ML20196F051

Transcript of 880623 Hearing in Bethesda,Md Re Onsite Emergency Planning & Safety.Pp 1,159-1,187

ML20196F051
Person / Time
Site:	Seabrook
Issue date:	06/23/1988
From:	Atomic Safety and Licensing Board Panel
To:
References
CON-#388-6685 OL-1, NUDOCS 8807050033
Download: ML20196F051 (31)

Text

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! UNITED STATES Ox NUCLEAR REGULATORY COMMISSION i

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! In the Matter of: )

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i j PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, ET AL. ) 50-444-OL-1 i

) (On-Site Emergency (Seabrook Station ) Planning and Units 1 and 2) ) Safety)

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I PAGES: 1159 through 1187 1

i PLACE: Bethesda, Marylard DATE: June 23, 1988 l j ....... _ ...............................................q

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1159 1 UNITED STATES NUCLEAR REGULATORY COMMISSION 2 ATOMIC SAFETY AND LICENSING BOARD 3

4 In the Matter of: )

)

5 PUBLIC SERVICE COMPANY OF NEW ) Docket Nos. 50-443-OL-1 HAMPSHIRE, ET AL. ) 50-444-OL-1 6 (On-Site EP&S)

(Seabrook Station )

7 Units 1 and 2) )

)

8 Thursday, 9 June 23, 1988 10 Room 424, West Tower 4350 East West Highway 11 Bethesda, Maryland 12 The above-entitled matter came on for hearing, 13 pursuant to notice, at 3:26 p.m.

14 BEFORE: JUDGE SHELDON J. WOLFE s

Atomic Safety & Licensing Board 15 U.S. Nuclear Regulatory Commission East West Towers Building 16 4350 East West Highway Bethesda, Maryland 20814 17 JUDGE JERRY HARBOUR 18 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 19 East West Towers Building 4360 East West Highway 20 Bethesda, Maryland 20814 21 JUDGE EhMdTH A. LUEBKE Atomic Safety & Licensing Board 22 U.S. Nuclear Regulatory Commission l East West Towers Building 23 4350 East West Highway I Bethesda, Maryland 20814 24 25 i 1

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Il59A 1 APPEARANCES:

gg 2 For the Apolicant:

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

For the NRC Staff:

6 GREGORY BERRY, ESQUIRE 7 U.S. Nuclear Regulatory Commission Office of the General Counsel 8 Fifteenth Floor 11555 Rockville Pike 9 Rockville, Maryland 20852 10 For New Encland Coalition Acainst Nuclear Pollution:

11 DIANE CURRAN, ESQUIRE 12 Harmon & Weiss Suite 430 13 2001 S Street, N.W.

Washington, D.C. 20009 14

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16 17 18 19 I 20 21 22 23 24 25 Heritage Reporting Corporation O (202) 628-4888

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1160 1 PROCEEDINGS 2 (3:26 p.m. )

gg l 3 JUDGE WOLFE: All right. This is Sheldon Wolfe.

4 Judges Harbour and Luebke are it my office and we're 5 listening in on a loudspeaker. And I would also advise that 6 this Conference is being transcribed. l 7 When counsel speak, would you identify yourselves 8 so that the Reporter will know who is speaking.

9 We have read all the comments and arguments of the 10 Staff's and NECNP's that were filed respective on June 2 and 11 June 9th, with regard to Applicant's suggestion of mootness, 12 and there is no need for counsel to repeat those written 13 comments and arguments.

14 Pursuant to our Order of June 10th, we will hear

() 15 first f;om NECNP's Ms. Curran, and then the Staff's Berry 16 will then present his arguments and comments upon 17 Applicant's reply of June 17th.

18 But before we get into that, I would address a 19 question to Mr. Dignan.

20 Have the Applicants proceeded to direct the 21 substitution of the 12 RG-59 cables in place of the 12 RG-58 2.1 cables, and has this work been accomplished? l i

23 Mr. Dignan? l 24 JUDGE HARBOUR: I think we've lost Mr. Dignan. We 25 had a bleep and usually when you hear that bleep, somebody l

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1161 1 just got dropped.

gll 2 JUDGE WOLFE: Hello?

3 JUDGE 11 ARBOUR: Ms. Curran, are you still on?

4 MS. CURPAN: Yes, I'm still here.

5 JUDGE HARBOUR: Mr. Berry, are you still there?

6 MR. BERRY: Yes, I am, Your Honor.

! 7 JUDGE HARBOUR: Mr. Dignan, or anybody at Ropes &

l 8 Gray?

9 (No response) 10 JUDGE HARBOUR: They were the ones that dropped 11 off.

12 JUDGE WOLFE: Hold on. We'll see what the problem 13 is here.

14 Mr. Dignan? What was the last thing you heard?

() 15 MR. DIGNAN: I heard you saying, Your Honor, that 16 counsel need not repeat the arguments they've made in their 1

I 17 prior filings. I 18 JUDGE WOLFE: All right. And I indicated that we 19 would hear first from Ms. Curran, and then from Mr. Berry 20 addressing the Applicant's reply of June 17th.

21 And then I proceeded while you were off the air, I 22 proceeded to ask you, Mr. Dignan, have the applicants 23 directed the substitution of the 12 RG-59 cable in place of 24 the 12 RG-58 cable, and whether this work has been 25 completed?

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1162 1 MR. DIGNAN: I'm advised, Your Honor, and I have a l 2 technical person with me here, Mr. Daly, who's a licensing 3 engineer, that the RG-58 cablec have all been deenergized, 4 that the RG-59 cables have been installed and. energized.

5 The field work in short is all done. I am advised there's 6 certain paper work that still has to be done. And they 7 expect the paper work will be finished Monday or Tuesday of 8 next week. But the field work is all done.

9 JUDGE WOLFE: All right.

10 All right, Ms. Curran, you may address the 11 applicant's reply of June 17th. l 12 MS. CURRAN: All right. I'd just like to at first 13 introduce Dean Tousley who is with me on the telephone i

14 today. '

( 15 JUDGE WOLFE: 'Who is that, please?

16 MR. TOUSLEY: Dean Tousley.

17 JUDGE HARBOUR: How do you spell it?

l 18 MR. TOUSLEY: Tousley.  !

l 19 OUDGE WOLFE: I see. And Mr. Toucley is an 20 attorney, Ms. Curran?

21 MS. CURRAN: Yes.

22 JUDGE WOLFE: All right.

23 MS, CURRAN: We have had a chance to have our 24 consultant take a preliminary look at the material submitted 25 by applicants. And as a result, we' re still in a position i

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1163 1 where we still have a number of questions about this issue.

lll 2 They' re basically the same questions that are raised in our 3 filing of June 9th.

i 4 And I can just summerize the three basic points 5 for you. We still are not satisfied with the applicant's s 6 statements regarding their method for identifying all the  ;

7 RG-58 cable. Mr. Pollard gave me two pages of very 8 technical questions that he has about the method that was 9 used, whether the review is truly independent.

10 I don't feel ccmfortable not having him here and 11 not having this written down in a very exact form going 12 through each of those questions, but basically they are 13 questions about the independence of the review. It's not 14 clear whether the applicants looked for all the possible

() 15 purchase orders involving RG-58 cable.

16 We're unclear as to whether all 12,000 schematic 17 drawings were reviewed, whether those drawings were 18 independent of the CASP program, or possibly derived from 19 that program.

20 And also whether the applicants compared the 21 drawings to the actual conditions in the plant.

22 Those are questions that remain open.

23 The second major issue is that we still don't 24 exactly what functions are served by RG-58 cable. We've 25 gotten some more information on the computers that are Heritage Reporting Corporation O (202) 628-4888

W 1164 1 served but we still don't know enough about the nature of gg h 2 the signals that are being conveyed. And we just don't have 3 enough information to satisfy ourselves that the functions 4 performed by the cable are not safety related.

5 And finally, we don't know what the environmental 6 requirements for RG-58 cable are, and hence, we can't 7 evaluate whether RG-59 cable actually would meet those 8 requirements. And we' re assuming that they must be 9 different or certainly there's a reasonable inference that 10 there is some difference between the requirements for the 11 two cables, given that two separate cables were ordered in' 12 the first instance, and that RG-58 cable is more e:: pensive 13 than RG-59. There must have been a reason for the purchase 14 such that it's worth inquiring into what are the different 15 requirements for these two cables.

16 We don't think that given the number and 17 seriousness of the questions that we have here that this is 18 susceptible to any kind of ministerial solution as the 19 applicants suggest.

20 What we think we need is more discovery, including 21 an opportunity to review these documents that the applicants 22 are relying on, the task documents, the schematic drawings, 23 an opportunity to look at the esble in the plant, and it's 24 possible that when discovery is completed, we can resolve 25 this on the basis of affidavits, although, as I stated in Heritage Reporting Corporation p) t s_

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1165 1 our filing, we have questions about the credibility of the 2 applicants' statements, given the change in position here.

{)

3 JUDGE WOLFE: I see. Well, you've fairly well 4 tracked what you've stated in your June.9th submission.

5 Isn't that correct, Ms. Curran?

6 MS, CURRAN: Yes, but with the addition that we )

7 have within at least a preliminary review of Mr. Bergeron's 1

8 affidavit, and it continues to raise questions for us, and 9 has not answered those questions.

10 JUDGE WOLFE: I see.

11 Mr. Berry?

12 MR. BERRY: Yes, this is Mr. Berry. Thank you, 13 Your Honor.

14 Like Ms. Curran, the Staff also after having

() 15 reviewed applicants' June 17th response would basically 16 track what we've stated before in our June 2nd response.

17 You'll notice that the position that the Staff 18 took in that response was that we viewed the Bergeron 19 affidavit and applicants' filing as the nature of evidence 20 tantamount to a motion for summary disposition. It 21 indicated some additional information that applicants should 22 consider introducing in order to bolster and supplement that j l

23 which we regard as a motion for summary disposition. l 24 Having made a preliminary review of the June 17th .

25 filing, the Staff at this time is basically inclined to the 1

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i 1166 1 t =. #. that a motion for summary disposition would be

{) 2 appropriate and probably should be granted, although we'd 3 have to study it further. And the Staff would file an 4 affidavit of its own.

5 But our review of that supplemental information 6 contained in Mr. Bergeron's affidavit leads the Staff to the 7 view at least held at least at this time that, one, that the 8 RG-59 cable would be an adequate substitute for the RG-58, 9 And, two, that the RG-58 cable has been removed from all 10 ulaces where it would otherwise be required to be qualified 11 under 10 CFR 50.49.

12 So, in short, Your Honor, the Staff position at 13 this time is that the record contains all the information 14 necessary for the Board to insue a determination favorable

( 15 to the applicants on this remanded cantention.

16 JUDGE WOLFE: All right.

17 Is there anything else now to be added?

18 MS. CURRAN: Well, I would just like to emphaalze 19 that we think a motion for summary judgment is premature at 20 this point, because we really haven't had a complete 21 opportunity to review the record that applicants are 22 apparently basing this change in position.

23 JUDGE WOLFE: Yes.

24 MS. CURRAN: It's not the same information that we 25 had in the former hearings, and I think we're entitled to

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l 1167 1 explore the basis for their change in position thoroughly

() 2 3

before we go through the summary judgment process. And I think at this point, it's still premature.

4 JUDGE WOLFE: Yes.

5 MR. BERRY: This is Mr. Berry, Your Honor.

6 Just briefly in response to the question as to 7 whether discovery ought to be permitted on this remand 8 proceeding, and if so, how much or how extensive. I would  !

9 state at this time that the Staff view on that is, number 10 one, I believe that the applicants have indicated that the 11 source materials and underlying records and documents here 12 are available to the parties.

13 Two, I believe that the June 17th submission by 14 the applicants contains a lot of the information that would

() 15 be sought in the discovery.

16 Three, the Staff doesn't believe that this is a 17 case where wide-reaching, far-ranging, open-ended discovery l 18 is either necessary or appropriate. I think we're dealing 19 with a limited, with a narrow issue here, namely, whether 20 RG-58 is environmentally qualified or in the event that it's 21 going to be replaced, whether RG-59 cable is an acceptable 22 substitute.

23 So the Staff is not opposed to the party's NECNP, 24 the Staff having the opportunity to discover documents, but j 25 I think we ought to be clear here that this is not a case i l

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4 1168 1 where wide-ranging, far-reaching, open-ended discovery is

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either necessary or appropriate.

MS. CURRAN: May I respond to that?

4 JUDGE WOLE d: Okay, Ms. Curran.

I 5 MS. CURRAN: What we're asking for is discovery 6 that is relevant to the new information that has been and 7 the new position that applicants have taken in this 8 proceeding. Obviously, we're only entitled to relevant 9 discovery but their position's completely changed, and I 10 think we' re entitled to explore the basis for that change.

11 JUDGE WOLFE: Well, I'm not going to rule on 12 discovery matters now. But I suggest -- well, let me get 13 into that a little bit later. But I'm not going to rule on 14 any matters of discovery.

15 If such matters do come up during the course of 16 any discovery, we would hope that the objections to produce 17 or the objections to respond would be phoned in to the 18 Board, to me, upon proper and timely notice, so that the 19 other Judges could be here. And you lay out what the 20 objections are and what the movant has to say, and then the 21 Board without more will rule on the objection an; order 22 production, or whatever, or disallow production.

l 23 I would think that would tend to expedite matters 24 and we wouldn't have this blizzard of papers that we've all 25 been inundated with.

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1169 1 All right, anything else now?

2 All right. As I said, I was going to give --

{~)

3 MR. DIGNAN: Your Honor, this is Tom Dignan.

4 JUDGE WOLFE: Yes?

5 MR. DIGNAN: I was wondering is it appropriate for 6 me to have an opportunity to reply to the arguments you've 7 just heard?

8 JUDGE WOLFE: Well, how say you, Mr. Berry? Ms.

9 Curran?

10 MS. CURRAN: Fine.

11 JUDGE WOLFE: Okay.

12 Mr. Berry? Mr. Berry?

13 MR. BERRY: The Staff would be interested in 14 hearing what Mr. Dignan has to say.

() 15 JUDGE WOLFE: All right. Proceed, Mr. Dignan.

16 MR. DIGNAN: My problem is that the central legal 17 argument we made in our filing has not been addressed by 18 anything we have heard.

19 To me, there's a fundamental jurisdictional 20 question out here. As I read the Appeal Board's decision, 21 it sent back a single issue to the Licensing Board and that 22 is, is RG-58 qualified, or is it not. Now, we eluded this 23 by removing it from the harsh environment.

24 Now, any argument that says that they can litigate 25 the question of whether we found the right cables, we know Heritage Reporting

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1 what cable to put in its place, is not a contention as to i

2 environmental qualification; it is a contention of technical l

{)

3 qualifications of the applicant.

4 No such contention has ever been raised in this 5 proceeding. A technical qualification contention would have 6 been properly raised way back at the outset of the 7 proceeding. And I respectfully suggest that while we've l

8 addressed all the concerns of the Staff and those, we J

9 thought we'd addressed NECNP's too on this matter by filing 10 the Bergeron affidavit, I don't want lost sight of the fact 11 that I don't think there's any jurisdiction in this Board, 12 respectfully, to entertain a technical qualifications 13 contention, which is essentially what NECNP is asking you to 14 do here. Because NECNP wants to litigate whether we know

() 15 how to find cable.

1 16 Now, that being the case, unless the Board is l

17 persuaded by my argument to declare this thing moot in light 18 of the filings we have made, and in light of the fact the 19 field work has been done, that I would respectfully ask the 20 Board to certify to the Appeal Board tho question of whether 21 or not the Board has jurisdiction to entertain what I 22 respectfully suggest is a brand new, unrelated contention as 23 to the applicant's technical qualifications.

24 And I think before we embark on any discovery or 25 any summary judgment type proceeding, this threshold f, Heritage Reporting Corporation (j (202) 628-4888

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1171 1 question of jurisdiction should be tuled upon. And I would

(' 2 ask that if it's not favorable to us, that it be sent to the V

3 Appeal Board as to whether the Appeal Board intended this 4 sort of thing to be litigated in light of the fact that 5 we've changed the cable out.

6 MS. CURRAN: I'd like to respond to that, if I 7 could.

8 JUDGE WOLFE: All right, Ms. Curran.

9 MS. CURRAN: The applicants could have come back 10 to the Licensing Board and provided some additional evidence 11 that this cable was qualified, or it could have come up with 12 some test results, or whatever, but it didn't. It decided 13 to replace the cable, and not even all the cable, just some 14 of the cable.

15 That doesn't make the issue go away. I think 16 we're entitled to know whether or not they have correctly 17 identified what is not safety related cable, and whether 18 they have substituted it with cable which qualifies with the 19 application.

20 I think they have completely changed the basis to 21 their position, and I think that is a legitimate grounds for  !

22 this litigation here. I don't think there's any need to 23 certify anything to the Appeal Board. l 24 MR. DIGNAN: Your Honor, I would renew the bidding 25 on this issue. NECNP has gotten much more out of I

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1172 1 environmental qualification then they were entitled to. The 2 original contention was that we hadn't put times on that.

{)

3 If you recall, we objected to them even getting 4 into the issue on cross examination, and the Board let them 5 try that out. But by no stretch of the imagination, is 6 NECNP or anybody else ever raised a contention as to the 7 technical qualifications of my clients to find cable, remove 8 it, or do anything else of a technical nature. There has 9 not been even a technical qualification contention raised in 10 general with respect to the Seabrook project, and that is 11 what is being raised now.

12 And the only issue that you've got on remand, and 13 under those cases you're confined to the jurisdiction of 14 that issue, is is RG-58 environmentally qualified, and I

() 15 respectfully suggest that that question has been in fact 16 mooted.

17 JUDGE RARBOUR: Is there RG-58 cable in a plant 18 that's not covered by these 127 19 MR. DIGNAN: Yes, of course there is. But our 20 position is, as for the reasons we state in the affidavit, 21 none of it is in a harsh environment where it has to be 22 environmentally qualified.

23 And no one has ever taken the position that my 24 clients are incapable of determining the difference between 25 the two. That's a technical qualification issue.

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1173 1 That's the reason I say, jurisdiction isn't

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) 2 there. This is no longer an EQ issue, it's a technical 3 qualifications issue that they're arguing.

4 JUDGE WOLFE: Anything more, Mr. Berry?

5 MR. BERRY: Yes. This is Mr. Berry.

6 Staff sees some merit to Mr. Dignan's argument as 7 well as Ms. Curran's. I think the fundamental point, 8 though, Your Honor, that has to be addressed is that as I 9 believe-one of the Judges just pointed out, there does 10 remain in the plant right now some RG-58 cable.

11 Applicants have stated that they are removing the 12 RG-58 cable or substituting the RG-58 cable that is located 13 in a harsh environment. Now, if that's so, if all those 14 instances of RG-58 cable located in harsh environments have

( 15 been replaced, then the Staff would be inclined to agree 16 with applicants that there is no longer an issue in 17 controversy. l 18 On the other hand, if tnere is still some RG-58 19 cable that is located in harsh environment that's not being 20 replaced, then we would, then Ms. Curran woulci be corrected 21 and the issue wouldn't be mooted. We do believe, however, 22 that the Bergeron affidavit fully explains why all the RG-58 23 cable located in harsh environments has been identified and 24 has been replaced.

25 So in that sense, we believe that the Board can Heritage Reporting Corporation O (202) 628-4888

1174 1 make a finding and should make a finding to that effect that

.{) 2 those environments where RG-58 cable previously was located 3 have been replaced by RG-59. Those are the only instances 4 which 50.49 applies.

5 And so therefore the concern raised by the 6 contention that's been remanded has been satisfactorily 7 addressed. There's no longer a controversy now between the 8 parties, and the Board should issue a determination 9 favorable to the applicant. They could do that either 10 claiming that the contention is now moot, or that the safety 11 concern has been adequately resolved.

12 So it's our position that before the issue can be 13 determined to be mooted, the Board would have to determine 14 that all those harsh environments where RG-58 had previoueJy

() 15 been located have been replaced with the qualified RG-59.

16 MR. DIGNAN: Your Honor, with great respect to my 17 brother who represents the Staff, I have to disagree with  ;

18 that analysis. The point I'm trying to make is let's assume 19 what the applicants have done is instead of filing this l l

20 technical material trying to address all the questions that l

21 have been raised, we had just come to the Board and said,

.12 we're not going to use RG-58 in the harsh environment 23 anymore. We're withdrawing it, we're pulling it.

24 And we did no morea than that. Then in order for 25 this litigation to contir.ue, the Board or somebody would 1

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1175 1 have had to raise, and the Board would have had to approve a 2 sua sponte issue of technical qualification of my client to

{)

3 find cable.

4 Now, the Board has not raised that sua sponte and ,

t 5 gone through the procedures that have to be gone through to 6 do it, and no intervenor has ever raised technical l

7 qualifications. Because the only issue up for grabs now, 8 whether you take the Staff's explanation or Ms. Curran's 9 explanation, is can the applicant find the cable.

10 And that doesn't go to whether the cable is 11 qualified. It has nothing to do with environmental 12 qualifications. You are then questioning the technical l

13 qualifications of people that construct the plant and i 14 operate the plant, and that issue simply has never been l

( 15 placed in litigation.

16 And it is too late for somebody to raise it now, 17 unless the Board chooses to raise it sua sponte, and that 18 will require going through the procedures necessary, 19 including notifying the Commission that the Board has 20 elected to do so.

21 JUDGE WOLFE: I would like to hear your thoughts 22 on that, Mr. Berry. What would happen under that 23 hypothetical situation that Mr. Dignan posed, namely de-24 energizing all the RG-58 cable in the harsh environment and 25 just replacing it, period?

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1176 -

I 1 MR. BERRY: All of the cable? This is Mr. Berry 2 speaking. Do I understand correctly that if they de-

{) ,

3 energized all RG-58 cables and replaced them with RG-59?

4 JUDGE WOLFE: No, I think Mr. Dignan meant in the 5 12 --

6 MR. DIGNAN: Harsh environment. .

7 JUDGE WOLFE: In the harsh environment, yes. j 8 MR. DIGNAN: And to say that we can't identify the 9 harsh environment cables is to say that we're not 10 technically qualified, and that is a different issue than 11 what has been remanded to this Board from the Appeal Board.

12 MR. BERRY: I understand Mr. Dignan's position, 13 Your Honor. Again, the Staff would just adhere to the 14 statement of its position that I just previously expressed,

() 15 that I don't believe that in the context of this remand 16 proceeding that it injects a new contention or injects a new 17 issue, but what we're trying to determine is whether in fact 18 you know this action proposed by the applicant in fact moots 19 the issue.

20 And the Staff would agree that it would moot the 21 issue either, if on the one hand, all RG-58 cables were de-22 energized and replaced with RG-59. In that case, it would 23 be clear that the issue would be moot. Or on the other 24 hand, if only those RG-58 cables were replaced with the RG-25 59, if the record established that that represented the Heritage Reporting Corporation

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,D' 1 universe of the cables located in harsh environL 2 But what the Staff is suggesting, Yout e, -a

{) <

3 that before you can make that determination that the issue 4 has been mooted, that you have to have some basis to agree 5 that all of the cables located in harsh environments have 6 been identified.

7 We're suggesting that the Bergeron affidavit 8 provides the basis to make that determination. But we do 9 believe that that determination has to be made.

10 JUDGE WOLFE: All right. I think that the Board 11 has heard enough.

12 Agreed?

13 All right. I'll put you on moot for a couple of 14 minutes. Hold on.

15 (Board confers.)

16 JUDGE WOLFE: Hello? Are we back on?

17 MR. BERRY: This is Mr. Berry for the Staff.

18 JUDGE WOLFE: Mr. Dignan?

19 MR. DIGNAN: This is Mr. Dignan, yes, Your Honor.

20 JUDGE WOLFE: And Ms. Curran?

21 MS. CURRAN: I'm here.

22 JUDGE WOLFE: All right.

23 We've been discussing this and the Board rejects 24 applicant's suggestion of mootness as filed on May 19th, and 25 revised on May 27th which requested that we issue an order Heritage Reporting Corporation O (202) 628-4888 L __

e 1178 1 finding that the issue regarding environmental qualification

() 2 3

of RG-58 cable is moot.

And further, we reject applicant's request that we 4 certify this question to the Appeal Board. We have decided 5 that diocovery procedures shall be allowed. And that if 6 we're notified by one or more of the interested parties that 7 they want to proceed via summary disposition, why then 8 summary disposition procedures will be invoked.

9 I would state that we agree with the Staff and 10 NECNP who pointed out that it must be established by the 11 applicants that a total of 126 RG-58 cables have been 12 installed at Seabrook, and it also must be established by 13 the applicants how it was determined that a particular RG-14 58 cable belonged in one of the five groupings or 15 categories.

16 In shifting their pcsition from initially 17 asserting before us and before the Appeal Board that all RG-18 58 cable had to be and were environmentally qualified but in 19 now arguing that only 12 RG-58 cables had to be 20 environmentally qualified, and that 12 environmentally 21 c;ualified RG-59 cables would be substituted, applicants 22 cannot now be heard to argue that the issue of environmental 23 qualification of RG-58 cable is now entirely mooted.

24 And further in so shifting their position, 25 applicants we find and conclude must prove that the RG-59 l Heritage Reporting Corporation O (202) 628-4888 l

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1179 )

1 cable is a technically acceptable replacement for the RG-58 O

V 2 coaxial cable.

3 I believe, Judge Harbour, you had something to add 4 here?

5 JUDGE HARBOUR: On the Appeal Board remand, if the 6 Appeal Board told us, gave us guidance on the issues to be 7 considered which included the applications of the RG-58, 8 which included the circuits, that is, what's attached to 9 each end of it, and suggested that we should find out why 10 the operability code that wan assigned did not seem to apply 11 to the use for which the cable was being made.

12 JUDGE WOLFE: All right.

13 I would add, however, that we will neither allow 14 nor give consideration to any arguments or to any efforts to

() 15 contend that the RG-59 cable is not environmentally 16 qualified. Such an argument or contention was not raised 17 before us in the proceeding, resulting in the partial 18 initial decision of March 25, 1987, and was not briefed and 19 argued by NECNP on its appeal to the Appeal Board from the 20 PID.

21 Before us and before the Appeal Board, NECNP 22 solely contended that the environmental testing of the RG-59 23 cable did not serve to environmentally qualify the untested 24 RG-58 cable. During that time, NECNP did not also contend 25 in addition, as it could have, that in any event the tests Heritage Reporting Corporation

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s 1180 1 applied to the RG-59 cable were insufficient even to qualify

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that cable.

2n ALAB-882 at 27 NRC 1, the Appeal Board refused 4 to consider that newly raised question because it had not 5 been presented in NECNP's appeal from the partial initial 6 decision.

7 And again in ALAB-886 at 27 NRC 74, after noting ,

8 that for the entire period that contention 1-B-2 was in  !

9 1.itigation before the Licensing Board, as well as during the  ;

t 10 appeal from the PID, NECNP accepted implicitly if not )

11 explicitly the environmental qualificatien of the RG-59  ;

12 cable. )

13 After noting that, the Appeal Board in 886 refused 14 to reopen the record and to admit a new contention l 15 challenging the environmental qualification of the RG-59 16 cable. This ruling by the Appeal Board is now the law of '

17 the case.

18 That applicants now propose to install 12 RG-59 19 cables to replace 12 RG-58 cables does not excuse NECNP's 20 failure to have previously and timely raised the question of 21 the environmental qualification of the RG-59 cable.

22 So, if the parties would like for me to restate or 23 repeat rather what I'm now going to say, they may, because i

24 it applies to discovery procedures and summary disposition.  !

l 25 And of course, you will have your own transcripts. But if f I

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1181 1 you have a pencil, you might take down the dates on some of

() 2 3

this.

Discovery shall be initiated immediately by NECNP, 4 the Staff and the applicants, and shall be completed by 5 August 15, 1988.

6 And I underscore for you, Ms. Curran, the use of 7 the words, shall be completed by August 15. And you 8 understand what I'm saying?

9 MS. CURRAN: I do.

10 JUDGE WOLFE: All right.

11 Interrogatories and answers thereto, and requests 12 for production of documents and responses thereto shall be 13 served by express mail.

14 The 30-day period for responses to requests for

() 15 production of documents under Section 2.741(d) is reduced to 16 14 days in order to resolve this matter that's been hanging 17 around much too long.

18 Further, by no later than August 22, 1988, these 19 parties shall notify the Board whether or not each intends 20 to file a motion for summary disposition, and any motions 21 for summary dispositions shall be served by express mail on i 22 or before September 12.

23 Any answers supporting or opposing a motion for:

24 summary disposition filed pursuant to 10 CFR 2.749 shall be 25 served by express mail.

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1 2

If so, Are there any of 3 let me know. these dates you 1182 4 MS. want repeated?

were CUPd%N:

5 saying about -

I wonder if you 6 MR.

DIGNAN:

could reptsat what ou y

7 memorialize both Your Honor, is it separate the decision 8 wr itten order, and this your intention to written or will motion into a 9 order?

the transcript b 10 JUDGE e the Dignan. WOLFE:

11 until I'm leaving tomoI'm going to beof out rrow town, Mr.

12 Tuesday morning .

morning.

13 MR. DIGNAN:No,I won't have an I won't be back is, I'm opportunity.

14 yvur not requesting it I'm just,

. what I'm 15 wondering on xntention to issu e an I -lust wanted 16 contained in the tr official order beyto know if it is anscript?

17 JUDGE WOLFE:

ond what is separate It is 10 order.

not my intention to i 19 IG. DIGNAN: ssue a Okay, 20 All right, thunk you.

21 MS. Ms. Curran?

about CURRAN:

I was 22 the 2. 741 (d), I asking when you w documents. think 23 Could you the time for prod ere talking 24 JUDGE repeat what you uction of responses to WOLFE: said Yes. there?

25 r v est The 30-day period Section 2. 741 for production is (d) for of reduced to 14 days. documents under Heritage Reporting (2( 2) 628-4888 Corporation V -~ p-'

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l 1182 3 Are there any of these dates you want repeated?

'(s-- 2 If so, let me know.

3 MS. CURRAN: I wonder if you could repeat what you 4 were saying about --

5 MR. DIGNAN: stur Honor, is it your intention to 6 memorialize both the decision and this motion into a 7 separate written order, or will the transcript be the 8 written order?

9 JUDGE WOLFE: I'm going to be out of town, Mr.

10 Dignan. I'm leaving tomorrow morning. I won't be back 11 until Tuesday morning. I won't have an opportunity.

12 MR. DIGNAN: No, I'm just, what I'm wondering on 13 is, I'm not requesting it. I just wanted to know if it is 14 your intention to issue an official order beyond what is 15 contained in the transcript?

16 JUDGE WOLFE: It is not my intention to issue a 17 separate order.

18 MR. DIGNAN: Okay, thank you.

19 All right, Ms. Curran?

20 MS. CURRAN: I was asking when you were talking 21 about the 2. 741 (d) , I think the time for production of 22 documents. Could you repeat what you said there?

23 JUDGE WOLFE: Yes. The 30-day period for 24 responses to request for production of documents under 25 Section 2.741(d) is reduced to 14 days, il Heritage Reporting Corporation ]

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• 1183 i

1 Now, I don't think that much turnaround time is

{A,) 2 needed certainly by Mr. Dignan. If you request certain 3 documents, I'm certain that he can turn around within a 4 couple of hours in light of the -- what was that Affidavit, 5 the Bergeron affidavit?

6 MR. DIGNAN: Your Honor, I'm confident I can turn 7 it around in terms of accessibility, but there are major 8 amounts, depending upon what they ask for, there are major 9 amounts of documents, and they may have to come up to the 10 site to review them.

11 JUDGE WOLFE: Yes.

12 MR. DIGNAN: I don't know what their request is 13 going to be, but if it's as broad as often these are, we're 14 talking -- we're not talking a quarter inch of documents

/^)

(_f 15 that I'd happily put in the mail; we're talking about many 16 documents that their technical people would just have to 17 come up and look ab on the site to decide what if any they 18 would want.

19 JUDGE WOLFE: Well, I would assume, Ms. Curran, 20 that when you make such requests, as a matter of fact, I 21 would expect that you would go to the site, and look at 22 these documents. From what Mr. Dignan says, that they are 23 voluminous.

24 MS. CURRAN: Yes, I imagine we'll have to go up 25 there.

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1 JUDGE WOLFE: Yes. Okay, well that's one thing

{3 2 out of the way, Mr. Dignan.

3 All right, if there are no other questions, then.

4 MR. BERRY: Your Honor, this is Mr. Berry. I 5 JUDGE WOLFE: Yes? .

l 6 MR. BERRY: We don't need you to repeat any of the 7 discovery dates and things, but I would just like to state 8 just for the record at this time, our posi'. ion. And that is 9 the Staff, we believe that this discovery schedule is far 10 too long.

11 I understand that the Board has given it some 12 thought and has proposed what it considers a reasonable 13 discovery schedule.

14 I would just like to state our position that a

(,/ 15 discovery schedule ending date of August 15th, we just think 16 it's too long by at least three weeks.

17 MR. DIGNAN: I join in that, Your Honor, 18 respectfully, with a full understanding that it's a matter 19 of Board discretion.

20 JUDGE WOLFE: Yes.

21 Ms. Curran?

22 MS. CURRAN: If we' re expected to be going up to 23 the plant to look at these volumes and volumes of documents, 24 I think we need a substantial amount of time to look at 25 them. We're talking about time for at least two rounds of Heritage Reporting Corporation CJ (202) 628-4888 l

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1185 1 interrogatories and possibly some depositions, and a visit

( J, 2 to the plant.

3 To me, this looks like a pretty reasonable amount 4 of time, maybe a little on the short side.

5 JUDGE WOLFE: Well, I'm going to let it stand, 6 because as I understand it, the documentation is voluminous.

7 So I'm going to hold everyone to that completion by 8 August 15 date. And I would be very loathe unless somebody 9 breaks a leg or whatever, something horrendous happens to 10 them, that the Board will hold firmly to August 15.

11 All right, if there are no further questions, the 12 conference is over.

13 MR. DIGNAF: Yottr Honor?

14 JUDGE WOLFE: Yes? l 15 MR. DIGNAN: Is the Reporter there?

16 JUDGE WOLFE: Yes.

17 MR. DIGNAN: I would like to advise the Reporter, 18 would they expedite this transcript and get it to us here at i 19 Ropes & Gray as soon as possible. We have a standing order 20 in I think for five copies.

21 THE REPORTER: Understood.

22 JUDGE WOLFE: All right.  !

1 23 Anything more?

24 (No response.)

25 JUDGE WOLFE: All right, the conference is l

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1 concluded.

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2 Thank you.

3 (Whereupon, at 4:10 p.m., the conference in this l R 4 matter was concluded.) i 5 I l

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1 CERTIFICATE 2

3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter of:

$ Name: PUBLIC SERVICE COMPANY _OF NEW HAMPSHIRE, et al (Seabrook Station, Units 1 and 2) 7 Docket Number: 50-443-OL-1 50-444-OL-1 8 Place: Bethesda, Maryland 9 Date: June 23, 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 stenographically by me and, 13 thereafter reduced to typewriting by me or under the direction 14 of the court reporting company, and that the transcript is a 3 15 true and accurate r ord the rego' g proceedings.-

0 16 /s/

17 (signature typed): KENT ANDREWS 18 Official Reporter 19 Heritage Reporting Corporation 20 l l

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24 25 Heritage Reporting Corporation (202),628-4888