referring to? 15 Wasn't any other work. 16 A (Keller) I submit that in the final page of this 17 presentation, the first issue was the probability issue. In 18 other words, the timing issues. 1 19 Secondly, I mentioned the fact that the sheltering, 20 as I understood it, would not be particularly beneficial 21 because of the low shelter protection factor of the wood frame 22 housing. 23 Thirdly, I included the fact that it was my 24 understanding that from the severe accident sequences the I 25 ground shine dose was likely to be the largest contributor and j Heritage Reporting Corporation (202) 628-4888 () l
CUNMING, KELL 5R - CROSS 14165 1 that ovccuation would bs tha most b nsficici protactiva cction. i 2 All of that was in that meeting. (h 3 My concern is -- I read the transcript -- the only 4 analytical work that could be called analytical was the time 5 study analysis. 6 Q Right. 7 A (Keller) And I was quite concerned whe.) I read the 8 transcript, because in that transcript, my reading of (t said 9 that Dr. McLoughlin referred to my sheltering study. And I 10 had done no analytical work on the sheltering study. And I was 11 quite concerned about what he meant. And I -- I'm not sure. 12 O Okay. But the fact is that this analytical work that 13 you referred to, without getting into the details of it, the 14 conclusion of it was as you presented it to FEhR on October the ; i 15 28th that the probability of an accident exceeding the PAGs at : N 16 two miles within one hours after accident initiation was very 17 low, and that was the bottom line. 18 A (Keller) That was a generic statement. It had 19 nothing to do with the containment at Seabrook. That was based 20 on what's in WASH-1400, that's correct. l 21 Q Okay. And who was at the meeting? 22 A (Keller) The meeting was not a structured meeting as 23 Nr. Peterson's meeting on March 4th was. l l 24 kW. Thomas was present, Mt. Flynn was present, Nr. i 1 25 Cumming was present part of the time, Nr. Sanders was present 1 i i Heritage Reporting Corporation j (202) 628-4888 i () l l
CUNMING, KELLER - CROSS 14166 1 part o' ~t n. r Baldwin was procent, I was prcacnt, Mr. 2 Wingo 5. get of the time, and Ms. Lawless was present ; () 3 part 0: . 'ixv 4 Q Nu w, Dr. Baldwin is a consultant from Argonne ; i 5 National Laboratories; is that carrect? 6 A (Keller) I'm not sure consultant is the correct 7 term, but they have an agreement similar to the one that I > 8 have, and he's from Argonne National Laboratory, that's . 9 correct. 10 Q And he also made a presantation at this meeting; is i 11 that correct? I 12 A (Keller) That is correct. l 13 Q And the essence of his presentation was that 14 employing the ETEs given in Volume 6 of the New Hampshire plan, 15 he calculated the number of people who would be left on the O 16 beach defined as two feet on the sand at various times after 17 beach closing or evacuation notification. He did that for l 18 various wind speed assumptions; la that correct? 19 A (Keller) I'm sure that Tom, Dr. Baldwin, did not 20 characterize his work as two feet on the sand. I think I did ? i 21 that in the deposition. { 22 But that is essentially a correct charactarization of 23 what Dr. Baldwin did, yes. ; 24 0 Yes. 25 And he presented this analysis saying that it showed l Heritage Reporting Corporation (202) 628-4888 i () i i
CUMMING, KELLER ~ CROSS '14167 1 that tha numb r of p:0p10 physic:lly loft on tha bacch whcn tho 2 plume arrives at the beach could be calculated. And for a high () 3 wind speed there was 50 percent, 50 percent of the people would 4 get off the sand and 50 percent would be left on the sand, 5 correct? 6 A (Keller) I'm quibbling with your 50 percent at high 7 wind speed. I think the 50 percent was probably at low wind 8 speed and not at high wind speed. 9 But at high wind speed the wind gets there sooner. I 10 mean there's a -- 11 Q So there's more people there. 12 A (Keller) -- certain incubation time for people to i 13 nove, right, and that's pretty independent of the wind speed. 14 If the wind speed is low, more people would get off 15 before the front arrived. If the wind speed is high, a smaller 16 fraction would get off. 17 Q Right. : 18 A (Keller) And I just ~~ I mean generically that's I l 19 what the presentation was about. 20 If you're asking me do I remember the exact numbers l 21 that were presented Jast October 29th, the answer is, no. 22 Q Well, I could show you your deposition. Would you 23 like to take a look at that? 24 A (Keller) That 's fine. Wha tever. 25 I mean I had reviewed it at that time because I Heritage Reporting Corporation (202) 628-4888 ()
r CukMINGr KELLER - CROSS 14168 1 susp;ctsd thnt that; discussion might come up. And I did in 2 fact review the data r and I think I would stipulate that O q_; 3 whatever I said in the deposition is much more likely to be 4 correct than what I would recall right now. S Q Well, just for ~~ you know, because the deposition 6 isn't in evidence. 7 Let me see if I can find it and refer you -- 8 A (Keller) Oh, wait, I have a -- 9 0 -- to the page r and you can refresh your 10 recollection. 11 NR. FLYNN: I have trouble with the relevancy of this 12 line. If the point of this is to establish that Dr. Baldwin's 13 work was incorrects that's already been established and is not 14 an issue. 15 MS. NEISS: I don't care if it's -- 16 hR. FLYNN: If this witness is being tested on how 17 well he understands Dr. Baldwin's work, I submit that's 18 1rrelevante too. 19 MS. NEISS: No, I want -- 20 hE. FLYNN: I submit there is just no connection to 21 anything. 22 JUDGE SMITH: I would like to know if the purpose of 23 your examination -- now Dr. -- Dr. Baldwin, what did you say 24 about him, by the way? 25 MR. FLYNN: Excuse me? Heritage Reporting Corporation (202) 628-4888 O
CUNMING, KELLER - CROSS 14169 i 1 JUDGE SMITH: , What did you say about hie work.? 2 MR. FLYNN: It's already been established that one i 3 of -- that an important assumption in his work was incorrect. , 4 JUDGE SMITH: Oh. ], ,
'h 1 3, l 5 MR, FLYNN: He m,1sinterpreted, and Mr. Thomas, . ,. 7 6'1 6 testified about this a couple of days ago, that Dr. Baldwin was 7 interpreting the ETEs in cuch a way that the time he assumed 8 people would be off the beach was, or out of the EPZ was in i
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9 fact the time they would have cleared the area, so that his 10 times were grossly understated. And we're not d5sputing that. (' S , ,; 11 JUDGE SMITH: . Okay. ' i F ,- I
, i 12 MS. WEISS: Wall that's good, I'm glad, and I'm i ,
13 trying to establish, and I think I have a rAght to do so, the
! t 14 factors which FEMA had before it at .':he time it made the 1 ;
15 decision and that it considered. l O 16 JUDGE SMITH: And you haven't yet 9nt into Dr. -- Mr. ; 17 Keller's primary purpose of being here, and tha t is support his } 18 direct testimony. I i 19 MS. WEISS-; That 's right. I 20 JUDGE SMITH: You haven't got into that yet. l I 21 MS. WEISS: No. 22 JUDGE SNETE: You're still into the evolution of ;
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24 MS. WEISS: That's right. i 25 JUDGE SMITH: From his perspective. I Heritage Beporting Corporatio.o (202) 628-4888., O k
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( CUNMING, KELLER - CROSS 14170 i 1 MS. WEISS: To tho catent that ha'bcd soma dircct
1 2 volvement in it, yes.
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Ic JUDGE SMITH: Wel1, that'E got a problem. 4 , MR. DIGNAN: Well, he's not a witnot:s on the l i 5 evolution of the>TjTMA position. He's a contractor who did some Y 6 work for them. ,${:A I don't ireant that in a deprecating i \ I ,' ? 7, fashion. >h e
'6 JUDGE SMITH: This why I am raising the point. I 9 don't know how competent he is to talk about how his work was
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1 ^ 10 perceived and what he did' - how it was perceived. He's from 11 the other end. He hsd input. 12 MS. WEISS: Well, at the risk of being repetitious,
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13 ve haie the testimony of the key decisionmakers who said they L
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14 relied on this work, and now we -- 15 MR. DIGNAN: Where is that, Ms. Weisa? 16 MS. WEISS: And now we -- j *.t MR. DIGNAN: I've missed it. Where is it ? 18 ' MS. WEISS: Well -- js l'
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, s',,r 19 MR. DIGNAN: Could you give svh a transcript 20 reference? *
21 MS. WEISS: I'm sorry, I can'O'give it you off the 22 top of my head. 23 J'JDGE SMITH: I don't think that'e what it was, but i 24 it was a recognition of bls work. ,That was one of the elements 25 that began moving Dr. McLoughlin in that direction. Heritage Report.ing Corporation (202) 628-4888
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_.y. ,).. _. iy i i; lg' CUNyNG, KELIER - CROSS d4171 l 1 NR. DIGNAN: Your, t Honor's racollcction square /s 2 exactly with sbine. There was a J.{ne twice with Mr. McLoughlin
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3 in which he was making clear that some thingn were unsettling
/4 L% him that he was hearing that led him to start rethinking 5 thia problem.
i 6 One of those things I concede was the Keller work 7 we're talking about. t 1. i 8 JUDGE' SMITH: That's'right.t '\ 9 MR. DIGNAN: There were a number of others th \t he
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10 said. But I do2lt recall McLoughlin or any of them sayin(g it ex 11 was the Keller work which turned the position of thy agenpy; 12 around. 13 JUDGE SMITH: No. , 14 MR.'DIGNAN: Rather, that this was one of the factors 15 that unsettled them, and got them thinking we've got to take a (~\
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U 1D ,Look' st what's going on in th.T.s situation. { 17 [' , s 'No I may be wrong, but that's my recollection of the 18 McLoughlin testimony. 19 JUDGE SMITH: Wel1, Ms. Welss -- , 20 MR. DIGNAN: If Ms. Weiss can point me to the 2], transcript where McLoughlin said this was a key factor in 22 making ife dealslon to come out on this testinbilya J will 23 subside. 24 MS, NEISS: I'm quite sure -- 25 MR. DIGNAN: But I don't think she can. M' l' Y i ' $ , Heritage Reporting Corporation '? !d i l (202) 628-4888 d
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\ i l l CUNNING, KELLER - CROSS 14172 l 1 MS. NEISS: Wall, it may not surpriso you that I 2 can't do that this instant, but I can assure you -- \ (h 3 MR. DIGNAN: Well, do you want to protect the 4 relevancy of the line of cross-examination, it's your 5 obligation to do so. 6 MS. NEISS: That goes to weight, obviously, not 7 relevancy. 8 MR. DIGNAN: No, it goes to relevancy, because if 9 that testimony is not based on that study, and if McLoughlin 10 did not in fact take the position this is what made the agency 11 change its mind, then this line of inquiry is irrelevant, I 12 submit respectfully. 13 MS. NEISS: You would certain agree he said it was an 14 important factor in having -- 15 MR. DIGNAN: No. , em
-] 16 MS. NEISS: Well, you're wrong, and I'm right on 17 that, I promise you 18 JUDGE SMITH: It was significant enough for him to 19 bring it up.
20 kR. DIGNAN: Your Honor's recollection, I quito agree 21 with. He listed a number of things that unsettled him and , 22 caused him to start thinking, but that's a long way from it l 1 23 being so key that we take the contractor who did it, and then 24 drill him on the efficacy of the study which he's not relying i 25 on. l l Heritage Reporting Corporation (202) 628-4888 O
CUNMING, KELLER - CROSS 14173 1 JUDGE SMITH: I havo two points I want addrssscd. 2 One is how long are you going to tolerate Ms. Weiss going
/~T 3 beyond the scope of the direct testimony. \_j 4 RR. DIGNAN: I'll tolerate it all afternoon if we can 5 get out this afternoon.
6 MS. NEISS: I don't think it's beyond the scope of 7 the direct. The direct purports to present the factors which 8 were -- 9 JUDGE SMITH: Mr. Cumming's. 10 MS. NEISS: -- most critical to FEMA. It says legal 11 and other considerations. 12 JUDGE SMITH: Yes, but I don't see -- I mean, I saw 13 Mr. Keller's testimony here to be for the purpose of supporting 14 the technical basis for their present position. 15 However, no one is objecting provided it's done in 16 the correct context. So you have that opportunity. 1 17 MR. DIGNAN: I heard a hint. It's beyond the scope 18 of the direct, and I object. The purposes of the witnesses -- 19 these particular witnesses, as I understand it, was not to test 20 the concept of the efficacy of the change of position, but 21 rather, to present the position and defend it technically. 22 JUDGE SMITH: Mr. Keller's appearance here, as I 23 understand it, was clearly for that. 24 MR. DIGNAN: So I object. 25 MS. NEISS: Press the question. Heritage Reporting Corporation (202) 628-4888 O
CUNMING, KELLER - CROSS 14174 1 JUDGE SMITH: Wall, Ms. W&iss, do you want to offor 2 any reason why you should be allowed to do it? (m , 3 I mean, will you address my concern, and say I'm , 4 right, or wrong, or what? 5 MS. WEISS: Didn't both of these witnesses now 6 expressly avow all of this testimony, and they removed the 7 prior distinctions -- the distinctions in the old testimony, or 8 some testified to -- Keller testified to one part and Cumming 9 testified to the other part ? 10 And I am directly impeaching the credibility of this 11 listing of factors that were important in FEMA changing its 12 position. 13 hE. DIGNAN: Yes, but Cumming defended that. ' t 14 JUDGE SMITH: Mr. Cumming. 15 MS. WEISS: They remcVed all distinction in their l O- 16 testimony, and they now both expressly are here to testify 17 about the whole thing. ; 18 NE. DIGNAN: Oh, okay, that's easy. ; 19 JUDGE SMITH: Ms. Weiss -- 20 hE. DIGNAN: Ask him if he agrees with Cumming's 21 prior testimony. If he does, we'll quit. And if he doesn't, 22 you can have a ball. 23 MS. WEISS: He already swore to it. You want to ask i 24 him if he agrees, you go ahead. He lifted up his hand and l 25 swore. Heritage Reporting Corporation (202) 628-4888 A U
CUMMING, KELLER - CROSS 14175 1 NR. DIGNAN: No, I'm talking about Cumming's prior 2 testimony today. r 3 MS. NEISS: That's yours. 4 NR. DIGNAN: Ask him if he agrees with it. 5 MS. NEISS: If you want to ask it, you ask it. 6 hR. DIGNAN: Ne ll, then what are we impeaching? 7 JUDGE SMITH: Let 's find out . 8 kW. Keller, how do you understand your presence here 9 today? What are you doing here? 10 (La ugh t er. ) ! 11 THE WITNESS: (Keller) I don't think I should answer l 12 that one. 13 Trying to be helpful to the Board. l l 14 MR. DIGNAN: You're a real FEMA witness. ; ' l 15 THE WITNESS: (Keller) Right. Okay. l O' 16 Clearly, clearly my primary input was to the l 17 technical aspects of this testimony. I did have some input to 18 what we've been calling Mr. Cumming's legal aspects, because I 19 had been through Shoreham. I had been through Indian Point. 20 So I did have some suggestions on that. 21 It is perfectly obviously that Mr. Cumming is much 22 more able to defend those kinds of discussions than I am. I 23 did, I believe, pass him a few things this morning that he used 24 in his discussions. So I do support what he said earlier. 25 There is also an administrative problem which I , l i Heritage Reporting Corporation 1 (202) 628-4888 ()
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CUMMING, KELLER - CROSS 14176 1 ballevo that Mr. Cumming and Mr. Flynn want through yesterday 2 when you all started before I got here. (h 3 My management in Idaho said that I will not sit here 4 at this table without a FEMA presence next to me. And I 5 thought there was at least a possibility that the legal 6 argument might be moved to be struck because it was legal 7 argument. 8 JUDGE SMITH: Are you -- do you feel that you are 9 competent to explain the links of the chain of events that 10 caused FEMA to change its position from the originally filed l 11 testimony to the present testimony? Have you been privy to ; 12 that decisionmaking process? 13 THE WITNESS: (Keller) Insofar as what I know about 14 it, yes, I could defend it. I 15 JUDGE SMITH: And would you describe just what you do , 16 know abcut it ? 17 THE WITNESS: (Keller) Most of my information I 18 obtained from Mr. Cumming in ~~ Mr. Cumming transmits
- 19 information data and copies of transcripts, and 20 indiscriminately.
21 JUDGE SMITH: He is one of those. 22 THE WITNESS: (Keller) He's one of those, i 23 MR. OLESKEY: Very forthcoming. 24 THE WITNESS: (Keller) He's very forthcoming, yes. 25 On that basis I think that I had copies of all of the Heritage Reporting Corporation (202) 628-4888 O
CUMMING, KELLER ~ CROSS 14177 l I 1 paporwork that has baan citsd and involvad in all of this j 2 testimony long before the testimony was put together. (h 3 JUDGE SMITH: But you were not part of the 1 4 decisionmaking process in changing the testimony. j 5 THE WITNESS: (Keller) March 4th, yes. 6 JUDGE SMITH: You were, j 7 THE WITNESS: (Keller) Prior to March 4th, I was at l 8 the March 4th meeting in which I had drafted a significant 9 portion of the draft testimony w!.th the conclusions statements l 10 pretty much as it stands in this June 10th testimony, that was 1 11 taken to the meeting that hW. Peterson chaired that you all 1 12 discussed at some length several weeks ago. And I was in that l 13 meeting. 14 THE WITNESS: (Cumming. ) Judge Smith, may I add l 15 something? , 16 JUDGE SMITH: Yes, please. 17 THE WITNESS: (Cumming) I've also read Mr. 18 McLoughlin's testimony before the Board, and I believe that I 19 understand what happened. And if it's important to the Board, 20 I would be more than happy to explain my understanding of what 21 happened. 22 I also think that an erroneous impression has been 23 left with the Board that Dr. Baldwin's work was wrong. That is 24 not my understanding. Dr. Baldwin clearly described the 25 limitations on his work. Neither it or Mr. Keller's work was Heritage Reporting Corporation (202) 628-4888 O
CUMMING, KELLuR - CROSS 14178 1 utilized bscausa I brought to the attention the fact that the 2 Sholly testimony was very close to the work that was done by () 3 Mr. Keller in that late October period. 4 What I had done from June on was say, hey, guys, I 5 think what we're doing here is inconsistent with the position 6 we've testified to and I just finished litigating in Shoreham. 7 And Keller keeps telling me that there are sovere limitations 8 on sheltering. 9 And I think that that understanding was in Dave 10 McLoughlin's mind when he went through the period of time so 11 that his understanding was different. 12 Now he usually have a very clear recollection of 13 things, but I think in this case he was just incorrect. And 14 It's true ~~ 15 MS. NEISS: kW. Chairman, I move to strike that f)
%J 16 references to what was in Mr. McLoughlin's mind, especially 17 when we have Mr. McLoughlin's testimony.
18 JUDGE SMITH: Well, you're examining Mr. Keller at 19 length trying to -- trying to impute to us what hW. 20 McLoughlin's state of mind was. l 21 MS. NEISS: I'm doing something completely different. l l 22 I'm trying to -- f I 23 JUDGE SMITH: Well, then, I don't understand what l 24 you're doing. 25 MS. NEISS: (Keller) ~~ put on the record -- I'm Heritage Reporting Corporation (202) 628-4888 O l
1 CUMMING, KELLER - CROSS 14179 l 1 trying to put on tha record objoctiva ovidenco about what was , 2 the information presented to FENA; what did they have before 1 (h 3 them at the pertinent time, from which I intend to argue that 4 there was no rational basis. 5 JUDGE SMITH: But you've got a breach between what 6 was put in and what Mr. McLoughlin took out. 7 MS. HEISS: No, I h a ve ~ ~ 8 JUDGE SMITH: Nevertheless, would you move to it, and 9 I'm not going to allow you to do it very much, but move to it 10 and establish point by point what those items of information 11 you believe were present which could have been absorbed by FEMA 12 officials in -- 13 MS. NEISS: That's exactly what I am attempting to 14 do. 15 JUDGE SMITH: All right. But move to it, and it is N- 16 beyond the scope. However, this is your opportunity, and we're 17 going to finish up. c 18 B Y MS , WEISS: 19 0 Well, we have the description of your -- Mr. Keller's 20 analysis that purported to show that the probability of an 21 accident exceeding PAGs at two miles is very low, within one 22 hour after onset of accident conditions, which is how you 23 defined a fast-breaking accident. And you presented that to 24 FEMA. I 25 And Mr. Baldwin presented his analysis to FEMA which i i 1 1 Heritage Reporting Corporation (202) 628-4888 l ()
CUMMING, KELLER - CROSS 14180 1 purported to show that soms psople would gat off the bsach, 2 defined as two feet off the sand, by the time the plume arrived ( 3 for that fast-breaking accident, correct? 4 A (Keller) That 's correct . 5 Q And Mr. Baldwin did not calculate it and made no 6 representations about where the people would be other than that 7 they wouldn't have two feet on the sand; la that correct? 8 A (Keller) With the caveat that we discussed a few 9 minutes ago; that that was not Dr. Baldwin's representation. 10 But if we'll take that characterization, yes, that is correct. 11 Q That's correct. And what you're differing with is 12 the two feet off the sand. 13 A (Keller) Yes, right. ; 14 Q But in fact that's factually accurate. 15 BR. REIS: Mr. Chairman -- ! 16 THE WITNESS: (Keller) . Well, it was not discussed in 17 that light. It was they would have left the beach. 18 BY MS. WEISS: 19 Q And they might be -- they might be -- 20 NR. REIS: That's my problem. We're dealing with l 21 hearsay here. What Nr. Baldwin said, and I can't tell whether 22 left the beach means left the beach area, left the Seabrook 23 town, or got off the sand. 24 MS. NEISS: That's the quastion, Ed. 25 Heritage Reporting Corporation (202) 628-4888 O
CUMMING, KELLER - CROSS 14181 1 B Y MS . NEISS: 2 Q The analysis was solely limited to they were off the (h 3 beach. They were not out of the EPZ. They were not out of the 4 two mile zone. They could have been in their cars. 5 JUDGE SMITR: Ms. Weiss, all we're going to be able 6 to accomplish this afternoon and through these witnessas is a 7 mere characterization of the information which was before FEMA l 8 which ycu believed had been available for consideration in the 9 evolution of their position. 1 10 MS. NEISS: Exactly. 11 JUDGE SMITH: You're not going to get into the merits i 12 of it. ; 13 MS. NEISS: No. _ 14 JUDGE SMITH: Can't do that. 15 MS. WEISS: No. No intention of doing that. 16 JUDGE SMITH: Because if the characterization doesn't 17 do it, then you don't have it. t 18 MS. NEISS: No intention of getting into the merits. E58 19 (Continued on next page.) 20 21 22 23 24 i 25 Heritage Reporting Corporation (202) 628-4888 O i l I
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KELLER, CUNMING - CRCOS 14182 T/59 1 B Y MS , WEISS: 2 Q I think just to tie this up because you've been doing 3 a lot of nodding that isn't going to be reflected on the 4 transcript. 5 I am accurate that Mr. Baldwin tracked the people as 6 far as the edge of the beach, made no analysis of how far they 7 would get by the time the plume arrived, whether they would be 8 out of the two miles or out of the EPZi correct? 9 A (Keller) That's a correct statement. 10 0 And it's accurate, isn't it, that none of your work, 11 your probability analysis that we've been describing from 12 October is inconsistent with the statements on page 39, the 13 famous page of the September lith, '87 FEMA testimony, that 14 thousands of people could be on the beach throughout the entire 15 duration of the release? 16 MR. DIGNAN: Under what circumstances ? 17 MS. WEISS: Whatever the circumstances are on page 18 39. 19 MR. DIGNAN: Wel1, that was always my trouble with 20 39, Mr. Weiss, I didn't get any circumstances on 39, 21 MR. OLESKEY: It's not our testimony, Tom. 22 MR. DIGNAN: I know. 23 Now, could we have that parameter before the witness 24 is asked to give what is now an expert opinion well beyond the l l 25 scope of direct? What accident are we talking about ? Heritage Reporting Corporation (202) 628-4888 j 1 I
KELLER, CUMMING - CROSS 14183 1 MS. WEISS: Wa'll focus on the exact words of the 2 old testimony on page 39. 3 THE WITNESS: (Cumming) Did you say old testament? 4 MS. WEISS: Yes. The September lith testimony. What l l 5 did I say, testament. l l l 6 (Simultaneous conversation) l l 7 MS. WEISS: No, that's your frame of reference, Bill, 8 that's not my frame of reference. I take a teleological -- 9 JUDGE SMITH: That's outdated testimony, 10 MS. WEISS: The outdated testimony, right. The l l 11 September lith testimony. 12 THE WITNESS: (Keller) I disagree with that 1 13 statement. 14 B Y MS , WEISS: I 15 0 You say that there is -- there was something in O N 16 your -- 17 MR. DIGNAN: What statement ? 18 THE WITNESS: (Keller) The one she read to me on 39, 19 I thought. 20 NR. DIGNAN: She didn't read any.
.?1 THE WITNESS: (Keller) Oh, I'm sorry. I thought she 22 directed me to a statement ~~ I'm sorry.
23 MS. WEISS: Could we have -- maybe we should have the 24 question first and then the answer. l 25 MR. DIGNAN: But I like the answer. Heritage Reporting Corporation (202) 628-4888 l
KELLER, CUMMING - CROSS 14184 1 (Laughter) 2 NR. OLESKEY: You'll love the question, h 3 (Laughter) 4 MS. WEISS: This is not Jeopardy. Okay. 5 B Y MS . WEISS: 6 Q Focusing on the sentence that begins the last 7 paragraph, it the jollity would recede, "Therefore using the 8 standard guidance for the initiation and duration of 9 radiological releases and the current New Hampshire RERP 10 including ETE, it appears that thousands of people could be 11 unable to leave during an accident at Seabrook involving a 12 major release of radioactivity without adequate shelter for as 13 much as the entire duration of that release," end quote. 14 My question is, any of the work you did in October 15 was inconsistent with that statement? [~\ %' 16 MR ,. DIGNAN: This is what I object to. Without a , 1 17 parameter and the way this is framed it doesn't go, nnd here's l 18 my reason, Your Honor, I'd like to be heard. This was the ; i 19 problem with the original testimony in the Thomas theory, you l l 20 could have a major accident with a major release, but because 21 the release doesn't occur for 20 hours you could have everybody 22 out of Seabrook and down in bed in Boston. j 23 And this has been the thing I have been fighting in 24 this case for two years. It's this ethereal accident that 25 nobody puts a parameter on. And if you're going to ask -- if l Heritage Reporting Corporation l (202) 628-4888 () .
KELLER, CUMMING - CROSS 14185 1 wo'ro going to gst into this stuff which I think is irralovant 2 and well beyond the scope of direct, bafore the witness 1s () 3 asked does he agree or disagree with that statement I think a 4 parameter ought to be put in as to what accident we're talking 5 about. 6 MS. NEISS: Well, let's use the -- 7 JUDGE SMITH: I don't want to go into the accidents.
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8 NR. DIGNAN: Well, neither do I, Your Honor, but you 9 granted the leave for her to go beyond the scope and I'm just 10 doing the best I can -- 11 JUDGE SMITH: I granted leave for her to characterize 12 those items of information, not on the merits of them, but I 13 simply to characterize them which she believes were before the 14 decisionmakers at FEMA as to which they could have availed 15 themselves in the evolution of their position. l O 16 Now, I would have expected a flurry of objections 4 17 when she asked that question, because I think she's going to go l 18 straight where we told her she couldn't go, into the -- l 19 MR. DIGNAN: Well, I don't know if you got a flurry, 20 but you've got one. 21 JUDGE SMITH: Yes. I 22 NE. REIS: You have another one. 23 MR. FLYNN: I'll join. 24 MR. REIS: On the grounds that it doesn't even go to 25 the development of the FEMA position set out in the June 10th, Heritage Reporting Corporation (202) 628-4888 O
i KELLER, CUMMING - CROSS 14186 1 1988 plan. , 2 JUDGE SMITH: Well, she's rehabilitating the old one. () 3 See, this is -- 4 NR. FLYNN: But that's -- S JUDGE SMITH: You have to have been~here to 6 appreciate where we are. You just can't get to where we are.
-7 MS. NEISS: If it will help, this is the last 8 question.
9 NR. DIGNAN: Don't take a lead in an objection until l 10 you've been here a -- 11 MS. NEISS: If it will help this is the last question i 12 on the subject. ; 13 MR. DIGNAN: No, it won't help. Without the 14 parameter I object to the question, even within the scope of 1 15 the Board's ruling that you can go beyond the direct. ' u 16 MS. NEISS: I'll do a parameter. l 17 JUDGE SMITH: She is withdrawing the question and l l 18 you're going to ask -- l l 19 MS. NEISS: No. Well, no, I'll give him a parameter. l 20 I'll give him a parameter, fast-breaking accident as you define 1 21 it. 22 MR. DIGNAN: No. 23 MS. WEISS: An accident where the release begins half 24 an hour after onset of accident. 25 MR. DIGNAN: No. Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUNNING - CROSS 14187 1 JUDGE SMITH: Sustainsd. For the rocson I stcted, 2 Ms. Weiss, you were not simply characterizing the work that he () 3 did which may have been before the FEh% officials. You are 4 going now into the merits of the originally filed testimony i 5 trying to use his work to support it, and you can't do that. 6 MS. NEISS: Well, let me make an offer of proof, the 7 witness can answer, yes, and I'll support it by the deposition i 8 when I get back to my office. 9 JUDGE SMITH: Okay. i 10 MS. NEISS: But the witness would answer, there is no i r 11 inconsistency. I 12 hR. DIGNAN: You're really going to try that offer , 13 when he's already said he didn't agree with the statement ? 14 MS. WEISS: Yes. I've got it in the deposition. 15 MR. DIGNAN: All right. k 16 B Y MS . NEISS: 17 Q Let's go to your work on the testimony. , i 18 JUDGE SMITH: Well, you want to make your offer of 19 proof now -- can you do it now? 20 MS. NEISS: Oh, yes. t 21 NR. DIGNAN: She did. She says she's offer to prove 22 he would have answered her question yes. 23 JUDGE SMITH: Oh, okay. 24 MS. NEISS: I said he -- I think I'll do it myself, 25 thank you very much. ' Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUMMING ~ CROSS 14188 1 My offor of proof is that tha witnssa would answsr 2 that his analysis of October was not inconsistent with the () 3 statement that I just read from page 39 of the testimony. 4 JUDGE SMITH: Okay. 5 B Y MS. WEISS: 6 Q Subsequent to the October 28th meeting where you 7 presented your analysis and Dr. Baldwin presented his analysis, 8 is it accurate that your next contact with these issues came in 9 early 1988 when Ms. Lawless called to tell you that FEMA might 10 want you to get more involved? 11 A (Keller) That's what I said at my deposition and I 12 was in error. Immediately after the meeting of October 28 and 13 29, I had contact with FEMA headquarters, basically it's kind 14 of summation sort of thing of what happened at the meeting, and 15 what I thought of the meeting. ( 16 So technically, I had more contact but substantively 17 it was about the same sort of thing that was in the October 28 18 and 29 meeting. 19 Q And who did you talk to on that occasion? 20 A (Keller) Ms. La wless, and I believe ~~ I know I 21 tsiked to Ms. Lawless and I think I spoke to Mr. Wingo also. 22 Q Did you present any written material? 23 A (Keller) Nothing was ever official transmitted, no r 24 except verbally. 25 Q Did they say to you that they had made a presentation Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUMMING - CROSS 14189 1 to Mr. McLoughlin or intandad to make a prossntation to Mt. 2 McLoughlin? h 3 A (Keller) They made no such representation, no. 4 Q Do you have any reason to know whether there was a 5 presentation of this work made tO Mr. McLoughlin? 6 A (Keller) Mt. McLoughlin stated in the March 4th 7 meeting that he had been briefed by Mr. Wingo, aside f' rom that. 8 Q Okay. That 's good. 9 All right. With that aside, then your next contact 10 came in early 1988 with a phone call from Ms. Lawless; is that 11 correct? 12 A (Keller) That 's correct . 13 Q But you were not given a specific assignment at that 14 time? 15 A (Keller) That's correct. 16 O And it wasn't until March the 1st of 1988 at a 17 meeting at FEMA headquarters that you were asked by Mr. Flynn 18 if you wanted to draft the technical basis for the current FEMA
.19 testimony; is that correct?
2C A (Keller) Well, we've left out one minor point. I 21 was asked to attend the RAC meeting of February 29th, so that I 22 could hear, even though there was going to be a transcript, so 23 that I could hear the discussions that went back and forth 24 preparatory to drafting technical testimony, so that is a 25 little ahead of March 1st. Maybe a little bit. l Heritage Reporting Corporation (202) 628-4888 3 (V
KELLER, CUNMING - CROSS 14190 1 Q Was that the first RAC m50 ting on Scabrook you had 2 attended? l () 3 A (Keller) That's correct. 4 Q Have you attended any since? 5 A (Keller) Well, no, I have not attended another RAC 6 meeting on Seabrook. 7 Q All right. And then we come to March let and you 8 have a meeting at FENA headquarters and Mt. Flynn asks you if 9 you want to draft the technical basis for the current 10 testimony; is that accurate in substance? 11 A (Keller) In substance, yes. 12 Q And I believe you testified you were a little annoyed 13 with Mr. Flynn because you couldn't get him to focus with any l l 14 degree of precision on what it was exactly that you were to do? 15 A (Keller) I did say that, and I was a little annoyed, 16 but I think we got a date -- there's one day -- one day shift 17 here. The RAC meeting was on the 29th, in the morning of March 18 1st I had a meeting with the subcommittee on Instrumentation of 19 the FRPCC, Federal Radiological Preparedness Coordinating 20 Committee chat Mr. Krimm chairs. There was an instrumentation 21 subcommittee and that's the group that we write these guidance 22 documents for. 23 So that morning I had a meeting with that group, and l 24 in the afternoon I met with Dr. Hock for the first time to 25 brief her on what had been transpiring with the SPMC plan Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUMMING - CROSS 14191 1 review and verification from tho wack baforo. 2 So the testimony work started very late in the () 3 afternoon on the 1st and actually was primarily on the 2nd. 4 O The drafting of the testimony took place primarily on 5 the 2nd of M a rch? 6 A (Keller) Yes, ma'am. 7 Q And you did that in conjunction with hW. Flynn; is 8 that correct? 9 A (Keller) Yes, ma'am, and I had some input from my 10 co -wi tness, NW. Cumming. 11 Q And it's true, isn't it, that the only parts of the 12 New Hampshire RERP which you reviewed were those portions 13 attached to the February lith, 1988 response f' rom Mr. Strome to 14 the FEMA supplemental testimony? 15 A (Keller) That's correct. (h 16 Q And when were you give those? 17 A (Keller) Sometime after the lith. I have no clear 18 recollection of the day that I got them. But in the time 19 trame, I would say within a week of the lith. 20 0 And do you recall testifying at your deposition that 21 it was your understanding at that time that the New Hampshire 22 RERP does not provide a sheltering option under some scenarios 23 for the entire transient beach population? 24 A (Keller) I think I would put it, that they only 25 consider sheltering for the entire beach population under Heritage Reporting Corporation (202) 628-4888 Ci
l KELLER, CUMMING - CROSS 14192 , 1 cartain very limitad scanarios, but, yss, that -- the answar to i 2 your question is, yes. , () 3 O So, at the time you gave your deposition it was your ; 4 understanding or you testified that it was your understanding 5 that the plan did not provide a sheltering option for the 6 general beach population? 7 A (Keller) That's correct. 8 Q Is it true that the conclusions in your testimony , 9 related to che relative efficacy of the shelter first versus i 10 the immediate evacuation strategies rely in no way on data ; 11 assumptions or evaluations specific to the Seabrook site? i 12 A (Keller) That 's correct. 13 Q Your analysis is entirely generic to any nuclear 14 powerplant; correct? 15 A (Keller) Light water, light water uranium-fueled. 16 The kinds of powerplants we normally deal with, yes, that's 17 correct. 18 Q And you have no calculations or analyses for the l l 19 fast-breaking accident at Seabrook that demonstrate any l l 20 particular level of dose reduction associated with an immediate 1 l 21 evacuation strategy, do you? 22 A (Keller) That's correct. 23 O And you don't have any calculations showing any 24 particular level of dose reduction for the fast-breaking 25 accidsnt associated with a shelter first, evacuation later I Heritage Reporting Corporation l (202) 628-4888 O V
KELLER, CUMMING - CROSS 14193 1 strategy -- 2 A (Keller) These are all generic kinds of analyses.
;x L_)O 3 Q If I could direct your attention to page eight of 4 your testimony, your current testimony.
5 A (Keller) Page eight. 6 Q The second full paragraph, the second sentence and 7 I'll read it: "The transient beach population is treated as a 8 special population and the special considerations afforded this 9 special population include precautionary action such as early 10 beach closure and emergency classification level (ECLs) prior 11 to the necessity for consideration of protective actions for 12 the general public," end quote. 13 Isn't it true that the orly special consideration 14 afforded this special population is early beach closure? 15 A (Keller) There is also early evacuation at the site T 16 area emergency. The beach closure is at the alert. There 17 isn't a beach evacuation at the site area. 18 Q All right. Well, those are -- 19 A (Keller) Yes. 20 0 Some people call that one, but I'll accept -- but 21 that's it, that's the universe of special precautionary actions 22 for this special population? 23 A (Keller) Precautionary actions, yes. 24 Q And isn't it also true that for the fast-breaking 25 accident, as you define it, and that is the major release Heritage Reporting Corporation (202) 628-4888 O G
KELLER, CUMMING - CROSS 14194 l 1 occurs, within a half an hour of the onsat of accident, you 2 would not have either early beach closure or early evacuation ) 3 because by definition that accident would start at a site area 4 or general emergency? l 5 A (Kslier) I believe my definition of the fast-breaker 6 was an hour. 7 Q An hour, okay. 8 A (Keller) Not the half hour. I don't know that for a 9 fact. I mean, you could have an accident which sequenced 10 through the lower classification levels and still had the l i 11 relsa.v : n."d major release within an hour. So I don't know for l 12 a fact that that's the only time you could do that. But I will l l 13 agree that there are sequences that would -- that could start, l l 14 basically, at a general emergency classification. And that a i i 13 re. lease could occur relatively rapidly. And in those sequences l 16 whatever their probability is or whatever their likelihood of 17 occurring is, you would not have the early precautionary 18 actions for the beach -- the general beach population. 19 0 They would be simply inapplicable and obviously they \ 20 would provide no additional protection? 21 A (Keller) Past the fact. 22 O Right. 23 Is it accurate to say that your belief that there 24 will be some dose savings afforded the beach population for 25 fasc-breaking accidents is based on your opinion that some Heritage Reporting Corporation (202) 628-4888 l
KELLER, CUNMING - CROSS 14195 1 undstormined number of psople will bs able to move off the 2 beaches before they're exposed to the plume? () 3 A (Keller) Yes. 4 Q But you don't know how many; that's correct? 5 A (Keller) That's correct . 6 Q And you don't' know how far they would get; that's 7 correct? 8 A (Keller) And I don't know where the plume would be. 9 And I don't know ts. 'dth of the plume. And all the things 10 that I don't know lead me to a generalized conclusion that i 11 there would be some dose savings in this portion of the 12 accident spectrum, which is only a part of the full accident 13 spectrum, whereby, even in the fast-breaking accident which has 14 a release of activity relatively quickly, that some exposure 15 would be -- those would be eliminated or reducsd, a reduced ( 16 dose even in that circumstance, yes. 17 O And that's as far as you're willing to go on an 18 assertion that there would be some dose savings without further 19 elaboration as to how much or who it is -- 20 A (Keller) If you're asking for a hypotheticair if you 21 want to define all the parameters I'll give it a go. But as a 22 generic general statement that there is a broad spectrum of L3 accidents, as a part of that spectrum, okay, all from one end, 24 but it's a part of the spectrum, without any regard to the 25 likelihood of that end of the spectrum occurring, and with any Heritage Reporting Corporation (202) 628-4088 O
KELLER, CUMMING - CROSS 14196 1 regard to the magnitudo of the potential dossa in that and of 2 the spectrum, I don't know what the plume width is. I don't () 3 know what the travel time is. I don't know what the release 4 height -- the effective height of the plume release is. I 5 don't know what the meteorology is. But it is my belief that 6 the immediate evacuation of the people on the beach would 7 reduce -- would result in some dose savings. 8 Q Would you agree that evacuation must begin before or 9 shortly after a release for it to reduce the risk to the public 10 substantially? 11 A (Keller) That clearly is the most appropriate. But 12 I can postulate accidents in which that would not nocessarily 13 be the case, but in general, yes, it should occur either before 14 or shortly after the start of the release, yes. 15 JUDGE SMITH: Was that responsive? f) 16 B Y MS . NEISS: 17 Q Well, I think you did eventually agree that that was 18 correct; right? I 19 A (Keller) Yes, I did. 20 JUDGE SMITH: Well, could I have the question back. l 21 (Whereupon, the reporter played'back the last l 22 question and answer.) l l ot/60 23 (Continued on next page.) 24 25 Heritage Reporting Corporation (202) 628-4888 O l l
CUMMINGr KELLER - CROSS 14197 T61 1 JtWiGL R$tTH: I don't think that was responsiva '. , q { 2 THE WITNESS: (Keller) To be frank, I did not hear 3 ' 3 all the question. I heard it better when it was read back,. 4 Ms. Weiss asked me to raduce risk to the public. 5 JUDGE SMITH: ' Subs tan tiell::'. 6 THE WITNESS: (Keller) lylstantially reduce risk to , s, - 7 the pubilc. And that's not our ca.'l. The risk situation, , 8 which risk reduction is not a FEMA - that's not under the 9 purview of what FEMA does. ,
, j 10 BY MS. WEISS *
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i t 11 Q Okay. So you were.-- what you thought I said was to\ 12 reduce doses -- i 13 A (Keller) Yes. ,
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14 0 -- substantially. j y 15 A That 's right . r (i* i (Keller) l) O i 16 O And the question and answer should 'be understood with i i 17 that in mind. I ;_ i 18 A (Keller) Yes, yes. l ! V> 19 JUDGE SMITH: I assumed that it;han dosa. You still i , 20 think it's responalt.v? y ', ( g (\ I;
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21 THE WITNTSS: (Keller) Yes, I do. 'Sure. I 22 JUDGE Sb1ITH: Okay. ,
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23 B Y MS . W&lSS: 24 0 Would you also agree that for a severe re. Tease as 25 those are defined ;in WASH-1400 -- I don't know if definOd is ts ,
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CUMMING, KELCa 7 - CRCFS 14198 l 1 the riefht words, but. classiflad br, sac forth in NASH-1400 -- 1 2 the major portikn of the rad,ioactive material is released 3 within a half to' Qwo hours after the onset of the accident ? 1 g l 4 MR. FLYNN: I'm sorry. Was there a question there? 5 MR. DIGNAN: Is that the questlan? Because if it is, 6 I object. 7 Yes, that's the question. 7 MS. WEISS:l 8 MR. DIGNAN: Has the question ended? - y't 9 MS. WEISS: Yes. 8 2 5 t 10 MR. DIGNAN: Objection. N, ' s s ;
\ I didn't hear her question. I just heard 11 HR. FLYNN:
12 an assumption. 13 , JUDGE SMITH: What's the question? 14 MS. WEISS: Would hexagree that for this severe 15 sccli!cnts in WASH-1400, the severe release, the major pcrtion t )
% 16 of the)w3dioactive material, L( released with in a half to two
?. I \ i 17 hours after onset of the accilWnt?
' 28 ; MR. DIGNAN: Object'lon; relevancy. We're heading v,
19 into consequence as sure as I sit here. 20 MS. WEISS: There's nothing quantitative sbout ic. 21 We're tulking about the effectiveness of evacuation as opposed 22 to shelter, and are thera going to be any dose reductions for 23 certain kinds of accidents. I think that's a perfectly fair l 1 24 question. \ l 25 MR. DIGNAN: I agree, that question would be fair, i
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CUNMING, KELLER - CROSS 14199 1 but t':h a t ' s n o t tho qusstion you askcd him. 2 MS. WEISS: I don't rfe that. , 3 JUDGE SMITH: Ask it -- 4 MS. WEISS: I don't see anything wrong with that. g 5 JUDGE SMITH: Which quest Lon did you ask now? Which 6 question do you believe that you've asked? 7 MS. WEISS: Well, sincs I'm reading it off thle 8 paper, I'm pretty sure I asked the same one, which is, does he 9 agree that for a severe release, as those are listed in WASH-i 10 1400, the major portion of t,he radioactive material is released
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11 within one-half to two hours after onset 05' accident i 12 conditions. 13 MR. DIGdAX: Is the -- Y 5 14 MS. WEISS: The warning time is one and a half to two 15 hours. ,. ,_ i 16 MR. DIGNAN: Is that the question? Is the question 17 what does 1400 say? 18 , MS. WEISS: Yes. 18 -< MR. DIGNAN: Well, chen I object, because the t 20 document speaks for itself. That's simple. 21 MS. WEISS: I'm not going to -- it's not in idence. 22 l MR. DIGNAN: That's pop quiz time again, does he know 23 WASH-1400. ' 24 MS. WEISS: No. The work that he did in October 25 involved these scenarios from NASH-1400. Heritage Reporting Corporation t (202) 628-4888 O
m CUMMING, KELLER - CROSS 14200 1 JUDGE SMITH: WDll, you'va pass 5d along now. You'ra 2 attacking his direct testimony?
~h 3 MS. NEISS: Yes.
(G 4 JUDGE SMITH: What part of his direct testimony? 5 MS. NEISS: Well, it goes to the question of whether 6 there are dose savings from evacuation. 7 JUDGE SMITH: Vis-a-vis shelter. 8 MS. NEISS: You know, the witness has agreed with me 9 that you've got to get an evacuation started in order to reduce 10 doses substantially early. 11 JUDGB SMITH: You know, he says he did, but I didn't 12 hear him say that. I still think that was nonresponsive r but 13 he's the best judge of that. 14 MS. NEISS: And, you know, I believe he would answer 15 that the serious accidents in WASH-1400 involve warning times i h 16 generally of one and a half to two hours, from w!ich I intend 17 to argue that for the severe fast-breaking accident there is 18 not significant dose reductions from evacuation. , I 19 kW. Chairman, I object. NR. REIS: 20 MS. NEISS: And I'll make that as an offer of proof. I t 21 MR. DIGNAN: Well, you can argue that all you want. l t 22 But how is that question relevant to this tescimony? 23 MS. NEISS: Because he's testified -- ) . l 24 MR. DIGNAN: I'm sorry, Your Honor. I shouldn't l l 25 argue with counsel. l Heritage Reporting -:s poration l (202) 628-4c?a ' O l
CUNMING, KELLER - CROSS 14201 1 MS. NEISS: -- that thars is som3 dose reduction. 2 hR. DIGNAN: I object to the question. It's beyond O) q_ 3 the scope of direct. I object to the question on the grounds 4 that the document speaks for itself, the exact question that's 5 on the table now. And I further object on the grounds that 6 we're headed right into consequence analysis as I see it. One, 7 two, three, those are the reasons. 8 NR. REIS: Your Honor, I have another objection. The 9 purpose of emergency planning is to reduce doses from a 10 spectrum of accidents. When we separate out certain accidents i 11 and talk about those that have special consequences at certain , 12 times, we're no longer talking about whether it meets tha 13 spectrum of accidents that can happen. 14 And what we're talking about is -- 15 MS. NEISS: Those are the ones you need emergency 16 planning for -- 17 MR. REIS: - planning for a spectrum of accidents 18 and not for individual accidents, and we're separating out ' 19 individual accidents. 20 JUDGE SMITH: Well, Mr. Reis, the Intervenors have 21 been litigating almost exclusively the end of the spectrum 22 which relates to the fast-breaking severe accident, and i 23 although you are correct, they have staked out that end of the , 24 spectrum for their litigation. , 25 NR. REIS: I respect what has gone before in this i o Heritage Reporting Corporation (202) 628-4888 i O
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CUNMING, KELLER - CROSS 14202 1 hearing, and I realize I just arrivsd today. 2 JUDGE SMITH: No, no, you are exactly right. () 3 MR. REIS: It doesn't make it righc. 4 JUDGE SMITH: You are exactly right. But would you S carry the argument through ? I would like to hear the argument 6 carried tnrough that if it is within the spectrum of the 7 accident, why can they not address it? 8 I mean, if it is within the spectrum of accidents why 9 they cannot address it. 10 NR. REIS: There's no-question that it is within the il spectrum of accidents. However, the question involved is 12 whether looking at all those -- that spectrum of accidents you 13 will reduce dose, not necessarily of every individual accident 14 that could occur, but from the universe of accident that could 15 occur. () 16 MS. NEISS: Well, that's a legal argument. You make 17 it after you put your evidence in. 18 JUDGE SMITH: Well, that may be -- that may be, but 19 they wish to demonstrate that as to the edge of the spectrum, 20 that may or may not be true. 21 NR. REIS: Your Honor, I think that's irrelevant and 22 I think it's -- 23 NE. DIGNAN: Well, at the edge of the spectrum, 24 their -- I apologize. 25 NR. REIS: -- contrary to what the Commission has Heritage Rep, :ng Corporation (202) 628-4888 () < l 1 I
i CUMMING, KELLER - CROSS 14203 1 said in the past. And I'll lot it rest there, and thoss ara L 2 the grounds of my objection. () 3 NR. DIGNAN: Well, Your Honor, accepting their -- 4 they want to litigate the edge of the spectrum. The one thing 5 that's clear is the edge of ths spectrum, as I underscand it, 6 NW. Thomas's far edge of the spectrum is the one-half hour to 7 release. , 8 And assuming the sequence takes place, and we go up 9 through the sequence, there is some notification time, and as 10 two plus two follows four, there is going to be some dose il savings assuming a plan is in effect, because somebody, some 12 group is going to move in that half-hour. ; 13 JUDGE SMITH: Well, you see, this is where I got in i 14 trouble. > 15 NR. DIGNAN: And that's where I'm falling off the l 16 track here as to relevancy. 17 JUDGE SMITH: Here is where I got into trouble with r 18 his answer to the other question of Ms. Weiss. I still think 19 it was not responsive. 20 MS. NEISS: Well, it doesn't do any good if they move 21 into the plume. If they don't get out of the two miles, it 22 doesn't do any good. 23 MR. DIGNAN: Well, you're right, and you know what, ' 24 if a whole bunch of people stand there and say, shoot me in a 25 bank robbery, they're going to get killed. i t Heritage Reporting Corporation (202) 628-4888 ,
CUMMING, KELLER - CROSS 14204 1 But the purposa of tha plGn is that p:0p10 rocct to 2 direction. That part of that direction is to tell them where f3 Q,) 3 to go and how to get there. 4 NR. FLYNN: I don't accept the statement that even if 5 they remain in the plume, there is no dose savings. 6 JUDGE SMITH: Well, that's my problem. See, that's. 7 why I felt that his answer was not responsive. I think it 8 assumes something that was not in the question. I think his 9 original answer assumed chat there is a comparison with 10 sheltering, and that was not in the question. And I don't 11 understand the answer which says that even a late evacuation 12 cannot achieve significant dose savings. I don't understand 13 that. I've lost the thread of the questions and answers, and 14 I'm at a loss now to get involved in what's going on here. 15 MR. DIGNAN: I think the witness took the question, 16 and I confess I did, too, and maybe I misheard it, as a 17 comparative question. 18 JUDGE SMITH: No, it was not a comparative question. 19 NR. DIGNAN: Well, if that be the case, then I agree 20 with you. The answer was not responsive. 21 JUDGE SMITH: And now I understand Ms. Weiss's l 22 question now to be going to a comparison because it's directed 23 to the sheltering -- evacuation versus sheltering isaue, and it i 24 has to be a comparative question before it makes any sense. l 1 25 MS. NEISS: It doesn't have to be comparative. I l Heritage Reporting Corporation (202) 628-4888 O i
CUNMING, KELLER - CROSS 14205 1 maan, their position 1s thnt tho renga of protcctiva actions 2 must achieve some dose savings. That's their argument. 3 JUDGE SMITH: Right. 4 hR. DIGNAN: On a spectrum of accidents. 5 MS. NEISS: Let me finish. 6 And that means evacuation only for these fast-7 breaking accidents for the beach population. And I think we 8 have a shot at establishing that there is no significant dose 9 savings for those people. 10 JUDGE SMITH: All right. 11 MS. NEISS: And that's what this is -- l 12 JUDGE SMITH: Fine, you have a shot at establishing 13 it providing that you establish it with a full understanding of 14 what your question is, and that it's -- 15 MS. NEISS: Well, there is a question pending. h 16 JUDGE SMITH: And the question is, does he agree that 17 some of the accidents in WASH-1400, or a substantial part of 18 the spectrum is fast and severe. 19 NS, NEISS: Well, the warning time for evacuation 20 ranges from a half to two hours. i 21 JUDGE SMITH: All right. Would you agree that that's 22 the case? 23 THE WITNESS: (Keller) For some accidents, I would ; i 24 agree that the warning time. However -- l 25 JUDGE SMITH: And these are the accidents upon which l l Heritage Reporting Corporation I (202) 628-4888 } () J
CUMMING, KELLFR - CROSS 14206 1 "9'ra pisnning. 2 THE WITNESS: (Keller) Those are part of the , () 3 spectrum of which we're planning. 4 I would like to call people's attention to NUREG~0654 5 on Page 17, and it says, the time at which a major portion of 6 the release may occur, and I believe your question was major 7 portion. And it says, .5 hours to one day after the start of 8 the release. 9 N3. NEIb3: Right. 10 THE WITNESS: (Keller) And I believe your question 11 had in it me agreeing with one or two hours after start of the 12 release. And I don't want to agree with the one or two hours, 13 because we would prefer to go by 0654, and it clearly says one 14 day. 15 B Y MS . WEISS: ' 16 Q At one end? 17 A (Keller) Hm-mm? ; 18 0 One day at one end, and a half an hour at the other , i 19 end. i 20 A (Keller) Yeah. . 21 Q Right? 22 A (Keller) Right. 23 0 Okay. ; 24 A (Keller) But this kind of helps to define the 25 spectrum. Heritage Reporting Corporation , (202) 628-4888 ()
CUNMING, KELLER - CROSS 14207 1 And the second qusstion that I agrosd with, what is 2 the warning time, doesn't have anything to do with how long. I 3 mean, not necessarily it doesn't have to. Some accidents 4 indeed could have the hour to-hour and a half warning time. l 5 Q Accidents within the planning spectrum? l 6 A (Keller) Within the planning spectrum. Some. , 7 Q Let's go to Page -- ~ 8 JUDGE SMITH: I think maybe I just -- are you happy 9 with where you are now? -i 10 MS. WEISS: I thought I was. l t 11 JUDGE SMITH: Ali right. i 12 MS. WEISS: Maybe I'll confer with my co-counsel. I I 13 may be missing something, but they can help me with it. i i E61 14 (Continued on next page.) l l 15 ; 16 17 I i 18 19 ; 20 21 l 22 i 23 24 l 25 l Heritage Reporting Corporation ; (202) 628-4888 ( O ! l l
KELLER,'CUNMING - CROSS 14208 T/62 1 B Y MS . WEISS:
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2 Q Okay. Still on page eight of your testimony, the O \_) 3 second full paragraph, the first sentence: "The response by New 4 Hampshire to the FENA supplemental testimony is adequate in 5 concept." Who wrote that ? 6 A (Keller) I.did. 7 Q Is the adequacy of the New Hampshire RERP something 8 that you as a consultant to FENA are authorized to interpret? 9 A (Keller) I have been directed by kW. Flynn to state 10 that I am authorized to speak for FEMA; yes. 11 Q So you're authorized to reach conclusions with regard 12 to the adequacy of the New Hampshire plan for FEMA? 13 A (Keller) You've got to remember that this has been 14 reviewed at a relatively high level. I cannot say for sure 15 that this final piece of paper went all the way to Mr. 16 Peterson, but I know that Mr. Peterson approved what we had on 17 March 4th, I was present. During that meeting he said, there 18 will be some word engineering, and there was. But that 19 statement was in the March 4th draft, because I wrote it. 20 Q And you wrote it on the basis of a review of the New 21 Hampshire plans that consisted solely of the portions attached 22 to the February 11 submission by hW. Strome; that's correct? 23 A (Keller) We are restricting it, and looking at it 24 now I understand maybe your concern. This statement has to do 25 with the plan with respect to the transient beach population Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUMMING - CROSS 14209 1 only. It is not -- it is not a stetcm:nt anymorc global than 2 chat. And it basically is intei 'ed to track the statement O) Q_ 3 that's the last line of the conclusion, if you will, or the 4 last -- yes, the last sentence of the conclusion. 5 Q Okay. Let's go to the conclusions on page 11. The 6 first sentence, "The requirement for a range of protective , 7 measures has been satisfied even though the State of New 8 Hampshire has _ chosen not to shelter the summer beach population 9 except in very limited circumstances," end quote. Who wrote 10 that? 11 A (Keller) I think maybe I did, but I'm not absolutely 12 positive. 13 Q That's not a conclusion that you're authorized to I 14 reach as a consultant of FEhR, is it? , 15 MR. FLYNN: I've got a problem with the question. 16 First of all, it's ambiguous. What does it mean, he's not 17 authorized to reach -- he can't think that. He can't say it. 18 FEMA sponsored him. Put him forward to defend this testimony. 19 He agrees with it. I don't know what more we need to know. If , 20 the question is, what is the extent of his authority? It's a l 21 fandamental principle of agency law that you don't prove l I 22 authority by the testimony of the purported agent. 23 I don't understand where this is going. 24 MS. WEISS: Well, the fact of the matter is that we 25 don't have a witness on this panel who participated in the l Heritage Reporting Cmrporation i (202) 628-4888 O l }
KELLER, CUMMING - CROSS 14210 1 official dscisionmaking for tha agsncy on whsthor tha renga of 2 protective actions has been met or planning elements J-9 and (] 3 J-10-M have been met; was in the chain of command for reaching 4 that decision. 5 NE. FLYNN: That's a -- I submit ,that's a silly 6 assertion. We have on this panel Mt. Cumming, we have Mt. 7 Keller who were there on March 4th when this was discussed. 8 You have had three other participants including the associate 9 director of FEMA who wcre also at that meeting and who have 10 testified and been examined at length. 11 I don't understand why this has any bearing or is 12 important to the development of this case. 13 JUDGE SMITH: Nho is defending that conclusion? 14 NR. FLYNN: Well, they both are. And in addition, 15 Nr. Peterson, McLoughlin and Krimm defended it. 16 N3. WEISS: None of them had even read the New 17 Hampshire plans. FEMA hasn't given us anybody who has read the 18 New Hampshire plans. 19 THE WITNESS: (Cumming) That's incorrect. 20 JUDGE SMITH: I don't know where we are. 21 THE WITNESS: (Cumming) I've read portions of the 22 New Hampshire plan. 23 NR. DIGNAN: There's testimony here that says, FEMA 24 says it's adequate. They sent two guys down to defend the 25 proposition that this is the conclusion; what's the problem. Heritage Reporting Corporation (202) 628-4888 O : t
KELLER, CUMMING - CROSS 14211 1 MS. NEISS: I'm cntiticd to show that tha p20pic 2 they sent to defend the conclusion haven'c read the New () 3 Hampshire plan. 4 (Simultaneous conversation) S JUDGE SMITH: Okay. 6 NR. DIGNAN: That doesn't mean he still got holy i 7 orders, what's the difference. 8 MS. NEISS: Haven't read the New Hampshire plan. 9 Yes, that's right. 10 hE. OLESKEY: He's the sexton. 11 NR. DIGNAN: Fine. He can perform certain sacraments 12 and one of them is testifying in front of the NRC. 13 MS. NEISS: I think that allows me to argue about the 14 weight of the testimony, wouldn't you say. 15 JUDGE SMITH: All right. Go ahead, establish it and 16 argue it. 17 MR. FLYNN: Well, bat the issue is his familiarity 18 with the plan; it's not his authority. 19 JUDGE SMITH: Well, she's going beyond authority now 20 into competence to defend the conclusion. 21 BY MS. NEISS: 22 O The fact of the matter is that neither of you gentlemen 23 have read the New Hampshire radiological response plan? 24 A (Cumming) That's incorrect. 25 Q You've read some of it ? Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUNMING - CROSS 14212 1 A (Cumming) Volumas 1 and 4. 2 Q One and four, you didn't read volume six. And you've (h 3 read what was attached to the Strome letter? 4 A (Keller) And I also said in my deposition that I had 5 read certain other portions of the plan that had to do with 6 accident assessment in regard or in the light of my assignment 7 at the exercise of February of '86. 8 Q And that's it? That's the only other part of the 9 plan you've read? 10 A (Keller) Yes. , il Q And neither of you is within the chain of command in
'l 12 this agency for making the determination on whether the 13 planning elements had been met ?. You're not on the RAC and 14 you're not in any of the offices that have program 15 responsibility for that?
A
\-) 16 NR. FLYNN: Objection, irrelevant, for the reasons 17 that I stated a moment ago.
18 MR. DIGNAN: Your Honor, I submit that the witnesses' 19 responsibilities and positions with the agency have been and l 20 will be established and Ms. Weiss is free to argue that. And, b 21 you know, if that's the boat you're floating the case in I'll l 22 tell the client to get ready to get the ticket. 23 MS. NEISS: We do this in little parts. i 24 NR. DIGNAN: I know you do. So do I, so let's go, b 25 let's get out of here. i' Heritage Reporting Corporation (202) 628-4888 l O 1
I KELLER, CUNMING - CROSS 14213 l 1 NS. WEISS: HD answarsd ths qu2stion, ycs, I ballGva. 2 JUDGE SMITH: What's the question? j () 3 MS. NEISS: Could I have it back. 4 JUDGE SMITH: No, just tell him what it is. It takes 5 a long time. 6 NS. NEISS: I mean, I honestly don't remember. But 7 the question was, neither of these gentlemen are in the chain 8 of command within FENA for making a decision on whether 9 planning elements, J-9 and J-10-M, have been met? 10 JUDGE SMITH: All right. Did you answer that as 11 correct? 12 THE WITNESS: (Cumming) I have read volumes 1 and 4 13 and volume 6 is largely ETEs, and I have read all the testimony 14 filed before this Board which I would argue to some extent 15 supplements and updates this. So, if Ms. Wolas wants to rely 16 on the fact I have not read volume 6, and I may have read it in 17 the past, but I don't remember. 18 NS. NEISS: Mr. Cumming -- 19 JUDGE SMITH: Her questior. now is you're not in the 20 decisionmaking chain. 21 B Y MS. NEISS: 22 O Of coures, it's not what you've read. You don't have 23 ~~ you don't make those decisions at FEMA; those are made by l 24 program people, none of whom have been presented here? i 25 A (Cumming) I would argue, and I have read Mr. l Heritage Reporting Corporation ! (202) 628-4888 O i l 1
KELLER, CUNMING - CROSS 14214 1 McLoughlin, P5torson, cnd Krimm's tcatimony that th3y didn't 2 have to review the plan to review the concept. We are saying (h 3 it's adequate in concept. And that's why it's approved. 4 0 No, no, I directed you to a particular finding that 5 planning elements J-9 and J-10~M have been met in your 6 conclusions? t. 7 A (Cumming) Yes, and I will -- 8 NR. FLYNN: I object. And again, the point is, it is 9 not a requirement anywhere that FEMA send the top management or 10 the ultimate decisionmaker to defend the decision. And this-- 11 JUDGE SMITH: Well, that may exactly be true, and 12 we're familiar with that. That does not change the fact that 13 she can identify to what extent they are in the chain of 14 command for making these decisions. And I would imagine that, 15 you know, it's ~~ simply because a question is asked does not 16 mean that that position is the correct one or not the correct , 17 one. It does not carry with it to prove to the Board that 18 their testimony is flawed because General Becton is not here. 19 But we allow the questions anyway because they are 20 relevant and they are appropriate argument for her to make. l l 21 JUDGE HARBOUR: I don't know where the chain of l 22 command starts at the top and I certainly don't know where it 23 stops at the bottom. So I think you have to be more specific 24 as to what you mean by chain of command. 25 MS. WEISS: Well, let's get the rules out. Although Heritage Reporting Corporation (202) 628-4888 O 1
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KELLER, CUNMING - CROSS 14215 1 I'm confid2nt that Mr. Cumming knows thess by hsart. l 2 JUDGE SMITH: Well, you know, I don't understand () 3 where you're going. I heard NW. Cumming testify, and I heard i 4 other testimony about his involvement in the evolution of their 5 position and everything, and I don't know, it seems to me that i 6 he was involved sufficiently in the decisionmaking process, at l 7 least to be able to come here and tell us about it. l 8 MS. NEISS: Well, he gave legal advice, there's no 9 question that he -- 10 JUDGE SMITH: And he was a part of the program 11 development -- l 12 (Simultaneous conversation) 13 MS. WEISS: The fact of the matter is -- 14 THE WITNESS: (Cumming) I'd like to make a couple of 15 comments, if I may. 16 MS. NEISS: -- there's been no witnesses that are 17 competent to defend the agency's decisionmaking on J-9 and 18 J-10-M. 19 MR. FLYNN: Well, who besides Ed Thomas. 20 MR. DIGNAN: Excuse me. Could I draw an 21 analogy ~~ 22 MS. NEISS: Is he the agency's decisionmaker -- 23 JUDGE SMITH: Let Mr. Dignan -- l 24 MR. DIGNAN: Could I make an analogy to the NRC. 25 Now, I've been in that game a while. I admit I'm not familiar Heritage Reporting Corporation (202) 628-4888 () ; I l l
KELLER, CUNNING - CROSS 14216 1 wi th FEMA. I hava navar undsrstood it to bs ths law or Gvsn 2 the suggestion of the law that the EDO, for example, has to () 3 come in and defend every SER of the NRC. Indeed, the 4 regulations say, the EDO will make available such witnesses as 5 he deems necessary to come down and defend the technical 6 conclusions of the Nuclear Regulatory Commission. 7 JUDGE SMITH: You're exactly right, NW. Dignan, but 8 that does not prevent somebody asking questions about it. 9 hs. DIGNAN: I concur. I have not objected to the 10 question. What I don't understand is why Cumming -- excuse me, il gentlemen. Mr. Cumming, Dr. Ke.'ler can't be asked simply, 12 what's your position with the agency? Answer it for the second 13 time, because they've already answered it once or twice. And 14 then that's the end. Let's go from there. 15 And if she wants to argue this means that their 16 testimony le no good, t errific,- I'll take care of that in the 17 brief. 18 But this idea, I respectfully submit, that somehow 19 there's an issue of whether General Becton or Mr. Peterson has 20 to be sitting in that chair for this to be good and admissible 21 testimony to be relied on is crazy. Because on that basis 22 every NBC proceeding in history is crazy, because we just send 23 down a technician to defend it. 24 NR. REIS: Mr. Chairman, let me say this. We've 25 established ~~ I think it's already been established, that this Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUNNING - CROSS 14217 1 tantimony is tho officiel tcstimony of FEMA. It has bo:n 2 established that this is the approved position of the agenqy, , ( 3 qua the agency, at least that's what they submit. 4 Now, the question before the Board is, can these 5 witnesses defend this testimony and is it also their opinion, 6 because obviously, people that the agenqy send should be the 7 ones to defend it. And that's the question that's here. 8 And I look at the two sentences that were said, the 9 agenqy has said the requirements are met, that that was the 10 agengy's judgment and the agenqy said it as a corporate il position. ) 12 The sentence before is the requirement for a range of 13 protective measures has been satisfied even though they haven't 14 Again, that's the corporate position. ' chosen to shelter. t 15 Now we can go to the basis of that and whether it's 16 right or wrong. But I think the very submission of this paper 17 and the fact that we have the counsel of FEMA here submitting 18 it establishes that it is the position of FERR. I 19 JUDGE SMITH: I agree. 20 MR. RFIS: And I don't know where we're going. And 21 therefore I object to the line. If the line wants to go, is 22 this supported, that's fine. 23 NS. NEISS: There's no line; there's one question. I 24 JUDGE SMITH: I beg your pardon? 25 MS. NEISS: There's ao line; there's one question ; Heritage Reporting Corporation l (202) 628-4888 O
KELLER, CUNMING - CROSS 14218 1 pznding. 2 JUDGE SMITH: And could you tell me once more what ( 3 that question is. 4 MS. NEISS: The question is whether either of these 5 gentlemen are within the chain of command in FEMA for making 6 decisions as to whether planning elemen:s, J-9 and J-10-M, have 7 been met with respect to the Seabrook plan. 8 JUDGE SMITH: You could say yes or no. 9 THE WITNESS: (Cumming) I would argue, yes, I am, 10 because to an extent there's a legal analysis that put me in 11 the chain of command upon which the agency relied. 12 I would also state that I read the Peterson, Krimm, 13 McLoughlin pisce, and in fact they were questioned de facto on 14 certain portions that related to this testimony, irrespective 15 of whether or not they stated they had read the specific plan, 16 they certainly defended the conclusion that's stated here. 17 Also, we have a RAC report where other federal 18 agencies said the J-9 and J-10-M were adequate with respect to 19 the beach population. ; 20 MS. NEISS: hW. Cumming, you want to sit in that l 21 chair? Well, do you want to be a witnass or a lawyer here. 22 JUDGE SMITH: You asked for it and you got it. 23 MS. NEISS: No, I didn't ask for that. 24 JUDGE SMITH: Well, you didn't expect it, but that's 25 what you asked for. Heritage Reporting Corporation (202) 628-4888 O l
KELLER, CUNMING - CROSS 14219 1 MS. NEISS: No. It w2s nonresponsivs. 2 B Y NS . NEISS: () 3 Q Let's focus on the last sentence in your conclusions, 4 quote: "There exists a technically appropriate basis for the S choice made by the State of New Hampshire not to shelter the 6 summer beach population except in very limited circumstances," 7 I'm sorry, that's the next to the last, here comes the last: 8 "At the same time whenever this choice is incorporated into the 9 NH RERP implementing detail will be necessary. " 10 And my question is, isn't it true that the New 11 Hampshire RERP already includes a shelter option for the beach 12 population as a whole? 13 A (Cumming) The version I talked about, basically, had 14 rejected sheltering until it was subject to the submissions in 15 February where it was reopened. 16 0 Well, fact of the matter is, the current plan 17 contains circumstances under which ~~ 18 A (Cumming) Yes, three limited options for sheltering. 19 Q Right. And without any implementing detail; correct? 20 A (Cumming) Yes. That's why we put this in here. 21 O Well, why is FEMA requiring -- whoa. You mean that, 22 you're saying that they have to supply implementing detail for 23 the general beach population, sheltering of the general beach 24 population? 25 A (Cumming) Okay. The normal procedure, and this is Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUNMING - CROSS 14220 1 reficctcd purely going bcck to thz fcct as to whar2 tho Zimmar 2 Board which ruled that a formal FEMA finding was not necessary () 3 for a Board to pursue the issue of whether the plan was 4 adequate, causes us to have this operation here r moving in 5 parallel with the normal process. 6 There was a RAC moeting on May 25th. I am not the 7 RAC chairman. There was also a finding that's progressing to 8 whatever its eventual conclusion. But -- and this is my 9 understanding of what's occurred. Everyone on the RAC has 10 consistently stated that with respect to the beach population 11 J-9 and J-10-M is adequate. i 12 O Let's focus on the sentence. You say, when the 13 choice is incorporated into the NH RERPr and you agree with me 14 that there is a sheltering option in the NH RERP. And then the 15 sentence says, "Implementing detail will be necessary. " I ( 16 think you'd also agree with me there's no implementing detail? 17 A (Cumming) It is somewhat unusual, perhaps, but we 18 are saying that the plan is adequate in concept. 19 0 But you expect implementing detail -- let's be very 20 clear about this. I 21 A (Cumming) Before FEMA issues its final finding, yes, 22 it expects implementing detail. 23 Q For the general beach population, the 98 percent? 24 A (Cumming) Yes. 25 MS. NEISS: Bingo. No further questions. heritage Reporting Corporation ' (202) 628-4888 O l I
KELLER, CUNFtING - CROSS 14221 1 JUDGE SMITH: Ms. Sneidar, did you hava qusstions? 2 MS. SNEIDER: Yes,'I do. 3 JUDGE SMITH: How long will you be going? 4 MS. SNEIDER: I expect half an hour.
- 5 JUDGE SMITH
- Okay.
et/62 6 (Continued on next page.) 7 8 , 9 10 11 12 . 13 14 15 16 17 , 18 l 19 20 l .i 21 , .l l 22 23 24 i 25 Heritage Reporting Corporation (202) 628-4888 i O \ I
i CUNMING, KELLER - CROSS 14222 T63 1 CROSS-EXAMINATION : 2 B Y MS. SNEIDER: kW. Keller, the New Hampshire RERP assigns dose I Q_)g 3 Q 4 reduction factor for cloud shine of .9 to the beach area l 5 sheltersi is that correct? l t 6 A (Keller) The houses in the beach area r that's 7 correct, yes. 8 O Okay. And I'd like you to assume that there is an 9 accident at Seabrook station and the plume of radiation travels 10 over the beach area. 11 Now according to the dose reduction factors ascribed 12 in the New Hampshire RERP, a person sitting in one of those ; 13 shelters in the beach area would receive approximately 90 14 percent of the cloud shine dose that he or she would receive if 15 sitting in a car next to that shelter for the same period of i
\ 16 time; is that correct? (
17 hE. REIS: hW. Chairman, again I object to the line 18 referring to specific accidents and specific doses that might I 19 be received. And although it's talked about in terms of 20 percentage r it is going to specific doses. '
+
21 MS, SNEIDER: Your Honor, I think this is an area 22 that's been gone into before. And when FEMA draws a conclusion 23 that it's better to evacuate immediately than to shelter and 24 then evacuate, I think this is very relevant, because it's 25 FEMA's witness that has said that the doses would be less from \ I i Heritage Reporting Corporation t (202) 628-4888 \ () t t
CUNMINGr KELLER - CROSS 14223' 1 an immcdiato ovacuction strategy, cnd this gsts right to tha 2 point. I don't understand how else we can explore that. () 3 JUDGE SMITH: Well, how else can that' premise be 4 tested other than some -- she's not talking about dose 5 consequence. She's talking about dose savings. And how else 6 can you test that premise? 7 I don't know. I'm wondering about it. I hope you 8 can be helpful on it. 9 We've had testimony, you know, that the shelter gives 10 so much reduction and the cars give so much and not so much, il and how can you test that without some reference to dose -- 12 NR. REIS: In that respect, I will withdraw the 13 objection provided that we're going in that direction. 14 MS. SNEIDER: Well, we're going to a comparative 15 between the two strategies. 16 JUDGE SMITH: She's going to almost a -- not a dose 17 conse - you're not going into a dose amount -- 18 NS. SNEIDER: Right. 19 JUDGE SMITH: -- comparison. You're going into r 7 20 based upon the evidentiary record we already have now as to 21 dose reductions available from sheltering, dose savings 22 available from sheltering, a comparison. 23 kW. SNEIDER: Exactly. 24 B Y MS. SNEIDER: . 25 Q Can you answer the question? Heritage Reporting Corporation (202) 628-4888 O
CUNMING, KELLER - CROSS 14224 1 A (Koller) If I r5 cell th9 qu:stion corrsctly, Cnd I 2 believe you said that the individual in this shelter, this t y Q_'y 3 home, would receive 90 percent of the dose, cloud shine dose 4 that he would have received, for example, in a car outside the 5 home. S If that was the question, I would agree, yes. 7 Q Okay. And any benefit that the person might receive , 8 from essentially sheltering in a car would be even less if the 9 windows to the car are open; is that right? 10 A (Keller) Well, you need to be a little more specific 11 in your hypothetical. I mean there are several modes of , l 12
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exposure. t 13 0 I'm talking about cloud shine.
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14 A (Keller) Since the car is assumed to give zero -- a 15 protection factor of 1, it doesn't make any difference if he's , O 16 in the car or standing outside the car. So it doesn't make any j 17 difference if the car windows are open or if the car windows 18 are not open. 19 0 Okay. 20 A (Keller) So in that regard, I disagree with your 21 statement. 22 O Okay, I'll take that up again. 23 I'd like to turn now to inhalation e.yposure, and do 24 you know what the New Hampshire RERP assumes as the air 25 exchange rate for shelters in the beach area? l e Heritage Reporting Corporation (202) 628-4888
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- c. 2; CUHVING, KELLER - CROSS ! I'4225
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1 'A (Kellor) It's eith3r ono svory two*houra, or two
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2 per hour, and my -- it's a one and j( a two, and I can't remember { a (, .
\_) 3 which is it. t 4 Mr. Cumming says Sr'c twsf per hour, and I'll accept 5 that characterization, too. }/ , ;
6 0 Okay. ' i 8 7 A (Keller} > It was one or the other.s ,, 8 Q Okay., Well, I'd 1 ke you to assunc as the New _,,
'ss ; ;
9 Hampshire RERP does provide 'that the shelters,-- of an als i i 10 exchange rate of two exchanges per hour, and ' assume again that \
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11 there is a , release of radiation from Seabrook Station and the d
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12 plume travela through the beach area. s
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13 Isn't it correct'l Ghat a person sitting ins 1ds beach ' O l A
\ f 14 area shelter for a period of trfo hours would receive les's . ; I C( ,
( 15 inhalation doae than if he or' .she were sitting lin -a car. noxt to \ t : O 16 that shelter for the same periNd of time? .
, i i f i 17 A (Keller) I can't answer the question. ,'
e 18 The imp'ortant point is now are the window (opened or l i 19 closed. I mean -- r 20 0 Well, firsc assume that the -- well, okay. 1 - 21 A (Keller) If the windows are closed and the , l 22 ventilation is off, there is p(ot that much difference because I 'i , f > 1 23 don't know the air exchange hpte 0,f the car. 1
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l 24 0 Okay. ! 1 25 A (Keller) But if on the other hand ihe windows are ' i } Heritage Reporting Corporation I J202) 628-4886 O :
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i 1: o CUMMING, KELLER - CROSS 14226 N ,- 1 op:n, than the individual in .he chciter would recsivo icsc 2 inhalation dose than the individual ia 'ahe car. () b 3 Q Okay. And assume it's a hot summer day. Do you y 4 think it would be possible for a p,erson to sit in the beach
>( .
(J .i A crea in their car with the windows closed for two hours and
>l 6 live? - r
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7 NR. FLYNN: ObjectEbn. paqumentative.
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JUDGE SMITH: Let's givh hia the window down. Will s ,k ,
N you accept the window down scenarioF 10 THE WITNESS: (Keller) Sure. 11 MS. SNEIDER: Okay. 12 B Y MS. SNEIDER: 13 Q And with respect to cloud and inhalation doses -- did
'l l 14 15 you already -~ excuse me, I thought you had answered the question.
I /"T k-) 16 i, Assume the windows are down and compare the dose a
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17 person would receive in the shelter to the doses in the car. lb A (Keller) It would be lesn taan the person who was in 19 the car. 20 0. Okay. In fact, the inhalation dose for the person in 21 the car mould be virtually the same as if the person was 22 standing outside,no long as Uhe rindows are open; is that 23 correct?
,\ x '
24 A' (M.1.Ler) That ia porr+ct. N, / ' s i
't 25 Q Andlwith respect to 'clold and inhalation dose, the l
Heritage Reporting Corporation (202) 628-4388 () ,
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l l Jl CUNFfING, KELLER - CROSS 1422's\ u 4 1 tima frama of most concern is the tima pariod during pluma jf s2 passage; is that correct? { ;<( ,3 A (Keller) The time frame that the individual is e p 4 emmersed in the plume or is under the cloud shine; thatjs 5 correct. 6 O Okay, now I'd like to turn to ground shine dose. 7 Your testimony at Page 9 states that, "In severe 8 accident sequences, the ground shine' component is most likely 9 to be th'e major contributor to total dose if no protective 1 10 actions are taken." il Is that right? 12 A (Keller) I think that's correct, yes. l 13 Q But it's true, isn't it, that not all accident 14 sequences would involve a ground shine component? i 15 A (Keller) It is possible that you could have an 16 accident sequence which does not include a ground shine 17 component; that is correct.
;P 1C Q And would it be a reasonable assumptica tyat a wood 19 frameshelterwithoutabasementhasadocumentreducbion l
20 factor for ground shine of approxttately .5 or . 6? 21 A (Keller) Those numbers are commonly usad. That's 22 within the realm of numbers which are quite commonly used. l 23 However, it was the State of New Hampshire that selected the 24 .9. l 25 Wood frame houses, there is generally a number given, Heritage Reporting Corporation , (202) 628-4888 ()- o i s
CUMMING, KELLER - CROSS 14228 1 a ranga givsn also. It's baan ng' expsrlanca that the .9 2 shelter factors for cloud shine would be associatsd with a 3 number more like .7 for ground shine. 4 0 Oksy. 5 A (Keller) I mean these kind of go together. And the 6 .5 is on the better end of the scale for ground shine dose, and 7 the .9 is clearly is on the poorer end of the scale for cloud 8 shine dose. 9 So I would be -- those numbers are possible, but I 10 would think that the ground shine component would be somewhat 11 less effective than the .5 would indicate. But those numbers 12 are published numbers in a range for wood frame houses, yes. 13 Q Assume that in the event of a serious accident that 14 does involve a ground shine component that a person is 15 sheltered in a wood frame shelter in the beach area. (~')
\- 16 Isn't it correct that that person would receive less 17 ground shine dose than he or she would receive if he were l l
18 sitting in a stationary automobile next to that shelter for the ' 19 same period of time? 20 A (Keller) I don't remember the ground shine dose 21 factors for an automobile. There are ground shine doses. I 22 mean, we assume that the shelter factor for cars, automobiles, l 23 from the cloud shine is 1; essentially nc protection. But 24 there is a number which should be ascribed to the ground shine 25 dose component. And to be perfectly frank at this point in Heritage Reporting Corporation (202) 628-4888 O
1 CUMMING, KELLER - CROSS 14229 1 time, I just don't recall that numbsr. I thought I had tho 2 document with me, but I -- pardon me. If you will give me a () 3 second. 4 O Sure. 5 JUDGE SMITH: Is it as much as a house? 6 THE WITNESS: (Keller) Depending on the house. I 7 mean some houses are better than others. 8 Cars on the road. Okay, the house is ~~ lt'c roughly 9 the same order of magnitude. It's not a great deal difference. 10 They are both clearly -- the ranges overlap. 11 MS. SNEIDER: Okay. 12 THE WITNESS: (Keller) And by the way, the document 13 that I looked at is a Sandia report, SAND-77-1725, authored by 14 Aldrich, Ericson and Johnson, and I think this the one that's 15 referenced in NUREG-0654. 16 MS. SNEL >: I believe that document's in evidence, 17 Your Honor. I 18 BY MS. SNEIDER: , 19 Q Now if the car were sitting under the plume and 20 radioactive material was deposited, the radioactive material 21 would also deposit on the cari isn't that true? 22 A (Keller) That's correct. 23 Well, on the assumption that the plume was the type 24 of plume that had material which tends to deposit. We already l 25 established that some plumes do not have a depositing Heritage Reporting Corporation j (202) 628-4888 l () i
CUhNING, KELLER - CROSS 14230 , 1 component, but on the assumption that this accidsnt you'ra ; 2 talking about now has a depositing plume, yes, they would () 3 deposit on Lhe car. 4 0 Okay. And if the windows to the car were open during 5 plume passage, the radioactive material might also deposit on 6 the person sitting in the car; is that correct? 7 A (Keller) That's quite possible. 8 Q And the conclusions in your testimony relative to the 9 sheltering and evacuation doses do not in any way take into I 10 account the doses a person sitting in a car during plume 11 passage might receive from the car or from radioactive material , 12 deposited on their skin; is that right? 13 A (Keller) I can't accept all of it as I heard it. , 14 What is in the testimony is a generic view that basically the 15 ground shine component for most of the core melt sequence '
- '6 accidents is far and away the largest component of the various ;
17 components of dose. 18 And that the avoidance of the ground shine dose, 19 because it is by far the major component, not just a little 20 larger, is the way to most efficiently save dose. And in that ; 21 analysis it is even acceptable to evacuate people through the 22 plume in order to avoid the ground shine dose, i 23 So that you are accepting, if you will, the j 24 possibility that the cloud shine immersion and/or inhalation l 25 dose will be delivered to the individual, but you are avoiding Heritage Reporting Corporation (202) 628-4888 l O V l t
1 CUMMING, KELLER - CROSS 14231 l 1 a largar dosa component from tha ground shina, and thereforo 2 the net overall is a dose savings. And that's what's () 3 premised -- that's the premise of the testimony. 4 Now, have we done any calculations having to do with S times and relative fractions, et cetera? 6 We have not done that. And I am absolutely sure that 7 given enough time I could construct a scenario that had a 8 ground shine component in it, and had an immersion component, 9 and a cloud sine, and an inhalation component, and I could 10 construct a scenario whereby the dose would be less for an 11 evacuation -- I mean, I'm sorry -- shelter first, then 12 evacuation, than the testimony. 13 But for the majority of the cases of severe accident 14 sequences, the indications are that the converse is true. The 15 ground shine dose is going to be the major component if you 16 don't do anything. And therefore in order to get maximum dose 17 sa vings, the best thing to do is evacuate immediately. 18 Q Even if that means people would get ground shine dose 19 from their skin? 20 A (Keller) Even if it means that people would possibly 21 be contaminated during the evacuation process is what you're 22 talking about. And, yes, that's right. 23 O And do you know if any analysis was done specifically 24 of people evacuating with windows open through the plume? l 25 A (Keller) Not specifically, but that is part -- I Heritage Reporting Corporation (202) 628-4888 O
i CUNMING, KELLER - CROSS 14232 1 msan there is an assumption that psople could keep their 2 windows closed for at least portions of the time. And we now l () 3 have to get into a discussion of how long does the plume stay 4 where the people are r or how long do the people stay where the 5 plume is. 6 And we now get into a meteorological discussion which 7 I read the Board's discussion. I didn't think they wanted to 8 hear anymore about that. I believe Judge Smith said something 9 along those lines. And I hesitate to venture into that path. 10 JUDGE SMITH: About meteorology? 11 THE WITNESS: (Keller) Yes. 12 JUDGE SMITH: Well, never do we wish to, but we get 13 paid to listen to things such as that. 14 THE WITNESS: (Keller) Well i it seemed to me I heard 15 a discussion where you said you didn't want to hear ani cre of 16 that, so I hesitate to go into that. 17 JUDGE SMITH: But bef're you go on, the answer to 18 your last question was that he can construct scenarios in which 19 shelter first would be the greatest dose reduction. 20 MS. SNEIDER: Right. 21 JUDGE SMITH: And now what are you testing him on? I 22 But he's saying for the majority of the accidents, that would 23 not be the case. Now what is it that you are testing him on l 24 now? 25 MS. SNEIDER: Well, when he says a majority of the Heritage Reporting Corporation (202) 628-4888 () I l
CUNMING, KELLER - CROSS 14233 1 accidsnts, that would not bo the casa. I wanted ~~ 2 JUDGE SMITH: All right, is it your premise that that () 3 is incorrect? I mean, is that 'what - you're testing. him on ? , 4 MS. SNEIDER: For the majority of the severe 5 accidents, yes, that's my -- that it is incorrect. 6 JUDGE SMITH: All right. l 7 THE WITNESS: (Keller) I'm not sure there's a I 8 . question pending. 9 JUDGE SMITH: I just -- : 10 MS. SNEIDER: No, I was responding to the Judge. 11 THE WITNESS: (Keller) Oh, 12 B Y MS. SNEIDER: 13 Q I believe you stated in part in response to this l 14 question that your evaluation was a generic evaluation, and if ; 15 not, you've stated that before. And it's true then you did 16 not consider, in reaching your conclusion, the fact that cars 17 could be in the beach area immobile for many hours during plume > 18 travel; is that correct? 19 A (Keller) That is correct. This then leads 20 immediately to the next question. How long is the car in the l 21 plume, or conversely, how long does the plume stay where the l 22 car is. And that gets us right into the meteorological l 23 discussion. ! 24 Q Which you're not addressing, I take it. 25 A (Keller) I'm trying to answer your questions as Heritage Reporting Corporation (202) 628-4888 i O 1 l
1 l CUMMING, KELLER - CROSS 14234 1 truthfully as I can, 2 MR. FLYNN: On instructions from counsel, he's not (m,) 3 addressing that. 4 NR. DIGNAN: Why not? 5 MR. FLYNN: Why not? 6 Because it seems to me that opens the door for the 7 reintroduction of the Sholly-Beyea testimony, that's why. 8 NR. DIGNAN: That's a good reason. 9 I missed the door, I guess. 10 (Laughter. ) i 1 11 N3. SNEIDER: Actually I can't pass this up. I never 12 intended it, but I have one meteorology question. 13 (La ughter. ) 14 hE. FLYNN: And I'll have an objection, but go ahead. l l 15 MS. SNEIDER: You can object. I just have to ask. \ 16 B Y MS . SNEIDER: 17 0 would you agree that the plume could stay in the 18 beach area for -- let's see -- considerable length of time 19 assuming the phenomena of sea breezes meeting onshore winds 20 which tend to circulate the plume over the beach area, and 21 recirculate it ? 22 hR. FLYNN: Objection. Your Honor, this is precisely 23 the subject of the Sholly-Beyea testimony which has been 24 excluded at least twice that I recall. 25 MS. SNEIDER: Sholly -- I think we've gone through Heritage Reporting Corporation (202) 628-1888 O
, . _ _ _ . - . - - - ... -. . .. ~. . . _ . . __. CUNNING,'KELLER ~. CROSS 14235 1 this before. Sholly-Baysa didn't mention saa bresza and wind, I 2 but the subject of meteorology has come up in the RAC comments, () 3 in Bores 2. I think it's gone into -- it's been gone'into this 4 before. I never intended to get into meteorology except thac , 5 the witness did leave an inference that I felt necessary to 6 rebut, at least in part. E63 7 (Continued on next page.) 8 9 10 11 12 > 13 14 15 16 17 18 19 , a 20 21 l I 22 ! l 23 } 24 25 Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUNMING - CROSS 14236 l 1 . t/64 1 MR. FLYNN: Your Honor, she's bsttor off if hs 2 doesn't answer it, because the way it's left now the common () 3 sense answer to the question in, yes, the plume could be on the 4 beach for an indefinite period of time. 5 NR. DIGNAN: That's the common sense answer, I don't 6 believe that for a minute. So let's let him answer.. 7 JUDGE SMITH: Do you want both? 8 NE. DIGNAN: A flutter of hands will do. 9 (Laughter) 10 THE WITNESS: (Keller) But we have to be leaving. 11 NE. FLYNN: Do you understand my concern about 12 introducing site-specific ~~ 13 JUDGE SMITH: Well, we have had testimony about the 14 breezes in and out. But the purpose of her's now is to 15 postulate a situation where there is a very, very large amount 16 of dcse on the beach for an extended period of time. And 17 that's your concern is that, here we're getting into specific l 18 dose consequence scenarios. 19 NR. FLYNN: If that's the only question, could -- is 20 it possible that "X," whatever it is. l 21 NR. DIGNAN: Oh, no. Is it possible. Your Honor, i I 22 they tell me that technically competent people can give me the 23 odds that two Boeing 747s, full of fuel, will crash in mid air 24 over and fall into Patriot Stadium down in Foxboro on the day . 1 25 of the Superbowl, and it's long odds given the Patriot's l Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUMMING - CROSS 14237 1 propansity for not gstting into the Superbowl. But thGra are 2 some odds. () 3 Now, on that basis I suppose one could argue, we 4 'should pass along to the Commonwealth we don't have football 5 stadiums. I mean, is this what we're doing. We're' pushing -- 6 I have admitted from the start of this case that you can what 7 if anything technologically to death including nuclear 8 powerplants. And that's what I think we're doing here. 9 JUDGE SMITH: I don't know what's she's doing. 10 MS. SNEIDER: If the witness won't -- if we could 1 11 agree to strike the reference to meteorology, I will be happy l l 12 to withdraw the question. l l 13 JUDGE SMITH: There's nothing l l 14 NR. FLYNN: Good, I accept. 15 JUDGE SMITH: Okay. That's a good arrangement. (' 16 MS. SNEIDER: Okay, j 17 B Y MS . SNEIDER: 18 Q Mr. Keller, your testimony essentially concludes that 19 sheltering followed by evacuation is a poor option because the 20 ground shine dose a person could receive while evacuating in 21 addition to the dose he or she might receive sheltering -- I 22 missed something hare -- because of the cumulative doses from 23 those two factors; is that correct? 24 A (Keller) Could you cite where you're reading from, 25 please? Heritage Reporting Corporation (202) 628-4888 (:) l 1
KELLER, CUMMING - CROSS 14238 1 Q I was trying to summarize. I could giva you a cito. 2 But it's my understanding it's because of the accumulation of () 3 the dose from sheltering and then from ~~ 4 A (Keller) It's the total dose that we're talking 5 about, not a dose from any one component of the mixture of dose 6 components. 7 Q But it's the ground shine component you're most 9 concerned with, the ground shine component during evacuation; 9 is that right? ! 10 A (Keller) Well, there is ground shine component while 11 the people would be sheltered. There is ground shine component l 12 after the plume has gone away, the emergency in the plant has i 13 subsided, the plant is -- maybe not -- it's stable, it's not 14 going to continue to have offsite releasca consequences. You 15 have to get the people out of these shelters. Ana ground is ( 16 contaminated. You have to take these people across this l 17 contaminated ground. And that is going -- they're going to 18 incur additional dose during this transit. l 19 And the argument is that that summation of what they 20 got while they were in the shelters, either while ube plume 21 passed or from the ground shine after it passed, that total is ; 22 much -- is likely to bc much greater than if they had moved 23 immediately upon notification. t 24 Q But your testimony did not consider in any way, did r 25 it, the possibility that the beach -- that if the beach Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUNMING - CROSS 14239 1 population wara instructed to shaltar during plums passega, 2 that they could thereafter be instructed to evacuate along () 3 routes that would avoid radioactive hot spots? 4 A (Keller) Would you define hot spots for me. I don't 5 know what you mean by hot spots. 6 Q Placas of ground shine contamination, and especially, 7 large amounts of ground shine contamination? 8 A (Keller) But we've already established that if a ~~ 9 if the accident is of a type which has depositing radioactive 10 material in it, that the cars and the surfaces would be 11 contaminated and therefore would have a ground shine component. 12 Q They would have that whether the people are sheltered 13 or whether the people are evacuated? 14 A (Keller) That's correct . I'm having trouble -- I 15 would like to answer your question, but I don't know what you 16 mean by hot spots. 17 0 Well, let's use this hypothetical. Assume people are 18 instructed to shelter in the beach area and in'this case the 19 plume does not pass over the beach, instead it travels in a 20 northwesterly direction from the plant and intersects a major 21 evacuation route; couldn't -- wouldn't it be better if the 22 beach population was instructed to shelter pending the plume 23 passage, and then instructed to evacuate southward so as to 24 avoid any ground shine component? 25 A (Keller) That is a possibility. Heritage Reporting Corporation (202) 628-4888
KELLER, CVMMING - CROSS 14240 1 Q And this tims ovan -- I'd liko to ask you, assuming 2 that the plume did pass through the beach area while people are (~) 3 sheltered, couldn't -- but still the plume is traveling, I l 4 guess, in a northeasterly direction; couldn't the population 5 thereafter be instructed to evacuate southward so as to avoid I 6 any further ground shine contamination? - 7 A (Keller) It is my understanding that ' he -- based on 6 reading the transcripts of what has gone on here, not based on 9 review of the plan ~~ that the State of New Hampshire has the 10 capability to modify EBS messages to fit the needs at the time. 11 Nhere I'm having a problem, and to your hypothetical l 12 the answer is, yes. My problem is that, in the event of a , 13 severe accident sequence, the uncertainty of what is going to i 14 occur, prior to it occurring, is so great that the planning 15 basis, notwithstanding the fact that you may plan to do j ( 16 something and any given circumstance because of other outside 17 ! influences, you may not do what you planned to do. 18 But because of the uncertainties associated with, i 19 which way is the wind going to be blowing when the release 20 starts? Will I have a sea breeze effect ? Will I have 21 recirculation? How long will the plume last ? I mean, how long 22 will the duration of release be? When will it start ? 23 All of those uncertainties, which are very larger 24 much larger than the protection that you would get from l 25 sheltering, the' 10 percent from the cloud shine or the 50 l Heritage Reporting Corporation (202) 628-4888 O v
KELLER, CUNMING - CROSS 14241 1 parcant from ground shina. 2 All of those uncertainties make it prudent to make () 3 the decision for the areas close to the plant two, perhaps 4 three miles in that range, that kind of distance, basically 5 automatically, if you get into a core melt sequence, the best 6 thing to do is to evacuate those people immediately without 7 regard to the ETE. 8 It may turn out that the accident didn't progress 9 that far or it may turn out that there was a minor release of 10 activity at which point you would say, I wish I had sheltered 11 those people, because that would have been enough. 12 But because of the uncertainty, and no way to 13 reasonably project what is likely to occur in the future. And 14 because of the fact that we now recognize or most people 15 recognize that in tho end of the spectrum there are some 16 accidents, which if they occur, could result in early health i 17 effects. And that primarily comes from the ground shine l 18 component. 19 That you're better off to do the best that you can to 20 reduce that ground shine component. And as I stated earlier, 21 15 minutes ago, I can generate a scenario, probably more than 22 one -- l 23 Q Well, we've just generated several, haven't we? 24 A (Keller) That's right. I mean ~~ \ l l 25 MR. FLYNN: May the witness be permitted to answer J Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUMMING - CROSS 14242 1 ths quostion. 2 THE WITNESS: (Keller) There are scenarios which can () 3 be synthesized, right, which would indicate that, yes, this 4 other might be a better choice. 5 The problem is that, this is all secondguessing, 6 here's a hypothetical. Under this hypothetical, would it not 7 be better to do something else; and the answer is, yes, it 8 would be better to do something else. 9 In a real event, these are very complex machines run 10 by a lot of people. If you ever get into a core melt sequence 11 many, many things have gone wrong. Some of those things can be 12 mechanical. There could be perhaps human error. But lots of 13 things have had to have break, go wrong, however you want to 14 use it, in order to get to that point. 15 You have very little confidence that you can predict ("%
\ !] 16 with any reliability what the next step is going to be. So the i
17 prudent thing to do is, because of the fact that is it does go i 18 as badly as it can go, basically, is to move the people in a 19 360-degree arc, a radius, within two or two and a half, three 20 miles, and that's going to be determined more by geopolitical 21 boundaries or areas that can be recognized by the people you're 22 trying to move rather than a fixed mileage. The best thing to 23 do is to move those people. And you either move them either l 24 prior to the start of the release or immediately after the 25 release. And that's the thrust of the testimony, and that's Heritage Reporting Corporation (202) 628-4888 O u
KELLER, CUMMING - CROSS 14243 1 why. 2 We never said and never -- I never said, that there () 3 are not some accidents which it might not be better after the 4 fa ct, if you knew for sure what was going to happen in the 5 accident to say, shelter first, and leave later. 6 B Y MS . SNSIDER: 7 Q Well, let me ask you this, if you can't move the 8 people prior to the start of the release because there isn't 9 enough warning, might you then be better because you don't. know 10 where the plume is going to travel to put them in shelters, and 11 wait and then evacuate them in order to avoid this ground shine 12 component to the greatest extent possible? 13 A (Kslier) If the State of New Hampshire had come in 14 with a recommendation or an assertion, all right, because we 15 didn't verify any of this, that they had -- that the shelters, 16 averago shelter in the vicinity we're talking about, had a 17 shelter factor of .5 or .4, all right. My own personal opinion 18 is, you might have looked at it a little harder. 19 The State came in that said, the average shelter. 20 factor in this -- of the buildings out here, is about .9 -- a 21 10 percent reduction. That's not enough -- I mean, when you 22 have uncertainties in source terms and you have uncertainties 23 in weather conditionsi you have uncertainties in the nuclide 24 mix that's likely to be there, this 10 percent reduction is 25 so -- is down in the dirt in the error band, it 's trivial . Heritage Reporting Corporation (202) 628-4888 O L .
l KELLER, CUNMING - CROSS 14244 1 And it basically is, wo don't hava much in the way 1 ( 2 of shelter. And particularly in that case, although this is a () 3 generic approach, not just for Shor- -- Seabrook, sorry, not 4 just for Seabrook. If you get into core melt sequences, the 5 most appropriate thing to do is to evacuate in a two mile 6 circular, roughly two mile circular, period. And you don't do 7 a calculation. You do not take out a long sheet of paper and 8 fill in a bunch of numbers. 9 0 1 understand. 10 A (Keller) Because I submit that most of the numbers , 1 11 that you have to put on that paper you will not know with any 12 degree of reliability. 13 JUDGE SMITH: How much more do you have to go? 14 MS. SNEIDER: Four questions. I think I can get 15 quick responses, I'm hoping. (h 16 THE WITNESS: (Keller) Go for short answers. 17 JUDGE SMITH: Do you notice we're packing our ba,'s. 18 here. 19 (Laughter) 20 MS. SNEIDER: I'm packing, too. 21 THE WITNESS: (Keller) That's a signal, , 22 B Y NS . SNEIDER: 23 0 You agree, don't you, that for a major severe release 24 -- strike that. You agree, wouldn't you, that a major severe 25 release would be very intense initially with the major portion Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUMMING - CROSS 14245 1 of the radioactiva material reloasad one half hour to two hours 2 after the start of the release? t () 3 A (Keller) Disagree. We went over that wi th Ms . 4 Weiss, and I will again read page 17 of 0654, if you'd like, 5 but our guidance, which is what we use to evaluate plans and 6 adequacy says, "Time at which major release may occur, .5 hours 7 to one day. t/65 8 0 I believe Ms. Weiss was talking about warning times 9 from the onset of accident conditions to a release? 10 A (Keller) No. She had the time at which a major 11 release may occur, and this is on page 17 of 0654 in table 2. 12 O I'm talking about the time in which the major portion 13 of the radioactive material would be released? 14 A (Keller) Let me quote for you again and I'll try it 15 a little slower. This is the third entry in the table on table b 16 2: "Time at which major portion of release may occur, .5 hours 17 to one day after start of release." And therefore I disagree, 18 strongly, with the two hour end of your window. I'll buy on 19 the lower end, but many of the accidents the major portion of 20 release is one day. 21 Q We're talking about severe accidents? 22 A (Keller) This is -- 23 Q Okay. 24 A (Keller) ~~ the guidance. 25 Q Do you recall agreeing with that statement in your Heritage Reporting Corporation (202) 628-4888 O 1
KELLER, CUNMING - CROSS 14246 1 dsposition ? 2 A (Keller) I think, and I may be wrong, if I did agreo () 3 with it I was wrong. Okay. I think what I was agreeing with, 4 my recollection is that, in order to have serious health -- 5 early health effects that the release had to start, had to be a 6 -- had to start fairly quickly. And that's what I think I 7 agreed to. 8 But the guidance that we have, standard guldance as 9 has been used, says one day. And if I said that in the 10 deposition I was wrong and I apologize. 11 O You have no evidence, do you, that in the event of a 12 fast-breaking serious accident at Seabrook that the majority of 13 beachgoers would not be immobile in cars in the beach area 14 during the entire duration of the plume passage? 15 A (Keller) I'm sorry, there were at least four 16 negatives in therei I think. Could you -- I -- 17 Q I believe it 's two . 18 A (Keller) Only two, okay. But it sounded like more 19 than that. I have no evidence -- please try again, I'm sorry. 20 0 I asked if you had -- 21 A (Keller) Any evidence. 22 Q I scid, you have no evidence, do you, that in the 23 event of a fast-breaking serious accident at Seabrook that the 24 majority of beachgoers would not be immobile in cars in the 25 beach area durin; the entire duration of tha plume passage? Heritage Reporting Corporation (202) 628-4888 O
KELLER, CUNMING - CROSS 14247 1 MR. DIGNAN: I objsct. And I object bscauso what if 2 the accident, for example, the wind was all blowing away from 0 3 the beach, bingo, the plume went the other way. This is the 4 problem, Your Honor. 5 JUDGE SMITH: It still stands there. They'ss .2ltting 6 in their car but the plume ~~ 7 MS. SNEIDER: Well, then the plume passage -- 8 JUDGE SMITH: -- is going the other way. 9 MR. DIGNAN: Yes. 10 JUDGE SMITH: Well ~~ 11 MR. DIGNAN: So they wouldn't be on the beach through 12 the entire plume passage. 13 JUDGE SMITH: Well, they will be on the beach -- 14 MR. DIGNAN: Because they wouldn't know. 15 JUDGE SMITH: -- during the entire plume passage, but 16 they're not in the plume passage. 17 MR. DIGNAN: There's no plume passing the beach, 18 that's my point. 19 JUDGE SMITH: She didn't ask that. 20 MR. FLYNN: I also object -- 21 MR, DIGNAN: This is the problem with the no 22 parameter -- 23 JUDGE SMITH: I know. 24 MR. DIGNAN: ~~ hypothetical stuff. 25 MS. SNEIDER: I just -- Heritage Reporting Corporation (202) 628-4888 O V i
KELLER, CUMMING - CROSS .4248 1 MR. DIGNAN: And you know, wD just got a real ; 2 education when the witness pointed out that all of these . () 3 questions are assuming, you know all these things in advance 4 and you don't. I really think --
-5 JUDGE SMITH: Well, he made that clear. But she's 6 making her case.
7 hE. FLYNN: I have a different objection. 8 JUDGE SMITH: But there's infirmities with the 9 question, I agree with you. 10 NR. DIGNAN: I indicated the time, she says it's the , l 11 next to the last question, the witness looks happy, I subside. t 12 JUDGE SMITH: The answer to the question will be as . 13 good as the question. 14 (Laughter) , 15 NE. DIGNAN: Hopefully it will be better than the C 16 question. 17 MR. FLYNN: I'd just like to point out that this 18 witness has not been offered as an expert in either human 19 behavior or traffic management. I 20 NB. SNEIDER: This question does not go to human 21 behavior or I fall to see it. 22 JUDGE SMITH: Do you understand the question? 23 THE WITNESS: (Keller) No. You know, I -- I'm ; 24 sorry, I will try very hard. 25 NR. FLYNN: The question -- she's basically asking Heritage Reporting Corporation (202) 628-4888 (2) !
KELLER, CUNMING - CROSS 14249 1 you if you agros that it's possible that psople may ba 2 immobile, in cars during the entire time of a plume passage? 3 THE WITNESS: (Keller) There are some accident 4 sequences, as I understand them, and as I understand what I 5 have read in the transcript about the evacuation time estimate 6 for the last car out of the beach areas. That, yes, there are 7 some sequences where the last car out will not be out prior to 8 the end of the duration of the release. 9 On the other hand, there are accident sequences where 10 they will all be out before the end of the duration of the il release, as I understand the evacuation time estimates over 12 approximately s1x and a half hours for the 1ast car out. 13 MS. SNEIDER: Okay. That was not responsive to the 14 question. 15 THE WITNESS: (Keller) Sorry. 16 B Y MS . SNEIDER: 17 Q The question went -- 18 JUDGE SMITH: List all of that ~~ list all of the 19 conditions of the question instead of this, you have no 20 evidence that. Just assume this, assume that, assume this. 21 MS. SNEIDER: Assume a fast-breaking serious accident 22 at Seabrook, I'm asking him if he has any evidence that the 23 majority of the beachgoers would not be immobile in cars, in 24 the beach area during the entire duration of the plume passage? 25 JUDGE SMITH: Do you have any evidence? Heritage Reporting Corporation (202) 628-4388 O
i l KELLER, CUNMING - CROSS 14250 1 THE WITNESS: (Kollor) I don't hava any Ovid 3nca, 2 the majority will or won't. () 3 JUDGE SMITH: Okay, so he answered the question. 4 MS. SNEIDER: Okay. 5 BY MS, SNEIDER: 6 0 Is it your conclusion that the immediate evacuation 7 strategy is the preferred protective action for the beach 8 population dependent in large part on the analysis of NUREG-9 10627 10 hE. DIGNAN: That's a cousin to 1210 or something, 11 we're going to be here for the rest of the night. 12 THE NITNESS: (Keller) Clearly, NUREG-1062 tabulates 13 this kind of analysis. But the analysis is not unique. So in 14 that regard, yes, it's similar to things in 1062, but it's not 15 unigne to what's in 1062. But that's, to my way of thinking or 16 to my knowledge, the most concise place where all this is put 17 down. 18 B Y MS. SNEIDER: 19 Q And NUREG-1062 is essentially a generic dose 20 consequence analysis; is that right? 21 A (Keller) That's my understanding, yes. 22 MS. SNEIDER: Okay. I'm finished. 23 JUDGE SMITH: Any further questions by Intervenors? 24 (No response) 25 Heritage Reporting Corporation (202) 628-4888
KELLER, CUNNING CROSS 14251 1 (Massachusotts Attorney Gsnoral 2 cross-examination plan for 3 Joseph Keller follows:) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 , Heritage Reporting Corporation (202) 628-4888 O I
MASSACHUSETTS ATTORNEY GENERAL CROSS-EXAMINATION PLAN FOR JOSEPH KELLER O Ctoss-examinat, ion on conclusion in testimony that, "In those cases (of sevete accident dequences), <f the dose reduction sttategy .is sheltethig fitst fotton'ed by an evacuation af tet plume passage, the total dose avuld not be as 9 teat as that for the' immdlate evacuation 5ttategy," by: (a) Compa, ting etoudshotc, hthalation, and gtoundshine doses that a petson avuld receive in a shcLter in the beach atca to the doses helshe avuld reccive am t a cat next to that sheltet duting plume pts sag e. {b) Agreement that a benefit of shcLtering LS that pot.utatior can be dLtected to evacuate af tetattds in a altection that avald avoid radioactive hot spots. O O l
.pc*h CUNMING, KELLER - CROSS 14252 i
T66 1 JUDGE SMITH: Mr.' Flynn .
.c Q'\
^ I ;s, 2 MR . , FL YNN: Yenc I --
( 3 JUDGE SMITH: A left you to the very end. Let's see 4 if anybody else has any questions. ( ;q i ' & 'I, 5 kW. liUNTINGTON: l1 ' J No questions, Your(Ngnor,
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6 JUDGil SMITH: None. ( 7 All right, hW. Flynn. 8 kW. Reis, did you have some? q 9 hE. REIS: Yes, I do. One for Mr. Cumming. (", 10 l CROSS-EXAMINATION [. \ 11 BY HR. RSIS:
}
12 Q Un the last sentence in your conblusion you testified ( 13 that you were talking about implementing detail for general t 14 beach populations. l[
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15 How does that contrast with the need for, and'is ' if there a need for implementing detail for portions of the beach 17 populations ? i 18 A (Cumming) Based on my review of the transcripts, 19 there is implementing detail now for tranhit-dspendent 8 20 transients, to some degree. ll t' \\ 21 If the plan -- if my understanding of the transcript 22 is correct, and the -plan calls for sheltering the 98, the so-i + 23 called 98 percent, that would be a differentz fabior. 24 I think what's very important for everyone in this
/, t 25 room to understand is that Mr. Keller's testimon3 rapresents
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i, Her:) tage Reporting Corporation (202) 628-4888 ()
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3: , CUMdING,tKELLER REDIRECT 14253
,,} s 1 th0 fact that FEMA bellovas, and it' aur position in this ,, 2 testimony that sheltering is an excremely, extremely 1imited >y \ 3 option.
4 And for decisionmakers to be able to use that option, j' 4 they've got to know exactly what they're doing, or people could t 6 be hurt, particularly in the two to three-mile inner ring. And l 7 the problem ~~ and one' of the problems we've had all along is 8 that there have been people, other people in FEMA who have felt t, 9 that sheltering was somehow a much greater option than FEMA now 10 believes it really it, and that is the import of our testimony. 11 MR. REIS: Thank you. 12 JUDGE SMITH: Mr. Flynn? -
~
13 , MR. FLYNN: Yee. 14 REDIRECT EXAMINATION 15 B Y MR . FLYNN: 16 Q Mr. Cumming, in that precise regard, you testifled in 17 response to a question from Ms. Weiss that yod -- that you 18 would expect to see implementing detail for the 98 percent of 19 the population for whom sheltering is an option under limited
, 20 circumstances.
p 21 [ My question is, does the absence of that implementing
'22 detail in the present plan and in the February submission from 23 the State of New Hampshire mean that the plan le inadequate s s 24 + with respect to J-9 and J-10-M with regard to the beach 25 population?
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... CUNMING, KELLER - REDIRECT ,. 14254
'l A (Cumming) In my judgmtnt, tha plan, through ths 2 February transmissions,-called for originally ad hoc ~~
() 3 so-called ad hoc or sheltering in place for the 98 percent. ; 4 In my judgment, that was adequate. ; 5 Q Thank you. ., i 6 kW. Keller, you were asked a fairly long series of 7 questions about the different components of a release and ; 8 focusing principally on cloud shine and ground shine. 9 My question is, in general, what is the difference in j 10 duration of the cloud shine component vic-a-vis the ground ' 11 shine component? 12 A (Keller) Ms. Sneider < 'ked a question along those l t 13 lines. ! 14 The cloud shine component will be present only when f 15 the receptor is in the vicinity of the passing plume. Once the ;
} 16 plume has either blown on through the area or the wind has '
17 shifted away to the other direction, that individual -- an l 18 individual at a given point will not be impacted by the cloud 19 shine dose. , i 20 The ground shine dose, on the other hand, is i 21 controlled once it is deposited on the ground only by the t i 22 rad'cactive half-life of the nuclides in the mixture which is , i 23 deposited, and the amount of timo that the individual stays 24 there. 25 Q Well, for how long a time would the ground shina be a i l l heritage Reporting Corporation l (202) 628-4888 () !
! l
i 4
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CUNMING, KELLER - REDIRECT 14255 1 mStter of concsrn ? 2 A (Keller) It depends strictly on the amount of -- the 'l () 3 nature of the radioactive material which is released. l 4 However, in a severe core melt sequence accident at S the heavy end of the spectrum, if you will, there is, according 6 t o ' WASH-14 0 0, the potential to release 30 to 40 percent of the 7 cesium dose, of cesium which is present in the core. l 8 Cesium has a 30-year half-life. So that this ground _ 9 shine component would last a long time. , r 10 Q You answered in response to a question put to you by [ 11 Ms. Sneider that there is a possibility of a release that had 12 no ground shine component. i 13 Given that, does that change your conclusion about i 14 the preferability of evacuation as a protective action? l
+
15 A (Keller) It would not, for the reason that I went i ( 16 through in the fairly long answer that I gave, because I don't l 17 know ahead of time that the accident is going to stop with a l 18 noble gas release only. And if I knew that, and absolutely was 19 sure of that, number one, it probably wouldn't be a core melt 20 sequence and we would not be at general emergency, because if 21 you read the definition of general emergency in 0654, it says 22 either imminent or actual core damage. 23 So if I knew all of those things ahead of times, then l i 24 I might have a different answer. But the situation is you just l 25 don't know what's going to happen. And because of the fact l Heritage Reporting Corporation : (202) 628-4888 () 1 1 l p%
.CUNMING, KELLER - REDIRECT 14256 1 that you can hava in coro malt scquencca immcdiato hsalth 2 effects, it's prudent to take the protective action which gives
(_s) 3 you the maximum protection against the biggest problem,'and 4 that's immediate evacuation. l 5 NR. FLYNN; Thank you. I have no other questions. 6 JUDGE SMITH: Anything further? 7 18. OLESKEY: Yes. Not for the panel. 8 JUDGB SMITH: Oh, okay. 9 You may step down. Thank you r gentlemen. ; i 10 (The witnesses were theceupon excussd.) ; i 11 JUDGE SMITH: Mt . Oleskey. 12 NR. OLESKEY: Yes. You had asked Mr. Dignan and I to 13 collaborate and put together a shorter version of Mass. AG , i 14 Exhibit 48, which we have now done. I'd like to offer the i 15 shorter version, and give the reporter the three copies, and () 16 have this version accepted in place of the former exhibit. 17 JUDGE SMITH: All right. No objections. The short 13 version of Mass. AG 48 is received. 19 (The document referred to, 20 having been previously marked 21 for identification as 22 Massachusetts Attorney General's 23 Exhibit No. 48 was received 24 in evidence. ) 25 JUDCE SMITH: Anything further? Heritage Reporting Corporation (20.? ' 629 4888 O
14257 1 .MS. WEISS: Mr. Chairman, I htd a cross-cxamination 2 plan which I neglected to give you. I could supply it now to 3 the reporter, or we could -- 4 MR. DIGNAN: No, you don't have to. You can -- l l 5 MS. WEISS: -- heave it in the can; whatever your 6 wish is. E 7 JUDGE SMITH: If we didn't get it, you don't have to I i 8 provide it. 9 MS. WEISS: Okay. i 10 MR. REIS: Mr. Chairman, I'd like to bring up one i 11 other matter. ; 12 As you know, Mr. Turk has some unfortunate situations ; 13 at home. I will not be in the office next week, and I am not l 14 sure if he would. ; 15 If 1t would not impact upon your preparing of l 16 findings, I would like another week to submit the Staff's : 17 findings. If it would, we will do our best, but I don't know 18 whether he can. 19 JUDGE SMITH: He's now required to have them in by 20 Friday. i 21 MR. REIS: Next Friday, that's right. And I would l 22 like another week until, I guess, July let. 23 JUDGE SMITH: Gzanted. 24 MR. REIS: Thank you. 25 JUDGE SMITH: Oh, the record will be closing, and we Heritage Reporting Co:poration (202) 628-4888 i 1
14258 1 should sat a schcdule for a. other path 3 tic schadulo, a 2 laughable schedule for proposed findings. () 3 And what do you propose, Mr. Dignan ? 4 NE. DIGNAN: N' o ll, Your Honor, am I correct the i 5 regulation normally says it's 40-50-60, if I'm correct? 6 JUDGE SMITH: I would like this time to be quite -- ; 7 MR. DIGNAN: I want to get the regulation, because I i 8 want to make a plan. 9 JUDGE SMITF.: Okay. 10 NR. DIGNAN: May I have just a moment, please? 11 JUDGE SMITH: Certainly. ; 12 MR. DIGNAN: I know you're trying ~- 13 JUDGE SMITH: No, I'm not trying to hurry. I want to 14 make an observation on the findings. l 15 hE. DIGNAN: .754. The 30-40-50, and then five days ( 16 for reply from the Applicant is set in the regulations unless 17 the Board otherwise orders. 18 I don't want to shorten anybody's time to-have a run j 19 at mine, but I'm willing to take a severe shortening of my own. 20 I would be prepared, and suggest that I be required to file my 21 findings by July 1st, and then I don't want to ruin anybody's l l 22 July 4th weekend, sa run it after the 4th. And then the other j 23 parties would be 10 days after that, and the Staff 10 days 24 after that. l 25 JUDGE SMITH Did you shorten theirs? ? Heritage Reporting Corporation (202) 628-4888 l () , 6 s f
^14259 1 NR. OLESKEY: I thought ha said h9 WDen't going to 2 shorten ours.
() 3 NR. DIGNAN: I'm not going to shorten theirs in terms 4 of the time differential between when I file and they file. 5 JUDGE SMITH: In the differential. 6 NR. DIGNAN: Yes. In other words, it's always seeme. 7 to me that the theory -- let me, and then I can get blown out 8 of the water, whatever you want. 9 The regulation, to me, has always meant the reason 10 the Applicant gets that original 30 days is because the 11 Applicant must -- or the party with the burden of proof, as 12 they say, must come in with findings on every aspect. Those 13 become the target as Your Honor has indicated. 14 For instance, when it's major case where you're 15 filing everything, you've done all the procedural background 16 and so forth, and the theory was that that party needs 30 days 17 to get a pack, a big package together. 18 And the important thing for the other partier is to 19 have at least 10 days to take a run at that. And it's always 20 been mi view at least that if I would take a shGrtening of t 21 time, then we can shorten the whole process. 22 There's nothing magic to giving the Intervenors 40 l 23 days. It seems to me if I come in 10, they should be able to \ 1 24 come to 20, or if you want to argue with me, 25. j 25 JUDGE SMITH: That would be fine in a typical case l I Heritage Reporting Corporaticn (202) 628-4288 l () 1
14260 1 where they cra just attacking your casc in chief, but thsy hava 2 their very. own very large case:in chief. And so the -- i (j 3 NR, DIGNAN: All right, then -- 4 JUDGE SMITH: ~~ 40 days for them is a -- i 5 hR. DIGNAN: Well, wait a minute, Your Honor. I i 6 The other point I want 'to make to you is all we're 7 talking about is a very -- a -- well, I don't mean this i
^
8 -pejoratively -- a small part of this case. There's 10 major 9 areas of the case on which proposed findings are filed. I : 10 don't see why we need to go 30-40-50 on this one aspect of the E66 11 case. ; T67 12 NR. OLESKEY: We have a ton of work, all the 13 Intervenors. We don't have this on computer in a form that we , i 14 can spit it out as I think the Applicants do. It's going to be i , 15 the summertime and our situation breaks down. The } 16 secretaries -- Ns . Keough is out for eight weeks now, so her { 17 work is going to have to be assumed by somebody else. We would 18 like the time the regulations give us. , i 19 JUDGE SMTTH: Well, this case -- 20 NR. DIGNAN: The Attorney General's office has more l I 21 lawyers working on this case than I do. More. 22 JUDGE SMITH: Mr. Dignan, this aspect of the case, 23 the shel* ~ ring aspect of the case has been at least as long as 24 many operating licensing cases in itself. It's been a big 25 case. And I don't -- l Heritage Reporting Corporation 1 (202) 628-4888 () l l i l 1
14261 1 NR. DIGNAN: That's trus, and thtt's frightcning. 2 JUDGE SMITH: And I don't think the Board has any (j 3 basis to take away from the Intervenors what the regulation 4 anticipated. 5 NR. DIGNAN: Well, then, let's go 30-40-50. 6 JUDGE SMITH: I think we should. l 7 hE. DIGNAN: All right. 8 JUDGE SMITH: Is tst satisfactory to everybody? , 9 Follow the regulations -- l 10 NR. DIGNAN: Your Honor, could I be ~~ l l 11 JUDGE SMITH: -- beginning -- l l 12 NR. DIGNAN: Today, i 13 JUDGE SMITH: Huh? Tomorrow will be day number one. l 14 NR. DIGNAN: All right. 15 Your Honor, could I be ~~ 16 JUDGE SMITH: Tomorrow, or today will be the day in 17 which the record closes and time starts counting according to 18 rules. 19 Does everybody understand that? Any protests? 20 (No response. ) - 21 JUDGE SMITH: Okay. I 22 hR. DIGNAN: Has the Board given any further thought > 23 as to whether it is planning to issue a decision that will deal , 24 with the matters already tried, or I assume now with the staff i l 25 coming in now, the idea is to issue a decision that will pick l Heritage Reporting Corporation i (202) 628-4888 . l i s
1 14262 1 up shaltaring as wall as the othsr matters ws havo tricd; is
'2 that right? , .O 3 JUDGE SMITH: Well, I suspect that there's a good t )
4 chance that we will -- that everything will fall in and we'll 5 come out with one decision. 6 Our highest priority is get these contentions in, get 7 discovery going on the M assachusetts plan. Once discovery > 8 starts, I'm removing my telephone, and we'll work on those. 9 NR. DIGNAN: That was my next question. Is it the ; 10 Board's at least present intention -- I understand the Board -- , L 11 to issue a partial initial decision that will deal with only P 12 the New Hampshire aspect of the case? l 13 JUDGE SMITH: I'm sorry, I thought that was your 14 question, earlier question. 15 NR. DIGNAN: No, my earlier -- ' 16 JUDGE SMITH: What was your earlier question? 17 MR. DIGNAN: My earlier question was a little finer i 18 than that. I didn't know whether the Board was planning to 19 issue a partial initial decision first on the aspects of the 20 case we've already tried, and at least I have filed proposed 21 findings on, and the Intervenors have. 22 And then treat sheltering in a separate division. l 23 JUDGE SMITH: Oh, right. 24 MR. DIGNAN: Or is it the Board's idea that a partial ' t 25 initial decision will issue that will cover the whole New
?
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14263 1 Hampshirs plan -- 2 JUDGE SMETH: Yes. () 3 NR. DIGNAN: ~~ from front to back? 4 JUDGE SMITH: That's what I would think is the most 5 likely. 6 Certainly if your question implies we'll wait until 7 the Massachusetts plan gets in and have one, no. We certainly 8 will be working on that plan -- that New Hampshire plan and 9 hope to have an initial decision out. It looks most likely 10 that the sheltering track will catch up with the main track as 11 far as our decision is concerned. 12 All right, anything further? 13 NR. DIGNAN: Yes, another matter I'd like to plant in 14 the Board's mind, and no more than that. We're going to have 15 an exercise, as the Board is aware, in two weeks. Presumably 16 that will be litigated as hotly as everything else at Seabrook 17 is litigated. 18 I would like the Board to at least be aware that at l 19 some point I may be asking the Board to look at a scheduling 20 concept of trying to fold the axercise litigation into the ! 21 Massachusetts plan litigation, litigate it all at once in one 22 set of evidentiary hsarings. 23 I don't know whether the Board would be amenable to i 24 that or not, but I at least s.vtld like an opportunity to l 25 present that to them. I don't see any eense in presenting it I Heritage Reporting Corporation (202) 628-4888 O
14264 1 until after the exsrciss, and wa know about whsro wa stand on 2 the thing. But sometimes the exercise removes a lot of the 3 contentions, it would seem to me. {l 4 In other words, if they've exercised successfully, ; i 5 the problem goes away in everybody's mind. And I think in the , 6 long run it may shorten up getting through Seabrook to at some , 7 point, possibly told, the exercise situation into the 8 Massachusetts plan situation. l 9 I'm not asking for that ruling now. 10 JUDGE SMITH: Okay. I 11 NE. DIGNAN: I just want to advise the Board that I i 12 may be ~~ ! t 13 JUDGE SMITH: Well, we certainly will entertain your ' 14 suggestion. 15 Anything further? : 16 All right, well, the record is closed on this phase e 17 of the hearing, and, again, we want to -- and this isn't pro : i 18 forma, this is something we've talked about. We want to l 19 express our appreciation to the participants here for your 20 civility and your restraint, your cooperation with the Board. , 21 It's made what could have been a very, very difficult hearing r 22 into a rather satisfying one, and it could have been very bad. , 23 And we understand the differences are great, but the \ 24 professional conduct has been the best that it could be, and l. 25 we're very grateful for it. Heritage Reporting Corporation l (202) 628-4888 ( {
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14265- l
-1' 'We're adjourned.
'2 (Whereupon, at 5:3 6 o' clock ~ p.m. , the heari.ng was j l
3 concluded.') - , 4 l 5 l 6 7 1 i 9 10 11 12 13 e 14 15 16 17 l 18 l
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19 20 l 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 O 6 m
1 CERTIFICATE r 2 3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter of: l 5 Name: PUBLIC SERVICE COMPANY OF 6 NEW HAMPSHIRE, et al. 7 Docket Number: 50-443-OL, 50-444-OL 1 8 Place: CONCORD, NEW HAMPSHIRE l i 9 Date: June 16, 1988 10 were held as herein appears, and that this is the original 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Commission taken electronically by me and, 13 thereafter reduced to typewriting by me or under the direction l 14 of the court reporting company, and that the recording is a 1 15 true and accurate re pfd of he f'regoing Iroceedings. ; 16 /S/ h2 17 (Signature typed): KENT ANDREWS 18 Official Reporter 19 Heritage Reporting Corporation 20 21 22 '23 24 l25 l l Heritage Reporting Corporation (202) 628-4838}}