ML20235W025
| ML20235W025 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/01/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#189-8323 ASLBP, OL, NUDOCS 8903100466 | |
| Download: ML20235W025 (57) | |
Text
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L UNITED STATES O
l NUCLEAR REGULATORY COMMISSION i
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._________________________________________________________q ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
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PUBLIC SERVICE COMPANY
) Dccket Nos.
OF NEW HAMPSHIRE, et al.
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50-443-OL
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50-444-OL (SEABROOK STATION, UNITS 1 AND 2)
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Prehearing Teleconference O
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Pages:
15757 through 15811 Place:
Bethesda, Maryland Date:
March 1, 1989
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HERITAGE REPORTING CORPORATION OficialReporters O
1220 L Street, N.W., Suite 600 Washington, D.C. 20005 8903100466 89030j (202) 62M8 PDR ADOCK 05000443 T
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15757 UNITED STATES NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD oc50T&I In the Matter of:
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Docket Nos.
PUBLIC SERVICE COMPANY OF
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50-443-OL
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NEW HAMPSHIRE, et al.,
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50-444-OL
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(SEABROOK STATION, UNITS 1 AND 2)
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TELECONFERENCE Wednesday, March 1, 1989 U.S. Nuclear Regulatory Commission 4350 East-West Highway Bethesda, Maryland The above-entitled matter came on for hearing,
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pursuant to notice, at 10:08 a.m.
BEFORE:
JUDGE IVAN W.
SMITH, CHAIRMAN Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 JUDGE JAMES H.
CARPENTER, MEMBER Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 JUDGE RICHARD F.
COLE, MEMBER Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 JUDGE KENNETH A.
McCOLLOM, MEMBER Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Heritage Reporting Corporation
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APPEARANCES:
For the Applicant:
THOMAS,G. DIGNAN, JR.,.ESQ.
JEFFREY TROUT, ESQ.
Ropes & Gray 225-Franklin-Street l
Boston,-MA 02110-For the Staff of the Nuclear Reculatory Commission:
SHERWIN E. TURK, ESQ.
Office of, General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 For the Commonwealth of Massachusetts, ALLAN FIERCE, ESQ.
Commonwealth of Massachusetts One Ashburton Place, 19th Floor Boston, MA 02108 O
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1-E B"O C E E R I E G E-2 10:08 a.m.
3 JUDGE SMITH:
This conference was by Mr. Fierce to-4 discuss the. joint stipulation regarding'ETE issues.
5 Would you proceed, please, Mr. Fierce?
6 =-
MR. FIERCE:- Thank you, Your Honor.
I'm not sure f
7 I requested a telephone call.
8 I did want.to --
9-JUDGE SMITH:
Wait a minute.
What did you 10 request?
11 MR. FIERCE:
When I called yesterday.and spoke to 12 Bob Pierce, I was merely trying to confirm whether the 13 action that the Applicants and the Mass AG had now taken by.
14 sending a copy of the ETE stipulation to the Appeal Board 15 had resolved any difficulties that you and the~ judges had 16 with jurisdiction to entertain this particular stipulation.
17 And, as Mr. Pierce and I discussed it, it evolved into, 18 apparently, the need for this conference call.
19 JUDGE SMITH:
That is correct.
20 MR. FIERCE:
There wee a couple of other issuer 21 that then came up in the context.
He indicated that perhaps 22 your jurisdictional problem had been resolved.
He didn't 23 want to speak for you, but there were potential concerns 24 regarding the rewriting of JI-22 and also the outstanding 25 issue of what now becomes of the returning commuters issue Heritage Reporting Corporation
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- 1 in New Hampshire.
2l JUDGE SMITH:
When the Board received the joint 3
stipulated regarding ETE issues dated February 16, 1989, 4
several things occurred to us.
One was that there was no 5
company motion, there was no request for Board relief, and l
I 6
that the subject matter included, in part, matters that have 7
passed from our jurisdiction up to the Appeal Board.
8 I informed the Chairman of the Appeal Board that I 9
did not believe that we had jurisdiction to approve the 10 matter, assuming that we were being requested to approve it, 11 which I inferred that we were, and at the same time Mr.
12 Pierce called counsel for the Applicants and counsel for the 13 Attorney General and informed them that it was the Board's 14 view that there was a jurisdiction problem, or that we cold
( ) 15 not approve the entire stipulation, if that is what we're 16 being requested to do.
17 Mr. Dignan followed through, apparently in 18 response to our concerns, with a new stipulation dated 19 February 23, 1989, and this time the stipulation is before 20 the Atomic Safety and Licensing Appeal Board.
Mr. Dignan 21 sent a letter to the Appeal Board dated February 24, 22 pointing out that certain matters were pending before the 23 Appeal Board.
24 That's where we are now.
25 THE REPORTER:
Excuse me, please.
This is the Heritage Reporting Corporation (202) 628-4888
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_1 Court Reporter.
Are we dealing here with a Mr. Fierce and a 2
Mr.-Pierce?
3
' JUDGE SMITH:
Right.
4 THE REPORTER:
Okay.
g 5_
JUDGE SMITH:
Mr. Fierce is on the telephone l
1 6
conference call, and Mr. Pierce is not.
l 7
THE REPORTER:
Okay.
8 JUDGE SMITH:
He's in our office here.
9 THE REPORTER:
All right.
Thank you.
10 JUDGE SMITH:
Mr. Reporter, is this your first 11 time covering this proceeding?
12 THE REPORTER:
This is the first time with this 13 many people.
14 JUDGE SMITH:
All right.
We'll try to be
(
'15 especially careful and identify ourselves when we speak.
16 THE REPORTER:
Okay.
Thank you very much.
17 MR. FIERCE:
Your Honor?
18 This is Mr. Fierce again.
19 JUDGE S!!ITH:
Yes.
20 MR. FIERCE:
I believe -- and Mr. Dignan can 21 correct me if I'm wrong -- that the intentioh that the Mass 22 AG and the Applicants had in filing the stipulation with the 23 Appeal Board was not to file a substituted ETE stipulation, 24 but to file a simultaneous filing with the Appeal Board and 25 with your Board in order to cover all the bases and resolve Heritage Reporting Corporation (202) 628-4888 l
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any jurisdictional problems.
But we still did want to have
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2 the ETE stipulation approved by the appropriate boards, and 3
that's where we are right now.
We're, essentially, in a 4
posture asking you whether this does resolve the problem 5
that you had with respect to this stipulation before you can 6
entertain an order or action approving it.
7 JUDGE SMITH:
Well, let's first establish one 8
thing.
Are you requesting this Board to approve the 9
stipulation --
10 MR. FIERCE:
Yes, we are.
11 JUDGE SMITH:
-- to the extent that we have the 12 jurisdiction to do it?
13 MR. FIERCE:
Right.
14 JUDGE SMITH:
That was not clear, either.
It
( ) 15 could be read that you were just informing us of the 16 stipulation, and in fact that really is the tenor of Mr.
17 Dignan's letter of February 24 to the Appeal Board, 18 MR. FIERCE:
This is probably just a function of 19 the way we've litigated the case so far.
As you know, there 20 have not been, prior to this point in time, many 21 stipulations between the Mass AG's Office.
In the past 22 month or so, there have been a number of them, and it's my 23 assumption -- and, again, I can ask Mr. Dignan to confirm --
24 that these stipulations regarding various contentions were 25 to be presented to the Board for approval.
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MR. DUFFY:
Yes.
I 2
FE. FIERCE:
This is the only one that, to my.
3 knowledge, required the additional filing with the Appeal' 4
Board to cover jurisdictional bases, so this is the only one 5
that's somewhat different.
6 JUDGE SMITH:
Mr. Fierce, a reasonable inference 7
to be drawn from the stipulation is that you were requesting 8
our approval.
I'm not faulting anybody.
It would have been 9
neater to have had a joint motion moving for approval, but 10 we didn't fail to act or just turn away from it because of 11 any procedural defect'like that.
12
.How, the problem is, I do not believe that the 13 Board can approve the stipulation.
Obviously,, parts of it 14 are within our jurisdiction, and parts of it are within the l
) 15 Appeal Board's jurisdiction.
.I don't' know what the Appeal 16 Board thinks about it.
'I have no feeling for it.
I 17 informed them that I did not believe I could approve it, and 18 that's where it stands.
Certainly your letter has brought 19 it to their attention.
20 I might say, from our point of view, from the 21 licensing point of view, that we very much encourage
- 22 negotiations leading towards settlement of these issues.
23 MR. DIGNAN:
Your Honor, this is Tom Dignan in 24 Boston.
May I make a suggestion for, at least, the Board to 25 reconsider the view you just expressed along these lines?
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It seems tx> me -- and, perhaps, I'm the guiltiest
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2 party of all, because I should have been-on top of this more 3
procedurally, but we've been doing other things, like 4
testimony -- that there are certain parts of this document 5
that don' t need anybodys approval.
To the extent that 6
people are withdrawing contentions or waiving appellate 7
rights, I think the law's pretty clear that, indeed, if a 8
party withdraws a contention, the contention disappears, and 9
even if the Board wants to do something about it they can't, 10 unless they act under sua sponte authority.
11 But what does need approval -- and I think there 12 is a matter, probably, clearly within your jurisdiction, 13 probably clearly within the -- and is the most important 14 part, probably, to Mass AG.
The part that needs to be 15 approved, it seems to me, is two-fold.
One is a part 16 wherein we make certain commitments, because I'm sure the 17 Mass AG would like to formally approve to ensure that there 18 is an approval of the Board and therefore a commitment that 19 is enforceable by the NRC upon us to do certain things.
20 JUDGE SMITH:
Right.
21 MR. DIGNAN:
And that, it seems to me, is clearly 22 within the Licensing Board's jurisdiction.
23 The other thing that is clearly, it seems to me, 24 within your jurisdiction is, as part of this settlement we l
25 essentially rewrote a contention that is pending before you.
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1 That never 1.wnt through filing process, fighting, and
)2 approval by the Board and admission by the Board, and 3
clearly it' is within the Licensing Board's jurisdiction to 4
approve that change in the contention.
And that needs to be 5
approved, it seems to me, as a matter of law.
6 And so I respectfully suggest that the Board may 7
want to reconsider the jurisdictional question, because I 8
think the only thing the Appeal Board is even involved in --
9 and they really don't have much to say about it -- is the 10 fact that the Mass AG has withdrawn its appeal of certain 11 mattere up there.
And, even if the Appeal Board elected 12 not to approve that, if the Mass AG sticks with its 13 agreement, which I'm sure it will, they won't brief the 14 appeal, and that's the end of the matter.
15 I think it's cleaner if the Appeal Board also 16 blesses the thing, and hopefully the Licensing Board, too, 17 because then there.will be no question higher up on 18 anything.
19 But it seems to me that the two matters that 20 really needs approval clearly lie within your Board's 1
21 jurisdiction.
They haven't left, somehow, to the Appeal l
22 Board, yet.
23 JUDGE SMITH:
Well, Mr. Dignan, the difficulty 24 with your position is that it's eminently logical.
- However, 25 that does not mean that it's in concordance with NRC law.
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l-1 We lost jurisdiction over that aspect ofithe ETE,
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2 the evacuation time estimates, as to which we did not 3
reserve jurisdiction, ten days following the service of our 4
' initial decision.
5 MR. DIGNAN:
Well, Your Honor, you kept 6
jurisdictionLdeliberately over the returning commuters, 7
which is part of this settlement.
8 JUDGE SMITH:
That's correct.
J 9
MR. DIGNAN:
And that clearly stayed within your 10 jurisdiction.
11 JUDGE SMITH:
There's no question about that.
12 Now, I don't particularly like this situation.
It 13 seems to me that parties should be able to come to the NRC 14 and say, "Here's what we've done, guys.
Give us your.
( ) 15 blessing and don't bother us about niceties of who does it."
16 You've.done a good job.
Unfortunately, I cannot act where 17 we do not have jurisdiction, and the Commission has 18 repeatedly admoniebsd licensing boards for exceeding their 19 jurisdiction.
We will go as far as we can under Commission 20 policy, under the rules, and under our own instincts to aid 21 the parties to settle issues, but we have to sort out the 22 jurisdictional problem.
23 The aspect of it concerning the fractional 24 factorial database and using the assumption or the findings 25 of the partial initial decision are certainly within our Heritage Reporting Corporation (202) 628-4888
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15767 1
cognizance.
We' understand the record; we understand the 2
facts.
They are,.indeed, a part of what we decided.
But 3
that matter is before the Appeal Board.
4 MR. FIERCE:
Your Honor, this is Mr. Fierce again.
5 It's actually before both boards, if we really 6
want to be precise about it.
There are Mass AG ETE 7
contentions, now joint intervenor contentions, pertaining to 8
the SPMC which address a number of these issues that are 9
addressed in the stipulation.
Obviously, the stipulation is 10 a more broadly based document covering ETE issues that 11 address New Hampshire as well, in some cases.
12 My suggestion would be that, with respect to the 13 SPMC contentions now pending before you, this Board 14 recognize that is has some jurisdiction over these ETE
( ) 15 issues, and to that extent approve the stipulation.
It 16 appears to me, now, that we're going to have to go to the 17 Appeal Board to get their approval of the remaining portions 18 of the stipulation for which they have jurisdiction.
But 19 there is some jurisdiction you do have now regarding the 20 SPMC contentions concerning ETEs.
21 MR. DIGNAN:
Your Honor, may I make this 22 suggestion, rather than keep going around here.
23 If Mr. Fierce, why doesn't Ropes & Gray draw up a 1
24 motion -- it'll be a joint motion to be filed by both the AG 25 and the Applicants -- asking the Appeal Board to remand to 1
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you so much of the case as is required for you to approve
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L-2' this stipulation.
Would that clean it up?
3 JUDGE SMITH; Mr. Dignan, to me, the cleanest way 4
to handle this is for the Appeal Board to remand 5
jurisdiction to the Licensing Board - -
6 MR. DIGNAN:
Okay.
7.
JUDGE SMITH:
-- to consider the package in the 8
entirety.
9 The problem with Mr. Fierce's proposal is, as I 10 understand the stipulation, you do not want to have part of 11 it approved and yet not have all of it approved.
There's a 12 bundle of agreements.
And, as I look at it, either party 13 could be prejudiced if part of it were approved but not all 14 of it.
)15 MR. DIGNAN:
Right.
16 So why don't we draw up a joint motion to the 17 Appeal Board asking to remand so much of the case as is 18 necessary for this Board to approve the stipulation.
19 MR. TURK:
Your Honor, before you rule on that 20 suggestion --
21 This is Sherwin Turk.
22
-- can I ask a few preliminary questions and then 23 express a concern?
24 First, let me note that the Staff has not been 25 involved in drafting or negotiating these stipulations.
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was aware, through conversations with Popes & Gray, that 2
there was some negotiating going on.
I didn't know the 3
details of it.
All I was told was that the ETE contentions 4
might be negotiated out.
And then I was presented with the 5'
final stipulation, just as the Board was.
6 I guess the preliminary question is, first, is the 7
February 15 stipulation the same as the February 23 8
stipulation, except for the signature?
9 MR. FIERCE:
Yes, it is.
10-MR. TURK:
All right.
11 And then I'd like to ask, what is the purpose for 12 seeking Licensing Board approval of the stipulation?
It 13 seems to me that, if Mass AG is willing to withdraw its 14 contentions.
And if you have a private agreement with the 15 Applicants to revise their plan or to revise the ETE, that's 16 something that you can negotiate directly with them, and you 17 don't need Licensing Board approval of that.
18 MR. FIERCE:
Because we wanted to make sure that 19 there would be follow-through and that there would be 20 oversight of that follow-through down the road.
i 21 MR. TURK:
But you're not going to get oversight.
)
22 I think what you're looking for is an enforcement club.
23 MR. FIERCE:
Well, I'm not sure what that means, 24 but to the same extent that the Board's PID in New Hampshire 25 directed, on page 289, the Director of Nuclear Reactor Heritage Reporting Corporation (202) 628-4888
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. Regulations, in consultation with FEMA to verify that, it 2
says here, "the Applicants have provided to the State of'New 3
Hampshire the Board's findings modifying ETEs presently 4
contained in Volume Six of the New Harpshire plans."
5 MR.. TURK:
It would be a license condition on 6
something -- some condition that must be satisfied before a 7
license can issue.
8 MR. FIERCE:
That's right.
You've already got a 9
situation where the Director of Nuclear Reactor Regulation 10 is overlooking something that's going to happen with respect 11 to ETEs.
That now needs to be made consistent with this 12 stipulations.
13 MR. TURK:
In NRC parlance, what you're looking 14 for is either a license condition or a condition that must
( ) 15 be satisfied prior to issuance of a license.
But I'd like 16 to ask you, don't you think it would be important to have 17 Staff input on whether or not these conditions are 18 acceptable.
19 MR. FIERCE:
I'm groping for all the assistance I 20 can get.
I've never been in this posture before, as you 21 know, Sherwin, negotiating out of a major por' tion of the 22 case.
I don't, perhaps, know the technical, correct way to 23 do it.
I do know that we do want to have some confidence 24 that there will be follow-through on the series of steps 25 that the Applicants have committed to take.
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1l' 15771 l-1 If you can suggest to me the best way to go about 2
doing that, I'm probably going to be in agreement with you.
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JUDGE SMITH:
Mr. Fierce, I think that it's 4
entirely possible for the Attorney General to stipulate 5
these issues with the Applicants after the case closes and 6
not involve the Licensing Board or even the NRC, perhaps.
7 But 1 think that you're correct that a stipulation approved 8
by the presiding officer as being consistent with the public 9
interest and our understanding of the evidentiary record and 10 our understanding of the reasons for our partial initial 11 decision is probably more enforceable -- or let's say more 12 easily enforced than just a stipulation that has not had 13 approval or gone tnrough the adjudicative process.
14 Considerations which underlie a Board decision do
( ) 15 become a part of the law of the proceeding and are 16 enforceable.
However, this'is a reason why the NRC Staff, 17 who does have the responsibility, in the last analysis, of 18 enforcing Board orders, should be brought into the process.
19 Here again the NRC Staff sometimes doesn't act 20 consistently.
Sometimes the NRC Staff-says, "Well, we're 21 not really involved in a particular issue," and yet always 22 the NRC Staff has the ultimate responsibility of living with 23 the results or the product of an adjudication.
In this 24 instance, Mr. Turk, I think quite prudently, is inquiring as 25 to what is going to transpire.
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Again, let me emphasize that I'm talking.today not
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2 to throw problems'in your way on arriving at settlements.
3 Not only do we have a regulation that the Commission's 4
policy on adjudications in volume 13 of the NRC reports 5
requires presiding officers to encourage settlements.and to 6
make them facilitate them.
When I raised the jurisdictional 7
issue, it wasn't to create. problems at all.
We will do 8
everything within our authority and our power to facilitate 9
this negotiation, this stipulation, and future ones.
10 In addition to the regulations and the policy, 11 we're very much aware, from our own observations, that this 12 litigation is a very expensive one and that it is taking 13 resources that we're aware that the Attorney General has a 14 shortage of them and that the Applicants, if we're going to O(_/ 15 believe the Attorney's Generals motions, have resource 16 problems.
As responsible NRC adjudicators, we would much 17 rather see funds being spent to improve the emergency plans 18 than spent in the hearing room battling them out.
And, of 19 course, that's the underlying reason for having not only NRC 20 policy but a national judicial policy to facilitate 21 settlements.
22 So you have our ear, and we're going to be as 23 helpful as we can, and that is why we went to the unusual 24 step to bring it to the Appeal Board's attention that a 25 jurisdictional problem exists and to bring it to your Heritage Reporting Corporation (202) 628-4888
15773 1
attention.
We will see it through.
This Board -- believe t/
2 me, gentlemen -- will act responsibly in this matter.
3 We realize that the issue that you seek to settle 4
was an important issue, was an emotional one, and that, in 5
the first place, we think you're to be commended at arriving l
l 6
at what seems to us to be a very logical, sound settlement 7
of the issue.
We have some questions to ask about it, but 8
we're with you.
We wish to help, and we wish to do it as 9
promptly as possible, because I take it that you need a 10 prompt decision on it, too, don't you?
- Because, 11 theoretically, it will shape the nature of the forthcoming 12 proceeding.
13 MR. FIERCE:
I think that's correct, yes.
14 I appreciate everything you're saying, Your Honor.
p) 15 I would like to follow up on Mr. Turk's comments.
It seems
(_
16 to me that what we would be requesting, if there are the two 17 categories that Mr. Turk described, a license condition and 18 I think he said, a condition precedent to a license, that 19 this is more in the category of a license condition.
There 20 are parts of this stipulation that make it clear that a 21 license could be issued prior to the completion of some of 22 the items that are listed on the stipulation.
There's a 23 footnote, in fact, on page 2 --
24 MR. DIGNAN:
Let's get one thing stralght.
There 25 is nothing in that stipulation whereby we have agreed to a Heritage Reporting Corporation (202) 628-4888
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pre-license condition.
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2 MR. FIERCE:
I think I'm agreeing with you, Tom.
l 3
If you look on pcge 2, at footnote 1, there is a j
4 note that, if suitable --
5 MR. DIGNAN:
-- if you are, this deal is gone.
I 6
will do no pre-licensing conditions.
That was part of the 7
original negotiations.
8 MR. FIERCE:
I'm agreeing with you.
9 MR. DIGNAN:
Okay.
10 JUDGE SMITH:
Mr. Dignan?
11 Mr. Dignan?
12 MR. DIGNAN:
Yes, You.x Honor.
13 JUDGE SMITH:
Mr. Fierce twice has said that there 14 is no dispute.
He agrees with you.
Did you hear him?
( ) 15 MR. DIGNAN:
Yes, I did the second time.
16 JUDGE SMITH:
Well, he said it right off the bat.
17 MR. FIERCE:
We're in what I would call the other 18 category.
It's a license condition, and that may be what it 19 is that we're looking for the Board to do once we get this 20 whole thing back before you.
21 Now, does the Staff need to have further input 22 into this process before we ask for the Board action, 23 Sherwin?
l 24 JUDGE SMITH:
Mr. Fierce?
25 MR. FIERCE:
Yes.
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JUDGE SMITH:
Can you hear me?
- \\
2 MR. FIERCE:
Yes, I can.
3 JUDGE SMITH.:
You are using a speakerphone, aren't 4
you?
5 MR. FIERCE:
No, I'm not.
6 JUDGE SMITH:
Well, you're using some device that 7
overrides our other voices, because I repeatedly tried to 8.
interrupt your statements.
9 MR. FIERCE:
I'm on a phone that, I would agree, 10 is not one of the highest quality around, but it's clearly 11 just single phone hear.
12 JUDGE SMITH:
This is a problem that comes up in 13 these telephone conference calls.
Mr. Dignan did not hear 14 you, you didn't hear me.
Somebody's using a device, and we
(/15 are, ourselves, that is one of the pre-emptive devices that 16 overrides everyone else's voice.
17 Now, you can start from the very beginning and 18 restate what you just said.
19 MR. FIERCE:
My statement is basically directed to 20 Mr. Turk, and I'm asking him if the parties, the Mass AG and 21 the Applicants, agree that this is in the category of what I l
22 think you call a license condition, does the Staff need to 23 have further input into this before we present the thing to 24 the Board after it's remanded from the Appeal Board, prior 1
25 to the Board taking final action?
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MR. TURK:
A short and simple answer:
in my view,
(_/
2 yes.
3 MR. FIERCE:
There is further input that the Staff 4
would need to make?
5 MR. TURK:
Yes.
6 And let me explain to you a little bit about my 7
concern.
8 MR. FIERCE:
Okay.
9 MR. TURK:
First, it was not apparent to me, in 10 reading the stipulations, whether it applies to both the 11 Massachusetts and the New Hampshire plans.
As we're all 12
' aware, there was a single ETE, drafted by the Liebermann 13 group, which applies to both plans.
This stipulation 14 appears to apply primarily, if not exclusively, to the
( ) 15 Massachusetts side.
Maybe I'm wrong, but there's some 16 clarification that I'll need on that.
17 Secondly, you've got a set of agreements by the 18 Applicant to revise the ETE, taking into consideration 19 different factors.
Contrary to what may be your belief, the 20 Staff does not simply agree to anything an applicant 21 presents to them.
If Staff's consultant, Dr. Urbanik, 22 concludes that the revisions to the ETE will distort beyond 23 what will present a reasonable expectation of an ETE, then 24 we wouldn't be able to agree to it.
I can't tell you now 25 that we're going to have that position, because we haven't 1
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seen the re-run, we haven't had a chance to discuss with 2
Liebermann and your expect what the potential change to the 3-ETE might be.
But we're not going to simply rubber-stamp in 4
order to avoid litigation.
5 At the same time, let me join in Judge Smith's 6
comments.
I have no interest in seeing protracted 7
litigation.
I think a settlement of the issues is 8
preferable, and I think a settlement can be reached.
I 9
think,:in general, Allan, if you don't mind my saying so, 10 the Licensing Board decision on New Hampshire gave you 11 pretty much what ycu could reasonably have expected, in 12 terms of a. larger beach population estimate and other 13 factors.
So it may be that you have no interest in
't proceeding with the appeal on New Hampshire issues.
- But,
()15 before you get us to agree to a stipulation, I will need to 16 sit down with our expert and with you and your expert and 17 with Mr. Dignan and his expert and make sure that we can 18 agree to the terms.
19 The alternative is that you get a good-faith 20 promise from the Applicant to try to win Staff approval once 21 they present the revised ETE.
22 JUDGE SMITH:
Mr. Turk, I want to tell you what my 23 concern is here.
24 In the first place, I'm surprised that the Staff 25 has remained silent so long on this issue.
It's two weeks Heritage Reporting Corporation (202) 628-4888
~
J l
15778 1
old now, and for the first time we're hearing your concerns.
2 I did ask you if you intended to file a paper on the joint 3
stipulation, and you said yes, but that paper never 4
materialized.
Now I understand that you tnought I was 5
talking about the sanctions.
I don't know.
But I asked you 6
right off the bat if you intended to file a paper on the 7
joint stipulation, and I understand that you were.
Was 8
there a misunderstanding there?
9 MR. TURK:
There must have been on my part, Your 10 Honor, because I had not intended to file a response to the 11 stipulation.
12 JUDGE SMITH:
Either you heard me say " sanctions,"
13 or I said " sanctions," but I was talking about stipulations 14 when I talked to you last week about your schedule for
(_)/ 15 filing papers.
(
16 Now, I'll tell you what my concern is, Mr. Turk.
17 This stipulation, although it is founded on good logic, and 18 it's a sound stipulation, is also remarkable in that long-19 time and hard-fighting adversaries got together on a key 20 issue and an emotional issue.
And I regard the stipulation 21 as being somewhat fragile on that account.
I do not want to 22 see a lot of time go by.
I want to see extremely prompt 23 action, but having all the input that this Board needs, if 24 we ever get the authority to address it, to handle it 25 promptly and responsibly.
Heritage Reporting Corporation (202) 628-4888 l
t.,
1 e
15779 1
It's our view that the matter should be handled q/
N-2 very, very promptly, because it impacts upon the hearing.
3 It impacts upon -- already there would be a problem with 4
getting testimony, I suppose, if the stipulation withers and 5
doesn't survive.
I think your approaching it in a very 6
relaxed way, Mr. Turk.
7 You've had the stipulation, now, for a long time.
8 MR. TURK:
I recognize that, Your Honor.
Let me 9
note that, after I received it, I did sit down with Dr.
10 Urbanik, who was here in Washington last week.
We went 11 through it together; we had questions that we didn't 12 understand.
I called the Applicants' law firm, and I talked 13 to one of their attorneys.
Coincidentally, one of their 14 emergency planning people was in the office that same day,
( ) 15 and he came on the line.
I did express to the Applicants 16 that we had a lack of clear understanding of it, and we had 17 a concern that we'd like to see the outcome of the ETE runs 18 before we could approve it.
19 My own personal opinion is that the Staff approval 20 of the stipulation was not necessary, because I had not seen 21 it as requesting Licensing Board approval.
I saw it as a 22 withdrawal of contentions, an agreement by the Applicant 23 revising ETE.
None of which needed to involve the Licensing 24 Board, at least as I saw it then.
And, in my view, without 25 needing Licensing Board approval, if the ETE was to be re-I Heritage Reporting Corporation
/
(202) 628-4888
(-)
l i
I
15780 1
run, it would be presented to Staff for approval, and we'd
,f~s()
2 either approve it or not outside the jurisdiction of the 3
Board.
So I didn't see this as requiring a Staff response 4
or Licensing Board involvement.
5 Let me indicate that my reading of that comes from 6
the very first paragraph of the stipulation, which to me was 7
unequivocal that Mass AG and the Applicant submit the 8
stipulation which was intended to resolve ETE issues.
No 9
request for action by the Board, no enforcement condition, 10 nothing to indicate it was a conditional agreement.
11 JUDGE SMITH:
Is it your view that presiding 12 officer approval is required?
13 MR. TURK:
I saw it as a withdrawal of 14 contentions, Your Honor.
/~)
s_j 15 JUDGE SMITH:
Well, there's more to it than that, t
I 16 isn't there?
How about the substitute contention?
17 In any event, Mr. Turk, I believe that some type 18 of presiding officer approval is appropriate, at least as 19 far as parts of it are concerned.
20 MR. TURK:
As I understand it today, Your Honor, 21 Mass AG is looking for Licensing Board approval, which is 22 different from my initial understanding.
l 23 With respect to the contention rewrite, I compared 24 the words of the contention to the prior version of that 25 same contention and saw that it was identical, with the i
Heritage Reporting Corporation (202) 628-4888 l
l l
l
.t 15781 1
exception that a.few words had dropped'out.
I didn't see
~C)
(s _ - 2 that_that raised an issue that required Licensing Board-3 ~
action._
4~
JUDGE SMITH:
Well, I disagree with you.
5~
That-takes us into the question of the contention.
6 We're trying to understand what che substantive difference 7
is on the contention.
'8 MR. FIERCE:
Could I take a crack at that, Your.
-9 Honor?
10 This is Mr. Fierce again.
11 The original contention, if I can paraphrase it,-
12 basically was'one that stated that the Massachusetts:
13 decision-makers would always reject the FARs because they "14 knew that they were based on ORO's ETEs that were
( ) 15 inaccurate.
In admitting that contention, the Board.
16 accepted it with the understanding that is was essentially a 17 challenge to the adequacy of the ORO ETEs, the SPMC's ETEs 18 and thought of it in the same fashion that it had described 19 Mass AG contention number 1, which essentially put the 20 Applicants to their proof of showing the adequacy of the 21 entire plan.
22 What has happened now is that, because we resolved 23 basically all ETE issues except one, which is the human
- 24 behavior / driver behavior issue, we stripped away from JI-22 25 everything else except that, the human behavior / driver Heritage Reporting Corporation (202) 628-4888 1
i
.A
15782 1
behavior issues, so now the contention reads'that the Mass 2
AG. decision-makers will always reject ORO's' PARS because 3
they know they're based on ETEs which haven't adequately 4
taken into account human behavior.
5 JUDGE SMITH:
So it would be fair to say, then, 6
that substitution of the present JI-22 for the previous JI-l 7
22 is, in effect, a withdrawal of a portion of an issue.
1 8
MR. FIERCE:
I would say that's right. hit's a 9
substantial narrowing of the issue that was originally 10 presented in JI-22 to focus on just one of perhaps many 11 underlying ETE issues.
12 JUDGE SMITH:
Do you agree, Mr. Dignan?
13 MR. DIGNAN:
Yes, Your Honor.
14 JUDGE SMITH:
If that's the case, then, I think
( ) 15 there's merit to the --
16 MR. DIGNAN:
-- suggestion of the Staff.
17 JUDGE SMITH:
How's that?
18 MR. DIGNAN:
I said, there's merit to the 19 suggestion of-the Staff.
20 JUDGE SMITH:
Yes, right.
21 MR. DIGNAN:
This why I said earlier that the only 22 approval -- and it was drafted; I think Mr. Turk fairly read 23 it -- the only reason for approval -- and I can understand, 24 in a highly charged case, why they'd want -- is to be sure 25 that there's a lever out there to assure that my client goes Heritage Reporting Corporation
}
(202) 628-4888 l
15783 1
through with its promises in the stipulation.
And I,
(
2 frankly, think that that lies squarely within your l
3 jurisdiction, with no problem whatsoever.
But, if 4
necessary, we'd be glad to draft a motion to get it back S
from the Appeal Board long enough for you to do that.
6 MR. TURK:
Your Honor, if I can suggest a simple 7
remedy, if it's acceptable to the Mass AG and the Applicant.
8 Put one additional clause in the stipulation that 9
says that final approval of the terms shall rest with NRC 10 Staff.
And I promise both of those parties that we'll give 11 it a good-faith, close look.
Let it rest with the Staff.
12 JUDGE SMITH:
Take it away form the Boards 13 entirely.
14 MR. FIERCE:
Well, I'm not prepared to do that.
I
( ) 15 don't have authority to do that at this point.
16 JUDGE SMITH:
All right.
17 MR. FIERCE:
We do view the Staff, perhaps, you 18 know, with some sense of suspicion on some of these issues.
1 19 They have been an adversary to the Mass AG on the ETE issue.
20 Why would we want to put the ETE stipulation in their hands?
21 JUDGE SMITH:
The Board wants to confer a moment.
22 We' re off the record now.
23 (Whereupon, a short recess was taken.)
24 JUDGE SMITH:
Gentlemen, I hesitate to give you 25 advice, but I think that Mr. Dignan's proposal to go to the Heritage Reporting Corporation (202) 628-4888 O
l i
15784 1
Appeal Board probably has merit.
It's not for us to approve 2
that.or disapprove it, of course.
That's entirely up to you 3
people.
But I think that, if jurisdiction over this matter 4
were to lie with the Licensing Board, with our understanding 5
of the record and the considerations involved, we could 6
quickly arrive at a solution to the matter that would 7
satisfy that staff and all of the parties with our 8
blessings.
Without that, I don't think we can.
9 Your other alternative is to take it away from the 10 adjudicative bodies altogether, but frankly I think that 11 that is a very complicated process, given the fact that you
?2 have a part of the matter.
We kept jurisdiction on the 13 returning commuters.
I guess that is the principal reason 14 why there is still something lingering here.
However, if in
( ) 15 your judgment you think you can take it out of adjudication 16 without the approval of the Board, we're not looking for 17 reasons to add continued work.
We're confident that, if you 18 include the NRC Staff in the process, that you'll get a good 19 result.
20 And, Mr. Fierce, I think that you're probably 21 correct, in the literal sense that if you had had a Board 22 decision which approved the settlement, that you might have 23 somewhat of an easier time.
But it would be absolutely 24 amazing to me and absolutely inconsistent with all my 25 experience at the NRC that, if you arrived at a settlement Heritage Reporting Corporation (202) 628-4888
15785 1
agreement with the NRC Staff, the Applicants, and the 2
Massachusetts, Attorney General, that if anybody failed to e
3 honor the terms of that agreement, of that stipulation, that 4
you would have no difficulty, in my view', of going to the l
5 Director of NRR for enforcement of it.
6 The benefit of a Board approval is incremental, 7
and I've never known it to be necessary, but it is an 8
incremental assurance.
But that's your call.
9 MR. FIERCE:
We do feel more comfortable with your 10 approval of it, Your Honor.
11 JUDGE SMITH:
With that, what's your will?
12 MR. FIERCE:
Well, Your Honor, could I raise one 13 issue related to JI-22.
Perhaps it needs to wait until you 14 get full jurisdiction of it back.
l h 15 JUDGE SMITH:
We still have jurisdiction of JI-22.
16 MR. FIERCE:
To the extent that the parties have 17 stipulated, on this rewrite of JI-22, there is this issue.
18 As it is not rewritten -- and it focuses entirely 19 on the human behavior issue -- we realize that in that form 20 the Board would not have allowed it and would have rejected 21 that contention.
We don't want to move to have the 22 contention withdrawn.
Obviously, Mass AG wants the 23 contention to stand, but we realize that the appropriate 24 category for that contention at this point is in the 25 rejected c.ontention category.
Heritage Reporting Corporation (202) 628-4888 gg
15786 1
We, obviously, would like to have it as a 2
placeholder, depending on what the outcome is at some point 3
in the future regarding the human behavior issues.
But, at 4
this point, we understand we are not allowed to present 5
evidence to your Board regarding the driver behavior / human 6
behavior issues.
So we now have a contention where we are, 7
essentially, blocked from presenting any evidence that would 8
support.the contention because of prior Board rulings on 9
human behavior.
10 Again, I'm not sure exactly what the appropriate 11 procedure is.
Perhaps it is for the Applicants to move that 12 JI-22 as now rewritten be put into the rejected contention 13 category.
14 JUDGE SMITH:
Mr. Fierce?
( ) 15 MR. FIERCE:
Yes.
16 JUDGE SMITH:
I'm very glad that you raised that 17 point, because we regarded the entire stipulation to be not 18 severable, that if any part of it fails the entire 19 stipulation would fail.
And that was what troubled us about i
20 JI-22.
As we first read it, we agreed with you, that the 21 proper category would be as a r' ejected contention.
22 MR. FIERCE:
That's right.
23 JUDGE SMITH:
And yet we believe that, if you had 24 submitted a new contention as a part of the consideration 25 for the entire stipulation, then the rejection of that would
{
Heritago Reporting Corporation (202) 628-4888
15787 1
destroy the stipulation.
)
2 MR. FIERCE:
No, it w;uld not.
As long as the 3
contention, as rewritten, is placed in the rejected 4
contention category and stands in this rewritten form over 5
there, I have no objection.
6 JUDGE SMITH:
You're preserving your appeal right.
7 MR. FIERCE:
That's right.
8 JUDGE SMITH:
Does that help?
9 MR. FIERCE:
That helps me a lot.
That's what I 10 would like to see happen.
11 Not that I'm moving for my contention to be 12 rejected, understand, but given the posture of the case and 13 the evidentiary concerns against presenting any evidence of 14 human behavior / driver behavior, there is no evidence that
( ) 15 I'm allowed, essentially, to present on this contention, and 16 I realize that the appropriate category is the rejected 17 contention category.
18 MR. DIGNAN:
Well, wait a minute.
Before we got 19 too far down that road, it's one thing to preserve an appeal 20 right on the substance of whether or not we proved our case 21 in New Hampshire on the driver and whether it should be res 22 judicata.
I hope you're not trying to preserve the appeal 23 right that it was improperly rejected, as opposed to 24 summarily disposed.
25 THE REPORTER:
Excuse me, please.
Who was Heritage Reporting Corporation (202) 628-4888 O
l 1
l
__________________A
15788 1
speaking, then?
(/
2 MR. DIGNAN:
This is Tom Dignan.
l 3
THE REPORTER:
Thank you.
4 MR. DIGNAN:
Because one set of rules apply at the 5
Appeal Board on the rejection of contentions, and quite 6
another set of rules apply if what you're griping about is 7
that it was summarily disposed of on the grounds of res 8
judicata.
9 Now, if you're trying to -- I can't believe that 10 you're trying to hook me here --
11 MR. FIERCE:
I'm not trying to hook you, Tom.
12 MR. DIGNAN:
I know.
What I saying is, one of the 13 reasons we would rather have it approved is because we think 14 the way it properly goes out is on a res judicata ground or
()15 a summary disposition, one or the other.
And then he's got 16 his appeal on whether or not driver behavior was properly 17 handled in New Hampshire.
But we do not intend to give an 18 appeal on the basis that the Board rejected the contention 19 and improperly did so without allowing an opportunity to 20 offer evidence or doing it through the summary disposition 21 route, because then it becomes a possibly good appeal.
22 MR. FIERCE:
I'm not trying to gain anything by 23 this.
If that's the way you want to deal with it, Tom, 24 that's fine.
25 MR. DIGNAN:
That's what we want.
Heritage Reporting Corporation
('N (202) 628-4888
()
15789 1
MR. FIERCE:
I would prefer to see it not in the G(-).
2 admitted category status at this point, because it stands 3
out there unprovable by me.
4 MR. DIGNAN:
The reason we stipulated it the way 5
we did was just that, so that it would go out either on I
6 summary disposition or on res judicata grounds, or on lack j
7 of evidence grounds.
We do not want to set ourselves up for 8
a situation where the Appeal Board says the Licensing Board j
9 improperly rejected it at the entry level.
10 MR. FIERCE:
Fine.
How can we deal with it, then, j
11 at this point?
12 MR. DIGNAN:
Well, that's why we need approval of 13 the stipulation.
14 MR. FIERCE:
All right.
p!,) 15 MR. TURK:
If I can inquire --
16 JUDGE SMITH:
You've lost me, Mr. Dignan.
17 MR. DIGNAN:
Well, my concern is this, Your Honor.
18 As the Board is well aware, when the Appeal Board looks at 19 an appeal that a contention was rejected, if it was rejected 20 for any reason other than, it didn't have a basis, this, 21 that, and the other thing, then they say the Licensing Board 22 committed error.
They should have admitted the contention 23 and disposed of it on summary disposition.
24 I think this contention goes on summary 25 disposition on either of two grounds.
I think it goes on a
Heritage Reporting Corporation (202) 628-4888 i
l 1
i l
15790 1-the grounds of res judicatar-- that is to say, it's been 2
decided up in the New Hampshire case -- or rejection on the 3
usual form, on an affidavit.
4 Can you hear me?
l 5
(A discussion was held off the record.)
m 6
MR. FIERCE:
Tom, you'd better repeat what-you 7
said, because it didn't come through.
8 JUDGE SMITH:
We stopped hearing you when you 9
-started getting to res judicata, I believe.
10 MR. DIGNAN:
When you start setting up 11 placeholder, what you have to be sure of is that you place-12 hold only that appellate right that the other side is 13 willing to let you place-hold.
And the problem is, I don't 14 want this contention going up to the Appeal Board on the
( ) 15 grounds that it was, quote, " rejected" at the outset by the 16 Licensing Board, with the very strong case any intervenor 17 has at that point that there should be a remand and 18 reopening because the Licensing Board shouldn't have 19 rejected a contention which, on its face, states a basis.
20 I've burned too many times up there on that one.
21 The classic case, as the Board is aware, is that 22 marvelous case where Buck dissented, where they let in that 23 business about the kelp farm down in Texas.
I think it's 24 important the this contention go either on res judicata 25 grounds or in a summary disposition or on the grounds that Heritage Reporting Corporation (202) 628-4888
- g-1 15791 1
no evidence was offered at the end of the case.
I do not n(_)
2 think it's wise to have it-thrown in the rejected-contention 3'
bucket so that somebody can later appeal the thing on the 4
grounds that the Board improperly rejected a contention 5
that, on its face, had a basis.
6 TF t's what I'm concerned about, and that's why I 7
stipulated it the way we did.
8 MR. FIERCE:
My concern is that it is now'a 9
contention that is up for testimony to be filed on April.3, 10 assuming the Board approves the stipulation.
I would be 11 presenting evidence on it, but I'm certain, however, that it 12 would be a futile effort, because someone will then move to 13 strike it on the grounds of res judicata.
I'm just asking 14
.that I not be put to a futile task of preparing testimony
(~%
(,) 15 that isn't going to get admitted.
16 MR. DIGNAN:
We're not going to try to do that to 17 you, because what we were planning to do is, as soon as this 18 thing is approved, we'll file a fast motion that it should i
19 go out on the grounds of res judicata.
20 MR. TURK:
Allan, if I can ingaire, would your 21 evidence be the same as what you presented back in the New 22 Hampshire plan?
Nothing new pertaining to Massachusetts?
23 MR. DIGNAN:
That's res judicata.
24 MR. FIERCE:
Well, I'm not prepared to state t?,
25 this time what all that testimony would be.
It's clearly I
Heritage Reporting Corporation (202) 628-4888
1 15792 1
human behavior / driver behavior type testimony.
(~
's_)g 2 JUDGE SMITH:
I think it may be res judicata on 1
3 any account.
I think we found, I believe, in parts of our 4
initial decision, that we don't expect Massachusetts drivers 5
to be any different than New Hampshire drivers.
6 Why don't you put it this way:
if you offer this 7
contention --
You can't substitute a contention.
You can 8
only submit a contention subject to the Board's approval.
I 9
think that the contention has been decided in the New
~
10 Hampshire case.
And so do you, Mr. Fierce, and so does 11 everybody else.
Why don't you agree that that's the case, 12 and then your appellate rights.go up on the merits of the 13 New Hampshire decision?
14 MR. DIGNAN:
That would be fine with me.
( ) 15 MR. FIERCE:
I just need to have a contention in 16 the Massachusetts plan. side like this one, in the event I 17 were ever to'be able to prevail.
18 JUDGE SMITH:
As a placemarker.
19 MR. FIERCE:
That's right.
20 JUDGE SMITH:
All right.
21 MR. TURK:
Even so, if you prevail on your appeal-22 on the New Hampshire side, why would you need to litigate it 23 twice, anyway.
24 MR. FIERCE:
Well, it's only because of the way 25 the case has been structured, with the New Hampshire and the Heritago Reporting Corporation (202) 628-4888
15793 1
Massachusetts plans being litigated separately.
And there 2
are, in fact, separate ETEs in each set of plans.
3 JUDGE SMITH:
Let's leave it this way.
If the 4
matter comes down to us --
5 In the first place, the aspect of the contention 6
is within our jurisdiction.
There's no question about that.
I 7
We still have jurisdiction to refuse to accept a contention 8
based up on res judicata.
If this considerations comes t 9
the point where we're able to act on it, we will look back 10 to this conference, the agreement of the parties that this 11 would be regarded as res judicata, in addition to our own 12 view that that's the case, and reject it on that score.
13 That should take care of the problem, it seems to me.
Does 14 everyone agree?
h 15 MR. DIGNAN:
I agree, Your Honor.
16 MR. FIERCE:
I agree.
17 MR. TURK:
No problem, Your Honor.
18 JUDGE SMITH:
All right.
19 So, what we have left is that Mr. Dignan intends 20 to go forward with a joint motion to the Appeal Board.
- And, 21 in the meantime, Mr. Turk, assuming that the matter was 22 going to involve the Staff no matter how it arises, could 23 you get Dr. Urbanik involved in this right away, without 24 delay?
o 25 MR. TURK:
Yes, Your Honor.
Heritage Reporting Corporation (202) 628-4888
15794 l
l 1
MR. FIERCE:
I would even --
\\
2 This is Allan Fierce again.
3
-- offer up Dr. Adler to be contacted by Dr.
4 Urbanik to discuss this matter between the two experts, one 5
on one, so as to most quickly resolve any concerns Dr.
6 Urbanik has.
7 MR. TURK:
Where is Dr. Adler physically located?
8 MR. FIERCE:
I can 9
call you back, Sherwin, and give you the details.
10 MR. TURK:
I'd be willing to --
Rather than do 11 this by telephone, I prefer just to have us all get 12 together.
Boston or Washington.
13 JUDGE SMITH:
Whatever.
14 The Board regards this as a very, very high llh 15 priority matter, and of important public interest.
16 (Pause. )
17 MR. FIERCE:
Your Honor?
18 JUDGE SMITH:
Yes.
19 MR. FIERCE:
If we're done discussing that matter, 20 where I am, then, is back at the point where I called Bob 21 Pierce yesterday.
We have the outstanding issue of the 22 returning commuters.
23 In discussing the ETE stipulation with the p
24 Applicants, this issue came up, and it was our understanding 25 that the Mass AG would file as its response to the Heritage Reporting Corporation (202) 628-4888 4
y
l 15795 1
Liebermann affidavit and the Applicants' accompanying piece,
(
2 we would file as our response the ETE stipulation, which 3
sets forth a procedure for determining whether the returning 4
commuters, in fact, will or will not have an impact.
l 5
JUDGE SMITH:
Well, I think that we can suspend 6
that entire consideration until the stipulation is resolved.
7 Then that goes away, doesn't it?
8 MR. FIERCE:
I had received a call from Mr. Pierce 9
more than a week ago asking where the Mass AG's response on 10 the returning commuter issue was.
This was to be it.
- And, 11 to the extent that there's been a delay in that, it's only 12 because of the snaggles we've had here in resolving this ETE 13 stipulation.
14 That would be our response to the Liebermann
( ) 15 affidavits and the Applicants' motion.
16 JUDGE SMITH:
Hang on a moment.
17 (Whereupon, a short recess was taken.)
18 JUDGE SMITH:
When Mr. Pierce contacted you on 19 that, there was not any suggestion at all that a response 20 substantively was required.
He was simply following his 21 regular procedure of keeping track of the course of the 22 case, where pleadings are, if they' re late, is there a 23 response going to come in.
He was not suggesting in any way 24 how the matter should be handled in substance.
25 MR. FIERCE:
Fine.
Heritage Reporting Corporation (202) 628-4888
}
1
1 1
1.5796 1
JUDGE SMITH:
He was only accommodating the Board
/^)
(_-
2 by keeping track of' pleadings.
l 3
MR. FIERCE:
Well, that's what I told him we were 4~
planning on doing.
In fact, it was coincidentally when he i
5 called that I was preparing the papers to send in the 6
stipulations that very day.
And I've now withheld filing 7
that stipulation as a returning commuters response until we 8
know that we have a stipulation.
9 JUDGE SMITH:
Okay.
10 You're not going to be held accountable for a late 11 filing if this stipulation falls through.
It's a best 12 possible response.
If the stipulation falls through, you'll 13 have the chance to address it.
14 One last thing:
if you're having problems, if the
_~
,(,) 15 stipulation seem to be faltering, and there's any way the 16 Board can help, give us a call.
We will convene 17 immediately, as fast as we possibly can, to help you.
18 Anything further?
19 MR. DIGNAN:
Yes, Your Honor.
This is Tom Dignan 20 in Boston.
21 My colleague, Mr. Trout, reminded me this would be 22 a good thing to ask.
There are, I think, two stipulations 23 down there of settlement.
We've got another one going out 24 today.
These are other issues.
We're working very hard at 25 this settlement business.
Heritage Reporting Corporation
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%.)
{
15797 1
Would the Board prefer it if we put a motion on 2
the front of these.
3 JUDGE SMITH:
I think that that's more 4-traditional, and it clearly marks it as something that the 5
Board has to act on.
6 MR. DIGNAN:
All right.
We will do that.
We will 1
7 rectify that.
8 MR. TROUT:
And, Your Honor, I just want.to ask 9
Allan Fierce one thing.
10 This is Jeff Trout.
11 Allan, I want to get this thing out the door today 12 for any number of reasons.
Do I have your authority to (1) 13 sign your name to a motion asking the Board's approval to 14 these stipulations and (2) sign your name on behalf of all
( ) 15 the interveners?
16 MR. FIERCE:
You have that.
17 MR. TROUT:
Very well.
That's what I will do.
18 Now, Your Honor, there were two stipulations other 19 than the ETE stipulations that have already been filed.
20 What do we do with those?
21 JUDGE SMITH:
One of those stipulations was 22 withdrawal of contentions.
23 MR. TROUT:
We don't have to worry about those?
24 Does anybody feel that we do?
Applicants don't feel that we I
25 do.
i 1
Heritage Reporting Corporation
{}
(202) 628-4888
15798 1
MR. FIERCE:
Since I was not a party to the 2
negotiation of.many of those, I cannot say for sure with 3
respect to them whether Board approval would be needed or 4
not.
My guess is, to the extent that the Applicants have 5
committed to making certain changes in the plans in 6
conjunction with the withdrawal of the contention, then 7
there may need to be Board approval.
8 MK. TROUT:
Why don't I do this:
why don't we 9
file a single motion that goes to the three stipulations 10 that we've already filed and the two stipulations that are 11 all signed that were going to be filed today.
Five 12 stipulations in all.
And, just to be on the safe side, 13 we'll break the motion into two parts, going to the four, 14 with which, apparently, no one has any problems, and the one
()15=
going to ETEs, and ask for Board approval of the four and of 16 the one in a single joint motion to be signed by the 17 Applicants on behalf of Mass AG, on behalf of all the 18 interveners.
19 MR. FIERCE:
And, to the extent that there are 20
~ commitments that the Applicants have made to change certain 21 items, that these be made, not any condition precedent, but 22 a license conditions.
23 MR. TROUT:
Yes.
24 JUDGE SMITH:
Wait a minute.
Don't --
-25 MR. TROUT:
I wasn't going to put in that Heritage Reporting Corporation (202) 628-4888 O
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1 language.
I think, unless we say it's condition precedent, (3
()
2 it's understood by all of us, according to standard NRC 3
procedure, as being a license condition as' opposed to a 4
condition precedent.
You've got to make it expressed for it 5
to be a condition precedent.
6 JUDGE SMITH:
Is that correct, Mr. Turk?
7 MR. TURK:
I've never heard it expressed that way.
8 I'd rather it be explicit in what it seeks to do.
9 Generally, though -- let me address this to both 10 Applicants and Mass AG --
In normal litigation, your 11 approach is exactly right; you're the main protagonists.
If 12 you people can settle a lawsuit, then no one else really 13 needs to say anything.
But the Applicants remain subject to 14 Federal licensing approval --
( ) 15 MR. TROUT:
Yes.
16 MR. TURK:
-- which requires Licensing Board 17 approval of contested issues and NRC Staff approval of non-18 contested issues.
And you can't overlook that.
Even though 19 Staff has disagreed with Mass AG on many issues, that 20 doesn't mean that we're in the Applicants' pocket, and we 21 are still going to take a look.
Maybe we'll agree with the 22 stipulation, but we're not going to give up the right to 23 look and approve simply because the litigants are no longer 24 interested in having a contested issue out there.
25 MR. TROUT:
Well, this is of great practical Heritage Reporting Corporation (202) 628-4868 i
15800 1
moment.
I'm glad you mentioned that, Shep, because 2'
negotiations are still ongoing concerning others of the SPMC 3
contentions.
Are you telling me that -- assuming we follow 4
this format now that we seem all to have agreed on, that you 5
file a motion asking for Board approval of the stipulation, 6
therefore expressly giving the Staff oversight -- are you 7
telling me that you want more than that, that the Staff 8
wants to be actively involved in negotiations on all these 9
other SPMC issues?
10 MR. TURK:
I'm not looking for active involvement 11 in negotiations, but you have to include a clause that 12 recognizes by all parties involved in the stipulation that, 13 if the Staff, through the advice received through FEMA, has 14 a problem, but you've agreed to it, you may not get us to
( ) 15 accept it.
16 JUDGE SMITH:
That's not going to do it, Mr. Turk.
17 MR. TURK:
Well, what's the outcome, Your Honor.
18 We would have to be involved in negotiations, then.
19 JUDGE SMITH:
I would say you should have been 20 involved in these negotiations, and you should be involved 21 in all of them.
You can't expect the parties to work hard, 22 arrive at a settlement, have the Board approve it, and have 23 the Staff after the fact, after it's all done, say, " Wait a 24 minute.
We don't like it."
That's not fair, and it's not 25 practical.
You're entirely correct.
The NRC Staff, some of Heritage Reporting Corporation (202) 628-4888
15801 1
these negotiations could have impact on issues not in 2
controversy within the purview of the Staff.
Some of them 3
will require Staff enforcement.
You're very much a party to 4
the litigation, but after the fact is not going to do it.
5 They have a right to know, at the time they submit to the 6
Board a stipulation or soon thereafter, what the Staff 7
believes about it.
8 MR. TURK:
I accept that, Your Honor.
It's really 9
a difference in approach. I was approaching these things 10 with the assumption that these are withdrawals of 11 contentions, and ultimately they can make revisions to the 12 plans, and that would go through as long as FEMA or Staff, 13 whoever has the oversight on it, agrees that the plans 14 remain good.
( ) 15 JUDGE SMITH:
But the difficulty is, if the 16 Attorney General withdraws a contention in consideration of 17 plan change, and that plan change does not come about, where 18 are we?
19 MR. TURK:
Then, quite frankly, the Mass AG will 20 have given up a change to litigate something without getting 21 anything for its efforts.
22 JUDGE SMITH:
Yeah, right.
And they' re not going 23 to do that, are they?
24 MR. FIERCE:
We are not.
i 25 MR. TURK:
Well, then, you have to involve us.
Heritage Reporting Corporation (202) 628-4888 O
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JUDGE SMITH:
That's right.
fs
. (-)
2 Okay.
I think this has been a wholesome 3
conference.
4 MR. FIERCE:
I still think we're going to be able 5
to work this out.
In every instance that I'm aware of, the 6
plan change that's been agreed to is an enhancement in the 7
plans, and I can't imagine why FEMA or the NRC Staff would 8
have any difficulty in that.
The ETE one they want to take 9
a look at.
If we can get them to move quickly on it, I 10 think we're going to be able to convince them that this is 11 an appropriate way to proceed, as well.
So I just think j
12 that Mr. Turk and the NRC Staff have to make themselves 13 available very quickly and be prepared to move quickly on 14 these, and we should not encounter a problem.
But we do
( ) 15 want to avoid the difficulty you just articulated.
16 MR. TURK:
Let's talk about some dates later 17 today.
18 MR. TROUT:
All right.
19 I'm left, then, still with two mechanical 20 questions.
The first mechanical question is:
what do we do j
i 21 with the --
Putting aside the ETE; I understand where
)
22 everyone stands on the ETE stipulation.
There are four j
23 other stipulations that have been reached, covering all or 24 part of 20 different SPMC and exercise contentions, that 25 have been signed and sealed and either filed or prepared for Heritage Reporting Corporation l
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15803 1
filing on this case.
What do I have to do with-regards to
()
(_/-
2 the Staff regarding those either already filed or about to 3
be filed stipulations?
4 THE REPORTER:
Excuse me, please.
Who was 5
speaking, then.
6-MR. TROUT:
Jeffrey Trout, for the Applicants.
7 THE REPORTER:
Okay.
Thank you~.
8 MR. TURK:
The other stipulations that you've
.9 reached -- and I don't have them in front of me -- those
-10 stipulations dealt with issues that are normally looked at 11 by FEMA --
12 MR. TROUT:
Okay.
13 MR. TURK:
-- in its review of offsite emergency 14 plans.
( ) 15 MR. TROUT:
Yes.
16 MR. TURK:
I'd have to go back and look at the 17 terms.
My general approach until now has been that, when 18 the Applicants rev1Ae their plans and submit the revision to 19 FEMA for approval, that's when FEMA would be looking at it 20 and making sure that it could accept the revisions.
I have 21 not asked FEMA in the meantime to look at the stipulations 22 to tell us in advance whether they would accept the plan 23 revision with those terms.
24 MR. TROUT:
Well, do we have to have FEMA involved 25 in these negotiations as well?
Are you telling me we have Heritage Reporting Corporation (202) 628-4888
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15804 1
to have four-corner negotiations, Shep?
)
2 MR. TURK:
The normal process would be that the 3
Staff on offsite emergency plan issues would ask for FEMA's 4
input on whether the plans are acceptable.
q 5
JUDGE SMITH:
Mr. Turk, you have another problem 6
there,'and so does FEMA, and that is, in my view of the law, 7
if a matter is properly put before this Board by contentions 8
and we have jurisdiction over it, FEMA doesn't have any 9
choice.
It will take whatever.we approve.
That will be the 10 law of the NRC, assuming it survives appeal.
11 MR. TURK:
On contested issues, FEMA will have had 12 involvement and will have been able to give you their input.
13 JUDGE SMITH:
Yeah.
14 MR. TURK:
On a stipulated issue, if you don't
( ) 15 have FEMA's input, then that approach would require them to 16 be bound to something which they have not been able to 17 affect through the decision-making process.
I don't think 18 that's the right outcome.
19 JUDGE SMITH:
I'm not saying that.
I'm saying 20 that, once a matter's been put into controversy before us, 21 FEMA then will have to get involved with this Board, and 22 they cannot, after the fact, decide that they do not want to 23 accept a Board order.
24 MR. TURK:
I understand that, Your Honor.
25 JUDGE SMITH:
Do they?
That's more important, Heritage Reporting Corporation (3
(202) 628-4888
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15805 1
that they understand that.
2 MR. TURK:
Oh, I'm sure they do.
And that's 3
certainly true of all litigated issues.
But a stipulation 4
comes into a different category.
5 JUDGE SMITH:
No, it doesn't.
If it is a 6
stipulation as to an issue which was received into the 7
proceeding by the Board, our order approving the stipulation 8
is going to be the law of the case, binding upon FEMA and l
l 9
everybody.
10 MR. TURK:
Well, for the sake of Federal economy 11 of resources and proper process, we should have FEMA 12 involved, also, then.
13 JUDGE SMITH:
I guess so, right.
14 There are more words involved here than is prudent
( ) 15 to lay these things out. But we see that these things are 16 incremental improvements in the plan.
I don't see that 17 there's any problem, I think Mr. Fierce is correct.
18 MR. TURK:
In the long run, in the outcome, that's 19 probably going to be true.
I can't say that for sure on the 20 ETE.
It's just that I have problems understanding the 21 stipulation.
But, on the FEMA issues, I think probably 1
22 they're going to be accepted by FEMA.
We really will have 23 to have them look at it and send us some sort of letter 24 saying they would have no problem if a plan revision was to 25 put those changes into effect.
)
l Heritage Reporting Corporation (202) 628-4888 i
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1-MR. TROUT:
Let me revisit this in the context of I
2 FEMA's already having signed off on the adequacy of the i
3 plant.
I think the way that it was just characterized, what l
4 we've.in the settlement of these other iscues, the non-ETE 5
issues, is agreed to go beyond the plan to address certain 6
additional concerns of interveners.
Now, where that has j
7 involved rewriting, for example, a farmers' brochure that 8
has already been signed off on by FEMA, we have in the 9
stipulation a clause as it exists saying that the rewrites 10 have to be approved by FEMA.
That's been done..
11 But, where we say, and FEMA agrees, we need x 12 resources, and Mass AG has come in and raised a contention 13 saying we need x + 5 resources, and we reached a stipulation 14 agreeing that we'll provide x + 3, it doesn't strike me that
()15 FEMA needs to review that, because FEMA said x was enough; x 16
+ 3 can only be better than enough.
17 MR. TURK:
I don't have any argument with that 18 logic for that particular kind of example.
19 MR. TROUT:
The practicality is we're three weeks 20 from the commencement of hearings.
We've settled what is, 21 just in terms of volume, maybe a third of the case, and I'm 1
22 desperately afraid of seeing it all reopened.
.23 JUDGE SMITH:
Mr. Trout, the Board will be with 24 you all the way though this settlement ordeal, and problems i
25 such as you've described, we'll confront them early, but l
Heritage Reporting Corporation (202) 628-4888
I 15807 1
settlements are not_ going to falter because of problems like
. 2 that.
3 MR. TROUT:
Very well, Your Honor.
4 Then what the Applicants intend to do, unless we 5
are advised otherwise by the other parties or the Board, 6
we're going to file the joint motion to the Appeal Board, 7
asking them to remand whatever jurisdiction they need to 8
remand, whatever issues they need to remand to you in order 9
to approve the ETE stipulation.
I guess we'll hold out the 10 ETE stipulation for these discussions with the Staff.
- And, 11 assuming that those discussions reach a successful 12 conclusion, we will then file a joint motion asking the 13 Board to approve the ETE stipulations.
In the meantime, we 14 will file --'I guess we'll have to do it in two documents --
( ) 15 we will file a second joint motion on behalf of the 16 Applicants and all the interveners,.asking the Board to 17 approve all the other stipulations that have already been 18 arrived at.
Finally, to the extent that there are still 19 negotiations occurring and that we hope will, within a week, L
20 result in the settlement of still more contentions, we will 1
21 immediately take steps to involve the Staff and/or FEMA, to 22 the extent that the Staff and/or FEMA feel that they need to l
23 be involved in those negotiations, in those negotiations.
24 Is that approach acceptable to everyone?
25 MR. TURK:
I have no problem with that, for the Heritage Reporting Corporation (202) 628-4888 t
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ~
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15808 1
' Staff.
2 MR. FIERCE:
I think we'll give it the good-faith 3
try and see if it works.
To the extent that FEMA or the NRC 4
Staff does come up with objections on stipulations that the 5
Mass AG and the Applicants have reached that they think are 6
reasonable ones, we may still want to present them to the 7
Board for its approval, because I believe I agree with Judge 8
Smith that this is ultimately the Board's call, not the 9
Staf f's or FEMA's, on issues that are now currently pending 10 before the Board.
11 MR. TROUT:
I don't think we'll get to that 12 impasse.
I think that we'll all be able to, to the extent 13 that Applicants and the interveners are able to reach 14 agreements, I think that those will be agreements that will
( ) 15 be acceptable to the Staff and to FEMA.
I'm not too 16 concerned about that.
ETEs are an extremely technical 17 issue, and we had a long series of discussions involving the 18 experts, and I think it's fair and proper that we bring the 19 Staff and the Staff's expert up to speed on those 20 discussions and that he double-check what we did.
I'm 21 confident that the Staff will eventually --
22 MR. FIERCE:
Confident.
I don't have a day to 23 spare, to the extent they want people to fly to Washington.
24 I don't have a 18q to spare.
25 MR. ThSUT:
We're all in that boat.
The Staff's Heritage Reporting Corporation (202) 628-4888
)
1 I
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in that boat, too.
The Staff has to file its testimony; 2
they're the next ones to file testimony in these 3
proceedings, so they're up against a time wall, too.
But 4
we'll all do the best we can.
I think we're going.to be 5
able to preserve what we have, and I think, moreover, we're 6
going to be able to preserve the process.
That is of great 7
moment to the Applicants.
8 JUDGE SMITH:
That was well stated.
9 Gentlemen, you've all demonstrated an excellent 10 sense of responsibility in your handling this.
I have two 11 additional points I want to clarify.
12 One is that, some time prior to the beginning of 13 the hearing, we want another status conference, and the 14 Board needs better guidance as to the order of the
()15 presentation.
I'm not talking about the order of proof, in 16 the sense of who has the burden of proceeding, but in what 17 sequence witnesses will be presented.
So would you 18 negotiate and inform us of that.
We'll have some kind of a 19 status conference approximately one week before the 20 beginning of the hearing.
21 Finally, when you come back to us with 22 stipulations, do not, if you can avoid it, use the precise 23 term " license condition."
Those, I understand, are terms of 24 art, as is toch spec and other matters.
Commission 25 precedent is that, if the adjudicatory board makes a Heritage Reporting Corporation (202) 628-4888
15810 1
decision on the merits based upon a commitment, that that 2
commitment by the utility becomes enforceable as if it-is a 3
license condition, but there is a preference in NRC practice 4
not to laden licenses with a lot of stated conditions, 5
particularly of the nature that are non-technical, such as 6
this one.
But, if a license is authorized, as to the issues 7
which were before us, based upon commitments made by the 8
applicant, it is our understanding -- and I think this is 9
clear-cut Commission law -- that those are enforceable 10 commitments.
11 Do you agree with that, Mr. Turk?
12 MR. TURK: _Your Honor, where it's material to your 13.
decision, I would agree.
I hadn't looked at it that way in 14 terms of accepting a stipulation.
( ) 15 JUDGE SMITH:
You'd better consult with your 16 clients.
I think it's well established in Commission law, 17 but I'm not inclined to do much research on it.
It 18 certainly was the law, as I recall it, in the Three Mile 19 Island case.
If you have any question about that, you 20 consult your clients.
21 MR. TURK:
Your Honor, I don't have any questions, 22 because I'll approach the stipulations from that viewpoint.
l 23 So that, when we accept the stipulation, I will recognize it I
24 to be enforceable.
25 JUDGE SMITH:
All right.
l Heritage Reporting Corporation (202) 628-4888 b
15811 1
MR.. TURK:
May I ask.the parties to stay on after-2 the conference call concludes, to'see if we can begin 3
-setting up a negotiation time table.
4 MR. FIERCE:
I'm willing to stety on.
This is 5
Allan Fierce.
6 MR.-TROUT:
Applicanta will stay on.-
This is Jeff 7
Trout.
8 JUDGE SMITH:
All right.
We're going to sign off 9
now.
We're adjourning this prehearing conference, and the 10 Board is. leaving.
11 (Whereupon, at 11:28 a.m.,
the conference was 12 concluded.)
13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation (202) 628-4888 i
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1 CERTIFICATE 2
3 This is to certify that the attached proceedings before the 4
United States Nuclear Regulatory Commission in the matter 5
of:
6 Name:
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2) 7 Prehearing Teleconference 8
Docket Number:
50-443-OL and 50-444-OL 9
Place:
Bethesda, Maryland 10 Date:
March 1, 1989 11 were held as herein appears, and that this is the original 12 transcript thereof for the file of the United States Nuclear 13 Regulatory Commission taken stenographically by me and, 14 thereafter reduced to typewriting by me or under the
?
()
15 direction of the court reporting company, and that the 16 transcript is a true and accurate record of the foregoing 17 proceedings.
18
/a/
ca 44 14 0'
19 (Signature typed) :
Mark D.
Handy 20 official Reporter 21 Heritage Reporting Corporation 22 23 24 25 j
Heritage Reporting Corporation
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