ML20206D480
| ML20206D480 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/18/1986 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#286-723 OL, NUDOCS 8606200014 | |
| Download: ML20206D480 (79) | |
Text
ORG%L O
UNnEUSTATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO:
50-443 OL PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
(Seabrook Station, Units 1 & 2)
ORAL ARGUMENT i
i O LOCATION:
BETHESDA, MARYLAND PAGES:
1-78 l
DATE:
WEDNESDAY, JUNE 18, 1986 i
A 0
( u y u sis, # as u c>
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O OfficialReporters 444 North CapitolStreet Washington, D.C. 20001 (202)347-3700 NATIONWIDE COVERACE
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UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL PANEL 4
5
X In the Matter of 6
PUBLIC SERVICE COMPANY OF Docket No. 50-443-OL NEW HAMPSHIRE, et al.
7 (Seabrook Station, Units 1 & 2) :
X 8
9 Nuclear Regulatory Commission Fifth Floor Conference Room 10 4350 East West Highway Bethesda, Maryland 11 Wednesday, June 18, 1986 12 13 the oral argument in the above-entitled matter 14 convened, pursuant to notice, at 9:30 o' clock a.m.
15 BEFORE:
16 ALAN S.
ROSENTHAL, Chairman 17 Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission 18 Washington, D.C.
19 GARY J.
EDLES 20 Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission 21 Washington, D.C.
22 j
Hot'ARD A. WILBER 23 Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission l
24 Washington, D.C.
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APPEARANCES:
2 On Behalf of the Applicant:
3 THOMAS G.
- DIGNAN, JR.,
ESQ.
ROBERT K. GAD, III, ESQ.
4 Ropes and Gray 225 Franklin Street 5
Boston, Massachusetts 02110 6
On Behalf of the Commonwealth of Massachusetts:
7 CAROL S.
SNEIDER, ESQ.
Assistant Attorney General 8
Environmental Protection Service Department of the Attorney General 9
One Ashburton Place 19th Floor 10 Boston, Massachusetts 02108 11 On Behalf of the NRC:
EDWIN J.
REIS, ESQ.
12 ORESTE RUSS PIRFO, ESQ.
Office of the Executive Legal Director
(~)5
(_
13 Nuclear Regulatory Commission Washington, D.C.
20555 14 15 16 17 18 19 20 21 22 23 24 25 l
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PROCEEDINGS 2
JUDGE ROSENTHAL:
Good morning, ladies and 3
gentlemen.
4 We are hearing oral argument this morning on the 5
appeal of Francis X.
Bellotti, the Attorney General of 6
Massachusetts from portions of the Licensing Board's April 7
29, 1986 memorandum and order in the offsite emergency 8
planning of this operating license proceeding involving 9
Units 1 and 2 of the Seabrook Station.
10 The argument is governed by the terms of our June 11 9,
1986 order.
As provided therein, each side will be 12 allotted one hour for the presentation of its argument.
13 The Attorney General may, if he so desires, 14 reserve a reasonabJe portion of his time for rebuttal.
15 I will now call upon counsel for the respective 16 parties to identify themselves for the record, and I will 17 start with Ms. Sneider.
18 MS. SNEIDER:
Good morning.
I am Carol Sneider, 19 Assistant Attorney General representing Francis X. Bellotti, 20' the Attorney General for the Commonwealth of Massachusetts.
21 JUDGE ROSENTHAL:
Thank you, Ms. Sneider.
22 Mr. Dignan.
4 23 MR. DIGNAN:
Mr. Chairman and Members of the 24 Board, my name is Thomas G.
Dignan, Jr.
I am a member of 25 the firm of Ropes and Gray, 225 Franklin Street, Boston, ACE-FEDERAL REPORTERS, INC.
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With is my partner, Robert K. Gad,.III, and 1
'2 we represent the applicant, Public Service Company, et al.
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3 JUDGE ROSENTHAL:
Thank you, Mr. Dignan.
i; 4
Mr. Reis:
5 MR. REIS:
My name is Edwin J. Reis.
I. am 6
Assistant Chief Hearing Counsel with the NRC and I appear 7-for the NRC Staff.
With me this morning is Oreste Russ
.8 Pirfo, counsel for the NRC Staff.
9 JUDGE ROSENTHAL:
Thank you, Mr. Reis.
10 I might say to all counsel that although we have=
1-j
-11 allotted a cor.siderable amount of time for the presentation 12 of. argument, *:hore is nothing that I an aware of in the
,'(
13 United Stater Constitution, in the Atomic Energy Act or the 14 regulations of this Commission that require counsel to use 15-the full time allotted to them.
16 In that regard, I might note that this Board is i-l 17 quite familiar'with the relevant portions of the record as i
18 well as with the positions of the parties as set forth in i-19 their briefs.
For that reason, there is no necessity'to go-20 into a detailed background statement.
All counsel are i
)
21 encouraged to proceed immediately to the issues that are i
22 presented by the appeal, 23 As I hope that our memorandum and order of June 10 j
I 24 made clear to Mr. Bellotti's counsel, we are particularly 25 interested in the issue raised by both applicant and staff, L (:)
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to wit, whether this appeal will in fact lie at this time.
2 All right, Ms. Sneider, you may proceed with your 3
argument.
4 ORAL ARGUMENT OF CAROL S.
SNEIDER 5
ON BEHALF OF ATTORNEY GENERAL FRANCIS X.
BELLOTTI 6
COMMONWEALTH OF MASSACHUSETTS 7
MS. SNEIDER:
Good morning, Mr. Chairman and 8
Members of the Board.
9 I would first like to address the questions which 10 the Board submitted to the Attorney General last week 11 regarding his status in this proceeding.
12 To begin with I would to emphasize that Attorney 13 General Belldtti does represent the Commonwealth of 14 Massachusetts in this proceeding.
Thus, for purposes of 15 this appeal, the Attorney General and the Commonwealth of 16 Massachusetts should be deemed a single entity.
17 The Attorney General does acknowledge, therefore, 18 that he as admitted to participate in this proceeding as an 19 interested State.
20 Furthermore, the Attorney General concedes that he 21 has at no time relinquished that status of an interested 22 State and neither does he relinquish that status now.
23 Nevertheless, the Attorney General of the 24 Commonwealth of Massachusetts maintains that the River Bend 25 decision cited in this Board's order of June 10th is not r(
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controlling here, and the Attorney General does have a right 2
to appeal pursuant to Section 2.714-A.
3 In the alternative, the Attorney General maintains 4
that his appeal is one appropriate for review by this Board 5
under the provisions of Section 2.718-I and Section 2.785-B.
6 JUDGE ROSENTHAL:
Do I understand you, Ms. Sneider 7
to request at this point that in the alternative the Board 8
consider your appeal as a petition for directed 9
certification?
10 MS. SNEIDER:
Yes.
11 JUDGE ROSENTHAL:
And you are prepared therefore, 12 I assume, to address the standards for the grant of directed 13 certification that was set forth principally in our Marble 14 Hill decision?
15 MS. SNEIDER:
Yes, I am.
16 JUDGE ROSENTHAL:
All right.
17 MS. SNEIDER:
With respect to the River Bend case, 18 that case I believe is distinguishable from our appeal on at 19 least two points.
20 First of all, in River Bend the State of Louisiana 21 had fully participated in a prior portion of the hearing 22 and, second, the State was continuing to participate in the r
23 licensing hearing even though its contentions were 24 dismissed.
25 JUDGE EDLES:
Ms. Sneider, what was the extent of
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the Attorney General'c participation in the 1983 hearings, 2
please?
3 MS. SNEIDER:
In the 1983 hearings we submitted 4
rebuttal testimony on evacuation time estimates, adverse 5
weather time estimates for the summer months.
We filed 6
proposed findings of fact.
We also filed ---
7 JUDGE EDLES:
Excuse me.
Did you cross-examine at 8
the hearing?
l 9
MS. SNEIDER:
Yes, we did.
That entire issue, 10 however, Your Honor, was mooted this year when the State of 11 New Hampshire filed new emergency response plans.
12 JUDGE EDLES:
Let's set that aside for the 13 moment.
I still don't understand why you say, unlike River 14 Bend, you haven't participated in this particular case.
15 MS. SNEIDER:
I think I rest that on the fact that 16 the issue that we participated in has been mooted and that 17 the Licensing Board is starting all over again this year.
18 Had that not been the case, I wouldn't be distinguishing it.
19 JUDGE EDLES:
But presumably, as I understand it, 20 the Licensing Board is going to do one of two things.
21 Either it will conclude that the 1983 hearings will be the 4
22 basis for their decision if only the applicant has to submit 23 a time estimate or, if not, they will reopen the proceeding 24 and presumably you would then participate.
Isn't that 25 right?
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In other words, if the Licensing Board reopens the 2
proceeding, as you are suggesting, because what has happened 3
in the past is moot, why wouldn't the Attorney General then l
4 once again participate as an interested State and have all l
5 the rights and privileges?
6 MS. SNEIDER:
Well, contentions have been filed on 7
the new evacuation time estimate ---
8 JUDGE EDLES:
Contentions what, I am sorry?
9 MS. SNEIDER:
Have been filed by other parties, 10 which at this point the Board has rejected as premature 11 since the final evacuation time study was not yet complete.
12 The Attorney General has not filed any contentions
(_)
13 on that issue.
14 JUDGE EDLES:
But that is your election not to do 15 that.
You could have filed had you wished to presumably.
16 MS. SNEIDER:
Right.
17 JUDGE EDLES:
It seems to me though that you have 18 full participation rights.
That is what I am trying to get 19 at.
I mean you participated fully in the part of the 1983 20 proceedings that the Attorney General was interested in and 21 presumably you will participate in any upcoming hearing to 22 the extent you want to.
I mean no one can compel you come 23 in obviously, but to the extent the Attorney General wants 24 to, you will be in the case ---
25 MS. SNEIDER:
Well, the same as any other (v)
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intervenor has the right to file contentions in the future 2
even if at this stage of the hearing ---
3 JUDGE EDLES:
But that is why I don't understand 4
your argument that somehow you are different from the 5
interested State in River Bend because you aren't 6
parttripating in this case except as to your contention.
7 MS. SNEIDER:
Well, I think the main issue here is 8
the extent of the interest of the Attorney General in this 9
proceeding compared to the extent of the State of 10
-Louisiana's interest.
11 JUDGE ROSENTHAL:
Where do you find anything in 12 River Bend that would support such a distinction?
My 0)
(_
13 recollection of River Bend is that-it rested on the 14 prcposition that Louisiana still had participational rights 15 in the proceeding.
Now whether it chose to exercise them or 16 not was its own business.
That is in contrest to the 17 private intervenor or petitioner for intervention who loses 18 out on all of its contentions.
At that point that private 19 intervenor is out of the case.
4 20 Now isn't that the distinction that River Bend 1
21 drew?
I don't find anything in the decision, and I wonid 22 like you to point ---
23 MS. SNEIDER:
I think that is the distinction 24 drawn in River Bend.
I would say that our case is 25 distinguishable from that one &
ause, unlike the State of i
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Louisiana which had a very broad interest in that proceeding 2
and it was concerned where the power reactor was located in 3
its State, the Attorney General's interest in this 5
4 proceeding is a very narrow one and all issues ----
5 JUDGE ROSENTHAL:
That may be so, Ms. Sneider, but 6
I don't see anything myself in the River Bend decision that 4
j 7
makes that a factual difference, if it is one, of any 8
importance whatsoever.
9 The fact is the Attorney General is not out of 10 this proceeding.
The Attorney General may continue to 11
' participate to whatever extent he sees fit as a 2.715-C 12 interested State representative.
I 13 Now as far as I could-see, that is what provides a j.
14-distinction between the Attorney General here and private 15 parties, such as in Allensz Creek, for example, whose j
16 contention, although admitted in the first instance, was F
17 subsequently disposed of summarily against the intervenor,-
l 18
.and we said in that circumstance, because that terminated 19 the right of the intervenor to participate, an appeal would 20 lie.
21' Now it is up to the Attorney General to decide how l
22 much or how little he wishes to participate, but the fact of
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23 it is'though he continues to be a participant in this 24 proceeding or to have the right of participation.
25 Now if'there is something in River Bend that makes i
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a distinction turn on how much or how little the State 2
wishes to participat I would you to point it out to me 3
because I can't find anything in-the decision that would 4
support that distinction.
5-MS. SNEIDER:
I don't think-it is really an issue 6
of Attornep General's saying I just'want to participate on a 7
small point in this proceeding.
It is jusi'that his 8
interest'is only the protection'of Massachusetts' 9
residents.
I mean'he really doesn't have any reason to go
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10 in and litigate the adequacy of ---
11 JUDGE ROSENTHAL:
What was the State of Louisiana 12 endeavoring to protect?
I would assume the interests of.its 13 citizens, was it not?
li MS. SNEIDER:
Well, I mean necessarily the State 15 lof New Hampshire's concern here is much broader than the 16 State of Massachusetts'.
I mean in reality Massachusetts' 17 residents are on the New Hampshire beaches in the EPZ in 18 summer months when the Licensing Board has dismissed from-19 this hearing every contention concerning the adequacy of 20 protective actions for that population.
There are no other 1
21 issues left that th,e Attorney General could participate in.
22 JUDGE ROSENTHAL:
Well, we will get to that in a l.
23 moment because the staff tells us that in point of fact L
24 there are contentions in the case admitted by the Licensing 25 Board which cover a good deal lof the territory of the
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1 Attorney Gener61 s contention.
2 But before we get to your response to that, you 3
indicated there was another basis on which you would 4
distinguish River Bend and what is that?
5 MS. SNEIDER:
I think I have covered that basis.
6 JUDGE.EDLES:
The same basis, your interest, the 7
fact that you have this sort of narrow interest in the 8 I case.
Is that the second basis?
9 JUDGE ROSENTHAL:
Well, wait a minute.
The first 10 basis was what?
11 MS. SNEIDER:
Effectively I look at our past 12 participation, because that issue has been mooted, as no gm
(_)
13 participation.
We have not joined any other party's 14 contentions and we are not further participating.
15 JUDGE EDLES:
Let me ask you this.
Let me turn 16 the matter around a little bit.
Let's assume that we agree 17 with you,'that you are a party here to this case and not an l
18 interested State or something like that, and we then go on 19 and decide that you can appeal, but that the Licensing Board 20 was correct in rejecting the contention that you submitted.
i 21 Do I then assume that you are out of the rest of 22 the case and that you can't participate as an interested l
23 State in the rest of the caue?
I mean that is kind of the l
24 flip side of what you e.re saying, isn't it?
It sounds to me 25 a little bit like you would like it this way one time and
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-that way the other time.
That is kind of what I am getting i
2 at.
3 MS. SNEIDER:
Well, I think just like any other 4
-intervenor, as plans have yet to be submitted for the 5
Commonwealth of Massachusetts, the State of New Hampshire is.
J 6-still updating their plans as new materials get submitted 7
and are raised for hearing, and it may well be that'the I
8 Commonwealth would submit contentions on those issues.
4 9
JUDGE EDLES:
My problem is you started out your 10 argument by saying that the Attorney General represents the
+
11-Commonwealth of Massachusetts and that you are in essence 12 the same party.
I mean Attorney General Bellotti, lE 13-Commonwealth of Massachusetts, we are all one in the same.
i 14 MS. SNEIDER:
Right.
15 JUDGE EDLES:
But now what you are saying to me is 16 we are one in the same for the purposes.of the beginning 17 introduction of your argument, but when I get around to 18 deciding your appeal rights, I sort of have to separate you, l
19 and the Attorney is one party for the purposes of the appeal i.
20 that you are now bringing, but if you lose the appeal, I i
l..
21 think you would argue you still want to stay in the case as 22 an interestad State to do whatever you are going to do in 23 the next weeks and months as the plans get filed and the i
i 24 contentions grt' served up and things like that, p
25 A*t i right or wrong?
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MS. SNEIDER:
No, I could see us filing i-2 contentions just as any other intervenor file ---
3 JUDGE EDLES:
But you wouldn't be an intervenor.
4 That is my point.
If I accept your thesis, which is that 5
you are entitled to appeal at this point because if we kick 6
your contention out you are out of the case, then you are no 7
longer an intervenor for the purposes of the rest of the 8
case.
I mean you are gone.
Your one contention was 9
rejected, and properly rejected let us assume for argument's 10 sake, and you are gone.
You'go back to Boston and you don't 11 show up at the hearings.
12 MS. SNEIDER:
Right at this point we have no
)
13 intention of showing up at the hearings.
I mean there just
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14 are no issues left that ---
15 JUDGE EDLES:
Well, what happens if ---
16 MS. SNEIDER:
I mean I am not saying that there
[
17 won't be issues later on that won't interest the Commonwealth, but I don't see where there is a distinction
.18
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19 between that and any other intervenor who would have a right f
20 to appeal now even though it may later file contentions on 21-later submissions.
22 JUDGE EDLES:
Let me just ask you this.
There are 23 contentions already admitted in this case for litigation L
24 some time in the future on sheltering of the beach 25 population.
Am I right on that?
As I read what the 2
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in, and not your contentions, but other parties which deal 2
with sheltering matters ---
3 JUDGE ROSENTHAL:
The Coalition, Saple and I think 4
one of the towns, South Hampton.
5 MS. SNEIDER:
In a very narrow sense.
6 JUDGE EDLES:
In other words, if you are out of 7
this, you would not want to participate and litigate the 8
sheltering issue in the rest of the case?
9 MS. SNEIDER:
Well, in fact, I think the staff's 10 assertion that this Board will litigate the adequacy of 11 sheltering of the beach population is a bit misleading.
The 12 New Hampshire plans provide that the beach population will 13 be directed not to shelter but to evacuate even when the 14 general population is directed to shelter.
15 JUDGE EDLES:
Let me -- I am sorry.
Go ahead and 16 finish.
I didn't mean to interrupt.
17 MS. SNEIDER:
I mean that is No.
1.
18 JUDGE EDLES:
Just help me on this.
The thrust of 19 your contention, as I understand it, is that the plans 20 should require some form of evacuation or sheltering or some 21 combination which will protect the people on the beach.
22 MS. SNEIDER:
Correct.
23 JUDGE EDLES:
I mean however we say that, that is 24 what you were talking about here.
What you are saying I I
25 think is that there is no plan for sheltering so that is not ACE-FEDERAL REPORTERS, INC.
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going to help anybody and, second, you can't get these folks 2
out of there on time or within a reasonable time.
So there 3
is essentially no guarantee that these people are going to 4
be protected at all.
Am I roughly stating ---
5 MS. SNEIDER:
That is exactly right.
6 JUDGE EDLES:
You have already been in there 7
litigating maybe not a hundred percent to your satisfaction, 8
but you are already in there litigating something on the 9
evacuation time estimates, and I assume you have told the 10 Licensing Board why that all stinks and it is not going to 11 work and it is going to take 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> or whatever.
12 Am I roughly right on that, that the evacuation
()
13 time estimates were no good I mean you told the Board in 14
'837 15 MS. SNEIDER:
In certain instances.
16 JUDGE EDLES:
Okay.
You could stay in the case 17 now tell the Board that sheltering is not an option.
It is 18 not included in the plan.
19 MS. SNEIDER:
That was part of our contention that 20 was rejected.
21 JUDGE EDLES:
I am not asking your contention.
I 22 am getting at the contentions is already in there.
You 23 could participate in the case and tell the Board sheltering 24 is no good.
It is a non-option.
Couldn't you do that?
25 MS. SNEIDER:
Except the Board has already ACE-FEDERAL REPORTERS, INC.
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indicated how it is going to treat this issue in its opir. ion 2
of April 29th.
3 JUDGE EDLES:
Well, I am not sure what exactly the
.4 Board did there, but to the extent they don't treat it 5
correctly, you can come back to us at the end of the case 6
and tell us if they made a mistake; isn't that right?
7 MS. SNEIDER:
That is correct.
8 JUDGE EDLES:
Forgetting now the sort of 9
theological arguments that we have been debating here over 10 your standing and all of that stuff, how are you hurt by all 11 of this?
I mean you were in on the ETE's and you could be 12 in on the sheltering and you are going to be able to argue 13 to the Board roughly what I said before, that this plan is 14 no good because we are going to have bodies on the beach 15 here.
Can't you argue that to the Board?
Now maybe they 16 won't accept that argument, but you can then come up to us 17 and tell us that they should have; isn't that right?
18 MS. SNEIDER:
Well, they have already indicated 19 what issues they will hear on sheltering.
20 JUDGE EDLES:
Let's assume that is right.
They 21 have tentatively told you that they are not really 22 interested in whatever you say.
In due course they will 23 litigate something about sheltering, right?
24 MS. SNEIDER:
I think the Board's decision shows I
25 that ---
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JUDGE EDLES:
They will use the word somewhere in 2
that partial initial decision that they serve up.
I guess 3
they will address it in some way.
4 MS. SNEIDER:
It will look to see whether or not 5
sheltering exists in order that the State of New Hampshire 6
can make a decision as to whether to shelter or evacuate, 7
but it will not condition licensure of the plant on the 8
availability of sheltering.
9 JUDGE EDLES:
Well, all right, but I don't know 10 what they are going to do.
But my only point is can't you 11 in due course come up to us and tell us they have treated 12 this all wrong.
They have looked at it wrong and they have 13 looked at sheltering incorrectly, the evacuation times are 14 no good and we are going to have bodies laying on the beach 15 here.
Can't you tell us that, you knew, six months from now 16 or a year from or whenever the case is over?
17 MS. SNEIDER:
Well, I think this is what gets to 18 maybe perhaps the discretionary right of appeal or what i
19 warrants discretionary appeal by this Board because I think _
a 20 the Board's decision does pervasively affect the structure 21 of this entire hearing when they are not considering the 22 adequacy of protective response options.
23 We could appeal that later, and what it would 24 require then I believe is the holding of an entire new 25 hearing even on the contentions that have been admitted.
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JUDGE EDLES:
You are absolutely right.
2 JUDGE ROSENTHAL:
Have you familiarized yourself 3
with the decisions of this Board dealing with dire,cted 4
certification in the context of the refusal of a Licensing 5
Board to admit particular contentions?
6 MS. SNEIDER:
Yes, I have.
7 JUDGE ROSENTHAL:
Well then I take it you are 8
aware of the fact that we do not grant directed 9
certification to review on an interlocutory basis the 10 exclusion of contentions even though, as you have just 11 correctly pointed out, if that exclusion was improper it may 12 mean that tr4e hearing will have to be reopened.
(
13 Now what distinguishes your case from all of those 14 other cases in which we have told intervenors that we will 15 utilize the directed certification procedure to review on an 16 interlocutory basis the rejection of a contention at the 17 threshold?
18 MS. SNEIDER:
The Licensing Boarf.'s rejection of 19 our contention goes far beyond just the Attorney General's 20 contention.
Their treatment of the emergency planning 21 regulations where they have completely dismissed any 22 consideration, the adequacy of protective response actions 23 does pervasively affect this entire hearing.
24 JUDGE ROSENTHAL:
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the manner in which it has approached the emergency planning 2
issues, but that doesn't mean that the Licensing Board' 3
ruling has a pervasive effect upon the basic structure of 4
the proceeding, does it?
5 MS. SNEIDER:
As to emergency planning ---
6 JUDGE ROSENTHAL:
Boards are frequently wrong in 7
scoping issues at the outset of the proceeding, and that is 8
why you have eventually a right of appeal.
But we don't get 9
into the business, at least we haven't up to this point 10 gotten into the business of deciding on an interlocutory 11 basis whether a Licensing Board is scoping out the issues l
12 before it correctly or incorrectly.
We just don't do it.
13 MS, SNEIDER:
Well, I think -- I mean the 14 difference is is it is just not that it is one substantive 15 area that the Board has excluded from hearing when it 16 rejects Attorney General Bellotti's contention.
Every 17 contention that is admitted to the proceeding is being 18 judged against the wrong standard.
19 JUDGE ROSENTHAL:
But you can't raise that before _
20 us.
All that you can come before us on is the rejection of 21 Attorney General Bellotti's contention.
If the Board is 22 mishandling the contentions of other parties, it is those 23 parties that would have to ask for a directed certification 24 and up to this point at least they haven't done so.
l 25 MS. SNEIDER:
Well, I just feel that the Board's I
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discussion of Attorney General Bellotti's contention at 2
least shows what their interpretations of the regulations 3
are and indicates the pervasiveness.that this would have on 4
the hearing.
5 JUDGE EDLES:
Ms. Sneider, it seems to me that I 6
can understand the frustration that you may have over the 7
manner in which the Licensing Board is approaching some of 8
these issues, you would prefer a more expansive approach, a 9
different approach.
10 But I guess what Chairman Rosenthal is saying is 11 that under our jurisprudence in order to invoke our 12 jurisdiction at this poAat, whether by right or as a matter 13 of discretion, you have sat to show something more than 14 simply they are making all kinds of mistakes downstairs, and 15' when it comes back up here, Appeal Board, you are going to 16 have to simply throw out the entire initial decision and 17 send it all back and we are going to be going through 18 another_ year or two of litigation.
19 I mean that is roughly what I hear you telling me, 20 and I guess the simple answer to that is under our 21 jurisprudence we just don't look at those things on an 22 interlocutory basis.
Do you and I agree on what the 23 jurisprudence is?
24 MS. SNEIDER:
I agree that I have a hard time 25 finding a situation where such issues were heard.
It is my OG ACE FEDERAL REPORTERS, INC.
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feeling that what the Board here has done goes beyond the 2
ordinary situation that when they misinterpret the basic 3
emergency planning regulation and actually quote the 4
regulation omitting the word " adequate," they have expressly 5
excluded any consideration of adequacy.
That is what the 6
Attorney General maintains, and that is unusual.
7 JUDGE ROSENTHAL:
If the Attorney General is 8
correct that the Licensing Board has misconstrued materially 9
the Commission's emergency planning regulations, as Mr.
10 Edles has pointed out, the Attorney General will have that 11 opportunity to persuade us of that fact, and it is going to 12 be Mr. Dignan's client that is going to pay the piper if the O(,)
13 Attorney General is successful in persuading that that is 14 the case.
15 I appreciate the fact that interlocutory review 16 can in the long run save parties time, effort and grief, but 17 this Commission does have a rule, as you know, which 18 precludes as a general matter interlocutory appeals, just as 19 the Federal Courts has a general proposition to preclude 20 interlocutory appeals.
21 What it really comes down to is that the context 22 of this case, Mr. Dignan and his client will have to assume 23 the risk that this Licensing Board's construction of the 24 regulations and of the word " adequate" is correct, because r
25 if it is not correct, as you state, the result,nay be that ACE-FEDERAL REPORTERS, INC.
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after this Licensing Board has rendered an initial decision, 2
assuming for the purposes of discussion, in favor of the 3
applicants, we may conclude that the record has to be 4
reopened and back to square one.
5 MS. SNEIDER:
Well, I just wonder if it is Mr.
6 Dignan's clients that assume the risk or if it not really 7
the ratepayers, many of whom are located in the 8
Commonwealth.
9 JUDGE ROSENTHAL:
The point of it is that as long 10 as this Commission has a rule, as it does, which precludes 11 interlocutory appeals, whoever it is that is going to 12 ultimately that risk simply has to assume it.
13 Again, we have indicated over the cource of 11 14 years since Mr. Dignan himself, I think it was, that got us 15 to establish this directed certification procedure that we 16 are going to exercise it with great restraint, and I think 17 Mr. Dignan would agree we have done that because I think we 18 turned down his petitions for directed certification.
19 Now everything you say is quite true, but our 20 jurisprudence simply has it that we are not going to look at 21 the rejection of contentions through the vehicle of directed 22 certification.
23 If the parties are grieved by the rejection of its 24 contentions at the threshold and that grievement remains 25 when the ID comes down, that party then can tell us all about it ACE-FEDERAL REPORTERS, INC.
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on appeal.
2 JUDGE EDLES:
Ms. Sneider, can I ask a question 4
3 slightly different to get to your point on the Licensing 4
Board's treatment of adequacy.
As I read it, Mr. Dignan 5
made an argument to them that really what was required, j.
}
6 giving the siting decision that had been made years and 7
years ago was simply a best efforts on the applicant's part.
8 As I. read.the Licensing Board's decision, they 9
rejected that argument at least at this stage of the case; 10 1sn't that correct?
i l
11 MS. SNEIDER:
They rejected that this was a siting i
12 issue.
13 JUDGE EDLES:
Right. In other words, they were at l
14 least saying, as I read their opinion, although it is fairly 1
15 shorthand, they are at least saying that the applicant has i
16 to comply with the emergency planning regulations, that the j
17 earlier siting decision isn't dispositive of the emergency l
18 planning rules.
Is that roughly your understanding?
I 19 MS. SNEIDER:
That is correct.
1
~
(
20 JUDGE EDLES:
All right.
Now the emergency l
i 21-planning rules require the Licensing Board to make a finding 22 that there be reasonable assurance of adequate protection i
23 for the public.
If that is so, why do you read the I
i 24 Licensing Board's decision as suggesting that they are not l
25 l
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likely to get to that issue?
2 MS. SNEIDER:
Well, if I could just quote from 3
another contention which the staff raised as one that -- no, 4
excuse me.
This is one eheltering contention that was 5
rejected by the Board.
I think the Broad makes clear what 6
it is going to do with respect to this issue.
7 This contention was filed by the Town of South 8
Hampton and states that the RERP for South Hampton fails to 9
provide reasonable assurance ---
10 JUDGE EDLES:
I am sorry, the what for South 11 Hampton?
12 MS. SNEIDER:
The radiological emergency response 13 plan.
14 JUDGE EDLES:
Oh, RERP.
15 MS. SNEIDER:
--- fails to provide reasonable 16 assurance because contrary to NUREO 0654 J-10-A, there has 17 been no provision made for sheltering residents at the 18 Tewksbery Pond campground despite a peak population of 19 p),500.
20 The Board rejected the contention and it stated 21 whether sheltering facilities are physically adequate is not 22 an appropriate subject for litigation.
What is valuable to 23 decision-makers is to know what facilities, if any, are 24 available on which to base decisions to shelter or evacuate 25 in order to reduce inhalation doses during potential passage ACE. FEDERAL REPORTERS, INC.
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of airborne radioactivity.
2 JUDGE EDLES:
Where is that?
Where are you 3
reading from?
4 MS. SNEIDER:
On page 36 to 37 of the Board's 5
April 29th decision.
They go on to say this knowledge does 6
not require litigation.
Even if there were no sheltering 7
facilities of any kind at a campground, we would not 8
condition the issuance of a license upon construction of a 9
shelter >
10 JUDGE EDLES:
So that sort of cuts in favor of Mr.
11 Dignan's argument.
In other words, the Licensing Board at 12 two points in its decision roughly came out on opposite O(_j 13 ends.
I mean that is kind of what you are telling me here, 14 and that may all be right and they may be forced to rethink 15 this whole thing down the road.
I am not denying that what 16 you are reading to me sort of hints at least that they have 17 bought Mr. Dignan's notion that all you do is have to make a 18 best effort and no heroic efforts here to help anybody by 19 building shelters.
20 I am inclined, without having looked at it 21 further, to agree, but when they get around to your 22 contention they then expressly reject Mr. Dignan's argument 23 that the siting rules predetermine, so to speak, emergency 24 planning.
25 But they did admit several sheltering O-ACE FEDERAL REPORTERS, INC.
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contentions.
What is going to be litigated under those 2
admitted sheltering contentions?
3 MS. SNEIDER:
The way I read the Board's decision, 4
the only issues that will be litigated are what sheltering 5
exists and whether there is capacity to shelter people, but 6
that is only insofar as that will be the basis for the State 7
of New Hampshire to be able to make a determination in the 8
event of an accident or whether to choltor or evacuate, 9
JUDGE EDLES:
Okay.
But let's assume that the 10 30ard finds that there is zero sheltering there.
So the 11 only option is evacuation.
And let's assume that they then 12 decide that the correct evacuation time estimate is 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> O)
\\m 13 to get people off the beach just for purposes of argument.
14 They would then have to ultimately decide I guess 15 whether a no shelter 15-hour evacuation time constitutes 16 adequate protection of the beach population; isn't that 17 right?
18 MS. SNEIDER:
Well, I think that is precisely the 19 type of issue presented by our contention.
We are saying 20 there are long evacuation times.
We said given this whole 21 range of evacuation estimates that different parties have 22 come up with, they are all long, and there is no 25 sheltering.
I mean the plans expressly say they are not 24 going to chelter the beach people.
We just say that is not 25 sufficient, and the Board rejected the contention.
O V
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JUDGE EDLES:
Well, but that goes kind of to the 2
merits, and maybe ultimately you might be able to persuade 3
either the Licensing Board or us that you are right, that 4
zero sheltering in a 15-hour evacuation time just ain't 5
adequate protection within the meaning of our rules.
Maybe 6
you can persuade either the Licensing Board or us of that.
7 But isn't that the kind of thing, apart form the 8
management of the case problem, I mean the fact that we 9
would have to go back and retry the whole case on different 10 ground rules, isn't that the kind of argument that you could 11 make to us at the end of the case, that they have missed it 12 and they have completely screwed up the regulations on what
()
13 is required?
14 MS. SNEIDER:
Well, if the issue isn't heard now, 15 we will be making that argument at the end of the case.
16 JUDGE EDLES:
We may be here again you and I in a 17 year or something.
4 18 (Laughter.)
19 JUDGE WILBER:
Ms. Sneider, you said that the 20 earlier evacuation time estimates are moot now.
Did I 21 understand you to day that?
22 MS. SNEIDER:
Actually the commonwealth of 23 Massachusetts commissioned that a new evacuation time study 24 be performed.
That study was adopted by the State of New 25 Hampshire, and I believe the final draft of that study was ACE. FEDERAL REPORTERS, INC.
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just submitted to the Board.
2 JUDGE WILBER:
But has the Board acted on this?
I 3
thought there was a condition put-on those contentions that 4
dealt with evacuation time that they were premature pending 5
a review of this.
6 MS. SNEIDER:
Right.
7 JUDGE WILBER:
Have they acted on that?
8 MS. SNEIDER:
It is my understanding that they did 9
not admit the contentions at that1 time.
At that time the 10 State of New Hampshire, having decided which study it was 11 going to be using, it has now decided that it will be using 12 the KLD study and not the original study flied.
()
13 JUDGE WILBER:
But now has the Board done anything 14 since that has happened?
15 MS. SNEIDER:
No, but the Board has determined 16 that it has jurisdiction of that evacuation time study 17 issue, and it is my understanding that those contentions, 18 that people would be able to file those contentions once
'19 that evacuation time study was completed.
20 JUDGE EDLES:
Including the Attorney General.
21 MS. SNEIDER:
That is correct.
22 JUDGE WILBER:
But you did not file any, is that 23 also correct?
You haven't filed any?
24 MS. SNEIDER:
No, we haven't.
25 JUDGE ROSENTHAL:
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your capacity as an interested State to file contentions as 2
any of the admitted 2.714 intervenors do: is that correct?
3 MS. SNEIDER:
That is correct.
4 JUDGE ROSENTHAL:
So that your participational 5
rights do not differ in any respect from those of any of the 6
2.714 intervenors; is that correct?
j 7
MS. SNEIDER:
Yes.
]
8 JUDGE ROSENTHAL:
All right.
Now suppose that one i
i 9
of those intervenors, let's say the New England Coalition, 10 had had certain of its contentions rejected, just as you 11 have had a contention rejected, but not all of them and they i.
12 are still in there.
13 MS. SNEIDER:
Yes, it was the only contention that 14 has been admitted for the Attorney General.
15 JUDGE ROSENTHAL:
I understand.
But if the i
16 Coalition came to us and complained that they had some very r
17 important contention which was rejected, clearly they 18 couldn't come to us under 2.714-A, could they?
19 MS. SNEIDER:
No, they couldn't.
20 JUDGE ROSENTHAL:
All right.
Now under the prior 21 jurisprudence they wouldn't be able to come to us with much 22 chance of success on a petition for directed certification, 23 could they?
j 24 MS. SNEIDER:
There is not much chance of i
25 success.
Why is your' situation any different?
As you have 1
i 1
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marysimons 1
just agreed, your participational rights are just as their's 2
are.
You can put in contentions, you can put in evidence, 3
you can cross-examine witnesses for other parties, you can 4
file proposed findings of fact and conclusions of law and 5
you can come up a the end of the proceeding if dissatisfied 6
with the result and tell us all about it.
7 So how as a practical matter does your situation 8
differ from that of the New England Coalition or any of the 9
other private parties that have been admitted under 2.714-A?
10 MS. SNEIDER:
Well, I think a better comparison 11 would be made between ourselves and a party who had standing 12 to intervene, but their one contention was rejected.
They 13 could later file contentions on new submissions.
They would 14 have the right to do so, and maybe those would be admitted, 15 and maybe they would participate in the future.
16 But I believe under the regulations they would 17 have a right to appeal the Board's rejection at this time of 18 the one contention they had filed.
19 JUDGE ROSENTHAL:
Only if they were thrown out of 20 the proceedings and only if they lost all participational 21 rights, because that is what happens to the private 22 intervenor whose single contention is rejected or as in 23 Allens Creek is summarily disposed of.
24 As we pointed out in the Allens Creek decision, 25 that intervenor leaves the proceeding and has no further ACE-FEDERAL REPORTERS, INC.
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participational rights at all, and that is why ---
2 MS.'SNEIDER:
But can't that intervenor later seek 3
to re-enter the proceeding if there is a new basis for ---
4 JUDGE ROSENTHAL:
No.
An intervenor has to start 5
all over again with a new contention.
6 MS. SNEIDER:
Correct.
7 JUDGE ROSENTHAL:
And who knows whether that 8
petition will be admitted.
But the Attorney General 9
continues to be a full participant in all of these things 10 that I laundry listed, and that again without meaning to 11 replow ground that I plowed before, I think if you look at 12 River Bend, and I think if you look at Allens Creek, I think
(
13 you will find that the distinction between the ability to 14 appeal and the ability not to appeal at an interlocutory 15 stage of the proceeding, that the distinction hinges 16 entirely upon whether the result of the order which the 17 litigant seeks to challenge is that that litigant is out of 18 the proceeding altogether.
19 And if the litigant isn't out of the proceeding i
20 altogether, as the Attorney General plainly isn't, it is not 21 appealable at that time.
What you have to do is wait until 22 the proceeding is over and then you have your appellate 23 rights.
24 Do you have anything further?
25 MS. SNEIDER:
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to add.
2 JUDGE ROSENTHAL:
You will have some time for 3
rebuttal.
4 MS. SNEIDER:
Thank you.
5 JUDGE ROSENTHAL:
Mr. Dignan.
6 ORAL ARGUMENT OF THOMAS G. DIGNAN, JR.
7 ON BEHALF OF THE APPLICANT, PUBLIC SERVICE COMPANY ET AL.
8 MR. DIGNAN:
Mr. Chairman and Members of the 9
Board, it is my privilege at this time to argue the cause 10 for the applicants in this matter.
11 The staff counsel and I have divided the time, 30 12 minutes apiece, if that much time is necessary.
(
13 If I heard my learned friend from the Attorney 14 General's office, the Attorney General now concedes that his 15 participation has been under 2.715-C.
As I understand the 16 distinction that now is being urged upon the Board, it is 17 that the only issue that the Attorney General had 18 participated in is now moot.
19 I disagree with that assartion.
The fact that 20 ETE's have been filed now in the record and that the State 21 of New Hampshire has adopted them is not something that the 22 applicant at least believes has mooted the prior hearing on 23 this matter.
24 JUDGE EDLES:
Where exactly now have they been 25 filed?
Go over that for me.
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MR. DIGNAN:
DMunt has happened is a new set of 2
ETE's, the so-called KLD ETE's, Judge Edles, have been 3
submitted to FEMA by the State of New Hampshire, and indeed 4
already some contentions have been filed with respect 5
thereto by certain parties in the case.
The State of New 6
Hampshire has also reflected its intention to adopt those 7
ETE's into their emergency plan.
8 Nevertheless, there remains out as far as the 9
applicant is concerned a legal question at the threshold, 10 and that legal question is whether you can litigate KLD 11 ETE's at all>
12 JUDGE EDLES:
I understand that.
The KLD ETE's
)
13 include ETE's for the beach populations?
f 14 MR. DIGNAN:
Yes.
It is a full set of ETE's that 15 cover the entire plume EPZ.
l 16 JUDGE EDLES:
And what is the status of the r
17 Licensing Board's disposition of the legal argument?
I know i
18 they called for briefs on it.
Have they done anything with 19 that?
i 20 MR. DIGNAN:
They have not.
Now what had happened 21 is they called for briefs on it and it was briefed by us.
l 22 Since the new contentions and the new ETE's have been filed, 23 we have in answerir.g those contentions pointed out we have 24 briefed this threshold issue and believe the contention 25 should be excluded.
f CE)
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The Licensing Board has yet to rule on two things, 2
whether they are going to admit those contentions or, if 3
they do, what the status of the old ETE's is.
But to say 4
that at present as we stand here in this room the issue on 5
which the Attorney General participated in 1983 is moot is, 6
I respectfully suggest, inaccurate.
It is not yet moot.
7 Maybe it will become moot.
8 JUDGE EDLES:
That is for the reason that the 9
Licensing Board may well decide that yours were the only 10 ETE's that had to be litigated and they will not allow 11 litigation on these new ones and therefore they will decide 12 the case ultimately on the basis of the 1983 record.
13 MR. DIGNAN:
And that is the position we urging 14 upon you.
15 JUDGE ROSENTHAL:
What is the relevance of that to 16 the issues before us?
17 MR. DIGNAN:
Well, the only relevance being that 18 to the extent that the Attorney General is relying on the 19 concept that its only issue of participation was moot.
I am 20 pointing out to the Board it is not moot.
21 JUDGE ROSENTHAL:
Well, supposing it was moot, 22 would that make a difference?
23 MR. DIGNAN:
I do not think it would.
I was going 24 to say that I believe that River Bend stands for a very 25 simple proposition, and that proposition on the bottom line ACE FEDERAL REPORTERS, INC.
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is that if you have the right and the ability to use 2.715-C 2
because you are a State, a municipality or any other group, 3
that means essentially you never have the right to come up 4
on 2.714-A.
5 And I point out that at page 611 of that decision, 6
Note 8, I believe there was essentially a ruling to that 7
effect.
The Appeal Board said, "Thus, the Licensing Board's 8
action cannot be analogized to the denial of an intervention 9
of a private person.
Such a denial results of course in the 10 petitioner being barred from taking any part in the 11 proceeding other than the making of a limited appearance."
12 It seems to me that that amounts to a decision n()
13 which is saying if you have 2.715-C available to you, you 14 always have the right of participation.
Frankly, 2.714-A 15 simply is not available to them.
16 JUDGE EDLES:
But what that would mean is that the 17 Commission when it conferred the special status on a State 18 deprived them of certain rights that they have.
I didn't 19 really read it that way.
I mean they would otherwise have a 20 right like anybody else to come into a case as an 21 intervenor, and if the final decision was rendered as to you 22 early on in the proceeding, you wouldn't normally have the 23 right to come up on appeal and argue that.
24 What you are saying to me is that by purporting to 25 give them all of these fancy rights, that they don't have to O
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file contentions and they can get in and stay in forever, s
2 what the Commission also did was deprive them of the right.
3 to come up early on in the case where, for example, they 4
would have preferred to participate as a normal intervenor.-
5 MR. DIGNAN:
Judge Edles,'I think there are.two 6
answare to that question.
The first is that the conferring 7
of the right to participate without making a statement or.
8 taking a position was in existence long before the 2.714-A 9
appeal was available.
That is a relatively new part of the 10 regulations.
It came in indeed after the 1972 revision of 11 the Rules of Procedure.
It came in in December of '72 after 12 the the overall revision.
()
13 The right of a State to participate without taking 14 a position has been around at least as long as I have had 15 the privilege of practicing before this Commission and I 16 think considerably before that, and I think it was something 17 that came in extremely early and indeed under the Atomic 18 Energy Act's direction.
19 So the Jequence is that what they did, if you 20 will, is fail to give the States that had this special 21 privileged position a privilege that they did give to 22 private parties, a
l 23 JUDGE ROSENTHAL:
Mr. Dignan, if I recall the
(
4-24 record correctly here, the Attorney filed a petition for 25 leave to intervene under 2.714.
When the contentions that ACE FEDERAL REPORTERS, INC.
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were served up in support of that petition were rejected, 2
the Licensing sua sponte gave Massachusetts the status of a 3
2.715-C participant?
Am I correct in my recollection of the 4
status?
5 MR. DIGNAN:
I believe that is an accurate 6
representation.
7 JUDGE ROSENTHAL:
Now could Massachusetts at that 8
time have said to the Licensing Board we didn't ask for 9
2.715-C status, we don't want it, we filed a petition under 10 2.714 because that is the status we wanted, and if we had 11 wanted to 2.715-C status, we would have asked for it and 12 declined to accept the 2.715-C status and appealed at that
(~)
i
'N )
13 time the defacto denial of its 2.714 petition?
Could it 14 have done that?
15 MR. DIGNAN:
In my judgment in that hypothetical i
16 set of facts it still could not have appealed because I 17 think River Bend stands for the proposition I stated, which 18 is that if you have available to you 2.715-C you cannot be 1
3 19 barred from participation.
20 JUDGE ROSENTHAL:
With due respect, I don't agree 21 with that construction.
Bear in mind that in River Bend, as 22 the Appeal Board pointed out, the State had specifically 23 asked for 2.715-C status.
So everything we said in River 24 Bend was in the context of a State having requested that 25 status and been given it.
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I wouldn't myself, and we don't need to reach that 2
question here because the Attorney General availed himself
~
3 of that status when it was conferred upon the Commonwealth, 4
but 'I would have the same kind of concerns that Mr. Edles 5
has if, as you suggest, a State can have thrust upon it
~
6 iSvoluntarily 2.715-C status.
7 MR. DIGNAN:
I don't think it can have it thrust
~ ~
8
-upon it involuntarily obviously and, as you say, I am not 9
sure we have to reach it in this case.
n.,
5-10 JUDGE ROSENTHAL:
No, we don't.
But in herms of fairness, which is I 11 MR. DIGNAN:
12 think the basic question Judge Edles is bringing up, what is
)
13
. unfair?
They are conferred with a power that.no other party 14' had.
They may come in, participate-fully, never take a 15 position until the very end, l'f then, they are in a position 16 to adopt or not adopt con'ientions.and they are free'under
^
17 the prior rulings of this Board to exercise every appellate 4
18 right and they are free also to inject issues in later, i
19' although they must take the rest of the case as they find e
20 it.
21 That is a pretty large set of privileges, and to 22 say that the) price of that privilege being conferred upon 3
23
-you is that you will not have the same interlocutory rights
~
24 of appeal,of a private citizen I don't think is an unfair
^
ruling at al,I.
I
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JUDGE ROSENTHAL:
Let me ask you this. What is 2
your response to Ms. Sneider's alternative suggestion that-3 we review the Licensing Board's rejection of the Attorney 4
General's contention under our discretionary authority to 5
entertain a petition for directed certification?
6 MR. DIGNAN:
With respect to-that, I would like to 7
start with a threshold proposition.
We of course did not
'8 brief this in our brief, and the reason we'did not brief it 9
in our brief is they never asked for it until they filed on 10 the same day we filed our brief, their reply to the Board's 11 order.
12 As the Chairman indicated, I do feel a certain
)
13 proprietary interest in the 2.718-A remedy, and the' Chair is 14 correct that in the case I believe that was invented, the 15 remedy was invented and the patient died because the.
16
- certification was refused.
17 But one of the things that I think as a matter of 18 orderly procedure that this Board must consider at the 19 outset is that the general rule is you file the petition, 20 the opposition then comes in with a two-barreled brief, as 21 this Board has made clear on certain occasions.
One is 22 dealing with whether directed certification should lie and 23
-the other is the merits.
l 24 I don't think, frankly, the Commonwealth should be 25 allowed to urge upon you that remedy right now because they ACE-FEDERAL REPORTERS, INC.
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-didn't urge it upon you until they filed a serendipitous 2
pleading called for simply because the Board wanted some 3
more information,.and I think orderly procedure dictates 4
that they be barred from using the remedy now.
5 JUDGE EDLES:
I understand and fully appreciate 6
that argument.
But let me ask you one;other slightly 7
different thing.in getting more to the merits.
Do you agree 8
with Ms. Sneider as to how the Board is likely to treat the 9
' sheltering issue that it is about to litigate?
10.
MR. DIGNAN:
I have no idea how the Board is going 11 to treat the sheltering issue, and I am not ducking your 12 questions, Judge Edles.
The problem is that have it in my
<~
(_)g 13 own mind scoped out exactly what a sheltering issue is..My 14 view is that the sheltering issue can be put in a nutshell 15
.this way.
Is New Hampshire attempting to rely on shelters 16 that-don't exist?
That is the issue that is in there.
That l
- l 17 one I am clear on.
Now how far beyond that it goes, I don't 18' know.
!~
19 JUDGE EDLES:
All right.
Now let us assume that 20 the answer is no, that they are not trying to rely on i
21 shelters that don't exict, but because they don't exist, you
- i. '
22 must necessarily either get everybody into the water or i
23 something like that, or you have got to get them out of i
24 there within some reasonable time frame.
I 25 Is it your construction of what the Licensing L O-l Board
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is ultimately going to have to do to make some kind of 2
finding on the adequacy of protective measures, given the 3
facts of sheltering or non-sheltering on the one hand and 4
the evacuation times, likely evacuation on the other, the 5
are going to ultimately have to say, look, this either is 6
adequate or it is inadequate?
7 MR. DIGNAN:
They are going to have to decide 8
whether or not there are adequate protective measures.
9 JUDGE EDLES:
And let us assume simply for the 10 purpose of argument for the moment that there isn't any 11 sheltering that can take care of people standing there in 12 their bathing suits.
So what they are going to have to do
'()
13 is get them out of there in the event of an accident, and 14 particularly a fast-breaking accident.
15 What happens if it-turns out that it does take 1:2 16 hours1.851852e-4 days <br />0.00444 hours <br />2.645503e-5 weeks <br />6.088e-6 months <br /> to get everybody out of there?
What do we decide 17 then?
What does the Licensing Board decide?
18 MR. DIGNAN:
I think now we are to the__ merits of 19 the question, and I would like to come back to Judge 20-
'Rosenthal's question later, Judge Rosenthal, because I 21 didn't fully answer you, but ---
22 JUDGE ROSENTHAL:
Yes.
I will want to hear from 23 you on the merits of the directed certification question.
24 MR. DIGNAN:
But to address Judge Edles' question 25 directly, the Attorney General in the brief that they have V(~%
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filed I respectfully suggest misapplies the word " adequate" 2
as it is in the regulation.
3 As used in the regulation, 50.47(a)(1), adequate 4
modifies the words protective measures.
It does not modify 5
the word protection and it does not modify a phrase level of 6
protection.
7 Now adequate, if my memory from-high school Latin 8
doesn't fail me, comes from the Latin "adaquarae" meaning 9
equal, and it is used in the Commission's regulation in that 10 classic sense, it is used as equal to the task at hand.
11 JUDGE EDLES:
But, Mr. Dignan, I am not a Latin 12 schoJ ~ v, but I know ---
(~)
t (j
13 MR. DIGNAN:
Neither am I.
14 JUDGE EDLES:
--- but I know certain things when I 15 see them.
Are you telling me that you can't shelter these 16 folks -- let's assume the facts turn out that you can't 17.
shelter them and you can evacuate them.
Your position is 18 that point is that's show biz?
19 MR. DIGNAN:
That's show biz.
20 JUDGE EDLES:
And you want me to. sign my name to 21 that?
22 MR. DIGNAN:
Yes, because for one simple reason.
23 What the task at hand equal to the task at hand is is doze 24 savings, not absolute safety and not an assured level of 25 protection.
The Commission has made that clear.
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1 task of reducing doses where reasonably feasible with the f:
2 best possible plan with what you have at hand.
3 JUDGE EDLES:
Well, what does that mean what you 4
have at hand?
There are several options, and one option is 5
build some shelters.
Another option is we won't let the 6
plant operate during July and August.
I mean there are a 7
whole host of options here.
j 8
MR. DIGNAN:
No, I don't believe the Commission 9
has said that because the Commission has made clear that the 10 regulations does not require the construction of massive 1
11 facilities'.
I don't think the Commission is saying that one 12 remedy is to not let the plant operate in the summer under
- ( )'
13 the San Onofre case.
14 But more importantly, if a given accident will 15-produce doses at a location or in a time frame where no j
16 action or very little action is possible given the existing 17 state of affairs, that is that, and you can what if, Judge I
18 Edles, any of these plants to death, but you can what if 19 every nuclear pla'nt to death.
l 20 JUDGE ROSENTHAL:
Wait a minute.
I want to make 21 sure I understand this because if I am hearing you l
22 correctly, you are advancing an argument that if we adopted 23 it and our adoption of it appeared in the Boston Globe, I 24-never could turn up in the Commonwealth of Massachusetts to visit my sister again.
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Now are you telling me that if it turns out that 2
there is absolutely nothing that can be done for these 3
people on the beach, that you can't evacuate them and you 4
can't shelter them within a period of time necessary to 5
ensure that they do not get extensive radiation exposure, 6
that is just too bad.
Just as long as your plan does the 7
best that it can do, and if the best that it can do leaves 8
those people still in a position where given a certain 9
accident they are going to receive considerable radiation 10 exposure, that, as Mr. Edles quaintly put it, is show biz.
11 Now is that what you are really telling us?
12 MR. DIGNAN:
Well, if you put it in those f'N
(_)
13 pejorative terms, which the Globe will now ---
14 (Laughter.)
15
--- that is fine.
But the problem is that totally 16 forgets, that kind of analysis totally forgets that out 17 there are the siting criteria, are all the safety 18 regulations of the Commission and that the emergency 19 planning ---
20 JUDGE ROSENTHAL:
Siting criteria, my recollection 21 is, Mr. Dignan, and as you will recall, I was on the 22 Seabrook Construction Permit Board, and this is ancient 23 history to me, I recall in a decision that we rendered in 24 Seabrook and New England Power, it was two proceedings 25 combined, we said that under the siting regulations or Part
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100, that the beach was a no-never-mind, that you didn't 2
have to worry about evacuation of the beach because it was 3
outside the LPZ.
Am I correct in my recollection?
4 MR. DIGNAN:
That is correct.
5 JUDGE ROSENTHAL:
So we didn't worry about whether 6
it was feasible to evacuate beach areas.
Now along in the 7
wake of I guess Three Mile Island the rules of the game 8
changed and we now have these EPZ's and 10-mile radii and 9
you have to concern yourself about evacuation.
10 Now can we still go back and say well, if it meets 11 the siting requirements of Part 100, which in this instance 12 did not involve beach evacuation at all, that that is all we 13 need to be concerned about?
14 MR. DIGNAN:
No, because what the Commission did 15 was granted a new regulation that brought evacuation beyond 16 the LPZ, but what they said the new evacuation program was 17 for was to make dose savings where reasonably to do so.
And 18 what I.am saying is you can't turn that evacuation plan reg 19 into a new siting criteria.
And before people jump to the 20 concept that the utilities are simply saying well if we 21 can't do anything that's show biz, I mean that is colorful, 22 but what has been done at Seabrook, keep in mind, is there 23 are two containments on that reactor to start with, and they 24 are on there for a reason, and it was to pull in the lines 25 where certain doses would be seen after certain events.
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There is an awful lot of protection built into 2
that plant for the beaches.
3 JUDGE EDLES:
But, Mr. Dignan, and excuse me for 4
interrupting, as I understand the emergency planning 5
regulations though, they start where all of these other 6
siting regulations and all kinds of other technical hardware 7
regulations end.
In other words, you build your plant as 8
safe as you can and as best you can and all of that, and by 9
the way, now we assume that some accident beyond the design 10 basis will occur and you are going to have to take 11 protective responses, and isn't that where the-emergency 12 planning regulations come in?
(
13 MR. DIGNAN:
Well, keep in mind, it takes a 14 spectrum of accidents in NUREG 0396 and looks at them, and 15 the spectrum accidents I think everybody would concede in 16 Seabrook, you are not going to get any fast-breaking 17 accident with large doses on that beach until you are way, 18 way, way up on that spectrum.
19 And what I am saying is what the Commonwealth was 20 trying to do with this contention, and they have it in their 21 contention, is say we want to compare Seabrook to the 22 average plant.
That is not what the Commission is 23 requiring.
If you meet the siting criteria, and then on top 24 of that you take the facilities, the location and everything 25 that goes with it that are reasonably available, and you do ACE FEDERAL REPORTERS, INC.
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the best possible plan you can, that is adequate protective 2
measures.
3 Now in different plants that is going to give a 4
different level of protection at a given distance given a 5
given event.
There is no question in my mind about that.
6 But the plants do not all have to meet some line.
7 JUDGE EDLES:
No, I understand that.
But my point 8
is let's assume that your facts as you are now portraying 9
them develop at the hearing and are accepted by the 10 Licensing Board.
In other words, the minimum time for any 11 accident to occur at Seabrook will be 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> from the time 12 we learn about it or from the time the operator first
()
13 discovers it.
4 14 In other words, let's assume we have a factual 15 predicate given what the facts you are sort of portraying to 16 me now.
In those circumstances maybe the Licensing Board 17 could perhaps say, and let's assume it is an accident of 10 18 hours2.083333e-4 days <br />0.005 hours <br />2.97619e-5 weeks <br />6.849e-6 months <br /> and maybe you have an evacuation of eight hours, the 19 Licensing Board may well say even though there is no 20 sheltering, if you can get everybody out within eight hours 21 and we now have demonstrated on the record that no accident 22 is going to be faster breaking than 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br />, that is 23 adequate protection within the context of the Seabrook 24 reactor.
25 But to take the other analogy, let's assume that l
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the facts as they develop are not as you portray them, but 2
it turns out that there could be accidents developing in as 3
little as an hour or two and everybody agrees that it would 4
take eight to ten hours to get people off the beaches and in 5
those circumstances as given there is no sheltering wouldn't 6
be hard to make an adequacy finding then, and then aren't we 7
back to what you describe as my colorful situation that we 8
would have to say that's show business?
4 9
MR. DIGNAN:
Judge Edles, if your statement is 10 correct, then the Commission should shut every nuclear plant 11 down now because I can give you the accident that gets high 12 doses off the site virtually instantaneously, and whatever
(_)
13 evacuation plan you have got any any reactor, you are not 14 going'to make the people disappear poof.
15 JUDGE EDLES:
But those people have sheltering as 16 an option as I understand it by and large that they don't 17 have on the beach.
18 MR. DIGNAN:
No, there are many sites where there 19 is no sheltering option realistically for people.
There are 20 people on beaches near power plants and you can conjure up 21 the accident that in every plant.
I mean my favorite in i
this particular regard is assume a meteor comes out of the 22 4
23 sky, which does happen on this earth, and breaches the 24 containment at five percent meteorology and there is a whole 25
_ bunch of people in a tour bus around.
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Now I don't care what kind of a plan you have got, t.
2 you are going to have an instantaneous high dose.
I 3
understand in Chernobyl they got instantaneous high doses, 4
if not off the site, certainly all over it.
So if that be 5
the law, that au long as somebody can conjure up an accident f
6 for which you can't get the people out of there on time or i
7 put them in shelters, I think we might as well pick the 8
licenses all up, and I don't think that that is the law.
9 What you have got to focus on I believe is that
)
10 the regulation does not modify with the adequate the word 11 protection or level of protection as the Attorney General 12 would have it.
It modifies adequate protective measures 13 taken equal to the task and the task is dose savings.
14 And I respectfully suggest that what that means is i
15 that the best possible job is to be done to assure that in 16 the event of a large accident beyond the design basis, well 17 beyond the design. basis there will be in place plans to 18 reduce the dose savings as much as we in this mortal coil 19 can do.
But that is all.
It is not a risk free society, i
.20 and it certainly is not a risk free technology and the 21 Commission had never painted it as such.
22' JUDGE EDLES:
But aren't we really talking about 23 quantum of risk here?- I am inclined to agree it is not risk i
24 free, but I thought the Attorney General's argument really 25 was sort of a quantum argument that, yes, you can conjure up
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the cases that you were portraying, and they are so 2
incredibly-low on'the probability scale that maybe we ought 3
not to be planning our nuclear power plants for them.
4 But what she is saying I believe is that that 5
isn't Seabrook.
I mean Seabrook we have perhaps higher 6
probability and perhaps much greater consequences given that 7
there is no sheltering at all, and really that is what she 8
is trying to get at here.
9 PR. DIGNAN:
Well, in fact, Judge Edles' Seabrook, 10 according to the PRA and everything I have seen, the 11 probabilities drop appreciably at Seabrook from Wash-1400, 12
.very appreciably.
J' 13 Now the PWR-2 accident that she is talking about 14 is a pretty rare event to start with.
On top of that she 15 wants to pile five percent meteorology, and then she wants 16 to have it happen on July 4th.
17 Now, I don't know.
I am not a probability expert, 18 but it comes right back to what I said earlier, we can what 19 if not only the plants, but the technology to death.
An 20 a.gineer can give me a calculation on the probability that 21 my tone of argument and voice will drop the ceiling on us as 22 a result of vibration, and it is a pretty low probability, 23 but it is there.
24 JUDGE EDLES:
But-the consequences for someone 25 like me sitting under it is pretty dramatic.
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MR. DIGNAN:
They would be for me, too.
2 JUDGE ROSENTHAL:
Mr. Dignan, let's come back, if 3
I can, to the directed certification request.
You have 4
noted that the request comes rather late in the day.
5 MR. DIGNAN:
Yes.
6 JUDGE ROSENTHAL:
But I esould appreciate it if you 7
would devote a minute or so to the merits of the 8
request.
9 MR. DIGNAN:
The case that would best support the 10 granting of directed certification, if there be one in the 11 jurisprudence, would be probably the language in ALAB 330, 3 12 NRC at 615 in which the Appeal Board said, although not 13 going so far as to rule out entirely the availability of 14 relief of that sort, we endeavored to make clear, and I am 15 speaking of a prior case, we endeavored to make clear that 16 petitions such as the one at bar would have little chance of 17 success unless there appeared to be a high probability, and 18 not just some possibility, that serious error had been 19 committed below.
20 Now that is it.
The Appeal Board has never i
l 21 foreclosed the possibility of coming here with a contention 22 on that basis.
I say there is no error, and I think~ Judge i
23 Edles and I have explored my reasons for why I say there is 24 no error.
But certainly there is no error that is not l
25 correctable on later appeal, and that is one of the ACE-FEDERAL REPORTERS, INC.
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(-)00000101 marysimons-1 fundamental precepts it strikes me of the remedy, that you 2
have to demonstrate the error is one that if it is not 3
corrected now it cannot be corrected on appeal.
4 JUDGE ROSENTHAL:
All right.
That is sufficient.
5-Let me ask you one final question, and that is do you agree 6
with the staff that in large measure at least the Attorney 7
General's contention is already in the proceeding as a 8
result of the contentions of the Coalition, I think Saple, 9
and I think it is the Town of Hampton?
10 You will recall the staff quoted in full I think 11 one contention of each of those parties and said the 12 Attorney General really isn't prejudiced in any event
)
13 because, or substantially prejudiced because a good portion 14 of what the Attorney General is seeking to inject in the 15 proceeding is already there.
16 Do you agree with that?
17 MR. DIGNAN:
No.
In candor, and my time is up ---
18 JUDGE ROSENTHAL:
I have you as still two or three 19 minutes.
20 MR. DIGNAN:
Thank you.
In candor, while I would 21 like to happily agree with that, I am not sure the staff 22
.went that far, and if they did, I wouldn't agree.
What is 23 in there is every legitimate part of the AG contention.
24 It is clear to me that that part which we have 25 been talking about, especially that part Judge Edles and I ACE-FEDERAL REPORTERS, INC.
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have been addressing, is not in there.
It is not in 2
anybody's contention.
3 JUDGE ROSENTHAL:
No, and I should have qualified 4
that.
I recognize that.
But you would agree with ---
5 MR. DIGNAN:
That is what I understood the staff 6
to say.
7 JUDGE ROSENTHAL:
Would you then just indicate to 8
me just briefly why in your view the Licensing Board 9
admitted those contentions but rejected outright the 10 Attorney General's contention?
If there is a partial 11 overlap, one would have thought that as a matter of equity 12 it vould have come in when presented by the AG as well as n
(_)
13 when presented by those other parties.
14 MR. DIGNAN:
Because the Licensing Board in this 15 case has made clear form the outset that we will take the 16 contentions as you give them to us.
We are not going to 17 recast and they have no obligation to.
The staff twice, 18 once back in '83 and once Mr. Turk representing the staff 4
19 essentially told the Connonwealth now to recast this 20 contention to get that part in.
21' The Commonwealth refused to do it.
They said we 22 want an all or none basis, and the Licensing Board said on 23 that basis it doesn't get in and I think that is an 24 absolutely correct ruling.
25 JUDGE ROSENTHAL:
Thank you, Mr. Dignan.
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The Board will take a 10-minute recess and then 2
hear from staff counsel.
3
-(Recess taken.)
4 JUDGE ROSENTHAL:
Mr. Reis,'we will hear from you.
5 ORAL ARGUMENT OF EDWIN J.
REIS, CHIEF HEARING COUNSEL 6-ON BEHALF OF THE NUCLEAR REGULATORY COMMISSION t
7 MR. REIS:
If it please the Board, I want to point 8
out, as we do in our brief, on the first point of 9
interlocutory appeal, that there has to be a denial of the 10 petition for leave to intervene.
11 When I look at the order of April 29th, which is 12 appealed from, I can't find that denial of. petition for 13 leave to intervene, even if I take with it the fact that 14 there is no right to proceed in an NRC proceeding for an 15 ordinary intervenor without a contention.
16 JUDGE ROSENTHAL:
Well, there obviously was a 17
. denial implicitly of the 2.714 petition, was.there not?
18-When you reject the one and only contention that the 2.714 19 petitioner hat,-you are, whether you are saying so or not, 20 denying the petition.
21 MR. REIS:
Certainly that would not lead to a i
22 timely appeal at this time.
Whenever that 2.714 petition 23 was denied, it was probably denied in 1982 with the Board's 4
24 original order, and'the time to appeal was then>
E 25 JUDGE ROSENTHAL:
Didn't the Board reject the
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contentions on the ground they were premature?
One could 2
readily argue at that-point what the Board was saying was we 3
are putting your 2.714 petition in cold storage.
You came 4
up with some contentions and those contentions were 5
premature and we will wait and see what happens at a later 6
point, because if I am not mistaken, at a later point the 7
Attorney General did serve up additional contentions and 8
those contentions were accepted.
Later on I gather they 9
were laid aside.
10 MR. REIS:
It is not clear to what extent they are 11 laid aside now, as Mr. Dignan has pointed out.
12 JUDGE ROSENTHAL:
Was this contention rejected on A(_)
13 prematurity grounds?
I thought not.
I thought the 14 contention was rejected on the ground that it lacked a 15 regulatory basis.
Am I wrong about that?
16 MR. REIS:
This contention now, yes.
17 JUDGE ROSENTHAL:
So isn't this the first time 18 that the Attorney General has had the only contentions on 19 the table rejected on other than prematurity grounds?
20 MR. REIS:
The Attorney General had four 21 contentions admitted on August 30th, 1983.
22 JUDGE ROSENTHAL:
And at that point was the 23 Attorney General a 2.714 intervenor?
24 MR. REIS:
At that point it had applied in '82 to 25 be a 714 intervenor.
The Board said no, you can come in i
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.under 715.
They brought forward new contentions in '83 and 2
four of those contentions were accepted.
3 JUDGE ROSENTHAL:
And what did that mean in terms 4
of the Attorney General's 2.714 petition?
5 MR. REIS:
If those contentions were accepted, 6
then it was accepted as a 2.714 party.
7 JUDGE ROSENTHAL:
Okay.
So it did have at one 8
point dual status as a 2.714 and a 2.715-C participant; is 9
that right?
10 MR. REIS:
That's right.
If that is so, and it 11 cannot be told ---
12 JUDGE ROSENTHAL:
What do you mean if it is so?
13 MR. REIS:
I can't tell from the Board's order 14 that was issued on accepting those contentions whether it 15 was changing it to accepted under 714 as well as under 715.
16 JUDGE ROSENTHAL:
Well, what is the significance 17 of all of this anyway in terms of whether this appeal will 18 lie or not?
19 MR. REIS:
I don't believe this appeal will lie 20 because of the precedent in the River Bend case which I 21 think is there that as Massachusetts can continue to 22 participate in this proceeding and would have a right to 23 appeal at the end of the proceeding, the right to come 4
24 forward under 2.714-A does not now exist.
Let me just say a word about directed 25 a
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certification.
We did receive the Commonwealth's paper 2
where it did talk about directed certification immediately l
3 before we filed our brief, and we do point out that there no 4
1rreparable injury in that they can appeal and that there is 5
no basic effect.on the structure of the proceeding or-any 6
pervasive effect.
i l
7 As we point out in the briefs, they do have a 8
right and, as the Board has recognized, they do have a right 9
to litigate matters certainly as to sheltering.
The matters 10 as to evacuation the Board said are premature right now, but 11 is considering some contentions on those facts.right now.
12 JUDGE EDLES:
Mr. Reis, explain to me what'you j ()
13 think the Board is going to be litigating now in the area of 14 sheltering.
15 MR. REIS:
It is certain that the Board can l
16 litigate under the contentions that are there, and that is 17 as.to whether sheltering exists, how much protection will be i
18
. afforded by sheltering and what percentage of the people who i
19 might need sheltering can get sheltering.
20 What I see in the rejection of this contention as l
.21 contrasted with the other contentions is essentially a 22 question of evidence that can come in and a question of the f
23 evidence that the ---
24 JUDGE EDLES:
Are these on the dose consequences I
25 and all of that stuff that the Attorney General put forward O
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as a basis for his contention?
2:
MR. REIS:
That's right, and it is a question of 3
whether that evidence could come in.
I think in essence you 4
are asking to pass on an evidentiary question at this early 5
stage of a proceeding.
6 JUDGE EDLES:
Let me see if I can make sure I 7
understand what you are saying.
Back in '83 there was an 8
evidentiary presentation of findings on evacuation time, the 9
time that it would take to evacuate the beaches, and the 10 Attorney General has his views on the record on that one way 11 or the other.
12 MR. REIS:
That's right.
There are no findings on 13
.that.
14 JUDGE EDLES:
I understand that.
The Attorney 15 General will now have an opportunity to litigate the 16 sheltering issue as you have portrayed it to me a moment 17 ago.
18 MR. REIS:
Right.
I 19 JUDGE EDLES:
Am I correct that at the end of the 20 case the Attorney General will be able to make the case to 21 the Licensing Board that there is no sheltering, or the 22 sheltering is inadequate or there are only enough to 23 accommodate "X" number of people, something along the lines 24 that we have discussed.
25 The evacuation time estimates, whether they are ACE-FEDERAL REPORTERS, INC.
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I the 1983 estimates or the one to be adopted later, provide 2
for so many hours to evacuate the beaches.
3 Taking those two things together, there is not a 4
reasonable assurance of adequate protection for the beach 5
populations.
Will he be able to make that argument?
I 6
MR. REIS:
In the sense and in the context of the 7
regulation, particularly 50.47(b)(10) which says that there 8
must be a range of protective actions that have been 9
developed for the plume EPZ.
10 JUDGE EDLES:
And what the Attorney General _will 11 do is to say that in his opinion a range of protective 12 actions have not been adequately developed ---
()
13 MR. REIS:
That's right.
14 JUDGE EDLES:
--- and the Board will say yes, that 15 is right, or no, that is wrong.
16 MR. REIS:
That's right.
17 JUDGE EDLES:
And the contention that the Attorney 18 General submitted it seems to be roughly embraces that 19 notion, that somehow the two principal protective steps, 20 evacuation and sheltering, won't sufficiently safeguard the 21 public within the meaning, and the Attorney General relies 22 on 50.47(a), but I think, as you pointed out, and I think as 23 everybody understands in the case, that sort of picks up i
24 50.47(b)(10) I guess it is, but 50.47(a) is sort of the 25 ultimate finding that has to be made by the Board.
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But as I understand it, the Attorney General will 2
be able to argue that 50.47(b)(10) has not been satisffed.
3 MR. REIS:
That's right.
4 JUDGE EDLES:
So it seems to me that while the 5
Attorney General's contention may have been rejected, he 6
will be permitted to litigate all of the issues at least 7
embraced within his contention.
The only question is the 8
one that you pointed out, what evidence he will be allowed 9
to put on certain of those contentions.
10 MR. REIS:
That's right.
And if you read the 6
11 contention that the Attorney General submitted, and 12 particularly the basis, where they pointed to a study by a 13 Professor Beyas on accident consequences, modeljng and 14 analysis and again talked about probabilistic safety 15 analyses, it is that which is different from what is 16 submitted on the other contentions that apparently caused 17 the rejection of this contention.
18 JUDGE EDLES:
In fact, if the Attorney General had 19 just put forth the contention with a kind of one-liner or 20 two-liner basis saying there is no shelter, or we all know 21 there is no shelter on the beach, the ETE's back three years 22 ago show whatever number of hours it would take, and that 23 doesn't satisfy 50.47(b)(10) without all of this survey dat'a 24 that has come in, it probably would have sneaked by the 25 Licensing Board and they would have folded that in along ACE-FEDERAL REPORTERS, INC.
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1 with everything else.
2 MR. REIS:
Well, I presume so.
Of course, I~can't 3
speak for the Licensing Board.
4 JUDGE EDLES:
No, I understand.
5 JUDGE ROSENTHAL:
But since when are contentions I
6 measured at the threshold on the basis of what evidence is 7
going to be adduced in support of the contention?
8 MR. REIS:
Ordinarily, Mr. Chairman, they are not.
9 JUDGE ROSENTHAL:
Then why in this case?
10 MR. REIS:
In this case the they had a basis that 11 went on for I believe 12 pages that pleaded and had tables, 12 charts, et cetera, of this accident consequence modeling and 13 the analysis that they had as a basis of their contention.
14 It is only that that distinguishes it from the other.
They 15 can come in on the other contentions.
Ordinarily no, that 16 is not a basis, and we said yes, our position below towards 17 the Licensing Board was yes, you can look at sheltering and 18 whether there is a range of protective actions.
19 We don't want them to sneak this into the hearing 20 and say this is proper to be heard in this matter ---
21 JUDGE ROSENTHAL:
I don't understand that at all, 22 Mr. Reis.
t 23 MR. REIS:
And therefore please pass the 24 contention.
25 JUDGE ROSENTHAL:
I don't understand that at all.
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I thought that contentions were judged on the basis of what 2
is in the contention itself.
Now if the basis that is I
3 assigned has in it some material that is beyond the pale, 4
why isn't the answer okay, the contention is admitted, but
~5 incidentally some of the evidence that you would like to put 6
in in support of that contention will be inadmissible?
7 If, as you say, the Attorney General's contention 8
covers a lot of.the territory of contentions that were 9
properly admitted, it would seem to me to that extent the 10 Attorney General's contention should have been admitted and 11 the Board could have again indicated that a lot of what was-12.
in the 12 pages, or whatever it was, of bases will not be
)
13 allowed into evidence.
14 MR. REIS:
Mr. Chairman, that is the position we s
15 took below.
However, I don't think the Board abused its 16 discretion in rejecting the contention as a whole.
First of 17 all, there ---
18 JUDGE WILBER:
Didn't the Board do just exactly 19 what described here for the Coalition's contention, they 20 threw out two parts of it, the basis of two parts?
21 MR. REIS:
Yes, they did.
22 JUDGE WILBER:
So it appears there is a 23 distinction here.
24 JUDGE ROSENTHAL:
Well, if you supported this 25 approach below, I don't understand why you are taking a ACE-FEDERAL REPORTERS, INC.
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I. don't know why it is a matter of 1-i 2
discretion at all.
3 MR. REIS:
Because we don't see any harm.here, and 4.
we don't feel that.this is a necessary matter for I
5 interlocutory appeal where Massachusetts has every rightfto I.
~
6 come in on those other three contentions and introduce 7
proper evidence as to the extent of sheltering and'the 8
ultimate question of whether there is a reasonable range of 9
protective actions under 50.47(b)(3).
10 JUDGE ROSENTHAL:
hell, let me pin you down.
I 11 understand your argument that this isn't the grist for the 12 interlocutory review mill.
I understand that.
I further
)
~ understand your argument that the error, if any,~ was 13
~
14 harmless.
t i
15 But I am now asking you flat out, did the-
)
i 16 Licensing Board err in the staff's judgment in rejecting I17 this contention outright?
I am-not asking=you whether the
~18 err.was harmless, but I am asking you whether the Licensing l
-19 Board was in error in what it did,.and I.want a yes or no i
20 answer to that.
I 21 MR. REIS:
In just looking ---
22 JUDGE ROSENTHAL:
In rejecting the contention in' l.
23 its entirety, i
24 MR. REIS:
No, if I consider the basis as well as i
25 the_ contention.
If I consider the contention alone, yes.
! _()
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JUDGE EDLES:
Your argument on that in fairness to I
2 the' Licensing Board is we have a contention that the Attorney General could have submittNd just in terms of the
'3-L 4
contention with a one or two line. explanation, but he hasn't 5
done that..He has purported to put.forth the basis, and 6
when you read the basis you realize that what he is driving 7
at really is something different from what it might-8 otherwise appear frca reading it.
9 So the Licensing Board wasn't unfair in construing 10 the contention in light'of'the evidentiary submission.
11 MR. REIS:
Exactly, and let me point out that the 12 Licensing Boards when faced with contentions frequently, and
)
13 it is the practice to' flesh them out sometimes'to see 14-whether they are specific enough to be litigated by looking 15 at the basis that is set out.
~ 16 JUDGE ROSENTHAL:
I understand. What did you ask' 17 the Licensing Board to do with this contention?
18 MR. REIS:
We specifically asked the Licensing 19 Board that this contention might not be admitted, but that 20 it should make clear that it could not litigate the 21 contention.
The staff proposed the contention to the extent i
.22 it proposed to litigate radiological dose consequences of 23 specific accidents or accident sequences.
24 JUDGE ROSENTHAL:
I understand that.
What did you J
'25 recommend that the Licensing Board do with the contention,
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admit it in part, admit it in whole or reject it in whole?
i 2
MR. REIS:
Admit it in part with the statement 3
that it would'not allow the ---
4 JUDGE ROSENTHAL:
All right, admit it in part.
5 MR. REIS:
That's right.
6 JUDGE ROSFNTHAL:
Now the Licensing Board didn't 7
do that.
8 MR. REIS:
That is right.
9 JUDGE ROSENTHAL:
Now why are you not telling me, 10 in response to the question I asked you before, that the 11 Licensing Board erred, unless you have had a change of 12 heart?
13 MR. REIS:
Because our view was that the Licensing 14 Board had some discretion and it was acting within the 15 bounds of discretion in either parsing the contention or 16 rejecting it.
17~
JUDGE ROSENTHAL:
Do you think that a Licensing 18 Board has the discretion to reject a contention in whole 19 which on its face is at least is admissible in part?
20 MR. REIS:
Where it is pretty clear from the basis 21 what the intervenor or the participant seeks to introduce is 22 a matter not within the standards of what can be litigated 23 before the Commission, yes, sir.
24 JUDGE ROSENTHAL:
All right.
And do you have 25 cases in which we or the Commission have upheld a Licensing ACE-FEDERAL REPORTERS, INC.
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Board looking at the basis and saying well, there is in that
.u 2
basis some inadmissible / evidence and therefore we are going to reject-the contenElon?;
3 4
MR.'REIS:
I can't think of any offhand, Your
'5 Honor.
6 JUDGE ROSENTHAL:
We l )., I cant.think of any 7
either, and I-would like to knoW again on what basis you 8
think this Licensing Boa d had the. discretion to that this?
I 9
I mean you told the Licensing Board, as I understand it, to 1
10 ada'it the contention in part making it clear that the basis C
w a.;
e 11 assigned er part of the basis ' assigned"was impermissible, i
12
.and that seemed to me to be a very intelligent approach.
13 It is what you offered to the. Licensing Board and.
14 the Licensing Board,,didn't do'it, and how you are up here,'
D-15 however, telling me that the-Licensing Fioard had discretion y
16
.to.do something else, and I am asking you where it got the 17 discretion.
18 MR. REIS:
I th3nk the Licens'ing Boards have to
~
19 look realistically _at what is propose to' be litigated, and L
j 20 I.think that is what the Board was doing in this case.
And i
looking that the matter <would come in in other contentions, 21 4
',and the-Licensing Board's particular statement that it would s
23 look to see whether there was' reasonable assurance that i
p 24 adequate protective measure's can and will be taken in the i-25 event of an emergency, it was indicating what it was doing
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1 and was properly acting in this way.
2 JUDGE WILBER:
How can the Board do that?
Suppose.,
3 the other three contentions that you say are parallel to 4
this are withdrawn for some reason?
Now how is the Board 5
going to do that?
6 MR. REIS:
If the other intervenors should 7
withdraw those. contentions, it would create problems.
I 8
have no question about that, but that isn't the situation 9
we had nor the situation the Board was faced with at the 10 time it ruled on this.
11 There are some odd situations where perhaps -- I 12 don't think a motion for late filed contentions would lie in
)
13 that event.
But in other situations I know there have been 14 cases where the Licensing Boards have gone back where a 15 party seeks to withdraw from a proceeding and seeing whether 16 other parties or participants in the procedure had enough
+
17 interest in the other contentions, and that particularly 18 happened in South Texas, as to whether they should be 19 maintained in the proceeding.
In other words, whether they 20 had formally indicated enough interest so that the allowance 21 to withdraw would prejudice them, the third party.
22 JUDGE ROSENTHAL:
Mr. Reis, does the staff agree 23 with the position of the applicant in what I will describe 24 in a shorthand fashion as the show biz discussion?
25 MR. REIS:
No, the staff does not.
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JUDGE ROSENTHAL:
Would you kindly illuminate the 2
differences, and I am particularly interested in whether you 3
agree with Mr. Dignan's suggestion that any other 4
interpretation.than the one that he offered would 5
necessitate the immediate of all operating nuclear reactore.
6 MR. REIS:
No, I don't reach that conclusion from 7
it. ' I think, as I said before, that a discussion and a 8
. consideration of emergency planning contentions has to take 9
place under 50.47 of the regulations of Appendix A, and if 10~
we look at parse 50.47 of Appendix A, there are certain 11 things that have to'be-done and certain decisions that have 12 to be made by the Board.
. (
13 One of them was plainly recognized by the Board, t
14 though the Commonwealth here says they won't consider 15 adequacy.
They did say they will consider adequacy, and 16 50.47(a)(1) says a finding is made by the NRC that there is 17 reasonable assurance that the adequate protective action can f
18 and will be taken.
19 These findings in (a)(2) are based.upon plans, and 20 these plans in turn are to be judged by following standards, 21 and one of them is a range of protective actions can be 22 developed, and there has to be a range of protective 23' actions.
But to say what protective actions at this point 24 before we have evidence in this proceeding and before we 1
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to be good is to speculate far in advance.
2 We have to know what the times are, how many 3
people can be sheltered, what is the reduction to be 4
afforded by sheltering, what are the times and that sort of 5
matter which will come out in hearing under the presently 6
admitted contentions.
But we do have to meet the standards 7
in (b)(10) if there be a range of protective actions.
8 JUDGE ROSENTHAL:
Well, what is your answer to Mr.
9 Dignan's suggestion that you can always conjure up an 10 accident which will have immediate radiological consequences 11 and there will always be people, and I think he suggested 12 individuals on a tour bus, who will not be protected against
()
13 the consequences of that hypothetical accident?
14 MR. REIS:
I believe in the development of the 15 regulation and the development through NUREG, which I know 16 the Board is familiar with, NUREG 0396, which was developed 17 on the consequences of a spectrum of accidents, the range of 18 a spectrum of accidents through the development of standards 19 in NUREG 064 and to the incorporation of those standards as 20 shown in the statement of considerations for 50.47.
21 Those all indicate that what you plan for is a 22 range of a spectrum of accidents and not a particularly one 23 in a trillion type of an accident.
And, yes, you can always 24 conjure up an accident that maybe the regulations would not 25 protect for.
But it is the range of protective actions and ACE-FEDERAL REPORTERS, INC.
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it is the spectrum of accidents that the Commission pointed 2
to itself in:the San Onofre case although it was dealing 3
with medical services there and it was reversed by the Court 4
of Appeals.
l 5
It was the same matter and the same idea that I 6
think this Board had in mind in the Shoreham case where it 7
talked about not going to particular accidents and that 8
there was no need to go to particular accidents at 9
particular plants.
10 What the standards under (b) are looked at are the 11 protections generally, and of course you can always.. conjure 12 up a particular accident.
O
(,_/
13 JUDGE WILBER:
What is the range?
You keep using 14 the word range here. It sounds to me like there is only one 15 protective action I have heard described, and that is an 16 evacuation.
1 17 MR. REIS:
Well, that we will have to see in 4
18 hearing.
We will see just what sheltering is available, 19 just what can be done, what the times will be and whether 20 there will be a range of protective actions.
21 Right now what we have is only the regulation, and 22 all I could speak to before the hearing is what the standard 23 is.
The hearing hasn't taken place yet.
24 Let me go back and say that very much what we have 25 here are evidentiary questions in looking at the whole ACE-FEDERAL REPORTERS, INC.
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1 proceeding and its status at this place in the proceeding, 2
and that we would be much better ---
3 JUDGE ROSENTHAL:
What do you mean we have 4
evidentiary questions?
We have the Attorney General coming 5
up here complaining about the rejection at the threshold of 6
one of his contentions.
How is thut an evidentiary matter?
7 MR. REIS:
Because the way it differs from the 8
other contentions that were submitted and which it has every 9
right to participate in the litigation of is just pleaded in 10 the bases.
That is the difference.
I am talking about what 11 realistically is here.
12 JUDGE ROSENTHAL:
You mean realistically in the
(~h
(,,/
13 sense that the Attorney General has these participational 14 rights under 2.715-C7 15 MR. REIS:
That is right and can participate in 16 the litigation of those other contentions if it chooses to.
17 If it does not choose do, that is a voluntary act, and I 18 don't think it can be protected against its own voluntary 19 acts.
20 I think that sums up the staff's position, unless 21 the Board has any further questions.
22 JUDGE ROSENTHAL:
Thank you, Mr. Reis.
23 Ms. Sneider, any rebuttal?
24 25 O
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REBUTTAL ORAL ARGUMENT BY CAROL S.
SNEIDER 2
ON BEHALF OF ATTORNEY GENERAL FRANCIS X. BELLOTTI 3
MS. SNEIDER:
I would just like to make a few 4
brief responses.
5 First, it is my reading of the Board's decision 6
that it has not admitted any contentions which concern the 7
protective value of sheltering.
I believe that one of the 8
basis for NECNP's contentions which concern that issue was 9
rejected by the Board.
It also rejected bases which went to 10 the length of time that sheltering would be used.
11 The New Hampshire plans provide that sheltering 12 would be considered an adequate protective response for two O
(_j 13 to five hours.
Previous New Hampshire plans had stated that 14 sheltering would only be suitable for two hours.
15 JUDGE EDLES:
But, Ms. Sneider, page 46 of the 16 Board's decision says "It is indeed the duty of this Board 17 to reach predictive findings that there is reasonable 18 assurance that adequate protective measures can and will be 19 taken in the event of a radiological emergency for the 20 general public prior to issuance of a license to operate."
21 Why isn't that exactly as Mr. Reis has portrayed 22 it, a commitment on the Board's part to look at sheltering 23 and to look at evacuation and make some kind of a 24 determination?
25 MS. SNEIDER:
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examined the basis for these contentions that they have let 2
in, they have expressly limited the evidence that people can 3
introduce on this issue.
And if we were able to litigate 4
the adequacy of sheltering, even though that is a much.
5 narrower issue than the Attorney General would like to bring 6
before the Board, we would be in there litigating that 7
issue.
8 JUDGE EDLES:
Well, what is it that you would 9
litigate that you foresee will not be litigated?
10 MS. SNEIDER:
We would litigate the adequacy of 11 sheltering and whether it would provide meaningful dose 12 savings.
The State of New Hampshire has just asserted in a O
-(_j 13 motion for summary disposition that it considers all the 14 sheltering in the EPZ to'have a shielding factor of
.9.
We 15 would be litigating the adequacy of that.
16 We also would like to litigate the adequacy of the 17 evacuation response.
There are no contentions in this 18 proceeding which go to that issue.
19 JUDGE EDLES:
I don't follow that.
Those were 20 matters litigated in 1983 and possibly to be litigated yet 21 again.
22 MS. SNEIDER:
Evacuation time studies were 23 litigated in 1983.
Those are not even time studies the 24 State will be using in making its decision.
25 JUDGE EDLES:
Right, but what is it that you now O
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say you want to ---
2 MS. SNEIDER:
We think there are some unique 3
considerations which we have attempted to bring to the 4
Board's attention at issue at Seabrook.
5 First of all, there is no sheltering.
You have a 6
beach population that isn't even wearing the normal-7 protective clothing ---
8 JUDGE EDLES:
But those are things which we can 9
take almost official notice I mean that people go swimming 10
-in bathing suits.
1 11 MS. SNEIDER:
Well, the Attorney-General had a 12 study commissioned and it goes to the issue of whether the 4
13 protective response of evacuation is adequate.
What that 14 study concluded is because of the doses to the skin that 15 would be received by the beach population evacuation won't 16 even serve the same as it w7uld at some other plant where 17 people would be wearing clothing and they would have shelter 18 to be in before evacuating.
19 Doses would be four times higher for the. people at 20 Seabrook Beach than they would be at the same spot near any 21 other plant in the country.
I think that is something that i
22 should be considered and it is relevant evidence on 23 adequacy.
24 I also agree that this is an evidentiary issue.
25 In two briefs filed with the Board on the admissibility of
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our contention the Attorney General stated this is not an 2
issue that should be considered-here of whether our evidence 3
should be admitted.
The only issue is whether the 4
contention states a violation of a regulatory basis.
5 JUDGE ROSENTHAL: -If it is an evidentiary issue
]
6 essentially, why isn't it most. appropriate for appellate 7
resolution, if necessary, once the decision of the Board 8
comes down?
Normally during the course of the litigation of-9 any particular issue parties endeavor to introduce 10 evidence.
The trial tribunal allows it in oc doesn't, as 11 the case may be.
I 12 Now a party which endeavors-to adduce evidence on
)
13 a particular issue, and that issue is excluded as being 14 irrelevant, immaterial or whatever, has an appellate right l
15 of complaint in the' event'that that issue is ultimately l
_16 resolved against.them.
l 17 It seems to me highly inappropriate for us to be 18 endeavoring to pass upon what you concede to be an 19 evidentiary matter at an interlocutory stage of the 4
20 proceeding before the issue has even been tried.
21 MS. SNEIDER:
Well, this Board has said at the out 22 set it won't consider such evidence.
I mean it won't even F
i 23 admit contentions that go to such issues, t
24 JUDGE ROSENTHAL:
All right.
But if the Licensing i
25 Board's problem as you see it is that it is prepared'to
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exclude evidence that you think should be admitted, it seems 2
to me again that you have to abide the event of the 3
Licensing Board's conduct of the trial on those issues.
The-4 Licensing Board, for example, may change its mind.
Who 5
knows.
6 One of the reasons that interlocutory appeals as a 7
general matter are not allowed is that one never knows 8
whether that issue which is being sought to have adjudicated 9
on an appellate level on an interlocutory basis will turn 10 out when the smoke clears to be an important. issue at all.
11 It may or may not.
12 MS. SNEIDER:
Well, the Board has expressly stated
)
13 what evidence it would consider with respect to sheltering.
14
'Perhaps the Attorney General in this case is not adequately 15 preserving its right on that issue.
It didn't make sense 16 for our office to go and develop that testimony when the 17 Board had already expressly stated that it wouldn't consider 18 it.
19 JUDGE ROSENTHAL:
That may be, and you are 20 entitled to rely on the Board's ruling in that regard, and 21 again if the ultimate result in this proceeding is not to 22 your liking, you can appeal, and when you appeal one of the 23 things that you can complain about is the Licensing Board's 24 limitation on the evidence that you were allowed to present.
25 MS. SNEIDER:
I would just like to state in
/^}
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' conclusion the Attorney General's-feeling that this is'an 2
important safety issue which should be addressed by this 3
Board,1that the beach population in the event of a fast-1 4
developing accident having.offsite consequences it is the 5
' Attorney General's contention will be virtually unprotected.
4 l
6 The Attorney General.has been trying since the i
7 siting stage to get this issue heard.
We tried again after 8
Three-Mile Island, and at that point the Circuit Court of r
9
~ Appeals refused to order a hearing because this issue would t
10 be heard at the operating licensing stage.
11 We are still trying.to get this evidence before 12 the Board, and I think it is an. issue which must be
~
13 addressed.
f 14 JUDGE ROSENTHAL:
Thank you, Ms.: Sneider.
15 On behalf of the entire Board I wish to thank 16 counsel for their helpful presentations this morning.
4 j
17 On that note, the appeal of the Attorney General i
18 will stand submitted.
E 19 (Whereupon, at 11:30 a.m.,
the oral argument in 20 the above-entitled matter concluded.)
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23 1
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