ML20198K849
| ML20198K849 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/28/1986 |
| From: | Backus R BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#286-373 OL, NUDOCS 8606040148 | |
| Download: ML20198K849 (4) | |
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FILED:
May 28, 1986 TJUN 21987 -
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the matter of:
PUBLIC SERVICE COMPANY OF DOCKET NOS.
50-444 OL NEW HAMPSHIRE, ET AL 50-443 OL (Seabrook Station, Unit 1) 4
(
MOTION FOR DIRECTED CERTIFICATION PURSUANT TO 10 C.F.R. 2.718 (J )
4 NOW COMES the Seacoast Anti-Pollution League ("SAPL") and moves that this Appeal Board direct certification of the following matter:
"Whether the ASLB has acted arbitrarily and capriciously in refusing to correct the of fical transcript of the pre-hearing conference, as sought by SAPL in a Motion dated April 10, 1986?"
DISCUSSION On April 10, 1986, SAPL filed a Motion to Correct the official record of the pre-hearing conference in this proceeding.
The pre-hearing conf erence was held in Portsmouth, New Hampshire on March 25 and 26, 1986.
That Motion is attached hereto and made a part hereof.
There is also attached hereto the ASLB's response to that Motion.
Basically, SAPL's Motion pointed out, with supporting evidence, that the record was incomplete and may have been altered.
The record was incomplete in that, in response to an Order from the presiding officer,
+
Judge Hoyt, certain comments were not transcribed.
One of the comments not transcribed was the Order of Judge Heyt that "That reporter will strike 1
n) 8606040148 860528 PDR ADOCK 05000443 9
tha t f rom the r ecord.... " (See underlined port ion of unof ficial transcript,
attached to the April 10th Motion.
The next day, the second day of the prehearing conference, the undersigned counsel for SAPL had an opportunity to look at the Staff's transcript of the preceeding day, and observed that the record was incomplete.
Counsel had attempted to orally move that the transcript be corrected.
At that point, the following dialogue occurred:
"Mr.
Backus, do you have a question?
MR. BACKUS :
Yes. I have a ques t ion about yes terday's transcr ipt.
I have reviewed Staff's copy of that transcript and I find that it does not contain all of your discussion with me about the on the record /of f the record matter, and I would like to have that corrected.
Specifically, it does not contain your reference to the fact that I would not be permitted to make certain statments on the record, and I think it should contain at least all of your remarks, Madam Chairman.
JUDGE HOYT:
Very well, Mr. Backus, you may file a mot ion f or the correction of the transcript.
MR. BACKUS:
Can I do that orally right now?
JUDGE HOYT:
No, sir.
SUt. BACKUS:
I have something - -
JUDGE ilOYT:
No.
That terminates it, sir.
That terminates it, sir.
MR. BACKUS:
Can I ask the other members of the Board, perhaps to be consulted, Madam Chairman on this?
JUDGE HOYT:
No,
- sir, please, I wish to get ahead with the proceeding.
I ask you if you wish to make any correction as to the transcript, you may f ile a wr i t ten mot ion. The Board does not want to take it at this time.
We have nothing further on this discussion."
The response of the ASLB, in its entirety, was as follows:
1.
The Seacoas t Ant i-Pollut ion League ("SAPL") on Apr il 10, 1986 filed a Motion to Amend record of conf erence held by this Board on March 25, 1986 by alleging that an unauthorized recording conflicts with the official reporter's transcript.
2.
The sole of ficial transcript of the proceeding is that prepared by the official reporter designated by the Commission (10 C.F.R. 2.750(a))
The Motion to Amend the record is denied.
Nowhere did the Board even deign to discuss whether there was a basis for believing the record was incomplete or inaccurate.
In addition, the ASLB did not even refer to the f act that, as recited in SAPL's Motion, the official reporter for the proceeding herself had indicated that full stenographic notes of the March 25 proceeding were available.
Nowhere did the Board deal with the f act that an admit tedly unof ficial transcript did in fact provide at least a basis for believing that the official transcript might be in error.
It defies logic as to how a litigant can preserve its appellates' rights in the face of a transcript which is incomplete and inaccurate, apparently because of conduct by the presiding j udge, when the transcript, even if in error, cannot be corrected because it is " official."
This Appeal Board, if it is to exercise its duty to correct any claimed errors of law, mus t insure that the proceedings below are recorded completely and accurately.
For this reason, this Appeal Board mus t direct the certificat ion of this question, and take the necessary s teps to insure that the record of the proceedings on March 25 is corrected to be full and accurate.
SAPL is aware that directed certification is disfavored in this Agency. However, SAPL believes that directed cer t i fication is appropriate in this circumstance because there is no practical way to assure this error can be corrected on appeal since this transcript, as presently uncorrected, will provide the basis for any appeal.
Indeed, the issue here appears to go to the very right to preserve exceptions on appeal.
Moreoever, an accurate transcript does lie at the heart of a fair adjudicatory hearing, and thus does " affect the basis structure of the __
proceedings in a pervasive or unusual manner."
Public Service Company of Indiana, Inc., 5 NRC 1170, 1191 (1972).
For the reasons s tated, this Appeal Board should direct cert i fication of this question, arrange for transcription of the reporter's complete notes of the hearing of March 25th, and provide such other remedies as may be required in the circumstances of this case.
Respectfully submitted, SEACOAST ANTI-POLLUTION LEAGUE By Their Attorney,
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By:# obert A.
Backus R
BACKUS, MEYER & SOLOMON P. O.
Box 516 Manchester, NH 03105 (603)668-7272 I hereby certify that copies of the enclosed Motion have been sent to all parties on the enclosed service list.
$MA R g r V 'A. B'ackus i
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FILED:
April 10, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COm1ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the matter of:
PUBLIC SERVICE COMPANY OF DOCKET NOS.
50-444 OL NEW liAMPSil! RE, ET AL 50-443 OL (Seabrook Station, Unit 1)
SEACOAST ANTI-POLLUTION LEAGUE'S MOTION TO AMEND RECORD OF PREHEARING CONFERENCE OF MARCH 25, 1986 NOW COMES the Seacoast Anti-Pollution League (SAPL) and moves the Board to amend and correct the record of the Prehearing Conference 'in the above-captioned matter.
On Tuesday, March 25, 1986, during the course of the Prehearing Conference, an interchange occurred between Judge Hoyt and At torney Rober t A.
Backus.
(See transcript, p.
2098, line 15 to p.
2099, line 9.)
This interchange began with Judge Hoyt requesting from Attorney Backus an addi t ional legal ci tat ion f or a SAPL cont ent ion to the RERP's f or Seabrook Station.
A subs tant ial por t ion of this interchange was ei ther deleted f rom the record or altered by order of Judge Hoyt to the official reporter.
There is attached hereto and made a part hereof, a transcript of a tape-recording of the interchange in question, taken f rom the tape-recording made by a reporter from one of the radio stations present in the hearing room on the date, WOKQ.
Although this transcript does not proport to be definitive, since it is merely a transcription of a tape-recording taken from the back of the room, it clearly demonstrates that the official reporter's record of the h
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proceedings, at pages 2098 and 2099 is incomplete.
In particular, it does not reflect the chairman's direction that the reporter "will strike that from the record" [ referring to a prior statement by Attorney Backus] or the attempt made by Attorney Backus to preserve his rights on the record.
Attorney Backus is informed, and believes, that the reporter has available for transcription the original stenographic notes of all proceedings in the hearing room that day, and can, if and when requested by the Board, prepare a full and complete trascript of the proceedings of that dat e, wi th par t icular ref erence to the ma t er ials omi t t ed at page 2098-2099.
The record should be corrected, so that there will be no doubt about the repor ter 's cer t i f ica t ion tha t the proceedings of the NRC on this date were held "as herein appears..."
Furthermore, since the record does not truly disclose what occurred, the record should be made to conform to the truth.
Federal Rules of Appellate Procedure, Rule 10(e)., provides an appropriate basis for this action.
It states:
"If any difference arises as to whether the record truly discloses wha t occur red in t he Dis t r ict Cour t, the di f f erence shall be submit ted to and settled by that Court and the record made to conform to the truth.
If anything material from either party is omitted from the record by error or accident or is misstated therein, the parties by s t ipulat ion, wi t h t he Dis t r ict Cour t ei ther bef ore or af t er the record is transmitted to the Court of Appeals, with the Court of Appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected...."
Although this Licensing Board is not a District Court, it of course has the duty of preparing an accurate record of the proceedings in order that the rights of the part ies to argue claimed errors of law to the Appeal Board, the Commission, and ultimately the Courts, can be preserved.
WHEREFORE, S APL mo v e s t ha t t h e Boa r d d i r e c t the reporter to transcribe the original notes of the full hearing of March 25, 1986, and that the record be corrected to refleet a full transcript ion of all statements made in the Prehearing Conference on March 25, 1986.
Respectfully submitted, SEACOAST ANTI-POLLUTION LEAGUE By its attorney, BACKUS, MEYER & SOLOMON
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Backus P. O.
Box 516 116 Lowell Street Manchester, N.H.
03105 Tel: (603) 668-7272 DATE:
April 10, 1986 I hereby cer t i f y that a copy of the within Seacoas t Ant i-Pollut ion League's Motion to Amend Record of Preharing Conference of March 25, 1986 has been sent this date, firs t class, pos tage prepaid, to all counsel on the service
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TRANSCRIPT OF WOKQ TAPE ROBERT A BACKUS (Backus)
SAPL 13 s ta tes the plans are insufficient to provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency as required by 10CFR 50.47(a)(1).
Specifically the plans neither discuss nor account for behavioral variations among designated emergency personnel that would impair or extinguish the ability to implement the plans.
I think, basically, the same points made in regard to 12 dealing with the general public's behavior would be applicable with regard to the behavioral characteristics of emergency workers.
I would say that at Seabrook the evidence would be that a large number of.the emergency workers to be counted on will be volunteers in the sense that the bus drivers and many of them will be volunteers, the police in many of the towns and firemen particularly are on a volunteer basis and so there is, I think a particular.
basis perhaps here for this contention as well, al though I recogize it has been lit igated elsewhere.
(J.lloyt)
Q.
It has been 1itigated elsewhere?
Can you tell me what cases you are referring to Mr. Backus?
(Backus)
A.
I thought there was litigation in this in the Shoreham case.
Q.
The Shoreham case is still ongoing.
I'm not sure.
A.
I mean in the licensing board decision, the, I don't have the case number for it, but the April
'85 licensing board decision is what I was referring to.
I could certainly provide a citation for that...
Q.
Mr. Backus, then are you including emergency workers in the impact of the meaning that you place on 0654?
Behavioral aspects?
Emergency workers?
I thought in the first contention you dealt with the general publie.
A.
That's right.
Q.
But you want to apply it to a special category as emergency workers?
A.
That is correct.
In the sense of whether or not the criteria requiring emergency workers to perform certain functions, whether that can be reasonably assured.
Q.
Do you have any legal basis for that at all, Mr.
Backus?
Where do you find that's required?
A.
I think its required as a necessary subfinding to make the ultimate finding required at 50.47(a)(1).
Q.
Mr. Backus, that wasn't my question.
Mr. Backus, I said where do you find a legal requirement for it?
A.
That's where I find it, 50.47(a)(1).
Q.
That's the only one you have now?
You have no other basis, legal basis for it?
A.
If I have any, I will further Q.
No s i r, you do i t now or its waived.
You were warned about that earlier.
A.
Well... Madam chairman, if I just might...
Q.
No sir, go ahead.
Mr. Backus, you are not going to make any s ta temen ts on the record.
Let's get on with the A.
Well Madam Chai rman, I would like to make one statement on the record with regard to that ruling.
Q.
Mr. Backus, please, we will continue, not on that basis, Mr. Backus.
A.
Madam reporter, will you please record that the chairman is ref us ing to permit me to make a s tatement
-about a
ruling she made without giving me an opportunity to speak and I will go on.
Q.
No sir, Mr.
Backus, you will not a n_d_th a.t_te po tte r will s t rike that f rom the record and you will cont inue or, Mr. Backus, we will consider you argumentative.
Now, do you wish to continue or do you wish to cease at this point.
A.
I wish to continue and I wish to...
(Hoyt)
Very well then....
(Backus) preserve my rights on the record.
(floyt)
No sir, Mr. Backus, you will continue the arguments only.
Apparently deleted.
Possibly altered in the official transcript.
Excernt f rom Transcriot of Tuesday, March 25, 1986.
0 209e 7
i your first contentien dealt with the general public.
Ycu 2
l want to apply it to a special category as emergency workers?
.i MR. EACKUS:
That's correct.
In the sense of 4
whetner cr not the criteria requiring emergency workers to 1
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perform certain functicns, whether that could be reasonably I
6 assured.
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7 JCCGI HCYT:
Cc you have any lecal. basis for that l
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I at all, Mr. Eackus?
Where do ycu find that is required?
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MR. EACKUS:
I tnink it's necessary to make an 9
10 ultimate find --
11 JUCGE HCYT:
Mr. Eackus, that wasn't my question.
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Where do you find a legal requiremant for it?
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13 MR. EACKUS:
That 's whr re I find it, 50.47 4
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JUDGE H0YT:
You have no other legal basis for I
16 it?
17 MR. BACKUS:
If I have any further I want to cite i
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18 I will give them to you promptly.
1.
4, 19 JUDGE HOYT:
That's right.
You referred to that 20 earlier.
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21 MR. EACKUS:
Madam Chairman, if I just might, I 4
22 want to make a point on the record.
23 JUDGE HGYT:
Mr. Eackus, you are not ccing to make I
24 any statements on the record.
Let's get on.
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25 MR.~EACKUS:
Madam Chairman, I would like to beg t
ACE FEDERAL. REPORTERS, INC.
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y;ur indulgence to make cae sta ement en tne reecrd in regard 9
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3 JUCGI HCYT:
Mc, sir, you will net.
You w;il 4
continue en, Mr. Eackus.
We will consider ycur argument.
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you wish to continue er dc you W:Sh tc cease at this pcin-?
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6 MR. EACKUE:
- wish tc continue and I w:Sh tc J2 bh j 7
preserve ny rights en the record.
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JU GE HCYC:
Mr. Eackus, you are tc centinue en
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the populace within the plume expecure pathway 13 EFC required by 10 CFR and plans do net provid'e for bilingual 4
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for the larce numbers cf French-speaking individuale I T f (
15 who are eften in the area in large numbers."
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16 Now, the Acclicant's cbjection to this went to h4 i }
17 taking scae official notice that French-speaking pecple j-e 3I la usually speak English and so forth, all of which we submit is 13 2
as a matter of creof.
e r However, we are aware at this point I.I 20 that we do have scae draft 7.essaces from New Hamerhire civil t -
a j g 21 defense that are printed bilingual 17, French and English, and
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22 we will, I think, want to reassess the status cf this 3
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Ij 23 centention after we have a chance to review these to see to I
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24 what extent they provide infor.mation to those who may not be h
25 fluent in English.
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ACE. FEDERAL REPORTERS, INC.
CERTIFICATE OF SERVICE AND SERVICE LIST Jose Fed. ph Flynn Helen Hoyt. Chm.
Thomas Dignan, Esq.
Emerg. Mgmt. Agey.
Admn. Judge Ropes & Gray Region I Atomic Safety & Lic Brd.
225 Franklin St.
J.W.
McCormack POCH USNRC Boston, MA 02110 Boston, MA 02109 Washington, DC 20555 Office of Selectmen Dr. Jerry Harbour Docketing & Serv. Sec.
Town of Hampton Falls Admin. Judge Office of the Secretari Hampton Falls, NH 03844 Atomic Saferv & Lie Brd.
USNRC USNRC Washington, DC 20555 Washington, DC 20555 Sher. vin E. Turk, Esq.
Dr. Emmeth A. Luebke Jane Doughty Office of Exec. Legl. Dr.
Admin Judge SAPL S RC Atomic Safety & Lic. Brd.
5 Market Street Wahsington, DC 20_.
USNRC Portsmouth, NH 03801 Washington, DC 20555 Phillip Ahrens, Esq.
Paul McEachern, Esq.
Ceorge Dana Bisbee, Esq.
Asst. Atty. General Matthew Brock, Esq.
Attorney General's OFF.
State House, Sta. i:6 25 Maplewood Ave.
State of New Happshire Augusta, ME 04333 P.O. Box 360 Concord, NH 03301 Portstrouth, Mi 03801 Carol Sneider, Esq., Asst.AG Diane Curran, Esq.
William S. Iord One Ashburton Place, Harmon, Weiss Board of Selectmen 19th Floor 20001 S Street NW Suite 430 Town Hall-Friend St.
Boston, MA 02108 Washingcon, DC 20009 Amesbury, MA 01913 Richard A. Hange, Esq.
Maynard Young. Chain:nn Sandra Gauvutis New Hampshire Civil Defense Board of Selectmen Town of Kingston ligency 10 Central Road Box 1154 Hampe & McNicholas Rye, MI 03870 East Kensington, MI 03827 35 Pleasant St.
Concord, NIf 03301 Edward 'Ihomas Mr. Pobert Harrison FBIA Pres. & Chief Exec. Officer 442 J.W. McCormack (PCCH)
PSCO Boston, MA 021C9 P.O. Box 330 Manchester, NH 03105 Rcterta Pevear State Rep.-Town of Harpt Falls Drinkunter Poad Hanpton Falls, Mi 03S44 Ap ril 10, 1986 The above have been sent first-class, postage prepaid a copy of the enclosed.
$s 5
Atobert A.
Backus i
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UNITED STATES OF AMERICA cgg[t -
NUCLEAR REGULATORY COMMISSION
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ATOMICSAFETYANDLICENSIN430g 16 Before Administrative dyp es:
4//);p7 Helen F. Hoyt, Chair C.
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Emmeth A. Luebke Jerry Harbour In the Matter of
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Docket Nos. 50-443-0L
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50-444-0L PUBLIC SERVICE COMPANY
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(ASLBPNo. 82-471-02-OL) 0F NEW HAMPSHIRE, et al.
)
(Offsite Emergency Planning)
)
(Seabrook Station, Units 1 and 2)
)
April 15,C ADIT 16 iggg 1986 SEU.'/
ORDER (Seacoast Anti-Pollution League Motion to Amend Record of Prehearing Conference Denied) 1.
Seacoast Anti-Pollution League (SAPL) on April 10, 1986 filed motion to amend record of conference held by this Board on March 25, 1986 by alleging that an unauthorized recording conflicts with the official reporter's transcript.
2.
The sole official transcript of the proceeding is that prepared by the official reporter designated by the Commission (10 CFR Q 2.750(a)). The Motion to Amend the Record is denied.
FOR THE ATOMIC SAFETY AND LIC iSING BOARD
.f R in!
e Helen F. Hoyt, Chairpersiiry')
Administrative Judge v
Bethesda, Maryland g
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Jose Asst.Gn.Cnsl.
Helen Hoyt. Chm.
Thomas Dignan, Esq.
Fed. ph FlynnAlgmt. Agcy.
Admn. Judge Ropes A. Gray Emerg.
500 C.St. So. West Atomic Safety & Lie Brd, 225 Franklin St.
Washington, DC 20472 USNRC Boston,-MA 02110 Washington, DC 20555 Office of Selectmen or. Jerry Harbour Docketing & Serv. Sec.
Town of Hampton Falls Admin. Judge Office of the Secretary Hampton Falls, NII 03844 Atomic Safety & Lic Brd.
USNRC USNRC Washington, DC 20555 Washington, DC 20555 Shenvin E. Turk, Esq.
Dr. Emmeth A. Luebk'e Jane Doughty Office of Exec. Legl. Dr.
Admin Judge SAPL USNRC Atomic Safety & Lic. Brd.
5 Market Street Wahsington, DC 20555 USNRC Portsmouth, NH 03801 Washington, DC 20555 Phillip Ahrens, Esq.
Paul McEachern, Esq.
George Dana Bisbee, Esq.
Asst. Atty. General Matthew Brock, Esq.
Attorney General's OFF.
State if0use, Sta. FG 25 Maplewood Ave.
State of New Hampehite Augusta, ME 04333 P.O. Box 360 Concord, NII 03301-Portsnouth, NI 03801 Carol Sneider, Esq., Asst. AG Diane Curran, Esq.
William S. Iord One Ashburton Place, llarmon, Weiss Board of Selectmen 19th Floor 20001 S Street NW Suite 430 Town Hall-Friend St.
Boston, MA 02108 Washington, DC 20009 Amesbury, MA 01913 Richard A. Ilampe. Esq.
Maynard Young, Chainmn Sandra Gauvutis few Hampshire Civil Defense Board of Selectmen Town of Kingston Agency 10 Central Road Box 1154 Hampe & McNicholas Rye, NI! 03870 East Kensington, NH 03827 35 Pleasant St.
Concord, N!! 03301 Alan Rosenthal, Q1ainmn Edward 'Ihomas Mr. Robert Harrison Atomic Safety & Lic. Appeal FEMA Pres, & Chief Exec. Officer Board 442 J.W. McConmck (FOCH)
PSCO US. NRC Boston, MA 02109 P.O. Box 330 Washington, DC 20555 Manchester, NH 03105 Gary Edles Roberta Pevear Atomic Safety & Licensing Appeal Board State Rep.-Town of Hanpt Falls Drinkwater Road U.S.NRC llanpton Falls, NI 03844 Washington, DC 20555 Hcward A. Wilber Atomic Safety & Licensing Appeal Board U.S. NRC Washington, DC 20555