ML20213A720
| ML20213A720 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/24/1987 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#287-3324 OL, OL-1, NUDOCS 8704280226 | |
| Download: ML20213A720 (241) | |
Text
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OR G NA1.
O UlNITED STATES 1 NUCLEAR REGULATORY COMMISSION .
IN THE MATTER OF: DOCKET NO: 50-443-OL 50-444-OL PUBLIC SERVICE COMPANY OF 50-443-OL-1 NEW HAMPSHIRE 50-444-OL-1 (Seabrook Station, Units 1 and 2) l
- LOCATION: . BETHESDA, MARYLAND PAGES: 1.- 240 ;
DATE: FRIDAY, APRIL 24, 1987 m.s/
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CR30693.0 MPB/sjg 1
- 1 UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3
EFORE THE ATOMIC CAFETY AND LICENSING APPEAL PANEL 4 - - - - - - - - - - - - - - - - - -x 5 In the Matter of: : Docket Numbers 6 PUBLIC SERVICE COMPANY OF : 50-443-OL NEW HAMPSHIRE : 50-444-OL 7
- 50-443-OL-1 (Seabrook Station, Units 1 & 2) : 50-444-OL-1 8 - - - - - - - - - - - - - - - - - -x 9
Nuclear Regulatory Commission 10 Fifth Floor Hearing Room 4350 East-West Highway 11 Bethesda, Maryland 12 Friday, April 24, 1987
(.) 13 The Oral Argument in the above-entitled matter convened 14 at 10:00 a.m.
15 BEFORE:
16 i JUDGE ALAN S. ROSENTHAL, Chairman 17 Atomic Safety & Licensing Appeal Panel U.S. Nuclear Regulatory Commission 18 Washington, D. C. 20555 l 19 JUDGE GARY J. EDLES, Member Atomic Safety & Licensing Appeal Panel 20 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 21 22 JUDGE HOWARD A. WILBER, Member Atomic Safety & Licensing Appeal Panel 23 U.S. Nuclear Regulatory Commission Washington, D. C. 20555
() 24 25 ace FEDERAL REPORTERS, INC.
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2 1 APPEARANCES:
i 2
On behalf.of the Applicant:
3 THOMAS G. DIGNAN, JR., ESQ.-
I KATHRYN A. SELLECK, ESQ.
4 Ropes & Gray l4 225 Franklin Street 5 Boston, Massachusetts 02110 i 6 s
on behalf of New England Coalition 7
n Nuclear Pollution:
i DIANE CURRAN, ESQ.
j 8 ELLYN WEISS, ESQ.
ANDREA FERSTER, ESQ.
9 Harmon & Weiss 2001 S Street, N.W.
j 10 Suite 430
.. Washington,'D. C. 20009 a
4 11
! On behalf of Seacoast Anti-Pollution j 12 League:
13 ROBERT BACKUS, ESQ. !
, Backus, Meyer & Solomon !
14 116 Lowell Street i Manchester, New Hampshire 03101 1 15
- On behalf of the Town of Hampton:
l PAUL McEACHERN, ESQ.
I 17 Shaines & McEachern
] 25 Maplewood Avenue I 18 Portsmouth, New Hampshire 03801 l
j 19 On behalf of the Nuclear Regulatory Commission Staff -
20 l
SHERWIN TURK, ESQ. l 21 GREGORY ALAN BERRY, ESQ.
U. S. Nuclear Regulatory l 22 Commission .
1 Washington, D. C. 20555 l 23 f
l
() 24 l 25 ace. FEDERAL REPORTERS, INC.
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1 PROCEEDINGS 1lllPBeb' j 2 JUDGE ROSENTHAL: This Board is holding oral l 3 argument today on two separate matters before it in the l
4 operating-license proceeding involving the Seabrook Nuclear 5 Facility. The first of these matters relates to the March 6 25, 1987, partial initial decision of the Licensing Board in' l
7 the onsite emergency planning and safety issues phase of the 8 proceeding.
l 9 Over the opposition of the applicants and the NRC' 10 Staff, four intervenors seek a stay of the effectiveness of 11 that decision which paves the way for the issuance of the l 12 low power license for the Seabrook facility, if and when the 1
() 13 Commission lifts the stay that it has imposed on such l 14 issuance.
l 15 The second matter is concerned with the March 20, 16 1987, memorandum and order of the Licensing Board in the
! 17 offsite emergency planning phase of the proceeding. This l
18 order reaffirmed the schedule previous?y announced by the i 19 Board for the hearing on the New Hampshire Radiological l
20 Emergency Response Plan. Claiming that the schedule 1 l
21 deprives them of procedural due process, the same four 22 intervenors asked that we review the interlocutory March l
l 23 20th order under our directed certification authority.
24 The applicants and the NRC Staff maintain that
() 25 directed certification is not appropriate and, l l /\CE. FEDERAL REPORTERS, INC.
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6930 01 02 4 1()PBeb 1 additionally, that the challenged schedule does not offend 2 due process.
3 As indicated in our April 17th order, we will 4 hear all argument first on the stay applications and then, 5 following a luncheon recess, we will turn to the motion for 6 directed certification. Our order also indicates that each 7 side has been allotted 60 minutes for the presentation of 8 oral argument on the stay applications, and 80 minutes for 9 the presentation on the directed certification motion.
10 I will now call upon counsel for the respective 11 parties to identify themselves formally for the record, and 12 I will start with the Seacoast Antipollution League.
() 13 MS. CURRAN: Judge Rosenthal, my name is Diane 14 Curran. I represent the New England Coalition on Nuclear 15 Pollution. It looks like the entire New England contingent 16 has been delayed. I imagine it is the weather at National 17 Airport.
18 JUDGE ROSENTHAL: Well, we did hear from 19 Assistant Attorney General Bronstein who called from the s
20 National Airport at approximately 9:20 and advised the 21 secretary to this Board that he had just arrived and he was 22 coming out by cab.
23 Wow so far as we're concerned, frankly Counsel 24 that choose to take the chance on air travel on the morning
() 25 of an argument assume whatever risks are attendant upon I
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T 6930 01 03 5 1 that option. Now we will hear from those counsel who are 1()PBeb
- 2 present on the intervenors side at the outset, and then if 3 they have arrived by that time, we will hear from the 4 counsel for those that are not present.
5 Ms. Curran, I will duly note that you are here 6 for the New England Coalition.
] 7 And let's see. Is counsel here from the Town of 8 Hampton?
9 (No response.)
10 JUDGE ROSENTHAL: No.
11 And I take it then Mr. Bronstein similarly has 12 not arrived.
() 13 (No response.)
14 JUDGE ROSENTHAL: All right.
15 Well, then, we will hear from you first--
16 MR. DIGNAN: Your Honor, Mr. Bronstein would be 17 the AG's office in Massachusetts.
18 JUDGE ROSENTHAL: Did I say that?
19 MR. DIGNAN: You were saying-- It is
, 20 Mr. McEachern who would represent--
21 JUDGE ROSENTHAL: I understand that.
22 MR. DIGNAN: I heard the Board had had a call 23 from the AG of Massachusetts.
I 24 JUDGE ROSENTHAL: That's right. We have not
() 25 heard from anyone other than Mr. Bronstein. No, I was 1
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6930 01 04 6 1 PBeb 1 aware of that.
2 All right. Counsel for the applicants.
3 MR. DIGNAN: Mi. Chairman, members of the Board, 4 my name is Thomas G. Dignan, Jr. I am a member of the firm 5 of Ropes and Gray,-225 Franklin Street, Boston, 6 Massachusetts.
7 To my left is my colleague, Ms. Kathryn 8 A. Selleck. We appear for the applicants here.
9 JUDGE ROSENTHAL: Thank you.
10 And for the NRC Staff?
11 MR. TURK: Good morning, Judge Rosenthal and 12 members of the Board. My name is Sherwin Turk. I represent O 13 eae nac seert om eae eev reaee t -
14 Present today also is Mr. Greg Barry who will be 15 speaking this afternoon on behalf of the Staff with respect 16 to the directed certification motion.
17 JUDGE ROSENTHAL: Thank you, Mr. Turk. l 18 Before we commence the argument there is a 19 preliminary matter that must be dealt with.
20 At approximately 4:30 yesterday afternoon this l
21 Board received by messenger the motion of the New England !
22 Coalition on Nuclear Pollution for leave to file a 23 supplemental memorandum or brief in' support of its motion i 24 for a stay of the low power license. For two independent l
O 2s reeeeee we ere ae vieo ese ottom for 1eeve to fi1e- '
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6930 01 05 7 lh,2Beb 1 In the first place, the motion is grossly out of 2 time. It appears from the motion that the supplemental 3 brief is addressed to matters arising from the filing some 4 time ago of the applicants' utility plan. Now if the
- . 5 Coalition believed as it represents in its motion that the 6 filing on April 8th of this utility plan had the effect of l
7 creating new legal issues, it should have had its motion for 8 leave to file supplemental brief and its supplemental brief 9 in our hands at least a week ago.
10 I can say, Ms. Curran, that as en appellant- i 11 advocate myself in my prior incarnation there was nothing 12 that irritated me more or I felt was more inappropriate than i O 13 e counee1, on the eve of en ore 1 eroumene, fi11no e 14 supplemental brief addressing matters that are to be 15 considered at that argument. In this case I'm assuming that 16 the counsel for your adversaries did not see either the 17 motion or the supplemental brief that was attached to it 18 until this morning.
19 '
. Secondly, it appears from the motion that the 20 matter which you wish to raise before us is now in the laps 21 of the Commission. As you are aware, Ms. Currran, the 22 Commission has the whole question of the significance of.the 23 utility plan before it at this time. It also has still in i !
24 effect a stay of the issuance of a low power license. l O 25 It seems to me-- It seems-to the Board in the i
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1(PBeb 1 totality of circumstances that your motion has, apart from v
2 being grossly late, has been filed in the wrong forum. If 3 you think there is some significance to the matter of the 4 issuance of a low power license to be derived from the fact 5 that this utility plan is on file, it is the Commission to 6 which you should address your arguments.
7 So the Board is denying summarily the motion for 8 leave to file a supplemental brief. An order will be 9 entered memorializing that denial, and in the circumstances, 10 obviously there will be no necessity for the counsel for 11 other parties to address this motion this morning.
2 12 All right. With that note--
13 Yes, Ms. Curran.
(])
14 MS. CURRAN: I would just like to address one 15 important issue that I think is related to that, and that is 16 that we responded to the filing of the Massachusetts Utility 17 Plan as quickly as was possible for us. We were engaged in 18 summary disposition motions. As soon as we had-- We were 19 reviewing the plan in connection with the Commission's 20 request for a brief on 50.33(G). As soon as we developed 21 this argument we filed the brief as a courtesy to all the i
22 parties and the Board.
23 Now it may be the Appeal Board considers that 24 this issue is not currently ripe for consideration today.
() 25 However, it may ultimately be an issue that comes before ACE-FEDERAL REPORTERS, INC.
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a 6930 01 07 9 1 you, and we felt that it was absolutely necessary that we 1()PBeb 2 raise this potential issue before you as quickly as we 3 could, as soon as we knew of it, because I do think it will 4 be critical to our petition for a stay of the low power 5 license, perhaps not today but when this issue does come 6 back before you.
7 And we do feel that we are entitled, when the 8 Commission rules on the 50.33(G) issue, to come back to this 9 Board and discuss that issue further if it is necessary.
10 JUDGE EDLES: Ms. Curran, why isn't the matter 11 properly before the Commission? They, after all, have 12 before them a stay of the low power license. They are also
(")%
(_ 13 considering the implications, if any, of the filing of the 14 Utility Plen. Why isn't that really a matter in their 15 bailiwick rather than ours?
16 MS. CURRAN: Well, this Board is also considering 17 the stay of a low power license.
18 JUDGE ROSENTHAL: Not on this issue. I mean we 19 have spoken previously on the subject of the significance or 20 lack thereof of the absence of state and local government 21 emergency response plans to licenses issued prior to full 22 power licenses.
23 Now the Commission undertook to review our 24 decision. It is all in the lap of the Commission, and as r~-)s
(_ 25 far as this Board is concerned, this whole matter is no ACE-FEDERAL REPORTERS, INC.
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6930 01 08 10 1 longer before us. This is in the Commission's lap, and the 1()PBeb 2 Commission will decide what significance attaches to the 3 Utility Plan in the context of permitting low power d
4 operation.
5 I don't know what the Commission will decide but 6 it is for it to make the decision, not for us.
7 MS. CURRAN: But if the Commission should decide 8 that a utility -- that this plan that has been filed is 9 acceptable to satisfy Section 50.33(G) then I think that we 10 will be required to come back to the Appeal Board and to 11 further argue our motion for a stay.
12 JUDGE ROSENTHAL: Well, you can renew your motion
() 13 for a stay if it becomes necessary to do so at a later 14 stage. All that I'm telling you at this point is, one, that 15 this motion in terms of our argument this morning is 16 untimely: second, at this point the matter is before the 17 Commission.
18 Now whether at some later point there will be 19 justification for the Coalition should it prove necessary or 20 desirable to renew a stay application based upon these 21 arguments, that can await the event. For now the motion is 22 denied.
23 Now do we have additional counsel that has 24 arrived?
(') 25 MR. BRONSTEIN: Yes, your Honor. Donald ACE-FEDERAL REPORTERS, INC.
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6930 01 09 11 1()PBeb 1 Bronstein for Attorney General James Shannon, Commonwealth 2 of Massachusetts.
3 JUDGE ROSENTHAL: All right, Mr. Bronstein.
4 MR. BRONSTEIN: I apologize for being late.
1 5 JUDGE ROSENTHAL: We understand that your plane 6 was delayed.
7 I take it that nothing has been heard from the 8 other intervenors' counsel coming down from New England.
i 9 They didn't come down on the same plane with you, I take it?
10 MR. BRONSTEIN: Mr. Backus and Mr. McEachern I 11 believe were scheduled on an Eastern flight leaving Boston 12 at the same time as my flight on Northwest at 7:30. Our
() 13 flight was delayed about a half an hour, and I suspect that 14 their flight was delayed perhaps even longer.
15 JUDGE ROSENTHAL: All right.
16 As I indicated to counsel before you arrived, 17 Mr. Bronstein, what we are going to do is go ahead and hear 18 argument on your side of the case, and if the other counsel 19 arrive in time, they will be heard.
20 Now let me a,sk you this:
21 As between now, Ms. Curran and Mr. Bronstein, has 22 there been any agreement as to allocation of time as well as 23 to the order of presentation?
24 MR. BRONSTEIN: All the intervenors have
() 25 consulted, in light of the Board's order, and have divided ACE FEDERAL REPORTERS, INC.
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6930 01 10 12 1(~'PBeb 1 up the time as well as the discussion of the various issues
'v' 2 raised in our State petitions, and I can outline that for 3 you at this time if you would like.
4 JUDGE ROSENTHAL: That would-be helpful.
5 MR. BRONSTEIN: I will be beginning the argument, 6 and I will be taking 20 minutes, reserving five minutes for 7 rebuttal, and I will be covering the issues of irreparable 8 harm and as to the likelihood of prevailing on the merits, 9 the substantive issue of the need for a Supplemental 10 Environmental Impact Statement, as well as the dismissal of 11 our late-filed contention concerning sirens in Merrimac, 12 Massachusetts.
() 13 Mr. Backus will be taking.15 minutes and will be 14 addressing the issues of the Environmental Impact Statement j 15 as it concerns Class 9 accidents, as well as the two issues 16 which were raised exclusively in his State petition which 17 concern the safety parameter display system as well as the 18 failure to require the Staff to call a witness at the 19 hearings.
20 Ms. Curran will be taking 15 minutes and will be 21 addressing the issue of the right to a hearing under the 22
- Atomic Energy Act.
23 And finally, Mr. McEachern will be concluding for 24 us, summing up, and will be taking ten minutes.
() 25 This of course assumes that both Mr. Backus and ACE FEDERAL REPORTERS, INC.
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2()PBeb 2 JUDGE ROSENTHAL: Yes.
3 Well, at least we will start-- I take it you're 4 going to start, Mr. Bronstein?
5 MR. BRONSTEIN: Yes, I am.
6 JUDGE ROSENTHAL: And that provides a 20-minute 7 or 15-minute envelope.
8 JUDGE EDLES: We can also hear from Ms. Curran.
9 MR. BRONSTEIN: Yes. There is nothing magical to 10 the order.
/
11 JUDGE ROSENTHAL: All right. You may proceed, 12 Mr. Bronstein.
() 13 MR. BRONSTEIN: Thank you, your Honor.
14 ORAL ARGUMENT ON BEHALF OF THE INTERVENORS 15 by Donald Bronstein, Esq.
16 As I said at the outset, I will be beginning my 17 remarks by addressing the issue of irreparableJharm.
18 JUDGE EDLES: And in that connection, I would 19 appreciate it if you would direct your attention 20 particularly to why this case is different from the Shoreham 21 litigation on which this Board, the Commission and the 22 Courts have already spoken extensively. .
23 MR. BRONSTEIN: I certainly will do that. i 24 Let me just begin by stating as an overview that j
() 25 it is the position, the uniform position of all the
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l 6930 01 12 14 IIm,PBeb 1 intervenors, here represented and soon here to be 2 represented, that in this particular case, under the-facts 3 in this particular case, it is sheer folly to allow low 4 power operation to resume at a time when there are still so 5 many serious unresolved questions concerning--
6 JUDGE EDLES: Mr. Bronstein, that was exactly the 7 argument that was made ad nauseum in the Shoreham case; 8 don't let it go onto low power because you are never going 9 to get a full power license. We rejected it. The 10 Commission rejected it. Even the Court of Appeals rejected 11 that argument. I mean help me out here.
12 MR. BRONSTEIN: Yes, I understand. I am
() 13 certainly aware of this Board's decision in the Shoreham 14 litigation.
15 It is our position that the facts of this case 16 are distinguishable from the Shoreham case.
17 JUDGE EDLES: Tell me how.
18 MR. BRONSTEIN: The basic way in which the facts 19 are distinguishable were really pointed up in the recent R
20 Commission decision of two weeks ago'in review of ALAB 853, 21 and that is that the uncertainties concerning full power 22 operation in the Shoreham litigation were deemed by the 23 Commission to be essentially litigated and political and 1
24 therefore within the realm of speculation, and that the
() 25 Commission was not going to take those kinds of factors ACE-FEDERAL REPORTERS, INC.
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1 into account.
2 However, as the Commission pointed out in a 3 related although somewhat different issue from the issues 4 that we're addressing today, and that is the 50.33(G) issue, 5 in this case we have on the face of it the inability on the 6 part of the applicants to conform to regulations, and that 7 inability is evidenced in a couple of ways.
8 Number one, the applicants have determined at 9 this point as a strategic matter that its best available 10 route to licensing and perhaps its only available route to 11 licensing is to seek waiver of an applicable regulation.
12 This is an implicit concession that it is unable to meet the 13 regulations as they currently stand. That is, assuming that
(])
14 there is a ten-mile emergency zone placed in effect here--
15 JUDGE ROSENTHAL: Why is that implicit 16 recognition at all? It seems to me that may be a 17 recognition that they are confronted with the same problem 18 the Shoreham folks are, and the Shoreham folks are 19 confronted with the fact that the State of New York and 20 Suffolk County, both for the reason, the assigned reason 21 that they do not believe emergency planning is possible, 22 have opposed the plan.
23 In the case of Seabrook, we have the Governor of 24 your state that has taken precisely the same position.
() 25 Now it may well be that what the applicants had ACE FEDERAL REPORTERS, INC.
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6930 01 14 16 1()PBeb 1 in mind was not that emergency planning is not feasible in a 2 ten-mile area but that they're dealing with Governor 3 Dukakis.
4 MR. BRONSTEIN: And in light of that opposition 5 -- and I might add the very consistent opposition in this 6 case-- In the Shoreham case there seems to be some question 7
about some equivocation on the part of Suffolk County 8 officials--
9 JUDGE ROSENTHAL: Not since about ' 8 3.-
10 MR. BRONSTEIN: Well, here we have-- And of 11 course it is well to bear in mind that in the Shoreham 12 example, low power operation was authorized some two years
() 13 ago, and we are not significantly closer to full power 14 operation there.
15 But in the Seabrook litigation we have consistent 16 positions taken throughout this litigation by the 17 Commonwealth of Massachusetts and by the s'ix towns within 18 the emergency planning zone that there will be no 19 participation in emergency planning, that in fact, because 20 of the particularities concerning the location of Seabrook, 21 no evacuation plan can--
22 JUDGE ROSENTHAL: That's exactly Shoreham. That 23 is precisely the Shoreham situation, that you've got the 24 State of New York and Suffolk County saying we will not
() 25 participate.
I can frankly state that I don't see any ACE FEDERAL REPORTERS, INC.
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17 1 factual distinction between those two cases that would allow 1()PBeb 2 us to conclude that those very clear Shoreham holdings are 3 inapplicable to Seabrook.
4 MR. BRONSTEIN: What we don't have in the 5 Shoreham litigation which we do have in this case is an 6 attempt on the part of the applicants to seek waiver of a 7 fundamental regulation.
8 JUDGE EDLES: So they went frcm Shoreham. They 9 saw Shoreham with a one-prong attack at one end of the 10 problem that has not been entirely successful, as you have 11 pointed out. So this applicant is a little smarter. He 12 said we have tried three or four different. For all I know,
() 13 they're going to the Congress. They're doing a million 14 things.
15 We're just talking really about the degree of 16 difference maybe, but I mean isn't that-- In its essence, 17 don't we have a situation in which both applicants are 18 getting resistance from state or local governments and in 19 both cases, their efforts are on a variety of fronts? I 20 mean legislative, judicial, whatever, a variety of fronts, 21 to try and figure out some way around the resistance of the 22 state and local governments.
23 I don't disagree with you, by the way, that there 24 may be some degrees of difference here over the likelihood
() 25 that they are going to be able to do it in one case as ACE-FEDERAL REPORTERS, INC.
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6930 01 16 18 1 PBeb 1 3pposed to the other.
Sure, maybe it's more likely in i
l 2 l Shoreham than Seabrook, although I'm not sure that is true.
3 It may be the tactics are slightly different.
4 But when you cut through all of that stuff, 5
aren't we really talking about the same basic problem here, 6
and the same basic considerations?
7 MR. BRONSTEIN:
There is admittedly a great deal 8
of similarity between the two cases.
9 I of course am forced to concede that; there is no question about that. But there 10 are several things which distinguish this situation, and one 11 of them is the experience that we have had in the last two b 12 years, since the decision rendered in the Shoreham {
O 13 t i t ise e i<>a -
14 That decision was based on an assumption that 15 these problems could not be solved, 16 and here we have in this instance we're faced with making this decision once again as 17 to whether to allow low power operation to commence ,
18 knowing what has happened in the Shoreham litigation , and 19 that is that two years later we are no closer essentially to 20 a full power operating license being granted in that case 21 22 than we were at the time that the decision was made two years ago.
23 JUDGE EDLES:
So the quality of the problem, if 24 you will, is the same.
What we are talking about is sort of
) 25 the likelihood that the full power license perhaps will be ACE-FEDERAL REPORTERS, INC.
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6930 01 17 19 1()PBeb 1 granted as opposed to what we thought two years ago was--
2 MR. BRONSTEIN: I think we can certainly say that 3
two years later it is even less likely in the case of 4
Seabrook than it was in Shoreham.
5 JUDGE EDLES: Your argument now -- and I may be 6
inclined to agree with you -- is that it looks less likely 7
now that Seabrook will go than that Shoreham would have gone 8 two years ago.
Is that the crux of the difference?
9 MR. BRONSTEIN: I think that is certainly one of 10 the crucial differences, but I think it is also important to 11 take note of the action that the Commission has underway in 12 terms of its proposed changes to emergency planning rules.
() 13 The rationale stated for that rule charge seems to be on the 14 part of the Commission an acknowledgment that given the 15 current state of the regulations, there is an inability in 16 both the Shoreham and the Seabrook cases, to meet the 17 applicable standards.
18 JUDGE ROSENTHAL: If that's the case, why isn't 19 it appropriate for us to leave this to the Commission to 20 decide.
As a matter of fact, the Commission was the body 21 that determined in the Shoreham case on, if I recall 22 correctly, a certified question from the Licensing Board 23 that the improbability, as the Licensing Board saw it, , or at 24 least doubt as to whether Shoreham would ever get a full
() 25 power license should serve as an impediment to the ACE FEDERAL REPORTERS, INC.
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I 2QPBeb 1 issuance of a low power license.
The Commission said in 2 that case no.
3 Now if you're telling us that -- well, that 4
there's some differences now and these are things that the 5
Commission seems to have recognized, it seems to me that we 6
ought to let the Commission decide that. I mean it is the 7
Commission's holding ultimately, not ours, that you don't 8
stop a lower power license because of uncertainties as to 9 full power operation.
10 MR. BRONSTEIN: Ultimately of course the 11 Commission may well have to face this question, and I'm not 12 certain that that in any way would serve as any reason for O 13 thie 8oera "oe reci=9 thet oueettom-14 JUDGE ROSENTHAL: We have to obey Commission 15 directives.
16 MR. BRONSTEIN: There is no question that that is 17 true. And I think that if this Board is looking for a way 18 to distinguish the Seabrook litigation from the Shoreham 19 litigation it need look no further than the Commission's 20 decision of two weeks ago in which the Commission itself 21 distinguished the two cases.
22 JUDGE EDLES: Okay. Now getting back to the 23 issue that you're going to address which was irreparable i
24 l
harm, explain to me how the distinctions that you've asked C 25 us to draw between the two translates into the issue of i
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1 irreparable harm.
2 MR. BRONSTEIN: I was trying to set that as the 3
general framework for a difference in the two cases overall, 4
and probably it relates more specifically to the arguments 5
which I will soon turn to on the Environmental Impact 6 Statement.
7 JUDGE ROSENTHAL: You wanted to reserve five 8 minutes for rebuttal. You've only got about six minutes -
9 left.
10 MR. BRONSTEIN: Let me proceed. Let me address 11 immediately the issue of irreparable harm because it is 12 clear that is the fundamental issue here.
(]) 13 JUDGE EDLES: I would appreciate it if you would 14 address the distinctions between this case and Shoreham in 15 the context of irreparable harm.
16 MR. BRONSTEIN: There is one fundamental 17 difference and that is in the Shoreham litigation the 18 primary assertion that we have in this case on irreparable 19 harm. and that is the accumulation of high level radioactive 20 waste, was never asserted.
That in and of itself is an 21 environmental damage which is irreparable. We are talking 22 here if low power operation is to commence--
23 JUDGE EDLES: Why is that irreparable? Why can't 24 they just move all of that junk out of there in case they
() 25 don't get the license?
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o 6930 02 02 22 IOeaed "a 8ao"s'e'"= I 2
8eceuse curreattv ee = eure the Board is aware, this is a national problem. We don't 3
know exactly how to dispose of high level radioactive 4 waste.
There are obviously on the drawing boards plans for 5
eventually siting a high level radioactive waste 6 repository.
Those plans are not well advanced. There is 7
not even yet a site selected.
8 JUDGE EDLES: The Supreme Court, as I recollect, 9
has said that the Commission has correctly elected to 10 11 proceed generically on that issue, -- Isn't that correct? --
rathern than -
12 Wasn't that Baltimore Gas and Electric's case before the Supreme Court where they said the Commissi O 13 property coac1ueea enet on 14 te cou1e eaarees nion 1 eve 1 weste problems on a national level rather than doing it on an 15 individual licensing case basis?
16 MR. BRONSTEIN:
17 But what we have in this case is 18 a decision being made to authorize low power operation n i
light of the tremendous uncertainties involving full power 19 operation and a resulting irreparable form of environment al 20 damage in the accumulation of high level radioacti 21 ve waste which it in no way will be compensated for.
22 JUDGE EDLES: It 23 is only irreparabl'e, though, if it has to sit there on your doorstep. If they move all of 24 this stuff out to Texas or wherever,
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3 BRONSTEIN: Well, clear that until the plans ar I think it is certainly 4
e formalized, there is a good 5 chance that should Seabrook nev er open that the 6
is going to become a high l site itself v
facility for the foreseeable fevel radioactive waste e storag 7 uture.
JUDGE EDLES:
8 your client then, And how does that irreparabl y harm 9
MR. the State of Massachusett s ?
10 BRONSTEIN: Well, JUDGE EDLES:
it certainly affects -
11 We can protect spent fuel pool or put it it, put it in a 12 they'll do with it but in the reactor.
h 13 it is I don't know what MR.
BRONSTEIN:
not going to hurt anybody.
14 exposure, for Certainly if you're talki ng about 15 ! Massachusetts example, of workers, many whom are of which are quiteresidents, you're talking ab 16 17 out communities away from that site. close to that location. I'm just 18 two miles 19 level radioactive waste dumThe prospect of having a mass of high ped a mere two certainly impacts on those miles away 20 21 JUDGE EDLES: How communities in Massachusett s.
is not going to be like th massive is the waste dump? It 22 they're collecting waste e high level waste dump where 23 -
country.
24 It would be kind of like thup from e every other sta country at all of these plant ey have around the 25 sites.
MR. BRONSTEIN: It is certainly not of that l
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6930 02 04 24 1 you see that as a permissible form of relief?
2(( )PBeb 2 HR. BRONSTEIN: My own feeling is that under 3 2.788 that's not specifically what our State petitions are 4 addressed to. I believe it is within the scope of your 5 supervisory authority over Licensing Boards.
6 JUDGE ROSENTHAL: Apparently it was the New 7 England Coalition that has asked for a stay pending the full 8 power decision.
9 MR. BRONSTEIN: I think that that is an 10 appropriate form of relief, your Honor, and I think that 11 that is within the ambit of your supervisory authority, 12 obviously subject to review by the Commission.
() 13 In this particular situation where we are talking 14 about a form of irreparable harm that really cannot be 15 adequately cured until such time as there might be a full 16 power operating license where at least we will be receiving 17 the benefits of electricity, I think that this Board could 18 step into this situation and say that Yes, in light of the 19 situation in this particular case, in light of these 20 extremely important unresolved questions, it would be 21 foolhardy to go further at this point.
l 22 It doesn't necessarily mean that you absolutely 23 would have to wait until the day the full power operating l 24 license issued, but certainly until a point far further down j l
rm
() 25 the line, until there was a point where a full power 1
I l
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3 seemed less unresolvable an they do the thseemed problems to b at the moment.
4 JUDGE ROSENTHAL:
You have 5 minutes, so that if you wish to used 15 of your 20 rebuttal, bear that in reserve five 6 mind. minutes for 7 MR. BRONSTEIN:Okay.
8 l reserve Let me just very, very quickly, as I do 9 I some time for rebuttal wish to 10 Environmental Impact S , address the Supplemental tatement, 11
, primary argurrent there i and just state that my s to 12 I have drawn with the Sh rely on the distinctions oreham litigation. which O 13 - I understand 14 commieetoa'e cecistoa ia the shthis Board it is distinguishable
, or the 15 orenem 11tisetioa-1 de11 eve 16 attention to the Commis i, and I would direct the Board's s on decision of 17 ' note the differences in th two weeks ago, to distinguished that. e way in which the Commi 18 ssion 19 And finally, I just w 20 preserving this issue th ant to note by way of issue at we have raised here 21 of the late-filed Merrimac, and I would contenti on also the 22 concerning the ask the Board - sirens in issue is fully set out i 23 n the attachment to I believe that that 24 petition which attaches th our State revised basis. e late-filed contention 25 , with the And I just want to point out that in the ACE. FEDERAL REPORTERS 202-347-3700 N6 '
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1 Licensing Board's decision rejecting that contention the 2 Licensing Board was faced with two competing factual 3 affidavits, one provided by us and one provided by the 4 applicants.
5 And although acknowledging our affidavit, the 6 Licensing Board chose simply to ignore it, and in no way 7 disputed the factual assertions there but simply chose to 8 accept the factual assertions put forth by the applicants' 9 affiant. And I would contend that that is impermissible, R
10 that that is akin, on a motion for summary disposition, to 11 accepting one affidavit and rejecting another.
12 Where there are material issues of fact like
() 13 this, I don't believe that the Hearing Board could reject a 14 contention on the basis of accepting factual assertions by 15 one side.
16 JUDGE EDLES: Mr. Chairman, with your indulgence, 17 I just have one question I would like to ask.
18 JUDGE ROSENTHAL: This will be on our' time rather 19 than yours, Mr. Bronstein.
20 MR. BRONSTEIN: Thank you.
21 JUDGE EDLES: With respect to the Class 9 22 accident which you said Mr. Backus was due to address,--
23 MR. BRONSTEIN: Correct.
24 JUDGE EDLES: -- did Mr. Backus raise-- That is
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2 MR. BRONSTEIN: Well, let me explain that.
3 -His petition incorporates by reference all of the l
4 issues raised in our petition and then he added two )
5 additional ones which we didn't raise. The reason i 6 Mr. Backus was going to address that'is that was a simple 7 contention.
8 JUDGE EDLES: Right. Let me ask'you this 9 question:
10 The Staff indicates that you did not oppose the 11 summary disposition - "you" meaning the Commonwealth of 12 Massachusetts did not oppose summary disposition of the
() 13 Class 9 issue. Is that accurate?
14 MR. BRONSTEIN: That's my understanding of the 15 record, yes.
16 JUDGE ROSENTHAL: So you didn't oppose that 17 below. And to the extent that you raise that with us, I am 18 entitled to consider the fact that you didn't oppose that 19 below, and Mr. Backus relies on your paper. Therefore, tx)-
20 the extent that he is derivatively relying on you, I can 21 rely on the fact as to him that you didn't oppose this below
.i 22 either, did you? Is my legal logic reasonable?
23 MR. BRONSTEIN: I may have some problem with it 24 on two scores:
() 25 Number one, I believe as an interested State we ACE FEDERAL REPORTERS, lNC. ,
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3 JUDGE EDLES:- I'm not sure that's right. You can 4 litigate issues below maybe without filing -- or through 5 some handling of contentions, but I don't know that you are 6 entitled to come up to us and ask us to do things that you 7 didn't ask the Licensing Board to do.
8 MR. BRONSTEIN: Well, that's my understanding of 9 our appellate rights.
10 But beyond that, certainly-I believe that 11 Mr. Backus is entitled to raise this as all he has done is 12 incorporate by reference the issues raised in our State
( }) 13 petition. And even if the Commonwealth does not have 14 standing to raise that issue, Mr. Backus clearly does, and 15 as a shorthand form, to reference our affidavit I think 16 satisfies that.
17 Thank you.
18 JUDGE ROSENTHAL: All right, Mr. Bronstein.
19 I might say before we proceed with Ms. Curran 20 that apparently at 10:20 this morning, Mr. Backus and 21 Mr. McEachern called. They had just arrived at National 22 Airport, and they will be here as soon as they can.
23 I think what we-will do is we will hear from 24 Ms. Curran, and maybe we will then take a brief recess
/
25 rather than, as we normally would do, after the
(_)
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1(()PBeb 2 All right, Ms. Curran.
3 MS. CURRAN: Thank you, your Honor.
4 ORAL ARGUMENT ON BEHALF OF THE INTERVENOR, 5 NEW ENGLAND COALITION ON NUCLEAR POLLUTION 6 by Diane Curran, Esq.
7 I am here to address the validity of Section 8 50.47(D) under the Atomic Energy Act which was raised in our 9 brief before the Appeal Board, and also before the Licensing 10 Board.
11 In our opposition to the low power license--
12 JUDGE EDLES: Let me quickly cut through and ask
() 13 you whether this is a matter that the Appeal Board can 14 properly look at. Is there a Commission regulation? You 15 may well be preserving your rights of appeal here for the 16 purpose of taking it on up to the Commission later, and I l' understand that. But can we do anything? I mean we can't 18 say that 50.47 is invalid. That is not within our purview 19 as an Appeal Board. You have got to take the rules as we 20 get them.
21 MS. CURRAN: Well, you are in the unusual 22 position of sitting on a stay motion in which you have to 23 evaluate the likelihood of our ultimate success on the 24 merits, and I think that includes our ultimate success in a
() 25 federal court, and that that is a different obligation than l
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3 And I also do think that we need to raise this 4 issue before you in order to preserve our rights on appeal.
5 JUDGE ROSENTHAL: Okay. You may have to do 6 that. I think that Mr. Edles' question is is it a 7 profitable use of either your time or ours for you.to pursue 8 this argument before us. You've preserved it. It is 9 preserved for the Commission. It is preserved for the 10 court.
11 I think what Mr. Edles is suggesting to you, and 12 I tend to agree with him, is that whether we are talking
() 13 about stay applications or whether we're talking about the 14 merits, we do not have the authority to consider a claim 15 that a rule of this Commission is invalid. That is 16 something that has to be addressed to the Commission.
17 Now one of the th!.ngs that we might consider l
18 doing on some of these issues in the event that we were to !
19 deny a stay, the thing that we might consider is giving you 20 an interim stay, enough time to go to the Commission and !
l 21 present those arguments to the Commission. But I don't 22 think, frankly, that you are really spending your time or 23 our time efficaciously when you talk to us about the alleged l
24 invalidity of a Commission rule. '
() 25 MS. CURRAN: Well, I would like to offer another ACE-FEDERAL REPORTERS, INC.
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2()PBeb 2 JUDGE EDLES: If I were you I would do it 3 quickly.
4 MS. CURRAN: There is always-- There always 5 should be an aggressive, intensive investigation into the 6 validity of the rules of the Commission, and I think that 7 the Appeal Board's' view on an issue like that would be 8 important and would be va?'lable to the Commission. And it i 9 is always important to undertake these issues and evaluate 10 them when they are raised.
11 I don't think that the Appeal Board's opinion 12 would be irrelevant to this question. I think it would also
() 13 be helpful. I agree that it is Commission policy that the 14 50.47(D) is on the books. The Commission considers this 15 valid, but I also think that it is the obligation of the 16 rest of the agency to consider these arguments when they 17 come up and express their views.
18 JUDGE EDLES: Okay. I understand you. I mean it 19 is fairly Hornbook administrative law that subordinate 20 tribunals don't consider the validity of statutes, 21 !
regulations and the like, just as administrative agencies 22 don't consider the constitutionality of statutes under 23 which.they are operating. If there is a problem with the 24 constitutionality, take it up with the courts; dont take it
() 25 up with the agency.
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- - 1-6930 02 12 32 l- So I-think-- You know, I appreciate the 1(}iPBeb 2 confidence you have in us and our intellectual capabilities 3 to discuss these weighty matters, but at.least for me1I 4 think'you are probably'in the wrong forum on that.
- 5. JUDGE ROSENTHAL: I think from my standpoint you
~
6 are definitely in the wrong forum.- Again I don't think-it 7 is our role to provide the Commission with_our. wisdom, such 8 as it might be, on the validity or invalidity of the regulations. It you have'got an argument you have preserved 9 _
10 it before us. Then take it to the Commission.
11 JUDGE EDLES: Now if.you want to.take a little 12 bit of the time and help me out on the differences bet' ween .
'(]) 13 this case and the'Shoreham case other than those that 14 Mr. Bronstein has mentioned, I wouldn't mind that kind of 15 utilization of your time.
, 16 I don't know whether you can.really add much more 2
17 to what he said. I thought he made a reasonable 18 presentation of his position. Perhaps there-isn't anything l 19 more that you can add, but I for one would give you a chance ;
- q. 1 L 20 to do it-if'you would like.
21 MS. CURRAN: I would like to address the issue of 22 the -- the relationship of our Atomic Energy Act-argument to
, 23 the issue of irreparable harm because I think there is a i 24 relationship there that is within the purview of this Board,
() 25 and that is that it appears from the legislative history of
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i 6930 02 13 . 33 2fv PBeb 1 the Sholly Amendment that one Congress undertook to create 2 an exception from prior hearing requirements for license 3 amendments that posed no significant hazard, that they are 4 also concerned with licensing actions that pose irreversible 5 consequences, that there is a fundamental principle 6 underlying the prior hearing requirement which is that the 7 NRC does not take' actions having irreversible consequences 8 before completing licensing hearings.
, 9 And I think that this is exactly the type of harm 10 that was contemplated by Congress in passing the Atomic 11 Energy Act that we're asking the Appeal Board to stay.
12 JUDGE EDLES: Ms. Curran, let me read to you from
() 13 the pro curium opinion of the D. C. Circuit in the Cuomo 14 case. The Court says at page 976:
15 "No doubt low power testing 16 represents an irreversible change from the 17 status quo but the significance of this change 18 does not amount to irreparable harm."
19 I am quoting from the Court of Appeals. Shall I 20 tell them they are wrong?
21 MS. CURRAN: But then you have to get back to the 22 Atomic Energy Act which does not exempt "no significant I 23 hazards" license issuances from the prior hearing 24 requirements. That's what you have to get back to. ;
() 25 It really doesn't matter to Congress how l
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2 consequences.
3 JUDGE EDLES: So your_ argument is not really, as 4 you suggested, an argument going to the irreparable harm 5 question. Your argument really goes to' sort of the merits 6 question. You say that you are going to prevail on the 7 merits because the statute is clear that you are entitled to 8 a hearing before the Commission. takes any action, any type 9 of licensing action. That is sort of . a merits claim.
10 Right?
11 MS. CURRAN: Yes, but the merits also ties into 12 the irreparable injury question which is that one tries to 13 define what the irreparable injury is, the measure of the
(])
14 irreparable injury, from what the enactors of the statute-15 intended. And in this particular case you have to look to s
16 Congress' intent in preventing any kind of a license
, 17 issuance, any taking of irreversible steps before the 18 completion of hearings.
19 And I think that is absolutely key here, and I 20 don't think the Court of Appeals addressed that issue.
21 JUDGE EDLES: Well, you will undoubtedly get 22 probably a second chance to raise it.
23 MS. CURRAN: Well, we do-- We have in our stay 24 motion requested, if the Board decides not to give us a stay
() 25 pending full power licensing, a stay pending our filing of Ace FEDERAL REPORTERS, INC.
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2 JUDGE EDLES: . That's correct. And 3 Chairman Rosenthal indicated that we are fully aware of-
~
! 4' that, and we will undoubtedly take that-into consideration.
5 JUDGE ROSENTHAL: Yes. What.we-would take into f
~
6 consideration would be whether to 'give 'you a short stay to 7 go to the Commission or the Court.- And what.I am hearing-8 today, so far at least, is basically arguments which, if.
9 they are to be considered at all at this agency,-have to be _
10 considered by the Commission.
'll I am sure that there are other arguments that we-12 will be hearing that will not appear to fall within the
() 13 ambit of prior Commission and Court decisions, but so far, ;
14 from what I have heard, what I would have to frankly tell i
j 15 you, as I indicated to Mr. Bronstein, is that it seems to me 16 that our hands are tied as we are obligated to follow 4
17 Commission and Court decisions. We are a subordinate
! 18 tribunal. We are continually reminded of that.
1 19 JUDGE EDLES: Notwithstanding our appreciation 1of- i
! 20 the novelty and creativity with which you present your 21 claim.
22 MS. CURRAN: Thank you.
23 And we would like to-- I already said this. We
- 24 would like to, if it becomes necessary, revisit the issue of i
( )- 25 whether 50.47(D) even applies to the submission of the
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Il)PBeb 2 JUDGE ROSENTHAL: All right. Well, if that 3 becomes necessary you can present it to us, but just bear in~
4 mind that any argument that is presented to us must be one 5 that has not already been passed upon and decided by higher 6 authority.
7 MS. CURRAN: I don't think that one has.
8 JUDGE ROSENTHAL:- Okay. Fair enough.
9 I am not prejudging that, but-I am just saying 10 that that is something that you have to bear in mind because 11 we do not consider our role to include giving advice to the 12 Commission on whether or not prior pronouncements by-the
() 13 Commission are correct.
14 JUDGE EDLES: Probably because it would rarely be 15 taken.
16 (Laughter.)
- 17 JUDGE ROSENTHAL
- Certainly whether it would be 18 rarely taken or not it would be rarely appreciated.
19 MS. CURRAN: I'm sorry, I haven't been watching 20 the clock. How much time to I have left?
21 JUDGE ROSENTHAL: You have about five minutes.
22 MS. CURRAN: If I might, I would like to give my 23 time to another party who might need it.
24 JUDGE EDLES: You might prefer rebuttal if you
() 25 want to save your five minutes for that.
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1 'MS. CURRAN: What I would like to do is consult 2 for a moment with Mr. Bronstein.
3 JUDGE ROSENTHAL: All right.
4 (Counsel conferring.)
5 MS. CURRAN: We would like to take more time for 6 rebuttal.
7 JUDGE EDLES: Good idea.
8 JUDGE ROSENTHAL: .All right.
9 Well, I think in the circumstances we will - .if 10 my colleagues do not have an objection -- accommodate the' 11 missing advocates to a limited extent. As I stated before, 12 it seems to me that people who choose to fly from Boston to (j 13 Washington on the morning of an argument assume certain 14 risks. But having said that, we will take a recess until 15 eleven o' clock, and we will then see whether the missing 16 advocates have arrived.
17 (Recess.)
18 19 20 21 .
22 23 24
() 25
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6930 03 04 38 Sbur 1 JUDGE ROSENTHAL: I take it that....
[
2 MR. BRONSTEIN: Judge Rosenthal, when our plane 3 arrived late, it arrived at 9:20 and we got here at 10 after 4 10:00. If their plane arrived at 10:20, I would think they 5 would be here in about 10 minutes.
4 6 JUDGE ROSENTHAL: Well, might or might not, but 7 the problem frankly that we are having, Mr. Bronstein, is 8 that this lLs an all-day affair,_as you know, and it seems to 9 us that basic fairness requires that at some point the 10 failure of lawyers to be present results in some kind of 11 detriment.
12 Now, this Board is inclined at this point to 13 offer the opportunity to you, Mr. Bronstein,'or Ms. Curran
(]}
14 to address some of these other points. If not, we will 15 treat them as submitted on the brief, and we will hear from 16 the Applicant and the Staff.
17 I might say in that connection that oral l
18 argument, as you well know, is really for the benefit of the 19 adjudicators, not for the benefit of counsel, and I think I 20 speak for all of my colleagues in saying that while we would 21 be pleased to hear from the other counsel, if present, on 22 those remaining issues, that thay are briefed and we do 23 under::tand their position, the Intervenors' position on j 24 them.
{} 25 JUDGE EDLES: Just as an added item, Mr.
l l
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- 6930 03 04 39 gggpbur 1 Chairman, I gather that the Town of Hampton was really going.
2 to present a summary of other matters, so that at least in 3 that respect we will not be deprived of-their presentation 4 on any unique issue.
-5 Mr. Backus of course was going to talk about the 6 Class Nine question and the SPDS, and as a result, we will 7 not have his oral views on that.
8 Those would then be the only issues on which we-l 9 have not had oral argument.
10 JUDGE ROSENTHAL: All right, Mr. Dignan.
11 MR. BRONSTEIN: Could you give us a moment to f 12 consult as to the remaining time?
l I
{} 13 -
JUDGE ROSENTHAL: Yes.
14 (Counsel conferring.)
15 MR. BRONSTEIN: Let me just take a couple of 16 minutes of the time --
17 JUDGE EDLES: Just keep dancing like Ray Bolger.
18 (Laughter.)
i 19 MR. BRONSTEIN: I don't have my dancing shoes l
20 with me, but I actually would like to just start by 21 addressing a couple of points that came out during_Ms.
22 Curran's argument, and I just wanted to clarify just to be 23 certain that the Board understood our position as to the 24 right to a hearing argument that-we are not asking this 25 Board to actually rule on the merits in favor of us on that
{ }-
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, g pbur' 1 issue, but simply to take that into account in deciding 2 whether to grant a stay,.whether we have a likelihood 3 ultimately of prevailing on the merits of that issue in.
4 court.
- 5 JUDGE ROSENTHAL: Well, without belaboring the 6 point, Mr. Bronstein, if we were to say, okay, the
~
7 Intervenors have the requisite likelihood of success on the 8 merits because we think that the Court is going to tell the ,
9 Commission that it is out to lunch, I think the Commission 10 might find that offensive, and I thiak justifiably so.
11 I think that for the purposes of determining 12 whether there is a likelihood of success on the merits we l
13 have to accept as a subordinate tribunal the correctness of
(]}
14 decisions of superior tribunals.here at the Commission.
i
[ 15 MR. BRONSTEIN: Well, I understand the Board's a
16 reluctance in that area. I do believe.it is a factor that 17 can be taken into account.
18 But I would also like to point out that this 19 issue has been raised here in a slightly different context, o 20 and that is that the Commonwealth of Massachusetts filed a 21 petition for waiver of Section 50.47(D), and it is our l
)
22 contention, and will be pressed on the merits of our appeal 23 when we file our brief, that it was an abuse of discretion i
24 on the part of the Licensing Board to fail to find-a prima
(} 25 facie case, that that was legal error.
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6930 03 04 41 pbur 1 JUDGE EDLES: But that is not a matter that you 2 pressed before us here.
3 MR. BRONSTEIN: Yes, it is.
4 JUDGE EDLES: That was one of the things that you 5 put in your footnote, that, by the way, there are a lot of 6 other things, more to come, film at 11:00.
7 But how am I supposed to decide the success of 8 the merits of all the things you have in a footnote that you 9 are going to raise?
10 MR. BRONSTEIN: We did raise it squarely, I 11 think, and it was not in a footnote. It was in the text of 12 saying it was an error on the part of the Licensing Board to
(} 13 dismiss that petition, and we attached the petition as an 14 exhibit.
15 I am sure your Honor understands the space 16 constraints which we were operating under in raising as many 17 issues as we did.
18 The other point I wanted to make that came up 19 during Ms. Curran's argument relates to the stay that this 20 Board might consider in the event that it denies our current 21 stay request.
22 You have indicated that you would give some 23 consideration at least to granting a short stay to altow us 24 time sufficient to get to the Commission. I would request
(} 25 that if that were to occur that this Board consider a ACE FEDERAL REPORTERS, INC.
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6930 03 04 42 1 slightly longer stay in light of the fact that when we go to gggpbur 2 the Commission, should we go to the Commission, it has to be 3 by form of petition for review, which the Commission has 30 4 days to act upon.
5 JUDGE ROSENTHAL: Not for a stay. You can G
6 petition the Commission immediately for a stay.
7 MR. BRONSTEIN: Well, it was my understanding 8 that once this Board, if this Board were to deny the stay, 9 that at that point we will --
10 JUDGE EDLES: Mr. Bronstein, I think you can be 11 confident that if we elect to grant some type of 12 housekeeping stay until such time as you go to the
(' 13 Commission, we would do it in a way that would give the 14 Commission a reasonable chance to look at your papers. We 15 wouldn't give them 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />, knowing that they are all out 16 of town or something.
17 MR. BRONSTEIN: Also recognizing that because the 18 Commission need not act on that immediately, we are left in 19 the situation of having to sit and wait for a response; if 20 we don't get one, having to then calculate at exactly what 21 date we have to go to court. It puts us in a very difficult 22 position, and it may preclude Commission review at the time 23 that the Commission might be considering review.
24 JUDGE ROSENTHAL: If we decide to grant a
(~') 25 housekeeping stay, as Mr. Edles indicates, I think we know L_/ l l
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i f""Bbur 1 how to do it in such a' manner as to protect your-interests.
- ( ) l
'2 MR. BRONSTEIN: Okay..
3 As to one of the issues that Mr.=Backus was to l 1
l i 4 address, the Class Nine issue, we'will be addressing that j l
5 more fully in our brief on.the merits, and I hope to be able 6 to provide at that-time considerable technical information
- 7 as to the deficiencies in the Environmental Impact Statement
, 8 as it-concerns Class Nine' Accidents.
9 And I would point out that it would seem likely
{
I 10 that this Board will have the benefit of our briefs on.the 11 merits at such time as the Board rules on our stay petition.
12- But I would just for the moment like to say-that 13 the point that is raised by the Applicants that the Council
(}
14 of Environmental Quality regulations are not applicable or i 15 were not really what was at issue at the time that the l 16 contention was originally framed, at the time that-the
! 17 contention was dismissed on motions for summary disposition i 18 is really not germane here.
t
, 19 Basically what occurred here'was that there was a l 20 contention formulated which indicated that the statement of 1- ;
21 considerations at that time in effect, which required that
{ !
22 the Commission consider the worst case kind of accident, 23 that that was not satisfied by the Environmental Impact l
24 Statement's consideration of Class Nine Accidents.
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6930 03 04 44 g Bbur 1 standard was amended, and we are not now arguing that the 2 standard that the Environmental Impact. Statement should 3 address was an outmoded standard. We are now saying that 4 the Environmental Impact Statement at that time should have 5 addressed that standard, but that standard has now been 6 changed, and the deficiency -- in order to correct that 7 deficiency at this point, it must meet the currently 8 applicable standard, which requires that the Commission give 9 the Staff -- in its EIS review, give consideration of 10 pessible accidents which have a low probability but a very 11 high consequence.
}
12 JUDGE EDLES: Hasn't the Staff done that here?
gg 13 MR. BRONSTEIN: No. T. : has done that, but it 14 hasn't done it sufficiently. It has not -- l 1
15 JUDGE EDLES: It has taken several scenarios, but l 16 not all of the ones that you want; is that basically the l 17 thrust of it?
18 MR. BRONSTEIN: That is right. It has not done 19 it adequately, and so I just wanted to point out that that 20 legal standard that we are now addressing, while admittedly 21 not the standard that was in effect at the time the 22 contention was dismissed, is the one which would now govern 23 and is actually a somewhat lesser standard than the one that 24 should have been addressed at that time.
ggg 25 JUDGE WILBER: Mr. Bronstein, what if they l
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6930 03 04 45 f~~Bbur I missed?
L) 2 MR. BRONSTEIN: Well, it is set forth in the stay 3 petition, and that is -- we list this on page 6, and that is 4 -- without just reading what is listed there -- essentially 5 that the discussion was a very general discussion. It 6 didn't pertain to any specifics that relate to the Seabrook 7 site or to the effects of a serious accident that could 8 occur at that site, and it failed to take into account 9 certain critical factors which could relate to the 10 probability of such an accident.
11 Specifically, the ones we mentioned in the stay 12 petition is the risk of sabotage is nowhere addressed in 13 that Environmental Impact Statement, the risk of sabotage.
(~Nx.]
14 JUDGE WILBER: I thought it was in there.
15 MR. BRONSTEIN: I don't believe it is.
16 And beyond that, of course, we will be fleshing 17 out those arguments in more detail as we approach the brief, 18 which I believe the Board will have at the time it comes to 19 rule on this stay petition.
20 JUDGE ROSENTHAL: Ms. Curran, do you want to...?
21 MS. CURRAN: I would like to address thc issue of 22 offsite planning elements that are required to be in place 23 before the issuance of a low power license.
24 There were two contentions submitted in the
/~) 25 onsite proceeding on the deficiencies with respect to the
\-) \
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1 sirens that have been installed in the New Hampshire EPC, gBbur 2 which were rejected as late filed.
3 Also, at the time that the stay motion was filed, 4 there was no plan at all submitted for the entire )
5 Commonwealth of Massachusetts. So there were absolutely no 6 offsite measures in place for Massachusatts. l 7 The statement of consideraticas accompanying 10 l
8 CFR 50.47(D) makes it clear that review of Applicants' )
9 onsite response mechanism necessarily involves aspects of 1
10 some offsite elements, such as communications, l
11 notifications, assistance, agreements, fire protection, and l
12 medical organizations.
(
g 13 JUDGE EDLES: Did you or any one of the 1
1 14 Intervenors raise with the Licensing Board in the low power 15 case, low power phase of the case, the fact that they had l 16 failed to address these elements of the offsite plan? l 17 MS. CURRAN: NEC&P did not.
18 JUDGE ROSENTHAL: Did anybody tell them, advise 19 them that they had to do it, or is that something that you 20 just thought of now?
21 MS. CURRAN: With respect to NEC&P, yes, that is 22 something that we developed. Of course, the low power 23 license motion was made back in Ju,1y or June of '86, and 24 this stay motion came much later.
g 25 But I believe that this is a legal issue and that ACE FEDERAL REPORTERS, INC.
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6930 03 04 47 Bbur 1 in terms of the Commonwealth of Massachusetts it is 2 something that can be brought to the Appeal Board.
3 I am not sure there is -- it is a question of 4 whether a plan even exists, whether you even have the basis 5 for making such a finding, and then that is O something that 6 is properly addressed in the Appeal Board. That is a purely 7 legal requirement.
8 JUDGE EDLES: But the problem, that adoption of 9 your argument means that the Licensing Board would have had 10 to make factual findings of some kind with regard to the 11 various elements -- communication, notification, whatever 12 else those things are that were ticked off in the Diablo g 13 Canyon case that you cited in your brief.
14 What I am asking is did you give the Licensing l 15 Board a chance to do that by alerting them to the fact that 16 they have to make these findings? )
17 You know, even if we as a legal matter conclude, 18 yes, they should have made that, but nobody told them that 19 they were supposed to have made those findings when we 20 litigated that issue.
21 MS. CURRAN: Well, certainly some aspects of that 22 issue were raised by Massachusetts and SAPL, and I am not 23 familiar -- that familiar with the other parties' motions in 24 opposition to the low power license.
g 25 JUDGE ROSENTHAL: The counsel have just arrived.
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6930 03 04 48 Bbur 1 You might want to let them use a part of the limited 2 remaining time.
3 MS. CURRAN: I think that is a good idea.
4 JUDGE ROSENTHAL: Gentlemen, I might say that 5 although we had a modest endeavor to accommodate you, we 6 took prematurely a 15-minute recess.
7 The Board does proceed on the basis that counsel
) 8 who decide to fly into Washington National Airport on the 9 morning of an argument assume certain risks.
10 There is remaining on your side of the case a 11 total of 25 minutes.
12 Now, Mr. Bronatein had indicated a desire to g 13 reserve five minutes on that side for rebuttal. That leaves 14 for you gentlemen, if they adhere to that, 20 minutes.
15 So you might -- I will give you a minute to 16 decide how -- yes, Ms. Curran?
17 MS. CURRAN: Are you counting my five minutes for 18 rebuttal?
19 JUDGE ROSENTHAL: Well, if you want five minutes 20 for rebuttal, then they are down to --
21 JUDGE EDLES: No, I don't think he was counting 22 your five minutes.
l 23 JUDGE ROSENTHAL: I was counting the total amount 24 of time that they have on that side of the case. There is l g 25 25 minutes left. So if you have five minutes for rebuttal 1
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6930 03 04 49 Ibur- 1 and so does Mr. Bronstein, that means that Mr. Backus and 2 Mr. McEachern have 15 minutes between them.
3 MR. BRONSTEIN: Could we consult for one moment, 4 your Honor.
5 JUDGE ROSENTHAL: All right. You may have a 6 minute to consult, but then let's proceed.. It is a long 7 day, and we want to be fair to everybody in the proceeding.
8 (Counsel conferring.)
9 MR. BRONSTEIN: We would like five minutes for 10 rebuttal, and they will use the remaining time.- !
11 JUDGE ROSENTHAL: All right, that means they have 12 20 minutes between them.
13 All right. Mr. Backus, you are going to go
{~'}
14 first?
I 15 MR. BACKUS: Yes. 4 16 JUDGE ROSENTHAL: And how much of the 20 minutes 17 do you plan to take?
18 MR. BACKUS: I will take 10, and Mr. McEachern l 19 will take 10.
20 ORAL ARGUMENT BY MR. BACKUS ON BEHALF OF 21 SEACOAST ANTI-POLLUTION LEAGUE 22 MR. BACKUS: Mr. Chairman, members of the Board, 23 I am sorry we did not arrive more timely. It has worked in l
l 24 the past, but the discounted air fares have caused greater
[}
25 demands and the system just didn't function the way it was l
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2 I want to talk about two issues here, on the 3 issue -- the first of this argument -- both dealing with the 4 stay and both dealing with the probability of success on the 5 appeal.
6 As a preliminary matter, I would say somewhere in 7 some of the responsive pleadings somebody offered the 8 opinion that the irreparable harm was the key ingredient on 9 getting stay motions. I have always thought that the appeal 10 l tribunals such as this one looked primarily to the issue of l'
11 probability of success as the key issue in determining f 12 whether a stay should be issued, and that is what I want to 13 address.
14 The first thing I want to talk about is the 15 safety parameter display system issue, which we have 16 separately raised in our motion for stay.
17 This was dealt with by the Licensing Board in its 18 partial initial decision, and what did that Board say?
19 They said with respect to two of the minimum 20 plant variables identified by the Staff as essential to the 21 provision of information on critical safety functions, as 22 required by NUREG-0737(1), residual heat removal flow and 23 containment hydrogen concentration variables, we find that 24 the Applicants have not -- have not met the burden of
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6930 03 04 51-pbur 1 if addition of these variables is deferred until restack 2 following the first refueling outage.
3 This is on page 12 of the slip opinion that I am-4 quoting from.
5 Now, I think that is a very key point here 6 because the issue before the Licensing Board on the SPDS was 7 treated as'a simple issue of timing and the Staff and the-
~8 Applicant took the position that when.the Seabrook facility 9 needed to be brought into compliance as to-the safety 10 feature, the SPDS system, as required by NUREG-0737(1), was
, 11 strictly a matter of timing and was entirely up to the 12 discretion of the Staff. The issue of when these things had 13 to be done was up to the discretion of the Staff, and the
[}
14 Staff, in the exercise of that discretion, had determined 15 that these particular items could be.put off until the first l l 16 refueling outage.
17 Now, the Board did not agree with that position, 18 and we say correctly did not agree with that position, that 19 this is not an issue committed to the unlimited discretion 20 of the Staff.
1 21 Now, that is a critical thing for our position 22 here.
23 JUDGE EDLES: Let us assume, Mr. Backus, I am 24 prepared for the moment to assume the correctness of your
(} 25 view that it is not a matter committed entirely to the ACE-FEDERAL REPORTERS, INC.
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" Bbur 1 unreviewable discretion of the Staff.
2 MR. BACKUS: Okay.
3 JUDGE EDLES: But the question before us, it 4 seems to me, is has the Licensing Board exercised its 5 discretion reasonably in changing some of the things, not 6 changing others, and reachng its own determination?
7 Why is the Licensing Board's decision an 8 unreasonable accommodation of all the considerations?
9 MR. BACKUS: Because if it is not a matter for 10 Staff discretion --
11 JUDGE EDLES: It is not a matter for their 12 unreviewable discretion. That is not necessarily to say 13 that the Staff doesn't have some discretion in estcblishing
{xS!
14 the basic standard subject to Licensing Board 15 Superintendents.
16 MR. BACKUS: Right. I would like to come back to 17 that.
18 But to get directly to your question, I would 19 say, it having been found by the Licensing Board that it is 20 not an unlimited Staff discretion as to when these things 21 are going to be complied with, that the Board has got to 22 have a reasonable basis for its decisions on this.
23 I mean the Staff, in performing its functions and 24 making its decisions, operates in a discretionary framework r~ 25 in certain areas. This one, the discussion doesn't go as b}
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2 JUDGE EDLES: But can we not infer from the 3 Licensing Board's determination that it believed that the 4 risks at low power were sufficiently small so that you did g 5 not need the SPDS, for example?
6 Accidents are not quick to happen. They evolve 7 over time at low power, things like that, and consequently, 8 while they were going to insist on having most of the l l
l 9 elements in place before you go to full power, it was really l
l 10 not a matter that was critical for low power.
l 11 Why is that an unreasonable inference that I
}
12 should -- why is it unreasonable for me to draw that g 13 inference from the Licensing Board's determination?
14 MR. BACKUS: Because in my understanding, the 15 Licensing Board does not operate on a discretionary basis.
16 Their objective, their duty is to see that the regulations 17 are complied with. This is a regulatory requirement.
18 I don't think the Licensing Board is at liberty 19 to pick and choose which safety features are going to be 20 part of licensing and what are not.
21 JUDGE EDLES: What is the regulatory requirement 22 that we are looking at?
23 MR. BACKUS: I think ultimately we are working at 24 50.57(A).
g 25 JUDGE EDLES: And what does that say?
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6930 03 04 54 Bbur 1 MR. BACKUS: It says the facility should not be 2 licensed until all the regulations have been met.
3 JUDGE WILBER: Is this a regulation?
4 MR. BACKUS: It is a regulatory requirement.
5 JUDGE WILBER: Where does that show up in the 6 regulations that the SPDS has to be in place at any time?
7 MR. BACKUS: Well, as you know, the regulatory 8 requirement we are talking about comes from 0737(1), and it 9 provides that there is to be prompt implementation of an 10 SPDS, and it provides this is to be based on a schedule to 11 be worked out between the Applicant and the Staff.
12 JUDGE EDLES: So to the extent the Commission has 13 adopted 0737, that is the standard. That is to be prompt 14 under a schedule to be basically adopted by the Staf f, and 15 the Licensing Board seems to me looks at that and decides 16 whether the schedule is reasonable from its perspective.
17 In some respects it found it was unreasonable 18 here and modified it.
19 I am not quite following why all of that is 20 unreasonable.
21 MR. BACKUS: Well, in the first place, I think if 22 this is an issue of timing, the Licensing Board committed 23 clear error in its memorandum of order that it issued last 24 September 15, when it eliminated the timing issue from here 25 and said the only issue was one of reasonable assurance.
{~')
x, 1
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6930 03 04 55 Bbur 1 The Licensing Board deprived us of the 2 opportunity to explore through the Staff witnesses. We were 3
not permitted to call the project managers who, under NUREG-4 0737, are supposed to negotiate schedules.
5 The Licensing Board denied our motion to call the 6 project managers to find out why in the case of Seabrook a 7 safety function that the Commission has described as 8 essential and requiring prompt implementation was not done, 9 six years after the regulation was adopted, whenever 0737 10 was adopted.
11 JUDGE EDLES: You are essentially telling me that 12 you agree with that analysis, that it is not a matter of
(~) 13 timing. You characterize it as a matter of regulatory v
14 requirements. The Licensing Board characterized it as a 15 matter of reasonable assurance.
16 I believe those two things to be roughly 17 analogous, and you are telling me that the way they 18 approached the problem was indeed the correct way -- I mean, 19 one of the safety implications of not having these various 20 things in place at the time of low power.
21' Your language is a little different from theirs, 22 but you are basically talking about the same thing.
23 MR. BACKUS: Well, I would say this, Mr. Edles.
24 If it is a matter of timing, we weren't allowed to present
)
~J 25 our case because we weren't allowed to'--
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/7Bbur 1 JUDGE EDLES: I think you are saying it wasn't b 2 really a matter of timing. You are saying it is a matter of 3 the safety implications of these things. You characterized 4 them as regulatory requirements. I translate that into 5 safety.
6 MR. BACKUS: Indeed, I do. If the Licensing 7 Board felt this was not a matter of unlimited discretion on 8 the part of the Staff, then I think that we were entitled to 9 have the Licensing Board treat these as requirements that 10 had to be met before nuclear operation, and they didn't.
11 They picked and chose.
12 And I defy anybody to see on the basis of the 13 partial initial decision a rational basis for what they did.
(v-}
14 Why, for example, can the -- I think it was the 15 containment isolation display -- be put off to the first 16 refueling? Why is that all right to wait for a year to a 17 year and a half at full power operation when we know that I 18 historically the worst accident we have had in this country, j 1
19 Three Mile Island, happened before the first refueling '
20 outage?
21 What reasonable basis did they offer for that?
22 Maybe the Staff has a --
23 JUDGE WILBER: Well, did the Staff have a 24 presentation of the very issue you are talking about?
l 25 Didn't they reorganize the presentation of this signal?
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6930 03 04 57 Bbur 1 As I recall, the Applicant reorganized the panel 2 so that there was a presentation of that information.
3 MR. BACKUS: I know that the Licensing Board said 4 certain of these items could be put off till the first 5 refueling, others they said had been met subject to Staff 6 verification, others they said had to be met before they 7 went above 5 percent power, and all I am saying is where is 8 the rationale for those choices, it not having been left to 9 suppocedly the technical experts, which are the Staff.
10 And I know the Licensing Bpard has some technical 11 expertise, but if this is going to be a matter for 12 discretion, then the Licensing Board certainly has to
( 13 exercise that discretion with a statement of reasons for its 14 choices, and I submit that has not been done.
15 By the way, just as a footnote on this, I have to 16 add, if you had a chance to look at the decision we just got 17 by the Hoyt Licensing Board on the dismissal of the one-mile 18 zone petition for lack of a prima facie case, you will see 19 one of the things they cite as one of their concerns was the 20 lack of proper display of critical safety information to the 21 operators.
22 That seems to me a little bit at war with what 23 has happened with the Wolf Board decision, that certain 24 things can go up to full power, certain things can go' 25 without full power until operation after first refueling.
}
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j 6930 03 04 58-Bbur 1 JUDGE ROSENTHAL: .You have one minute, Mr.
'[
2 Backus.
3 MR. BACKUS: ' All right.
'4 The other point that I was going to mention is 5 the East Kingston siren test.
t
+
6 JUDGE WILBER: Before you go, help me out.. Is I 7 that in New Hampshire or Massachusetts?
8 MR. BACKUS:- East Kingston is.in Massachusetts.
t i 9 It is one of the towns within the 10-mile zone.
10 The sirens in East Kingston.were first tested
! 11 this winter, and they failed the test.
12 We filed a late filed contention-on that because 13 there was no opportunity to have file'd such a contention
[}
i 14 before. He had no data. Nobody disagreed that our
! 15 contention was timely filed.
)
) 16 The Licensing Board rejected that late filed s
i 17 contention, and they said:
18 "We conclude that SAPL failed
}
! 19 to show that the test of the 20 sirens at East Kingston presents 21 a significant safety issue to I
j 22 warrant reopening of the record."
23 That is at page 8 of their slip opinion on that, l 24 but actually if you read the Board's opinion, the Board i
j i
(} 25 never says we didn't raise a significant safety question.
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6930 03 04 59 Bbur 1 vmat they sa'id is:-
- 2. " Based.upon the Applicants' 3 affidavits offered in response 4 to our filing of the safety 5 contention, we conclude the 1 6 affidavits are believable, and 7- there is no safety issue becauso 8 the Applicants have made either 9' fixes or promises to fix."
10 Now, in there somewhere we lost our right to a 11 hearing. That is what happened.
12 JUDGE-EDLES: I just wanted to raise one point.
13 Are the criteria for whether you are entitled to 14- a hearing different with timely and untimely filed
15 contentions?
16 I can understand the frustration that one has 17 when you don't have the relevant information before you and 18 then you learn about it and you. file quickly a motion to
( 1 .
J',
19 reopen the record or permit late filed contentions.-
1 i
20 But hasn' t the Commission indicated th'a't under i
21 those circumstances the Licensing Board is to' lock to a 22 variety of factors, not simply whether your cont'ention has a 23 I basis in specificity, and then make a decision?
'24 MR. BACKUS: We get a lot of nice que.seras on 25 these procedural morasses, and we will come back to this ace FEDERAL REPORTERS, INC.
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6930 03 04 C1 g Bbur 1 this afternoon when we talk about the schedule.
2 JUDGE EDLES: More what?
3 MR. BACKUS: Procedural morasses. You are quite 4 right, we are very frustrated because we raised this just as 5 soon as we possibly could have, and the answer was, well, 6 you will meet that one but you will lose on some others, and 1
7 the way they got us to lose on the others was by treating-it
! 8 not as a significant safety issue because they chose ' to 9 believe the Applicants' affidavit. ,
- 10 JUDGE EDLES
- What I am asking you is why is it 11 impermissible in deciding essentially a motion to reopen, t 12 not now deciding whether contentions have basis in 13 specificity? But deciding a motion to reopen, why isn't it
(]}
14 permissible to rely on affidavits?
15 MR. BACKUS: Because this was still an ongoing 16 proceeding. True, we had gotten through the hearing, but no 17 decision had been issued. This could have been reopened 18 back in the time of the construction permit, which, alas, a 19 few of us will remember, including your Chairman, the Board 20 did reopen on the basis of newly filed information after the 21 record was closed to deal with the need for power issue.
22 I don't know if Mr. Rosenthal remembers that, but 23 it is certainly in ALAB-422 or one of those.
24 Let me just say one other thing.
{} 25 JUDGE ROSENTHAL: Your time is expired.
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{
2 JUDGE ROSENTHAL: Very well.
3 MR. BACKUS: One other thing the Board said is in 4 their opinion that SAPL does not tell us that the problems 5 encountered are insurmountable or incapable of solution.
6 Now, we have got that burden?
We ::ot only have 7 to raise a significant safety problem? We have to come in 8 with proof that the problem is insurmountable, 9 incontrovertible? <
10 That stands what we used to believe was the 11 Commission's burden of proof being on the Applicant on its 12 head, and it is extremely contrary to any idea I have of a
(} 13 fair proceeding.
14 With that, I will relinquish the floor. Thank i
15 you.
16 JUDGE ROSENTHAL: Mr. McEachern.
17 MS. CURRAN: I have a request. I would just like 18 to ask if Judge Edles would direct the question that I 19 wasn't able to answer before to Mr. Backus, which I think he 20 will be able to answer, and that was whether any of the 21 parties addressed to the Licensing Board the issue of 22 whether offsite planning elements or certain elements are 23 generally required before low power operation is authorized.
24 MR. BACKUSr Yes. That issue was, I am sure,
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Gl 2 JUDGE ROSENTHAL: All right. Thank you, Mr.
3 Backus.
4 MS. CURRAN: Thank you.
5 ORAL ARGUMENT BY MR. MC EACHERN ON BEHALF 6 OF THE TOWN OF HAMPTON 7 MR. MC EACHERN: Thank you, Mr. Chairman, for the 8 opportunity to appear before you. My name is Paul 9 McEachern. I am an attorney in Portsmouth, New Hampshire, 10 and I represent the citizens of the Town of Hampton, which 11 is the largest town closest to the Seabrook Station.
12 And I appear before you in support of the stay of
(~T 13 a low power license, and I will be very brief.
\_)
14 I lack both the experience in these proceedings 15 and the resources. So by definition, I have to touch what I 16 think are the most important parts of this proceeding to my 17 clients.
18 And I would say that the behavior of the 19 Commission and this Appeal Board in this proceeding will be 20 the embodiment of our society's accommodation with nuclear 21 power after Chernobyl, and I will submit that the issuance 22 of a low power license at this time in this proceeding will 23 not only invite Congressional overhaul but it will weaken 24 your process, cause more chaos than you think you have now, 25 and in the long run it won't bring Seabrook one inch closer ACE FEDERAL REPORTERS, INC.
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/"'Bbur 1 to full power license.
V 2 I think the effort by the Applicant at this point 3 to begin irradiation of'the plant at this time, it reminds 4 me of what is called the Dirty War. IRA prisoners in 5 Ireland had a habit at one time of taking their own 4
6- excrement and smearing theirselves. '
7 Well, I think that Public Service and the others 8 involved in fouling their own nests with irradiation at this ,
i 1 9 point both forecloses valuable options to them and to the 10 people'of New Hampshire.
i 11 There is irreparable harm here, and the harm is i
{ 12 that production of radiation at this time reduces whatever s .
l
{) 13 chances there are for conversion of this plant to another 14 source if it is finally deemed in the common sense of this
{
15 society that Seabrook is impossibly located in a place that 16 can't be safely evacuated and there.is a need for 17 conversion.
18 The Applicant really loses nothing by this stay 19 because three to four months at the outside is what it takes 20 to safely perform the tests that they need to perform. It 21 almost leads me to believe that somehow there is some 22 economic incentive for shortening the process at this point 23 to cause this to happen prematurely.
24 The second point on irreparable harm is that we 1
25 will begin the production and storage of waste at Seabrook 4
[}
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6930 03 04 64 "Bbur 1 before the likelihood that it is going to get a final 2 license is determined, and there is no place to finally .
3 store that waste at this point. .The Applicant is going to 4 store it near the end of this century, and God only knows 5 what Congress is going to do with the ultimate question of 6 storage of high level waste.
7 So if the low level license is granted, the waste I
8 is produced, and then there is no final operational license 9 for this plant, then we have a nuclear waste dump in New 10 Hampshire, courtesy of this process, and I think that 13 11 wrong.
12 And others may not think it is irreparable, but I 13 live there and others live there, and we appeal to you to
~)
14- exercise not only all the regulations but your common sense 15 in taking a good hard look at this and saying does this 16 really advance any cause at this point other than fouling 17 that nest.
18 Thank you. j 19 JUDGE ROSENTHAL: All right.
20 We will now hear from the Applicants.
21 I am particularly interested, Mr. Dignan, in 22 hearing from you on the distinctions that Mr. Bronstein, I t
23 think in particular, endeavored to drawn between the 24 Shoreham and Seabrook proceedings, which Mr. Bronstein )
l 25 suggested would enable us to reach a different result in ace-FEDERAL REPORTERS, INC.
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'u) 2 ORAL ARGUMENT OF MR. DIGNAN ON BEHALF OF THE 3 APPLICANTS 4 MR. DIGNAN: Yes, Mr. Chairman, members of the 5 Board.
6 It is my privilege at this time to argue for the
. 7 Applicants.
8 Might I say to the Board I intend to confine my
[ 9 argument to those oral arguments you have heard already, and a
- 10 I will rely on my brief on any other matters that were not 11 touched?
12 In addressing, first,-the Chair's question on 1
{} 13 14 this question, if you look at factual distinctions between Shoreham and Seabrook, I respectfully suggest to you that.if 15 there would be any factual distinction -- and I am not sure 16 there is any that can rise to something that would affect a 17 legal result -- they probably favor Seabrook.
18 For instance, if it be true that the problem be 19 essentially one that is to be viewed as partly political, 20 which is the case in both, I would remind everybody that we 21 enjoy the fact that in the home state we have the full 22 support so far as I know of the governor of the state, and 23 it is a foreign state that is causing us our problems.
j 24 I use the word " foreign" as a counsel.
25 Obviously, I have the privilege of being a resident of New
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6930 93 04 66 1 Hampshire, and I hold it near and dear when it is not acting gggBbur 2 in a misguided fashion, as it is now.
3 And the fact of the matter is on the political 4 situation, if you want to draw any distinction, Seabrook 5 enjoys an advantage over Shoreham.
6 Secondly --
7 JUDGE ROSENTHAL: Although in New Hampshire, the 8 members of the congressional delegation are not necessarily 9 in agreement with the governor.
10 I think we have indeed an amicus curiae brief 11 from one of the New Hampshire senators, do we not?
12 MR. DIGNAN: Keep in mind, my understanding of
(~ 13 the New Hampshire congressional delegation's position -- and v
14 you catch me at some disadvantage. I am a lawyer, not a 15 politician. However, their disagreement was with the 16 reduction of the zone. I know of no member of that 17 delegation who has taken the position the plant should not 18 run.
19 It is that they do not wish --
20 JUDGE ROSENTHAL: Didn't Senator Humphrey in his 21 amicus brief filed with us fairly recently, of which I 22 assume you received a copy, take the position that the stay 23 should be granted here?
24 MR. DIGNAN: I think that is consistent with the
)
25 position that says you should not reduce the zone.
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6930 03 04 67 1 What I am talking about is I am saying the ggBbur 2 political opposition that comes to Seabrook is from the 3 foreign state. As I understand the New Hampshire political 4 position of that delegation, which would be consistent with 5 going for the stay, is not that Seabrook shouldn't run, 6 which is the case in New York and in Massachusetts; it is 7 that they don't want the zone reduced and they want 8 something to be done to plan it out to a full 10 miles.
9 JUDGE ROSENTHAL: We did just -- did we not --
10 hear a quite eloquent plea from counsel for the Town of 11 Hampton, which I think is in the State of New Hampshire?
12 What I am getting at is I appreciate the fact 13 that the governor of New Hampshire, unlike the governor of
(
14 New York, is a supporter of Seabrook, but my impression is 15 that even within the State of New Hampshire there are 16 localities and there are political figures that are less 17 than overwhelmingly enthusiastic about the Seabrook 18 facility.
19 MR. DIGNAN: I would concede that. Indeed, the 20 learned counsel you heard from the Town of Hampton is a 21 political figure in New Hampshire, is a candidate for 22 governor.
23 I am not saying that everybody in New Hampshire 24 who is in politics is for Seabrook. I am saying there is a
/~1 25 distinction in that the official position of the
\_-
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6930 03 04 68 Bbur 1 administration running the whole state, if there be any 2 difference on the political side, the advantage runs with 3 Seabrook, not with Shoreham.
4 Secondly, there is another difference, factual 5 difference between these two plants, and I am not sure I 6 should dwell on this, but it is a big, large, dry PWR, and 7 while I am fully aware that the Board has rejected the 8 petition-in the first instance, I think a fair reading of 9 the Board's decision is we have a number of questions we 10 would like to see answered, and I saw nothing in that 11 decision to indicate the Board would not agree to entertain <
12 such a position when more technical work is done by the
("T 13 Applicant and perhaps by the Sta'i V
14 Finally, when Shoreham dealt with this problem 15 and its stay was dealt with, there was no proposed rule out 16 for comment. So if you are going to talk about any -- and I 17 don't think any of these rise to c distinction on which a 18 legal ruling should change, Mr. Chairman, but I do think if 19 you want to say the two are distinct when you add it all up, 20 Seabrook is in a better position than Shoreham was.
21 JUDGE ROSENTHAL: Mr. Bronstein attached some 22 significance in terms of distinction between Seabrook and 23 Shoreham to the fact that your client had filed this 24 petition to reduce the size of the EPZ.
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2 MR. DIGNAN: I think Mr. Bronstein is wrong. I 3 think Judge Edles correctly characterized, although I would 4 -
object to the concept that we are any smarter than Shoreham.
5 We had the advantage of going to school on Shoreham, and as 6 I said to this Appeal board in a prior argument -- and 7 nobody better mistake it -- the orders given to me as 8 counsel and the engineers for the plant by the. management 9 are we are to take any road we think is profitable towards 10 getting this plant licensed, and that should be looked at as i
11 nothing other than an alternative.
12 What we would like is for the Commonwealth of
{} 13 Massachusetts to start planning. That does not seem to be 14 in the immediate future a realistic possibility, but we will 15 go down any route we can, be it a rulemaking, be it a 16 petition to waiver regulation, to get that result.
17 Incidentally, Mr. Chairman, I should indicate Mr.
18 Turk and I are dividing the time equally.
19 JUDGE ROSENTHAL: I assumed, not having heard to 20 the contrary, that that was the case.
21 MR. DIGNAN: Now, with respect to irreparable 22 harm, the argument was made by-my learned friend from 23 Massachusetts that it was irreparable harm to the 24 Commonwealth that this waste would be created, the standard
{} 25 is it has gat to be certain, it has got to be great, and it ACE-FEDERAL REPORTERS, INC.
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g 2 Let's accept certain -- it sure isn't great. I 3 mean, low power testing. The amount of "high level waste" 4 that is going to be created is infinitassimal compared to 5 what is around in this country. It is infinitessimal to 6 what is in the Commonwealth of Massachusetts. We have got 7 two reactors running down there. One of them is the oldest 8 operating reactor in the country.
9 So how the Commonwealth can stand up here and say 10 this is great irreparable harm to the Commonwealth, I 11 respectfully submit that argument is a nonstarter.
12 JUDGE EDLES: Well, I believe that while the 13 Commonwealth makes that argument, the argument is made as (v')
14 well on behalf of the people who live in and around the 15 reactor, and what they are saying is that, yes, there may be 16 lots of this stuff in Massachusetts, but for the first time 17 it is going to be on my doorstep.
18 Why isn't that irreparable as to them?
19 MR. DIGNAN: All right. In the first place, the 20 amount. I mean, I think the Court of Appeals made it clear 21 that they didn't feel the amount of' harm was sufficient in 22 the Cuomo case.
23 JUDGE EDLES: But isn't that like cutting down 24 one nice tree as opposed to a forest? I mean, if it is one
(' 25 important 200-year-old tree, that is not quite as bad as ACE FEDERAL REPORTERS, INC.
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6930 03 04 71 Bbur 1 destroying the forest, but that is no less irreparable as to 2 that tree.
3 MR. DIGNAN: Well, to get an analogy that is one 4 of my favorites here, keep in mind the site we are talking 5 about. It is the old town dump, and it is not a 200 year-6 old tree, and it is not a sylvan glade that is going to have 7 this irreparable harm done to it.
8 It is private property owned by my client, and, 9 Judge Edles, I couldn't have agreed more with your remark 10 earlier. Whatever happens to that fuel, whether it stays in 11 the vessel or whether it stays in the spent fuel pool, it is 12 not a problem to anybody off that site.
~ '
13 Secondly, in terms of New Hampshire, this being 14 their first reactor, I remind everybody that Vermont Yankee, 15 which I am s. little bit familiar with, is right across the 16 river. So there has been plenty of spent fuel on New 17 Hampshire's doorstep, literally separated from the state 18 only by the Connecticut River.
19 So I respectfully suggest that that argument, 20 also, has to ring hollow in terms of irreparable harm.
21 JUDGE ROSENTHAL: Do you think that prior 22 decisions of the Commission and/or the Court of Appeals lock 23 us in on the question as to whether low power operation of 24 Seabrook would bring about irreparable injury?
MR. DIGNAN:
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2 JUDGE ROSENTHAL: That is not a very serious 3 confession.
4 I mean, in all candor, you think we are locked 5 in?
- 6. MR. DIGNAN: In all candor, I think you are-7 locked in. I do, Mr. Chairman?
8 JUDGE ROSENTHAL: All right, 9 MR. DIGNAN: Let us go to the siren issue.
10 The argument, as I understand it, is our 11 affidavit was accepted instead of opposition affidavits with 12 respect to the sirens.
13 The problem with that argument is this. The
{'}
14 thing was basically a motion to reopen.
15 Now, since Vermont Yankee, which I had the 16 privilege of arguing before this Appeal Board many years 17 ago, the major standard on reopening an evidentiary record 18 before this Commission, even before they.put the rule in, 19 was that you had .. show you had a significant safety or 20 environmental issue.
21 What the affidavits -- even if you had not had 22 any affidavits -- the - fact of the matter is both of these 23 contentions that were rejected dealt with the audibility 24 and/or the sound level, assuming audibility, or the ability
{} 25 to start up of the sirens.
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6930 03 04 73 Bbur 1 Every one of those standards can be judged by the 2 Staff on objective bases, and for that reason'it simply is-3 not a significant safety question for a Board to litigate i
4 because the Staff is in a position to go down there, listen 5 to the sirens, decide whether they are at the magic level or ,
6 not.
7 In terms of starting, the Staff can ask for a 8 test. If they don't like what they get, they can tell them 9 to replace the sirens, and it has, as we pointed out in our 10 brief, been deferred to Staff regulation a number of times 11- already.
12 So it simply was not a significant safety
{} 13 question.
14 JUDGE EDLES:- But isn' t the point being made in 15 the context of the stay that we ought to hold up on the low 16 power license until the Staf f goes through all of this stuff 17 and actually ,makes sure that there are working sirens there?
18 MR. DIGNAN: Well, I don' t know what the status 19 is of Staff review of sirens. In candor, I just can come 20 back to that, but I have never heard of a stay issuing on 21 the theory that -- remember, what you are being asked to 22 stay. You are being asked to stay the authority of'the 23 Staff to issue a license. If the Staff is not happy with 24 what it has seen on sirens, the Staff presumably will not
{} 25 allow the license to issue.
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~Bbur 1 And I have never -- I may be wrong on this, Judge 2 Edles, but I know of no case where an adjudicatory tribunal 3 of the Commission has held up -- has issued a stay when the 4 matter was a question that they had turned over to Staff 5 competence.-
6 There have been stays granted when the Board 7 ruled, no, this is not strictly a matter for the Staff; it 8 must be dealt with by the Board. And now we are going to 9 stay things and bring-it back to a Board.
10 I may be wrong, but I am aware of no case where 11 the-Board, having ruled that this was properly a matter 12 committed to the Staff posthearing, that they issued a stay 13 until the Staff assured them it was done.
)
14 The general rule is that the Boards assume the 15 Staff will function as they should and will not let the 16 license go out or allow the plant to continue-running until 17 the problem is solved to.their satisfaction.
18 The Class Nine Accidents argument.
19 Now, if I heard my learned friend from the 20 Commonwealth correctly, again, the argument is the CEO 21 regulations came out after the motion for summary 22 disposition had been granted.
23 I guess everybody concedes that the contention 24 was admitted and tried; it had no mention of CEO regulations 25 in it; and therefore, there is error.
l l
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Bbur 1 Well, this doesn't change anything. If somebody 2 wanted to contend that the CEO, the new CEO regulations were l 3 being violated by this FES or that something had to be done 4 to take care of this, they should have made a late filed 4 5 contention to that effect.
1 6 No one did. So that theory is just as 7 procedurally dead as the original theory that was put in the 8 brief, which was that the original contention had included 9 the CEO regulations, which it clearly did not.
10 With respect to the offsite messages _ element, I 11 never challenge a brother counsel's assertion of that, but I 12 confess I am not aware of that issue being raised, at least
(}
13 in the manner I understood it to be raised. It clearly was 14 not raised by NEC&P, as they acknowledge.
15 Mr. Backus has said he thinks he did raise'it. I j 16 will not challenge a brother counsel on the floor of a 17 hearing room, but I will say I am not aware of it being 18 raised, and I want to reread the papers before I put the 19 statement in the brief.
20 JUDGE EDLES: Perhaps one way of resolving this, 21 if Mr. Backus believes it was raised, if he would file -- if i
22 my colleagues have no objection -- a post-argument 23 memorandum alerting us to precisely where in the record the 24 matters were raised.
(} 25 MR. BACKUS: Let me make sure. I want to make
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2 raised, so I can respond.
3 JUDGE EDLES: The issue was there were onsite 4 implications of of fsite emergency planning requirements, and 5 the argument was that the Licensing Board had failed to take 6 those into account, and I believe the brief of one of the 7 movants cited to the Diablo Canyon Appeal Board decision, 8 which ticked off what those elements were and how the 9 Licensing Board in that case had dealt with them.
10 They said the Licensing Board in this case has 11 not.
12 My question was whether or not anybody had asked
^
13 the Licensing Board to deal with those issues, and I thought 14 you said that, yes, they had, and all I am interested in is 15 a citation to the record as to where the Licensing Board was 16 told it had to make findings on those questions.
17 MR. DIGNAN: Mr. Chairman, I can assume that if 18 such a memorandum is forthcoming the Applicant would have an 19 opportunity to reply.
20 JUDGE ROSENTHAL: Yes, although I do not expect 21 Mr. Backus to provide anything more than a citation. I am 22 not anticipating any argumentation.
23 If I understood Mr. Edles correctly, he was 24 simply asking to be provided with a citation.
25 JUDGE EDLES: Since you know the record better
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(.) 2 JUDGE ROSENTHAL: I would think if it is 3 agreeable with Mr. Edles, that can be done in a letter form.
4 JUDGE EDLES: That is fine.
5 JUDGE ROSENTHAL: Just a letter to the secretary 6 of the Board will suffice.
7 MR. DIGNAN: Now, the next issue that was 8 discussed was the SPDS matter, and if again I heard my 9 learned friend from'New Hampshire correctly, the argument is 10 that the Board didn't set out its rationale for the 11 differences it drew on the various items.
12 Well, I respectfully request that the Appeal 13 Board just review that decision. I thought that the
)
- 14 differences were well set out.
15 The particular one that was raised before you was 16 containment isolation display, and I thought the Board at
{
17 pages 37 and 38 of their decision quite carefully pointed 18 out the containment isolation in this reactor, and I think 19 they said it is some feet from the operators, and what you 20 have is a display of lights. ,
21 These lights, when they are all white, I believe 22 it is -- I am not that familiar with the colors -- that 23 shows you have got containment isolation. Each one, as I 24 understand it, is marked for a given valve or a vent or a 25 given point where the containment could be breached, and ,
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/~~Bbur 1 when all the operator needs to know is that he has got an V
2 all-white display then he knows he has got isolation.
3 If he looks over there and sees one light that is 4 not white, he knows he has got a problem and that he doesn't 5 have containment isolation, and the operator can go over and
)
6- find out exactly what valve it is.
7 And they lay this all out here, and that was 8 their rationale for saying this didn't seem to them to be i'
9 one that had to be in place until the first refueling.
i
) 10 And I think that'is, for example, a very rational l
j 11 reason for reaching that particular conclusion.in that i'
12 particular matter.
13 I felt the Licensing Board did a very good job of
[}
14 showing why they drew differences on the various matters of 15 concern.
16 I hesitate to raise this matter because maybe it 17 isn' t before you, but the Board itself has raised it, the 18 question of a short stay.
19 I don't know whether you'wish to hear the 20 Applicants' views on that, but I would oppose a short stay 21 to the Commission.
22 To me, this-is a fundamental question of 23 operation that this agency has directly. The Appeal Board 24 has not been a Board -- and the Appeal Panel as a whole --
{} 25 which wrings its hands and says bring it to the Commission.
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6930 03 04 79 "Bbur 1 I respectfully submit to all of you, this is the 2 weakest motion for a stay I have ever seen. There is no l
3 irreparable harm, there is no law that supports it, and I do 4 not think that the Appeal Board should now turn around and 5 hand out any kind of stay.
l 6 JUDGE EDLES: Mr. Dignan, we have just been-told l 1
7 by the Commission in CLI87-2 that, notwithstanding our l 8 construction of the regulations and our usual activity in 9 this area, there may well be policy considerations unique to ;
10 the Commission's consideration which we would not normally 11 deal with.
12 In contrast, by the way, I might say that Ms.
13 Curran's characterization of the Commission having reversed 14 our decision dealing with the low- power, I don't view it as 15 a reversal. I think they endorsed basically our analysis, 16 but nonetheless concluded that there were other or different 17 policy considerations that they wanted to evaluate.
18 But that being so, I am not sure that all of this 19 many, many year tradition of the Appeal Panel's activity in 20 this area really pertains to the Seabrook case, which is 21 becoming more and more sui generis.
22 MR. DIGNAN: Your Honor, that may or may not be 1
23 so. But if the Commission wants stays issued as a matter of i
4 24 policy when policy might be an issue in their opinion, that i 25 is for the Commission to do.
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2 JUDGE ROSENTHAL: I think you misunderstand on 3 this, and I would stress, Mr. Dignan, we merely raise this 4 possibility, not in terms of something that we would do.
5 MR. DIGNAN: I understand.
6 JUDGE ROSENTHAL: It isn't a matter of whether we 7 would certify to the Commission the question as to whether a 8 stay is appropriate in the circumstances. I mean, speaking 9 simply for myself, I don't believe in certifications. I 10 rarely do it.
11 We speak right or wrong, or whatever, and the 12 Commission, if it sees fit, can turn our decision over.
{} 13 But what we are talking about here is whether, 14 assuming that we decide that the stay criteria are not 15 satisfied, there is warrant for maintaining the status quo 16 for a brief period of time to enable the Intervenors to go 17 to the Commission and say, Commission, the Appeal Board was 18 out to lunch, we are entitled to a stay.
19 Now, courts, in my experience as an advocate over i
20 many years, frequently did that unless there was a desperate 21 need for whatever it was that was sought to be stayed.
22 Here, unless there was a desperate need to have 23 this plant go to low power operation immediately, courts in 24 these circumstances, lower courts, frequently enter what is
/~N 25 a housekeeping stay to enable the individual to go to the b
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6930 03 04 81 Bbur 1 higher tribunal and make its pitch there while the status 2 quo is being preserved.
3 Now, that is my thinking on it. It is not again 4 a matter of whether we would say to the Commission, gee, 5 here is our decision, but, oh, Commission, we may be dead 6 wrong and so we are calling upon you for your views.
7 If I deny a stay, it is because I think that a 8 stay should be denied.
9 MR. DIGNAN: Mr. Chairman, first of all, it would 10 be beyond my courage to challenge the former top appellate 11 lawyer of the federal government on 'what courts usually do.
12 JUDGE ROSENTHAL: Do we have the top appellate 13 lawye r?
14 (Laughter.)
15 I haven't seen him.'
16 MR. DIGNAN: But I will say that the problem with 17 those stays, from purely an advocate's point of view -- and 18 I have seen it happen in the courts -- is that the 19 inevitable result is the appellate. tribunal says, Judge so 20 and so must have had some doubts here, he gave them a stay 21 to come see me.
22 And this is what bothers me about the idea of a 23 housekeeping stay. Keep in mind in this case there is a 24 stay out - there by the Commission itself, anyway. If down
{} 25 comes a stay --
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, ("7Bbur 1 JUDGE EDLES: Excuse me, Mr. Dignan. Is that to
%/
2 suggett that the Commission has some doubts on this?
3 MR. DIGNAN: What? That there was a stay?
4 JUDGE EDLES: The fact that there was a stay out 5 there.
6 MR. DIGNAN: No, what the Commission had a doubt 7 on was 50.33(G), and they put the stay down themselves.
8 They have now decided the 50. 33 (G ) --
9 JUDGE ROSENTHAL: But you think if we were to 10 enter a housekeeping stay the Commission would look at this 11 and say, gee, the Appeal Board wouldn't have given this 12 housekeeping stay unless it had some doubts?
{} 13 MR. DIGNAN: That is what worries me, yes.
l 14 JUDGE ROSENTHAL: Well, again this is all 15 hypothetical because we haven't decided what to do, but I 16 can assure you that if we do grant a housekeeping stay --
17 and that assumes, among other things, that we deny the 18 application for a stay -- that we will do it in such terms 19 that there can be no doubt in the minds of the Commission 20 and its advisers that our reason for doing it is simply to
- 21. preserve the status quo to enable these people to go to the 22 Commission.
23 MR. DIGNAN: Now, the fir.al matter I wanted to 24 address was the rather colorful argument about the IRA and 25 the question of fouling the nest, which is basically another 1
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6930 03 04 83 Bbur 1 version of you are going to send this plant critical, you 2 are going to contaminate these things.
- 3 Maybe it is because of my 100 percent Irish 4 blood, I have to respond to that argument.- It is very 5 simple.
6 The Commiasion didn' t miss it in Shoreham. Look
. 7 at Palo Verde. Palo Verde went to hot functional, it is my 8 understanding. They blew a pump. It went down, took out a 9 steam generator or something, and they had a year's worth of 10 repair work to do.
11 The right to test is an extremely valuable right, 12 and when you take it away from us you take something very 1
~
13 real away from us because the fact --
14 JUDGE EDLES: They are not taking away the right 15 to test. They are deferring the right to test.
~
16 MR. DIGNAN: Yes, but if you defer the right to 17 test, every day you defer that right to test and if 18 something goes wrong, if there is a bad pump in there and so 19 forth, we are going to fix it much later than otherwise, 20 assuming we ever do get to full power.
21 And my point is everybody seems to think that 22 this right to test is just a little something, and we hope 23 it is. I will be honest with you. I hope those tests go 24 swimmingly and they get a call from the engineer saying 25 everything went great. It took two days and that is the end
}
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2 The problem is the reason you are testing in this 1
3 field is because you are not . clear everything . is . going to go 4 swimmingly, and all: I-do is hold up Palo Verde. I'think the 4
5 delay was something like a year there ' before they could fix 6 that problem, which was not, as I understand it, a real j
j 7 nuclear problem or anything. It was just a bad pump in i 8 there, and the garbage went downstream and-took out a steam .
9 generator or something.
10 Well, this right we are being asked to relinquish 11 is -- all I wish to impress on the Board -- is not an 12 inconsiderable right..
{} 13 JUDGE ROSENTHAL:. I think we understand that. ,
14 MR. DIGNAN: And'that is all I have unless the 15 Board has other questions.
- 16 JUDGE ROSENTHAL
- Thank you.
17 Mr. Turk.
18 MR. TURK: Your Honor, I note that it is 12:00 i'
19 o' clock. I believe I have 30 minutes coming to me.
. 20 May I suggest a five-minute recess and I will
.! 21 take only 25 minutes?
22 If you prefer, we could go.
23 JUDGE ROSENTHAL: I would like-to move forward, t
24 Mr. Turk.
{} 25 I might say in that regard that --
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6930 03 04 85 Bbur 1 JUDGE EDLES: You are still welcome to take 25 2 minutes.
3 JUDGE ROSENTHAL: You are welcome to take 25 4 ' minutes. Also, you are welcome to take considerably less
~i 5 than that.
6 Bear-in mind that we don't need to hear a 7 repetition of what Mr. Dignan said. If you either wish to 8 make points which Mr. Dignan has not made or you wish to i
l 9 elaborate on points which Mr. Dignan has made or you wish to I 10 disagree with some of his observations, feel free to do so.
11 But it is going to be a very long day, and as we indicated 4
12 in our oral argument order, we are not very interested in f3 13 hearing repetitious argumentation.
O 14 ORAL ARGUMENT BY MR. TURK ON BEHALF OF THE 15 NRC STAFF 16 MR. TURK: Mr. Chairman, Judge Edles, Judge 17 Wilber, the Staff is often in the position in these oral 18 arguments as being the dessert. The other parties have 19 already argued and it often happens that the main arguments 20 have been made already. There is not much left for the 21 Staff to add. j 22 However, there are some things I would like to 23 touch upon. I think I can be brief. I think I can even 1 1
24 finish in 15 minutes, but of course I am here to answer H
-~ 25 questions that you might have for me, and I am fully willing l l
1
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'6930'03.04 86 bur 1 -to stay as long as is necessary to do'that.
2 JUDGE ROSENTHAL: .That is good.
3 MR. TURK: The one issue that we have not yet 4
4 touched upon today is'the question of' burden. lit is very:
- 5 clear that what is before the Appeal-Board today.'is not an 6 appeal on the merits, but rather a question as to'whether~or t
i 7 not the low power decision of the Licensing Board should be 8 stayed. ,
3 9 The burden to establish"that a stay'is proper is-t 10 upon the movants.-
j 11 JUDGE ROSENTHAL: We know that, I think.
l 12 MR. TURK: What has to be shown here, then,-is ;
r
( 13 not simply that there is a possibility that on one or more 14 of the approximately seven-major categories of claims of
.15 areas where the Board erred, not that there'is a mere l 16 possibility that some of those issues might be reversed upon 17 appeal, but what the Intervenors must- show -is that there is 18 a likelihood of success, and if they have not shown J.
19 irreparable harm, they must show to a-virtual. certainty.that l
! 20 some of those areas might be reversed upon appeal.
21 I submit 'that that has not been done in this
'22 case.
23 I would-like to addrest very briefly the question 24 of irreparable harm and then move'on to the question of f
I
(} 25 merits, again very briefly.
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6930 03 04 87 Bbur 1 The Appeal Board asked Mr. Dignan as to whether 2 this Board is bound by pricr decisions of the Commission in 3 the area of irreparable harm, and Mr. Dignan, his own words, 4 confessed that the Board was bound.
5 I would add to that -- first, I agree that the l ,
6 Board has very clear directives to follow on the question of 7 irreparable harm. Most of the assertions here have been 8 addressed specifically by the Commission in the Shoreham 9 proceeding, and many of those were touched upon by the Court 10 of Appeals in the Cuomo v. NRC decision, which denied the 11 emergency stay which Intervenors had requested in Shoreham, 12 The Commission did not specifically address what
~
. 13 the impacts are for the accumulation of low level or high
- 1
%J 14 level waste resulting from Shoreham's operation, but what 15 the Commission did say is that the impacts of low power 16 operation are well understood and they are subsumed within 17 the EIS which was done for full power operation.
18 The Commission was aware that the plant and 19 components of the plant and fnel would be irradiated. They 20 are fully aware that when you irradiate the plant and the 21 fuel and if the plant never operates again there is an 22 accumulation of waste.
23 While they didn't specifically address the issue 24 of waste accumulation, they were willing to accept that as fy 25 one of the consequences of low power operation even if full -
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2 The Court of Appeals affirmed the Commission on.
3 this issue, and again the Court of Appeals held that even in 4 the face of uncertainties as to whether or not the full 5 power license might ever operate, the consequences of' low 6 power operation, while possibly irreversible, were not 7 irreparable, and let me touch on that very briefly.
8 Certainly, when you go critical and you have some 9 fission product creation and you have the accumulation of 10 some waste, yo,u are doing something which will take many, 41 many years for nature to reverse. For some of the fission 12 products you are talking in terms of. thousands of years.
{} 13 That undeniably is a consequence which for all 14 practical purposes is irreversible, but it is not , .,
15 irreparable. There are means for dealing with waste. There 16 will be in the future. There will have to be in the future 17 a resolution of the waste disposal problems, and that is not 18 something which should hold up the Appeal Board today in 19 terms of licensing Seabrook for low power operation.
20 JUDGE ROSENTHAL: I have been hearing for years 21 about this long-term resolution of the waste disposal 22 problem, and I haven't seen a substantial amount of 23 progress.
24 It seems to me that what we have been principally e
{} 25 seeing is all of the states that might be the beneficiary,
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6930 03-04 89 Bbur 1 if' one might use that term, of. the repository, holding their 2 hands'up in abject anguish.
3 MR. TURK: I think the Chairman is correct. ltt 4 has been a very-thorny problem, and it has taAen years to
--5 make progress. But progress will have to .be made.-
6 JUDGE ROSENTHAL - Thatlis'what I heard 10 years
[ 7 ago.
~
8 Proceed.
9 MR.' TURK: -I think we are all in the situation of I 10 having to-wait.and watch'for the final' outcome of that 11 issue, but we -must take . it on faith that the Commission and 12 the Congress will' deal ~with the waste generation problem.
, 13 Now, I.would like to move from the question of I 14 irreparable harm and get back toithe other principal; issue 4
15 before the-Board..
- 16 And, incidentally, we noted in our brief that the f
17 Appeal Board itself has stated-that if there is no showing-18 of irreparable harm and if there is-no demonstration.of-a
~
19 likely success on the: merits, then'the final two' elements of 20 2.788(D) need not detain to the Appeal Board's deliberations 21 for long.
22 So having dealt with irreparable' harm, let me 23 move back to the first factor, whichris the likelihood for 24 success on the merits, and I'think the best way I can 25 approach this is-to go back to some of the questions the j
r
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2 listening to the presentations of other counsel.
3 The focus of our brief, or at least a large 4 portion of our brief, I think roughly one-third of it, 5 addressed the Shoreham decisions and the similarities 6 between Seabrook and Shoreham.
7 It is clear that in the case of Shoreham there 8 was an offsite plan submitted by LILCO. They had created an 9 organization to implement it, and the Commission found that 10 the uncertainties in that case were largely litigational and 11 political uncertainties.
12 The Commission and the Court of Appeals both 13 stated very clearly that those sorts of uncertainties were 14 speculative in nature and should not delay issuance of a low 15 power license.
16 The difference between Seabrook and Shoreham, as 17 I see it, with respect to the existence of plants in 18 Massachusetts, is that at least to date there is no 19 emergency plan submitted by the state and there is no 20 emergency plan compensatory in nature submitted by the 21 Applicants. At least that is my understanding of the
~
22 situation today.
23 There is then an uncertainty as to whether or not 24 there ever will be a full power license, given the need g-) 25 under current regulations for a 10-mile EPZ, which includes C/
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/^"Bbur 1 a -- or a large portion of which includes the Commonwealth' V
2 of Massachusetts.
3 This is not different from Shoreham. In Shoreham 4 there may have been a plan, but both the New York -- the 5 .New York Supreme Court and a U.S. Federal. District Court 6 both held that implementation of that plan was going to be a 7 problem.
1 8 LILCO may have created a plan on paper, but the 9 New York State Court was not about to allow LILCO to 10 implement it, and the Federal District Court _said that the 11 county could not be compelled to implement it, so that in 12 effect you have a distinction without a difference.
('T U
13 There you have-a plan that couldn't be 14 implemented. Here you don't have the plan yet. But in both 15 cases there were substantial uncertainties as to whether or 16 not a plan would be implementable and implemented in the
, 17 future.
18 JUDGE EDLES: Mr. Turk, I understand that.the 19 Seabrook folks have now indeed submitted a utility plan, I 20 guess roughly comparable to what was submitted by the 21 Shoreham folks.
22 Isn't that right?
23 MR. TURK: We have avoided addressing that in our 24 brief. We have not done a very careful analysis of the
{} 25 submission here to date.
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My understanding, at least as.of now, however, is-that what the Applicants have submitted is a plan previously- :
3 . developed by Massachusetts'with no indication as to who was 4 going to be implementing the plan.
5 -JUDGE EDLES: But it would be incorrect for me if 6 I were to write the opinion here to characterize the utility 4
-7 as not having filed a plan, to use your language?.
- 8. MR. TURK: I think the best way to address it is 9 as we did in our brief, and that is to note in a footnote 10 that there has been a submission and that the issue was 11 before the Commission, but the significance of the 12 submission --
13 JUDGE ROSENTHAL: Mr. Turk,-isn't the short of 14 the matter that in the case of both of these plants, 15 Shoreham, Seabrook, there is considerable current 16 uncertainty by reason of, among other things, opposition to j 17 governmental units having jurisdiction.over the.EPZ as to 18 whether or not the plant will ever operate?
19 MR. TURK: That'is absolutely true.
20 JUDGE ROSENTHAL: Do you think there is any 21 useful purpose in our sitting down and speculating as to 22 whether the likelihood that Seabrook will eventually operate 1
23 is greater, the same, or less than the likelihood that 24 Shoreham will ever operate?
25 MR. TURK: No, there is no point in doing that.
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4 6930 03 04 93 Bbur- 1 JUDGE ROSENTHAL: All right, then-let's move on.
2 MR. TURK: If I may just'.make'one last point in
- 3. response to Judge-Edles' previous question concerning the 4 impact of the Applicants'-submission.
a 5 The Commission, as you know, has asked the 1 6 parties to brief the issue as to what effect the submission
.7 of that plan has upon their own state, and we will-be'doing 8 that on-May-1st, as required by the Commission.
9 l l 10 11 12
, i]
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17 l 18 ,
19 20 1
21 22 23 -
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6930 06.01- 94 iPBeb 1 . would like to touch very briefly upon the' issue 2 of whether Class Nine accidents were. properly addressed in 3 -the Final Environmental Statement. To do.this I think 4 what we have t'o look at the initial paper that-SAPL filed in 5 ' opposing the applicants' motion for summary disposition.-
6 Excuse me. I may be characterizing it wrong.
7 Just one moment, please.
8 (Pause.)
9 The Final' Environmental Statement for Seabrook.
10 was issued by the Staff- in December of 1982. Included in 11 the FES in Chapter 5 was a discussion approximately 40 pages 12 in length, commencing at page V-34, ?ealing with the
{) 13 14 environmental impact of postulated accidents.
The Staff did consider both the probabilities of 15 occurrence and the consequences of several different major 16 accidents which went beyond Class Eight. .These vere Class 17 Nine accidents.
18 The applicant. submitted a motion for summary q 19 disposition on this contention asserting that in fact.the 20 Staff had complied with'the requirements of'NEPA.
21 A cross motion was filed by SAPL in which they ;
22 contended that No, the requirements of NEPA had not been 23 complied with.
24 The Staff filed a single response which was !
25 addressed principally to the paper of SAPL, but we noted in
{}
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2 summary disposition.
3- The key problem which SAPL found with the FES 4 which has not been addressed today was SAPL's concern that 5 the Staf f did not lay out in stark terms the consequences 6 upon human health and life which a major accident might 7 have. There is no question that the FES contained a very 8 careful probability analysis.
9 It showed the probabilities for various doses. I 10 believe it was 35 rem whole-body and a 200 rem whole-body as 11 well as a thyroid dose I believe of 300 rems. It showed the 12 probability of those doses being achieved or incurred for 13 the population within I believe ten and fifty miles of the
(~)
s-14 plant. And there was a curve which laid out the 15 probabilities based upon the nunber of people who might 16 incur such a dose. ,
17 The onl-1 problem that SAPL found was that it did 18 not make it clear to the public the consequences of a Class 19 Nine accident.
20 We think that the FES was consistent with the i
21 Commission's interim policy statement. There was no problem 22 in complying with NEPA. In fact, NSPA does not require that 23 remote and speculative consequences of accidents be 24 addressed. j l
(}
(~ 25 '
Nonetheless the Commission went further in its ACE-FEDERAL REPORTERS, INC.
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6930 06 03 96 JMPBeb 1 interim policy statement and required that Class Nine G
2 accidents be addressed. The Staff has complied with that.
3 tiith respect to the issue of sabotage or external 4 events, it.was stated very clearly in the FES that the 5 probabilities or the ability to predict the occurrence of 6 such external events was beyond state of the art technology 7 as it was then. Nonetheless, the Staff-determined that the 8 consequences of such an event would be bounded by the 9 consequences of internal-generated Class Nine accidents and 10 therefore there was no need to do a separate analysis as to 11 health impact.
12 One issue touched upon today was whether or not
/"T
/
13 the Staff could reach a finding for the low power license 14 that the state of onsite emergency preparedness was 15 sufficient to let that license be issued. And I believe it 16 was NEC&P in their brief who picked upon on the statement of 17 considerations which noted that certain aspects of emergency 18 planning will necessarily be reviewed by the Staff in the 19 course of doing its onsite analysis.
20 In fact, that has occurred here. There are two 21 SER supplements which addressed the onsite emergency 22 preparedness, SSER-1, which was admitted into evidence I 23 believe as Staff Exhibit 1-A, -- I could be wrong on that --
24 but also Staf f Supplement Number 4 to the SER which was
(~} 25 admitted into evidence as Staff Exhibit 4.
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?^sMPBeb 1 In those presentations the Staff look at the D
2 various requirements for onsite emergency preparedness and 3 determined that they were satisfied. To my knowledge there 4 has not been any assertion before the Licensing Board that 5 the Staff's findings in the SER, SER Supplement Number 4, 6 were incorrect. And I admit that I would have to do a total 7 record search to verify that, but my preparation for this 8 oral argument disclosed no such incidents.
9 And in fact in our brief, I believe in a 10 footnote, we note that there has never been an assertion 11 that Staff's resolution of onsite emergency preparedness was 12 flawed.
13 Very briefly in response to the SPDS issues, I am 14 comfortable to rely upon our brief with one note, and that 15 is there is no requirement in the regulations that the SPDS 16 be completed prior to low power operation. This was a TMI 17 Action Plan item. NUREG 0737, Supplement I leaves to the 18 Staff and applicant the task of deciding when the SPDS 19 should be implemented. There is no requirement for reaching 20 completion of SPDS items now.
21 ,
There was no problem with the Licensing Board's 22 rulings that the Staff Project Manager need not be called as 23 a witness; we had a witness who was capable of testifying on 24 the issues which were before the Board. 1 l
( 25 The reasons as to why or why not previous 1
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f6930 06 05 98 1- schedules. had not been implemented or had not been enforced D}-4MPBeb 2 .by the Staff were not before the Board.- The Board ruled it 3 .was not a proper' issue before it. And those rulings, as_we.
4 lay out in our brief, were correct.
5 -With that'I am prepared to rest upon our brief.
~
6 I am open to questions. !
7 I know in the past we have....'
8 JUDGE ROSENTHAL: Thank you, Mr. Turk.
9 MR. TURK: Thank you very much.
10 JUDGE ROSENTHAL: All.right.
11 Mr. Bronstein, are you going to present the :
~
12 -rebuttal for the intervenors?
13 MR. BRONSTEIN: Yes,1I am.
14 JUDGE ROSENTHAL: All right. You have six.
15 minutes.
16 REBUTTAL ARGUMENT ON BEHALF OF INTERVENORS 17 by Donald Bronstein, Esq.
18 Thank you.
~
19 I just want to address a few of the spegific 20 arguments that were made both by Mr..Dignan and Mr. Turk.
21 First of all, _I will answer the question as to 22 whether this Board is locked in by the Commission's 23 decisions and your own prior decisions.
24 In the Shoreham litigation I think-it is clear 25 that the specific allegation of irreparable harm upon ACE FEDERAL REPORTERS, INC.
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2 high level radioactive waste, was not addressed at any point 3 in that litigation.. And although Mr. Turk-is correct in 4 saying that the Commission made some reference to 5 accumulation of high level radioactive waste in its 6 decision, it did not discuss it in the context of 7 irreparable harm but, rather, in the context of whether or 8 not a separate Environmental Impact Statement would be 9 required for Shoreham.
10 And it is quite different to say that there may 11 be certain costs from operation which are outweighed by' 12 certain benefits. That kind of discussion ~in no way
{}
13 precludes our contention here that there is irreparable harm 14 from the creation of high level radioactive waste. And of 15 course in the situation with low power operation, there is 16 no compensating benefit that you get from full power 17 operation.
18 JUDGE EDLES: Mr. Bronstein, what about the 19 argument that was made that both the Commission and the 20 Court at least implicitly knew that when they said that the 21 consequences of low power operation are well-known and 22- understood, and that they felt that though there was a 23 change in the status quo, although I agree with you they did 24 not mention the retention of the waste specifically,
(} 25 implicitly that was one of the things that they dealt with ACE-FEDERAL REPORTERS, INC.
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MPBeb 1 or were aware of.
2 MR. BRONSTEIN: I don't want to conjecture, and I 3' really think it would be inappropriate for the Board to 4 conjecture as to what both the Court and the Commission may 5 have had in mind in saying that the consequences are 6 well-known, and certainly where the issue was never squarely 7 presented as we have presented it, incidentally, by way of.
8 affidavit. I don't think that anyone here can say that this 9 Board is locked in by those prior decisions.
10 And on the issue of af fidavits, Mr. Dignan talks 11 repeatedly about the infinitesimal nature of this problem 12 here in terms of the waste that would be created through the 13 low power operation. I note that he hasn't submitted any 14 affidavit that would set forth the amount that would, and 15 how it may relate to the overall accumulation.
16 It is our position that any additional 17 incremental increase is in fact a form of irreparable harm.
18 JUDGE EDLES: But that is your position, and I 19 did not believe your papers, including the affidavit, said 20 there was going to be tons and tons and tons and tons of the 21 stuff but, rather, your argument is that there would be some 22 incremental increase, however marginal, and that that is an 23 irreparable harm. That's your position.
24 MR. BRONSTEIN: However marginal but not 25 insignificant. Yes, that is our position.
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7^ MPBeb 1 JUDGE EDLES: Okay.
U 2 MR. BRONSTEIN: Now Mr. Turk says that we needn' t 3 concern ourselves with this form of irreparable harm because
- 4 we can take on faith that there is going to be a means 1
j 5 created to dispose of that, and I think Mr. Rosenthal'noted 6 that we of course have been hearing this for a long time.
j 7 My basic response to_that would be that where we j 8 are talking here about a relatively short delay versus the ;
- 9 years that are likely, we know that at the very, very most 10 optimistic there may be a repository sited in about 15 11 years. And in fact it seems.that the progress is quite slow j 12 toward meeting that goal.
13 Comparing that versus the situation ~ that we have
- 14 here where we are asking for a relatively short delay, I l 15 think it is just misplaced to say that this is a problem I
16 that we don't need to consider.
17 On the issue of the binding nature of the 18 Shoreham precedent, I think it is important for the Board to I
19 realize that if it is bound by one Shoreham-related decision '
- 20 it is bound by another, and the most recent Commission 1 21 decision in this case specifically chone to draw a J
.a 22 distinction between Seabrook and Shoreham, and specifically, 23 noted that there had not been any plan submitted for the 24 emergency zone in Massachusetts.
! n V
25 JUDGE ROSENTHAL: They didn' t draw that l ace FEDERAL REPORTERS, INC.
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6930 06 09 102 1 distinction for the present purposes. Now what again, 3-)MPBeb
'V 2 Mr. Bronstein, would be wrong if we chose to follow this 3 course over, among other things, Mr. Dignan's strong 4 objections, if we said to you Look, we've got the Shoreham 5 decision on the books here. Intervenors are trying to 6 distinguish it. If there is a distinction to be drawn, the 7 Commission ought to be the one to do it, and we will 8 therefore grant you a short housekeeping stay to let you go 9 up and tell the Commission all about it.
10 MR. BRONSTEIN: Certainly of course as a fallback 11 I would request such a housekeeping stay, but as a 12 preliminary matter, it is our position that the Commission 13 has already drawn that distinction and this Board is 14 entitled to take.that into account.
15 JUDGE ROSENTHAL: Not for those purposes, are 16 they? What you're really saying here-- The question here 17 is simply this:
18 The question is whether, given the uncertainty as 19 to whether this plant will ever operate commercially, should 20 it be allowed to go to low power operation with whatever 21 consequences flow from that?
22 Now that is precisely the issue that was in 23 Shoreham, and I don't think actually that we were involved 24 in the Shoreham decision on that at all. I think that went
(- 25 directly from the Licensing Board to the Commission.
U}
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?~%MPBeb 1 Because frankly, if I were looking at this as a b 2 fresh issue, I would be inclined to say -- and I only speak l
( 3 for myself -- that there was something to be said for your 4 argument. But the Commission has said that the mere fact 5 there is an uncertainty as to full power operation-is not a 6 sufficient justification for not allowing a plant to go to 7 low power.
8 Now if anybody is going to change that it seems 9 to me it is the Commission that has to do it.
l j 10 MR. BRONSTEIN: I recognize that it is likely 11 that at some point the' Commission is going to have to be the 12 one to rule on this. I dcn't think that in any way-l
(} 13 precludes this Board from initially attacking it.
14 And I would like to say that when I rely on that 15 decision of two weeks ago, I am not referring merely to the l
16 50.33(G) issue, which of course the Commission is continuing 17 to evaluate, but to the specific nature of the distinction 18 drawn between the Seabrook and the Shoreham situations, the 19 Shoreham situation-being one characterized as--
20 JUDGE ROSENTHAL: I think-we understand your l
21 position, and your time has expired.
i 22 MR. BRONSTEIN: Thank you. -
23 JUDGE ROSENTHAL: Before we adjourn for lunch, 24 and we will resume at two o' clock, I would have this to 25 offer on behalf of the Board, and that is that as I hope
}
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I 6930 06 11 104 MPBeb 1 the fact that we have scheduled 80 minutes a side for oral 2 argument this afternoon reflects the Board regards the issue 3 that is presented by the motion for directed certification 4 as being a serious one. We do not regard it as in any sense 5 being frivolous or trivial.
6 Now in that connection, the reason I'm mentioning 7 it now is because I want the counsel for the intervenors to 8 be thinking about this after lunch -- over the lunch hour.
9 The Board will be particularly interested in hearing 10 specifics from the intervenors' counsel with regard to how 11 the challenged Licensing Board schedule has prejudiced them.
12 Now in looking at the schedule, most of the steps 13 have already had to be accomplished. Discovery under the
(}
14 schedule closed on March the 6th. Then the answers to the 15 last interrogatories were due on I think it was March 19th.
16 The deadline for motions for summary disposition was March 17 26th. Responses April 16th. And then opposing parties 18 could file responses to new facts and arguments presented in 19 statements supporting motions for summary disposition by 20 April 27th.
21 So up to that last step, of the ones that I have 22 enumerated, the time has passed.
23 Now we will expect those parties -- and that's 24 all four intervonors -- who are claiming that this schedule
(-)
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.6930 06 12 105 7^'MPBe b l- they mean a fair opportunity to conduct these various V
2 prehearing activities, we will expect the parties to give us 3 chapter and verse, so you may be thinking about that. I 4 assume that counsel are prepared to' address that 5 specifically.
6 So in short, we want specifics. We don't want 7 generalities about how 10 days is too short for this, or 15 8' days is too short for'that. You should be in a position to 9 be able to tell us, if.such be the case, just what you were 10 precluded from doing by reason of your perception that this 11 schedule was too tight.
12 on the other side of this case we.are going to
{} 13 expect--
14 I don' t know, Mr. Turk, whether Mr. Berry is 15 here. ,
16 MR. TURK: Yes, he is.
17 JUDGE ROSENTHAL: He can listen to this.
- 18 I am going to expect counsel on the other side of 19 this case to tell us just what is the deadly rush. This is l
20 a tight schedule by anybody's definition. And we are going 21 to want to know just what possibla justification there was 22 for this compressed schedule in terms of the time at which j 23 this plant could conceivably reach a full. power license.
i 24 So we just thought that we would give you this.
(} 25 advance word which may serve to advance the argument.
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' 6930 06 13 106 PBeb 1 Among other things, it should give you some idea as- to what 2 are the concerns that the Board has in terms of the issue
! 3 this afternoon. And I would again stress that oral argument 4 is for our benefit, not for yours.
5 On that note, we will adjourn for lunch--
6 Oh, Mr. Backus, one thing. That is that the 7 letter that you have agreed to submit to us with respect to 8 that reference, record reference, should be in the mail a 9 week from today.
10 MR. BACKUS: Thank you.
^
11 JUDGE ROSENTHAL: All right.
12 We are adjourned until two o' clock.
13 (Whereupon, at 12:30 p.m., the oral argument 1 14 in the above-entitled matter was recessed to 15 reconvene at 2:00 p.m. the same day.)
- 16 17 18 19 1
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2 (2:00 p.m.)
3 JUDGE ROSENTHAL: What is going to be the 4 intervenors' order of presentation, and what are the time 5 allotments?
6 MR. BACKUS: I am going to etart, your Honor, and 7 I expect about 20 minutes.
8 JUDGE ROSENTHAL: Mr. Backus is going first. All 9 right.
10 Uho is going second?
11 MS. CURRAN: I will be going second.
12 JUDGE ROSENTHAL: Okay.
N 13 And third?
(\-)
14 MR. BRONSTEIN: I'll be third. '
15 JUDGE ROSENTHAL: All right.
16 Now are we talking 20 minutes apiece?
17 MR. BRONSTEIN: Yes.
18 JUDGE ROSENTHAL: All right.
19 Now I need to know who is the anchor here?
20 All right.
21 Now I take it on the other side it will be the 22 usual order with the time divided equally.
23 MR. DIGNAN: That is correct, your Honor.
24 JUDGE ROSENTHAL: All right.
(- 25 MR. DIGNAN: I attempted to give 75 minutes to
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?"SMPBeb 1 the Staff and they wouldn't take it.
U 2 (Laughter.) .
~3 JUDGE ROSENTHAL: I just want to reiterate before 4 we start that this Board is interested.in the practicalities-5 of this situation. We are fully familiar.with the general 6 principles of procedural due process and opportunity.for a 7 fair hearing. We are fully aware of the fact that we get 8 into the scheduling. thicket cautiously,.and we don't need to 9 be reminded of this.
10 What we want to find out from the parties now is 11 what is the practical significance of what, beyond dispute, 12 was a tight schedule. Whether the schedule was too tight or
{} 13 not, that's another matter. But let's be talking in those 14 terms and let's leave the generalities and the. wonderful 15 restatement of why the accepted principles for some other.
16 -time and some other day. Okay?
17 Mr. Backus. **
18 ORAL ARGUMENT ON BEHALF.OF THE INTERVENOR, 19 SEACOAST ANTI-POLLUTION LEAGUE l 20 by Robert Backus 21 Mr. Chairman, members of the Board, may it please 1 22 the Board, I am going to get into the specifics here. I do )
23 have a few introductory points I want to make before I do i 24 that, however, with-the Board's indulgence, and I just want
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6930 07 03 109 MPBeb 1 Back in the Commission's decision of March of 2 1977 in this case, in CLI77-8, the Commission said this case 3 has been depicted as a serious failure of governmental 4 process to resolve central issues in a timely and 5 coordinated way, a paradigm of uncoordinated 6 decision-making. That is what is continuing with this 7 schedule in this situation. It is exacerbated by the 8 Board's schedule that tramples on the rights of the 9 parties.
10 Now the first thing I want to address very 11 briefly is something I know you said you were going to talk 12 with the other side about, and that is what is the reason 13 for having a hearing on June 1 in Concord, New Hampshire.
14 As f ar as the Appeal Board is concerned, the reason is 15 because the Courthouse is available and they want to tma in 16 the Courthouse.
17 JUDGE ROSENTHAL: Not because of the Appeal 18 Board, because of the Licensing Board.
19 MR. BACKUS: Excuse me. Thank you for the 20 correction. I certainly meant the Licensing Board.
21 As far as the utility is concerned, the purpose ;
22 of the hearing is to further their public re'1ations and l l
23 expedite their financing request. There is no other purpose 24 for a hearing in June. The result of the hearing cannot be 25 a license -- we all know that -- because of the emergency O-s
{!
-l i
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6930 07 04 110 7 xMPBeb 1 planning situation that we face at Seahrook which is not V
2 going to be resolved by this hearing.
3 JUDGE EDLES: Mr. Backus,.is there any estimate 4 you can offer as to when emergency-planning issues are 5 likely to be amenable to resolution? I understand your 6 basic position; it may never get resolved.
7 MR. BACKUS: That's right.
8 JUDGE EDLES: But let's assume we do go down the I
9 road to attempt to consider them in due course. When are 10 they likely, in your judgment, to be amenable to resolution?
11 MR. BACKUS: I certainly cannot speak to that. I 12 can tell you that the 10-K filed by Public Service Company r'N 13 very recently gives a financial planning date for commercial v
14 operation of July 1988, and I understand a number of the<
15 other owners, including the Massachusetts Municipal 16 Wholesale Corporation, which is the public agency in 17 Massachusetts representing a number of municipalities, is 18 using November 1988.
19 Now I don't think those are anything more than 20 what they purport to be, financial planning estimates.
21 JUDGE EDLES: So we' re talking from your 22 perspective of a year off at the earliest. ,
l 23 MR. BACKUS: At the earliest. And historically I 24 those dates have never been optimistic on the early side. j l
25 JUDGE WILBER: You did say commercial operation,
(~}
I
%d e
ACE FEDERAL REponTEns, INC.
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1 6930 07 05 111 MPBeb 1 and not startup. Is that correct?
2 MR. BACKUS: That's right.
3 JUDGE ROSENTHAL: All right.
4 Now let's get into this schedule.
5 MR. BACKUS: All right.
6 The first issue I think in addressing the 7 schedule is what is the appropriate date to use for the 8 start period for the schedule, and on this -- my just simple 9 comment on that is I think we have to use the date that was 10 triggered by the Board's order on ruling contentions which 11 was dated February 18th, served February 19th, received by 12 the parties on Feb'ruary 23rd. That is the date that we have
(~S' 13 to start with.
'N 14 From there until this projected date of hearing 15 on June 1st I think is something on the order of 100 days, a 16 very brief time.
17 JUDGE ROSENTHAL: All right.
18 Now let's assume that's correct. Let's say 19 February 23rd. Discovery closed March the 6th. Is that 20 correct?
21 MR. BACKUS: Yes.
22 JUDGE ROSENTHAL: Now I want to know what that 23 meant as a practical matter in terms of your ability to 24 obtain discovery against other parties.
,3
, 25 MR. BACKUS: Okay.
U ACE FEDERAL REvonTEns, INC.
202-347-3700 NationwiJe Cmerage NWA3M/M6
6930 07 06 112 1 JUDGE ROSENTHAL: What discovery did you get?
{v-]MPBeb 2 What discovery were you in ef fect denied because of that 3 period?
4 MR. BACKUS: What we got as a result of the 5 Licensing Board's not serving it with its decisions on 6 contentions until February 23rd was 11 days for filing 7 discovery requests.
8 JUDGE ROSENTHAL: I know that. I want to know 9 what you were able to do and what you weren't able to do. I 10 can count the periods.
11 You know, we have a limited amount of time, 12 Mr. Backus. You have got a limited amount of time. You
{} 13 have a burden to persuade us that there was some form of 14 prejudice, so I think that-- Don't repeat what you have 15 every reason to assume we already know.
16 MR. BACKUS: Okay. What we got was one round of 17 discovery requests with no follow-up.
18 Now you are going to ask me, Mr. Chairman, what 19 would you have done for follow-up if you had had the 20 opportunity, and I can tell you that because of the demands 21 on our time, I'm not able to answer that question in 22 detail. We have resource limitations. We have numerous 23 demands placed on us in this proceeding.
24 We had the petition to shrink the zone to respond
{} 25 to. We had the Commission's appeal. We had--
l ace FEDERAI, REPORTERS, INC.
202 347-3700 Nationwide Coverage MD 33MM6
6930 07 07 113 7"%MPBeb 1 JUDGE ROSENTHAL: I understand all of that. Is O
2 there nothing that you are able to tell me about Look, we 3 only had this period of time; if we had more time we would 1
4 have sought this or would have sought that. Is there 5 anything specifically that you can tell us?
6 MR. BACKUS: Yes, there are some things-I can 7 specifically tell you.
8 JUDGE ROSENTHAL: Then why don' t we get to that?
9 That's what we' re looking for, specifics.
10 MR. BACKUS: All right.
11 One of the things that we found out in the 3
12 answers to interrogatories is that the applicants were 13 unable to identify any witnesses and that FEHA was unable to
(}
14 take a position. We would generally have followed up with 15 interrogatories to pursue that issue of witnesses and FEMA's 16 position.
17 One of the specific things we found out in this 18 discovery process, sir, in the motions for summary 19 disposition was that there was a serious issue, in our 20 opinion, of the transportation to be provided to people in 21 the emergency planning zone. The jargon is " mobility 22 impaired." They don't have their own automobiles.
23 There is alleged in the New Hampshire plans to be 24 515 buses available. A question came up as to how those 25 buses are going to be manned, or we should say "personed,"
ace FEDERAL REPORTERS, INC.
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6930 07 08 114 f-]MPBeb 1 I suppose, to drive back into the zone against the exiting
\.J 2 traffic to pick up those who are mobility-impaired.
3 All we have been given on that is a letter of 4 agreement signed by John Sununu on behalf of the State of 5 New Hampshire, and a fellow named David Lawton on behalf of 6 Local 633 of the Teamsters Union saying there are 1500 7 Teamster members somewhere available in the State of New 8 Hampshire.
9 One of the things we would have done -- and I 10 have talked to Mr. Lawton, who has declined to volunteer to 11 cooperate on this. One of the things we would have done is 12 certainly take Mr. Lawton's deposition. Now that is one
{} 13 very specific thing.
14 JUDGE EDLES: When is FEMA likely to have its 15 position known?
16 MR. BACKUS: I have no idea, and that was one 17 reason I inquired if FEMA was going to be attending this 18 hearing, or have a representative here. I don' t know when 19 their position is going to be known.
20 Mr. Chairman, to go back to the question that you 21 are pressing on me here, it is in fact true we were able to 22 generate a substantial amount of discovery requests. I can 23 only tell you that because of the press of other things to 24 be doing, and particularly dealing with the summary ,
1
(~)
\>
25 disposition motions which came in a box six and a half ACE FEDERAL REPORTERS, INC.
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6930 07 09 115 f~}MPBeb 1 inches deep, we have not been able to think about what N_/
2 additional discovery we would have done, frankly.
3 I have given you one specific example. I think 4 if we had the time, and we didn't, to thoroughly review 5 those discovery requests, we would be able to tell you 6 more. But we were told we weren' t going to get any more so 7 we didn't do that. It is kind of a Catch 22 here, frankly.
8 Now if I move forward, Mr. Chairman, from where 9 we have been with our one-shot question process to the issue 10 of having testimony ready to be filed on May 21,--
11 JUDGE ROSENTHAL: Well, wait a moment. Let's go 12 back a step before we get to that and talk about motions for 13 summary disposition and responses thereto.
14 Now I understand that the applicants filed a 15 motion for summary disposition every -- or about every 16 contention. Is that correct?
17 MR. BACKUS: I believe it is on every 18 contention. They may have missed one, but I think they went 19 af ter every one.
20 JUDGE ROSENTHAL: Now is it your contention that 21 the period that you were given to respond to the motion for 22 summary disposition was inadequate?
23 MR. BACKUS: It was. But the Licensing Board has 24 done something on that that this Board should be aware of.
r~% 25 As a result of a telephone conference among
\)
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6930 07 10 116 7 TMPBeb 1 counsel held on April 13th and presided over by Judge Hoyt, V
2 Judge Hoyt, upon hearing that we had this vast volume of 3 summary-disposition motions and that certain of us had 4 experts that would need to provide us with assistance to 5 reply, just eliminated certain motions for summary 6 disposition on the grounds we wouldn' t have to answer them 7 at all.
8 JUDGE ROSENTHAL: I saw that. She indicated that 9 certain of those motions were denied.
10 MR. BACKUS: Right.
11 JUDGE ROSENTHAL: So you only had to respond then 12 to whatever number it was minus those that she ruled on.
13 MR. BACKUS: Right.
14 And we succeeded in filing responses. Whether or 15 not she is going to decide those responses were sufficient
, 16 to preserve these issues for litigation, who knows.
17 Frankly, I'll be surprised if this Board rules on summary 18 disposition before June 1st, but maybe they will.
19 In any event, the remedy that she had--
20 JUDGE EDLES: Mr. Backus, allow me to pick up on 21 that.
22 As to those matters to which you were required to 23 respond, those that were not -- that are not going to go to 24 litigation, can you give me examples of areas in which you
(" 25 might have been foreclosed from doing things in response to V}
ACE FEDERAL REPORTERS, INC.
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6930 07 11 117
?SMPBeb 1 those motions that you might otherwise have done?
V 2 MR. BACKUS: Sure. I'll go back to Mr. Lawton 3 and the Teamsters Union.
4 One of thing things I wanted to get from 5 Mr. Lawton was an affidavit that his letter of agreement did 6 not necessarily commit 1500 bus drivers to arrive at 7 whatever the dispatch points are going 'to be, that I believe 8 what he would say if asked is that this is the number of 9 Teamsters with light commercial licenses who live in the 10 State of New Hampshire, whether it is in the Connecticut 11 Lakes region or Keene or wherever. I believe that's what he 12 would have said.
r- 13 He declined to volunteer to cooperate with me, so b) 14 I was not able to furnish such an affidavit on the 15 appropriate contentions on that.
16 In any event,--
17 JUDGE EDLES: Are there any other examples that 18 we should be aware of that you can think of where your --
19 specifically where your ability to respond to summary 20 dispositions was compromised?
21 MR. BACKUS: I think that the other areas have 22 been disposed of as far as we're concerned, and the other 23 parties will speak to their own issues here.
24 As f ar as we're concerned we're dealt with by gg 25 Judge Hoyt's ruling that there will be no summary G
ACE FEDERAL REPORTERS, INC.
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4
- i. 6930.07 12 118 MPBeb 1 disposition proceeding on certain issues. The ones she went 2 on were sheltering facilities at the so-called host t 3 communities or the reception and decontamination centers and 4 the evacuation time estimate issues.
5 Now I just ask the Board to. note that this is a
! 6 rather extraordinary way of dealing with what was plainly an 7 inadequate schedule was by eliminating an essential step or 8 at least a normal step in the process. .
I 9 JUDGE EDLES: Let me just get this:
10 Your assertion now is that the Licensing Board in 11 effect did not rule really on the merits of the request for t
12 summary disposition but really said we don't have enough 13 time to look at this kind of stuf f so we' re going to let you
[}
14 litigate it.
j 15 MR. BACKUS: Right.
16 JUDGE EDLES: Is that memorialized anywhere? I ;
i 17 mean can we-- We just have to-- !
-l
! 18 MR. BACKUS: I have the transcript.
19 JUDGE EDLES: The transcript of the conference 20 call?
i q 21 MR. BACKUS: Yes.
22 JUDGE EDLES: You mean I should reasonably glean
- 23 that from Judge Hoyt's comments?
24 MR. BACKUS: Yes. And I would invite the-- I
[} 25 don't know the--
ACE. FEDERAL REPORTERS, INC.
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6930 07 13 119 7 sMPBeb 1 JUDGE EDLES: Because obviously if that is true,
(-)
2 that is I suspect some evidence-- If your representation is 3 true, there presumably is some evidence that Judge Hoyt 4 herself sees that this is a pretty short schedule for 5 everybody, including the Board.
6 MR. BACKUS: Right.
7 JUDGE ROSENTHAL: Now with respect to those 8 contentions, the ones that Judge Hoyt advised you would not 9 be disposed of summarily, is the time for preparation for 10 trial adequate?
11 MR. BACKUS: No.
12 JUDGE ROSENTHAL: Why not?
13 MR. BACKUS: We have a number of experts that 14 will not be able to complete testimony by May 21st.
15 JUDGE ROSENTHAL: When did they start to prepare 16 the testimony?
17 MR. BACKUS: Hell, these are experts that are 18 primarily being worked with by the other parties.
19 JUDGE ROSENTHAL: Okay. I'll ask them.
20 MR. BACKUS: I do have, however,-- We did attach 21 to our joint appeal, as you know, the affidavit of 22 Dr. Adler. ,
23 JUDGE ROSENTHAL: And when did he start to work 24 on this?
25 MR. BACKUS: He was originally identified some 4
, ACE FEDERAL REI'ORTERS, INC.
202 347 37ty) Nationwide Coserage 800-33MM6
l 6930 07 14 120 MPBeb 1 time in November. As you will see from his affidavit, the 2 critical thing he needs to do is try and replicate results i
l 3 from certain computer runs based on computer models 4 available for FEMA which had not yet been furnished.
5 JUDGE EDLES: But his af fidavit goes only to the 6 evacuation, as I recall.
l 7 MR. BACKUS: That's right, which of course is an 8 important issue in this case.
9 JUDGE WILBER: He has not received that yet. Is
- 10 that what you just said?
11 MR. BACKUS: I believe he has not received that P
j 12 yet.
i
(} 13 I also have an affidavit we obtained yesterday 14 from Dr. Luloff at the University of Now Hampshire, who is j
j 15 doing work on sheltering issues and the populations. And 16 this affidavit which I can make available to the Board ,
l 17 specifies the timo necessary for him to do the work he wants
! 18 to do, which involves trying to duplicato the population I
i 19 ostimates used by the applicants which depend upon the 20 interpretation of aerial photographs.
21 JUDGE EDLES: Why wasn't that affidavit obtained i
! 22 carlier and submitted with your motion?
! 23 MR. BACKUS: I'm not really suro I have a good a
l 24 answer to that. Frankly, I thought Dr. Luloff was going to I
i
(} 25 speak to the time issuo. In the affidavit ho furnished in j I
t i
l /\CE FEDERAL REPonTERs, INC.
. 202 347 3700 Nationwide Coverage m)-33MM6 l l
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6930 07 15 121 MPBe b 1 support of the opposition to summary disposition, if you 2 look at his affidavit in opposition to summary disposition 3 you will see that he refers to on-going studies which he is 4 doing, but he didn't detail there the amount of time it 5 would take to complete those on going studies.
6 He has now furnished that information to me in 7 this affidavit.
8 JUDGE ROSENTilAL: When did he start to work on 9 this, because I gather that what your adversarios are going 10 to toll us is that those folks should have been working on 11 their testimony some time ago.
12 MR. BACKUS: I think you should redirect that rx 13 question to the attorney for the Connonwealth since those (J
14 are people he has obtained.
15 JUDGE ROSENTIIAL: Fine.
16 MR. BACKUS: I guess my only answer would be I 17 think we were entitled to use the February 23rd as the start 18 date for knowing what we were going to have to litigato.
19 JUDGE ROSENTilAL: All right.
20 MR. BACKUS: We also have an export we are 21 intending to uso f rom the Dartmouth liitchcock Medical 22 Contor, Dr. Ilorzberg, on cortain matters. !!o is unavailablo 23 to us and will not be availablo until May 5t h. I am not 24 sure how long it in going to tako him to produce testimony.
e 25 JUDGE ROSENTilAL: Well, when you say (s}
v Acti-171 :niinai. Riii>onTrins, INC.
h 202-347 3700 Nationwide courage so 3M u,m
p 6930 07 16 -122 pPBeb 1 unavailability, does the proceeding come to a halt because
{
i 2 the witnesses or prospective witnesses for some parties 3 aren't available? I mean that's just tough, isn't it?
1 ,.
4 No District Judge that I know of is going to be j 5 very sympathetic with a representation that trial has to be j 6 put of f for a period of time because one of the parties i 7 can't make its witness available.
l 8 MR. BACKUS: Well, I can only say that has been 1
l 9 frequently a courtesy extended to me in my practice in New 10 Hampshire in State and Federal Court. Maybe it is not done 11 here.
i-t 2
12 JUDGE ROSENTHAL: Well, there are some Federal
() 13 14 Judges around who are perhaps a little loss charitable than your Judges in Now Hampshire may be. [
l I 15 MR. BACKUS: That may be true, but there have i 16 boon a number of continuances. I know trial judges often ;
f 17 will got upset if there has been a number of continuances. l i
18 This is a caso that starts do novo on a very complex matter ;
i 19 as of, I say again, February 23rd.
l -
J 20 JUDGE ROSENTHAL: All right. Let me ask you this 21 question, Mr. Backus. Your timo has almost expired.
I 22 Is it possible for us to go through theso i
j 23 contentions -- You've got a number of contentions; your 4
i 24 colleagues have a number of contentions -- and say Okay, on 25 this contention it looks like the schedule was not that
[}
i i
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i
. _ . _ - - - , _ ~ . _ _ _ ~ , _ _ - . - . . - _ , _ . . - - - , - _ _ , . , , - - _ _ . _ , - , , , . , , - . . -._ .,_,,,,-,,m _,.__~,_,,--.m,--_-#.-._-
6930 07 17 123 T xMPBeb 1 unroasonable because it is a narrow contention and by its U 2 very nature, no discovery or very little discovery will be 3 called for. And so there is a class of contentions that 4 could go forward for hearing on June 1, whereas some of the 5 others, for example perhaps the ETE contentions, are in a 6 difforont ballgame, and that they would have to be put off?
7 I mean is this an all or nothing at all 8 proposition insof ar as you' re concernod?
9 MR. BACKUS: I suppose thoro is some discretion 10 there. I would urge that discretion be exorcised in the 11 interest of an overall hearing. I mean those plans aro 12 supposed to be mutually supporting. The olomonts are (N 13 supposed to work together. It would cortainly be far, I O
14 think, more practical and mako more senso to have at least 15 those plans dono on an integrated basis.
16 As you know, I have already argued that the wholo 17 thing should be put of f until we can do the wholo omorgency 18 planning zono on an integrated basis.
19 JUDGE ROSENTilAL: That's fair enough.
20 MR. BACKUS: One other specific point I will
! 21 mention. I think Attornoy Bronstein will speak to this 22 because this particularly wont to the Commonwealth.
23 One of the things that came back in the data 24 rosponses -- and this goos again to the population estimatos
, 25 from flyovers -- was that the applicants handed out in ace FEDERAL. REPORTERS, INC.
202 347-3700 Nationwide Coverage mxb33MM6
c930 07 01 124 P~%MPBob 1 response to discovery requests something like 11,000 slidos V
2 in an unsorted way. And this was brought up at the time of 3 the telephone conference with the Licensing Board.
4 And Judge Hoyt said-- When Attorney Fiorce for 5 the Commonwealth raised this as a tromondous problem in 6 getting their experts in this caso, and Dr. Luloff, whom 7 I've boon mentioning to you, to deal with this, Judge lloyt 8 said, "Mr. Pierco, the only problem I have with that is that 9 in looking back over some of the interrogatories that you 10 propounded I think you havo got, at the Commonwoalth lovel, 11 precisely what you asked for. I do wish that wo had those 12 slidos, particularly with the number that's involved, botter
(} 13 14 organized for comploto organization. But you just asked for all thoso materials, so when you got them, now you want them 15 sorted for yourself. I'm afraid you're going to have to 16 take what you've asked for, Mr. Fiorce. That is about the 17 best we can do for you on that."
18 Woll, I gather thoro has boon somo agrooment on 19 the part of the applicants to mako some effort at sorting 20 thom out, but when you got this mass of matorials and then 21 you're expected to go on with the next stop of the 22 procooding, which was the summary disposition which was an 23 onormous burdon, I think we'ro put under an onormous 24 strain.
25 But wo can't undo the past. You can protect us Ace FunnaAL Rneoninas, INC, 202 347 3700 Nationwide Cmcrage Mo 336 M46
c930 07 02 125 MPBob 1 against future, I think, miscarriages of justico in this 2 proceeding. And that's the last thing I really wanted to 3 say to you, Mr. Chairman.
4 I think thoro was a serious problem with the 5 credibility of the Licensing Board. I won't speak to the 6 Commission. But I think this Board has an important role in 7 attempting to restoro some credibility and f aith in the 8 peoplo that I reprosent and Mr. McEachern represents in the 9 integrity of this process. And that is what wo nood from 10 you.
11 You havo a real rolo here to fulfill now, and I 12 just urgo you to considor that as you deliberato on this as
,q
, 13 woll.
U 14 JUDGE ROSENTIIAL: Thank you, Mr. Backus.
15 Ms. Curran.
16 17 18 19 20 1
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' 6930 08 09 126 1 ORAL ARGUMENT BY MS. CURRAN ON BEHALF OF
{} bur
, 2 THE NEW ENGLAND COALITION ON NUCLEAR
}.
4 3 POLLUTION I
i 4 MS. CURRAN: I would like to go back a little -
1 i 5 further than the February 23 deadline, when discovery j 6 commenced, to the Licensing Board's ruling establishing a i
j 7 schedule for filing of contentions on Revision Two. ,
i '
l 8 One of the Licensing Board's statements to us has I
9 been that we really don't need all this time because we have 10 had Revision Two for a long time and have had plenty of time l 11 to work on it.
I j 12 I would just like to go through and explain to
(]) 13 you some of the conflicts that have created a real problem 14 for us on that. l
{
i 15 JUDGE ROSENTHAL: Is that relevant here? I I
l 16 thought that what was before us was a motion for directed I
j 17 certification of the schedules that are set forth in the i
1 i 18 January 9 ordor and reconfirmed in the March order, which l 19 bogan with the Board's ruling on contentions? Isn't what ;
i l 20 what we are focusing on here, the reasonableness of that i
j 21 schedulo?
1 J 22 MS. CURRAN: I think it is relevant to the extent i
j 23 that the Board claims that we have had tons of timo to work ;
i j 24 on preparing our testimony for this sinco the Revision Two ;
4
) (]) 25 was filed.
} Act.Fiiniinai. Riti>ontrins, INC.
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6930 08 09 127 1 That is my point.
(]} bur 2 JUDGE EDLES: You are going to now document for 3 us more or less why the two plans are vastly different and 4 therefore whatever learning you did in the beginning isn't 5 really very helpful now; is that the point you are going to 6 make?
7 If so, I think it is relevant, but I think that 4
8 is the point you are intending to make, isn't it?
9 MS. CURRAN: Yes, that and to explain to you what 10 happened during the timo period that we had those plans and 11 we woro supposed to be doing all those other things with 12 them.
() 13 JUDGE ROSENTilAL: All right.
14 MS. CURRAN: We rocoived Revision Two in 15 September of 1986. The revision contained substantial 16 changos to the New Itampshire plan, including compensatory 17 measures that the stato intended to take on such important 18 things as evacuating school children, omorgency responso 19 personnol, ovacuating disabled poopio.
20 Those are all critical intoronts of NECNP.
i 21 At the timo that we received those plans, wo woro
! 22 in the midst of preparing for the onsito hearings and NECNP 3
23 had a contention on onvironmental qualification. The entire 24 month of September wo woro occupied with discovery,
() 25 preparing for cross-examination of witnessos and going to Acrt 17ti otinai. Ritronriins, INC.
202w37m Nationwide Cmerge m3M u,M
6930 08 09 128 bur 1 the hearings at the end of September.
2 On November 12, our proposed findings woro duo in 3 hand to the Onsite Licensing Board.
4 JUDGE EDLES: This is the romanded issue beforo
, 5 Judge Wolf?
6 MS. CURRAN: That is right.
7 The Board gave us -- the Board issued an order 8 establishing a schedule for the filing of contontions on 9 Revision Two on November 4, establishing a doadline of 10 December 1 for filing of contentions.
11 NECNP moved for an extension of that deadlino i
12 which was denied. We f11od as many contentions as we could
] 13 by the deadline.
i 14 Ton days later we filed an additional not of
- 15 contentions that we hadn't boon able to complete, addressed 16 the lato filed contention standard, and the contentions woro 17 dismissed in a summary fashion without any explanatory 18 opinion.
i 19 Now, I would like to move on to --
]
20 JUDGE EDLES: What I was hoping was that you woro 21 going to at least in a thumbnail way explain to mo tho
{
22 differoncos betwoon the original plan and the revised plan.
23 MS. CURRAN: The original plan rolled to a great 24 oxtent on local -- the town's personnel to carry out the 25 omorgency responso, and the now plan has much more provision !
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6930 08 09 129 1 for stato support and a whole different bus -- schoolbus
(} bur 2 kind of rationale for how the buses are going to work.
3 Ouito a few changos, and, you know, just to look at these 30 4 volumes of emorgency plans and to identify the changes would 5 require a substantial timo --
6 JUDGE EDLES: The Applicants say that the changes 7 were noted for you, that they woro marginally documented or 8 somothing like that.
9 MS. CURRAN: Wo found that that was true for some 10 -- for a lot of the changos and for some it wasn't, and I 11 did document that beforo the Liconsing Board that some of 12 the changes woro not clear from the markings in the margin
() 13 to Revision Two.
14 Dut basically all we had timo to do was to go 15 through as many of the plans as we could and look for those 16 little black linos in the margins. We would have liked to 17 have dono a much bottor job than that.
18 JUDGE EDLES: But in some respect, what you are 19 telling me is the timo was so short that you had to 20 basically rely on the Applicants, that they had in fact 21 alerted you to all the changoal isn't that so?
22 MS. CURRAN: That is right.
23 JUDGE WILDER: llow many contentions did you 24 submit based on Revision Two -- submit or modify?
() 25 MS. CURRAN I holievo wo substantially modiflod Aci!.FitniinAL Ittiponriins, INC, 20244MW Ntionwide emerare um tm,
6930 08 09 130 bur 1 maybe throo contentions. We submitted an additional very 2 long contention of the adequacy of decontamination ;
3 3 facilities, which that was the first timo wo had rocoived 4 any plans from the host facilities.
5 That contention was denied in its entirety.
6 We also submitted a second set of contentions 7 that included more contentions on the problems with bus j 8 transportation and also a contention on a generic problem 9 within the NRC of failure to have rollable methods for 10 calculating dosos for an offsite omorgency response.
11 Those contentions woro doniod an lato filod.
12 I would liko to talk a little bit about the
] 13 14 opportunity for discovory that was given.
than two wooks for discovery on this wholo range of NECNP got loss l! 15 contentions that wore admittod with respect to Rovision Two.
l 16 We are not just interestod in our contentions.
1
) 17 We are interosted in getting information on all of the
- 18 contentions that are admitted to the procooding. What wo 19 would have dono if we had had more timo was wo would.havo 20 carefully reviewod all the contentions that wore admitted i
21 and ask for discovory on all those contentionn.
22 That in our right under tho NRC rulon. Wo did do 23 a nocond set of interrogatorion against the Stato of Now 24 ilampnhire to got follow-up information. The Board refusod 25 to extend the doadlino for nummary judgment, rosponding to i
f Acit.I?til)l!RAl. Rimown:Rs,INC, 1 MJ4747m Nationwide Cmerage WsMM(M4
6930 08 09 e 131 f~ibur a
1 summary disposition motions when wo asked for a dolay so 2 that we could await the responses to those interrogatories.
3 JUDGE ROSENTilAL: What about the responses to 4 summary disposition?
5 MS. CURRAN: Well, I would like to go through a 6 chronology of what wo woro obligated to do during that timo.
7 I calculate that NECNP had a not of about throo 8 days in which to spend on answoring summary disposition 9 motions because of the other obligations in the caso and 10 related obligations. I would just liko to go through that.
11 The deadlino for filing summary disposition 12 motions, the day that wo rocoived them from Applicants was
() 13 March 26th. On March 25th, we rocoived a partial initial 14 decision from tho Onsito Licensing Daard. Wo had 10 days to 15 filo a motion for a stay of that decision and to filo our 16 notico of appoal.
17 NECNP also felt it was nocessary to filo motions 18 to compol answors to interrogatorios against Applicants and 19 the Stato of Now llampshiro, a number of which woro granted.
20 Wo filed thoso motions on March 27th. We also filed our 21 second out of intorrogatorios against Now llampnhiro on April 22 2nd, which wo felt woro nocossary to follow up on unclear 23 annworn that wo had gotton f rom Now llampshiro.
24 JUDGE IlOSENTilAL: Was that permitted by tho 25 nehodulo?
ACl! Illil)llitAl. l(lil'()lt ilillS, INC.
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l bur 1 MS. CURRAN: No, not at all, but we felt that wo 2 should f110 it.
3 JUDGE ROSENTHAL: Did you got responsos?
4 MS. CURRAN: Yes. Now Ilampshire agrood to j 5 respond.
6 JUDGE ROSENTilAL: Now llampshire didn't stand on 7 coromony on that?
8 MS. CURRAN: No, but the Licensing Board -- somo 9 of our interrogatorios did respond to summary j2dgmont 10 motions that woro pending against us, but the Licensing 11 Board would not chango the schedulo to await the answers to 12 those intorrogatorica.
13 JUDGE EDLES: You have now rocoived the answers, 14 though?
15 MS. CURRAN: Yoo.
16 JUDGE EDLES: Would they have changed any of your 17 approachon to the motions for summary disposition?
18 MS. CURRAN: My fooling is that wo survived by 19 attacking a lack of basis for the Applicantn' motions, but !
20 would have proforrod to have put nomo more affirmativo 21 ovidence in that I could havo gotton from the annworn to 22 interrogatorion, and I would just like to go maybo to touch 23 on that for a minuto.
24 And that to I don't think thin can be ronolved by l
25 naying if I had had more timo I could havo dono X, Y, and 2. i Acti li )tinAI.
iii Rtii>onittns, INC.
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6930 08 09 133 1 I am absolutely certain of what I could have dono.
(} bur l 2 The problem here is you don't have the time to l
i 3 respond. What we had time for on the summary disposition 4 motions was a knoo-jork reaction, and that involves looking i
5 at the pleading as fast as you can, identifying what the 6 caniost targots are to hit, and doing the best job you can l 7 with what you have.
i i 8 That is not an opportunity to make a meaningful l 9 record.
(
10 JUDGE ROSENTHAL: All right. Let me ask you 11 thin 12 You refer to the fact that among the many things
(]) 13 you had to do was to preparo your stay application with l 14 regard to the March 25 partial initial decision of the Wolf l
15 Board?
16 MS. CURRAN: That in right. ,
17 JUDGE ROSENTilAL: Now, in notting up the 18 nchedulo, did the Liconning Board, the lloyt Daard, have to 19 tako into account that you folks might or might not bo 20 required nomo timo during the porlod to deal with a dociolon 21 of an ontirely discroto Liconning Board, albolt the namo 22 proconding?
23 MS. CURRAN Woll, wo did go to the Offnito 24 Liconning Donrd and roquent an extonnion of the nummary
() 25 dinponition nchodulo.
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l 6930 08 09 134 l
bur 1 JUDGE ROSENTHAL: Based upon?
l 2 MS. CURRAN: Dased upon in part the conflicting l
3 deadlinos, which I have not finished relating to you, by the 4 way. Thore are more.
5 It included all the onen I havo given to you. It 6 included --
l l
7 JUDGE ROSENTilAL: What was the Licensing Board 8 responno to your motion?
9 HS. CURRAN: Evoryono 01so is kooping up; why 10 can't you? i 11 The fact in the Liconning Board isn't kooping up 12 oithor. But that was all the responno that I got.
13 In tho timo that wo had to answor --
14 JUDGE EDLES: Just a quick quantion.
15 The Chairmon of the two Liconning Boards are 16 difforont. Aro the other memborn the namo? f 17 HS. CURRAN: Yes -- no, that in not truo. Let's 18 noo.
t 19 Judge Linonborgor han ropincod Judge Luobko on i
20 tho Offnito Daard, but Judgo Luobko in on the Onnito Board.
21 JUDGE EDLES: Two of tho throo memborn aro 22 difforont?
23 HS. CURRAN: That in right.
24 JUDGE WILDER: When did that chango take placo?
25 Wan that nomowhero in the midstroom horo?
Acit.l?iti>l!RAl. Rl!!'OR iliitS, INC, 20244Wm Nanon*ide Omeure m)M (M6
6930 08 09 135 ,
1 MS. CURRAN: It was a couple of months ago. I
(]} bur 2 don't really recall when.
3 JUDGE WILDER: Which would put it close to the -- ,
4 JUDGE EDLES: Both of those occurred before the 5 romand, didn't it? It is the now Onsite Board that remanded 6 tho issues, as I recall.
7 MS. CURRAN: Right. Tho now Onsite Board has i
8 boon Wolf, Luobko, and liarbour for a long timo. That hasn't 9 changod. It is only rocontly that the Offsite Board 10 changed, with the substitution of Judge Linenborgor by Judge 11 Luobko.
12 Lot mo just go through the few other deadlinen 13 that we had.
(])
14 On April 15th, wo woro required to submit 15 commento on two potitions for rulomaking before the 16 Comminnion that had to do with the propor sizo of the l 17 omorgency planning zono. Obviounty, that in a critical 18 concern to NECNP. Wo had to participato in that rulomaking 19 to protoct our client's interont. '
20 And then also on April 13, NECNP and the Town of
'l llampton jointly filed a motion for an extonnion before the 22 Liconning Iloard to try to got nomo roliof from the nummary 23 dinponition schodulo. That roliot was doniod oxcept for ono 24 of NECNP'n contontionn, and thin took two afternoonn of 25
(]) conferenco calla for un to find that out. :
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(]; bur 1 We also spent one day in that 20-day period 2 reviewing documents at the Seabrook plant that had been 3 roloaned in response to our discovery requests. So our net 4 time on the summary disposition motions was about threo 5 days.
6 Now, I could have tried to do somo kind of a 7 supplomontal pleading afterwards and said -- tried to 8 ovaluato what I had gotton and said this is what I would 9 have dono.
I 10 Every timo you do something like that you rob 11 yourself timo from the next thing. It is a constant 12 struggio.
13 JUDGE ROSENTilAL: All right. Now, lot me ask you
(])
14 this. Maybo I should havo asked thin question, also, of Mr. ,
15 nackus.
16 What procino relief would you like to soo us .
l 17 award?
18 Now, hero wo havo -- wo have moved along. Wo 19 have boon through discovery. The claim in the period was 20 too ahort. Wo havo boon through summary disposition motionn '
21 and ronponnen. The period in too ahort, allogodly. And now 22 wo are coming up againnt the timo where the Board in two 23 wookn or nomothing in aupponed to rulo, and then the 24 profiled tontimony 10 days lator and than the hoaring ,
25 another 10 dayn.
(])
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l 6930 08 09 137 1 Now, what specifically are you asking us to do if
(} bur 2 wo agroo with you that the schedule is impossible?
l 3 Surely, you are not asking us to go back to l
4 squaro one and say, all right, wo start over again?
5 MS. CURRAN: No.
l l 6 JUDGE ROSENTilAL: I assumo you are asking for 7 onlargomonts now of some periods of timo. So specifically 8 what would you ask us to do?
9 MS. CURRAN: First of all, I would like an 10 onlargoment of the discovery period so that we could 11 thoroughly develop interrogatorios, got somo answers, find 12 out who tho witnenson are going to bo, have a chanco to 13 digent that information, have a chanco to do some eummary
(])
14 dinposition motions of our own, and then I think '- 1 l
l 15 JUDGE ROSENTilAL: Did you filo any summary l
16 dinposition motions? t 17 MS. CURRAN: I didn't have time.
18 JUDGI: ROSENTilAL: The onower is no?
19 MS. CURRAN: No. ,
20 JUDGE ROSENTilAL: Would you want than to be able 21 to ronubmit rooponnon tc the Applicants' motions for nummary ;
22 dinponition, or aro you notinflod with the responnon that l l
23 you filed? l 24 MS. CURRAN I would like the opportunity to 25 review it carofully and review tho annworn to tho
(])
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6930 08 09 138 1 interrogatories, which frankly I haven't had the time to
(]} bur 2 thoroughly review, and to determino whether that would be 3 useful to us, yes.
4 JUDGE ROSENTHAL: Well, now, what are we talking 5 about as you soo it specifically?
6 If you wore in my position and were sympathetic 7 to the argument that you are making on the other side of the i
, 8 Bench, what would you want to soo in terms of enlargement?
-i 1 9 MS. CURRAN: Well, we did -- the Joint
! 10 Intervonors did submit a schedulo, a proposed schedule for 11 litigation of this caso, and I would support that schedule.
12 For NECNP's intorest, we of courso do not have
() 13 all the same witnesses as the other parties, with their 14 various noods, but the minimum that wo would like to got is 4
15 a chance to comploto discovery, take depositions if 16 necessary, and also to allow some discovery, to find out 17 what the positions of the parties ato going to be, 18 capacially FEMA. Wo don't even know what PEMA's position is l 19 on tho issues now -- with a reasonable opportunity for that, 20 and then an opportunity to digoat the information before i
21 summary disposition motions are duo. ,
22 JUDGE EDLES: Ms. Curran -- and again I am doing 23 this for the purposo of exploring a wide rango of options i
24 horo becauso I havo not decided how I will voto in terms of 25 anything -- what about going forward on some issues in early
(])
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^; bur 1 June and putting off others?
2 I know Mr. Backus argued that that was not a 3 reasonable solution. Are there matters that you would feel 4 at least not terribly uncomfortable with going forward with 5 in June even if we were to grant some relief as to other 6 aspects?
7 MS. CURRAN: Given the schedule that we have got 8 now, given the fact that we have a brief covering all of the 9 Licensing Board's errors going back to 1982 that is due on 10 May 8th, given that we are not even expecting a Licensing 11 Board ruling on summary disposition until May lith, I don't 12 see how we can be ready for a hearing on any of these
{} 13 14 contentions in early June.
JUDGE EDLES: Okay, I understand that. But let 15 me, if I may, follow up just on one question.
16 What that means, though, is that you are forcing 17 a choice on me between either deferring everything or 18 allowing the Licensing Board's schedule to go into effect as 19 it is. I don't mind making that choice, but I want you to 20 have the opportunity at this point to say, well, I may lose 21 on that basis, and then I will be forced to go to hearing on 22 ovarything in June.
23 And I do want your views on whether there are 24 matters that can be pursued in June, even if wo were to hold
{} 25 certain things off.
r Ace FEDERAL RevonTens, INC.
202 347 3700 Nationwide Coverage 800 336-(M6
6930 08 09 140 I' bur 1 MS. CURRAN: Well, another way to look at this is G'
2 we are now in a number of different forums. We are before 3 the Onsite Licensing Board, we are before the Offsite 4 Licensing Board, we are before the Appeal Board, we are 5 before the Commission. We are involved in rulemaking 6 proceedings, and we may be in federal court very shortly.
7 To have one set of preparation for offsite 8 hearings going on while another set of hearings is going is 9 going' to add confusion.
10 JUDGE ROSENTHAL: Let me ask you along that line 11 this question:
12 Suppose you had a schedule here which had allowed
(~)
v 13 two months for discovery and two months for summary 14 disposition and then two months to prepare for trial and 15 then another month to prepare testimony and another month 16 before trial started.
17 Now, that on its face would have been, I suspect, 18 a schedule that would have been immune from successful 19 attack as a violation of due process, but nonetheless, could
. dP . -
20 you have gone in and claimed it was in violation of due 21 process because you also happened to be tied up in federal 22 court, before another Licensing Board, before the Appeal 23 Board in some other phase?
24 In other words, I don't understand'how in terms
() 25 of this schedule you can rely on the fact that extraneous to !
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j 6930 08 09 141 I 1 the matters before Judge Hoyt you have got all of these
( l; bur 2 obligations. I mean, that is just the nature of the beast,
- 3 isn't it?
4 I mean, I can understand you coming in and ,
5 saying, look, this is an unreasonable period of time. On 6 its face, it is unreasonable to give us X number of. days for-i 7 dis'covery and Y number of days for summary disposition 8 motions and Z' number of days for response to those motions.
9 That just is ridiculous.
- 10 I can understand that argument. That is 11 basically the claim that I think is being made by you, but I 12 just have difficulty when you import all of the things that
() 13 you have to do with respect to the Wolf Board.
14 Why did the.Hoyt Board have to take-that into ,
15 account when they made the schedule up? '
16 MS. CURRAN: Well, it is anJartificial 17 distinction to have two different boards. It is all the 18 same licensing case. It is all the.Seabrook' licensing case.
19 And we are entitled to a meaningful opportunity to make a-20 record on the Seabrook operating license. That includes
~
21 onsite issues and offsite issues, and it includes generic 22 proceedings in which the Commission is dealing with these 23 very issues. ,
24 JUDGE ROSENTHAL: Now, you did go back, if-I
() 25 understand you correctly. When the Wolf Board came down ACE FEDERAL REPORTERS, INC.
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1 with its decision, there was no reason why the Hoyt Board 2 should have predicted the precise date that decision was 3 going to come down at the time they came up with the
- 4 schedule.
5 MS. CURRAN: Of course not.
6 JUDGE ROSENTHAL: When this came down, then you 7 went back to the Hoyt Board and you asked for relief, is 8 that it?
9 MS. CURRAN: That is right.
10 JUDGE ROSENTHAL: And you were denied it?
11 MS. CURRAN: Absolutely.
12 JUDGE ROSENTHAL: All right.
MS. CURRAN:
(]) 13 Do I have a little time left?
14 JUDGE ROSENTHAL: You .have about two or three 15 minutes left.
16 JUDGE EDLES: I don't want.you to accuse us of 17 shortening your time.
18 (Laughter.)
19 JUDGE WILBER: Of the contentions you now have 20 that appear to rely on Revision Two that are still 21 surviving, I think there are two, is that correct?
22 MS. CURRAN: Revision.Two, I think there are --
23 yes, I think there are two, and there is a third that is 24 also subject to a summary disposition motion that relates to
() 25 an earlier revision, but there have been enough changes in
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(~' bur 1 the plan --
V 2 JUDGE WILBER: But all the discovery.on the other 3 ones that relied on the earlier revision of the emergency 4 plan, you are all done on that. You are talking only of 5 those two?
6 MS. CURRAN: Well, in terms of summary 7 disposition I am talking about the three. Actually, there 8 are four, one we didn't oppose, but there are three now that 9 have been contested, three major contentions filed by NECNP.
10 JUDGE WILBER: I see.
11 MS. CURRAN: I would just like for a moment to 12 address the issue of what we have to do now, and I think I
/~T 13 have already touched on that.
(_/
14 But there is very little time left in which to 15 prepare and file testimony, and I think it is just 16 unreasonable to expect that we are going to fully prepare 17 for an offsite hearing in the next month or so, given the 18 fact that we have this briefing schedule before the Onsite 19 Board.
20 JUDGE ROSENTHAL: Also, you don't even know at 21 this point, do you, definitely what you have to prepare for 22 trial on?
23 MS. CURRAN: Oh, no, we won't know that until May 24 11.
/'h 25 JUDGE ROSENTHAL: You won't know that until May V
ACE-FEDERAL REPORTERS, INC.
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6930 08 09 144 1 117 f)7 bur s.
2 MS. CURRAN: That is right.
3 JUDGE ROSENTHAL: And at that point you have got 4 10 days?
5 MS. CURRAN: Right. And if we are being expected 6 to prepare it now, I can tell you that I have not had a 7 moment to do it.
8 JUDGE EDLES: But even assuming that you had more 9 recesses, what you are really saying is prepare on 10 everything. It is like studying for a final exam.
11 MS. CURRAN: That is right.
12 JUDGE EDLES: Prepare on everything because you
(') 13 don't know what three questions the teacher is going to 14 give.
15 MS. CURRAN: That was also the Board's position 16 on discovery, by the way, that the Board -- and I think it 17 is in a scheduling order -- said, of course, we are not 18 going to rule on admissibility of contentions for a while, 19 but you all can do some informal discovery, or whatever.
20 Well, how do you know even what issues you are 21 going to do discovery on?
22 JUDGE ROSENTHAL: Your time has expired, Ms.
23 Curran.
24 MS. CURRAN: Thank you.
(} 25 JUDGE ROSENTHAL: All right, Mr. Bronstein.
ACE FEDERAL REPORTERS, INC.
202-347-3700 Nationwide Coverage 800-336-6646
6930 08 09 145 1 ORAL ARGUMENT BY MR. BRONETEIN ON BEHALF OF i
(]) bur 2 THE COMMONWEALTH OF MASSACHUSETTS 1
3 MR. BRONSTEIN: The Commonwealth is participating I
4 in this phase of the litigation on 11 different contentions, 5 which divide into three broad areas -- sheltering issues,
- 6 evacuation time estimate issues, and compensatory plans i
! 7 issues.
8 Before I talk specifically about the way in which 9 this schedule has impacted upon us, I wanted to highlight a 10 couple of the points that my colleagues have mentioned.
11 Judge Hoyt's deferral or outright denial of the 12 Applicants' motions for summary d,isposition may give the 13
(]) illusion of having given us some break from what was an 14 apparently unreasonable deadline and one which we would have 15 been absolutely -- it would have been impossible for us to 16 meet and for our experts to be able to meet.
17 Although she may have helped us in the short run, 18 albeit quite late in the game, we didn't get that denial 19 until two days before our answers were due. So we had 20 expended an enormous amount of effort and our experts had 1
21 expended an enormous amount of effort in preparing. In the 22 long run it didn't do us any good at all.
23 I think this Board is probably aware that our 24 position is that we don't gain anything by skipping an i
() 25 important step in the process just for the sake of being ACE FEDERAL REPORTERS, INC.
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6930 08 09 146 1 able to begin these hearings in June, particularly when that (J^1 bur 2 means that we are going to now have to prepare for trial on 3 all those issues despite the fact that the Board may 4 determine at the hearings that there is no legal basis to 5 proceed on those issues.
6 So in the long run we are really damaged by that 7 ruling.
l I
! 8 Another point that I want to really highlight is-9 this whole issue of the FEMA findings. We are being forced 10 now to deal with a schedule.where FEMA has not taken a stand 11 on these contentions, nor has the NRC Staff, and it relates 12 back to all the different phases of the litigation to date, 13
(]) and that is specifically the discovery process.
14 '
We can't do meaningful discovery, particularly on 15 FEMA, when FEMA doesn't have a position on these issues.
16 Certainly, for example, we might well be in the '
17 position of wanting to do some depositions, but it is 18 impossible for us to take depositions when there is no
]
19 position that has been taken by FEMA.
- 20 I want to address what I know is to be the 21 Board's prime concern here, and that is how has this 22 schedule impacted on us?
23 I think we have to go back to the starting date 24 of what the Board had ruled to be the discovery commencement
() 25 date of February 13, which in fact for the Commonwealth 4 ACE FEDERAL REPORTERS, INC.
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i 6930 08909 147 1 turned out to be February 23, leaving us of course a mere
(} bur .
2 about 10 days for discovery.
3 The consequence of that was we met that deadline, 4 we filed our interrogatories on the last day of the 5 deadline. We did everything we could to get together to do 6 that, and we did it. We filed a 40-page document, 140 I 7 interrogatories, and it may seem on the surface, well, why 1
4 8 would we have possibly needed more time? That seems to
(
9 cover about everything.
10 And I would invite the Board to examine that 11 document because I am not embarrassed to stand here and say 12 that that document was by no means a model of precision. We 13
(]) were forced because of that time deadline to throw in 14 everything, including the kitchen sink. We had no ability 15 to refine our discovery, knowing that we might have an 16 opportunity to do a second wave of discovery and, as a 17 result, what we got back was a complete jumble, and we are i 18 still now in the process of trying'to sort out that jumble.
19 We received an enormous number of documents,
- 20 11,000 slides, and it has placed on us an impossible burden 21 in trying to move from that to the next stage, to absorb the
- 22 results of that discovery, to analyze them, and to be able 23 to forward them to our experts and allow them to analyze 4
24 them.
() 25 Obviously, an orderly process would have called ACE FEDERAL REPORTERS, INC.
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6930 08 09 148 1 for there to be waves of discovery over a period of time,
[J~1 bur 2 where we could have first asked the Applicants to identify 3 certain documents, then followed up later with a request to 4 produce certain of those documents which we, after having 5 had them identified, might consider relevant. We had no 6 opportunity to do that.
7 We have also had no opportunity to do 8 depositions, and there are specific depositions that we 9 would take if we had the opportunity. Specifically, on the 10 sheltering issues we would depose the individuals 11 responsible for the Applicants' sheltering survey. We have 12 had no chance to do that, largely because the experts that
{} 13 we would need to consult with in order to prepare adequately 14 for such a deposition are completely tied up in trying to 15 meet this impossible May 21 deadline for their prefiled 16 testimony.
17 So not only on the sheltering issues, we would 18 take the deposition of Mr. Lieberman of KLD.
19 JUDGE EDLES: Let me ask you. Let me slide over 20 for a second.
I 21 Are there any areas you can cite me to I l
22 specifically in which there are still pending motions for l 23 summary disposition in which you would need additional l 24 discovery?
(} 25 MR. BRONSTEIN: Sheltering and ETE issues have l
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. ,r bur 1 been deferred. So of course as to those, no.
2 As to the compensatory plans, I am not certain 3 that wo would. I don't want to stand here and represent 4 that we necessarily would take depositions as to those. It i
5 is possible, but I can't say categorically yes or no on 6 that.
J
< 7 JUDGE EDLES: Any others? You said there were 8 three.
9 MR. BRONSTEIN: And also, as I mentioned earlier, 10 FEMA. If we had some FEMA findings, we would be talking i
11 about doing that. We would be talking about doing surveys 12 of emergency personnel, an area that we just don't have the
{} 13 time to be able to delve into.
14 Are busdrivers going to be actually available?
15 What are their plans? Are they going to stay in the event 16 of an emergency?
17 It is an area we would litigate, but we can't at 18 this point.
19 We would have participated in an area of 20 contentions that we deemed it impossible given the type 21 constraints of the schedule, and that is specifically the 22 adequacy of decontamination facilities. This is a 23 contention that we are not litigating, but would have had we 24 had a more reasonable opportunity under this schedule.
1 i
(} 25 And I think that the unreasonableness of the ACE FEDERAL REPORTERS, INC.
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1 schedule, really, if you had to boil it down to one 2 particular aspect, it is the discovery. The discovery 3 process was a complete shambles, and in fact we are still 4 awaiting and are now just receiving the answers to 5 interrogatories which the Licensing Board recently ordered 6 the Applicants to answer. This schedule, as it was laid 7 out, really provided no opportunity. It was really based on 8 the assumption that on March 6 every interrogatory was going 9 to be answered satisfactorily. Obviously, an unrealistic 10 assumption.
11 It had at no point built'into it an opportunity 12 to file motions to compel answers, which we did nonetheless
() 13 and which we got substantial relief on, but we are now just 14 getting that information and just getting that information 15 out to our experts.
16 JUDGE ROSENTHAL: Would you agree with Mr. Backus 17 and Ms. Curran that as a practica matter there is no way to
,- 18 bifurcate these contentions and e low the Licensing Board to 19 maintain the schedule on some and defer others?
20 MR. BRONSTEIN: That would certainly be my 21 inclination. I think as to sheltering and ETE issues, i
22 absolutely, we can't be prepared on that.
l l
23 JUDGE EDLES: I am sorry, I don't think that was l l
24 the question. )
i
()
25 JUDGE ROSENTHAL: My question was this: )
i l
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. 6930 08 09 151 1 I have had maybe just a little insight from what
(~)Nbur
- 2 goes on behind this curtain. I have had my technical j 3 adviser go through meticulously the contentions that are on 4 the table, and he has told me -- and I have got a good deal 5 of faith in his judgment -- that there were some of them as 6 to which he didn't see any particular need for much 7 discovery, if any,-and as to which he felt could move 8 forward without much, in the vernacular, fuss or feathers.
9 I will say -- which may comfort you and your 10 colleagues -- that as to others he had a great deal of 11 difficulty in finding acceptable the schedule for discovery 12 responses to summary dispositio, preparation for trial.
13
(]) Now, what he found -- whether one might agree or 14 disagree with his particular analysis of every contention --
) 15 what he found -- and I assume there is not much dispute 16 about this -- but the contentions come in all shapes and i 17 sizes from the standpoint of necessity for discovery,
! 18 necessity for elongated periods to respond to summary i
19 disposition motions or to prepare for trial.
20 MR. BRONSTEIN: I think that as to the 21 contentions on which the Commonwealth is participating, 22 which are primarily the sheltering issues and the evacuation 23 time estimate issues, I think there is no question that we 24 can't separate out some from the others and that none of
() 25 them are ready to proceed.
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6930 08 09 152 1 As to the compensatory issues, to be perfectly
{} bur i
2 candid, I am not prepared right now to say whether there 3 might be some possibility of proceeding on those. I haven't.
4 actually --
5 JUDGE EDLES: Now, particularly if we were to-6 announce at an early stage that we were staying the hearings 7 in certain areas, then you could then devote your entire i . .
, 8 pretrial period to the'ones that were going forward.
9 Presumably that would at least focus the issues, although we 10 don't even know what summary disposition resolution the 11 Board is likely working on there.
.f 12 MR. BRONSTEIN: That is right, and of course such i
13 a structure in my view could only work if the hearings on
(]}
1 14 those other issues were being so set back that we would have !
i 15 that time to concentrate exclusively on those few issues
} 16 that might go forward. !
1 17 I think that would have to be taken into account s
[ 18 if the Board were to entertain such a schedule. Of course, I
! 19 I think another consideration is one of judicial economy 1
i 20 from the perspective both of the Board and of the litigants, 1 '
21 whether it really makes sense to be narrowing issues, doing 22 it in such'a piecemeal fashion and tying up time in that J
l 1 23 way. i
}
j 24 I don't have a fixed view on that at this point.
1 I
{) 25 JUDGE ROSENTHAL: Do you have the same resource
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6930 08 09 153 1 problem in the Office of the Attorney General and whatever
{} bur 2 other technical support the Commonwealth provides you with 3 that the other parties --
4 MR. BRONSTEIN: Same resource problem. I know l
, 5 everyone looks to the Commonwealth, and the Applicants are 6 always saying, well, this can't possibly be a problem, it is 7 the Commonwealth.
8 well, of course, I think any office has a problem 9 with resources, and we have at the moment three attorneys 10 working on this litigation, and we do quite recently have a 11 third attorney that has been added to the litigation in 12 order to try to keep up with these demands. But in all
/~T 13 honesty, in terms of the New Hampshire litigation, because,
'%)
14 as all the other participants have pointed out, of the 15 numerous things going on in this litigation only two of the 16 three attorneys are really concentrating on a regular 17 involved basis with the New Hampshire plants.
19 JUDGE ROSENTHAL: Did I read somewhere that Mr.
19 Shannon had asked the Massachusetts Legislature to 20 appropriate monies to a big Seabrook unit? Am I wrong in my 21 recollection that I read that?
22 MR. BRONSTEIN: I suspect you have read that, and 23 whether in fact that will come to bear is something I 24 guess -- l
{} 25 JUDGE ROSENTHAL: It has not come to bear yet?
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{]} bur 2 is certainly within the realm of speculation at this point.
3 I certainly can't say that is necessarily going to occur. ;
i 4 It has not occurred.
5 To the extent that there has been a major i
3 6 increase in resources in this litigation, in all honesty it i
7 has been in the form of experts, and in particular, for 8 example, we were forced by necessity to expend a great deal
)
J 9 of money on experts to oppose the emergency planning zone j 10 reduction request, and it is something that we have sort of
'. 11 glossed over here, but that was the burden that we were put a
j 12 under to meet a January 27 deadline of basically one month, 4
() 13 and I think it tied up everyone in this litigation for that i
14 period of time.
15 In terms of the schedule beyond where we go from t
) 16 now, I think, you know, the May 21 deadline, our experts
- 17 have told us that they absolutely -- Dr. Luloff and Dr.
i l 18 Adler -- that anything before -- prefiled testimony before
] 19 mid-August to September 1 is unrealistic. One told us mid-1 20 August, the other September 1.
21 JUDGE WILBER: Isn't that quite a change from Dr.
I 22 Adler's affidavit?
1 i 23 MR. BRONSTEIN: Dr. Adler's affidavit was based i
! 24 on certain assumptions as to when he was going to get the
() 25 required computer model, and because of dif ficulties
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6930 08 09 155 1 obtaining that model from FEMA and ultimately from KLD, he
_(]) bur 2 got set back one month.
3 So I think that is consistent with his affidavit, 4
4 but his affidavit -- some of the assumptions have not proven
- 5 to be accurate, and he states those assumptions clearly in 6 that affidavit, so that that is still his position. He says i 7 he could at this point complete his work to prefile l
! 8 testimony by mid-August.
9 Now, bear in mind that the position that our
! 10 experts are taking on these issues is based on discovery i l 11 having been complete. Now, we may find ourselves -- and I i 12 think the Board needs to take this into account because the
]
discovery process has been so foreshortened -- it is
(]) 13 t 14 conceivable that even that kind of timeframe may not prove l 15 to be realistic.
) 16 I think we have to reexamine the schedule --
i 17 JUDGE ROSENTHAL: Unrealistic in what sense?
s 3
18 What you feel is the latitude that a Licensing Board or any i
j 19 trial tribunal has in saying to the parties, lookit, folks, i
l 20 there's good and sufficient reason to move this case forward 21 and we expect the counsel to go that additional mile?
22 I mean, I am sure that anyone who has been t
23 confronted with litigation has found from time to time tough i i
24 trial judges that give very limited periods for this, that, l
() 25 or the other thing, and when the counsel say, gee, you know, ACE. FEDERAL REPORTERS, INC.
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6930 08 09 156 1 our guy would like another month, that is just too bad.
{} bur 2 Now, not every judge that requires the litigants 3 to keep their noses to that grindstone and go that extra 4 mile are guilty of violations of due process. There is a 5 good deal of discretion in judgment.
6 What I think I am tending to hear is, you know, 7 gee, this is what our people would like and this is what 8 they say that they are going to need, but it isn't that 9 clear to me that this is more than, you know, at our 10 convenience we would like this period.
11 MR. BRONSTEIN: Well, one thing I think I have to 12 make absolutely clear is that when I talk about what our 13 experts need I am talking about an absolute bare minimum.
(])
14 Now, that is not to say that if thic Board were to affirm 15 the scheduling order we will not file any testimony on May 16 21. Obviously, we have met each of these deadlines.
17 But the quality of our case will be so 18 drastically compromised that I think it can be said 19 indisputably that there will be a denial of due process and 20 that this issue will eventually find its way back up to the 21 Appeal Board.
22 JUDGE ROSENTHAL: Even with these people really 23 exerting themselves?
24 MR. BRONSTEIN: That is right, and I want to say,
() 25 also, that we proposed a schedule which we tried to propose ACE FEDERAL REPORTERS, INC.
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6930 08 09 157 T7 bur 1 as a realistic schedule. Of course, we know that if we had V
2 our druthers we would have as much time as we possibly could 3 to examine every single possible aspect of these plans.
4 If we had unlimited resources, we would hire 5 countless experts to examine them. We don't expect the 6 opportunity to do that. Obviously, due process doesn't 7 require that.
8 But the schedule that we have proposed is one 9 that is very consistent with the schedule we are proposing i
10 today, and the schedule that we proposed back in November 11 provided for hearings to cor.mence in mid-September, and I 12 think that that kind of timeframe is a realistic one. It is
{} 13 14 not one that is asking for the sky.
bottom line kind of schedule that we thought was a It is a realistic 15 reasonable one to propose to the Board, and I think that 16 that would conclude my comments.
17 JUDGE WILBER: What was your sheltering expert's 18 time estimate?
19 MR. BRONSTEIN: The sheltering expert -- well, 20 sheltering is in a slightly different posture.
21 In the sheltering situation, Secause of what we 22 have learned through the discovery process, we still have 23 substantial work to do in terms of deposing sheltering 24 survey people and doing follow-up discovery in that area.
25 I think that a similar timeframe is realistic.
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6930 08 09 158 1 Our experts, if pressed on the sheltering issues, could be
(} bur 2 ready by a somewhat earlier time, but that is based on the 3 information that they have before them today.
4 Since we haven't had an opportunity for full 5 discovery, assuming we get such an opportunity, they are j
6 going to obviously need additional time to respond to the 7 results of that discovery.
8 JUDGE WILBER: And what is that somewhat earlier 9 time?
10 MR. BRONSTEIN: It would be difficult for me to 11 say. I mean, as I say, I think we are entitled to do more 12 in the way of discovery than we have had an opportunity to 13 do, and if we were given that opportunity, I think a
(])
14 September date would be realistic for the sheltering issues 15 as well.
i 16 If we are given no additional time for any 17 additional discovery on this issue, realistically, we could 18 probably have our own sheltering -- I am not speaking for 19 any of the other parties because we are only litigating 20 other people's contentions -- and assuming that we 21 immediately got something from FEMA, we might be able to do ;
22 that at some point this summer, but I think that the lack of 23 FEMA findings is a critical issue here and one that we i l
24 really can't -- l I
() 25 JUDGE ROSENTHAL: You don't have any idea when j 1
l i
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6930 08 09 159 bur 1 you are getting anything out of. FEMA?
2 MR. BRONSTEIN: We have gotten nothing'in the way 3 of substantive responses from FEMA, and the NRC Staff has i
4 made it clear that the Staff hasn't yet taken a position on j 5 any of these contentions.
- 6 It places us in an impossible burden. Those are i 7 the rebuttable presumptions that everything has to be judged j
i 8 against, and we are asked to litigate in that area on any of i 9 these issues without knowing what FEMA's position is.
l 1
] 10 JUDGE WILBER: Okay, thank you.
- 11 12 1
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6930 10 01 160 7-sMPBeb 1 JUDGE ROSENTHAL: Mr. McEachern.
U ORAL ARGUMENT ON BEHALF OF INTERVENOR, 2
3 THE TOWN OF HAMPTON 4 By Paul McEachern, Esq.
5 Mr. Chairman, members of the Board, thank you 6 again for the opportunity to address you. My name is Paul 7 McEachern of Portsmouth, New Hampshire, representing the 8 Town of Hampton, New Hampshire, which is the only political 9 subdivision of New Hampshire including the state represented 10 in this procooding today.
11 I would, before I begin my remarks, try to answer 12 the suggestion to further mutate the process by bifurcating i
13 those contentions that can be easily separated out by lack 14 of nood of lengthy discovery. At first it looks like it is 15 helping us, but it isn't. It is sort of like the way 16 summary judgment was handled. It looks like it is a help, 17 but it is further putting off.
I 18 This process that we are here about today is 19 approaching a moltdown itself, and we are asked-- Already 20 the Massachusetts offsito evacuation is separated from New 21 Hampshire, so we have separated it into two. And now we are 22 invited to separato it into three. And speaking for my own i
i 23 offico, I have one associate who, God bloss him, is great 24 but he can't do it.
{} 25 And I think that is a valid consideration, i /\CE. FEDERAL REPORTERS, INC.
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> sMPBeb 1 especially now, the fact that the Commission itself is U 2 suggesting that the economic investmont of the company is a 2
)
3 consideration in the rule change.
4 I think the issue here today is correctly stated 5 by the Chairman, the fairness of the proceeding. And we all 6 bring to the room our own concept of fairness, and I think 1
7 indood as a society we almost have a unique adherence to j 8 fairness, and it is the cornerstone of overything we do.
f 9 And now we are faced with a situation that none j 10 of us has really created. Soabrook was sited in a populated i 11 area with a transient beach population that fluctuates -
l 12 graatly. The applicant _has submitted ostimatos of i
j 13 population for Hampton and Hampton Beach beginning at
! 14 60,000, going to 110,000, and now back down to 36,000. It 15 is sort of an examplo of the moving target that we have had
}
16 as we have tried to preparo.
l
. 17 And now we have to decide if we can safely j 18 ovacuato this area. It is sort of like my town, the Town of i
j 19 Hampton, by giving someone a building permit to build a ,
t 20 house and then telling them after they get it built they 21 will decido whether it is properly zoned. Obviously that I l doesn't make sense.
q 22 23 And neither does maybe the whole process mako 1
l 24 senso. The process is, at the very least, dyslectic. But
~
25 is it fair? That's what wo are here to talk about.
l 1
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6930 10 03 162 MPBob 1 Wo know that if Seabrook is going to got a 2 license it's going to require a chango in tne regulations to 3 overrido local police powers and to invoko what I call the 4 law-of-the-jungle rule, the premise that overybody in an 5 omorgency will run for it. That coupled with the premiso 6 that there is never going to be an omorgency makes all of us 7 reasonablo people afraid to go through this process in a 8 good conscience because if anyone thought for a moment that 9 there would be a requirement of evacuation in the area, wo 10 couldn't do it. I mean morally, none of us, the applicant, 11 none of us.
12 So that there is a basic premise that is being 13 made that the Seabrook evacuation is never going to-- I r]
v 14 will got specific.
15 JUDGE EDLES: I was waiting for you to got to 16 this caso.
17 MR. MC EACHERN: I'll got specific, but you know, 18 we don't have a chance to address you very often, and I 19 think it is important that you--
20 JUDGE ROSENTilAL: Mr. Dignan might disagroo with 21 that. Ile addressos us at regular intervals.
22 MR. MC EACilERN: And you know it is important wo 23 give you paper and you know what wo say, and all argument is 24 for your benefit. And I think you ought to know not only g'3 25 how we fool but the depth of our fooling because I think I V
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V 2 And so in the last semester of Seabrook there is ,
~ t 3 a compression of process, and we have heard about that here 4 today. We don't really know why, and the applicant is 5 probably going to be asked that question.
6 I submit one specific piece of evidence for your 7 consideration:
8 PSNH is currently before the Public Utilities 9 Commission in New Hampshire with a request to borrow $545 t 10 million this year, and they've got another borrowing that 11 going out that doesn't require Commission approval of $150 l 12 million. They owo 1.3 billion, and this is a small 13 company and their S-1 to the SEC is replete with
(]}
14 bankruptcy.
15 The issue here is whether Seabrook gets licensed 16 or PSNH goes bankrupt.
17 JUDGE ROSENTHAL: Well, that may be the issue in 18 Now Hampshire. The issue before us today is whether this 19 schedulo does or does not comport with procedural duo 23 process. <
21 MR. MC EACHERN: Yes, indood, that is the issue. !
22 And we were told what contentions were going to be allowed, 23 February 18th, February 23rd, and then I think that's the 24 point we began to prepare on those contentions.
25 Frankly, wo don't have the resources to hire
} .
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MPBeb 1 experts. We have been lucky, we could piggyback on 2 Massachusetts. But we didn't know what we had to prepare on
- 3 until February. And there is no way, no way that Mr. Adler i
4 or Mr. Luloff can prepare their testimony on this schedule.
i i 5 They need the summer to look at the peak population. This i
j 6 population only exists in the summer.
7 JUDGE ROSENTHAL: Why do they need the summer?
8 MR. MC EACHERN: That's when--
l 9 JUDGE ROSENTHAL: But I would think that there 10 are some pretty reliable estimates around as to what the i
l 11 population of Seabrook and Hampton Beaches are on a l 12 particular Saturday or Sunday afternoon. Now you may not 1
13 got down to whether it is 75,102 or 74,111, but my goodness, 14 year in, year out, there have boon those crowds on the
]
15 beach.
t
! 16 I thought back at the construction permit 1
1 1 17 procooding era that I unfortunately was associated with 1
{ 18 that we woro getting some reasonablo decont estimates as to i
i 19 what turned up on those beaches on a hot summer afternoon.
! 20 Why does he nood to go into that?
i 21 MR. MC EACHERN: Woll, he now tolls us that it's i
{ 22 36,000. We have had an ostimato from a Chamber of Commerce i
23 source that says it is a quarter of a million. I mean there 1
j 24 is a wide variety.
j 25 JUDGE ROSENTHAL: You're tolling me that at this I i
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6930 10 06 165 1 MPBob 1 point there is no way of getting a sufficiently preciso 2 estimate for this proceeding without waiting until August 3 and going out and having a head count?
4 MR. MC EACHERN: July 4th.
5 JUDGE ROSENTHAL: Or July.
6 JUDGE EDLES: Why wasn't that done last July 4th?
7 Everybody knew we were going to ultimately litigate this 8 question. Why wasn't that done last July 4th?
9 MR. MC EACHERN: Well, we didn't know what 10 contentions would be admitted.
11 JUDGE EDLES: You had no reason to believe that 12 the issue of how many people are going to be on the beach on
,r - 13 July 4th was going to be a matter for litigation?
%-)
14 MR. MC EACHERN: You have to be there before the 15 Licensing Board to know. I can tell you that it has been 16 unfair-- It has not boon unfair, it has been a joko. When 17 I have to explain it to a young associato, the fairness of 18 this proceeding of our government, I can't do it. I can't 19 do it.
20 JUDGE ROSENTHAL: Mr. McEachern, I'm not here at 21 the moment to debate all of that.
i 22 MR. MC EACHERN: Okay. I 23 JUDGE EDLES: I'm just asking you a simple l l
l 24 question. I'm asking why it was not feasible for counsel to l
g-) 25 anticipato that during the course of the offsito procoading
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j *~sMPBeb 1 the number of people believed to be on the beach near k/
2 Seabrook on a July 4th was going to come up, and if you i 3 needed your own independent assessment of that, why didn't 4 you do that last July 4th?
5 MR. MC EACHERN: We didn't have the resources 6 then. We don't have the resources now.
7 JUDGE EDLES: So it is not going to help you by a
8 waiting until next July 4th.
4 9 MR. MC EACHERN: In the interim we've gotten'the 10 Commonwealth of Massachusetts to step in. We get.no support 11 from the State of New Hampshire, none. And we're the people 12 at risk. And all I ask is that you contribute to the i
13 fairness of this procedure, make your contribution.
[
14 Ultimately I am convinced that the case is going to be 15 decided fairly because I have confidence in judicial
- 16 review.
I 17 I think it is important that this issue be raised 18 so that it can be decided at this stage in the proceeding j 19 both to correct the error and to preserve the record, so 20 that if you make your contributions you will allow us to put l l
21 out a better work product and to take more pride in what we l
22 do, rather than to look on this process cynically as I do j i
23 now, knowing that I have never soon anything like it in my l l
24 life. And I never will again, I'm sure. And it is just '
25 bad.
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6930 10 08 167 T~xMPBeb 1 JUDGE ROSENTHAL: Now wait a minute. I don't NA 2 think that you need to spend much time on the proposition 3 that we have a responsibility to ensure a fair process. The 4 question before us is what constitutes a fair process.
5 Now you folks are telling us that this schedule 6 was unfair. Your adversaries tell us tha this schedule was 7 fair. And we have to make a judgment, but the judgment that 8 we're going to make you can rest assured is not going to be 9 whether it is appropriate to tolerate an unfair schedule.
10 Our judgment is going to be on whether this is in fact an 11 unfair schedule and if we agree with you on it, you can rest 12 assured there is going to be relief.
(~' 13 MR. MC EACHERN: I submit to you that having our V) 14 contentions admitted in February and having only until May 15 21st to file prepared testimony is unfair as a matter of 16 law in something as important as this. My God, this is a 17 case that is going to decide how we accommodate nuclear 18 power in this country. And it may be that you have decided 19 hundreds of them, but this country has not focused on this 20 issue until recently, and it is important.
21 JUDGE ROSENTHAL: There are a few other cases.
22 around I think that are also presenting that question. I 23 don't think that Seabrook has a monopoly on it.
24 MR. MC EACHERN: I agree. And thank you for your 25 courtesies and attention.
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6930-10o09 168' MPBeb 1 JUDGE ROSENTHAL: All right.
2 We will take a ten-minute recess and resume at 3 3:25.
4 - MR. BRONSTEIN: Mr. Chairman, before you do that,-
- 5 can I respond to just that beach population and our' failure I
6 to examine that issue last summer? ;
1 7 'I think the important thing.the Board should be 8 aware of is that that issue as one to be seriously litigated 9 did not really surface until Rev. Two in-September, which j 10 included aLdrastically reduced estimate of the beach j
4 11 population, so it would have been impossible for us to have 4 12 anticipated that there would really be an issue about that A
13 until Revision Two came out.
i 14 JUDGE ROSENTHAL: Well, perhaps, Mr. Bronstein.
i 15 All I can say is that from the very first contact that.I had I 16 with this case, and that goes-back many-a year to the. .
i j 17 construction permit proceeding, one of the thi,ngs that1I had i
] 18 assumed from the very beginning would be at the foreground 1
i 19 of any consideration of emergency planning was how'many
- 20 people are going to be on that beach on a hot July or August t
21 -day who, in the event of a nuclear emergency, would have to 22 be either sheltered or evacuated.
l 23 I can't understand why it is right now people are I 24 talking about Goodness, we are going to have to go down in 25 the summer and find out how many people are there.
4 O
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^sMPBeb 1 MR. BRONSTEIN: There is no question about that, i
[%.]
2 but we were relying on tS;$ applicants' earlier estimates 3 which were much higher. They drastically reduced them in 4 September.
9 JUDGE ROSENTHAL: Very well.
6 MR. BACKUS:- Mr. Chairman, I just want to say I 7 do have that affidavit I referred to. I would like to 8 submit copies. ,
9 JUDGE ROSENTHAL: Well, I don't know. The Board 10 will determine whether we are prepared to receive it, 11 Mr. Backus. I guess you weren't here when I discussed uith 12 Ms. Curran this morning her lith hour motion which we 13 summarily denied, the motion to receive that supplemental 14 brief. We are not very happy about these things that come 15 in at the 11th hour. We think it is rather unfair to the 16 other parties.
17 MR. BACKUS: Well, I was just going to say all
, 18 this addresses is your request for specifics on one witness' 19 need for time, and it goes directly to what Member Edles was 20 talking about, the need for time to estimate beach 21 population.
22 JUDGE ROSENTHAL: We will consider during the 23 recess whether.we will accept it.
24 MR. BRONSTEIN: Mr. Chairman, I've been asked by 25 Mr. Dignan to make a correction. It is not the applicants
{
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i' 6930 10 11 -170 yPBeb 1 who drastically reduced the beach population. It was the-2 State of New Hampshire.
3 JUDGE ROSENTHAL:~ All right. Thank you.
4 We will resume in ten minutes.
5 -(Recess.)
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6930 11 01 171 pPBmpb 1 JUDGE ROSENTHAL: Ali right. Mr. Dignan.
2 ORAL ARGUMENT ON BEHALP OF THE APPLICANT 3 by Thomas G. Dignan, Jr.
4 Mr. Chairman, members of the Board, I am taking 5 the. Chair at his word: It is practicalities we are here to 6 discuss this afternoon as opposed to abstract principles.
7 JUDGE EDLES: And I would like you to start, 8 Mr. Dignan, with the practicality of why must this schedule 9 go forward on such a -- what appears to me to be a very, 10 very fast track; perhaps unduly fast.
11 MR. DIGNAN: I believe the Chairman put the 12 question to me before lunch: What is the deadly rush? And 13 I spent the lunch hour getting ready.
}
14 First of all, I would like to go through what is 15 the present schedule. The present schedule is that the 16 hearings, that the end -- the last hearing date scheduled 17 will end the end of July.
18 Now what this means is that proposed findings, 19 since the third week of hearings is scheduled for July, that 20 means that the proposed findings would come in in late 21 September. It means a decision -- when? -- November or 1 22 December.
23 JUDGE EDLES: If it's the same schedule the 24 Licensing Board used on the onsite, it could be three years 1
25 away for a decision.
[}
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6930 11 02 172 7 NMPBmpb 1 MR. DIGNAN: It could be.
U 2 And then if the hearings go beyond the three 3 weeks that are now scheduled, we're talking about a decision 4 some time in 1988.
5 Now the premise of any question of what is the 6 deadly rush has to be, 'this isn't on the critical path, 7 Mr. Dignan, because you've got a problem south of the 8 border.' I agree.
9 What if in June or July the Commission changes 10 the rule, changes it in such a fashion that I can deal with 11 Massachusetts on a summary disposition basis? What if this 12 petition that we've got granted that has been rejected once 13 is shored up and becomes viable? What if the governor of 14 the Commonwealth changes his mind, which I don't say is 15 beyond the total realm of possibility.
16 Now then at that point --
17 JUDGE ECLES: Excuse me.
18 MR. DIGNAN: -- this is the critical path.
19 JUDGE EDLES: If the governor of Massachusetts L
20 changes his mind and withdraws it, then he's got to talk the 21 other people, you know, out of their position. But then 22 there's no ..itigation on the issue of the Massachusetts 23 plan.
24 MR. DIGNAN: No, I'm sure there would be 25 litigation on the issue of the Massachusetts plan. I'm sure ACE-FEDERAL REPORTERS, INC.
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}'wMPBmpb 1 that the opposition to Seabrock will litigate everything
(_)
2 they can litigate until --
3 JUDGE EDLES: Who is Massachusetts -- Who in the 4 case would litigate Massachusetts other than the 5 Commonwealth?
6 MR. DIGNAN: Well, to start with, keep in mind 7 that the Commonwealth of Massachusetts has as a separate 8 constitutional officer the attorney general. During part of 9 the Seabrook proceedings, your Honor, Governor King, a 10 supporter of Seabrook, sat in the governor's chair.
I 11 Throughout that two years Attorney General Bilotti opposed 12 Seabrook.
, 13 The attorney general's office is an independent 14 constitutional officer in Massachusetts. There has been no 15 flagging of the determination on Seabrook.
16 JUDGE ROSENTHAL: Mr. Dignan, I had a colleague 17 at one time named Richard Salzman. We used to talk about, 18 well, supposing that the' horse flies; and we can suppose 19 anything.
20 But I think we deal with reasonable 21 probabilities. And I would put it to you that the 22 reasonable probability at this time is that, even assuming 23 that the Commission adopts the highly controversial proposed 24 rule, even assuming that that rule is not successfully 25 attacked in the courts of these United States, you're going ACE. FEDERAL REPORTERS, INC.
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6930 11 04 174 pPBmpb 1 to be confronted at minimum with a realism hearing of the 2 like that the Shoreham facility is now confronted with; and 3 that in a real world the chances of your getting a full 4 power license in the relatively near future are 5 extraordinarily dim. I can't rule them out entirely. I 1
6 mean your suppositions-might be right.
7 What frankly bothers me -- and I'm going to be 8 very up front about it because, again, I want you to know I
9 where at this point I'm coming from -- I see a proceeding 10 that has gone on for years -- omergency plans promised and 11 filed, and then their revisions and all of that -- and it 12 has gone on.
- 13 And all of a sudden the Licensing Board comes
[}
3 14 down with a schedule which, on its face, is -- I tried that i
15 schedule out on a number of people that do a lot more ' trial 16 work than I do -- is extraordinarily tight, tight to the 17 point, in the view of a number of people I consulted,. as
! 18 being unreasonably tight. And I say to myself why all of a 19 sudden are these people put to the task of jumping through 20 this kind of hoop, particularly when, number one, the 21 Licensing Board doesn't meet its own-schedules. It was late i 22 on ruling on contentions. The Licensing Board has ruled out l 23 several contentions; has not assigned yet the reasons for
, 24 doing so.
l 25 If I cead these rules correctly, when the
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2 practice these people are entitled to five days to file 3 objections. And I'm not prepared to assume that their 4 objections will be frivolous.
5 In other words, this' thing has dragged on for 6 years. Even today the Licensing Board is tight with the 7 parties but not with itself. And they're all supposed to 8 jump through a hoop.
9 And I'm just telling you that I've got to be 10 persuaded by you that this is fair; and part of the 11 fairness, but not all of it, is that there is a critical 12 necessity for this hearing to start on June 1st, apart from 13 the fact that that Licensing Board has lined up a federal 14 courtroom in Concorde.
15 MR. DIGNAN: I am --
16 JUDGE ROSENTHAL: Now that's my problem. I'm up 17 front about it. I don't speak necessarily for my 18 colleagues. But this is where for the moment I come from.
19 Now you can persuade me that this is the height 20 of reasonableness even against that background. But at the
, 21 moment I am unpersuaded.
22 MR. DIGNAN: Well, your Honor, to complete the 23 answer to why the deadly rush question which I had not 24 completed, is this:
25 I'm going to be candid with your Honor. Your
}
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} yMPBmpb 1 Honor's assessment that it is unlikely that one of my three U
2 happenings will take place is probably true. I can't argue 3 that with you; I'll be perfectly candid. But it may 4 happen.
5 And the one thing I learned in 15 years before 6 this Agency -- which I happen to think is fair even though 7 you hear it yelled about a lot -- is that if you sit down 8 and start handing out extensions of schedules the one thing 9 that is sure is tnat things will be delayed further and 10 further.
11 My experience in 15 years is that every time I 12 get up towards a hearing room somebody's got a motion out 13 there that says 'We're not ready to go to hearing.' And the 14 one thing I think is we've got some things to try -- and I 15 plan to get into the f airness of the particulars .-- and I 16 want them tried.
17 JUDGE EDLES: Mr. Dignan --
18 MR. DIGNAN: And that's what the rush is. The 19 rush is that it's possible it will come off the critical 20 path.
21 And what I don't want to see happen to Seabrook 22 is to have this move become the critical path. And I've sat 23 here and gono along with the schedule change or with a lot 24 of schedule changes. That plant, which everybody likes to 6
25 forget conveniently who's opposing it, is sitting up there
{^)
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[']MPBmpb 1 with an incredibly good SALP record, with a ready-to-run V
2 situation, with no quality assurance problems, which makes 3 it quite -- not unique, but certainly different than some 4 others. And it's being held up by the process.
5 Now I'm not saying that the process isn't legal, 6 it isn't fair or anything like that. And I think we've got 7 to drive this thing on to hearing and get it done.
8 JUDGE ROSENTilAL: Wait a minute. Now when you 9 say it's being held up by the process, now whose fault is it 10 that there wasn't a New Hampshire plan on the table to be 11 litigated a year or two years ago?
l 12 MR. DIGNAN: There was one on the table.
{} 13 JUDGE ROSENTHAL: And why wasn't it litigated?
14 MR. DIGNAN: I'll tell you exactly why it wasn't 15 litigated. It was put in -- Keep in mind, Version One was 16 up and ready for litigation. FEMA filed and said there's 17 going to be Revision Two, and it was put off for Revision 18 Two to come out.
19 JUDGE ROSENTHAL: What was --
20 MR. DIGNAN: Which made sense. The p'l ant was not 21 finished at that time.
22 JUDGE ROSENTHAL: But is it the Intervenors' 23 fault?
24 MR. DIGNAN: No, your lionor, a
{} 25 Your lionor, I'm not going to sit here and assign ACE FEDERAL REPORTERS, INC.
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2 JUDGE ROSENTHAL: No, I understand that.
3 MR. DIGNAN: I'm trying to answer one question:
4 Why the deadly rush. And I guess.my quarrel with you,.
5 Mr. Chairman, is the word ' deadly.' Is there a rush? .Yos, 6 there is a rush, because I know one thing, having been down 7 this pike too many times already, and that is: Any time you 8 start acquiescing and letting off schedules, the next thing 9 you know, you eventually wind up with the plant ready to run 10 and not allowed.
11 JUDGE EDLES: Mr. Dignan, let me ask you this:
12 Under your proposal, if this hearing would go off 13 in June as it is scheduled, you say proposed findings would 14 come in to the Licensing Board -- when? -- at the tail end 15 of September?
16 MR. DIGNAN: Well, what I did was just run it off s.
17 -- and I hope I remembered the rule correctly -- I ran it 18 off in my mind if you assume an end in July, the third week 19 in July, I believe the 30-40-50 rule will bring you out to 20 late September for the proposed findings.
21 JUDGE EDLES: That's the final round. That's the 22 rebuttal findings.
23 MR. DIGNAN: Right, which puts it in the hands of 24 the Board for decision, say, October 1st. And I'm saying 25 when do you see your decision? November or December.
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, 6930 11 09 179 MPBmpb 1 JUDGE EDLES: Now is it accurate -- we discussed 2 earlier, with Mr. Backus, I believe, the prospective i
J 3 commercial operation according to the K-1 form would have
} 4 been July '88.
i 5 MR. DIGNAN: No. The 10K form, the planning 4 6 form, is commercial operation July 1st, '88 is what has been j .7 stated in the 10K.
a i.
8 And I have no apologies to make. A 10K, as all i 9 of you know, is written very conservatively. Any lawyer who 10 writes is other than conservatively is insane and he is 11 liable to go to jail if he does it too many times.
! 12 JUDGE ROSENTHAL: The last annual statement of d
13 Public Service of New Hampshire said that for planning l
14 purposes, financial planning purposes, January 1988. And l 15 then it added immediately that it thought that that estimate I
16 would not be met.
4 l
17 MR. DIGNAN: Ya s , s ir .
18 JUDGE ROSENTHAL: And that I guess was also the i
19 SEC conservatism.
i 20 MR. DIGNAN: And, I don't mind saying it, the i
j 21 conservative corporate brethren of my law firm. And I'm 22 glad they are that way. But that I don't think should drive 23 your thinking down here.
i 24 JUDGE ROSENTHAL: All right.
i I
/ 25 Well, then, you say that there are these ace-FEDERAL REPORTERS, INC.
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1 possibilities that you are worried about, slippage' producing
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\- PBmpb 2 more slippage. But let's then look at it from the t
j 3 standpoint of the Intervenors are telling us now that this i
4 schedule, which goes from February 23rd, the date that they 5 apparently got it in hand -- late, as it were -- the rulings >
6 on contentions, to July 1st. That is a very compressed 7 schedule. And you're saying, okay, but there is a need for j 8 that in terms of your client.
i j 9 And again I come back and say the only time that 10 there seems to be any big push on the part of that Licensing 11 Board is when it decides that it's going to run, for-i 12 whatever reasons, a very rapid. schedule. And it doesn' t 13 apply it to itself. And I don't care whose fault it is.
[}
j 14 The fact of the matter is you had a New Hampshire 15 plan. You had Revision One, you had Revision Two. And all l
16 of a sudden now the Revision-Two is in. These Intervenors 1
i 17 all have to jump up and salute a schedule that is 18 extraordinarily tight.
19 MR. DIGNAN: And a schedule that had been 20 applied, essentially the same schedule, to Revision One. ,
l 21 Keep in mind the other hearings that were i
) 22 scheduled for a year ago July. We're running off that same 1
i 23 schedule, that same time frame, I believe you will find if d a j 24 you check the two.
, 25 JUDGE ROSENTHAL: You think it is reasonable when 1 '
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? sMPBmpb 1 you've got this kind of an issue or issues involved? Do you U 2 think it is reasonable to provido a period from February 3 23rd to March 6th for discovery?
4 MR. DIGNAN: Yes, I do. And I would like to 5 address that.
6 JUDGE ROSENTHAL: Okay.
7 MR. DIGNAN: The complaint that I have heard is 8 two: One is a lack of follow-up time on discovery. And 9 that was the major one.
10 Now first of all, whero does it say in the law 1
i 11 that there has to be a round of follow-up discovery? Tho 12 fact of the matter is -- and you said practicalities,
]
13 Mr. Chairman, and that's what I'm going to talk as a trial
)
14 lawyo r .
15 The fact of the matter is discovery is not that 16 important in an NRC procooding, despite the fact we kill a 17 lot of billable hours doing it. You got the testimony in 1
18 advance. You know what the guy's going to say. He is wedded to it a minimum of ton days before ho gots on the 19 20 witness stand and you can cross-examino him. You have got 21 the whole application of the applicant, or, in this caso, 22 you havo got the whole plan to shoot at well in advance.
23 What is the great screaming nood for a lot of i 24 discovery?
25 JUDGE ROSENTilAL: I thought you got the discovery O
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l 3 MR. DIGNAN: You know, I'm saying --
4 JUDGE ROSENTHAL: -- those people are not simply 5 going to cross-oxaminor they are going to have witnessos of 6 their own, aron't they?
7 MR. DIGNAN: Sure, supposedly they aro. But your 8 direct'caso prosumably you got ready without any knowledge 9 of what my direct caso is going to be because your direct 10 caso is your contention you filed. Now you've either got a 11 contention or you havon't. And you ought to have somebody 12 ready to back that contention up when you file it.
13 So I don't thihk that this myth that discovery is 14 such an ossential part of the NRC licensing process -- again 15 I can call on 15 years in this business -- I don't think it 16 adds a thing to the process.
17 JUDGE ROSENTHAL: All right. Well, let's movo 4
18 ahoad.
19 MR. DIGNAN: All right.
20 But acknowledging that it's in the rules, they 21 woro given a discovery period, they woro granted -- they say 22 they woron't givon a follow-up.
23 Now koop in mind what they did. They all filed 24 their interrogatories to us on the last possible day to file 25 them. Nobody filed them in advance of that last possiblo ACII. FEDERAL REPORrEas, INC.
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}SMPBmpb 1 day. !!ad they -- and I believe my brother on the Staff l \~)
2 pointed this out in their brief -- had they filed earlier l
3 the 14 days would have run on me. I would have gotton somo 4 answers in and they would have got another set of questions 5 out.
1 6 Now I'm jumping through the samo hoops, 7 Mr. Chairman.
4 8 JUDGE EDLES: Let me ask you a question on that.
1 9 MR. DIGNAN: So let's koop that in mind.
10 JUDGE EDLES: The memorandum, maybe I don't
]
11 understand it. The Board memorandum of January 9th says 12 that answers to last interrogatorios duo within 14 days
{} 13 after the close of discovery.
14 MR. DIGNAN: Right.
15 JUDGE EDLES: Does that moan that if peoplo send 16 you discovery ovory day that you are obligated to answer 14 17 days after each of them?
18 MR. DIGNAN: Yes.
19 JUDGE EDLES: Or after the close of discovery?
I 20 MR. DIGNAN: That is a standard order that 21 Licensing Boards givo out. And what I had thought I would 22 soo -- Koop in mind, Mr. Chairman and members of the Doard, 23 the Board also said to people, 'lloy, wo encourago in formal 24 discovery.'
25 Now I think this Board knows me well onough, and
[
i Acil-FIIDl!RAL RiiPonTiins, INC.
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6930 11 14 184 1 MPBmpb 1 my records, I have never fodght voluntary discovery in my 2 life. And I wouldn't have fought it this timo. There was 3 no effort at it.
4 Next, we are hearing a lot about depositions.
5 There was not one request for a deposition subpoena filo.
6 There was not one notice of deposition put out.
7 Now let's talk about Mr. Lioborman.
8 Mr. Lieberman was featured by the Commonwealth's Attorney.
9 Let's got a little history horo.
l l 10 KLD, for whom Lioborman works and is the export 11 for, performed the study under the direction of the 12 Commonwealth. We paid for it but the Commonwealth was 13 unhappy with the old ETE, so we got out KLD. And KLD was 14 under the direction of the Commonwealth.
15 Are you going to ask me to sit hero and buy an 16 argument that says, 'Well, the Commonwealth didn't know who 17 to depose on this thing.' This is the Commonwealth's ETE 18 we're talking about in this caso, dono under their direction 19 at our expenso. Everybody know who Lioborman was. '
20 Also, the rules of this Commission do not requiro s.
21 you to name witnossos. You are permitted to put out a 22 notico of deposition on an applicant or a request for i 23 subpoona on the basis of a subject matter witnoss. That 24 wasn't triod.
(~S 25 All of a sudden wo nood a lot of depositions.
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sMPBmpb 1 It rings hollow. It rings hollow.
[d l 2 JUDGE WILBER: Could I ask somo questions about
\
l 3 the various revisions of the omorgency plan?
l
( 4 The revision bars on the side, on tho ' margin of i
5 Rovision Two, are they reflecting changes from the -- I 6 think it is a June 1986 Revision Ono, or are they --
l 7 MR. DIGNAN: I believe -- I would rather answer 8 it this way --
9 JUDGE WILBER: In other words, there was an 10 carlier revision, November of '85 or Docombor -- I'm not 11 sure of the datos -- on which a series of contentions was 12 submitted and I believe woro admitted. And I'm having a 13 little bit of a problem to know what those revision bars are 14 reflecting; whether they are reflecting changes from the I
15 '85, the '86; and how are the people preparing the 16 contentions knowing what they should lo:k at?
l
- 17 MR. DIGNAN
- The revision -- The reason I'm 18 hositating is one thing: The Chairman earlier said thoro l
l 19 was an original and then there was a Revision One and a 1
20 Revision Two. And it didn't work that simply. And this has
- 21 always boon a problom.
l 22 There was a Revision Ono and a 1-A, really; it 23 wasn't called that.
24 The short answer to the question, though, if I 25 could bo permitted, is my understanding of the revision bars l
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MPBmpb 1 is that the revision bars on that document -- and I l 2 certainly am not going to cross Ms. Curran if she tells me i
1 j 3 there was some confusion. These were done by the State of i
j 4 New Hampshire, and I can't vouch for the bars thenselves.
5 And I will take her word for it if she says some were 6 confusing to her.
t
! 7 But the basic thrust of those bars was that they
]
j 8 were changes from the last complete revision, which is the J
! 9 revision on which the contentions had previously been ;
10 filed. ,
1 1
i i 11 JUDGE WILBER: That was 1985.
- i l 12 MR. DIGNAN: That's correct.
)
n 13 JUDGE WILBER: So nothing was dono about Revision l V '
} 14 One. It was just in limbo thero. I call it Revision One.
i 15 Let's say the June '86. ;
] 16 MR. DIGNAN: Yes. My problem is the name. And ,
i i i 17 don't hold me to the namer but that's what I understand, i 18 that that was the difference betwo'on the two. '
i 19 Ilowever thoro is no doubt there were revision !
i j 20 bars and that the revision bars lod you to where the changes j 21 had taken placo. And what the Board said is true. It is l
J 22 not simply -- I am not going to de minimize the ef forts that l 23 people had to go through, including our office, with that
) 24 now document. At the same time it is not proper to say, as i ;
l 25 was argued in the brief, 'Woll, wo had 31 volumes to go i
l I
- Acil FliDl!RAL Rt! PORTERS, INC, l j l 202 347 37(s) Nationwide Coverage mn336 M44
6930 11 17 187 MPBmpb 1 through.' Well, you didn't havo 31 volumes to go through.
2 I would not quarrel with a lawyer who said, 3 'Well, goo, some of the bars woro in the wrong placo.' I'm 4 sure that probably happonod, without knowing it to be a 5 fact.
6 But the f act of the matter is that the changos 7 pretty much woro dolineated, and at least we woro able to 8 protty much work our way through it.
9 Let's talk about the summary disposition.
10 JUDGE EDLES: llow long did it tako you to work 11 your way through it? Ilow many people did you have doing 12 that delineation of tho second plan?
13 MR. DIGNAN: llow many peoplo havo I got on this
(^}
v 14 caso?
15 JUDGE EDLES: Doing the dolineation of the 16 second plan proposal? Just ono?
17 f4R . DIGNAN: At Ropos & Gray, one. I've got 18 peoplo up on the oito who --
19 JUDGE EDLES: llow many -- llow long did it tako 20 you to do that?
21 MR. DIGNAN: I don' t know. Wo got the plan in 22 September -- wasn't that when it was distributed? Wo 23 probably had a pretty good handlo on that by Octobor 15th or 24 so.
(~] 25 JUDGE EDLES: Okay.
v Acit l:1!DliRAI, llI!!'ORTl!RS, INC, 20214717(v) Nationwide Cmcr, ige N(n)16 (M6
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l c930 11 01 188 l t NMPBmpb 1 MR. DIGNAN: I won' t say a perfect handlo, your l N-]
- 2 lionor.
l l 3 And, look again, because I would like to koop one 4 thing candid with you I had people on the sito who woro t
l 5 knowledgoable too, which I'm sure made our task oasier than t
l 6 otherwise.
I 7 All right. Now summary disposition. Let's talk 8 about who got hurt with the short summary disposition timo.
9 First of all, the timo granted to respond to 10 summary dispositions was precisoly that called for by tho l 11 rules of the Commission.
12 Secondly, who gets hurt with short summary
{} 13 14 disposition timo?
hurt already.
The filor of the motion.
I happen to think thoso ETE motions woro And I'vo boon 15 protty good motions.
16 What the Judge did -- which is porfectly within 17 har right -- is roly on 10 CPR 2.749(C), which says if the 18 opposition's position is wo aron' t in a position to filo 19 af fidavits the judge shall defor ruling on the motion or 20 shall deny it. Sho olocted to dony it. Now I'vo got to try i
21 it.
22 So if anyone was hurt by the shorter timo for 23 summary disposition as things are falling out -- and will 24 continuo to bo hurt -- it is the Applicants, who filed a lot l
[} 25 of them.
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- ^ MPBmpb 1 Secondly, koop in mind that this businoss of how l
2 tough it is to respond to a motion for summary disposition, t
3 all you've got to do to boat a summary disposition motion is 3
l 4 como up with one statomont of fact -- oxcuse me, of i
5 legitimato dispute of fact. Now if you can't como up with 6 one legitimato dispute of fact you probably haven't got much I
i 7 of a --
8 JUDGE ROSENTIIAL: Affidavits and all that stuff 9 normally, isn't it? If you have a motion for summary
- 10 disposition supported by affidavit, isn't it gonorally l
11 expected that the --
) 12 MR. DIGNAN: Yes, but all you nood is an l
- 13 affidavit disputing the facts. And if you've got an export
- 14 he can road tho affidavit --
15 JUDGE ROSENTilAL: On how many contontions did you
)'
16 sook summary disposition?
17 MR. DIGNAN: Evory one.
18 JUDGE ROSENTilAL: And that was how many in total:
19 30-something if I recall corroctly? ;
20 MR. DIGNAN: Yos. I will tako your number. ,
l i
) 21 JUDGE ROSENTilAL: All right. l i 22 Woll, you think that whon the rulos provided 23 whatevor porlod of timo they do provido that thoy had in l
1 24 mind the nocousity of poople addressing what is in offact 33
- 25 noparato motions for nummary dispooltion?
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c930 11 03 190 1 sMPBmpb 1 MR. DIGNAN: Holl, Mr. Chairman, as you know, I b 2 am very reluctant to over say what the draftsmon of NRC 3 regulations had in mind.
4 JUDGE ROSENTilAL: Well, but --
5 MR. DIGNAN: But I don't think it is unroasonablo 6 to ask in a caso of this naturo, where you do it on 7 contentions, unliko the fodoral court whoro you como in for 8 the wholo caso.
9 Koop in mind, a summary disposition motion in a 10 fodoral court of law is always directed essentially at the 11 wholo caso, or a big slug of it. To say 30 contentions is 12 just a quirk of the practico of this agoncy to take thin 13 contention by contontion. In the todoral courts you
)
14 gonorally go for summary disposition on tho whole cano and 15 your opponont han to como in and deal with ovory singlo 16 insuo in the caso.
17 JUDGE ROSENTilAL: No, I realizo that. But I 18 doubt very much whether, if you had a cano in the fodoral 19 district court which had as many combinationn and 20 pormutations na this one on omorgoney planning that it would 21 hold you to thin kind of a portod.
22 But again, you aoo my problom, Mr. Dignan, in 23 that if thin cano had movod along on omorgoncy planning from l 24 the outnot with a good doal of dinpatch, or if the f act that I
25 wo'ro junt now gotting around to the Now llampshiro plan four
)
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- t.2 w .n m Nationwide emerne m ) v m ui i
h c930 11 04 191 MPBmpb 1 years or whatover it is after the oporating licenso 2 procooding started -- or six years I guess it is, five or 3 six years -- if some of that could bo put at the doorstep of 4 tho Intervonors it would bo one thing.
5 But it just sooms to mo that Now llampshiro, the 6 State of Now llampshiro's own convenionco, as it woro, with 1
7 being satisfied for a period of timo -- and the Licensing 8 Board has always satisfied its own convenience -- and all of 9 a suddon the burdon of onsuring that you got proposed
- 10 findings of fact and conclusions of law filed this fall is 11 resting on thoso Intorvonors.
f 12 MR. DIGNAN: No, it is rosting on mo too.
j I
{} 13 JUDGE ROSENTilAL: Woll, I understand that. But 14 you've got a client which is propared, I assumo, to put 15 whatover resources aro nocossary into suoing to it -- I 16 MR. DIGNAN: And I have a client with a $4.5 17 billion ready-to-run plant that can' t run.
10 JUDGE ROSENTilAL: I undoratand that.
19 HR. DIGNAN: So I mean tho monoy, if you want to 20 talk tho monoy anglo, Mr. Chairman, tho fact of the matter 21 is each of us could stay hero all day and arguo how that '
- 22 monoy factor ought to como out.
23 JUDGE ROSENTilAL: I undoratand that.
i 24 MR. DIGNAN: nut tho fact of the mattor is that
{} 25 thin situation -- Wo' re talking about practicalitios. And i
- Aci
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0930 11 05 192 MPBmpb 1 with all duo deforence to the Chair, you havo boon giving mo
- 2 a gonoral argument
- This is a comprossed schedulo, and, 3 goo, it took a long timo to got thore. I'm trying to tako 4 out the specific supposed problems.
) 5 JUDGE ROSENTilAL: All right.
J 6 MR. DIGNAN: And tho next thing wo hoard was lots I
7 of forums.
l 8 I agroo thoro aro lots of forums, and I havo to 9 appoar in ovory one of them, and so has Ms. Curran. But P
10 almost all of thoso forumn woro olocted by tho Intervonors.
1
- 11 I would rathor bo back working on the direct caso i
12 right now than having to havo boon horo this morning to
(} 13 arguo that stay motion and down horo today talking about the j 14 schoduling motion. Bu t I can' t bo .
15 They have olocted the forums. They havo olected 16 whoro to spend their resources. And it sooms to no that the 17 destro is not to spond ronourcos in the trial of tho issuot '
j 18 it in to appoal things.
19 ;
i 1
20 i
21 22 f i l 23 l 24 2'
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! t sMPBob 1 JUDGE ROSENTilAL: That is something, if I may say q
l C 2 so, Mr. Dignan, of an overstatomont. You selected the forum l
l 3 for the motion to contract the EPZ. They didn't instituto l
! 4 that; you did.
- 5 MR. DIGNAN
- That's right.
6 JUDGE ROSENTilAL: They had to respond to that.
7 MR. DIGNAN: That's right.
- I I O JUDGE ROSENTilAL
- They didn't choso the forum of '
. 9 the Wolf board. That's p;rt of--
i 10 MR. DIGNAN: I didn't eithor.
l 11 JUDGE ROSENTilAL: All right. I am not suggonting j
12 that you are at fault. What I am ninply suggesting is that
{} 13 this in a procooding which has gono on for a great deal of 14 timo, and all of a suddon it'n getting on this kind of a 15 ochedulo. And I realizo also that you aro not rosponsiblo }
l i 16 for what the Licensing Board doon, but I can't help but tako I [
j 17 into account tho dinparity betwoon the Liconning Board la kooping thono pooplo'n nono to the grindstono and tho 1
19 Liconning Board doing its own thing at its own convenionco. l l 20 Now maybo you aro going to pay the prico for 4
i 21 that. I don't know. But that is a factor that, rightly or !
1 I
22 wrongly, I can't dinmton in my own thinking. >
j 23 MR. DIGNAN: Holl, lot's talk about that. l I
j 24 Thoro aro two aroan whoro ono could accuno tho i l
{} 25 Liconning noard of thin. Ono in the dolay in getting out i
1 ,
! Acit FliottitAi. Riii>onTitis, INC, 202 W .U m Nadonwide Omune u M6(M6 i I
6930 12 02 194 7 yMPBob 1 the answers as to what contentions wore in or out.
U 2 JUDGE EDLES: One could go back and one could 3 argue that we ought not to be hoaring the low power caso at 4 this point at all. That should have boon done through 5 appeal to the Commission or whatever a year or two ago.
6 You'ro talking about a Licensing Board that took throo years 7 to writo a decision on the low power caso.
l l 8 JUDGE ROSENTilAL: More than that. You heard the 1
i 9 low powor evidenco--
l 10 MR. DIGNAN: Tho low power caso? I'm not suro I l
l 11 follow. The low power liconso was sought in 1986 with a 12 motion by the applicant in July.
[
13 JUDGE ROSENTIIAL: What Mr. Edlos has in mind is
}
14 that in 1983, in the nummer of 1983, the Licensing Board 15 hoard tho insuon in the so-called Safoty Onsito phase, tho l 16 Emergoncy Planning phano of the caso. This in what pavos l 17 the way for the low powor licenso.
l 18 The docinion in that phano of the caso hoard in l
l 19 August of 1983 como down in March of 1987. Now thin in not 20 oxactly a Liconning Board that la showing a groat nood for 21 oxpedition.
22 MR. DIGNAN: Holl, koop in mind in fairnono to 23 the Liconning Daard what happonod in 1984 wan when the 24 financial crinin hit the project.
25 JUDGE ROSENTilAL: That changon thoso innuon?
ACli FliniinAi. Ititi>on riins, INC.
202 u 7a 700 N nonwide rmoage snawru,
6930 12 03 195 7 s,MPBob 1 MR. DIGNAN: Well, it didn't change those issues V
2 but it changed the need for a decision on those issues.
3 And then by the timo the thing was cranked up 4 again and people could filo-- Koop in mind, no motion for 5 low power licensing was over filed with the Hoyt Board 6 before the hiatus after '83, and none could have been 7 because the plant wasn't ready to run.
8 Then we had the financial crisis, and I think in 9 fairness to the Board, by overybody's agreement things 10 calmod down. Nobody was pushing that Board for a decision 11 at that point. Certainly I was not.
12 And then when ovarything was straightened out,
{) 13 14 things geared back up again and by that timo, additional questions had boon intorjocted by tho intervening time.
15 So I think-- I don't think the Hoyt Board can be 16 chargod with just sitting around from '83 to '86. The first 17 timo any Licensing Board got a motion for a low power 18 licenso was in 1986.
19 JUDGE ROSENTIIAL: All right. Let's pass that.
20 So you do agroo that the Board did not moot its 21 own schodulo for the rulings on contentions.
22 MR. DIGNAN: There are two ways, as I understand 23 it, to moot tho schedulo. It was lato with the ordor that 24 told ovarybody what was in. It was six or sovon days lato.
25 Much is boing modo of that becauso of the short discovery Acit.Fl!!MiRAL RITORTliRS, INC,
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MPBmpb 1 period. No one came in there and said, you know --
- 2 protested before it came out on the day.it did that I'm j - .
3 aware of. And it shorted these by;seven days, in theory.
4 Now that's on the theory that you don't do
~
5 anything on the assumption of what rulings are going to be.
1 j 6 Now, I don't know. Again we're talking 7 practicalities.
8 I'll tell you what my assumption has been on this
~
l 9 case all along. I am going to try every contention filed 4 10 until it is knocked out. And I don't think that is'a bad 11 way to handle yourself in this setting.
f 12 Now I'm not going to down anybody for not doing l
i
[} 13 14 i t, but that is one way to do it. And if you do it that way it doesn't make any difference what those rulings are. ;
! 15 As to the question of.a decision, I agree with a
- j. 16 the Chair that they have been deprived of the right to i
j 17 object. But presumably that memo will come down as a 1
J 18 pretrial order. They can object. And if error has been l
l 19 committed, error has been committed.
1
{ 20 But the point is you don't need to know why i
! 21 somebody -- why the Board threw a contention out. You 1
! 22 really don't. You can't appeal it; you can't do anything l 23 with it. You can put it in your pocket and take it up here, 24 hopefully, and get the Appeal Board to reverse it. j
(} 25 Which brings me --
i 1
i ACE. FEDERAL REPORTERS, INC.
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w c930 12 02 197 1 JUDGE ROSENTHAL: No, I understand that. But I
[v^MPBmpb 2 am just going to the notion that assuming that there is some 3 possibility -- this is an assumption that is contrary to 4 fact -- that once the Licensing Board explains its reason 5 for objecting to a particular contention, an Intervenor puts 6 forth an objection to that reasoning, the Board might change 7 its mind.
8 MR. DIGNAN: It might. And it will have to 9 accommodate that, and it does. And I will pay that price.
, 10 And that's the way it's going to be.
11 Which is another factor. We are talking about 12 price. If this really is a deprivation of due process that
(~') 13 is going to take place here starting June 1st, everybody is
%j 14 going to be up here to tell you about it. They are going to 15 be up here to tell the Commission about it. And then they 16 are going to tell some court of appeals about it.
17 So the risk is being run by the Applicant because 18 if the deprivation took place you are going to reverse it.
19 If you don't, the Commission is going to; and if the 20 Commission doesn't, the court of_ appeals is going to. And 21 who will pay the price? Not the Intervenors; the +
22 Applicants.
23 JUDGE ROSENTHAL: No, I understand that.
24 But one of the conclusions that I have reached
(" 25 after a number of years in this game is that maybe, just
(>}
ACE-FEDERAL REPORTERS, INC.
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c930 12 03 198
{~3MPBmpb 1 maybe the rule against interlocutory appeals and our, shall
%.i 2 we say, reluctance to exercise our directed certification 3 authority isn't that smart. Maybe we ought to be involving 4 ourselves more on an interlocutory basis so that we avoid 5 the contingency that you have referred to.
6 Certainly the Applicant will pay the price. I 7 don't think, frankly, it makes a lot of sense if in fact you 8 have got a schedule that is totally unreasonable to say, 9 okay, go through with the schedule, get the decision. And 10 then we will look at whether that schedule is so 11 unreasonable that you hava to go back to square one.
12 That to me, with all due respect to the 13 Commission's rule, with all due respect to our rigid 14 enforcement of that rule against interlocutory appeals, you 15 know, at this stage of the game, particularly in this 16 proceeding, I am having some second thoughts about it.
17 MR. DIGNAN: Well, the second thoughts of the 18 Chair are probably shared by a lot of people who practice 19 before this Agency. But the rule is there, and that's all 20 we can do with it.
21 , JUDGE ROSENTHAL: No, I understand that.
22 MR. DIGNAN: But you have the directed 23 certification power. And that's one of the problems. kt is 24 an awful area.
(3 25 The scheduling is in the discretion of the V
ACE FEDERAL REPORTERS, INC.
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-sMPBmpb 1 Licensing Board. Whether to take this appeal is a matter of
- {V 2 your discretion. And you're going to judge it by an abuse 3 of discretion.
4 Now an Irish lawyer once said, 'What is 5 discretion?' He says,. 'That means the judge can do what he 6 wants to.' And the other guy said, 'What's this abuse of 7 discretion?' He says, 'That means a bigger judge can do a
8 what he wants to.'
9 (Laughter.)
10 MR. DIGNAN: And this is where I am.
11 On the other hand, I don't think you've got an 12 abuse of discretion here. And if the Applicant is sitting 13 here pleading with'you for a trial, let me have my trial.
14 And if there has been a deprivation of constitutional 15 rights, you'll be the first to tell me; you'll remind me of 16 the oral argument I ma'de to you today, and we'll have a 17 problem.
18 -
But I don't think this schedule is all that bad.
19 As I say, I've heard a lot about depositions that wanted to 20 be taken and I didn't see a notice. I heard a lot of 21 witnesses who supposedly were ready, and when you' track it 22 down they'were around.
23 And the concept that you've got to come around on 24 July 4th and figure out who's on that beach, there are more 25 estimates of that beach population out there than I care to ACE FEDERAL REPORTERS, INC.
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a930 12 05 200 7~1MPBmpb 1 count. And the fact of the matter is the reduction by New
\_)
2 Hampshire, which is probably accurate, is proving out what 3 the Applicants have been saying for years, which is the 4 Chamber of Commerce's quarter of a million is a nutso figure 5 and it has been all along because you just can't put that 6 many people on the square footage.
7 Now we have heard -- I don't want to get into the 8 question -- and I didn't hear anything from my brethern that 9 differed from this -- I think we have done everything we 10 could to react to discovery. The objections we made were 11 objections that we fully believed in as a matter of law. I 12 believe we are in a position to say to you today that we 13 have answered everything that we were compelled on save one
{~}
14 set, which is a group, which we have asked for 15 reconsideration on because we think the ruling was, frankly, 16 inconsistent with another ruling of the Board. However 17 those answers will be ready to go if we get the wrong 18 ruling.
19 So, as I say, unless we are going to deify 20 discovery and say that we all practice this profession and 21 we all come before this Agency to conduct discovery 22 exercises, I don't buy it. You get the application-in 23 advance. You get the plan in advance. You get the 24 testimony in advance. Discovery just is not that 25 important.
ACE FEDERAL REPORTERS, INC.
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?^1MPBmpb 1 And if they really meant it, where were the
\~)
2 notices of deposition by subject matter, if nothing else.
3 JUDGE WILBER: Does this include the material you 4 requested of Dr. Adler?
5 MR. DIGNAN: Adler has, first of all -- Well, I 6 want to be very careful because I don't want to start an 7 argument that I don't mean.
8 My understanding of the whole thing is one of the 9 problems was that the original interrogatory didn't -- it 10 turned out that it didn't ask for what they needed. We have 11 arranged since then to have them go down to KLD, run the 12 model and play with it, anything they want to do with it.
13 And my understanding is it is answered.
(~)/
14 Also my understanding is that there has been a 15 request for certain materials that just simply don't exist; 16 they no longer exist if they ever existed. But I do not 17 believe -- but I would defer to somebody else to straighten 18 it out for me -- when we're in a position on that.
19 Finally, if I can be permitted, I guess my one 20 problem -- and I'm fond of telling people this -- when I 21 walked out of my first hearing room in Seabrook I was 22 single, driving a Corvette and associated with Ropes & Gray, 23 living in a one-bedroom apartment. I am now married, I've 24 got two children, I live in the suburbs and drive a sedan,
{} 25 and I'm fortunate enough to be a part of Ropes & Gray.
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a930 12 07 202 7'wMPBmpb 1 I'm convinced if we keep this up that V
2 six-year-old daughter of mine is going to argue the final 3 appeal here and my two-year-old is going to handle it in the 4 court of appeals.
5 This has got to end somewhere. Litigation for 6 litigation's sake has got to stop. And when I keep hearing 7 people saying that they didn't know what the issue was going 8 to be on beach counts, that has been the number one issue in 9 Seabrook since the first time that Chairman Rosenthal and 10 Dr. Buck walked the transmission lines and they were talking ,
11 about the population counts on the beach.
12 JUDGE ROSENTHAL: We walked the beach too.
rx 13 MR. DIGNAN: Yes, I know you did.
(
14 JUDGE EDLES: Mr. Dignan, can I ask you to turn 15 your attention to something we were exploring with counsel 16 for the Intervenors? That is whether there is any 17 possibility that the issues can be severed in a way that 18 would permit some to go forward in June, even if we were to 19 decide that we were going to stay the schedule as to other 20 issues.
21 MR. DIGNAN: Of course there is, Mr. Edles.
22 There is no doubt in my mind that you could sever out 23 certain issues for trial early.
24 Some of these issues -- the Chair has referred to 25 the fact that his technical assistant has gone through and ACE FEDERAL REPORTERS, INC.
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a930 12 08 203
, 7 sMPBmpb 1 seen there are some in his view that do or do not need
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2 discovery. A quick read-through of all of these issues, 3 they aren't the same in complexity. There is no doubt in my 4 mind that if you acted in your discretion to do that you 4
5 could sever out certain issues for earlier trial.
6 JUDGE ROSENTHAL: Now the hearing is currently 7 scheduled one week in the beginning of June, if I recall 8 correctly.
9 MR. DIGNAN: One week at the end of June and one 10 week, which would be the last, I believe, full week of 11 July. There has been another order scheduling a. third 12 week.
{} 13 JUDGE ROSENTHAL: The last order I had seen had 14 those two weeks in June. There now is one in the -- Now do 15 I assume that the reason for these big gaps, or relatively 16 big gaps between hearing weeks is the availability or 17 non-availability of the federal courthouse Concorde?
18 MR. DIGNAN: Well, Mr. Backus has long said that 19 is what is driving the Board. I don't know.
20 I do know that the Board -- It is my
- 21 understanding the Board wants a secure facility after what 22 went on up at --
23 JUDGE ROSENTHAL: I understand that. But did the 24 Board have any explanation as to why it was sitting one week
{} 25 in the beginning of June, one week at the end of June, and l /\CE. FEDERAL REPORTERS, lNC.
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c930 12 09 204 T s.MPBmpb 1 one week several weeks later in July?
V 2 MR. DIGNAN: If there is an explanation, I 3 haven't heard it.
4 JUDGE ROSENTHAL: That isn't normally the way
, 5 hearings go around here.
6 MR. DIGNAN: Right. If there has been an 7 explanation, I haven't heard it.
8 I do know that our people made some effort to 9 talk to people about the availability of that courthouse.
10 And the weeks that the Board is in as I understand it are 11 the only weeks that it is available.
12 JUDGE ROSENTHAL: All right.
( 13 JUDGE EDLES: He can only draw inferences; we 14 don't have any smoking gun here. Not that that's a bad 15 reason. I have no objection to a Licensing Board preferring 16 to hold its hearing in a federal courthouse. I see nothing 17 objectionable about that.
18 MR. DIGNAN: Let me just add one thing in favor 19 of the Board. I hope they stay with that. It was not a 20 very pleasant experience I went through up at Howard 21 Johnsons. I sat there with my colleague, Ms. Selleck, and 22 limited appearance types walked in there, pointed at the two 23 of us and said, 'All lawyers are whores.'
l 24 Now, you know, that didn't rattle my cage that 25 much; it may have rattled some other people's. But that was
/\CEJFEDERAL REPORTERS, INC ,
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1 a930 12 10' 205 PwMPBmpb 1 the tenor of the limited appearance statements up there.
L-) :
2 I wouldn't mind having a federally secure 3 facility. I had stickers put on my car out in the parking 4 lot there.. And if the Board is concerned about having a 5 secure facility, I am with them.
6 And, believe me, that is not the fault of the
~
7 Intervenors. I deal with total gentlemen and ladies as my 8 opponents in this courtroom. But there is a problem up t
9 there.
10 JUDGE ROSENTHAL: I don't think there-is any 11 reason to criticize a Board for wanting to use a secure 12 courthouse. But it simply can't be the ultimate driving 13 force on a schedule.
14 I think your time is close to up.
15 JUDGE WILBER: I have more questions, please.
16 On the ETE, the most recent calculation,'or 17 whatever -- I guess it ~is a calculation or series of 18 calculations -- are there several revisions -- are there a 19 large number of changes in this calculation compared to the l 20 earlier one? I believe there was an earlier one that the I
21 Board required contentions be submitted on, is that correct?
22 MR. DIGNAN: Yes, your Honor. The ETE story is I 23 this one:
24 ETE was done and tried out before the Licensing 25 Board back in '83. That ETE was scrapped and a whole new l
l ACE FEDERAL REPORTERS, INC.
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h a930 12.11 206 f~%MPBmpb 1 one adopted. The Commonwealth of Massachusetts said they V
2 would not accept it for their plan, and so KLD was brought 3 in to do a new one, and New Hampshire has adopted the KLD 4 one also.
5 JUDGE WILBER: So the one that is now there is 6 entirely new.
7 MR. DIGNAN: Yes.
8 JUDGE WILBER: And that's the only thing they 9 should be worried about; nothing about the old one.
, 10 MR. DIGNAN: That's correct.
11 JUDGE WILBER: Okay. Thank you.
i 12 JUDGE ROSENTHAL: I have got one question for 13 you. I just want your assistance, Mr. Dignan, in tracing a
(~ )
14 little bit of this history.
15 Am I correct in my recollection that the first 16 New Hampshire plan -- and I am using the term New-Hampshire 17 plan to cover state and local plans -- surfaced some time.in 18 1933, is that correct, to your recollection?
19 MR. DIGNAN: That would square with my memory.
20 JUDGE ROSENTHAL: And at some point in '83 the 21 Licensing Board had issued an order setting a target date 22 for the submission of plans?
23 MR. DIGNAN: Contentions were actually filed.
. 24 JUDGE ROSENTHAL: Then there was six months, and 25 there was going to be h, earing then I think in December of
- /\CE. FEDERAL REPORTERS, INC.
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[V 2 Is my recollection accurate?
3 MR. DIGNAN: That's correct.
4 JUDGE ROSENTHAL: So you had a plan; it was 5 filed. And you had contentions that were filed on that 6 plan.
7 MR. DIGNAN: That's correct.
8 JUDGE ROSENTHAL: All right. Then what happened?
9 MR. DIGNAN: Then what happened is we had the 10 hiatus due to the financial problem.
11 JUDGE ROSENTHAL: Okay.
12 MR. DIGNAN: And things went off. And then the 13 new plan came out.
14 And understand by the new plan, this was not 15 Revision Two that I'm talking about yet. This was the first 16 of the new generation.
17 JUDGE ROSENTHAL: This was the December '85 18 plan.
19 MR. DIGNAN: And the Board put out an order, if 20 you will recall, and said essentially in that order, 'Okay, 21 we're going to have everybody file new contentions on the 22 new plan rather than try to go back and figure out what ones i I
23 survived the changes.' I 24 So a whole new round of contentions was filed on
(~S 25 that plan.
V ce FEDERAL REPORTERS, INC.
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a930 12 13 /
208 E.3MPBmpb 1 JUDGE ROSENTHAL: All right.
2 Now when you say the '83 plan, there were 3 contentions filed on it, but because of the financial crunch 4 that came to a screeching _ halt, is that right?
5 MR. DIGNAN: Yes. You see, we actually stopped 6 construction of the plant and laid the construction crew 7 off.
I 8 JUDGE ROSENTHAL: Okay.
9 And at that point was there a formal order or 10 something which held everything in abeyance? Do you recall?
l 11 MR. DIGNAN: Your Honor, I just don't recall.
i 12 JUDGE ROSENTHAL: It's not that important. We 13 can find out.
- 14 All right. Thank you, Mr. Dignan.
15 MR. DIGNAN: Thank you.
16 JUDGE ROSENTHAL: Mr. Berry.
17 18 19 2
20 l 21 1 22 23 24 .
' 5
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6930 13 01 209 obeb 1 ORAL ARGUMENT ON BEHALF OF THE NRC STAFF 2 by GREGORY ALAN BERRY, Esq.
3 MR. BERRY: Thank you, your Honors. My name is 4 Gregory Berry. It is my privilege to appear before you 5 today on behalf of the Nuclear Regulatory Commission Staff.
6 I would first like to respond to a question I'm
- 7 sure is on the Board's mind, and that is the lack of a FEMA 8 position. It's my understanding, Mr. Chairman, that FEMA 9 will -- FEMA has assured us that they will be prepared to 10 respond to meet the May 21, 1987 deadline for the 4
11 preparation of prefiled testimony. I am aware of nothing 12 that indicated that FEMA will not be able to --
13 JUDGE ROSENTHAL: Is FEMA's determination 14 presumptively correct? In other words, if FEMA comes to the 15 conclusion in this testimony that it files that the New 16 Hampshire plan is totally acceptable on its face, is there 17 any kind of rebuttable presumption or correctness that 3
'l 18 attaches to that?
a
! 19 MR. BERRY: Under the regulations, Mr. Chairman, 1
20 a FEMA finding does create a rebuttable presumption 21 regarding adequacy of the plan.
22 JUDGE ROSENTHAL: Now how, Mr. Berry -- here 23 comes the FEMA testimony on the 21st of May. That's the 24 date on which the prepared testimony of these Intervenors is ,
I 25 due. Intervenors might like to have a little prepared i i /\CE FEDERAL REPORTERS, INC.
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6930 13 02- 210 i ebeb 1 testimony to rebut the FEMA finding. Now how do they do 2 that on May 21 when that's the date upon which FEMA tells us ;
3 it's going to submit it's finding?
4 4 MR. BERRY: Well in terms of preparing rebuttal j
5 testimony to the FEMA position, under the facts the Chairman.
6 has just laid out obviously there wouldn't be that 7 opportunity. The question also presupposes though that by 8 submitting rebuttal testimony-is the only way that an.
1 9 opposing party can challenge --
i 10 JUDGE ROSENTHAL:- There is no room for rebuttal 11 testimony. We get the testimony on May 21 and we:go to 12 hearing on June the 1st.
13 MR. BERRY: Yes, and I understand that, 14 Mr. Chairman.
i 15 JUDGE ROSENTHAL: Doesn't that bother me?
16 MR. BERRY: Does it bother me?
17 JUDGE ROSENTHAL: Yes. I mean you're -- the NRC 18 Staff, I assume, is here as having a particular regard for 4 19 fairness because the NRC Staff has got, I think, no axe to 20 grind in this matter at all. We've got litigants that are i 21 trying to get this plant licensed and we have other ,
22 litigants that are trying to get it defeated. Now I would 23 think that the Staff would be particularly sensitive to the 24 issues of fairness and I would think that Staff would be 25 wondering about this.
4
- 1
) 14CE. FEDERAL REPORTERS, INC.
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6930 13 03 211 f')obeb 1 MR. BERRY: Well you certainly are correct, V
2 Mr. Chairman, the Staff does not have an axe to grind in 3 this proceeding. The Staf certainly is interested in 4 fairness and due process.
5 JUDGE ROSENTHAL: All right. Well then explain 6 to me why it is that it is fair to say to these folks Look 7 you're going to get the FEMA finding on May 21, it is a 8 rebuttable presumption of correctness and, folks, the 9 Licensing Board has got a schedule that says your prepared 10 testimony has to be in the same day --
11 MR. BERRY: Mr. Chairman, I have two points to 12 make in response to your question that I would like to 13 respond to:
('/
\_
)
14 Number one, your question presupposes that the 15 only way that an opposing party can respond to a FEMA 16 position is by having the opportunity to file testimony 17 after they receive the position or to file rebuttal 18 testimony --
19 JUDGE EDLES: Mr. Berry, if I can interject, I 20 think the Chairman's point is not that that is the only way 21 it can be done but that if FEMA are a rebuttable presumption 22 someone required to challenge that presumption is entitled 23 to an opportunity to present testimony if it' wishes to rebut 24 those findings. And the Licensing Board's schedule, on its 25 face, forecloses that opportunity in its entirety.
)
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6930 13 04 212 J gobeb- 1 Now you're telling me that's a fair schedule. I U
t 2 don't see it, quite frankly.
3 JUDGE WILBER: I think the Licensing Board l 4 specifically excluded rebuttal testimony, didn't it?
4 5 MR. BERRY: The Board did indicate at least a
! 6 preliminary view that it saw no need for rebuttaly 7 testimony.
4 8 My other point that I would like to make --
9 JUDGE EDLES: But if I may pursue the first-t 10 point, there isn't really much answer to that, is there? I j 11 mean under the schedule the Intervenors have indeed been J
r t 12 foreclosed of an opportunity to present testimony -- whether
^
13 you call it direct or rebuttal doesn't matter -- they cannot 74 file testimony, prefiled testimony, directed to known FEMA 15 findings. That's right?
16 MR. BERRY: As of this point, yes, that's true.
! 17 That's true.
18 JUDGE EDLES: Now maybe they could get some 19 relief if they were entitled, at least, to depose the FEMA l 20 witnesses. Have they been given the right to depose the i
?
21 FEMA witnesses?
22 MR. BERRY: To my knowledge there has been no i
i
. 23 request for an opportunity to depose the PEMA witness. l l
24 But the other point that I would like to make, i l
25 Mr. Chairman, is -- and I apologize that Staff didn't cite i \
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I 6930 13 05 213 U yebeb 1 to this matter in its brief -- but this Appeal Board held in ia !
2 the Zimmer case that hearings need not even be deferred 3 pending -- in the absence of a final PEMA finding at all.
4 JUDGE WILBER: We're not talking final findings 5 here, I believe we're just talking about the preliminary 6 findings, aren't we?
7 MR. BERRY: You're talking about a position, a 8 final position.
9 JUDGE ROSENTHAL: Well I don't think Zimmer is 10 applicable at all. There the question, as you correctly 11 state now, was whether you had to abide the final FEMA 12 findings, and we said in Zimmer, no, you don't. I don't
~
(] 13 know what the relevance is to that here.
v 14 And I would like to ask you this: I have before 15 me the Licensing Board's March 20, 1987 order. This is the 16 order that is being challenged. And footnote two in that 17 order says:
18 " Rebuttal testimony has not been 19 provided for and indeed we find no benefit 20 to the proceeding if we did require it in this 21 instance; the filing of testimony simultaneously 22 serves to promote fairness for all parties."
23 Now I would like to know how you justify that 24 footnote in the context of the fact that the FEMA position r 'y
~
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[ obeb 1 of correctness attached to it on the day that the 2 Intervenors have to put forth their own prepared testimony l 3 and they have been explicitly denied an opportunity to put i
4 in rebuttal testimony. I would like to know what your 5 justification for that footnote is.
6 MR. BERRY: Mr. Chairman, I didn't write the 7 footnote.
8 JUDGE ROSENTHAL: I understand that, but you are 9 defending this order. I understand you didn't write it but i 1
10 if you are going to defend this order and you are up here j 11 telling us that we should reject the attack-on it by your I
12 opponent, you had better be able to defend it, whether you -'
13 wrote it or not. Now what is your explanation?
I 14 MR. BERRY: Well as we set forth in our brief, g
15 Mr. Chairman, a simultaneous filing of testimony is not 16 uncommon, it is not unusual. But the point here is -- and I 17 think the point that should be made, your Honor, is that 18 this rebuttable FEMA -- the rebuttable presumption attaching 19 to a FEMA finding, a FEMA position can be challenged, can be 20 -- quote -- rebutted.
l 21 JUDGE ROSENTHAL: How?
22 MR. BERRY: Cross-examination.
23 JUDGE ROSENTHAL: Well of course you can 24 cross-examine, but as Judge Edles points out, that 25 cross-examination is only one way in which a party attacks l
l l ACE-FEDERAL REPORTERS, INC.
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6930 13 07- 215 obeb 1 the position that has been taken by another party. Now we 2 have said that Intervenors are entitled to make their case 3 out by cross-examination, we have never said that they are 4 obligated to do so.
5 Now they are entitled under the Administrative i
6 Procedure Act, I think, as well as the rules of this 7 Commission, to put forth an affirmative case through their 8 own witnesses. Now how do they do that with respect to this 9 FEMA finding?
10 MR. BERRY: I'm not sure I understand what the 11 Chair is getting at, how do they do this through this FEMA 12 finding?
13 JUDGE ROSENTHAL: Well what I'm asking is you 14 have told me I think that they will not have an opportunity 15 to rebut the presumption attaching to the FEMA finding 16 through affirmative testimony, is that correct?
i 17 MR. BERRY: Yes, I would agree with that.
18 JUDGE ROSENTHAL: All right. You accept that.
19 All right.
20 So they could only do it then through 21 cross-examination, is that correct?
22 MR. BERRY: Or they can petition -- request the 23 Licensing Board for an opportunity in light of the FEMA 24 testimony for an opportunity to --
{} 25 JUDGE ROSENTHAL: The Licensing Board has already 14CE FEDERAL REPORTERS, INC.
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U 2 Now what I'm asking you, and I hope you can 3 understand this, is in that circumstance how does it comport 4 with the right of an individual to make its case out through 5 its own testimony to have the FEMA testimony and the 6 Intervenors testimony due on the same day?
7 MR. BERRY: Mr. Chairman, the Staff does agree 8 with your Honors that it certainly would have been better 9 for the other parties to have FEMA's testimony in advance of 10 filing their own, we don't dispute that.
11 JUDGE ROSENTHAL: Why is it fair not to provide 12 the Intervenors with the opportunity to put in prepared
/"'T 13 testimony after they've received the FEMA position?
V 14 MR. BERRY: Why is it fair not to afford them the 15 opportunity?
16 JUDGE ROSENTHAL: Yes, why is this order fair 17 since it deprives the Intervenors of the opportunity to put 18 in prepared testimony?
19 MR. BERRY: That is your position, it is not 20 mine.
21 JUDGE ROSENTHAL: I don't have a position, 22 Counsel, I am asking you a question. I'm asking why in your 23 view it is fair. You are up here telling me that this order 24 is fair so that we should not interfere with it. I am 25 asking you why it is fair insofar as it requires the ACE-FEDERAL REPORTERS, INC.
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6930 13 09 217 obeb 1 Intervenors to put in their testimony at the same time as 2 the FEMA position comes forth?
3 MR. BERRY: I would like to respond to that. A 4 number of times you have stated my position -- the Staff's 5 position that it is fair, that the scheduling order is 6 fair. And I believe it would be helpful for me appearing 7 here on behalf of the Staff to state our position:
I 8 The Staff opposed the petition for directed 9 certification on the basis that the submission that was
! 10 presented to us didn't meet the standards for directed 11 certification, it was on that basis. And I'm sure that this 12 Board shared those same views.
-s 13 JUDGE ROSENTHAL: Let me pursue that a minute.
\ .
14 The Appeal Board decisions are to the effect that we will i
15 step in on directed certification in a scheduling matter 16 only if there is a due process issue involved. Now I 4
17 procedural due process is nothing more than fundamental i 18 fairness. If you have read decisions in that area, that's l 19 what it comes down to. So if you are objecting to directed 1
20 certification in this case, Mr. Berry, you of necessity are 1 l
21 defending the fairness of this order.
l 22 JUDGE EDLES: If I may follow up a-little bit, I 23 can understand an argument that somebody says ten days is a 24 reasonable amount of time and someone says no I need twenty 25 and there might well be some disagreement there over whether O
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[~]ebeb 1 ten is enough given all of the circumstances. But it does
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2 seem a little strange to me that where -- in this unique 3 situation where FEMA findings are given presumptive weight 4 -- this is not a situation which is sort of exclusively 5 within the Applicant's bailiwick here, I mean, there is some 6 burden of going forward on the part of the Intervonors 7 here. This is not the simple neat issue where the 8 Applicant has the burden on all matters and has to go 9 forward on all matters. We have a situation here where 10 these findings are entitled to presumptive weight unless 11 somebody can tell that they are not entitled to that 12 weight. So the Intervenors have some affirmative burden of
{} 13 14 going forward.
We have a situation now not where they have only 15 been given a few days to do it but in point of fact they 16 have some burden of going forward -- perhaps not the 17 ultimate burden of persuasion but at least some burden of 18 going forward -- and they have been in fact foreclosed from 19 one -- forclosed completely from one important tool in 20 meeting that burden of going forward, namely the right to 21 file testimony. And it seems to me almost a fortiori that 22 that is unfair. In other words, that's unfair on it's face 23 and it's close as anything we have in this proceeding to 24 being unfair on it's face.
I (T 25 I mean, if you don't agree with that, tell me why 1
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U 2 MR. BERRY: No, I don't believe it is 3 fundamentally unfair, no, I don't, Mr. Chairman. The 4 question again is did Intervenors have an opportunity to 5 present their position. FEMA's position is, as you pointed 6 out, entitled to a rebuttable presumption of -- rebuttable 7 presumption. But the Intervenors have sponsored the 8 contention, the Intervonors have a view on this matter that 9 is the point of their direct testimony. That's what we're 10 going to see in their direct case. If FEMA had no position 11 -- assuming there was no position there and the 12 Intervonor --
x 13 JUDGE EDLES: If FEMA had no position there, that (b
14 would be one thing, then maybe they would have a burden of 15 putting forth some evidence here. But that isn't the case.
16 The fact is that FEMA does take a position and indeed will 17 take a position and its position will be entitled to respect 18 by the Licensing Board. We are not in a situation in which 19 FEMA takes no position on the issue, that is the point.
20 I think perhaps we are both taking up too much 21 time because at least I am not satisfied on this particular 22 issue, I'm not talking about now the time for discovery, 23 time for summary disposition, at least on the FEMA 24 question. I must confess to you that this is -- this seems 25 to me arbitrary on its face.
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' 's.e bo b 1 MR. BERRY: Yes, sir.
2 JUDGE EDLES: I am willing to give --
3 if Mr. Dignan wants 30 seconds herer to tell me why I am <
4 wrong, I'm willing to listen. But it seems to me arbitrary 5 on its face.
6 MR. BERRY: Just one moment.
7 (Counsel conferring.)
8 MR. BERRY: I will defer 30 seconds to 9 Mr. Dignan.
10 JUDGE ROSENTHAL: We will give Mr. Dignan a few 11 minutes after your presentation, if he wishes to. We won't 12 compel him.
13 MR. BERRY: I would just note finally on that 14 point again that, as the panel has pointed out, there is 15 more than one way to get evidence in. I believe an 16 opportunity to cross-examine, cross-examine the FEMA 17 witnesses at the hearing, plus having to view their 18 testimony in advance plus whatever knowledge -- independent 19 knowledge or information or evidence the Intervenors have, I 20 think all those should be factors taken into consideration 21 and I don't think it is correct to say that they have no 22 opportunity to present --
23 JUDGE ROSENTHAL: I didn't say they have no 24 opportunity to make out their case, I said they didn't have 25 a complete opportunity.
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obeb 1 MR. BERRY: Well complete or unfair.--
2 JUDGE ROSENTHAL: Well go on to your other 3 arguments.
4 MR. BERRY: Well Mr. Chairman, most of the points 5 that Staff has made in its brief, we are prepared to stand 6 on that. Mr. Dignan has points to raise.
7 I would only like to say this though, 8 Mr. Chairman, and I believe it was helpful that the panel 9 gave the Intervenors an opportunity to, as you said, offer 10 specifics in their petition for directed certification.
11 They weren't as specific as they were here today.
12 Consequently, the Staff didn't -- the Staff or the Applicant 13 didn't have the benefit of those particular claimed matters 14 of prejudice or have the opportunity to respond to those.
15 JUDGE ROSENTHAL: Do you want an opportunity to 16 respond? I mean I think.that is a fair point, that we have 17 gotten some statements from Counsel for the Intervenors --
18 invited, indeed, by us -- that perhaps should have been 19 included in their brief. Now you have made this point and 20 at least with me that sounds a responsive chord. Now if you 21 want a few days -- and I will assure you they are going to 22 be a few days because we have got to rule on this matter 23 with some expedition -- if you want a few days to respond in 24 writing to what you have heard this morning,'I will give it 25 to you.
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? wsbeb 1 MR. BERRY: Yes.
U 2 JUDGE ROSENTHAL: But you make that decision now.
3 MR. BERRY: Yes, the Staff would like the 4 opportunity to study and respond. As I stand here before 5 you today, I am not in a position to disbelieve anything I
- 6 have heard.
7 JUDGE ROSENTHAL: All right. Your response 8 should be in our hands by the close of business on 9 Wednesday. I will give you three business days to respond 10 to these things and they should be sent out by expedited 11 mail to the out of town counsel for other parties so that 12 they would have it by Thursday morning.
13 Mr. Dignan, you have the same privilege if you 14 wish to exercise it.
15 MR. DIGNAN: Thank you.
16 JUDGE ROSENTHAL: I think that is a fair point.
17 JUDGE EDLES: I would like to ask you to address 18 the question we have asked other counsel, and that is about 19 the separation of issues. Can we go to trial in June, or 20 June and July, on some of these if we were to set off-some 21 of the issues for later handling by the Licensing Board?
22 Mr. Dignan seemed to believe that was a do-able thing, the 23 Intervenors suggested that was not sensible, although I
. 24 don't believe I heard them say it was not do-able but really l
25 that it would not be sensible to further bifurcate or O
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2 MR. BERRY: Judge Edles, I have consulted on this 3 very point with my co-counsel, Mr. Turk, who is responsible 4 for this phase of the proceeding and he informs me 5 apparently there are certain -- to answer your question 6 directly, yes, Staff does believe there may be some issues 7 that can go forward even though other issues may be reserved 8 or deferred; in particular, those matters for which FEMA 9 took a position on the summary disposition motions.
10 JUDGE EDLES: FEMA did file responses as to 11 certain of the summary disposition issues.
12 MR. BERRY: Yes, and for those matters on which 13 PEMA has a position, I understand the Staff would be willing 14 to go forward on those where there may be others where this 15 Board may defer matters. But I am not in a position to be 16 any more specific in identifying those issues other than to 17 represent that we do agree generally with the Applicants 18 that there are some issues that can go forward in June.
19 The other point that I would point out for this 20 Board that in a case like this as Judge Rosenthal said, the 21 ultimato question is fairness. It is fairness. We are not 22 here to determine whether the Licensing Board had a perfect 23 schedule, the best schedule, but was it a fair schedule. I i
24 I would point out that each of the parties had an l
/~T 25 opportunity to propose a schedule, the Staff proposed a
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2 commencing two weeks'1ater than the one ultimately adopted 3 by the-Board. The schedule was different from the 4 Intervenors', it was different from the Applicants'. The 5 Board made a decision and I think for a number'of the 6 reasons that we point out in our brief based on the 7 information'available to it at that time I don't think that 8 the January 9 order that=would be affirmed in March was 9 being fundamentally unfair. In light of some of the 10 specific assertions that we've heard here today from the i 11 Intervenors on further reflection who knows.. But what was 12 presented to the Board, the Board made a decision and the 13 Commission's regulations delegate to the Board
{
14 responsibilities for' conducting proceedings.
15 JUDGE ROSENTHAL: Well the Commission's 16 regulations also require the Board to ensure that the l
17 proceeding is conducted in a fair manner. l 18 MR. BERRY: You're absolutely right.
j 19 JUDGE ROSENTHAL: And there are specific l 20 provisions to that effect.
- . 21 MR. BERRY
- You're absolutely correct, your 22 Honor. i'
\
23 And the other point that I.would make, I would'
, -)
1 24 agree that the Board has not always adhered to its own l l
J 25 deadlines, in particular, its decision ruling on the l
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2 set for itself, it was off. There is some question as to 3 how manyadays it was off, but certainly there was a delay 4 there.
5 In light of thatl delay, the Intervenors did bring
" 6 to the Board's attention their concern that the schedule was 7 too compressed, that'they needed more time. I.believe they 8 asked for about four months' extension of all the 9 established deadlines.- There was no effort which I am aware 10 of where the Intervenors sought relief, narrow relief to-11 cure the prejudice: if under the original discovery 12 schedule 21 days was' afforded, and due to delay on the part 13 of the Licensing Board issuing its decision, that period was
{
14 cut to 11 days, I believe the immediate response to that 15 would be to ask the Licensing Board for additional time to 16 remedy the prejudice suffered by the Intervenors through no 17 fault of their own. To the best of my knowledge there was 18 no effort to do that.
19 20 21 !
1 22 '
23 ,
I 24 j l
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1 Also, after the Wolf-Board issued a partial 2 initial decision on March 25, which necessitated or 3 certainly made real the possibility there would be further 4 appellate litigation in that proceeding, I believe that it-5 would have been fair for the Licensing Board to have had an 6 opportunity to have that matter raised before it and give it 7 the first opportunity to extend the schedule and make 8 certain adjustments in the schedule in light of that 9 development.
10 I am unaware of any-request made before the 11 Licensing Board at that juncture.
12 So other than that, I thank the Board for this
() 13 opportunity.
14 I would just state that I would rest on our
- 15 position as reflected in the brief for the other matters 16 that have been brought up, and we will consider the new 17 information presented today and respond to that by next 18 Wednesday.
19 Thank you.
20 JUDGE ROSENTHAL: Thank you, Mr. Berry.
21 I think what we will do at this point is I will.
22 give Mr. Dignan a few minutes, if he so-wishes, to address l 23 solely the point with regard to the opportunity that the 24 Intervenors had to present evidence in response to the FEMA
(} 25 finding, and then I will give one counsel -- one, and agree ACE FEDERAL-REPORTERS, INC.
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(~7 bur 1 among yourselves as to who it is -- the opportunity to LJ 2 respond for five minutes in rebuttal to your opponents.
3 Now, you can decide among yourselves while we are 4 hearing from Mr. Dignan.
5 MR. DIGNAN: Mr. Chairman, members of the Board, 6 I would like to take a crack at this question that has been 7 raised.
8 Again, Mr. Chairman, members of the Board, I am 9 going to stay with practicalities, which is what I was told 10 to do.
11 FEMA does create a rebuttable presumption if they 12 make a finding that the plan is okay, presumably.any part of 13 the plan is okay. FEMA is going to come into that hearing
( })
14 room. Actually, they are going to file their testimony 10 15 days in advance, and they are going to say go or no go on 16 that. We make the finding or we don't.
17 Now, if I were an Intervenor lawyer -- and I am 18 not -- but if I were, I would assume they are going to say 19 go, and I would prepare my case on that basis.
20 I am an Applicants' lawyer. I am going to assume 21 they are going to say no go and prepare on that basis.
22 And I don't see anything inherently unfair 23 because, like the Chair and both of the other Judges, I had 24 another incarnation in which I practiced real law, and I
(~). 25 used to practice land damage cases, and the Commonwealth of v
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1 6930 14 14 228 r~7 bur 1 Massachusetts always had an expert to tell how my client's LJ l 2 land was worthless. !
3 And I had no way to get his testimony the day 4 before trial at all, but I prepared my expert on the theory 5 that the Commonwealth was not going to come in and up the l l
6 bid. l 7 There is nothing inherently unfair in having to 8 oppose testimony that you don't know what it is beforehand.
9 JUDGE ROSENTHAL: Wait a minute. l l
10 Well, but you are not normally dealing, are you - I 11 - or were you in this prior incarnation -- with testimony l
12 that carried with it a presumption of correctness? l l
13 That is the problem here.
[}
14 MR. DIGNAN: Can we talk practicalities? l 15 The reason I chose this analogy was quite 16 deliberately, Mr. Chairman, for this reason:
17 Conceded, it wasn't a rebuttable presumption, but 18 keep in mind what happens. When you try a land damage case !
l 19 of any size, you are trying it generally for a wealthy 1 20 individual or you are trying it for a wealthy corporation in I l
21 front of 12 picked taxpayers of the Commonwealth, and the 22 Commonwealth comes in there and reminds them who is going to 23 pay for this.
24 So while the Commonwealth's expert isn't a legal
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bur 1 with, and you had no right to see it or get it before you 2 have decided that your direct case had to go first.
3 JUDGE ROSENTHAL: All right, let me ask you this:
4 I am, let's say, the trial lawyer here, and I am 5 assuming that FEMA is going to set forth reasons for.
'6 whatever position it is taking.
7 MR. DIGNAN: ' Correct.
8 JUDGE ROSENTHAL: Now, FEMA's reason could 9 possibly be that the sun rises in the West. - I might want 10 instead of simply dealing with this witness on cross-11 examination, because I may not be the cross-examiner that 12 you are, Mr. Dignan -- and I have seen how adept you are in 13 some of the hearings that I have presided at, evidentiary
(~)\
u 14 hearings -- I might want to put on my own witness, who will 15 testify that in point of fact the sun rises in the East.
16 Now, unless I am wrong, I am required to have 17 that witness' prepared testimony in on the deadline in order 18 to have that individual testify affirmatively as my witness.
19 Am I wrong about that?
20 MR. DIGNAN: All right, your Honor.
21 Well, first of all, again I ask you to stay with !
22 me as practicalities, and I hope you take !.s with no 1
23 disrespect. .l 24 You didn't give me a practical example. FEMA is
(} 25 not going to come in and say the sun rises in the West. But ace FEDERAL REPORTERS, INC.
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6930 14 14 230 l; bur 1 what FEMA may come in and do is say, for example, we think V
2 the ETE here is appropriate and will make a reasonable tool 3 to be put into the plan, which is what an ETE is, and they 4 will give some technical reasons for that.
5 I would bet anything having that written out 6 beforehand would not change a good expert's testimony the 7 other way one whit because he is going to have to analyze 8 the ETE himself, reach certain conclusions that he is going 9 to put before the Board.
10 All the lawyer has to do to prepare his case is 11 assume that that testimony is going to be against him and 12 have a guy ready to deal with it.
(~) 13 JUDGE ROSENTHAL: Let me accept that as the v
14 practicality. Let's assume you are right.
15 What about now that horrible word, "the 16 legalities," and what he says is, gee, we as a practical 17 matter are precluded from putting on a witness who will put 18 affirmative testimony out in the context of precisely what 19 FEMA has said.
20 They may not say that the sun rises in the West, 21 but --
22 MR. DIGNAN: Now, we are to a legal question. If 23 we go to the legal question, I think we are going to find 24 very little authority on the problem because you have got D)
(
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3 Analyzing it that way, I still come out the same 4 way. I don't see a deprivation of due process because you 5 can assume what that testimony is going to be,,and you can 6 prepare, and there is nothing new about that.
7 I mean, in a real court trial, keep in mind, in 8 the real world of a jury trial, if you are the plaintiff you 9 put your whole case in before you have any idea what the 10 expert on the other side is going to say'unless you can 11 squeeze yourself in under 267(b) and get a crack at him on 12 deposition, which you usually can't.
(} 13 JUDGE ROSENTHAL: Yes, but you see, on a real 14 jury trial you can put a witness on the stand without having 15 that witness put in prepared testimony in advance.
16 Unfortunately, under our rules we do require that 17 prepared testimony, don't we?
18 MR. DIGNAN: That is true, but you still -- look, 19 a lot of tort trials are tried on one day. Your expert is 20 either ready on the morning of the trial or he is not ready.
21 You have got to get him ready, and you have to assume the 22 other side is not going to be ready --
. 23 JUDGE EDLES: I don't practice in the federal l
24 courts. I am trying to keep this in the context of j l
25 administrative litigation of the type that we do around '
[}
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(} bur 2 The cases that I have seen -- and your experience 3 is broader than mine -- basically, FEMA issues its' findings, 4 basically the Intervenors then depose members of the RAC 5 committee or whoever it is FEMA is going to serve up as 6 their witnesses.
7 The Intervenors then know more or less the 8 underpinnings of the FEMA findings, which may not be 9 entirely clear on the basis of findings or testimony or.this 10 or this, and there is something to be gained.
11 I mean, I won't debate with you over the value of 12 the depositions, but nonetheless there is something to be I
(} 13 gained from talking to the witness. You can get a 14 the flavor of their testimony, and then you go to' trial.
15 That is the usual course of events, as I 16 understand it.
j 17 MR. DIGNAN: You have broader experience than I l
18 do, your Honor, because this.is the first time _down the pike J
19 on emergency planning for me. Hopefully,.it is the last.
- 20 JUDGE EDLES
- Well, I have had two or.three 21 cases, and in almost each of the cases there'have been, you 22 know, the FEMA witnesses have been deposed before they 23 get --
24 MR. DIGNAN: Well, everybody knew who the RAC
(}
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{' bur ; 1 depositions.
2 JUDGE EDLES: Well, that is what you say.
3 MR. DIGNAN: I mean, this is one thing -- I don't 4 want to get legal now, but keep in mind one thing. If this 5 came up here in the normal course, the first question out of 6 this Board's mouth would have been -- if this was after a 7 trial.-- where did you ask for the depositions?
8 And I think that question ought to-be asked now.
9 You are told we had a pressing need for depositions, but 4
10 nobody filed a notice by subject matter or otherwise, 11 JUDGE ROSENTHAL: Well, as a matter of fact, when 12 your adversaries get up for their five-minute rebuttal,
() 13 which will take place in a minute or so, that is a question 14 I will ask them, whether they asked for depositions and, if 15 not, why not?
16 MR. DIGNAN: I have responded, unless the Board 17 has further questions.
18 JUDGE ROSENTHAL: No, that is fine. I thank you.
19 All right, who is presenting the rebuttal?
4 20 MS. CURRAN: I will be.
~
21 JUDGE ROSENTHAL: All right, you will carry that 22 burden. 1 23 Would you answer the question about depositions?
24 Mr. Dignan, as you heard, was very insistent that
(} 25 you folks don't have a basis for complaint about a lost ace FEDERAL REPORTERS, INC.
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(~lbu r 1 opportunity of depositions because you didn't ask for them.
%s 2 REBUTTAL ORAL ARGUMENT BY MS. CURRAN ON BEHALF 3 OF THE NEW ENGLAND COALITION ON NUCLEAR 4 POLLUTION 5 MS. CURRAN: hell, I have a couple of points.
6 First of all, in the answers to interrogatories, 7 neither Applicants nor FEMA nor NRC had identified any 8 potential witnesses.
9 JUDGE EDLES: Okay, but, you know, for example, 10 in FEMA that there is a RAC committee. I know that. You 11 must know that. Those are the folks who review this. You 12 may not know the names of the given individuals, that is 13 quite true.
(])
14 Why didn't you file a request to depose the 15 members of the RAC who are reviewing this matter?
16 MS. CURRAN: Well, if they weren't ready to take 17 a position yet, I don't think it would have been all that 18 productive to depose them.
19 The second issue is there wasn't any time 20 available in the schedule. There were nine or ten days for 21 discovery, in which we were all occupied with preparing 22 interrogatories.
23 Summary judgment motions started up soon after 24 that. I frankly don't know when anyone would have had the
() 25 time to prepare for a deposition and taken one, and if the ACE. FEDERAL REPORTERS, INC.
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2 schedule or as a practical matter, I don't think that again 3 we are obligated to -- I don't know we would have done it.
4 I would just like to correct a couple of errors 5 that I think we made here. I think NRC Staff counsel said 6 that no one asked the Licensing Board for an extension of 7 that discovery period after the ruling on admissibility of 8 contentions came a couple of days late.
9 On March 2, Massachusetts did file for a 10-day 10 period in which to answer -- in which to develop 11 interrogatories because of the late receipt of the Board's j 12 order. So that was done.
(} 13 JUDGE ROSENTHAL: And it was denied?
14 MS. CURRAN: Yes.
15 JUDGE WILBER: Is that denied in an order?
16 MR. BRONSTEIN: Let me respond to that, since 17 that was my motion.
t 18 I don't know if the Licensing Board formally 19 issued an order. I can say I called the Licensing Board 20 about two days before that deadline was running to see if 21 there was going to be any response to our motion, and I was i 22 told on the phone that it had been denied. ;
23 I never actually did see a --
- 24 JUDGE EDLES
- Mr. Turk, do you have any l
l 25 recollection of that?
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6930 14 14 236 1 MR. TURK: I am sorry, I don't.
{} bur 2 JUDGE ROSENTHAL: Mr. Dignan.
3 MR. DIGNAN: The Commonwealth requested it. So 4 far as I know, no written order ever appeared, and I accept 5 my brother's version of what went on in the phone call. I 6 wasn't involved.
7 JUDGE ROSENTHAL: Okay.
f 8 MS. CURRAN: Second, I believe NRC Staff counsel I
- 9 also stated that after we got the partial initial decision 10 from the Onsite Licensing Board that none of the parties 11 went to the Offsite Board and said give us some relief, wo 12 have a conflicting deadline here, and in fact NECNP and the
()
13 Town of Hampton jointly filed such a motion on April 8.
J 14 JUDGE EDLES: What was the disposition of that 15 motion?
16 MS. CURRAN: It was denied.
17 JUDGE ROSENTHAL: Was that done by order?
i 18 MS. CURRAN: It was done in a telephone 19 conference of April 14.
, 20 JUDGE EDLES: Thank you.
21 MS. CURRAN: I would also like to mention that.
l 22 the Staff's optimism expressed today about FEMA's ability to ]
l-
, 23 go forward in these hearings is somewhat contradicted by the 24 position the Staff took at the telephone conference called
(; 25 April 13th with the Licensing Board, in which Mr. Reis, t
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('7 bur 1 Staff Counsel, stated:
U 2- " FEMA has not yet received 3 full information and will-4 not at this stage be able 5 to give the Board its 6 findings completely on the 7 contention that motions have 8 been made on. I am afraid 9 we are getting to.a' situation 10 the same as we got into on 11 the safety hearings, generally, 12 where we didn't get Applicants'
(} 13 until after the initial hearings.
14 Therefore, we are not able to 15 take a position until after the 16 hearings have been completed, 17 and we are getting in the 18 same position with the Applicants 19 here in their failure to supply 20 things in a timely manner."
21 And we can supply you with a copy of that 22 transcript if you would like.
23 Finally, I would just like to make one concluding-24 remark, and that is Applicants have said that if the Board
() 25 decides not to interfere with the schedule that we will all ACE FEDERAL REPORTERS, INC.
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2 proceeding and that there will be a full opportunity to 3 litigate these due process violations here.
4 I think it is very clear to me as a participant 5 in this that the nature of the beast is that due process 6 violations are not always the kind they get on the record, 7 especially when the problem is a schedule that is so 8 compressed that in order to even make your record of appeal 9 you are borrowing time from the next obligation to make that 10 record of appeal.
11 And I very sincerely feel that we have not even 12 had an opportunity to make a decent record for an appeal of (j 13 all these errors, and that is the insidious nature of the 14 due process violation in this case.
15 Thank you.
16 JUDGE ROSENTHAL: Thank you, Ms. Curran.
17 Once again, the Staff and Applicants may if they 18 so desire file a supplemental memorandum which shall be 19 confined to the oral representations made by Intervenors' 20 counsel today on the matter of prejudice.
21 MR. DIGNAN: Your Honor, I will waive that.
22 JUDGE ROSENTHAL: All right.
23 MR. DIGNAN: I waive it for a very simple reason.
24 Other than one's argument as to whether that constituted
/"3 25 unfairness, I heard no misrepresentation from the ;
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{; bur 1 Intervenors.
2 JUDGE ROSENTHAL: Fine. Mr. Dignan, that was not 3 obligatory. It was optional.
4 And then if the Staff wishes to do so, it may.
5 As I indicated previously, it should be in the Board's hands 6 by the close of business this coming Wednesday and should be 7 served upon the other parties in such a way that they would 8 .have it by Thursday morning.
9 And, Mr. Backus, I think we gave you actually 10 until Friday to get that citation in by letter.
11 MR. BACKUS: YES.
12 MR. BERRY: Mr. Chairman, if upon further
(] 13 14 reflection the Staff determines not to file a written submission, would the Board want to be notified in' writing 15 of that fact as well?
16 JUDGE ROSENTHAL: I think it would be helpful to 17 the Board if you would be so kind as to call the Board's 18 secretary and just --
19 JUDGE EDLES: Mr. Chairman, I think it also might 20 be useful to the parties if they get a written 21 representation from you that you are not filing anything l 22 else, just so everybody will know how the game is being l
23 played. l 1
24 JUDGE ROSENTHAL: I was just about to say what I I
25 would like is a written statement to that effect served on
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l f'7 bur 1 the parties, but it would be helpful if that was preceded by i O
2 a phone call to our secretary so we will know that that will 3 not be forthcoming.
3 4 On that note, we can bring the lengthy 5 proceedings today to a close.
6 On behalf of the entire Board, I wish to thank i
7 counsel for their interesting and, I think, in full measure 8 helpful presentations today. I can say to the New England 9 counsel that due to your delay this morning I hope you have i 10 a better trip back to the Boston and New Hampshire locations 11 than you had down this morning.
1 12 On that note, both matters stand submitted.
(} 13 (Whereupon, at 4:52 p.m., the oral argument was 14 adjourned.)
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CERTIFICATE OF OFFICIAL REPORTER b
v This is to certify that the attached proceedings before the UNITED STATES NUCLEAR -REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING: PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE 4
(Seabrook Station, Units 1 and 2) 1 DOCKET NO.: 50-443-OL, 50-444-OL 50-443-OL-1, 50-444-OL-1 PLACE: BETHESDA, MARYLAND
- O DATE: FRIDAY, APRIL 24, 1987 1
were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
5 (sigt)
. i (TYPED)
MADELON P. BLOOM j
Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation g
. - _ . - - . - - .-_ . - .-.. . ._. - ~. . .