ML20234D889
| ML20234D889 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/17/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#387-4482 OL, NUDOCS 8709220225 | |
| Download: ML20234D889 (95) | |
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v TRANSCRIPT OF PROCEEDINGS
_ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD '
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In the Matter of: )
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TELEPHONE CONFERENCE, )
PUBLIC SERVICE COMPANY OF ) Docket Nos.
NEW HAMPSHIRE, et al.. ) 50-443-OL (Seabrook Station, Units 1 and 2) ) 50-444-OL i
A V
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_ Pages: 2492 through 2585
_ Place: Bethesda, Maryland Date: September 17, 1987
,6k Heritage Reporting Corporation Official Reporters O hk 1220 L Street. .N .W.
Washington, D.C. 20005 l
l (202) 628-4888 8709220225 870917
- PDR ADOCK 0500 3
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2492 0 1' ' UNITED STATES'OF AMERICA
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. :2 NUCLEAR REGULATORY COMMISSION t
3 BEFORE~THE ATOMIC SAFETY AND LICENSING BOARD' i,
4 In.the. Matter of: =)
5 ); Docket'No. 50-443-OL TELEPHONE CONFERENCE,- ) . 50-444-OL 6 PUBLIC' SERVICE. COMPANY.0F . ).
NEW-RAMPSHIRE,~et'al. )
7 ~(Seabrook Station, Units 1 and 2) )
8 9 PREHEARING CONFERENCE (Telephone) >
10 1 Thursday, 11 September:17, 1987 12- 4th Floor 4350 East' West Highway ,
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13 Bethesda, Maryland I 14 o.
The above-entitled matter came on.for hearing, y 15 pursuant to notice, at 2:10, p.m.
16 BEFORE:
17 JUDGE IVAN W. SMITH, Chairman Atomic Safety and Licensing . t'oard .
18- U.S. Nuclear Regulatory Commission Washington, D.C.
19 JUDGE GUSTAVE A. LINENBERGER, Member 20' Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission d 21- Washington, D.C.
l 22 JUDGE JERRY HARBOUR, Member Atomic Safety and Licensing Board 23 U.S. Nuclear Regulatory Commission Washington, D.C. ;
24 l 25 O. Heritage Reporting Corporation (202) 628-4888
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~2 APPEARANCES:
3' -On behalf of the Applicant: j 4' THOMAS DIGNAN, JR., ESQ.
KATHRYN SELLECK, ESQ.
5' Ropes and Gray 225 Franklin Street l 6' Boston, Massachusetts 02110 L 7 l On Behalf of the Nuclear Regulatory Commission:
8
'SHERWIN TURK, .ESO.
9 Staff Nuclear-Regulatory Commission 10- Office of the-Executive Legal Director U.S. Nuclear Regulatory' Commission I L il- Washington, D.C. I 12- On Behalf of FEMA:
- 13 H. JOSEPH FLYNN, ESQ.
FEMA-
. S-[_]J 14 On' Behalf of NECNP: l
.15 DIANE CURRAN, ESO.
16 Harmon and Weiss 2001 S Street, N.W.
17 Washington, D.C. 20009 18 On Behalf of the Town of Hamptonn Falls and SAPL:
19 ROBERT BACKUS, ESQ.
116 Lowell Street 20 Manchester, New Hampshire 03101 I
21 on Behalf of Massachusetts Attorney General:
22 FRANK OSTRANDER, ESQ. -
ALAN FIERCE, ESQ. 1
- 23 Massachusetts Attorney General Office 1 Ashburton Place,
' 24 Boston, Massachusetts 02108 ,
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/~'s 1 l t.J 2 APPEARANCES (Cont'd):
of Itampton: I 3 On Behalf of Town 4 MATTHEW BROCK, ESQ.
Shaines & McEachern, P.A.
5 25 Maplewood Avenue .
Portsmouth, New Hampshire 03801 6
On Behalf of Town of Kensington1 l 7
SANDRA GRAVUTIS, ESQ.
8 SANDRA MITCHELL, ESO. I Kensington, Massachusetts l 9 (603) 394-7847 10 !
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2- WITNESS: EXAMINATION:
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5 EXIIIBITS : PAGE DESCRIPTION 6
None.
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2 JUDGE SMITH: First, I want to express our 3 appreciation for so many of the parties being able to join us 4 on such short notice. We wanted to make our announcements as 5 early as possible, so that our information will have maximum i 6 benefit.
7 As-you may have inferred by now, I am the Chairman'of
+8 the Seabrook Licensing Board, if you' nave not received ths s
9 notice. My name is Ivan Smith and Judge Hoyt, is hospitalized 10 and she expects to be released soon. She explained to me that 11 she wished to be relieved of this case, because she was 12 concerned thatiduring the -- as the case was ongoing, she may 13 have to, seek additional treatment for her health and she did
' not want to endanger the proceeding.
14 15 So, this was a good time to change chairmanship and 16 she recognized that and asked to be relieved on that basis.
17 Present with me, is Judge Linenberger and Judge 18 Harbour. I think that you have met both of those before.
19 Judge Linenberger is new to the proceeding, as a matter of 20 fact, I understand.
21 First, we wish to\announce that -- we will go off the 22 record, just for a moment.
23 (Off the record.)
24 JUDGE SMITH: Back on the record.
25 The first item of business is that we wish to l (A_)
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(} 1 announce that the hearing will begin on October 5, at 1:00 With that l
2 p.m., at the place initially designated.
3 information, I am going to review the other agenda items that j 4 the Board hopes to cover this afternoon.
5 One is, the next item is the objection by e
6 Massachusetts Attorney General, concerning the Applicant's 7 proposal for the Order of Proceeding. We wish to bring to the 8 attention of the parties that not all testimony has been
.9 served; that apparently not all notices of appearances have 10 been served, and filed; we wish to cover the need for Exhibits;
- 11 the manner in which they should be offered and identified; we 12 have some housekeeping matters relating to direct testimony, 13 bulky documents and we will finally discuss the need for cross-
-O 14 examination plans. And finally we wish to bring to the 15 attention of all the parties and the attorneys, the requirement 16 for dignity and decorum set out in Section 2.713 in the Rules.
17 Going back to the first or second agenda item, the 18 Board has decided that it wishes to proceed with the hearing on 19 an issue-by-issue presentation. And that is that we are not 20 accepting the Applicant's proposal, which would have us hear i
21 all Applicant's witnesses and receive all of Applicant's 22 evidence on all issues before we proceed with the other 23 parties.
24 And we wish to have an issue-by-issue presentation to 25 the extent that that is feasible. We hope this afternoon to o Heritage Reporting Corporation (202) 628-4888 l
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}' 2 1 decidefwhat needs to be done to accomplish this. And our evaluation, and particularly. Judge. Harbour's evaluation, of tho t
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.3l ' proposed testimony as presented, indicates to us that-4 presentations divided according to issues, seems to be entirelyi 5 . feasible.
'6 The presentation of'the, order of presentation of the 7- evide,nce also leads us to the recognition of,the'need to have
-r 8 lead' interveners,.as to our particular contentions and issues 9 .and~ parties. Previously,.Mr. Turk,. legal counsel representing 10 the NRC Staff, has volunteered to be the Chairman of the effort-1 11- to organize-the parties into an issue-by-issue order of 12 presentation.
13 We will call upon Mr. Turk, if he is still-willing to .
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\' 14 do that to proceed'with that undertaking. And along that line, 15 I wish to announce that I did have an ex parte communication 16 with Mr. Turk yesterday, to tell him, to inquire as to whether 17 he was making any effort along that line and to inquire as to !
18 whether he would be willing to do that.
19 In general, except for -- !
20 VOICE: May I ask if the Executive Session is still 21 on?
22 JUDGE SMITH: Who is speaking?
23 Who is that voice inquiring about the -- apparently 24 we dropped somebody here. Let's call the roll.
25 VOICE: Sir, I think that we are waiting to go back
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1 on the record. Incidentally, are you still representing both
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2 SAPL and Hampton Falls? )
3 JUDGE SMITH: Gentlemen, please don't have any --
4 listen, would you please, gentlemen -- i l
5 JUDGE HARBOUR: They are not hearing you, that is the j 6 problem.
i 7 You lost everything. ;
8 JUDGE SMITH: Gentlemen, I have learned that my '
9 speaker phone has been on moot, for the last several minutes.
10 Can anybody hear me?
11 VOICE: Off and on.
12 JUDGE SMITH: I am going to take the roll again. I 13 Mr. Dignan?
O 14 MR. DIGNAN: Yes, Your Honor.
15 JUDGE SMITH: Mr. Flynn?
16 MR. FLYNN: Flynn, yes, here.
17 JUDGE SMITH: Mr. Turk?
18 MR. TURK: Yes.
19 JUDGE SMITH: Ms. Curran?
20 MS. CURRAN: Here.
21 JUDGE SMITH: Mr. Backus?
22 MR. BACKUS: Yes, here.
23 JUDGE SMITH: Mr. Ostrander?
24 MR. OSTRANDER: Yes, here.
25 JUDGE SMITH: And Mr. Brock?'
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' f'N ' 1. MR. BROCK: Here.
L'Q 2' . JUDGE SMITH:' And I' understand that-Sandra Gavutis~1s 3 'on.too?
4 MS. MITCHELL: Sandra Mitchell.
l 5- ' VOICE- 'And attorneys;from the Massachusetts' Attorney; V
l' 6 , General's Office.
, -7 JUDGE SMITH: I am uncertain as to when my remarks' j 8- were mooted, muted. Let me began again. Did I introduce myself 9 in yourLarea?
10 VOICE: Yes,1yes.
11 JUDGE' SMITH:' And'did I report the fact that Judge. y 12 'Linenberger and Judge Harbour were present?
, - 13 VOICE: Yes.
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-14 JUDGE SMITil: Did I report the fact that we were 15 setting the' hearing for October 5th, at 1:00 p.m.?
16 VOICE: No.
17 JUDGE SMITH: All right, here is where we begin. That 18 is the case, the hearing will commence on October 5th, at 1:00 19 p.m. j
. 20 And I will identify other agenda items that the Board 21 . hopes to cover, this afternoon. The next item will be the 22' Applicant's proposal for the order of presentation, and the l 1 23 Massachusetts Attorney General's objection to that proposal. -
24 And we wish-to cover the preparation and ser'vice of -l I
25 direct testimony; we wish to remind all lawyers that they must !
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! 3 handling of papers, direct testimony and exhibits at the 4 hearings.
l 5 And we will cover and announce the requirement that l l
6 cross-examination plans be filed. And finally, we wish to 7 review with the parties the requirements of section 2.713 of 8 the Commission's Rules of Practice, concerning the need to have 9 a hearing that is conducted with decorum and dignity. !
10 Going back to the first issue that I described, the 11 Doard has decided that it prefers to have an issue-by-issue i 12 presentation, that is in contrast to Mr. Dignan's proposal that l 13 the Applicant present all of its evidence,-followed by the
() 14 other parties.
l 15 What we hope to cover this afternoon, is what needs 16 to be done to accomplish that. It is our view, as we have seen 17 the submittals so far, that the issues seem very divisible and 10 it seems that the testimony and the exhibits can be divided 19 according to issues with a reasonable amount of effort.
20 And in examining this problem, we have identified the 21 need and desirability to have lead interveners appointed as to 22 particular issues and contentions. Yesterday, I had an ex 23 parte conversation with Mr. Turk, in which I inquired as to 24 whether he would be willing to serve as the Chairman with an )
25 undertaking to arrange the presentation of evidence, in
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7 2502 1 accordance with our ruling this afternoon, and that is, issue-('")i 2 by-issue.
3 I wish to report that fact that it was an ex parte 4 conversation. Judge Harbour has analyzed the filed testimony 5 to date, and he will identify the issue categories that the 6 Board wishes the parties to accept in the presentation of their 7 cases. We do have one general rule, however, and that is 8 deference to the Applicant is in order, as it comes to how the' ,
9 Applicant wishes to present its case. ,
10 And that is, that we would give deference to the 11 Applicant as to the order in which the issues are heard. That 12 is deference, that is not surrender, however, that is just a 13 recognition that the Applicant has the largest burden here and 14 does have the burden of proof.
15 Going back to the earlier item, there is -- let me 16 hear from the parties who have an intfrest in this matter.
17 Does it seem to be the consensus of the interveners that this 18 case is divisible, issue-by-issue for the evidentiary i 19 presentation?
20 Anybody, but fromLhere on in, would each person be 21 careful to identify by name, t'nemselves, when they begin to 22 speak? t 23 As a matter of fact, let me, call upon the parties.
I 24 Ms. Curran, what is your view on this?
25 MS. CURRAN: I think that they are reasonably l
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divisible, but I'think'that the order or presentation -- some of the issues do overlap and it may help to put some issues 3- before others, in' order to lay the groundwork to get toJother 4 issues, at least in the intervenor's case.
5 JUDGE SMITH: That may very well be the case, and 6 when Judge Harbour brings these categories of issues up, that 7 would be the appropriate place to raise it.
'8 Mr. Backus?
9 MR. BACKUS: We agree that the case would be better 10 presented going issue-by-issue.
11 JUDGE SMITH: Mr. Ostrander? i 12 MR. OSTRANDER: We have the same agreement, and I 13 would second Ms. Curran's comments. l t 14 JUDGE SMITH: Mr. Brock? l 15 MR. DROCK: We would agree to an issue-by-issue 16 format, Your Honor.
17 JUDGE SMITH: Then I am still uncertain, who is I 18 representing the Town of Kensington, here?
19 Is there somebody who can hear me who is representing l
20 the Town of Kensington?
21 VOICE: Yes, sir.
22 JUDGE SMITH: And who is that?
23 MS. MITCHELL: Mitchell.
24 JUDGE SMITH: Sandra Mitchell?
25 MS. MITCHELL: Yes. l O Heritage Corporation Reporting (202) 628-4888 l
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O 1 JUDGE SMITH: ' k' hen ~ Sandt:a , Gavulis is not on,.is that d.'-
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. 'MS. MITCHELL: SNe -is ,;. che is. on.
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JUDGE 3MITH: Lut you'aYo representing?
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MS. MITCHELL: Yes.
- 6 JrJDdE SMITH
- Do you care to'exptess your preference?-
7' MS. M[1'CHELL :
We-concur. d th Diana and Mr. Backus. ,
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8 JUDGC SMITHt Mr., Turk? 'l 9 MR..TURKr No hhjection.
10 JUDGE SMITH: And Mr, Flynn?
'11 MR. FLYNM: No objection.
12 JUDGE SRITH: Now, Mr. Dignan, you proposed a L3 different appro6ch?' We wil] hhar from you, if you wish to be 14 heard?
15' 'HR. DIGNAN: Well, no, hour Honor, as I said in my 16 letter, I realized that.this is a netter of discretion 1
17 committed to the Board, and certainly it is no abuse of the j 18 Board's. discretion to so order, and we will ahide by the order. l 1$ JUDGE SMITHt Mr. Turk, did I understand you 20 correctly, that you are willing to organize the parties into an 21 endeavor 'to. -- as an issue-by-issue presentation?
.22- MR. TURE: "es, I am. ,
23 JUDGE SMITH: And now, we will ask Judge Harbour to
.. 1 24 review his view, the Board's view of the insue categories and 25 we will see if we can arrive at a consensus on that?
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('h. 1 JUDGE HARBOUR: I had done this - this is Judge )
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2 Harbour, and I had done this analysis some time earlier, simply 3 to try to organize in my own mind, how.many separate issues f 4 there'were and to group the contentions.
5 What I will do is that I will read off the issues 6 that I came up with'and then I will indicate which contentions 7 it is my understanding fall within each of these issues. Now, 8 these are not set in stone and we will also supply a chart of 9 this when we issue an order memorializing this conference.
10 First -- and the order that I have has nothing to do i
11 with the order of presentation, it is just the grouping of the l 12 issues.
13 Well, first I have the ETE issues. And I have under 14 this, SAPL.31, SAPL 34, Town of Hampton TII.
15 The second, I have, Sheltering. I.have NECNP 16 ' Contention RERP-8, SAPL 16, and Town of Hampton VIII.
17 And I have a category which I call Notification and i 18 Communication and I have under that, NECNP Contention NHLP-4, 19 and Town of Hampton Falls 4.
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20 And I have another category called Response Personnel 21 or the Adequacy or Allegations of the Inadequacy of the i
22 Response Personnel. And under that, I have NECNP Contentions 23 NHLP-2, and SAPL 8 and 8-A, and Town of Hampton VI, and Town of l 24 Hampton Falls 2, Town of South Hampton 2, and Town of 25 Kensington 1.
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N : 1 And Transportation Availability, I have under'that
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2 NHLP 3 6, of NECNP, and SAPL 18 --
4- MR. TURK: Your Honor, I'am sorry, the phone cut ~out, 5 could you begin on this category?
6 JUDGE HARBOUR: The Transportation Availability?
7 MR. TURK: Yes, sir.
8 JUDGE HARBOUR: All right, under Transportation 9 Aval'1 ability, I have NECNP Contention, NHLP 6, and SAPL 10 Contention 18,.25, and 37.
11 And Town of Hampton Contention IV. Town of South 12 Hampton 8. And then I have Emergency Support Services as a 13 category, and I have under that, Town of South Hampton 3, and O
\/ 14 Town of Kensington 6.
15 I have a category Reception Centers and Host Plans, 16 and under that I have SAPL Contentions Number 7 and 33.
17 And then I have a Mixed Issues Contention which is a 10 Contention all by itself, which addresses at least three 19 separate issues, mostly duplicated elsewhere above, but that is l 1
20 SAPL 15.
21 And that includes the 26 surviving, it covers the 26 22 surviving admitted Contentions.
23 And now, I would like to ask Mr. Dignan, to explain 24 what categories, or how he feels that the category that he had l
25 listed as Letters of Agreement, if he could see how that would
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1 correspond to different parts of'the organization of issues
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2 that I have just presented.
3 Mr. Dignan?
4 MR. DIGNAN: Well, I think that if I hear you
.5 correctly, Your Honor, you -- and I am sorry,.if I did not hear.
6 you fully -- the phone was clicking.
.7 The question is, how our Letters of Agreement would i 8 spread across the issues, or the categories that you have ,
i 9 enumerated?
10 JUDGE HARBOUR: That is correct, or can you tell me 11 which contentions would fall under your category of Letters of 12 Agreement?
13 MR. DIGNAN: Okay, let me just have a moment here.
k- 14 JUDGE HARBOUR: I believe that by and large a lot of 15 these topics are quite similar except for that category and 16 also for the one which I call which I call Mixed Issues, which 17 has only the SAPL 15 Contention.
18 MR. DIGNAN: I need to get a piece of paper, that I 19 don't have in front of me, Your Honor, excuse me. .
1 20 The ones that we covered in Letters of Agreement 21 would have been SAPL 15, in part, or really in whole. And 22 South Hampton III, and the last one is Kensington VI.
23 JUDGE SMITH: This is Judge Smith again, and I do not 24 have the familiarity with those contentions and issues that I 25 really need, which is one of the reasons for postponing the
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~Y 1 start of this hearing. The parties'should feel free, to the (O"
2 extent that they can, to comment upon those categories now.
3 MR. FLYNN: This is' Joseph Flynn and I would like to 4 ask;the question and I am sure that you have already presented 5 this information but I was not able to write fast enough to get 6 it'down.
7 We have, in our testimony, we have grouped'in one 8 category, Contentions having to do with the Transient Beach 9 Population, mainly Revised Hampton Contention VIII, and SAPL 10 Contention 16 and HECNP Contention REREP 8. Were those, Judge 1
11 Harbour, were those in your category entitled, Sheltering? j 12 JUDGE HARBOUR: That is correct.
13 MR. FLYNN: Okay. ;
14 JUDGE SMITH: Ms. Curran, you had indicated that you' 15 would have some comments on your. order of presentation when the 16 issue categories were identified.
17 Do you wish to comment?
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MS. CURRAN: Really my comment arises from 19 conversations with Massachusetts, and maybe I should take that 20 up with them. l 21 JUDGE SMITH: Now, we are leaving it to the parties 22 with the -- as I stated -- with deference to the Applicant as 4
.23 to order to work out the order of procedure for the i
24 presentation of these issues. !
25 And if it cannot be worked out, of course, you will Heritage Reporting Corporation (202) 628-4888
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.2 the' parties should be able to. agree as to the sequence in which 3 these orders, these issues are heard.
4 And if there is an objection to the categories, 5 themselves, please bring them to our attention immediately, 6 without delay, after you have had a chance to examine them, 7 MR. OSTRANDER: This is Frank Ostrander from 8 Massachusetts.
9 JUDGE SMITil: Yes?
10 MR. OSTRANDER: I don't think that we have any 11 objection to this order.
12 MR. FLYNN: This is Joseph Flynn, again.
13 The one comment that I would like to make is that we o 1
\~# 14 'have structured what amounts to three different panels, even 15 though we presented all of our testimony in a single document.
16 And that works out fine, it is just that the panel on i
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17 Letter of Agreement issues, well, I am not expressing myself 18 too clearly.
19 The Letter we have grouped Letter Agreement issues as 20 being presented by one panel, which is different than the 21 composition of the other panels. So that it would make our 22 presentation easier and make cross-examination easier, if all 23 of the Letter of Agreement issues would be heard as a single 24 group and I can list -- in fact, we have listed on page 3, of i
25 our pro-trial testimony which contentions that we are talking Lo
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2 They include all of the ones that Tom Dignan i l
3 mentioned a few moments ago, plus the Revised Hampton-4 Contention IV, NHLP-2, Basis D, and NHLP-6, Basis D,'E, and l
5 Host Plan 1-E and SAPL Contention 25.
6 VOICE: Your Honor, Host Plan I is not in the case.
7 JUDGE SMITH: All right, who is speaking just there?
8 MR. DIGNAN: I am sorry, that was Mr. Dignan, I 9 apologize.
10 JUDGE SMITH: Are you making now, a request, Mr.
11 Flynn, that Letters of Agreement be set out as a separate l 12 presentation segment?
13 MR. FLYNN: Yes, it would be convenient.
14 JUDGE SMITH: Okay.
15 MR. FLYNN: See, the reason for it, is that Bruco l 16 Warren is one of our witnesses, but there was a period of time, 17 when he was working for HMM Associates, a consultant to the 18 State of New Hampshire and he was working on obtaining Letters 19 of Agreement, so that we want to remove him from any testimony i 20 having to do with that issue. !
21 That is our only concern.
22 JUDGE SMITH: The Board, as Judge Harbour stated, the 23 Board does not have any fixed views on it. We are particularly 24 interested in what Mr. Backus' attitude on Letters of Agreement 25 might be.
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2511 1 JUDGE HARBOUR: 'And Ms. Curran.
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2 JUDGE SMITH: And Ms. Curran. If you recognize that 3 as a reasonable issue for presentation, or segment for 4 presentation.
5 MR. FLYNN: I will comment on that in just a moment, 6 Judge Smith.
7 MS. CURRAN: I have a question for Judge Harbour and 8 this is Diane Curran.
9 And I wonder if you could clarify what is the i
10 distinction between the Transportation Category and the j 11 Emergency Support Services Category?
12 JUDGE HARBOUR: The Emergency Support Category is, as 13 I understand it, these are things like tow trucks and snow plow 14 availability and things of that nature.
15 Transportation had to do with the availability of 16 buses and things of that sort. I would assume that NHLP IV 17 would be in the Transportation Category and I don't see any 10 NECNP Contentions within the Emergency Support Services, at the 19 present time. I 20 MS. CURRAN: I think that NHLP-2 might have covered 21 some of those issues. I would have to go back and look.
22 JUDGE HARBOUR: All right.
23 JUDGE SMITH: Could we leave it -- I hesitate to ask 24 for a commitment on that issue right now, if you have not had l l
25 an opportunity and if you are not prepared.
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- ti - 1 Can we leave it this way, asking_.that the. parties who G
2 are primarily concerned with those issues, if you possibly can, 3 give Mr. Flynn what he is asking for, and if'you cannot, go 4 back to the Board.
5 The Board does not have any strong feelings on it.
6 JUDGE HARBOUR: Isn't this part of what. Turk is going 7 to do?
8 JUDGE SMITH: Yes, and Mr. Turk is going to organize 9 people and Mr. Turk, along that line, although these are our !
I 10 ideas of the issue categories, if in negotiations with the l 11 parties should suggest better ones, I am sure that we would be l l'
12 prepared to accept that.
13 MR. TURK: All right, along that line, Judge Smith, I 14 was thinking that it might be useful if I fly up to Boston or 15 .the seacoast area on Monday and get together with all of the .
l 16 parties and see if we can hammer out what the proper categories !
17 should be?
18 JUDGE SMITH: Well, clearly the earlier that this 19 gets resolved, the less, the more convenient it will be for the 20 witnesses and the parties, and I would appreciate it, if you 21 could give it your high priority attention. I know that you 22 will.
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23 MR. TURK: All right, that is what I would propose to i I
24 the parties, and maybe we can confer at the end of this !
25 conference call, to see if Monday is a good day and work out a 1
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3 issues, and that is on the one hand, I recognize that it needs 1 l
! 4 to be done and we probably all should have worked towards this
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l 5 sooner, but now that testimony has been presented, according to j 1
1 6 different theories of how the issues are broken up, if we do !
7 come to some common understanding of the issues,- which, I think j 8 that we must, then the testimony may have to be reorganized 9 according to the issue lines that we agree upon. '!
i 10 JUDGE HARBOUR: FEMA is adopting only one is a big 11 problem.
12 JUDGE SMITH: Judge Harbour is under the view that 13 the only real problem that might be presented is FEMA's b 14 testimony.
15 That the other items of testimony seem to have 16 logical dividing points. And like almost as if you can tear 17 them apart, but we recognize that it might be necessary, that 18 it will probably will be necessary to re-present your 19 testimony.
20 Now, you don't have to worry about it being fancy.and 21 in final form. It can, in fact, be cut and paste, or whatever 22 method you believe satisfies this approach, with one caveat, 23 this is not an invitation or a license to make substantive 24 modifications to testimony.
25 Anybody that undertakes that, should do it as a O Heritage Reporting Corporation (202) 628-4888
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(~N 1 . separate matter, recognizing the burden that you have for late ,
^% ? \
2 changes to the substantive nature of your testimony.
3 We are only talking about what has already been 4 presented and broken down according to the issues that Judge 5 . Harbour has set out, or issues that you could agree upon 6 yourself. '!
7 Is there any question about that?
0 MR. BROCK: Your Honor, this is Mat Drock, from the 9 Town of Hampton, and just so that I am clear on that, it'would 10 not require more than, in your view, simply a cut and paste --
11 meaning that we have expended a good bit of time putting the 12 testimony together, as is - and would not want to be asking
,, 13 our clients to shoulder some significant financial cost 14 restructuring testimony at this point.
15 JUDGE SMITH: We don't see that that is required. A 16 cut and paste is fine, providing that it is legible and 17 logical.
18 JUDGE HARBOUR: Or even we could have some testimony i
19 from an adjacent overlapping contingent out of sequence. That i
20 is -- ]
l 21 JUDGE SMITH: Right and as Judge Harbour just pointed !
22 out, that this -- you do not have to achieve perfection. If 23 some issues will overlap, we can take an issue out of sequence I l
l 24 or a witness out of sequence, if doing that, facilitates the i \
25 parties, and makes issue-by-issue presentation feasible.
lleritage Reporting Corporation (202) 6.28-4800
2515 JUDGE HARBOUR: Your Honor, if one witness is
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1 2 ' covered --
3 MS. GAVUTIS: Your Honor? ,
4 JUDGE SMITH: Or as Judge Harbour -- let me interrupt 5 the speaker. If you have a witness whose appearance is'not. l 6 easy -- a travelling witness for exauple -- and his testimony 7 covers more than one issue, we certainly would not expect you 8 to bring him back at great inconvenience. We are just asking 9 you to adhere to the principle of an issue-by-issue 10 presentation.
11 Now, who is the speaker that I cut off?
12 MR , DIGNAN: Tom Dignan, and I was going to ask the 13 question, which I think might facilitate discussion among the
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14 parties. I assnme that we can all assume as a logal matter, 15 that assuming a good faith effort, by a party to break the 16 testimony up along the categories agreed upon in presenting it 17 that way, then an inadvertence or an inability to squeeze 18 something in, in exactly the right category, will not carry 19 with it some kind of a penalty like a refusal to hear the case?
20 JUDGE SMITH: Well, no, we are talking now about <
21 procedural matters, and I assume good faith on everybody. I 22 don't see any problem there, Mr. Dignan. !
23 MR. DIGNAN: I concur. I don't either and I assumed 24 that was the rule, because I think that one of the legitimate l 25 concerns that a lawyer can have in these, is to be sure that Lo
{ Heritage Reporting Corporation (202) 628-4888 l
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2516. J cl' all'of'his?testimonyLis in the right category, and not be I 2' l worried:about a' penalty;for-it, if:it-is too' inadvertent'and 3 something gets 'into.the. wrong' category.
4 ' JUDGE SMITH: 'You see what we already have is full' '.)
~
5' . notice by the parties to each other as'to'the nature of the.
'6 testimony.
7 We are only asking now for virtually a physical; .
j 8 reorganization.
, 9 JUDGE-HARBOUR: And we don't even require that.
.10' JUDGE. SMITH: -And we. don't even, in all; instances, 11 require that. We;just require that.that objective be..your 12 . goal, that-is.all.
13 Now, ' that raises the next point' abouti lead
' O- 14 interveners. We have not mentioned this.in the past,.but this 15 is'an ideal case for' lead interveners. We have noticed that 16 different interveners and different parties, many parties.have 17 testimony.on the Contentions of other. parties. And.we would 18 hope, that as you negotiate the issues, and the order of 19 presentation, that as to each issue, a lead intervenor be 20 designated, i 1
21 Normally, we would expect the proponent, the owner, 22 so to speak, of a Contention, to be the lead intervenor on that
, 23 contention. But that is up for you to decide. And we will 24 require a good faith effort to establish lead interveners as to 25 particular issues and Contentions, I
o Heritage Reporting Corporation I
(202) 628-4888 r _ _ _ . _ . _ ._ ___---__---_---
I 2517 1 Now, there will be exceptions to that. As we stated, (N7 2 it is a good faith effort. And'if a particular party, in good )
~
3 faith, after having tried, believes that their case cannot be i 4 pre-presented fairly by some other person who is a lead l J
5 intervenor, they should seek the Board's permission to 6 represent themselves, as to the issue or subissue that they 7 wish to do so.
8 And furthermore, we would always allow interveners, 9 or parties who are not the lead intervenor on an issue, to
.10 supplement the record, where there is a failure.
11 We require solely, a good. faith effort, to designate 12 a lead intervenor as to each issue.
13 MR. OSTRANDER: This is Frank Ostrander from 14 Massachusetts.
15 JUDGE SMITH: Yes?
16 MR. OSTRANDER: It would be helpful if you could i
17 elaborate on the duties, responsibilities and privileges of a 18 lead intervenor? l 19 JUDGE SMITH: All right.
20 The lead intervenor would have: number one, the l 21 responsibility of working with the other interveners on that jl 22 issue, to gather up all of the questions and issues to be 23 covered by cross-examination. And each party would have to make 24 an effort to provide the lead intervenor with the questions and '
25 the issues they wished covered by cross-examination.
I Heritage Reporting Corporation (202) 628-4888 l
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[ 1 Now, that is your responsibility to see that that'is -
2 done. Other than that, you can organize yourself as you see 3
3 fit. I would see procedural advantages-to lead intervenor, and !
4 that'is, as to the scheduling of an issue, we would be able to l 5 contact a. lead intervenor, who would contact the other ,
6 interveners, on that issue, for procedural matters, too.
i 7 Do you have any questions about that,'Mr. Ostrander? ;
8 MR. OSTRANDER: Well, let's say that there is an 9 issue that-the Applicant has put his case on, do we all get to l l
10 cross-examine?
11 JUDGE SMITH: No. That is exactly the point.
12 MR. DIGNAN: Your Honor, I could not hear Mr.
13 Ostrandor.
) 14 JUDGE SMITH: Mr. Ostrander, can I be heard better, 15 easier?
16 MR. OSTRANDER: Yes.
17 JUDGE SMITH: Well, Mr. Ostrander said, assume that 18 the intervenor puts on cross-examination, and as to a j i
19 particular issue, do all of the interveners get to cross-20 examine?
21 And I said, no, that is exactly the point or the 22 purpose of a lead intervenor. As to that particular issue, the 23 load intervenor undertakes the primary responsibility of cross-24 examination.
1 25 It is only when other intervonors, after a good faith i
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. t.s 1 effort, cannot get the representation they think that they need 2 through a lead intervenor, and convinced the Board of that; or 3 when the lead intervenor fails to cover a point and that could 4 not have been anticipated, or whatever surprises might come up.
5 But in preparation for the hearing, we do require a 6 good faith effort, to work through a lead intervenor for cross-
'7 examination purposes.
8 And cross-examination plans should reflect that. We 9 . will come to that later. ]
i 10 Any questions? l i
11 MS. CURRAN: Yes, this is Diane Curran. l 12 I'would just like to suggest that for some of these I
,_ 13 issues, where there is kind of a grouping of several parties'
!)
' 14 Contentions, that we all come to the issue from different 15 perspectives and with different strengths. I am comfortable i
16 with the idea of a lead intervenor kind of organizing how the 17 cross-examination is going to go, and making sure the points 10 are covered.
19 But I guess I would like to be able to break-up the 20 cross-examination between several interveners, depending on 21 which aspects they want to go at. And I was wondering if that i 22 would be acceptable?
23 JUDGE SMITH: Well, --
24 MR. BROCK: -- Your Honor, this is . Mat Brock from i
l 25 Hampton and we would agree with Ms. Curran's view on that. We f
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(~'; . I would like to reserve our rightito cross-examine.
ss
- 2. JUDGE SMITH: Well, let me say that there.is no right 3 to cross-examine, as such.
4 We do not wish to give a blank check to every 5 intervenor cross-examining on every issus, as to which they may 6 have a different perspective. i I
7 We require, that, at first, you make a good faith l 1
8 effort to have your cross-examination done by a lead 9 intervenor. And if, after that good faith effort, it is your-
'10 judgment,.that that cannot be done, and you represent that to 11 the Board, that you have.tried, then we will entertain a i 12 separate cross-examination request.
13 Now, Ms. Curran, and Mr. Brock, do you wish to 13
~# 14 comment; do you have any questions about that?
15 MR. BROCK: Your Honor, are you saying that, at the 16 hearing, if it is our view, that certain material has not been ;
i 17 covered at that point, and only at that point, would we have an 18 opportunity to present to the Board, a request that we be 19 allowed to cross? ,
i 20 JUDGE SMITH: What predicate are you assuming, Mr.
t 21 Brock? What will have transpired before hand?
i 22 MR. BROCK: That a lead intervenor will have been :
23 designated and will have conducted a cross-examination, and 24 there will be issues, or points, or whatever, that we would 25 like to see raised, or expanded upon, or whatever, which the O Corporation Heritage Reporting (202) 628-4888
'1 2521 J lead intervenor did'not cover.
( l 2 JUDGE SMITH: Right., You left out a necessary 3' predicate. And that is, also,.that you have made a good faith 4 effort to work with that lead intervenor, to provide that lead 5 intervenor with your questions, and your concerns, and your 6 area of cross-examination. All of that having failed, then we 7 certainly will not deny the opportunity for a person to 8 confront the evidence. !
9 But we require a good faith effort to try to get a 10 lead intervenor to reflect your questioning.
11 MR. BROCK: Your Honor, I would just make one more 12 point on that, and that is, as Ms. Curran pointed out, I think I 13 interveners come with different views and strengths to this O 14 proceeding, and certainly with respect to the Town of Hampton, 15 the idea of another intervenor leading cross-examination on i
16 issues which might involve that particular town, I think that i i
17 it is not fair to expect another intervenor to have that 1 10 background going into the case.
19 And that is our concern.
20 JUDGE SMITH: Well, I appreciate the concern and 21 there certainly may be particular issues, that are-so unique to 22 that intervenor, and so unique to the Town of Hampton, that 23 only its representative can do it correctly. But the only I i
24 thing that we require is that you look at the issue and you 25 look at the testimony and you see, you make a good faith effort f
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1 'to turn it over to a lead intervenor.
2 We don't ask you to ever abandon your professional 3 responsibility to represent your client. 'We ask, only, a good 4 faith effort, but we insist upon a good faith effort.
5 MR. BROCK: Yes, Your Honor.
6 MR. OSTRANDER: This is Frank Ostrander, again.
7 JUDGE SMITH: Yes, Mr. Ostrander.
8 MR. OSTRANDER: Sir, there are two issues where I am .
9 afraid that this might be somewhat complex. I cannot say that 10 we won't try to make a good faith effort, but I just want to l 11 point out to the Board, that on the ETE issues, and the I
12 Sheltering issues, there is a great deal of testimony.
,,. 13 MR. BROCK: Your Honor, we cannot hear Mr. Ostrander.
t
) 14 JUDGE SMITH: Mr. Ostrander said that on the ETE 15 issues and the Sheltering issues there is a great deal of 16 testimony. And there may very well be.
17 But let me remind you, putting the lead intervenor 18 concept aside -- for a moment, we will return to that -- but 19 oven if we did not have a lead intervenor, we would not allow 20 interveners in sequence, to ask questions that have already ;
21 been covered.
22 See? So, you are not losing an awful lot by the lead 23 intervenor approach. You are simply making sure that there is 24 organization and thoroughness to it.
25 Now, Mr. Ostrander, did I cut you off, sir?
Heritage Reporting Corporation (202) 628-4888 1 l
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(J 1 MR. OSTRANDER: Well, you restated-my question, and 2 answered.it. I think -- I just want to caution the Board, 3' that on those two issues, Sheltering and ETE, there is a great 4 deal of testimony from a great many experts, and I think a i
5 great many of the parties are involved in those issues. l 6 JUDGE SMITH: Well, let me review my last remark.
7 Let's take a hypothetical case. And let's say, that 8 through lot or alphabetical order, or whatever it may be, we 9 begin the cross-examination of a panel. Once a question is 10 asked and thoroughly covered by the cross-examination of the 11 first questioner; the second questioner cannot duplicate that 12 cross-examination.
13 Therefore, it is in your best interest, to make sure 14 that the first questioner, you made a good faith effort for the 15 first questioner to cover your perspective and your point of 16 view.
17 Now, nothing we say along this line is ironclad.
18 Cr.~.-examination, we recognize, is sometimes an art; sometimes l 19 there are new ideas that have come to your mind that were not 20 available -- there are many reasons why you could represent to 21 the Board, that you have to cover an area of cross-examination, 22 outside the lead intervenor approach. And we will listen to ,
23 those arguments.
24 But you must have made a good faith effort to have a 25 lead intorvenor represent your questioning.
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VOICE: Judge Smith?
2 JUDGE SMITH: Yes? Who is speaking, please? j 3 MR. BACKUS: This is attorney Backus for SAPL.
4 JUDGE SMITH: Yes, Mr. Backus.
. t 5 MR. BACKUS: First of all, I am only getting about 6 half of this. I am not picking up Mr. Ostrander, at all, when 7 he speaks and only occasionally, Mr. Brock.
8 I do hear you and I do hear Mr. Dignan. i 9 I just have a suggestion and I would like to offer it 10 to the Board, sir.
11 You put this hearing off until October 5th -- we all i
12 had next week, at least tentatively set aside in our calendars j i
13 -- and'I wonder, sir, if'the Board would consider holding a O 14 pre-hearing conference, where we can all be together, face-to-15 face on Monday, since that time has been reserved?
16 And perhaps also consider taking limited appearances !
17 at that time?
i 18 JUDGE SMITH: I will answer your second question, 4
19 first, Mr. Backus. l l
20 As to the limited appearance problem, the Board, )
l 21 before I became Chairman, decided not to accept limited l l
22 appearances orally. They made it clear that limited 23 appearances, in writing, will be welcome. And I have not 24 talked to the Members of this Board. I see no reason to upset 25 that ruling.
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(} l' And I miglit note, that, as to you, Mr. Backus, you 2 and your clients will have every opportunity to be heard, and I 3 do not really recognize that you are the person to raise the 4 issue for others, 5 Second, as to having the~ pre-hearing conference, up j 6 there, on Monday, one of the reasons why we are extending the 7 time, is so that I can come up-to speed. And if there is a 8 question or subject matter that you have missed, today, we will 9 be patient; we will go over it. We will even have another pre-10 hearing conference tomorrow. But to take the necessary time to 11 travel to and from Concord, will take time that I really need, 12 very much, to get up to speed on the case'.
,_ 13 Now, iet's go back. Is there an area that you feel,
~'
14 Mr. Backus, that you were not fully informed in? I think, 15 that, in each instance, I restated Mr. Ostrander's question i
16 adequately.
17 MR. BACKUS: You may well have done so, sir, I just 18 could not hear Mr. Ostrander.
19 JUDGE SMITH: All right, is there any -- and I will 20 try to remember to do that -- who is the other questioner that 21 you did not pick up?
22 . JUDGE HARBOUR Brock.
23 MR. BACKUS: I did not pick up everything that Mr.
I 24 Brock had to say.
25 JUDGE SMITH: Mr. Brock expressed the concern that he l O Heritage Reporting Corporation (202) 628-4888
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x-1 had doubts that the Town of Hampton could be represented in j 2 cross-examination by lead intervenor, by somebody who is not 3 intimately familiar with the Town of Hampton's concerns. l 4 Have I stated you correctly, Mr. Brock?
5 MR. BROCK: Yes, Your Honor.
6 JUDGE SMITil: Yes.
7 I will try to remember to restate the questions of 8 the people whose volume is not very high.
9 Okay, is there any question about the lead 10 intervenor?
11 MS. CURRAN: Yes, this is Diane Curran.
12 A lot has been said here, and I just want to clarify 13 NECNP's position on this.
O 14 I understand the Board's wish to avoid duplication in 15 cross-examination and I don't have any rroblem with that. I 16 would object to the Board's position, to the extent that it 17 would require the lead intervenor to get into cross-examination j 10 on issues that did not involve that particular intervenor's 19 interest, or special knowledge.
20 And I just want to make that clear for the record.
21 JUDGE SMITH: Ms. Curran, let's make sure that your 22 concerns are accompanied by the observation, that if you find 23 that it is practically impossible for a lead intervenor to 24 represent you, you may come to the Board with that fact, and 25 explain that problem.
3 O
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if lAnd I< don't think that,you should'have'any broblem.
2 -MS. CURRAN: All right, thank you.
-3: , . JUDGE: SMITH: 'You can report to us any time up>to the
'4' ;beginning'of the. hearing, and no later than the beginning-of SL the hearing, as to who the leadLintervenor is, on'particular 6: -issues.and exceptions.
7 Of course, except' ions will also be made,'during the
~
8 course of the hearing, upon a representation of 1 ate found 9 -need, for separate cross-examination.
11 0 If there no further. questions on lead intervenor and-11 separation by issue, I will move on to the next-matter.
- 12. EMR . BACKUS: Judge Smith?
13 JUDGE SMITH: Yes.
'LO~7 14 MR. BACKUS: This is attorney Backus, again. I must 15 say that I ask the Board's permission -- I have another 16 commitment at-this hour that is going to take me out of this 17 office, and I would request permission for Jane Doughty to 18 . represent SAPL, in regard to the rest of this conference.
19 . JUDGE SMITH: Okay, Mr. Backus, we have completed the 20 .most important items of the pre-hearing conference. j 21 And it is Ms. Doughty?
22 MR. BACKUS: Yes, sir.
23 Perhaps, before I leave, if the Chairman would 24 indulge me, I would just make known a few of the things that I 25 was going to bring up, for consideration of the parties and the O Reporting Corporation Heritage (202) 628-4008
. l J el h '
r- i :c, li ' Board. I think the'most'important thing,.I think the only.
2 ~ other thing really, wasithe point that I think, at least.for.my-3- client, wouldflike an opportunity to make an. opening statement'-
'4- .on the first day of the hearing and not'necessarily have to-5 Lwait until a particular issue'comes.up.
6 I . don't know how the other: parties : feel about that,
% 7. but~I. assume the Applicant will make the first opening
'8.
statement and we~wo'uld like to be able to follow, in some 9: . order, with the other interveners-immediately thereafter.
10 'J'UDGE SMITH: Well, the rule's do' provide for-opening 11: statements,'and.the Board ~has no objection to them. I think-12 'there should-be some time: limits.put on them. 'Why don't,.as 13 .you discuss,,asyou get.together, on the discussion'of lead
.~O 14 : interveners, and' categories of issues -- why don't you also i- 15 .make a proposal to the Board as to the presentation of opening
.16 statements and the requested length of time?
17 MR. BACKUS: Fine.
18 JUDGE SMITH: All right, anything else, Mr. Backus?
19 MR. BACKUS: No, thank you, Your Honor.
20 At this time, with your permission, I will leave this t.
21 particular conference.
22 JUDGE SMITH: All right, thank you.
23 MR. OSTRANDER: This is Frank Ostrander again.
24 I have one more comment on lead interveners. And this 25 is going to greatly increase the burden of the next two weeks; O lieritage Reporting Corporation (202) 628-4888 O_-_- _ -- _ _ - _ - _ .__ Y
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- 1. wewillhavetoreviewal.1of[thetestimonyfromallofthe l 2 parties, even on some of the issues that we had not focused on, ,
3 'yet. And do.this at-the sc7me time'that we are scrambling to 4 get' ready, following the development of the schedules.
5 JUDGE SMITH: Well, Mr. Ostrander, I am very hopeful 6' that you will find that this is not a burden. That this is, 7 that we are asking you to do nothing that you should not do 8 anyway to have a carefully prepared case.
9 JUDGE HARBOUR: T h e r e i s a n e g'u a l b u r d e n o n a l l ;
10 parties.
11 JUDGE SMITH: And it is an equal burden on all l 12 parties. We look forward to seeing you in a well organized
, 7, 13 presentation and this will help you, I am sure that you will i
%) 14 find that to be the case. ,
i 15 MR. FIERCE: Frank, can I say something? I 16 MR. OSTRANDER: Yes, go ahead, Allen.
17 MR. FIERCE: Judge Smith, this is Alan Fierce, in the y i
18 Attorney General's Office, in Massachusetts. Can you hear me? ]
l 19 JUDGE SMITH: Yes, I can, quite well. I i
20 MR. FIERCE: If I might, I wondered whether you would 21 consider one suggestion I would have regarding the lead I l
22 interveners on some of those issues that are particularly 23 lengthy, l l
24 I, for example, have been working considerably on the I l
25 ETE issues. And know that these three Contentions that Judge l
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1 Harbour has listed under those, contain numerous bases, and I L2 have seen the lengthy testimony that has been/ . filed by the 3 Applicant on the ETE issues. f 4 And I thought that our plan among the intervehors 5 would be to break-up the ETE issues into'a series of sub-6 issues, not necessarily following each bhsis, but there are 7 some sub-Issue areas. ,
8 And that, if.we could outline, to you in advance, 9 those sub-issue areas, and then divide the responsibility for ]
10 cross-examination, could we do it that way. ,
I 11 So, that for example, I would not have to do all the 12 cross-examination, regarding the Applicant's witnesses on all
,_ 13 of the ETE issues, as I see them.
%) 14 JUDGE SMITH: Judge llarbour observes that you don't 15 have a Contention on ETE's. However,'let's talk about it as a i 16 general rule, rather than a specific rule.
17 If the parties, in organizing themselves, issue-by- l 18 issue, and lead-intervenor-by-lead-intervenor, find suti-issues !
t 19 are better for a particular party to handle, that is a matter 20 that I regard as being largely in the discretion of the ,
l 21 parties, based upon your own needs. , j i
22 We do not expect any intervenor to tyke a very, very 23 broad issue, involvingmany,manysub-jssues, and be an expert i
24 on all of it. If you have sub-issues, which, after a good i I
25 faith look at it and a good faith effort, you believe should be l l
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.1 broken down into specific cross-examiners, you do that.
2 But just bear in mind that the Rule throughout the 3 hearing-will be, we will not have cumulative, repetitive cross-4 examination.
5 And the better way to assure that is to have, as much 6 as possible, a single intervenor ask -- a single cross-examiner !
7 as to every issue and sub-issue.
8 Now,-if you would like to take up with, Judge 9- Harbour, the problem about the ETE, that is fine, Mr. Fierce.
10 JUDGE HARBOUR: This is Judge Harbour. I agree that 11 the ETE issue is divisible, but as Judge Smith said, that is j 12 for the interveners to work out on these issues, within these 13 broad topics.
~14 JUDGE SMITH: .Is that helpful, Mr. Fierce?
15 MR. FIERCE: I think that is really very helpful. I 16 understand the overall concern not to have questioning on 17 cross-examination, which duplicates anything.
10 But, I believe, within that framework we can, perhaps 19 among ourselves, or perhaps on Monday, when Mr. Turk comes up, ) l 20 begin to work out that order, and perhaps be able to break it i 21 into a couple of discreet issues, j 22 And I think that we can do it reasonably, Your Honor. ]
23 JUDGE SMITH: Okay, that is fine.
24 Now, moving down +o the next item and most of these 25 now are housekeeping items. )
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1 We v.ted that the partice did nct serve all of the 2 testimony org ell of the other parties. For that matter, there
-3 was careles'sness, each. Board ^ Member.did not receive all of.the 4 copies of testimony.
^ ' I 5' '
Now, when the new testimony le served or identified, j
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)5 s M you'.'do)n!, you will hase to wither seres all of the parties, !
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.y 7 (, pwho have fl.1&hnotices in..nhia case, or have an understanding !
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6, jwith them that h' is ntot nec'essary.
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9'sl, {, But there le no way in which their interests can be
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3 10 adeplately protected, un'less they are served, everyone is
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11 servdd' equally with the eyidence that is going to be presented.
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12 i Is there any question about thet point? ;
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', ! - JUDGE SMITH: All right, now, there is an item that 14t J '.
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17 )- And that is, .we did pro vide for the pre-f11ing of
, > c Id direct written testimony. And we also provided for the pre-t ,
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20; for the. pre-f411ng or id.antification, of other exhibits that I
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, 21,s the parties 4.ntend to of fer and we wi11 require that.
L g,,' Wr. essume by now that the part..los all have, in hand,
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all of 'the edib.its that they 2.ntend to of fer. And we will pd,'s 23, <s ,
i1 24 require, and the date io negot.iable, we will require that those 3d ,( , i s
'N 25 exhibits' M served on all of the parties , except where it is l' l I
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l 2533 1 known.that the parties already have those exhibits, or it is 2 known that they are commonly available, or unless, they are so-3 . bulky and so burdensome, that it is not feasible to do it.
4 And, in any case, we will require that all exhibits 5 be identified and described. If you choose not to serve your 6 proposed exhibits, based upon the burden or the bulk of it, you 7 are going to have to come up with a functionally equivalent I 8- service to the other parties, and that is, that you are going 9 to have to identify it quite well, so that they are put on 10 timely notice as to the exhibits that they have to meet in the 11 hearing.
12 Now, I would propose that that be done by September 13 25th. Are there any comments on that point?
i t0 - 14 (No response.)
15 JUDGE SMITH: All right, moving on to --
16 JUDGE HARBOUR: What about the cross-examination 17 . exhibits, do you want to mention that?
18 JUDGE SMITH: Oh, yes.
19 If you have an exhibit that you think that you need 20 for cross-examination and you believe that it would interfere i 21 with your cross-examination plans, and that is the only purpose 22 of that exhibit, then you may withhold it.
'I 23 But then, if that exhibit comes up, I will ask for 24 your representation, at the hearing, that that is the reason j 1
25 v1ty you withheld it. l Heritage Reporting Corporation (202) 628-4888 I
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2534-({J . -1 Any questions about that?
2 MR. FLYNN: This is Joseph Flynn.
1 3 JUDGE SMITH: Yes, Mr. Flynn?
i 4 MR. FLYNN: Would not every exhibit fall into that 5 category?
6 JUDGE SMITH: No, not at all.
7 There could be exhibits -- as a matter of fact, Mr.
8 Dignan referred to an exhibit in his letter, that he intends to 4
9 offer, that supports your case-in-chief.
10 MR. FLYNN: That is, in other words, supporting the 11 direct testimony? Okay.
12 JUDGE SMITH: Well, supporting the direct testimony 1 13 or otherwise. And then there are other exhibits that the
- , ,S 14 parties would lay-in-walt with and seek to cross-examine, to 15 impeach testimony.or cross-examine with.
16 MR. FLYNN: I am back on track, thank you.
17 JUDGE SMITH: Yes, Is there any confusion about that 18 distinction?
19 (No response.)
20 JUDGE SMITH: Now, in the pre-hearing conference l
21 order, earlier, it was made clear that on the copies of direct l l
22 testimony, that corrections raust physically be made -- last I
23 minute corrections must physically be made -- on the copy of l
24 the direct testimony that is going to be bound into the j l
25 transcript. l D Heritage Reporting Corporation (202) 628-4888
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() 1 In other words, the Board wishes to avoid what 2 happens in most cases, and that is, witnesses take the stand 3 and the parties, by a very laborious method, very time wasting 4 method, begins to make, for the first time, corrections to 5 their wripten testimony.
6 And those corrections should be physically made on 7 the copy that is going to be offered into evidence. And as I
8 soon as you are able to, at the hearing, make those corrections 9 known to the Board and to the parties, either by a fresh copy 10 of the testimony, or by whatever means is necessary.
11 Is there any question about that? I 12 (No response.)
,- 13 JUDGE SMITH: I want to remind the parties that going V 14 back to the issue of exhibits, that in addition to the working 15 copy of each exhibit -- that is the copy that the parties have 16 for use during the hearing -- that the Commission requires 17 three official copies of every exhibit.
18 And recently there has been confusion, in fact, I I 19 think perhaps, in this very proceeding, as to that point. And 20 unless we have a very, very strong reason, we will not accept 21 an exhibit that does not have three, authentic copies to be 22 received into evidence, and taken into the record, by the court 23 reporter.
24 Is there any question about that? That is a long-25 standing, old, NRC Rule.
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'MR. TURK: Judge Smith, this is Sherwin Turk.
'fu ) l' 2 JUDGE SMITH: Yes?
3 MR. TURK: How many copies of the testimony will you ,
4 require at the hearing? ,
5 JUDGE SMITH: I am glad that you mentioned that. i 6 If you have a short document, I recommend that you 7 only bring one document for insertion into the transcript and 8 that way, corrections on it can easily be made, even say, that 9 the witness mid-way through his testimony wishes to correct his 10 testimony, that could be made right then and there.
11 And we could be assured then, that as it is 12 duplicated with the verbatim, with the oral testimony, that f 13 every duplicated copy of the transcript is exactly the same.
( 14 Therefore, I propose that as to short items of 15 testimony, that you only intend to offer one corrected copy.
16 Now, as to bulky attachments, I think that the Board already 17 issued an order, that those should be regarded and offered as 18- exhibits, not to be bound in a transcript.
19 We have not set a page demarcation on this. I don't 20 know if we really have to. Judge Harbour has said 20 pages; I 21 said, 100, and I guess somewhere in between 20 and 100 would be 22 the break-off point between a bulky testimony and a short one.
23 I will allow that to your own judgment, based upon 24 how easy it is to break testimony up into attachments and 25 direct testimony.
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() 1 JUDGE HARBOUR: You talk about attachments, all l 2- testimony will be included.
3 JUDGE SMITH: Yes, all testimony, as such, will be 4 bound into the transcript and discovered.
5 .Any questions on that.
6 MR. DIGNAN: Your Honor, this is Tom Dignan and I may )
7 be confused, but with respect to testimony -- forgetting 8 attachments or anything else -- I take it that if a piece of 9 testimony -- for example REPE testimony, if you had-a chance to 10 glance at it, it is considerably more than 20 and considerably 11 more than, indeed, a 100 pages.
12 Would it be expected with a document like that, to 13 bring sufficient copies for the reporter?
.(3~ 14 JUDGE HARBOUR: You said one copy, didn't you?
15 JUDGE SMITH: I did say one copy. I was not thinking 16 -- are you speaking now of written testimony, as if it is oral 17 testimony?
18 MR. DIGNAN: That is correct, Your Honor.
19 JUDGE SMITH: Well, in that event, I think that is 20 probably the only case. In that event, you are buying a copy 21 of the transcript and if you are thinking about saving money, I 22 guess that we ought to hear from you on it.
23 MR. DIGNAN: No. It is not a question of saving 24 money. I just want to know what the Board's preference is. In 25 other words, the court reporters normally, at ACE, and I know
/~T l V
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2538 l' that we have a new reporting. service this time, or at least .
2 that is my understanding, always said, just give us the one j 3 copy and we will duplicate it and make our schedules. There is l 4 no problem.
s 5 Now, when you were going through this, I was 6- wondering if you were suggesting that instead of giving them 7' just the one copy, when it'was particularly bulky,:you wanted 8 us to be in the hearing room with whatever number they say that 9 they need.per copy of the transcripts, and it usually runs 30 10 or 35, something like that.
11 JUDGE SMITH: No.
12 Our preference is, that testimony as such, written 13 testimony as such, be offered one corrected copy only.
O 14 MR. DIGNAN: And is it your understanding that the 15 reporters are prepared to deal with that?
16 JUDGE SMITH: Well, as you noted the contract is new.
17 MR. DIGNAN: I know.
18 JUDGE SMITH: The representative is quite busy here 4
19 today in taking this transcript and she does not know.
20 After this pre-hearing conference, I will go to the 21 contract and see if there is anything inconsistent in the j 22 contract with what we ruled today, i
23 MR. DIGNAN: Thank you, Your Honor.
24 JUDGE SMITH: That is a good warning and I appreciate 25 it.
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l- 2539 Now,. going back to the testimony. Some of the
['J u
i 1 2 parties, and it comes to mind that I saw an example by Mr. l 1
3 Backus and by Mr. Dignan, preceded the narrative part of the 4 testimony by a description of what the testimony, what the 5 purpose of the testimony was, or a summary of it.
6 Now, that is very, very helpful. Particularly when
]
7 you are handling a large volume of papers, as we are, and it is 8 also helpful for searching the transcript.
i 9 So, I am asking every party, who has not done that !
10 with their testimony, to go back and look at their testimony 11 and make sure that at the very outset, the first thing that you-12 have to say in your testimony -- even if it is an attachment --
13 is a summary of what it is about, together with what the 14 purpose of it is.
15 And for example, one that comes to mind, that I 16 picked up the other day is the one that has Steve Sholly and l 17 Jan Beyea, and other witnesses on it, and my memory is that I 10 had to go several pages into the testimony before I learned 19 exactly what issues they were talking about.
20 So, it would be very helpful to all of us, if we 21 would have, either an outline, table of contents, a summary, or 22 something which, in short amount of information, can tell us 23 what that item of testimony is about.
24 Are there any questions about that?
25 MS. CURRAN: This is Diane Curran.
iR
()' i Heritage Reporting Corporation l (202) 620-4000 l
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1 would that be covered by a question appearing on the (d' -
2 first page, what is the purpose of your testimony?
'3 JUDGE SMITH: That, I think, is a good way to do it.
4 MS. CURRAN: Okay.
5 JUDGE SMITH: Yes, I think that.would be a good way 6 to1do it.
7 'We have another problem, too, and that is, that all 8 documents, let me say all documents more than one page long, t
9 should have page numbers on them, otherwise, it is very, very j 10 difficult to' refer to them during the hearing, and just almost 11 impossible to cite, in your proposed findings and in a 12 decision.
fs 13 And this was brought to our attention by a document f
14 filed by FEMA. And we are all aware that if you are doing.
15 your own word processing that it is pretty tricky to get that 16 machine to number the pages. But even if you have to do it by 17 hand, the pages have to be numbered, otherwise, we are just in 18 disarray and we are wasting our time.
19 So, please attend to that, and Mr. Flynn, I would ask 20 you that you file corrected copies of your papers, 21 JUDGE HARBOUR: And separato pagination on the 22 attachments, each of them.
23 MR. FLYNN: Yes, Your Honor.
24 JUDGE SMITH: And, furthermore, another problem that i 25 comes up quite often is that an item of testimony, for example,
(')s x
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() I will have many attachments, more than one attachment, at least.
2- And it is-very, very. difficult to.tell when one 3 attachment begins and when another one ends. Therefore, if you 4 have attachments, don't put them back to back without some 5 marker to suggest a beginning and an end.
6 And, of course, the obviour way to do that, would be 7 to have attachments numbered in any way that you wish, A 8 through B, and each one having its own numbering.
9 Now, I am sure that if you follow this, you will all 10 be grateful during the hearing, as it. cuts down frustration 11- when you are able to go to the document that is being 12 discussed.
gg 13 Any questions on that point?
V 14 VOICE: Is that supposed-to be --
'15 JUDGE SMITH: Who asked that, who was that?
16 Mr. Brock?
17 MR. FIERCE: Your Honor, this is Alan Fierce in 18 Massachusetts Attorney General's Office. j 19 JUDGE SMITH: I missed your question, Mr. Fierce.
20 MR. FIERCE: Does that mean now, that if we go 21 through a document and renumber it, or number the pages, that 22 another document with numbered pages, now, needs to be served 23 on each and every party in the case, at this time? l l 24 JUDGE SMITH: Well, I don't know what to tell you. I ;
1 l 25_ would say, yes. I realize -- how many parties are there, 20?
10 V
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s a '
2542
"~
.) <1 .MR." FIERCE: Forty.
E 21 . JUDGE SMITH: Forty parties?
L-.
3- , :MR. OSTRANDER: Excuse me, Your Honor, Frank-4' Ostrander.
- 5. JUDGE SMITH: Yes.
6 MR.'OSTRANDER: I think that we. served something-11'ke 7 '30-some-odd, 35 copies, of'1,300 pages.
8 JUDGE SMITH: I think that'maybe the time might come:
9- for.the interveners in,the. forthcoming negotiation to' report to 10' the Board,.who are the active parties, and who are the inactive ill parties.
12 I see no point in.having every exquisite enabling 13 consideration made available to 35 parties, if.they don't come j
> 1 14 to the: hearing.
l
- 15. How many will we expect to be at the hearing?
l 16 VOICE: Who are you talking to?.
17 JUDGE SMITH: Let me ask Mr., Turk, do youLhave any 18 feeling for that?
19 MR. TURK: I have a general feeling that the parties 20 who are on the line today, with the addition or Mr. Lord of the 21 Town of Amesbury, are the active partic'ipants in the 22 proceeding.
'23 And I am not aware of others who have been excluded 24 from this conference call, who are active in these proceedings.
25 I may be off on omitting one, and if I do that, I am going to LO Heritage Reporting Corporation (202) 628-4888
2543-
'l ' hear abo'ut it, but that is<the general impression.at this time.
(
Y ' 2. .
JUDGE SMITH: All.right, give me.a moment will you so 3: that'I can-consul't with the Board, and then I will'come back to 4- 'you.
5, We are off the record for-a moment.
- 6. (Whereupon, a brief recess was taken at 3:17 p.m.)
! 7 JUDGE SMITH: Back on the record, at 3:20 p.m.
L 8' MR. TURK: This is Sherwin Turk and I don't know if 9 you heard'our conversation while your phone'was out.
, '10 JUDGE SMITH: I heard it in the background, yes.
11 MR '. TURK: In addition to Bill Lord for Amesbury, Mr.
12 Nado for the Town of Rye, wishes to be considered acti0e and no
( 13 party on the phone was. aware of anyone else who should be:
1'4 considered to be an active participant.
15 JUDGE SMITH: Well, we went through somewhat the same 16 exercise, while we were off the record, and with the addition.
17 of.the Town of Rye, we will allow service of these corrected 18 items, only on the active parties, if you wish.
19 We will accept that, I mean. Is that satisfactory, 20 gentlemen?
21 MR. TURK: Yes, Your Honor.
22 JUDGE 4 SMITH: Which raises another point, when we 23 speak of the active parties, the Board will require at the 24 beginning of every issue, a representation by the parties that l
p '25 each. Contention and sub-issue is still a valid issue and it has O
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1 not been mooted by evolving events.
2 For example, I have seen in many cases, and perhaps l
l 3 most of the cases I have been in, that.a panel of witnesses 4 will be sworn, and ready to testify and the cross-examination 5 is so insignificant as to suggest that the cross-examining 6 party no longer has an interest in that issue.
7 We simply don't want that and I don't think that 8 anybody wants it. So that what we require is that-as the 9 proceeding unfolds, that as soon as a party recognizes that 10 either they have no interest in an issue, or that their 11 concerns have been satisfied that that fact be made timely 12 known to the other party and to the Board, so that unnecessary 13 and unnecessary travel and all of the unnecessary aspects of i
14 it, can be avoided.
i 15 And I will tell you what brought that to our 16 attention just now. We noted that the Town of Kensington, 17 apparently has Contentions in here, and is participating on 18 this telephone conversation but has not provided any testimony.
19 Now, I am not suggesting that the Town of Kensington 20 must do that because the Rule at the Commission is clear, that 21 you can establish your case, solely by cross-examination. But 22 it does give rise to the question, is the Town of Kensington 23 still interested in its contention? I 24 MS. MITCHELL: Yes, Your Honor.
25 JUDGE SMITH: Okay, that is fine, but we just are not O v Heritage Reporting Corporation (202) 628-4880 1
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( )! 1 trying.to encourage or. discourage.anybody..from actively.
'2 Lpursuing this issue. And we just wish you;to acknowledge'as.
~
3 soon as,-you are able to, that you haveLbeen; satisfied as to a.
4 particular issue.
5 JUDGE HARBOUR: Ask Ms. Curran about the.NECNP.L 16 JUDGE SMITH: Ms. Curran, JudgefHarbour is interested E , 7 'in what your standing is, what your position is on Contention.
8- NHLP 6, and RERP 8?'
.9. You do not seem to have testimony on that.
10 MS. CURRAN: No r.we intend.to pursue.those-through i 1 i L 11 cross-examination.
12' JUDGE SMITH: A111right, .but that is still an active 13 point with you?
O. 14 MS. CURRAN: Right.
15 JUDGE SMITH: All.right, that is exactly.the-type of
- 16. consideration and' representation that we would like to have, 17 with the parties, if you don't mind.
18 Moving now to cross-examination plans. We will
[
19 require cross-examination plans, and first there is no 20 particular format which is necessary. The cross-examination 21 plan can be done in question and answer form or question form, 22 or narrative form, or outline form or whatever form you choose.
23 Providing that it adequately informs the Board, as to 24 what the objectives of your cross-examination is, and how you 25 . intend to go about it.
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1 Now, the procedure that we will' follow, of course, is 2 that some of you, most of you will probably wish'to keep your 1
3 cross-examination plan private during the cross-examination, 4 although I think that that is usually something that is l
5 unnecessary, we will certainly honor that desire.
6 So, we will require, at the beginning of the cross-7' ~ examination, that you provide the Board, each Board Member with 8 a copy of your cross-examination. Then, without any further 9~ action on the part of the Board, it is up to the parties, 10 themselves, after the cross-examination, to' exchange copies of ,
t i 11- that plan. {
12 It is up to the parties not cross-examining the other fs 13 parties, to seek and demand a copy of the examination and, of
(_) 1 14 course, it is up to the cross-examiner to provide it.
15 Are there any questions on that?
16 MR. FIERCE: Yes, Your Honor. l 17 Alan Fierce, again, and this cross-examination plan 10 needs to contain what? I am somewhat confused, a statement of 19 the objectives of the cross?
I 20 JUDGE SMITH: Yes, and how you intend to proceed. '
21 And you may do it virtually any way that you wish by listing )
l 22 the questions that you intend to ask, if that is better for l 23 you; or an outline of your cross-examination, or whatever.
24 So long as we know what it is that you seek to 1
25 accomplish by your cross-examination, even if it is to test the Heritage Reporting Corporation (202) 628-4808
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,([ '1' credibility of a witness, if that is what it is, say it.
2- If itLhas no substantive objective, say~1t. But we 3 want'to know:why you are pursuing each:line of questioning.
4, Any' questions?
5 MR. FLYNN: This is Joseph.Flynn.
~6 JUDGE SMITH: Mr. Flynn?
- 7. MR. FLYNN: If you choose to list the question, it
'8- frequently happens that an answer-to a question will suggest 9 other questions. LWill those other questions be disallowed?
10 JUDGE SMITH:- Well, no.
-11 .This business of cross-examination plans, depends L 12- ' entirely upon the good efforts of the parties. Let me'say that.
13 I have never seen a party in litigation -- I am sure here, who O '14- could not conceive of a cross-examination plan that'does not-15 reveal what they really have in mind.
16 I am sure that it would be possiale not to come up E 17 with a cross-examination plan that does not inform us. So, we ,
i 18 intend to allow cross-examination, we must allow cross- l i
19 examination on any area of answers that you did not anticipate, l L 20 MR. FIERCE: Okay, I think that I follow you. You j
l 21 don't want to have to ask the question, where are you-going 22- with this line of questioning?
- 23 ,
JUDGE SMITH: That is right.
24 Now, let me point out the advantages to that. I-know 25 that it is hard work but it is no more work than you have to do i
Heritage Reporting Corporation (202) 628-4888 L
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t 2548 (j 1 anyway to get ready for your cross-examination, but you have 2 the advantage of.having the Board understand, from the very 3 beginning, what it is that you intend to accomplish.
4 And that means that the questions from the very 5 outset, have significance to us, and as the Chairman, it is 6 very, very helpful to me to understand and to be able to 7 anticipate objections and to be ready for them and I just like 8 them very much and they are very helpful.
9 And I think that they will be very helpful to you, i
10 too, when you get accustomed to them.
11 Anything further on that?
12 MR. FLYNN: This is Joseph Flynn, again.
13 JUDGE SMITH: Yes?
14 MR. FLYNN: I would like you to just go over one more 15 time, the mechanics of disclosing the cross-examination plans.
16 I understand they are given to the Board, when the cross-17 examinations begin, but only to the Board.
18 JUDGE SMITH: Right.
19 You may choose, if you wish, and I have seen this 20 done very effectively, to give a copy of your cross-examination 21 plan to the witness. And therefore, he knows what the scheme of 22 it is and he may have or she may have a better response.
23 But you are only required, at the outset, to give it 24 to the Board.
25 MR. FLYNN: But then at the end of the cross O Heritage Reporting Corporation (202) 628-4888
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2549 j I( ) 1 examination, it must be provided to the party who sponsored the 2 witness?
3 JUDGE SMITH: To all parties.?
4' MR. FLYNN: To all parties. ;
5 JUDGE' SMITH: Because that is, in offect, the cross-6 examination plan is, in effect, an ex parte communication to
~7 the Board, and to remedy that problem, all. parties have to be 8 informed as to what it was.
9 MR. FLYNN: I see, okay, thank you.
^
10 JUDGE SMITH: Now, anything further on that issue?
11 MR. DIGNAN: Your Honor, this is Tom Dignan.
12 JUDGE SMITH: Yes?
g- 13 MR. DIGNAN: Could I make a suggestion on that
\ )g 14 exchange of plans with all the parties, and confusing the 15 problems?
16 At the last session of the hearing, it worked quite 17 successfully when the cross-examiner had one extra copy and 18 handed it to the reporter, and it just got bound in.
19 JUDGE SMITH: The difficulty -- Mr. Dignan, I think 20 that is a good idea and let's explore it.
21 The other side of that, is that if the cross-22 examination plan, if you feel that the cross-examination plan !
23 was an inappropriate or unintended - - if it put an idea in the 24 Board's mind, that you did not think belonged there -- and it i 25 gives you the chance to address that timely --
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1 Let's say,.for example, in this cross-examination, I 2 intend to demonstrate that witness A is a scoundrel. And he 3 always has been and not one question is ever asked about that, 4 then you should have the opportunity assuming that you are 5 sponsoring witness A, to object to that and to address it and 6 to complain.
7 But if we wait until the hearing is over, then that 8 opportunity will.have passed.
9 'MR. DIGNAN: Well, I was assuming and perhaps, i
10 erroneously, that and at least it has been done in the past, ;
11 and I may be wrong, but people would be seeking daily copy so 12 that the t.ranscript would be available, to people the next day.
,es 13 IUDGE SMITH: Well, let me say, Mr. Dignan, that that 14 is entirely within the discretion of the parties, themselves.
15 MR. DIGNAN: Okay.
16 JUDGE SMITH: If the parties agree that that 17 satisfies their requirements, it certainly satisfies the 18 Board's requirements. And I see the logic of it.
19 MR. DIGNAN: Yes, Your Honor.
20 JUDGE SMITH: There, of course, is an understanding 21 that the cross-examination plan is not evidence in any way.
22 All right, is there any question about anything that 23 has come up to date?
24 MR. FIERCE: Alan Fierce again, Judge.
25 I have one question about cross-examination plans ;
es Heritage Reporting Corporation j (202) 628-4888
1 2551 lll 1 because it is something that I am not familiar with. Is there 2 leeway in your procedure for changes in the plans in mid-3 stream?
4 For example, as-you know, cross-examination can be 1
5 somewhat of a dynamic process, and if there happens to be a j 6 break in the cross-examination because the day ended and it 7 needed to be continued to the following morning, many lawyers 8 might want to think about how their cross-examination was ]
9 going, sit down that evening and perhaps revise the strategy.
l 10 JUDGE SMITH: Yor are entirely correct. l 1
11 MR. FIERCE: And have an amended cross-examination i 12 plan to be filed the following morning with you.
13 JUDGE SMITH: I agree, and you are entirely correct 14 on that. Furthermore, as we discussed in a slightly different 15 context, earlier, that if a line of questioning does not go in 16 the direction that you anticipated, certainly there is no 17 impediment to your following the questioning wherever it takes 18 you.
19 I would only require again, a good faith effort, to 20 tell us at the outset, what it is that you have in mind, and 21 then if you believe that your cross-examination plan no longer 22 meets your purposes, then you tell us about it, as soon as you 23 are able to.
24 MR. FIERCE: I appreciate that, thank you.
25 JUDGE SMITH: All right, anything further on anything O
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.m so far, because I have a final item that I want to bring up L 4ss J.
1
- 2. when we are:all done with other buuiness?
i 3 MR. OSTRANDER: This is Frank Ostrander from 4 Massachusetts.
5 We have several other items that we would want to 6 bring up in a regular pre-hearing conference.
7 JUDGE' SMITH: Well, do you want to --
8 JUDGE HARBOUR: He can present them to us and we will-1 9 see what it is.
10 JUDGE SMITH: All right, go' ahead, Mr. Ostrander. We 11 are not agreeing to hear them all but you can identify them and l 12 see if we can take them up.
13 MR. OSTRANDER: Why don't I try just to list them?
14 JUDGS SMITH: All right.
15 MR. OSTRANDER: The Board has taken several of these 16 away.
17 Perhaps the most important is the issue that we 18 ' raised in our motion of what appears to be an amendment to the 19 New Hampshire Plan by way of direct testimony put in by the 20 Applicant on the Sheltering Issue.
21 I know that the other parties have the same 22 confusion.
23 JUDGE SMITH: Okay, you happened to raise the one 24 issue that the Board has had an opportunity to discuss. In the 25 context of your motion, we see absolutely nothing wrong with (2) l Heritage Reporting Corporation (202) 628-4888 j 4
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x- -
1 2 The Plan will be a changing one, and if you have been 3 surprised by the testimony, that is one matter, but if you find 4 that the Plan is being amended, we are not aware of any legal 5 barrier to that, or any practical one or any fairness barrier, !
6_ or anything else. We see nothing wrong with that.
7 Perhaps an analogous situation is environment impact 8 statements where the NRC Staff is required to prepare an 9 environmental impact statement. Well, we have very substantial 10 Court of Appeals law on the fact that environmental impact 11 statement is amended as the hearing on it, unfolds. And the 12 final decision is an amendment to the environmental impact 13 statement.
7%,w]
14 The entire purpose of the hearing is to consider the 15 Plan and if the Applicant chooses to amend it in that fashion, 16 that is up to them, providing, of course, that you are fairly 17 treated and not surprised.
18 Mr. Oetrander?
19 MS. DOUGHTY: Judge Smith?
20 JUDGE SMITH: Yes.
21 MS. DOUGHTY: This is Jane Doughty and I am still 22 having great difficulty hearing Mr. Ostrander, can you repeat 23 what he says?
24 JUDGE SMITH: Yes, yes, I will.
i 25 In Mr. Ostrander's motion, he -- though he is O
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() 1 paraphrasing, let me get it. ;
2 Mr. Ostrander objected to what appeared to be a i
3' functional amendment to the New Hampshire RERP, and I don't 4 know what that is. ,
5 JUDGE HARBOUR: Radiological Emergency Response.
6 JUDGE SMITH: Yes, Radiological Emergency Response 7 Plan' Revision II, by the aggregate evidence, consistent with j
.1 8 the exhibits and the testimony.
9 And'he believes that that is impermissible. And in 10 our ruling you heard that putting aside the issue of surprise, i 11 of lack of fair notice, we see nothing wrong with that.
12 MR. OSTRANDER: Your Honor, can I speak on this:a
-13 little bit more?
(
14 JUDGE SMITH: Yes, but let me caution you that when 15 this hearing unfolds, when you have an argument to make, you 16 make them at the outset and you do not attempt to add to them 17 as the Board rules.
18 We will be very hard nosed on that point, because if 19 you don't make your arguments at the outset, then you may very 20 well lose the opportunity to make the following arguments. 1 1
21 We will let you off this time, go ahead.
22 MR. OSTRANDER: Okay, I understood that when I 23 started to talk that I was simply listing agenda items, I did 24 not realize that that was my argument.
25 JUDGE SMITH: Well, let me say here, you have a
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is 1 motion which you have asked us to take up and rule on without
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2 answers, in that motion in its entirety.on this issue consists 3 of a short paragraph on page 2. And you have not carried your' 4 burden. Now, we are giving'you, we gave you a-second chance, 5 and now we are going to.give you a third chance., But let me 6 caution you, you are not going to be able to get away with that 7 during this hearing, now that you understand what our rule will 8 be.
9 You may proceed.
10 MR. OSTRANDER: Thank you.
11 We, I think that there is NRC case law to the effect, 12 I think that the Zimmerman decision by the Appeals Board, at gs 13 least partially addresses this issue. I agree with the Board
(
14 that many ministerial changes can be made in the Plan without 15 causing a difficulty for the parties who are litigating the 16 case.
17 But here, we have a fundamental change in the Plan 18 and the Plan now includes a Plan to shelter, apparently without 19 being formally amended, a Plan to shelter the beach 20 populations. ;
21 I know that the Federal Emergency Management Agency 22 has just sent a letter to the Applicant saying, now, is this in 23 the Plan or isn't it? )
24 And it seems to us, that if it is an amendment to the 25 Plan of such a fundamental nature, we are talking about one of O
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.b tj 1 the basic protective actions here, then we have a right to have
~2 FEMA. review it, to see what FEMA thinks of it, and to, perhaps, 3 file new Contentions.
4 In the alternative, it'seems that we would have a 5 right to strike testimony regarding something that is not in 6 the Plpn.
7 Otherwise we are litigating a shadow.
8 JUDGE SMITH: Litigating a shadow?
9 MR. OSTRANDER: Well, right now, we have a premise to 10 amend the Plan, that is what they are stating in their direct 11' testimony. We don't know what that amendment is and we don't 12 know how it works.
13 JUDGE. SMITH: Have the other parties understood Mr.
14 Ostrander's complaint?
15 MR. DIGNAN: Your Honor, this is Tom Dignan and I had 16 great dif ficulty hearing the connection between us and for.
17 Ostrander as it is not that good. If I am to respond, is it 18 possible, for Your Honor, to summarize the points?
19 I have a feeling that I know what they were, but did 20 I understand correctly that the thrust of it is, that you have 21 no right to give testimony such as the Shelter testimony which 22 relies on new data?
23 JUDGE SMITH: Well, it goes further than that. He 24 explains why he believes that he is prejudiced by that. It is i
25 not an issue of surprise, so much as it has denied them an ;
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(,) 1 opportunity number one, FEMA review that; and two, perhaps.
l 2 raise new Contentions based upon the amendment and based upon 3 ' FEMA's evaluation.
4 Have I paraphrased your concern, correctly, Mr. I 1
5 Ostrander? 1 6 MR. OSTRANDER: In part, and in the alternative, if l 7 you know, either this stuff is IN the Plan or it is not, 8 basically.
9 JUDGE SMITH: And he has also--- did you hear that 10 Mr. Dignan?
. 11 MR. DIGNAN: I did not, Your Honor, I am sorry.
12 JUDGE SMITH: He says, either the items set out in-r-)
(_/
13 your testimony, the Sheltering is in your Pian or it is not.
14 And if.it is not, then that part of your' testimony is i
15 subject to attack, I guess. !
j 16 MR. OSTRANDER: That is correct.
17 JUDGE SMITH: I don't under -- yes, right.
18 MR. DIGNAN: Is it in order for me to respond? i 19 JUDGE SMITH: Yes, it is in order. This type of- !
20 thing is sometimes more appropriate as an objection to the 21 receipt of testimony at the time of the hearing, however, I 22 think that we should commend, Mr. Ostrander, for raising such 23 an important issue very, very early.
24 Although he did not do it in a thoroughly supported 25 way, but he has raised it early.
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. 2558 4 l ) 1 MR. DIGNAN: Well, I think that my - response in terms i sj g f9 , /t 2 of whether it is part of the P'lan or not, is irrelevant. What I
/ 'j !
3 am dealing with is a Contention by.iarious people, and indeed,
, e 4 to date, although I havenotreviewedeverythingas2noroughly l l
- 5 supported, as I understand it by [EMA, that the Ubach situation )
6 is such that Sheltering in not a possible remedy. l 7 And that testimony is directed to that' Contention.
8 Whether the study does or does not go into the Plan as a matter l
9 for the future, I point'/out to the Board, as the Chairman has 10 already indicated, the Plan is never final even'gfter it is .
11 litigated and put to bed in a case. And the firidings the Board t 1 12 makes are always predictive and I briefly would cito to the I
,-~g
, 13 Board, the Limerick' case, A Lab 808, 21 NRC 1595, 1601, C/
14 Louisiana Power and Light, the Waterford case, A Lab 732, 17 i 1 15 NRC 1076, 1103-04.
I 16 Now, whether some+.hing becomes part of the Plan, in i l
17' the last analysis is between the State of New Hampshire' FEMA ,
l l
18 and other people. l i
19 But that does not put a stricture on whethel or not 20 an Applicant can defend against a Contention by the data that I 21 it has put together and is prepared to defend on the stand. ,
1 I
22 The fact that a shelter Study was ongoing was known 23 for some time, and the fact that 4.N were prepared to, and the 24 Plan was not to be read as saying that Sheltering would never 25 ,
be used, was revealed in an interrogatory some time ago.
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()' il 'So, I confess to;seeing no difficulty with.this-2 . testimony. whatsoever, under the Rules as they apply to this-3- ' proceeding.
'4' MR. FLYNN: Your Honor, this is Joseph Flynn.
5
'I am not taking a side in this controversy but I 6 think that I can add something to your understanding.
7 It makes a difference to FEMA whether the. Shelter 8 Survey _is considered a part of the. Plan, simply because.that- I 9- 1 determines ~whether we review it or not. Our relationship with.
10 the NRC is such that, in fact, ourLrelationship is with NRC and ill- not directly with the State in this context, at least.
-12 If it isLpart of the Plan, we will review it beca'se u e 13 that is a part of the work that we are doing for NRC. If it is
.14 not a part of the. Plan, then we. don't have a role to play.
_1 15 JUDGE SMITH: I think that we have heard enough now I 16 to recognize that this is a matter of substantive merit and 17 will have to be. addressed at the time that the testimony, the 18 respective testimony is offered.
19 You have not given us enough in the motion to -- as a 20 matter of fact, you don't seek any relief, other than a delay 21 in the hearing. I t
22 MR. OSTRANDER: If I could answer that, Mr. Chc!> man? i 23 JUDGE SMITH: Certainly. -i 24 -
MR. OSTRANDER: It was raised in the motion, simply a 25- request for a pre-hearing conference.
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4 the time that,the exhib'its ars offared. However, I think that 1, q
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' 5 10 surprise,,otoedthansurprise, which you are not raising, we
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11 see nothing 'nrong with it. l
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13 Jqvidence,is offered. '
'1s M r 14 MP. BROCK: Your Honor, this is Mat Brock for the !
4 4' 15 ToUn of Hampton and since you hy/o particularly commented with l
( f 16 rerpect to the issue of . surprise, I.have not by any means gone g, . V <" ,i. 17 throughallofthepre-trialtestiraony,butit is my 18 understanding that in addition.to the Sheltering Issue, !
4.
19 Apolicant s have changed the Plan by omitting teamsters, or at {
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- c 20 least most teamsters'as bus drivers for the evacuati.on buses. I 1
21 ' - , Originally there were some 1,500 teamsters designated d to perform that role, a W Hampton submitted pre-trial testimony i 23 on that basis and appa7Pently that in no langer the Plan and l r a). i j ' 24 a dome other groups have 'oeon designated to fulf(11 that j 1
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- (j. 1 And_it is certain'ly surprise and we believe, unfair s ,
2 surprise for uscto go into the. hearing at this point, and to be 3 litigating the issue of, for example, personnel to drive those 4 vehicles, when we have had no discovery, and we have no ,
5 information other than their statements in Applicant's pre-6 . trial testimony that these other groups will now perform that 7 function.
8 And we would offer that as an additional grounds for 9 Mr. .Ostrander's motion that some additional time, here, for Jt 0 discovery and possibly new Contentions would be appropriate.
11 JUDGE SMITH: Mr. Ostrander moved for two weeks 12 continuance and he is receiving one week and we will have to jem 13 take the objections to particular items of testimony up in s-14 _ context with those-items. We cannot sit here and make generic 15 Oslings as the broad issues that you are raising.
16 We are just not prepared for it. This really was not 17 the intent of the pre-hearing conference. The arguments were 10 made solely for an extension of time and we decided that-one 19 week would benefit everybody and be sufficient for all purposes 20 and.that is our ruling.
'21 MR. OSTRANDER: Mr. Chairman, just for the record, .
I' 22 this is Frank Ostrander.
23 JUDGE SMIT!!: Yes.
- 24 MR. OSTRANDER
- Our motion was, maybe it was sort of i
25 hastily drafted and it was unclear, was that we really wanted A
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( ): two things -- one, more time and two, a pre-hearing conference 2 to resolve just these kinds of fundamental issues before we got 3 into the case. l 4 And I guess your ruling has it that this was our pre-5- ' hearing conference.
6 JUDGE SMITH: Well, it is.
7 You were not denied your opportunity to raise as to 8 particular items of evidence. The argument that you are 9 raising today, at the hearing.
10 MS. CURRAN: This is Diane Curran.
11 I would just like to make two points. First of all, 12 I think that everybody's purpose in doing this, is to eliminate i
,r g 13 any kind of inefficiency in these hearings.
(../ .
14 The motion that we filed, on Monday afternoon, it was 15 literally or maybe it was Tuesday -- none of us had really gone 16 through the testimony to any extent and certainly we have all l
17 been looking at it, as carefully and quickly as possible, and 18 as far as for myself, I was not even aware until yesterday that i 19 the hus driver issue had been changed. l i
20 It has been a process of trying to review these plans j 21 and trying to bring to the Board's attention the problems that i 22 we are going to have so that we don't waste a lot of time at 23 these hearings.
24 I have one other matter to raise, and that is the
! 25 issue of the personnel resources segment survey, which is part f-O Heritage Reporting Corporation r
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7 2563 Q,m.. 1 .oC Applicant's case.
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.2 From FEMA's' testimony, I understand that that survey 3 is now being reviewed by FEMA and that FEMA did not say how 4 long it would take to review that. But pursuant to the Appeal 5: Board's' order of AI-864, it is my understanding that we would 6 have thirty days from the time that FEMA issues its finding on 7 that survey, before we had to respond to.it, and begin hearings l
8 on that particular issue. st 9 And-that is just another problem that we would have 10 ' raised. Again, I was not even aware of it, unti'l I had a 11 chance to look over all of the testimony.
I 12 JUDGE SMITH: Well, you can raise your points with
- 13 respect to the items of testimony and in the meantime, we will 14 go back to your citation here, and see if there is a problem, 15 here, that we overlooked.
16 But you raise it at the hearing.
17 MR. TURK: Judge Smith, this is Sherwin Turk and I 18 won't make a motion at this time, but I wanted to give you 19 early warning of the way that you noted and appreciated it, 20 Massachusetts Attorney General is giving you warning.
21 We may move with respect to the Massachusetts -
22 Attorney General's testimony presented by Beyea and Sholly, we 23 may move to keep that testimony out as inappropriate or 24 irrelevant. I don't know if we will file a motion in limine, L
i 25 or just simply a motion to strike, at the time that it is I f
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2 But one or the other is a possibility.
3 JUDGE SMITH: All right, surely, the Attorney General 4 appreciates your warning.
S' VOICE: Your Honor, I should say for the Applicant, 6 that the Attorney General can assume that he will get a similar 7 motion from the Applicant and I may go further than the 8 . testimony that Mr. Turk just outlined.
9 MR. TURK: Incidentally, I told Mr. Fierce, and the I 10 Attorney General that yesterday, when I spoke to him that that 11 was my intention, so that he was aware of it. l 1
1 12 JUDGE SMITH: Ms. Curran, were you cut off? l qN- 13 MS. CURRAN: No, I was not. I think that Ms. Doughty l 14 had something to say.
15 JUDGE SMITH: Ms. Doughty?
16 MS. DOUGHTY: Yes, I would like to concur with the 17 points and join in the objections raised by Mr. Ostrander for !
18 the Commonwealth and Mr. Brock for the Town of "ampton and also 19 to concur with what Ms. Curran said.
20 And in addition, there appears to have been some 21 revisions in the Decontamination Reception Center Area as well 22 that constitutes a bit of a surprise. Specifically the l 23, provision by the Applicant that they will be seeking Fire 24 Department personnel from other undesignated communities to j 25 augment the staffing of the host communities.
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.Q- Ll. That was not:in the Plans-before.
2 JUDGE > SMITH: All right, well,^we. appreciate the -
1 34 Tsentiment.that you'are rai' sing here.
We.want to' point out that 4 one of the' reasons.that'the NRC has a provision fo'r7 the filing 5 .of testimony before the hearing, and exchange of evidence 6 .before1the'. hearing, is exactly.for the reasons that,you are 0.:
Lraising, so that you can be given timely notice as'to1what.the 8 case 11s going to be.
9 If you still; feel that you have been. surprised or 10 unfairly treated, you can make those arguments-at the time that 11 the respective item of testimony is offered. You have.been
- 12( given more time .to ' examine this . tendered evicience,-l than the
' 13 Rule provides. It seems'to me that the-issues have been laid 14 out fairly ~well'throughout the past six months'or a year.
15 We will have to have a specific' showing as to the 16 specific items: of evidence, before we can entertain your-17 ' complaints and objections.
-l 18 JUDGE HARBOUR: And within the confines of the- !
19 Contentions as presented.
20 JUDGE SMITH-: And within the confines of the l
21 Contentions as prosented.
22 Anything further?
- 23 (No response.)
- 24 JUDGE SMITH: I have one final item of business.if we i
25 are all --
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1 MR. OSTRANDER: Mr. Chairman, this is Frank
- 1. ).
2 Ostrander, and I have one other matter.
3 JUDGE 1 SMITH: All right, Mr. Ostrander.
4 MR. OSTRANDER: The rebuttal testimony scheme, that 5 was presented to us by the Board's Order of September loth, 6 causes us some problems. -That once again, it is - - maybe Alan 7 Fierce can probably outline the problem, better than I.
8 MR. FIERCE: I will give it a try.
9 There is a series of questions and concerns we have 10 regarding how and when rebuttal testimony is to'be handled. And 11 we understand that the Board is.asking for an outline of t.
12- rebuttal testimony.
rm 13 And from our standpoint, Mr. Chairman, what we would U
14 want to have is flexibility at the hearings to do, and in cases 15 where there is a single point'or two that needs to be rebutted, 16 have the flexibility to put on a rebuttal witness and to give j l
17 .that quick rebuttal testimony orally.
18 But there are other cases where the testimony that i 19 has been filed contains technical information or detailed l 20 studies or reports, we would like the flexibility to file 21 written rebuttal testimony of a more complex nature and have 7 22 that filed after the hearings. >
l l 23 So, that is what we are seeking and in terms of an l L !
24 outline of the rebuttal now, prior to the hearings, you know, j 25 because we are not sure until we have the cross-examination, l
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(,f 1 whatithe exact rebuttal should be, it becomes very difficult to-2 outline it-in advance, and you know, were we to have a pre-3 ' hearing conference,-this would be an issue that we would be 4 asking for some clarification on.
5 JUDGE SMITH: This is a pre-hearing conference.
6 MR. FIERCE: I guess I am asking for some ;
7 clarification on that point.
8 JUDGE SMITH: Well, that was Mr. Ostrander?
9 MR. FIERCE: This.is Alan Fierce. I guess the first 10 question was, can we have that kind of flexibility that I 11 suggested?.
12 JUDGE SMITH: Well, I tell you, I am reading your r3 13 paragraph where you make the point.right now, and I stumble j
%)
14 over mockery and shambles and that is why I did not appreciate 15 the point that you are making, but I will get to it.
16 This is a provision in the Board's September 9th, 17 Order, you say September 10th or September 9th?
18 MR. FIERCE: I believe that it was the 10th.
19 JUDGE SMITH: I am not familiar with it, and it may l i
t 20 very well be that we can resolve it, with a moment off the 21 record now, or maybe it can be resolved later.
22 Let me go off the record now, and consult with my 23 colleagues and see what the problem is here. l l
24 (Off the record at 3:57 p.m.)
25 JUDGE SMITH: Back on the record.
l3 LJ Heritage Reporting Corporation (202) 628-4888
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-2568 (j} 1 Yesy this is Judge Smith again, and,we are back on ]
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2' fthe record. We had a brief conversation about this matter off 3 the record.
4' And I am still not clear as to everything that is ,
5 involved in this, and I am aware that the. Appeal Board awarded 6 the opportunity for rebuttal testimony. I am also aware that, j l
7 so far in this case, it seems that the interveners have been l
8 given more opportunity to file case-in-chief testimony, rather 9 itube rebuttal or not, than is normally the case.
10 I think that the Board is going to have to consult on 11 this at greater length. As I understand it right now, you have 12 been given an additional opportunity to file, to present 13- written testimony over and above the traditional. The 14- traditional in NRC hearings is for following discovery, for 15 direct testimony and rebuttal testimony to be filed, 16 simultaneously, in anticipation and in recognition that you 17 know what you have to rebut through discovery. I 18 Then, if it follows on cross-examination or other i I
19 developments, that additional rebuttal is necessary, you seek i
20 relief for that and are given that opportunity. I 21 It seems to me that now you have been given a blanket l I
22 opportunity --
23 JUDGE HARBOUR: No.
24 JUDGE SMITH: Well, I 'lon ' t know what you have been 25 given so that the fact is that we are not going to be able to j O
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2 JUDGE HARBOUR: They have been given leave to -- have l
3 been given an --
4 JUDGE SMITH: Oh, you have been given an opportunity 5 to outline in' advance of the hearing, an opportunity to file 6 rebuttal. And you want more. time, is that it?
7 MR. FIERCE: Well, the first thing that we want to .
8 know is whether we were going to have flexibility at the !
9 hearing to'do what I call, the quick oral rebuttal where a
10 necessary and where we saw fit, without having to do an outline 11 of that in advance? l 12 JUDGE SMITH: I don't understand that to be any of i f~s 13 intention to part from the traditional ability that all-parties
(_) l 14 have, and that is, when events during a hearing, demonstrate a j l
15 need for rebuttal that earlier it could not have been !
16 anticipated, it was not anticipated, that the Board gives you j
- 17. appropriate relief. Either, as you say, a quick rebuttal or I
18 whatever is needed. I don't understand anything that has l
19 happened so far to change that.
20 That is a fundamental element of due process that you 1 21 have to have reasonable opportunity to address the information 22 presented against you and if it comes up late, well, we will 23 have to take that into account.
24 JUDGE HARBOUR: Our requirement for an outline 25 addressed the pre-filed addressed direct testimony.
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()3 . l' JUDGE SMITH: Let's go off t.M record again.
L 2 (Off the record, at 4:02 p.m.)
3 JUDGE SMITH: I have again confirmed with my 4 ' colleagues that the intention of that rebuttal testimony 5 outline, is to give.you an early opportunity,1where you already :
6 see it, based upon the pre-filed direct. testimony, a request i
7 for rebuttal testimony.
8 You.are, in no way, denied the traditional 9 opportunities to request rebuttal testimony as the hearing 10 unfolds arui you demonstrate the need for it. All of thie is 11 something.that is extra that I have never seen before in a 12 hearing, and it is -- I don't see how you can complain about 13 it.
14 MR. FIERCE: I am not complaining, Your Honor. We l 15 just want clarification and I appreciate it, I think that I 16 have gotten that now, thank you.
17 JUDGE SMITH: Okay.
18 MR. TURK: Mr. Sherwin Turk?
19 JUDGE SMITH: Yes, sir, i
- i 20 MR. TURK: In light of the fact that the hearing l
21 start dato has now changed, by a week, may we also ask that the l 1
22 order for filing the outline of rebuttal testimony move a week
.23 ahead as well, so the outline would be due October 5th?
24 JUDGE SMITH: The first day of the hearing.
I 25 MR. TURK: Thank you.
O Heritage Reporting Corporation j (202) 628-4888 i
2571-jf j,. 1 JUDGE SMITH: Now, as we were off the record, I was 2' able to overhear the conversations about, can you get together l
3 on the issue problem?- You made an invitation to the people.
4 And I understand that.some people cannot make it. I 5 Well, that is fine, we cannot control how you go about it. But 6 we_wish to make it clear that we require each party to enter I 7 into these negotiations. You must-do it. Is there any 8 question about that?
9 (No response.)
10 JUDGE SMITH: If it is a question of scheduling, that l
11 is one thing, but the parties do not have discretion not to 12 negotiate the categories of issues. Is there any question
( 13 about that?
(_3) j 14 (No response.) !
15 JUDGE HARBOUR: And we will send them a copy of this 16 with our order. !
17 JUDGE SMITH: Does everybody hear that?
18 VOICEt Yes. f 19 JUDGE SMITH: Does anybody have any question about i 1
20 that?
i 21 (No response.) l l
22 JUDGE SMITH: All right, is there anything further, 23 Mr. Ostrander, have we completed your agenda? j 24 MR. OSTRANDER: There is one more item.
1 25 JUDGE SMITH: Okay.
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2572 l 1 MR.'OSTRANDER: It has'come.to4our attention that the-
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1 2; LApplicant'sLintent~to file their mass plan some time inLthe !
l 3 'next few days,f if not' weeks.-And w'elexpect that they wou'dc j 1
-4; 'probably file a motion.asking for a Contention schedule and a 5' ' hearing schedule'and by way of early warning,.ILguess, we would 1
6 'like to sort of notify the. Board.that-we would like some !
7 consider'ation of the~ burden'of the New Hampshire hearing when.
8 they' consider ~any such schedule.
9 In other words, we would rather not be in the
'10 position of-having to use.our' resources in'three different ways-11 at'the same time. In other words, having the review, and 12 quickly filing the petition on a.whole new Plan that we have 13- not seen before, at the same time that-we are litigating the-14 Newl Hampshire Plan might be a' bit much.
~ 15 And we would just like to notify the Board of.that.
16 : JUDGE SMITH: Right, those are matters correctly 17 raised at the time that the issue arises. We. understand your 18 warning us about that. j l
19 All right, anything further? )
I 20 MR. TURK: Judge Smith, this is Sherwin Turk again. !
21 i JUDGE SMITH: Yes?
22 MR. TURK: During my talks next week with the ,
23 ' parties, I am going to inquire from them as to how much cross-24 - examination they will anticipate that they will have per issue, i
25 And so that we can also see if we can come to a l O.
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( j 1 common understanding of how much time we will need for issue. .
2 And I wanted to inquire of the Board, though, whether the Board 3 sees that the four weeks now scheduled for hearing, should be 4 sufficient to cover all of the issues, or does the Board 5- ' speculate that the main things will be beyond four weeks?
6 JUDGE SMITH: We have every hope that four weeks will j 7 do it, however, we don't know and we have actually made our own .j 8 plans, and reservations for that hearing room, into December. l 9 But let me say, that the burden of the hearing and l
10 the length of the hearing, will depend, in large part, upon the ;
11 success of the negotiations that you are going to be having as !
12 to' order of procedure and categories of Issues, and the lead 13 intervenor approach.
14 That will be very important. If all of those things (
15 fall into place, then the shortest period might be achievable.
16 MR. OSTRANDER: One last thing, since we are still on 17- the conference call, I would mention to the other parties, that 18 I hope to be up at Mr. Dignan's office to use his conference i 19 room as he-has offered, commencing at 11:00 a.m., Monday 20 morning.
21 JUDGE SMITH: All right, is thore anything further?
1 22 MR. FLYNN: I have a couple of quick questions and ;
23 this is Joseph Flynn. l 24 One is that assuming that we hear within a couple of 25 days of that meeting, what the grouping of issues is, when is LO Heritage Reporting Corporation (202) 628-4880
1 L ,2574-rm l: '() 11 the reorganized testimony due?
2 At the beginning of the conference call, you had 3 requested that we pull apart our testimony and organize it i
i L 4 according to the grouping of the issues. And I am just asking
- 5 by'what is the date by which that needs to be filed?
6- JUDGE SMITH: That is right, Mr. Flynn.
7 That is something that needs to be addressed. So 8 let's back up.
9 Mr. Turk is going to undertake to organize 10 negotiations as to the issue categories and the order of 11- presentation and that, I expect, should be done before the end 12 of next week.
13 Does anybody object to that?
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14 VOICE: Your Honor, I did not hear that, could you
'15 repeat that please?
.16 JUDGE SMITH: Mr. Turk will undertake to organize the 17 parties into issues and lead interveners, beginning next week 18 and the Board will expect that to be completed by the end of 19 next week.
20 Does anybody object to that? i 21 (No response.)
22 JUDGE SMITH: All right, then that being the case, we 23 will give the parties until -- just ]et me consult with my i 24 colleagues here.
o l l 25 (Judges confer.)
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Ty} 1 JUDGE SMITH: And now, bear in mind,.that there are 2 going'to be no substantive changes, see. And so we can give 3 them a'long, long time.
4 That being the case, then, we will expect to.have new 5 testimony in our hands, October.2nd. In the event that you are. l 6 unable to do that, after the best efforts that you can make,.
7 and then you can bring it to the hearing. But make, whatever, !
8 make a good effort to get it.into our hands, October 2nd that !
9 is Friday.
10 We would expect to have a report from Mr. Turk, as 11 soon.following'the September 28th, as he can get it into our 12 hands, and it may'very well be that we will have another 13 conference on this,-telephone conference.
[
14 And,-in that event, it would be very, very helpful, 15 if we could keep it so that it is easily organized to this 16 active group as we are now. I think that it is almost an ideal-17 group to have a telephone conference call with. But it may be ,
i 18 possible that Mr. Turk will be able to give us a stipulation or l
19 a joint report, or whatever, and that is what I hope that.you [
20 do.
21 Are there any questions on that?
22 MR. TURK: Your Honor, I am hoping to beat your 23 deadline, I am hoping to get an agreement on issues and lead 24 interveners, by Wednesday the 23rd. l 25 JUDGE SMITH: Oh, great, that would be fine, y
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I 2576 j e s (n)I 1 I was concerned about the people,being available for l
.. 2 your negotiations.
3 MR. TURK: Well, fine, I hope that we don't have to )
4 take the whole week on it.
t 1
5 JUDGE SMITH: Fine, that is great.
,1 6 MS. CURRAN: This is Diane Curran and I just want to 7 clarify, I understand that the offer being directed to try'to 8 agree on an order or presentation?
9f JUDGE SMITH: Yes. That is right, order of 10 presentation, groupings of issues, and the order of 11 presentation, deference should be given to the Applicant, and l
12 lead interveners. :
13 Anything further?
'(}
v 14 MR. FLYNN: Yes, one quick point. Earlier in the 15 conversation, Judge Smith, you raised a question about the [
1 16 pagination of FEMA's testimony and it is not appropriate'to go l 17 through that with you on the phone, but I would like to just 18 let the parties know that I intend to call you privately later.
19 It would be an ex parte communication, I suppose, but I would ,
20 just like to get clarification on that, at a later time.
21 JUDGE SMITH: Mr. Flynn, perhaps we can save this 22 call, for that purpose, if you would like to, when we get done, 23 I don't know.
24 MR. FLYNN: Well, I did not want to take everybody 25 else's time on this.
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'l- JUDGE SMITH - Oh ', I see,-you just-have1 individuals.
2 MR, FLYNN: Right. ,
l
.3 JUDGE SMITH: Okay.
L4 LYou understand that our concern, Mr. Flynn,7 1s that j Lr . 'I 5- your attachments, there is a'rather substantial volume of them
.6 and they don't have page numbers on~them.
7 MR. FLYNN: Well,'that is what I wanted tot talkLto 8 you:about, I just-looked through it. !
9 ' JUDGE SMITH: Oh, you wanted to talk to us'about it?
! -11 JUDGE SMITH: Oh, okay, what,'all right'.
12 .MR,~FLYNN: I mean, I wanted to ask you to show me k 13 where'it was that the page numbers were missing,.because mine 14 .does have page' numbers. But again, this iernot somethingLthat-15 we need to take everyone else's time.
16 JUDGE SMITH: Certainly, we will do that, we will'do
- 17. that very thing. We will get in touch with you, if nobody 18 objects to that very limited type of ex parte communication.
19 And point that out to you and we only used you as an 3 20 unfortunate example, we happened to pick yours up and see that.
21 MR. FLYNN: Delieve me, I will accept full l
22 s responsibility.
23 HR. OSTRANDER: This is Frank Ostrander, and I would 24 like to make a similar request to chat with you about .j 25 summaries, because we do have summaries in every volume of our Ih san ]
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h 3 MR..OSTRANDER: 'They start.on the first page. ;
c 4' JUDGE-SMITH: Well, it may be your bad ~1uck'that the l- b
'S one that I picked up.as I walked in to this telephone
- conference was yours and I did not identify the first page as 6 .l
- 7 being a: summary, but --
8 MR'.'OSTRANDER: Well, I think that the summary that.I 9 am: talking about:Is actually on.page 12. j 10 JUDGE. SMITH: The summary is on page 12?
11: 'MR . OSTRANDER: Right.
'12 JUDGE; SMITH: Well,.that is exactly'what.I was 13' saying,.you know, it is very far into the testimony, without a
'14. ' table of contents for the summary to do us any good.
15 We'need it at the outset. We need a way to manage a 16 large volume of exhibits and testimony, physically, handle them 17 easily'and that-is by summary or purpose of.the testimony.
18 And you could cut and paste and send your summary and 19 paste it on the front, if you want to. That is okay. !
1 20 MR. OSTRANDER: Okay. l i
.21 JUDGE SMITH: So long as it does the job, okay? i l
22 MR. OSTRANDER: Okay, f 23 JUDGE SMITH: Now, we have one further item and this 24 is a matter of great importance to the Board.
25 I, myself, was quite pleased with this conference ;
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I 2579 h 1 that everyone showed a cooperative attitude and a great sense 2 of responsibility.
3 However, I am concerned, that because of the long .
4 nature of this hearing and the hardness of the issues, the ,
5 positions on the issues, and the everything that is involved, 6 of an escalation of intemperate statements by counsel.
7 And I came into this hearing and the first document 8 that I read, was Mr. Ostrander's joint, the one filed by Mr.
l 9 Ostrander, the joint intervenor's emergency motion.
10 And in it, on page 2, for example, he states that 11 they have had insufficient time to prepare given this Board's 12 " inexcusable failure to previously schedule and hold a pre-gg 13 hearing conference" and the next paragraph you alluded, as I i 14 stated before, to " mockery and shambles" and you talked about 15 the Board's " belated September 9th order".
16- And now, I won't defend or disparage or even comment 17 on what has happened in this case before or other cases, but I 18 believe that your comments, Mr. Ostrander, are in the direction 19 and approaching the margin of disrespectful statements.
20 And I want to bring your attention to Section 2.713 21 of our Rules and let me read to you the relevant part.
22 It says, the -- "We are required in the exercise of 23 our duties, to function in a quasi-judicial capacity, and 24 accordingly, parties, and their representatives, in -
25 proceedings, subject to this subpart, are expected to conduct l (:)
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h 1 themselves with honcr, dignity and decorum as they should 2 before a court of law."
i 3 And I would suggest, Mr. Ostrander, that if you had i l
4 filed a pleading like that before a court of law, in the State 5 of Massachusetts or the Federal Courts, it would be regarded as 6 an unusual document.
7 I want to remind you that we will enforce, throughout 8 this hearing, that subpart. And it may have been a matter that 9 you were in a hurry to get this document out and you had strong 4
10 feelings on the issue, but nevertheless, I think that we have a 11 long and difficult hearing ahead of us, and it will be easier 12 for all of the parties, and the Board, if all of us, including g 13 the Board, try to temper our remarks and have civility always l 14 uppermost in our minds.
15 I do not regard this as an admonition, it la just an 16 early concern that is, maybe the direction that the parties ,
17 might move and to cut it off early. )
10 MR. OSTRA!1 DER: Mr. Chairman, this is Frank 19 Ostrander.
20 I appreciate your warning, and I would just like to 21 make one remark which is that well, I don't want to dwell on 22 the past in this proceeding, but we did have some difficulties 23 and letters to go up at one point over scheduling.
24 And we made a motion for a pre-hearing conference and 25 it was denied, by the previous Board, so that --
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() ,s 1 JUDGE SMITH: You review the language that you used 2 in that order and decide for yourself what you think.
I-l 3 MR. OSTRANDER: Okay.
I i
p 4 JUDGE SMITH: I am sure that you will recognize the 5 great value and benefit to everybody if ana temper our remarks.
6 Is there anything further? ,
1 7 MR. FIERCE: Yes, Judge Smith, this is Alan Fierce 8 again, from Massachusetts.
9 One matter has occurred to me belatedly and I am 10 sorry to bring it up at this point, but it occurred to me that l 11 in your effort, as you described it, to get up to speed on this 1
12 case, that .t i might be very much helpful to you and to perhaps,
]
A 13 other Members of the Board, as well, to act on a motion that is N} . y 14 still outstanding that the interveners had filed some time ago, l j
15 which was a motion for a view. )
1 i
16 And we think that it is very important for the Board I 17 to understand the layout of the beach areas and their very 18 close relationship to this nuclear plant and I think that it 19 would be extremely helpful to you if you are not familiar with 20 that situation, to come up to Massachusetts, and perhaps, even 21 now, just a day or so ahead of the beginning of the hearings, 22 or perhaps to take the first day of the hearings and allow the 23 parties and their counsel to accompany you on a view of the 1
24 site. '
25 JUDGE SMITH: Excuse us a moment.
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L 2582 h 1 (Off the record, at 4:20 p m.)
2 JUDGE SMITH: Back on the record at 4:21 p.m. 'i i
3 JUDGE HARBOUR: He and I took a tour of the beach on 4 Saturday, August 1st, and which is a nice warm day and we 5 toured the entire area including the beach areas.
6 JUDGE SMITH: I have seen -- the suggestion that the 7 Board view the salient landmark features is a good one. Judges 8 Linenberger and Harbour have already done that. They had a ,
1 9 visit up there, some time ago, arranging hearing space, and 10 they did exactly that. I, myself, happened to be on vacation i 11 up there, not too long ago, and I did it as a matter of 12 curiosity, not knowing the benefit that it would bring to me, g 13 but I assure you that early in the hearing, I will do it again, 14 with the issues in mind and your consideration in mind.
15 Now, as to whether the interveners go along or not, 16 wo see no need for that. ;
1 17 JUDGE HARBOUR: The parties. )
18 JUDGE SMITH: Yes, the parties, any parties, wo see q 19 no need for that, and the points of interest are perfectly 20 obvious and apparent and we need no one to point it out to us 21 and the awkwardness of arranging that type of trip is not q l
22 outweighed by the value of it. J 23 But we do appreciate your reminder on that, and I 24 will assure you that I will be fully cognizant of the physical 25 features when the hearing, when the evidentiary hearing begins.
,s Heritage Reporting Corporation (202) 620-4888
l 2583 k 1 Thank you.
2 Is there anything further? I 3 (No response.)
4 JUDGE SMITH: If there is nothing further, again, I )
5 want to thank everybody for participating with early notice, -
6 and the spirit of cooperation today, the civility today, and 7 the progress that we have made and we look forward to seeing !
I 8 you at either at the hearing or the pre-hearing conference 9 whenever the report of the issues comes in. !
10 MR. DIGNAN: Your Honor?
11 JUDGE SMITH: Yes?
12 MR. DIGNAN: I did have one thing just to advise the
')
LJ 13 Board, and that is the Applicants do plan to furnish the Board i
14 with the testimony on disk. The reason that we are later than 15 the staff is because from our word processing system, it has to 16 go through, the computer people have to play with it, in order 17 to get it into the format that has been requested by the Board, i
, I 18 as I understand it, and I am no expert on this. l 19 But in light of the fact, that testimony may have to 20 be reorganized, is it satisfactory to the Board, if we send the 21 disk after it has been finalized, as to how the testimony is 22 going to be?
23 JUDGE SMITH: Yes, we certainly want the disks in the l 24 form in which it is going to be placed into evidence.
I 25 MR. DIGNAN: All right, then we will have it, and we l'1 l l
(J l l Heritage Reporting Corporation (202) 628-4888 E
2584 k I will hold off sending any disks until it is in final form, 2 then.
3 JUDGE SMITH: Yes, I guess that will be necessary, 4 yes.
5 MR. DIGNAN: Thank you, Your Honor.
6 JUDGE SMITH: Yes, and thank you for bringing that to 7 our attention.
8 Now, is there anything further for today?
9 (No response.)
10 JUDGE SMITH: All right, if there is nothing further, 11 then this pre-hearing conference is adjourned.
12 And thank you.
} 13 (Whereupon, at 4:25 p.m., the pre-hearing conference ;
u) 14 was adjourned.)
15 16 17 18 19 20 21 22 23 24 25 1
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-2685
.1 CERTIFICATE
-2: <-
- 3 This;is:to certify that the attached proceedings before the 4- ' United States Nuclear Regulatory Commission in the. matter of:
5 Name: TELECONFERENCE CALL,,PUBLIC. SERVICE CO. OF.NEN HAMPSHIRE, Seabrook Station 6
7 Docket Number: 50-443-4440L 8- Places .Bethesda, Maryland 9 Date: September 17, 1987 10 were held as herein. appears, and that this is the original 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Commission taken stenographically by me and,.
.. l 13 .thereafter reduced to typewriting by me or under the direction I
\i 14 of the court reporting company, and that the transcript is a
-f'd
\ :
15 1true and accurate record of the foregoing proceedings.
16 /S/ NN Pk .i y, 0 'i 17 (Signature. typed): Margaret Daly 18 Official. Reporter 19 Heritage Reporting Corporation 20 1
21 !
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24 25 !
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