ML20236A582
| ML20236A582 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/13/1989 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#289-8368 ASLBP, OL, NUDOCS 8903200029 | |
| Download: ML20236A582 (136) | |
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J R G N A UNITED STATES O
NUCLEAR REGULATORY COMMISSION L
ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
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Docket Nos.
PUBLIC SERVICE COMPANY OF
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50-443-OL NEW HAMPSHIRE, et al.,
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50-444-OL
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OFF-SITE EMERGENCY (SEABROOK STATION, UNITS 1 AND 2)
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PIMNING l
EVIDENTIARY HEARING O
Pages:
15844 through 15977 Place:
Bethesda, Maryland Date:
March 13, 1989
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1220 L Street, N.W., Suite 600 Washington, D.C. 20005 8903200029 s90313 (202) 628 4888 PDR ADOCK OS TO443 T
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15844
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~ UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC' SAFE'fY AND LICENSING BOARD i
In'the Matter'of:
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Docket Nos.
..PUBLIC SERVICE COMPANY-OF
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50-443-OL NEW.RAMPSHIRE, et al.,
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50-444-OL
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OFF-SITE. EMERGENCY (SEABROOK STATION,- UNITS 1 AND 2)
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PLANNING EVIDENTIARY HEARING 1
Monday.
March 33, 1989 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 2:00 p.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.&nd 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.
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APPEARANCES:
For the ADolicant:
THOMAS.G. DIGNAN, JR.,lESQ.
Ropes & Gray 225 Franklin Street Boston, MA 02110 For the NRC' Staff:
SHERWIN E.
TURK, ESQ.
Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 For the Federal Emergency Management Acencv:-
H.
JOSEPH FLYNN, ESQ.
Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C.
20472
'For the Commonwealth of Massachusetts:
.gg JOHN TRAFICONTE, ASST. ATTY. GEN.
Q ALAN FIERCE, ESQ.
Commonwealth of Massachusetts t
One Ashburton Placo, 19th Floor Boston,.MA 02108 I
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1 EEQCEER1HGE
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-2 JUDGE' SMITH: ; Operator, will you try to get' Judge l
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.McCollom.
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4 THE OPERATOR:
I called him twice.
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s-5 JUDGE SMITH:
You're unable to get him..
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\\ T'HE OPERATOR:
No answer.
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JUDGE SMITH:
We're joined at the moment by Judge i
8 Carpenter and Judge Cole will be along soon..
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9 We're on the record, please.
Did you get that, i
10 Reporter?
l 11-THE REPORTER:
Yes, right here.
j 12 JUDGE SMITH:
Did you get my last comments with
'l 13 the operator?
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14 THE REPORTER:
I was going to delete them unless j
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16 JUDGE SMITH:
Yes, I want them on.
17 Mr. Flynn was the first party.to request this 1
18 conference.
Mr. Flynn,.would you proceed, please.
19 MR. FLYNN:
Yes, thank you, Your Honor.
20 I had requested a conference and I called your 21.
office late on Friday but it was after you had left.
The 22 reason I had requested the conference was I had some 23 additional information which was pertinent to the scheduling 24 of the order of witnesses which I wanted to bring to the 25 attention of the Board and ask for reconsideration of the r'
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order ~1ast week that had Mr. Donovan'being the first'
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~2 witness.
3 The' regional' office, the1 FEMA Regional Office'in 4
1Bo. hell,-Washington -- that's spelled B-O-T-H-E-L-L -- has 1
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brought it' to; my ' attention that they have' just had an -
j-6
. exercise'~for the plans for~the WNP-2' Nuclear. Power Plant,
- 7 and that office principally Mr.: Donovan was in the' process 8-of finalizing the exercise report from that-effort.
9' Of course that is dealing with a plant that.-is 10:
already licensed and they felt it was important to get the I
11 reportLcompleted on. schedule.
And of course there is a
'12 conflict between that and the hearing, so I bring that to 13 the attention of the Board.
14-
'Another point which I need to bring up is-that
. (1 15 until today Mr. Donovan has been on vacation.
He will:be
'16 back in the State of Washington tomorrow.
He will fly from 17 Washington to Washington, D.C.
on-Tuesday, tomorrow
- l 18 afternoon.
So the net effect is that we will have only two 19 and a half to three days for his preparation for the
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i 20 testimony which would be given the following Tuesday.
21 In view of the importance of the testimony and the l
22 importance of the hearing I raise the issue of whether it is 23 enough time for preparation and whether it is in the 24 interest of all the parties that we proceed in that way.
25 Another point which I wish to make, although this Heritage Reporting Corporation (202) 628-4888 1'
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is an elaboration of something which I said last week and Tds_/:
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that'is,. we feel strongly that it is not an appropriate role 1
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'for FEMA to be essentially carrying the Applicants burden
.4 of proof.
5 Now on reflection it seems to me that the l
6 traditional order of having the FEMA Staff -- the NRC Staff 7
witnesses including FEMA go at the.end of the hearing is l
1 8
largely to preserve the neutrality of the testimony.
Not I
9 only does it enhance our ability to approach the issues in a 10 neutral way but it also enhances the Board's ability.
l 11 And what I mean by that is, if the FEMA testimony
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12 is presented ~first that will undoubtedly and perhaps by
-j 13 design influence the shape of the subsequent testimony.
I 14 think Mr. Dignan has offered the argument that there may be
-,-s 15 things that he may not need to present depending on what 16 FEMA says.
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17 I would urge the Board to reconsider whether that i
18 is an appropriate role for FEMA and it is our position that 19 it is not.
l 20 JUDGE SMITH:
How do you envision FEMA's role 21 being anything except coming to the hearing and telling 22 their position.
You don't have to consider yourself whether 23 you are carrying the Applicants' burden or the Staff's 24
< burden or anyone's burden.
We look at you as a totally O
25 neutral government witness testifying within this -- as to I
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what your statutory or regulatory obligations are.
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MR. FLYNN:
Well, Your Honor, I'm not~ suggesting 3-that our position would change or that our testimony would
-4 be different if it is presented later.than earlier.-
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'My. point is that it influences the testimony of,
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6 other parties.
7 JUDGE SMITH:
I think'that is for the Board to 8
worry about, Mr. Flynn.
You are stuck with the regulation l
9 that says that the FEMA report as to any particular state i
10 issue or environment issue shall constitute a-rebuttal' 11 presumption.
12 The Applicants have decided to offer your reports 13 into-evidence.
The Memorandum Of Understanding anticipates 14 that you will. defend your report in hearing.
1 15 I don't think that, number one, you are persuasive
, that FEMA is taking an improper position by being the lead i
17 off witness.
l 18 And number two, I believe that FEMA should I
19 approach the matter as totally unconcerned and neutral as to 20 whether you are helping or hurting or doing anything with l
t 21 respect to any of the parties.
Just bring your officials to 22 the hearing.
We will put them under oath.
And they can l
23 testify as to how the report was generated and defended or i
I 24 not defended if they see fit.
25 MR. FLYNN:
Your Honor, it is that neutrality that
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- I'm. concerned with.
This order of presentation in effect l
2 makes FEMA witnesses for the Applicants.
3 JUDGE SMITH:
It does not.
You are not the
'4
. witness for the Applicant.
You are' invading the Board's 5
promise now.
I'm' telling you'that we will worry about any J
6 improprieties.
No one is moving you.
No party is telling 7
you that you are doing wrong.
The Board is not telling you 8
that you are doing wrong.
There is no merit to'your
'9 argument.
_You are not carrying the Applicants case.
The 10 Applicant is using your report as the regulation says that 11 they may as a presumption -- evidentiary presumption.
12 MR. FLYNN:
Has there been any consideration to l
13 stipulating the report into evidence and having the cross-14 examination later?
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I think-that the logical way is for-
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l 16 the report to be offered into evidence.
You know the 17 identity of the report, the genuineness of that piece of 18 paper, that document, is not in dispute.
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19 MR. FLYNN:
No, I understand.
The issue is not 20 authenticity.y or admissibility.
There is no reason why it 21 wouldn't come in.
My objective is simply to follow the 22 traditional order here.
23 JUDGE SMITH:
This is not a traditional case.
24 Forget the traditional order.
There are traditional reasons 25 for what you are saying and we should accommodate those l-p Heritage Reporting Corporation
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reasons and that is, if at any time during the hearing that
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the NRC Staff or FEMA believes that the record is not 3
reliable or complete with respect to your regulatory 1
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functions, then indeed you should come forward and bring I
5 that to the Board's attention and we will give you an-l 6
opportunity to clarify the record.
And that is one reason 7
often why the Staff is on last or FEMA would come on last.
8 On the other hand -- and we intend that if you 9
have a need for that to give you another chance to come 10 back.
11 On the other hand, if FEMA comes in at the very-12 end of the hearing and explains matters with' respect to its i
13 report which were not addressed earlier in the hearing, what l
I 14 do we do about it?
We start the hearing over again.
15 MR. FLYNN:
No, that's not what I am suggesting, l
16 JUDGE SMITH:
Well, I know.
~But your argument, I
17 and this is one of the difficulties I have had with FEMA all 18 along, your arguments do not seem to take into account that 19 the due process in-this. case, in any administrative 20 procedure act case, in any case under the NRC regulation has l
I 21 to give all parties an opportunity to address and confront 22 and understand the evidence presented against the party or 23 the evidence upon which the initial decision will be based.
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24 MR. FLYNN:
I am certainly sensitive to due
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25 process issues.
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JUDGE SMITH:
I know, but to say that'you are u
2 sensitive to it without tak'ing into account the mechanics I
3 and sequence and schedule for getting your evidence in so 4
.that it can be confronted isn't consistent.
You are'not 5
consistent on that.
6 MR. FLYNN:
Well, I don't mean to belabor the-7 point but the due process has been-served perfectly well in 8
all the other hearings when FEMA has gone last.
9
' JUDGE SMITH:
Let's review the other hearings.
10 Let's review what has happened here.
Number one,.I would
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11 imagine that FEMA will be ready now to make their resources 12 available to move this proceeding along as fast it can be 13 moved along.
14 As you know, FEMA's problenis delayed the 15 completion of the evidentiary record in the first phase of
.1 16 the hearing.
And I would think that FEMA regard it as a 17 high priority now to do everything it reasonably can to move 18 this proceeding along without delay.
)
l 19 MR. FLYNN:
Your Honor, I'm not --
20 JUDGE SMITH:
Let me add one other thing.
21 MR. FLYNN:
Yes.
22 JUDGE SMITH:
FEMA's role -- well, we don't have 23 to reach that yet.
I get the impression that sometimes FEMA 24 does not give the importance to nuclear -- commercial 25 nuclear licensing that it deserves looking at all of FEMA's
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2-And of course as you are aware President Reagan-3 assigned FEMA even greater responsibilities in nuclear 4
licensing and nuclear emergency planning by the Executive 5
Order last year.
I don't really understand what's happening 6
over at FEMA.
1 7
MR. FLYNN:
I don't want to make a bigger thing of
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.8 this than it is.
9 JUDGE SMITH:
Well, we have'to constantly wrestle 10 with you to keep the hearing moving.
It's a constant 1
11 wrestle.
And.it's predictable that where FEMA is involved
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l 12 you are going to come in and not want'to go forward.
j 13 Now, there's a Memorandum Of Understanding between 14 the NRC and FEMA as to the NRC, I might use the expression,.
.O 15 shepherding ~ FEMA in these' proceedings.
16 Mr. Turk, do you have anything to say about this 17 problem?
18 MR. TURK:
Well, Your Honor, I'm more sensitive to 19 Mr. Donovan's problem as a witness than to the issue of who 20 should proceed first.
21 In general we would like to support FEMA's request 22 that they not be forced to be the first witness on the l
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24 JUDGE SMITH:
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all the parties.to confront the evidence that will affect 3
them.
4 MR. TURK:
In'the first instanceLthe other parties 5
all~have Mr. Donovan's exercise report and STF report, they_
6-
'have had it for many, many months.
That's Mr. Donovan's 7
testimony.
8 Mr. Flynn's filing of last' week indicatesithat' 9
there is no additional substantive testimony being put 10 forward.
11 So in terms of other parties having:the 12' opportunity to cross-examine and confront FEMA's testimony l
13 they've.got that and they have had it for many months.
The natural sequence that I.can see'being followed
. O 14 15 assuming the parties can agree is to~ stipulate the report
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16 into evidence subject to as defense later'on cross-i 17 examination and let the, Applicants go forward with their j
18 case.
And all parties know what the FEMA's testimony is 19 that they will have to confront.
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20 If in the course of. cross-examination of Mr.
21 Donovan he retreats or changes FEMA's position on any issue, 22 then that would afford or should stimulate an opportunity 23 for parties to file rebuttal testimony or surrebuttal 24 testimony.
25 JUDGE SMITH:
Just back up and remember, this will O_ -
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l-be a scenario.
Applicants-offer either actually or
'2 constructively a FEMA report on the evaluation of the SBMC o
3 and presumably the exercise later on and rest.
Or not rest 4
but rest'for the moment and allow the Attorney General to 5-proceed, go. forward with the evidence in rebuttal to the 6
.-prima facie, case.
As.a part of the Attorney General's 7
rebuttal they wish to call as on cross-examination the FEMA 8
witness, as not necessarily an adverse witness but at least 9
one as on cross-examination.
.10 Incidentally, are you present, Mr. Traficonte?
l 11 191. - TRAFICONTE :
I am, Your Honor.
12 JUDGE SMITH:
All right.
Then that cross-
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13 examination along with the Attorney General's direct l
14 testimony will constitute the Attorney General's rebuttal.
.O 15 The first substantive part of the case, right out 16 of the starting gate, is going to be the Attorney General's 17' rebuttal which includes the cross-examination of Mr.
I 18 Donovan.
It will then go to the Applicant for surrebuttal i
19 in the direct testimony that they have already filed to meet 20 that.
And to put Mr. Donovan's testimony at the end just 21 doesn't fit into my idea of how it will unfold logically and 22 efficiently.
23 Now, certainly it can be put at the end.
It can 24 be put at the end.
But that will probably mean or could 25 very well mean another stage, another phase, another round f
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l 15857-f r e - ("T - ~ 1 JUDGE. SMITH:
I understand the logic of the order-(,/
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.of; presentations.
That is all I said.- The NRC Staff at the j
3 very end..
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MR. TRAFICONTE:
Your Honor, this is John i
5' Traficonte from the Mass AG's office.
This is going to be'a 6
busy day.
But.what you just outlined is the'way this office.
7 is viewing the case unfolding.
~8-JUDGE SMITH:
So,-Mr. Flynn, you are not in a 9
traditional position here.
You have never been in.a hearing 10 like this with this sequence of the burden of proceeding 11 with the evidence.
This is novel.
It is novel in NRC 12 proceedings.
13.
MR. FLYNN:
I understand the' reasons that the-t 14 Board has offered and I-have no additional arguments, Your-j
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Honor.
l All right.
With~ respect to your L.
16 JUDGE SMITH:
17 argument that it is not a good way to proceed, because of 18 appearance, or uncomfortable position for FEMA, or because 19 of the logic of the sequence, your motion is overruled.
20 Now, let's turn to the problem of Mr. Donovan's 21 appearance, his conflicts.
22 MR. FLYNN:
Did you wish me to argue further?
23 JUDGE SMITH:
I understood you were making a two-24 fold request.
One is you did not care for the logic of the 25 order of proceeding with the evidence or the logic of the i
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And your-second argument was'Mr.
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2 Donovan-doesn' t: want ~ to.come anyway..
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No.
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- 4L JUDG5 SMITH:
Or he's too busy or whatever.
5 HR. FLYNN:
That wasn't advanced by.Mr. Donovan's.
'6 lIt was by:his superiors in the region.-
I have:already 7
-presented the information that I have.-
I really don't1have j
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.anything more to addito it.
1 9
JUDGE SMITH:
Well, I'm not sure I was paying g
- 10 attention.
Youlsaid he would prefer to work on the exercise
' 11 report'ofLa' reactor out in -- which one is that?
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' 12 MR'.
FLYNN:
WNP-2.
.It's in'the State'of
' 13 Washington.
14 JUDGE SMITH:
As you know, it is very difficult, 15 number:one, to schedule the hearing to begin at the time it
.16 is. -
It.was extremely difficult to get the hearing space.
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'We had,to go to the-top levels of GSA.
It-is very hard for 18 everybody involved.
You have been'in the hearing room many j\\
i 19 times and you know that typically there may be 20, 30 active I
20 participants in a hearing.
21 MR. FLYNN:
Your Honor, perhaps I did not make it 22 clear.
I was not asking for the hearing to be delayed, only 23 for Mr. Donovan's appearance to be delayed.
24 But if the sequence is as the Board has ordered, 25 then it necessarily follows that Mr. Donovan must be there f
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on the 21st.
I understand that.
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2 JUDGE SMITH:
I simply will put it back to Mr.
3 Dignan and Mr. Traficonte to see if they still, hearing what 4
you had say, to see if they still want to have Mr. Donovan 5
as the lead-off witness.
6 MR. DIGNAN:
The applicant does, Your Honor.
7 MR. TRAFICONTE:
Again, John Traficonte from the 8
Mass AG's office.
We would be willing to accommodate Mr.
9 Donovan.
I just haven't heard Mr. Flynn give us an 10 alternative date on which Mr. Donovan could in fact appear 11 to be cross examined.
12 For example, if we are talking about a couple of l
1 13 days or perhaps even come at the beginning of the second 14 week, we could accommodate that.
But the overall structure g-)
V 15 is something that I just think is going to ultimately make 16 more sense if FEMA is up to bat first.
17 MR. TURK:
Your Honor, this is Sherwin Turk.
An 18 alternative suggestion might be to ask the Applicant to l
19 identify if there is some panel of their witnesses that can 20 be put on first, for two reasons.
One, because I would like 21 to see FEMA have enough time to prepare their testimony.
22 And that means working time for Mr. Flynn and Mr. Donovan 23 together.
)
24 And secondly, the Applicants have put together a 25 box full of testimony and I can't really believe that all of 1
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identify portions of that which they know is going-to come j
3 forward.
And if it is possible for-them to identify some j
4 discrete chunks which they can put on first.
So let FEMA i
5 have some time tv prepare its witness and pick up FEMA in j
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the course of the Applicant's presentation.
7 MR. DIGNAN:
My problem with that, Mr. Turk, is 8
very simple.
I thought the Judge had outlined very 9
cogently the order of procedure here.
Applicant is not the 10 second one.-
The Attorney General is.
11 If you want something identified to go forward in 12 the place of Mr. Donovan a couple of days, it is Mr.
13 Traficonte who will identify their testimony.
We are third 14 in the batting order, not second.
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15 MR. FLYNN:
My proposal would be to have him 16 appear on the 27th, to delay him for two days really doesn't 17 solve our problem.
18 MR. TRAFICONTE:
Your Honor, as I said, if the 19 proposal is that Mr. Donovan begin on the 27th, this office 20 has no problem with that.
And I think Mr. Dignan, I mean I 21 think we need to sit down and make sure that we are going to 22 be busy from the 21st until the end of the week.
But 23 assuming that that is no problem, I do not have any problem 24 accommodating Mr. Donovan until the 27th.
25 MR. FLYNN:
Well, there you are.
That solves the r-Heritage Reporting Corporation
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- 2 MR. DIGNAN:
Before you say that. solves the 3-problem, you heard the hooker in there.
Are we still going-4 to be busy?
I don't know what Mr. Traficonte is proposing v.
5 to' offer up as witnesses.
You said you want to'try it:as 6
clusters.
I: frankly haven't given-'any thought as-to what 7
cluster cculd.be tried or not.
I am glad no one believes me 8
but the fact of the matter is it is my view that every 9
single bit of my testimony at this point is contingent.
10 Mr. Flynn does not understand one thing.
I do not 11 sit here wondering and waiting to hear what Mr. Donovan has-12 to.say.
I know what he is going to say..
The key to the 13 applicant is, to put it bluntly, does Donovan hold up?
1 <4 Because if Donovan holds up under. cross' examination and he-gs 15 doesn't get a glove laid on him, there isn't very much:
l 16 testimony the Applicant is going to-have to offer in this 17 case, if any.
That is the key that nobody seems to want to 18 acknowledge here.
Our view of Donovan is that -- I Em not 1
i 19 saying he is carrying my burden.
I am not saying he is my 20 witness or anything else.
But key to me is, is the AG able 21 to score on him?
Now, for example, there are two or three
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22 issues where the only case the AG is going to have is 23 whatever they can get out of Donovan on cross examination, t
24 if anything.
I have direct testimony going to those issues.
25 If on the other hand they elicit nothing to help them out of
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Donovan, you areinever' going to see that testimony. offered 1
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into the; record.
3-JUDGE SMITH:
That may be, but I still think you I
'4 have made;the argument, you have missed the issue-in'your 5-argument..
6 Certainly in that large box of testimony filed'by 7-
- the Attorney General,.there is enough that they can proceed' Jrc L8 with a panel or:two panels or whatever for the three and a 9
half; days that7we would be in session the first week.
10
.MR..DIGNAN:
The AG's witnesses.
11~
JUDGE SMITH:
Right.
12.
MR. DIGNAN:
All right. But t'he problem is you 13 saidlyou want' clusters and after the AG witnesses.come off,.
14:
you want to. hear what testimony I have'in the-cluster.if.
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16-JUDGE SMITH:
I will have to say that when we 17 indicated very strong almost irresistible preference for.
18 clusters of issues we.did not take-into account your view
'19
'that you may not have to address certain issues.
.I don't-20 know.
I just did not focus on that.
None of us did.
21 MR. DIGNAN:
If the Board is willing to relax.
22 their predilection for one week of clusters, then I-am 23 perfectly prepared to have our people go ahead and cross 24' examine AG witnesses for that first week.
25 JUDGE SMITH:
It seems to me you should have been
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1 able to work something like this out.
We are' talking now b
2
'about'the order of the appearance of witnesses.
And I am i
3
. accustomed to-just simply being told what the order is, not 1
4 get involved in it to the extent that we are now.
1 5
-MR.:DIGNAN:
In fairness to all the parties, Your 6
Honor, I would remind the Board that Mr. Traficonte and I 7
at the outset expressed the preference that' FEMA would go 8
first.
Mr. Flynn first told me that was okay and then FEMA 9
took a different position and now the Board is beino asked 10 to reconsider and we are being advised for the first time by 11 FEMA that their witness cannot be ready on that Tuesday.
So 12 that while i quite understand the Board's being a.little 13 disgruntled with the parties for not having worked that out, 14 Mr. Traficonte and I did not know.we had anything to work 7-s q)
.15 out until about 10:00 O' clock this morning when Mr. Fierce 16 called and told us there was a problem.
17 JUDGE SMITH:
I just have to admit, Mr. Dignan, I 18 do not understand what you are saying.
I just don't 19 understand how it fits in to whether Mr. Donovan leads off 20 on Tuesday morning or whether the Attorney General fills in 21 with some testimony that he is going to put on in any event.
22' MR. DIGNAN:
I said I am perfectly happy with I
23 that.
24 JUDGE SMITH:
The clustering of issues, I don't 25 know how you are going to do that but I am only saying that Heritage Reporting Corporation (292) 628-4888
f J
15864
~ f course Mr. Donovan 1
we -never really focused on the fact.
O
'2 will not be appearingLin clusters, and your case will 3
depend somewhat upon how well Mr. Donovan held up.
But Mr.
i 4
Dignan,.I appreciate and we have genuine sympathy for your 5
problem of handling the case and your preference for party 6
by party presentation.
7 But as you very wisely observed, you also would 8
like to have the Licensing Board follow the testimony.
I 9
understand your case.
You have the burden and you want us 10
.to understand the case and we are simply telling you that 11 having a case that goes four weeks party one and four weeks 12 party two is going to be very difficult for the Licensing 13 Board to follow, to understand, and furthermore, which is 14 very important to the members of the Board, to understand it i-
. h-s-15 at the time it is unfolding so that we can have our own 16 input, so we can ask our own questions.
There is a.
17 difference between understanding testimony as it is 18 unfolding as compared to understanding it when. you are 19 writing a decision and can study it.
20 MR. TURK:
Your Honor, I think I have a simple 21 fix.
This is Sherwin Turk.
22 MR. TRAFICONTE:
I think --
23 MR. TURK:
If I can go first, let me just express 24 a potential solution.
25 There is one issue that is not part of FEMA's r^s Heritage Reporting Corporation 5
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1 report.
That is the evacuation time issue.
As the Board 2
knows, we have Dr. Urbanik scheduled to appear on traffic l
3 management plan issues.
The Applicants have some testimony 1
4 on that, and Mass AG has some testimony on that.
5 Let's take that up first.
And then after that 6
phase we go into the FEMA report on all other issues.
1 7
MR. TRAFICONTE:
I find myself for the first time 8
agreeing with Mr. Turk.
9 MR. TURK:
It's not the first time, John.
10 MR. TRAFICONTE:
Well, it's the first' time in a 11 long time.
That actually is right, Your Honor.
I don't 12 think FEMA has a position on the traffic management plan 13 issues.
And maybe that should come up, that should be first 14 off.
gg
\\._/
15 MR. DIGNAN:
I think that FEMA does have a 16 position on traffic management issues.
17 MR. TURK:
To such an extent that any cross 18 examination that Mr. Traficonte may have or Mr. Donovan on 19
.that particular issue, that it would be destructive to the
]
20 proposal?
21-MR. TRAFICONTE:
I can't say that's so, Your 22 Honor.
23 JUDGE SMITH:
Well, it seems to me that you have 24 a solution that really can make everybody more comfortable.
25 MR. FLYNN:
I support that solution.
/^}
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MR.. DIGNAN:- Could I be told what the sol'ution is?E
'2 WhoLisfgoing to be the.first' witness out on the 21st now?
3' Mr. Urbanik?
4-MR. TURK:
I made.a suggestion.~
4 5-MR. DIGNAN:
Who is;goingfto be the-first witness?
6 MR. TRAFICONTE:- As I' understand the suggestion, 7-what we.are. proposing now is to begin the_ hearings with'a 8
cluster of issues-identified as the remaining.ETE traffic 9.
1 management plan issues.
And I know that the towns for 10
' example'have filed testimony that, touch on some of those 1
.i 11-issues'.
- 12. -
'MR.
TURK:
That 'is correct..
- 13.
MR. TRAFICONTE:
The first thing.we are agreeing-W -14' to~1s that those issues go first and then the^second
~
- 15 question is wh'at witnesses actually'go'first?~.And I mean 16
.there I know Tom your view is that the Mass AG's witnesses 17-and the town's witnesses ~should-precede your witnesses,
-l 18 MR.'DIGNAN:
Correct.
19-MR. TRAFICONTE:
I'm down at the very practical 20 level, Your Honor, of just stating that up until a few i
21.
minutes ago, my calendar s'd all my witnesses were notified I
h 22
.that they wouldn't, they certainly would not be called in 23-the week of the 21st because that was going to be filled-l 24 with Mr. Donovan's cross examination.
So I have to hedge.
25-I think we can do that.
I just have to go out and get on
~
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the. phone and talk to my. witnesses and try to structure that N]
2 first three and a half days.
But I. don't have any problem 3
at least with the overall plan, to begin with that cluster 4
and to have our case, although frankly I think the 5
. Applicant's case should be available in the event that Mr.-
6 Dignan has completed his cross of my witnesses before the 7
week is over.
I would suggest at that point we move to his 8
witnesses on the ETE and traffic management portion and then 9
end with Mr. Urbanik in the event that there is time in that 10 first week.
i 11 JUDGE SMITH:
Well, go ahead.
Why don't you agree 12 in principle and leave us out of the actual scheduling of 13 witnesses?
But I think that you have a principle that is i
14 workable.
q,a 15 Wait a minute.
16 (Pause) 17 JUDGE SMITH:
Gentlemen, Judge Carpenter had a 18 question.
Certainly you are talking now about the traffic i
19 management arid not the subject matter of a potential 20 stipulation, not ETE themselves?
21 MR. TRAFICONTE:
I'm not talking of them, Your 22 Honor, because as we all know that is another item on the i
23 agenda today.
24 JUDGE SMITH:
Okay.
25 MR. TRAFICONTE:
And in the event that it does Heritage Reporting Corporation (202) G28-4888
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'l 1
come unglued, we haven't obviously filed'our testimony in 2
that regard.
We are talking about the traffic management
]
3 issues on which testimony has already been filed.
4 JUDGE SMITH:
Okay.
Is that satisfactory then to I
j 5
the parties, that-will be the-first off and it will be the h
6 sequence that we have in mind, the Attorney General will go 7
and then the Applicants and then.Dr. Urbanik?
8 We are not making that an order, but I think we 9
should limit our approval then to putting the traffic 10 management issues, the first cluster on the schedule, and 11
.you work that out.
l 12 MR. DIGNAN:
Okay, Your Honor.
I want to know 13 one thing.
Will we still stipulate'in the report prior to gm anybody going?
The reason I say that is everybody is 14 15 happily saying that FEMA has nothing to say about the ETE.
16 study, and I would suggest they look at the report and the 17 statements with respect to planning criteria J-10, I,
J and 18 so forth.
-The fact is FEMA does pass on these things.
19 JUDGE SMITH:
Well, the report goes in and that is 20 it.
You know what the report says and you know what the 21 evidentiary effect of the report is.
22 MR. DIGNAN:
So we're going to stipulate that in 23 as the first exhibit the first day?
i 24 JUDGE SMITH:
Right.
And that remains in my view 25 without deciding it, that remains in my view t he 4
l r-Heritage Reporting Corporation
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evidentiary law of the case.
Mr. Donovan comes in, he is 1
w 2
cross examined on whatever the Attorney General wants to l
l 3
cross examine him on.
If they cross examine him on the 4
traffic management aspects of it, and that does damage to 5
your case, well there you are.
I don't know.
Something is 6
bothering you, Mr. Dignan, that I don't understand.
1 7
MR. DIGNAN:
No, Your Honor, nothing is bothering 8
me any longer with that clarification.
We'll stipulate --
?
9 JUDGE SMITH:
To me --
10 (Simultaneous voices) 11 MR. DIGNAN:
-- go right behind him.
t 12 JUDGE SMITH:
To me it is not a clarification, it 13 is my perception, my understanding of how the case would f-)
unfold under our previous rulings.
14 v
15 MR. DIGNAN:
It is mine, too, Your Honor.
16 MR. FLYNN:
I am very much in favor of the 17 proposal too.
It makes a lot of sense to me.
18 MR. TRAFICONTE:
I'm in agreement.
19 JUDGE SMITH:
Okay.
That's fine.
Now, that 20 doesn't mean, Mr. Flynn, that you can make an appointment 21 for a particular day for Mr. Donovan, but you know he's not 22 going to have to appear the first week.
23 MR. FLYNN:
No, he'll be there on the 27th.
24 JUDGE SMITH:
I suspect that he won't even be 25 needed on the 27th, either.
But you just cannot have a e's Heritage Reporting Corporation
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15870
.n 1
-walk-in arrangement.
2 MR.' T'URK:
Your, Honor, may I have Mass AG contact 3
the towns and have their witnesses available as part' of
.j 4
that first set of witnesses?
5 MR. TRAFICONTE:
I will do that.
I think that.is 16 a reasonable way to proceed with their involvement l'n any 7
event.
And'I will do that and try to get their witnesses 8
in'in that first week.
Just a point of clarification, Your I
9 Honor.
I take it then.that Mr. Donovan is going to be the i
10 next item after the traffic management cluster'gets 11
. addressed.
He is the next item.
-l 12 JUDGE SMITH:
That would be my understanding.
l 13 The only change.we are making is putting the traffic s
14:
management aspects in before him.
15' MR. TRAFICONTE:
That's fine.
And that means that i
16 he would come at the point of which that we have exhausted 17
- the various cross examinations of the first set of l
18 witnesses.
19 JUDGE SMITH:
That is my understanding, too.
20' MR. TRAFICONTE:
I thought I heard Mr. Flynn say 21 that he would be there on the 27th and then we would make a 22 break for Mr. Donovan.
23 MR. FLYNN:
No.
24 MR. TRAFICONTE:
Okay.
25 MR. FLYNN:
No, I am just saying he will be Heritage Reporting Corporation w
l-N (202) 628-4888 i
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1-available on the 27th.
2-MR. TRAFICONTE:
I see.
That is fine.
.3 JUDGE SMITH:
No, notLa break.
Mr. Flynn is
'4 assuming that he is going to be' ready to testify then or at-5-
least he will be there then.
6 MR. TRAFICONTE: ~That is. fine.
I understand.
7
. JUDGE SMITH:
And Mr. Flynn, it may be'possible 8
that Mr.' Donovan can be given even more time if it is-i 9
helpful.
But at least if he is going to be-available on the 10 27th'the problem goes away.
11 MR..FLYNN:
Very good.
I appreciate the Board's L12 efforts in bringing about this stipulation.
.13
. JUDGE SMITH:
You can thank Mr.. Turk, too.
H 14 MR. FLYNN: -Thank you, Mr. Turk.
15
. JUDGE SMITH:
All right.
The next' item is is 16 there a stipulation item on the agenda?
Did you request
-17 opportunity to talk about that?
I understood ~from Mr.
18 Fierce that there was some thought the Board might be 19 helpful with respect to an impediment to going ahead with' 20 the stipulation.
21 MR. TRAFICONTE:
Well, Your Honor, I make this 22 proposal.
As I understand the agenda today, we have the
~23 item of discovery from the Staff in the form of a deposition X
24 of an individual and we have this issue of the stipulation 25 that looks to be in pretty bad shape as between the i
("'
Heritage Reporting Corporation
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1-l Applicants and the' Mass AG.
U 2
I propose thatLwe next address the issue of 3
' discovery on the Staff which involves Mr. Turk and then 4
proceed to the issue of the stipulation.
.5 JUDGE SMITH:
- Okay, a
6 MR. TRAFICONTE:
Just in the' event, I think that 7
the, I don't~know how;much interest the other, at least with 8
regard to Mr. Flynn anyway I.am not sure how much interest 9
in the details of.the unhappy negotiations on the'stip.
10 He just-may want'to get off, I don't.know.
11 MR. FLYNN:
Well, I may.
But you go right ahead.
j 12
-MR.
TRAFICONTE:.All right.
13 TJUDGE SMITH:
Well, it's your' choice.
Go ahead 14c with the discovery against the Staff.
'(
15 MR. TRAFICONTE:- Well, the motion we filed at the 16 end of last week has to do with the~ fact that we have'a i
17 contention as'you know, an exercise contention that concerns 18 the performance on the part of the on-site staff and some 19
.six weeks ago we had made a request to the Staff and there
- 20 has been a delay in getting back to us with the documents.
21 We have gotten them, as of the end of last week.
22 We have reviewed them.
And in our view, we would like, we 23 are really seeking alternative relief..
We would like to 24 take the deposition of a single staff observer evaluator.
25 And therefore we need some time to do that and then L
Heritage Reporting Corporation O
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8 15873 1
incorporate what we' learned into.any. filing we would make l'
2 which would put us in terms of an April 3 filing pretty
-3 much up against'it.
4 But knowing that the parties are going'to be 5
unanimously opposed.to an extension of the April 3 filing 6
deadline, the alternative we would request is just that we i
7 get the. Board's assurance that when'this exercise contention-8
.is on the table, thit gre be given the opportunity to-9 subpoena the individual from the staff, or at least the 10 person who functioned as a staff evaluator / observer, to q
11 follow up in that form on some of the information that 12 appears in the written documentation that we got only at the 13 latter part of last week.
14
.O - 15 16 17 18 19 20 21 22 23 24 25 i
g~ -
Heritage Reporting Corporation (202) 628-4888 c_____-__-_-___
.f 15874 4
(
_1 MR. TRAFICONTE:. We're seeking an alternative we 2
would like some discovery in the event that the impact _on a 1
~
-3 schedule would be viewed negatively then we would say, well, 4-we are_ going to have to_do it the old-fashioned-way as Mr.-
5 Dignan says and just get'him on~the stand so we'can find out 6
at that pointfwhat some.of these-written documents that we-i 7
have reviewed mean.
8 JUDGE SMITH:
To back up a minute,_the record does.
SF not' reflect the outcome of our prehearing. conference on 10 Thursday in.which the Board was asked to clarify or rather
.l 11.
exercise cententionL19 was appropriately in:the proceeding.
- 12 :
- The argument being_that it was a protective action 13 recommendation or the adequacy of protection action l
14-recommendations made by the on-site, staff to.off-site O
15 officials and'the off-site ORO I guess.
16 We ruled after the prehearing. conference and 17
. orally off the record informed the parties that;we believe 18 that the contention is properly in the proceeding.
And we
' referred to the logic, the reasoning-that was used with 19 20 respect to, I think it was the initial contention 56 which 1
21 was also a protective action recommendation contention.
22-We believe that the logic that we use there is the 23 same rationale as should be used here and that is, the 24 protective action recommendation, number one, that there is 25.
no void and jurisdiction between the off-site board and off-Heritage Reporting Corporation 1 s, -
(202) 628-4888
1 I
l 15875 1
site board.
~
- (d' 2
And some matters are purely on-site as are 3
emergency action levels and some matters are purely off-site
.4 as most everything in the proceeding is, but protective 5
action recommendations are right at the plant -- at the 6
authorities boundary between on-site and off-site and are 7
really on the off-site side and that is somewhat of an 8
arbitrary-positioning.
And for that reason we believe that 9
the contention is an appropriate one.
10 That's my explanation -- that explanation I just l
l 11 made is not intended to supersede reasoning that we used in f
1 12 respect to Attorney General's contention 56.
It is just 13 simply intended to bring the record up to date what our l
14 reasoning was.
l
)
15 With that, would you go ahead with your problem.
16 With that understanding, Mr. Turk, I know that you disagree 17 with that as well as you disagree with our original ruling.
l 18 But knowing that is in the case why is there a problem with 19 presenting a witness?
20 MR. TURK:
Well, there is no problem for getting a 21 witness, Your Honor, and we are in the process of trying to 1
22 identify who the most appropriate person or persons may be.
23 I do have a problem with the Mass AG's motion 24 which I would like to respond to.
But first responding to j
25 your question we will be putting on a witness and we will j
(g Heritage Reporting Corporation
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- 1 identify-that. witness'as soon as possible.
I hope within.
.the next few days to. finalize a position.on who.the' Staff.
.)
2 I
[
3 witnesse s will ~ be.
1 o
1
'4 JUDGE SMITH:
This-I.would think, as you are 5
selecting a witness do not!without careful ~ analysis rely.
l l'
6
.upon Section 2.720 in'that~it is more than just-a position 1
J 7-
-that you are presenting.
You are presenting presumably at 8
the demand of.the Attorney General,. witnesses who will-l?
9 explain the facts.
10-MR. TRAFICONTE:
'Yes, Your Honor, I was just going ~
.11 to-comment on'that.
I understand that there might be two' j
1 12 ways here in which Mr. Turk is using the notion of their' l
13
. presenting a witness..
We are interested in'the first' instance in certain
- O.14
'15 Staff personnel as fact witnesses.
He is:obviously free'to.
~16
= submit the testimony of any witness!that'he chooses, but we 17 would-like to have the opportunity either.to depose or 18 otherwise subpoena at hearing a certain individual whose 19 name I am aware of, not somebody that he would choose but 20 somebody that we would choose because we believe he has i
i 21 information that we would need.
So we really are talking l
.22 about a fact witness.
23 JUDGE SMITH:
Well, why don t you right now i
24 proceed with your showing under 2.720 (h) (1) (1) and this is, l
25 I think we are all familiar.with it but just to put it in Heritage Reporting Corporation (202) 628-4888
l 15877 i
1 context, the NRC Staff will generally make available one or-2 more witness designated by the Executive Director for 3
Operations for oral examine at the hearing.
Traditionally 4
that is usually the case, that is when the staff has an 5
engineering position or a regulatory position on a matter.
i 6
Here I think what is relevant is the proviso of-7 that section which provides that, quote: "That the presiding.
8 officer may upon a showing of exceptional circumstances'such l
9 as the case in which a particular named NRC employee has 10 direct personal knowledge of material fact not known to.the 11 witness is made available by the Executive Director for 12 Operations require the attendance and testimony of named NRC 13 personnel."
14 So if your case is that the NRC Staff can present
%)
15-a witness which will present its position is one thing.
But 16 you want somebody who has personal knowledge of the facts at l
17 issue in this contention.
We will hear your argument, if 18 that's your point.
19 MR. TRAFICONTE:
That is precisely my point and 20 I'm going to request that I transfer on to a speaker phone 21 at this point because Mr. Fierce has joined me and he is 22 going to be able to present this much more concisely than I 23 am.
If there is a problem with the speaker phone which I am 24 going to press in a second just let me know'and then he will 25 pick it up.
So I'm going to put on the speaker at this Heritage Reporting Corporation s
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~15878 r~T
.1 point.
/
l' 2
JUDGE SMITH:
Proceed, Mr. Fierce.
L l
3 MR. TURK:
Your Honor, I may be able to save some l
l 4
time at this point.
l 5
JUDGE SMITH:
Well, I would hope so, yes.
l 6-Mr. Traficonte, are you there?
Mr. Traficonte, I 7
want to inform you that there is a problem with the-speaker 8
phone.
One of the problems being that I cannot inform you 9
of the problem with the. speaker phone.
10 Is anybody.there?
11 MR. TURK:
Yes, Your Honor, 12 MR. DIGNAN:
Yes, Your Honor.
13 MR. TURK:
In Mass AG's absence I would like to i
l g~
14 move to dismiss them as a party yes.
l 15 (Laughter) 16 JUDGE SMITH:
I think that we better'-- I don't 17 think that they know how to call in being on a conference 18 call.
We may have lost him.
We will get our operator to 19 try to get him back on.
20 (Pause) 21 JUDGE SMITH:
While we are waiting for the 22 Attorney General to get back on maybe I can talk to you a 23 little bit about the physical arrangements for the hearing.
24 It is going to be, you know, at the auditorium on 25 the first floor of O'Neill Building.
The space there is r~
Heritage Reporting Corporation
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1 pretty tight.
But the Board will have a room immediately (V
2 connected to.the' hearing room, the auditorium which will be 3
under our control, walkable and under.,our control.
I don't 4
know except for cleaning.
5 So, Mr. Turk and Mr. Flynn, if you would like to 6
set up your files there-we can' dedicate I'm sure a small 7
part of a place for you so you don't have to carry it back 8
and forth to the hotel and back and forth to Washington all 9
the time.
Mayb.. you can bring up some type of storage 10 container which you would regard as secure and leave your i
11 things.there if you wish.
I
'12 MR..FLYNN:
I appreciate that, Your Honor, that 13 would be a big help.
14 MR. TURK:
Thank you, Your Honor;
~
15 JUDGE SMITH:
We will have it throughout -- we 16 have first call on that auditorium throughout -- until mid-l 17 June I guess is the time.
But it will be our room.
It will 18 have a phone in it, FTS telephone.and it is a big enough 19 room to accommodate your files if you have some kind of a 20 container to move it in and out of.
21 MR. TURK:
Your Honor, do you think it might be 22 possible for us to shift some documents to that room.
I 23 JUDGE SMITH:
Right, it is possible.
24 MR. TURK:
Do you think perhaps before the hearing 25 started we could do that?
<s Heritage Reporting Corporation
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15880-0 10 JUDGE' SMITH:
We are doing that today, as a matter 2:
of' fact.
f I
3
'MR. FIERCE:
Hello, this is Alan Fierce on the 4
line.
5 JUDGE SMITH:
Mr. Fierce.
6-MR. FIERCE:
I'm sorry, John just cut me.off here.
7 JUDGE SMITH:- We will be with you in just-a 8
minute.
Mr. Turk, Bob Pierce will -- call him after this.
i 9
conference and he will tell you how to do that.
10 MR. TURK:
Okay.
I will ask Elaine Chan to do it, j
11-she is here1with me now and she will arrange with_Mr.
12
- Pierce.
l
- 13 JUDGE SMITH:
We are shipping'some equipment up 7.g g ourselves and he will tell you about that.
1 <4 V
15' MR. TURK:
Thank you.
l 16 JUDGE SMITH:
Mr. Fierce.
17 MR. FIERCE:
Yes.
18 JUDGE SMITH:
We lost you there for a while.
j 19 MR. FIERCE:
Yes.
Mr. Traficonte told me to come i
}
20 in and punch the speaker phone and I lost everybody.
We're j
f 21 not going to use the speaker phone.
I'm going to be on by 22 myself unless you want him to get on another line, separate i
23 line and we can do that.
24 JUDGE SMITH:
I think you were privy to our 25 discussion that if a NRC individual has personal knowledge l
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of particular facts the Board can order his deposition or
. r"_/()
2 appearance at the hearing upon a showing that it is l
3 important.
4 Mr. Turk said that he thinks that he can cut short I
3 5
this whole consideration but he didn't get a chance to.
Now 6
he is going to explain how he can do that.
7 MR. TURK:
Your Honor, I'm at the same regulation 8
which you cited, 10 CRF 2.720 (h) (2) (1).
The Mass AG must 9
make a showing of a special circumstances and only after he 10 knows that witnesses the Staff named don't have knowledge of 11-the fact which he claims some particular other NRC employee 1
12 might have.
13 JUDGE SMITH:
Right.
14 MR. TURK:
So until he specifies witnesses his f-D) 15 motion is premature.
16 JUDGE SMITH:
Right.
We're ready now.
Now we are i
17 ready.
And I would think that the Executive Director for 18' Operations would probably look with favor upon en NRC l
19 witness who has knowledge of the facts as being a better 20 witness than one who did not have knowledge of the facts.
21 MR. TURK:
That's the kind of witness-I like, Your i
22 Honor.
23 JUDGE SMITH:
On a particular factual situation.
24 MR. TURK:
I like witnesses who have knowledge of 25 the fact and that's what I intend to'put ' forward.
Heritage Reporting Corporation O.
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1 JUDGE SMITH:
What can you do, Mr. Turk, to avoid
%)
2 delay?
1 3
MR. TURK:
We can identify this week who the Staff l
4 witnesses will be on these matters.
And I can let the Mass 5
AG know about that and if he still feels he has grounds to 6
press for.a particular employee he can try at that point.
7 JUDGE SMITH:
Do you know,the witnesses the
'8 Attorney General wants?
a i
9 MR. TURK:
Yes.
10 JUDGE SMITH:
What's his name?
11 MR. TURK:
His name is Don Perrotti.
He is a l
12 member of NRC Staff headquarters and he participated in the l
13 inspection exercise or excuse me, the inspection of the 14 exercises in June.
g-i 15 JUDGE SMITH:
Why do you believe he is a witness 16 essential to your case, Mr. Fierce?
17 MR. FIERCE:
Well, Your Honor, it sounds like I'm 18
.being asked to indicate why he is the person who is the one 19 who is essential to our case.
Let's remember how I got to 20 this point.
I sent Mr. Turk a letter asking him to identify 21 where his people were during the exercise and specifically 22 to identify for me which of those people were the ones that 23 were reviewing those exercise objectives and I think they 24 were number seven and eight for the Seabrook Station staff 25 or maybe it was 10 and 11, so that I could depose if r^)
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necessary those people who made that evaluation that the
'y/
2 protection actions made off-site were good ones.
.1 3
And in response I got no telephone call back l
4 identifying any named individuals, but did now get a few 5
documents.
Really a very few number of documents that 6
hardly took six weeks it seems to me to get together.
7 Among them is some. documents from Mr. Perrotti.
8 And I looked at the documents and I do see that he was j
9 apparently. involved in overlooking some aspects of the 10 protective action-decision-making that were going _on.
He is 11 the only one listed in these documents who has any knowledge 12 it appears of protection action decision-making and so I 13.
asked for him.
7-14 Now if there is a better person I am not awareuof V) 15 it.
But that is the one that I am now aware of, because the 16 documents do lead to a series of questions that one would 17 have about his assessment of protection action decision-18 making.
I have a need to talk to him further.
19 I am not saying he is the best guy.
He is the 20 only one I know about at this point.
21 22 23 t
24 25 i
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MR. TURK:
Your Honor, let me see if I can respond k_b 2
to that.
Unfortunately, I'm picking this up piecemeal from 3
-- in my presentation.. Mass. AG has included in his remarks 4
now some comments about the timeliness of our response and 5'
the weakness of the response and other things which I would 6
want to address separately.
7 But first, just with respect to this particular 8
witness, we have produced all of the documents in our 9
possession which relate to the Mass. AG's request.
'It may 10 be, as Mass. AG points out, that the only notes of observers 11 which we produced are those of Mr. Perrotti.
That doesn't 12 mean that Mr. Perrotti was the only person who was involved 13 in the assessment of the adequacy-of the protective action 14 recommendation.
And I can tell you right off the bat is 7sb 15 that one of the people I was thinking of having as a Staff 16 witness would have knowledge of all of these matters.
- But, 17 I need to talk with him and confirm what that specific 18 knowledge is.
19 So, I think Mass. AG has right now indicated he 20 doesn't know who that Staff witness would be.
l l
21 JUDGE SMITH:
That's right.
But, the point is l
22 we're arguing with something that is quite different from an 23 engineering evaluation or an environmental evaluation or a 24 safety evaluation.
We're dealing with observed activities.
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'The entire. subject matter falls within the dual gs
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.2 standard of persons with personal. knowledge of the facts and 3
an NRC Staff position as to the significance of the facts.
4 And I certainly think that you should be able to, without 5
delay, work with Mr. Fierce and quickly identify who is the 6
acceptable witness, knowing that you need to have somebody 7
to address the factual case.
8 MR. TURK:
All right.
In order to' help us do 9
that, Your Honor, I would ask Mass. AG to telefax me a list 10 of what types of issues he wants to ask.
And then I can 11 find out the best witness for-those issues.
If.we're only 12 going to --
13 MR. FIERCE:
No, I don't think we need-to do that,
' 14 Your Honor.
It's --
b 15 JUDGE SMITH:
Oh, yes.
Yes, yes, right.
You have 16 a burden here, although the Board's helping you with it.
17 MR. FIERCE:
Well, I appreciate that.
But at this 18 point my questions that I have are those which relate to 19 protective action decision-making by the Staff at all of the 20 sites that were involved in protective action decision-l 21 making.
And particularly the questions that arise out of 1
22 Mr. Perrotti's notes.
23 The NRC Staff has found that protective action 24 decision-making by the Seabrook Station Staff was adequate.
25 All I.know is what's in these notes right now.
It's very Heritage Reporting Corporation
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difficult'for me beyond what's in Mr. Perrotti's notes that
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2
. identify a series of issues.
I want to know how they went 1
3 about doing their assessment and how this form that I'm 4
looking at, The Emergency Operations Facility Exercise 1
5 Observer Forms, are addressed by observers'during the l
6 exercise for these particular objectives.
7 That's really at this point all I can tell you.
J 8
The rule also provides for --
9 MR. TURK:
Those questions, Your Honor, can be j
t 10 answered by any other witness I may designate.
i 11 MR. FIERCE:
Why did Mr. Perrotti on his form l
12 indicate a "no" in response to the point on'the checklist j
J 13 which indicates that they took into consideration sheltering l
14 efficiencies in making protective action decisions?
Why did 15 Mr. Perrotti put a question mark next evacuation time 16
. estimates as a factor that was considered in making 1
17 protective action decisions?
Why did Mr,.
Perrotti put a 18 question mark on the form next to the factor, " expected
)
i 19 duration of release," with respect to making protective 20 action decisions?
I' d like to know why Mr. Perrotti did 1
21 those things.
)
l 22 JUDGE SMITH:
He's making a very good case, Mr.
)
l 23 Turk.
t 24 MR. TURK:
He may be, Your Honor, unless Mr.
i
)
1 25 Perrotti has communicated his thoughts to some other person.
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But some other person had input to those notes.
And until I
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can identify who the best Staff witnesses are, I can get a 1
3 list of the types of questions that Mr. Fierce would raise, 4
he hasn't shown essential circumstances.
l 5
JUDGE SMITH:
All right.
Now --
l l
6 MR. TURK:
Your Honor, frankly I have a practical I 'on't know that I casa make Mr. Perrotti-d 7
problem.
8-available.
That's something that I need to work out here as 9
well.
10 But in the first instance, it's our right under 11 the regulations to identify our witnesses.
That's what I 12-hope to be able to do and I'll let Mr. Fierce know who those 13 witnesses are.and see if he still has a case to make on the i
'14 -
essential circumstances.
i 15 JUDGE SMITH:
You're selectively running behind 16 the regulations and coming out whenever it suits you.
- Now, 17.
you have not provided them the information that they need to 4
18 proceed with their case.
And you're late, you're very late.
s 19 I mean now you are hiding behind a regulation and you are 20 not going to hide there.
21 We are going to provide to the Massachusetts 22 Attorney-General an opportunity to address fully what they 23 need on this issue.
Now, when did you begin to work on it?
24 MR. TURK:
'On the information request?
25 JUDGE SMITH:
Yes.
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1 MR. TURK:
We transmitted the facts for our -- a
(_/
2 day or the day after we received it, Your Honor.
And we had 3
circulated at first the headquarters personnel and from 4
there we learned that an additional search would be 5
necessary in the region, we transmitted it up there.
We had-6 regional people look at it.
Unfortunately, some of them had I
7 to participate in exercises at other plants and we couldn't 8
get their document production complete until last week.
As 9
soon as it was complete we transmitted the documents to 10 Mass. AG.
11 Let me indicate, Your Honor, in terms of 12 timeliness, there is an inspection report that dealt with-13 these matters issued July 6 of 1988.
The Mass. AG has had 7-14 that document since July 15, 1988, by their own admission.
(g>
15 That same document contains the conclusion by the Staff that i
16 protective action recommendations were adequate.
In fact, 17 the Staff language was that they were prompt and
'18 conservative.
l 19 That same inspection in point listed all of the 20 personnel involved in reaching that conclusion.
There was 21 an inspection team of six persons, including Mr. Perrotti, 22 that was headed up by Ed Fox in region I and was signed by 23 Mr. Lazarus, whom the Board is familiar with.
So, the 24 essence of the information has been in the Mass. AG's hands I
25 for over half a year.
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The'only things that we've produced subsequent to 2~
.thatfwere.first in response to the town of Hampton, I J
3 believe, back in-January, we put together'all of the 4
different' memos that addressed the adequacy of the exercise ~.
j
.5 Mass. AG has had'that since January.
Mr. Perrotti, in the 6
course of reviewing his records, recently found his 7
additional set of notes which we've produced as well.
8 On top of that, we've produced pretty much NRC 9
standard documentation, such as the procedure to follow when 10 assessing the adequacy of an exercise.
There's very little 11 in this'new document production that really is useful to 12 Mass. AG, except for the Perrotti notes which we didn't have 13 or at least had not been identified to us whc,. we produced 14 documents previously.
_ O 15 But in terms'of all the documents that address the 16 adequacy of the exercise, Mass. AG has had that for many l
~
17 many months.
18 MR. FIERCE:
Your Honor, that's just really 19 disingenuous.
May I respond?
l l
20 MR. TURK:
May I also indicate, Mr. Fierce, before' j
21 you open'any more doors, that back in September Mr.
22 Traficonte of your office filed a motion for permission to 23 r ulm1+ a contention before the on-site Board.
That same 24 motion to admit a contention noted that the adequacy of i
25 protective action recommendations was addressed in this I
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inspection report.
1
-(-)
2 Your own affiant, Dr. Pollard, based part of his 3
affidavit on the engineering. judgement. exercised by the 4
technical staff of the Applicant and also noted that 5
regardless of whether the protective action recommendations 6
were adequate, it still had to have good' engineering 7
expertise on the site.
You've been aware of our position on i
8 protective action recommendations since last July.
9 MR. FIERCE:
There's no question about that point.
10 We are aware that the NRC Staff found adequate protective 11 action decision-making during the exercise.
What's j
12 misleading about what Mr. Turk just said is that the 13 inspection report itself is not at all helpful to us here.
14 It contains that'one sentence that protective action f
15 recommendations were prompt and conservative.
)
16 But it also is a standard NRC inspection report, f
i 17 And it lists right on the first or second page a list of i
f 18 Inspector's names, one right after another and there are six 19 or seven of them listed.
That is exactly why, when I wrote 20 to Mr. Turk, telefaxed him the letter back on January 24, I 21 asked him if he would quickly call me and answer a couple of 22 the questions that were raised in that letter, which would 23 have identified for us which of those individuals listed on l
24 that inspection report were tht ones involved in evaluating 25 protective action decision-making.
Because it's a logical g-Heritage Reporting Corporation
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assumption that not of all of these Inspectors were involved
(')
2 in that activity.- Or if they were, that one of them would 3
have some' dominant role.
4 We.had no idea prior to the receipt of the 5
information just the other day that it is Mr. Perrotti who 6
was involved in this activity.
Maybe.there were others.
7 But, it's the only one that we know of now.
And we had no 8
prior information that would have allowed us to identify an 9
' individual for a deposition prior to this time.
10 Mr. Turk is just dead wrong on that point.
11 MR. TURK:
So again we're talking about being dead 12-wrong, Mr. Fierce.
Because if you look at our response to 13 the town of Hampton, you will see Mr. Perrotti's memo 14 evaluating protective action recommendations.
The only O
15 thing you've gotten now beyond that are the notes that went 16 into that memo..
So, you've had since January Perrotti's 17 assessment for protective --
i 18 MR. FIERCE:
We can go back and forth on this.
I 19 mean --
20 MR. TURK:
Listen, if you're going to raise both 21 those arguments, I'm going to respond.
t 22' MR. FIERCE:
It appears you weren't forthright in 23 responding to Mr. -- the request from the town of Hampton in 24 giving them all the information about the protective action 25 decision-making.
Yes, you've given us a little bit more, feg Heritage Reporting Corporation
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.We-did get --
2 MR. TURK:
Mr. Fierce, I'm going to ask you to 3
withdraw that comment about not being forthright.
.j
-3 4-JUDGE SMITH:
All right.
The question --
j 5
MR. FIERCE:.We got more.information than you gave 6-to them.
7 MR. TURK:
That's right, you did.
3md I already 8
explained the circumstances for that.
9 JUDGE SMITH:
Mr. Fierce believes that Mr.
10 Perrotti is a witness who has personal knowledge of material f
11 facts.
He's come up with Mr. Perrotti's notes that.seem to 12 allude to material facts.
I don't know.
Mr. Turk, it-may I
13 be that in a couple weeks the Board will be looking for an 14 excuse to take time out of the hearing.
We can just blame-i
.(
15 it all on the NRC Staff, you know,.for causing'a delay and j
16 then that will accomplish our purposes.
But I.think you're 17
. playing a risky game to hold off your designation so late.
18 MR. TURK:
We're not holding off, Your Honor.
In d
19 the'first case let me note that we've had a mistaken 20 perception of the thrust contentions.
We were not 21 anticipating putting any witnesses --
22 JUDGE SMITH:
I don't have an sympathy with you on 23 that.
{
24 MR. TURK:
I understand.
But what I'm trying to 25 indicate is that this is not a deliberate attempt to delay Heritage Reporting Corporation 0-(202) 628-4888
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production.of witness identifications.
Now that we
.g 4
2.
understand the Board's ruling, we' re moving to identify ' the 3
witnesses.
4-Your' Honor, it may be that Mass. AG and I can work 5
out an agreement in terms of witness interrogations.
6 JUDGE SMITH:
I would certainly think so.
7 MR. FIERCE:
'I tried the'other day, Your Honor, 8'
and was received in a most inhospitable way.
LetLme put it.
9' that way to be kind.
10 JUDGE SMITH:
Well, Mr. Turk, one of the concerns 11
'I have here is that you. sit here earlier and you explained f
12 to us that you have a right under 2.720 to designate the 13 witnesses that will appear and that hasn't been:done yet and 14 until that is done they can't do anything.
And then your l
15 explanation stops.
16 And it wouldn't be a complete explanation until 17 you address the part that I had to lead there:
that where a 18 particular named individual has personal possession of 19 material facts and the Board requires attendance.
You don't 20 seem to want to go up straight up to that point and wrestle 21 with it.
So, you' re going to do it later.
All right.
22.
We'll just do it later.
23 MR. TURK:
But, Your Honor, I'm going to do it 24 this week.
All I'm asking for from Mass. AG is if there is 25 a particular type of information that he's requesting from Heritage Reporting Corporation p/
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us, if he identifies what that is -- I'm not trying to delay 2
' things.
I would hope to reach agreement'this week with 3
Mass. AG.
4 JUDGE SMITH:
I think you better.
5 MR. FIERCE:
Well, I just indicated the kind of.
6 information that I need.
7 JUDGE SMITH:
This is a request to have you detail 8
it and fax it down if reasonable, the other form later onnif 9
you need to.
10-I guess it can't be e.7oided.
But, we're busy too.
11 This is taking time away from other things that we should be 12 doing'getting ready for the hearing.
13 MR. FIERCE:
Your Honor --
'14 JUDGE SMITH:
Come back to us if you can't work it 15 out.
16' MR., FIERCE:
Your Honor, I'm hoping we can work 17 that out.
But, I came in late on this call.
I'm not sure i
18 what the discussion was with respect to that aspect of the i
19
' motion that asked for an extension of a filing deadline, if 20 we are going to be following the route that looks it will 21 be:
a deposition prior to hearing.
22-I had offered to Mr. Turk the other day an 23 alternative option.
Which would be in lieu of extending the 24 filing date on that piece of testimony and whether he would 25 produce this particular witness at the hearings for cross-r^
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examination.
If I've got to prepare testimony by-April 3, I-
'\\J 2
believe that the delay that has been caused >for whatever 1
3 reason at the NRC Staff in getting this back to us now 4
precludes me from having a deposition prior.to that filing 5
date and getting the testimony on file.
6 i
l 7
8 9
}
10 11 12 13 14 O
15 16 17 f
18 19 20 1
21 1
22 23 24 25 l
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JUDGE SMITH:
Well, Mr. Turk is correct the 2-regulation says that we have to look at the witnesses made i
3 available by the EDO and if they don't have personal
]
d 4
knowledge of material fact, then we can require the 5
testimony of another witness.
But he is-right, we have to 6
wait until they make known the witness they want to. offer.
7 My inclination would be to say, go ahead and 8
depose Perrotti right now.
But the regulation covers-9 depositions, too.
We do not have authority.to suspend that 10 regulation.
11 MR. FIERCE:
I am not asking that be done.
I'm 12 asking that alternatively, not even alternatively.
In 13 addition, the power you do have which is to allow us to file 14
. testimony on MAG-EX 19, at this point I would be asking.for 15 an additional two weeks because of the delay the NRC Staff 16 in responding to this informal discovery request.
17 MR. TURK:
Your Honor, let me respond to that, if l
18 I may.
As I have expressed before, I don't think tLat we 19 withheld anything from Mass AG, as they are suggesting, that 20 they didn't have already.
21 As part of the response we filed with the Town of 22 Hampton back in January we did include the Perrotti memo t
23 evaluating the adequacy of the exercise as well as f
l 24 approximately half a dozen other memos; there was three or l
25 four, I forget the exact number.
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1 MR.. FIERCE:
None ofLwhich pertain.
-\\
2 MR. TURK:
Which pertained to.the adequacy of the 3-exercise.
The inspection report has been in Mass AG's hands 4
.since July.
They were fahniliar with it.
They filed 1
5 contentions based on it half a year ago.
If the Mass AG had 6
particular questions that they wanted to raise, they could 7
have simply said to the NRC Staff, please identify your 8
witness who can respond with respect to the following 9
categorios of information.
10
-MR.
FIERCE:
That's what I did January 24th.
I 11 MR. TURK:
If theychad done it that simply we 12 could have handled it.
Instead they came forward with a 13
'seven page letter single spaced asking a broad range of j
,f-information that necessitated a document search again, i
14 V) 15 beyond the document search that was conducted the first time 16 around when we responded to the Town of Hampton.
And I l
17 don't think Mass AG can lay blame at our feet for delay.
18 MR. FIFRCE:
Mr. Turk ignores that segment of the 19 last paragraph of the letter, Your Honor.
20 MR. TURK:
Well, it's a pretty long letter, Alan.
21 MR. FIERCE:
It is pretty specific in requesting i
22 the names of these individuals and requesting a telephone 23 call at the earliest opportunity.
Would you kindly call me 24 at the earliest opportunity with the answers to these 25 requests so that we can select the proper persons to depose Heritage Reporting Corporation p(j (202) 628-4888
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. without further delay.
And then try to identify some.
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p 2
. mutually agreeable dates.
That was. faxed on January 24th.
l l
3 JUDGE SMITH:
Okay.
Go ahead.
We are going to
~4 hold off rendering a' delay of filing the testimony.
I
-5 MR. FIERCE:
Your Honor, I cannot-choose at this 6
point in. time -- if I' don't have that extension I may not be i
7 able to do that, deposition.
I'm going to have to either I
8 choose it Hobbesian choice here for us; do you want a i
9 deposition or do you want to file the testimony?
10 JUDGE SMITH:
I want to see what Mr. Turk does.
I 11 want to see how sensitive he is to the problem, the Board's 12 problem to the whole consideration.
So far I haven't been 13 aware of any particular sensitivity, i
r
'14 MR. TURK:
Your Honor, I have a practical problem 1
(3) 15 which I haven't discussed until now.
l I
16 JUDGE SMITH:
A what?
{
l 17 MR.~ TURK:
I have a practical problem which I have 18 not discussed until now.
The only witness that Mass AG has 19 identified so far is Mr. Perrotti.
And I don't know if l
20 they're going to come back and say, well, in addition to 21 Perrotti we want other people, i
22 One thing Mr. Fierce has indicated is that they
{
23 want people who were involved with PAR evaluation at every 1
24 site during exercise and I don't know how many people that's 25 going to encompass, f
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1-MR.-FIERCE:
Because'that's.what the objective --
. f ]/
2 the objectives in the scenario identify that those 3
objectives would be evaluated at the. control' room, the TSC, 4
and the EOF.
5 Apparently it is some sort of a collective j
6 decision between those three sites according to the 7
objectives.
l 8
MR. TURK:
It may be.that the best witness for you 9
is the team leader.
And I don't think that I need to 10 respond with.three separate witnesses.
{
11 MR.LFIERCE:
At this point I am very interested in l
.12 Mr. Perrotti because of the questions he has raised with his 13 notes.
If the NRC Staff is trying to deflect attention from 14 Mr. Perrotti on to another witness who doesn't have 9.he kind i
15 of information that Perrotti had when he made his notes I'm l
-16 going to object.
17 JUDGE SMITH:
Mr. Fierce, in my experience with 1
18 NRC Staff, when it comes to this particular section of the l
19 rules they create suspicion where none needs to exist.
If a 20 person didn't know how to stick to this rule when it is not 21 really appropriate, you would suspect they're trying to hide 22 Perrotti.
You wouldn't suspect that if'you didn't know 23 that.
24 MR. FIERCE:
I suspect that very strongly right 25 now, Your Honor, Heritage Reporting Corporation f-)s (202) 628-4888
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-1 JUDGE SMITH:
But that is not necessarily the l
=
i E
That is a very important policy rule to the NRC 2
case.
3 Staff, they stick with it.
They stick with it right to the 4
very end even though they.know they're going down and defeat.
]
5 on.
But I don't know.
I think it will come out:all right 6
for you.
I don't-think you have any reason to believe 7
they're hiding a witness; they don't do that.
8 MR. FIERCE:
Well, he just got done telling me he 9
has a practical problem in locating Mr. Perrotti.
l l
10 MR. TURK:
I didn't say in locating him.
Der j
11 problem, Your Honor, is that Mr. Perrotti has announced his
(
12 retirement from the agency.
And even if Mass AG wants him I l
l 13 can't necessarily give him to them.
14 JUDGE SMITH:
The Board can.
15 MR. FIERCE:
Well, the Board can subpoena him.
v 1
16 JUDGE SMITH:
This' problem may go away, if he is 17' not working for the agency we will just issue a. subpoena.
18 MR. TURK:
He is still here, Your Honor, but I 19 think the first question to answer is, who is the most 20 appropriate witness.
I don't mean to come forward with some 21 person who doesn't know the facts..
On the contrary, I would j
i 22 give them the best witness thLt we have who is knowledgeable 23 on the fact.
And that's all I'm looking to do and I don't 24 see why there is controversy at this time.
25 Sometimes it's the tone rather than the substance.
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'1 JUDGE SMITH:
What Mr. Fierce read.that peaked his
-V 2-curiosity and it peaked mine.
They're interesting notes.
I' 3
think you should ask those questions.
But go ahead follow
-4 your way.
You have that right.
5 Anything further on this issue?
6 MR. TURK:
Your Honor, what I'm taking out of this 7
-- from Mr. Fierce is that he didn't trust in interviewing
'i 8
or deposing Staff witnesses who were familiar with the PARS 9
generated at three locations: the control room; the TFC; and 10 the EOF.
11
'In particular, he didn't trust Mr. Perrotti's 12 notes.
And at least at this point -- am I to assume the 13 universe of the types of individuals-I should be thinking of 14 to see who the.best. persons may be.
f-
%)
15 MR. FIERCE:
Well, I would take another look at 16 that second to the last paragraph in the letter of January 17 24th.
There are two exercise objectives at issue and they 18 are both described there.
i 19 From my standpoint right now I have two interests:
20 I want.the most knowledgeable person about each of those two 21 objectives.
And I'm interested in Perrotti.
i 22 MR. TURK:
Now, those are assessing conditions
)
23 that support the formulation of off-site PARS.
And j
l 24 secondly, formulating off-Bite PRAs.
25 MR. FIERCE:
That's right.
They are two separate l
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. exercise objectives.
2-MR. TURK:
One'of these is fairly broad, Alan.
3 You say, assessing conditions that support the formulation 4
of off-site PRA.
5-MR. FIERCE:-
It's not my language, it comes right~
6 out of the v jective.
7 MR. TURK:
I know.
But in terms of the scope of 8
your contett!)n.I think you maybe going a little too far.
9 Because you're asking for everything that may have happened 10 on-site including the assessment of what the condition of v
11 the plant was.
I think that's your first contention for the 12 on-site board rather than something here.
13 MR. FIERCE:
They both concern off-site protective 14 action recommendations.
7-)g 15 JUDGE SMITH:
Well, I think we mada clear in our i
16-earlier ruling of contention that we will begin the off-site 17 litigation with the assumption that plant assessment is 1
18 accurate.
19 MR. FIERCE:
That's fine, I have no problem with 20 that, Your Honor.
The conditions I'm concerned about is
[
21 assessing for purposes of formulating PRAs would be such 22 conditions as whether off-site road conditions; population; r
23 concentrations; unusual events; all of the various other 24 factors that could influence PRA decision-making, given what i
i 25 you just said.
Given the correctness of the assessment of Heritage Reporting Corporation (202) 628-4888 u-----
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That's really assessing off-site 3
conditions.
4_
MR. FIERCE:
That's right.
5 MR.. TURK:
We will' work on it today, Your Honor.
6 JUDGE SMITH:
Thank you.i 7
Now the stipulation.
8 MR. FIERCE:
Can you hold on one second, Your 9
Honor.
10 JUDGE SMITH:
Yes.
11 MR. TRAFICONTE:
Yes, John Traficonte.
12 JUDGE SMITH:
All right, we are ready now, Mr.
13 Traficonte, for your concerns on the stipulation.
14 MR. TRAFICONTE:
Well, it was primarily on Friday 15 that'I was concerned and I called Mr. Fierce after talking 16 with'Mr. Dignan, I was concerned that I didn't think the 17 parties in fact had a meeting of the minds as to the 18 significance and proper interpretation of a stipulation 19 which had been signed,. but which had not yet been approved 20 by the Board concerning ETE issues.
21 And I gave Mr. Fierce a very brief thumbnail 22 sketch of my understanding of how the agreement or I
23 stipulation had basically come unglued.
24 I had talked to Mr. Dignan and we were in a rather
-25 odd position of both threatening each other with seeking to i
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have the stipulation enforced in its literal language.
And 2
obviously since we both thought that would have different 3
consequences I told Mr. Fierce that I thought that probably 4
we didn't have a meeting of the minds on the meaning of that i
5 stipulation.
And therefore the Board should know that first-i 6
off because,-first of all, it has an obvious interest in the l
7 stipulation.
8 And secondly, because it had not yet been l
l 9
approved.
I know that, although I wasn't a party to.these
-10 discussions, I know that the Board was looking to some i
1
.11 approval mechanism.
And this is essentially just running l
12 the flag up and to notifying everybody that I don't think we 13 have a stipulation that can be approved at this point.
14 This was a hotly contested area.
All the parties p) u 15 have' spent an enormous amount of time and energy on ETEs.
I 16 know from my conversations with the staff here that this l
17 stipulation was a fairly arduous undertaking and a lot of 18 time and effort has gone into it, i
l 19 So I don't say this lightly.
But I frankly don't 20 think that we have an agreement any longer as to what we are i
21 prepared to withdraw in the way of contentions.
And what I
22 the Applicant is prepared to do in the way of agreeing to 23 calculate ETEs in light of a certain permutation of the 24 model, if you will.
25 To get into the -- I mean, I don't want to l
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hesitate for a moment getting into the merits.
It's a 73 V
2 fairly complex complicated dispute that has caused this 3
thing to come unglued.
Again, I'm glad t'o talk about the 4
merits.
I don't know what that will get us.
5 My point is more procedural which is what really 6
could we do or should we do at this point.. We obviously, 7
the short of it is that in the event we are essentially i
8 agreed that it has come unglued we would be -- the Mass AG 9
would require some relief in a limited form which would 10 simply to be that because the ETE issues that were involved 11 in the stip were -- the testimony on those issues was to be a
12 filed by February 21 we would be requesting permission to 13 file what testimony we do have on those contentions with the 14 second waive of the testimony on April 3.
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15 That would be the formal request for relief that I 16 would make and that I made to or notified Mr. Fierce on.
i 17 But the threshold problem that I see is just that we had a 18 stipulation that we don't apparently any longer have.
19 JUDGE SMITH:
Mr. Dignan?
20 MR. DIGNAN:
I couldn't disagree more in terms 21 that we don't have a stipulation.
I signed the stipulation 22 and I'm prepared to stay with the stipulation I sigr.ed and 23 I'm prepnred to have the Board approve it as written and 24 signed.
I have no problem with it whatsoever.
25 What it amounts to is the Mass AG wishes they r-Heritage Reporting Corporation
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hadn't signed it.
And now the question is whether the. Board
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3 MR. TRAFICONTE:
Your Honor, I don't want to l
I 4
interrupt Mr. Dignan, but that was my point earlier.
He j
l 5
said that to me on the phone.
I would say the same thing.
~
6 We can live with the stipulation enforced as we signed it, 7
too.
8 But the point is that it will become pretty 9
obvious once we look into the merits that we understand the l
10 language to mean X and Mr. Dignan understands and the other 1
11 side understands the language to mean Y.
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12 My loyal instincts tell me that that may not have I
13 been a meeting of the minds.-
I 14 JUDGE SMITH:
What does Mr. Turk say about it?
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i 15 MR. TRAFICONTE:
Well, I'm not sure he is apprised i
16 of the situation.
This has nothing to do, Sherwin, with Mr.
l l
17 Urbanik.
It has nothing to do with his review which I know 18 is a factor at some point in final approval.
This is not l
19 connected to that.
20 JUDGE SMITH:
Well, how can we approve a 21 stipulation if it's brought to our attention that it is not 22 understood by the parties?
23 MR. TRAFICONTE:
Your Honor, I don't believe that 24 you can.
25.
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We should make a point that the Heritage Reporting Corporation
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it cannot be' enforced it's-not going to be'in the-public l
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4
' interest.
I don't think.
I. don't.know.
5 The stipulation is not bilateral and it does t
6-
' require Board' approval.
It's not a contract.
-7 Judge Carpenter has a question to ask.
8 JUDGE CARPENTER:
Mr. Traficonte.
1 9
MR..TRAFICONTE:
Yes.
10 JUDGE CARPENTER:
This is Judge Carpenter.
11 MR. TRAFICONTE:- Hello.
12 JUDGE CARPENTER:
I lost the thought.
What 13 specific page,1 paragraph i~s at. issue?
' i 1 14
'MR.
TRAFICONTE:
Yes, I will. direct you to it.
Do 1
O 15 you have a copy of the February 23rd joint stipulation?
.16 JUDGE CARPENTER:
Yes, sir.
17 FE. TRAFICONTE:
The thing that has caused the 18 difficulty is on page three, the paragraph numbered two.
l 19 JUDGE CARPENTER:
I see it.
20 MR. TRAFICONTE:'
It is-the intersection at Route 1
,1 110 and I-95. And the agreement that we have reached here as 2
-22 to how that intersection would be handled, and then how we 23 now understand based on the testimony that Mr. Lieberman has 24 filed already on February 28.
It was on review in Mr.
25 Lieberman's testimony that we discovered that -- and I'm not g
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'3 had made other modifications in'the model concerning this 4
. intersection'in addition to the ones that we had negotiated, j
'5 And we, frankly to put it.in'a nutshell, we had:
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6 assumed that we were negotiating changes to the. inputs of.
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the model while otherwise the model was being held constant.
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And what we: 1 earned was that in fact Lthe model -- the
'9 Applicants'rightlyJor wrongly took the position that the
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model couldLbe changed in other ways,7you know, 'in addition y
1 11 Lto the ones that were negotiated.
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12 Well, the bottom line for that, of' course, is that.
1 13 we would then lose the opportunity to challenge the~ ways in 4
which, since we're withdrawing our ETE contentions, we would.
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17 ways that we' understood he was. altering the model'.
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MR. TRAFICONTE:
That may not be a precise way to
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It probably is my lack of sleep.
That's basically j
3 where we are..
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4 MR. TURK:
Your Honor, I may be able to provide a 5
little bit of specification on this based on what my 6
understanding of what the problem is..
The Court'may recall 7
that back in the New Hampshire litigation, one of the 8
problem areas that was identified in the ETE was that the 4
9
. applicants were routing some of the traffic heading west on 1
10 Route.110 over a grassy medium where they would then pick up l-11 another ramp to get them up to 195 going south, I believe.
12 And in fact back in the New Hampshire litigation, half of 1
I 13 the stream of traffic was being put on the normal ramp to 14 access 195 South, the other half of the stream was being put f-)
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15 on this grassy median, crossing 110 and getting on to the 16 other ramp to I95 south.
17 And as I understand it in Dr. Liebermann's l
18 testimony he's now assuming that there will be free-flows.
i 19 One would take the normal ramp onto I95, one will be U-20 turned at the next street, which I believe is Clark Street I
21 and there will be some traffic which continues on toward l
l 22 495, which is further to the west.
I think that's the 23 change that SAG is protesting here.
24 MR. TRAFICONTE:
Well, just understand my l-
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25 position.
We're not protesting in the abstract a change.
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'What we're stating is that the negotiation that we were j
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engaged in on the changes to the inputs to the model was 3
based on a notion that we had that obviously, we had looked j
4 at it from one perspective and we had a pretty good feeling 5
for what the ETE was going to be if these changes were made, 6
and it was on that basis that we felt it was close enough to 7
our understanding of what the ETE would be to withdraw our 8
contentions.
9 Now what we have learned is that Mr. Liebermann 10 made additional changes, and the one that's at issue right 11 now is this intersection.
He made additional changes or 12 modifications or alterations in addition to the ones we 13 negotiated. And again just to reinforce what I said earlier, 14 I'm not saying that was wrong or that was right but it's j
~
15 something that we did not understand was being done and it j
i l
16 impacts on the ETE that would result once those additional l
17 changes were made.
Having now understood that and not L
18 having understood prior to this point that additional 19 changes would be made, we can't any longer stipulate to the 20 withdraw of our ETE contentions.
I 21 I mean it kind of unravels with a fairly clear 22 logic.
We can't -- we don't believe that the new ETE is an 23 accurate one and moreover we don't believe that the 24 additional changes or modifications that Mr. Liebermann has 25 made, at least as we understand them are defensible.
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-l' JUDGE CARPENTER:
Mr. Traficonte, if I could v-2 interrupt.-
3
.3 MR. TRAFICONTE:
Sure.
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'4' JUDGE CARPENTER: 'You use in the past tense with V
' respect to this, has he already run the model with these L
'5'
. 6 conditions?
p 7
MR. TRAFICONTE:. Well, you know I'm in the same l
'8 situation.I_was in a-few minutes ago.
I am able in a
-9 general wayz to identify the issues.
But this is Mr.
10 Fierce's issue. He is standing right here.
I'm going to 11 just ask'him this question.
Has Mr. Liebermann made these 12
-runs?
13 We believe he has made these runs, we have' heard
]
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.that from the testimony that was filed.
-(/
15 JUDGE SMITH:
How has it happened that this 16 intersection turns up in both.New Hampshire litigation and 17 in the Massachusetts litigation?
t 18 MR. TURK:
It's located in Massachusetts, Your 19 Honor, and the-only reason I can see it coming up againHis 20 if there's now a proposed change in the traffic management 21 at that intersection.
22 MR. TRAFICONTE:
No, Your Honor, in fact that 23 intersection was not litigated during the New Hampshire 24 hearing.
25 MR. TURK:
Sure it was, we had Dr. Urban testify Heritage Reporting Corporation
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on that.
You may recall that was one of the problems he
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median.
4 MR. DIGNAN:
Your Honor, this is Tom Dignan.
I've 5
been relatively silent. If it was litigated the board can 6
look at transcript 5740-41.
What you will find is this very 7
intersection was gone into, and what Mr. Liebermann 8
testified to was that they've done a. sensitivity run in l
9 which they assumed they could use the graphic strip. They I
10 sent the traffic straight on down'to 495.
That was 11 litigated, I believ'e in finding 9.76 and.9.78 of the partial j
12 initial decision hearing of 1983.
The board dealt with this 1
13 problem, that's point one.
i i
14 Point two is that on two occasions we were asked (q
/
/
15 interrogatories,.once by the town of Amesbury and once by 16 the Commonwealth of Massachusetts concerning how that 17 intersection be handled. And in both occasions we referred 18 them to appendix J of the SPNC. And if one' reviews Amesbury 19 traffic control post DAM 06 which is the traffic control post 1
i 20 at issue here, one will find it laid out in the SPMC with 21 the three directions of travel.
22 So again, obviously the Commonwealth, I'm going to 23 take their word they didn't catch up to how this really 24 worked until after they had signed the stipulation.
And if 25 that be their view, that be their view. There can't be a "N
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stipulation.
Because what I can't stipulate to is something
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l-2 that's absurd in the real world, which is the traffic'will j
i 3
sit there cued up'trying to get off on ramps despite the 4-fact that they know there's a clear shot right down the next l
l-5 interstate down the road.
I mean if I signed that 6
stipulation I'd be signing something at variance with 7
reality.
8 An to whether Mr. Liebermann has testified in the 9
cross examine in this proposition, he has, and indeed you 10 will find that I cross examined Dr. Seeder on this very 11 proposition, who the attorney general put on.
So there's 12 nothing new and exciting about the way this thing is 13 handled.
14 JUDGE SMITH:
How did it come up again in this s
\\
15 hearing?
16
-MR.
DIGNAN:
Because Mass AG_wants it to, Your 17 Honor.
18 JUDGE SMITH:
Is there a contention?
l 19 MR. TRAFICONTE:
Yes we do, Your Honor, there is a 1
20 contention with a specific basis identifying this 21 intersection as a problematic for the SPMC's traffic 22 management plan.
23 JUDGE SMITH:
And was the argument made that it 24 was res judicata?
25 MR. DIGNAN:
However, it will be handled precisely
{^')
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the way we testified as to the way it will be handled in the 2
NHRERP phase of the case.
3 JUDGE SMITH:
Did you argue on the contention that 4
it was res judicata?
5 MR. DIGNAN:
Did I?
6 JUDGE SMITH:
Yes, did either Mr. Dignan or Mr.
7 Turk or Ms. Chan or whoever?
8 MR. DIGNAN:
Your Honor, I have no recollection as 9
to whether I did or not.
My guess is I did not.
10 MR. TRAFICONTE:
I don't believe it is res 11 judicata on that intersection and on the appropriateness of 12 the way in which that intersection was handled.
13 JUDGE SMITH:
Okay, I think we have a difficult 14 problem here.
I don't understand why you didn't move it 15 ahead to try and clarify the jurisdiction of the boar on 16 this.
If we heard part of it, another view of it we didn't 17 hear and obviously we cannot make two inconsistent findings 18 as to the same traffic control point.
We're going to have 19 to either change our earlier decision if we litigate it 20 again, or do something.
But we can't have two inconsistent 21 decisions on it, and two inconsistent approaches to it and 22 we do not have jurisdiction over that decision.
23 MR. TRAFICONTE:
Your Honor, this dates back to 24 decisions and orders of the Hoyt Board, at least to my 25 understanding.
But we understand that the Hoyt Board had Heritage Reporting Corporation O
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out of bounds-for. purposes of litigating the ETE study and l
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the traffic management plan that was. set forth in the New 4
Hampshire state plan.
So I have some sympathy for what you 5
just said but.I.think that as we understand how the issues 1
6 got divided up here, that dates back to specific orders of 7
the Hoyt. Board basically putting out of bounds for us at 8
least, a challenge to the traffic management plan in q
l 9
10 JUDGE CARPEtiTER:
Before I lose what I was trying 11 to get at, you tell me that the model has been run?
Am I 12 speaking to Mr. Fierce or Mr. Traficonte now?
i 13 MR. TRAFICONTE:
Well, you're speaking to Mr.
14 Traficonte but I'm going to put Mr. Fierce on the phone 15 because.I have a feeling you're going to press on your 16 question and I'm not going to be able to answer the next f
17 one.
18 JUDGE CARPENTER:
I have one more.
19 MR. TRAFICONTE:
All right, I'm going to put'Mr.
20 Fierce on.
21 MR. FIERCE:
Hello, Alan Fierce speaking.
22 JUDGE CARPENTER:
Mr. Fierce, this is Judge l
l 23 Carpenter.
l l
24 MR. FIERCE:
Hi, how are you.
25 JUDGE CARPENTER:
I'm trying to understand this Heritage Reporting Corporation O'
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issue on. base rate of:the.' stipulation too.
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MR. FIERCE:
Yes. JUDGE. CARPENTER:.Apparently_t'he model has been 4
run withLwhat assumption?
With'a'different assumption than.
5 the oneLthat.was specified in item'two?-
6 MR. FIERCE:
Well, with a series of new 7,
assumptions, let's put it.that way.
Perhaps including the-8-
one that's made in item two.
'9 JUDGE SMITH:
Including the one that's made in
,1 10 item.two?
l 11-MR. FIERCE:
A whole series of new assumptions.
I
~12
~ including the'one, perhaps including the one that was-made
- 13 in item two, but in a way that essentially from our' y-standpoint would undercut the effect of item number'two.
114 V'
15 JUDGE CARPENTER:
Well, taking the results'for 16 running the model under the conditions'specified in item 17 number two, how large a change in the ETA is produced byL j
18 these other assumptions?
q I
19 MR. FIERCE:
Well in the overall times I can't 20 tell you that.
The' capacity of the intersection does change g
21 substantially by approximately 25 percent.
22 MR. TURK:
That is a critical bottleneck, as I 23 recall.
24 MR. FIERCE:
That is the critical bottleneck in 25 the entire Massachusetts EPZ, which we thought wo had Heritage Reporting Corporation (202) 628-4888 i
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MR. TURK:
Your Honor, if I may make an off hand l
3 comment.
All of'these problems.can be solved by simply 4
-laying some. asphalt across that grassy. median.
And I don't 5
see why the MASS AG applicants can't agree to have the 6
applicant throw that asphalt on the grassy median to be used I
7 in an emergency and help everyone evacuate more promptly.
8 It seems we're arguing over something totally unnecessary.
9 JUDGE CARPENTER:
Mr. Turk, you're introducing 10 common sense now.
Mr. Dignan do you have any response?
j 11 MR. DIGNAN:
My guess is my people would happily 12 say to put that asphalt down, Your Honor, but I don't think 13 the governor would let us do it.
l 14
. JUDGE CARPENTER:
The governor of Massachusetts?
-sU 15 MR. DIGNAN:
Yes.
16 JUDGE CARPENTER:
Let me make sure I understand 17 the 25 percent number of lives to the time to get people 18 f.krough the particular intersection or the whole ETE?
19 MR. FIERCE:
Well that particular intersection 20 being the critical bottleneck in the entire Massachusetts 21 EPZ basically has a direct effect on the ETE.
So to the 22 extent that the capacity of that intersection is either plus 23 or minus 25 percent, it will have pretty close to a plus or 24 minus 25 percent impact on the overall ETEs.
25 JUDGE CARPENTER:
I see, it's the expectation of Heritage Reporting Corporation O
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the last person out will have to go through that.
2 MR. FIERCE:
That's correct.-
i 3
MR. DIGNAN:
And the first part of that statement
{
4 is so only if you make the assumption that MASS AG 5
apparently wants us to make, which is you rule out the 6
people going straight down to 495.
In other words, what's 7
basically involved here is that you have an intersection 8
with three ways out of it.
One to the left, one to the 9
right-and one straight ahead. And I've oversimplified 10 because the one to the right comes up earlier than the 11 actual intersection. And what MASS AG is:saying we've got to 12 do and what he though we were going to do was take the one 13 to the right, so a U turn.
14 MR. FIERCE:
The one to the left.
15 MR. DIGNAN:
The one to the left, the U turn and 16 cut its capacity by 50 percent.and then run the model. And 17 what the model then does is run and sends the traffic 18 straight on down the road that otherwise would have gone 19 there. And that's why there was no effect on the ETE as was 1
20 testified to in the New Hampshire hearing.
21 JUDGE SMITH:
Did the model do that or did 22 Liebermann change some assumptions?
1 23 MR. FIERCE:
That's a critical point, Your Honor, 24 and my experts tel me that Mr. Liebermann had to make a i
25 change in order to do that.
There are a series of changes r*
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2 nuidoer -of changes to them.
But merely changing the.left l
3 turn capacity to a number which was 50 percent lower did not 4
send people through.
You had to instruct people to do 5
through.
6 JUDGE SMITH:
But wouldn't that be --
i 7
MR. DIGNAN:
Your Honor, in answer.to your 8
question, and this is why I referred particularly to the 9
testimony, in the prior hearing transcript, 5740 and 41, and 10 by the.way I made a statement in error earlier, I gave you.a
'll reference in the-initial decision in which I said you had
.]
12 addressed that intersection.
The' answer.is yes you had 13-addressed it, but you addressed it in a different setting.
14 So strike that comment I was wrong, I was reading into that.
fs
. (_)
15 But at 57540 and 5741 we had Liebermann being 16 questioned on this thing. And he said that particular 17 division point has another element which was not included in 18 the modeling process of which was studied in the sensitivity 19 run. The outlet is for the left hand lane to use a through 20 movement to move along through Route.110 toward I495 and you 21 look at traffic control instructions and appendices at that 22 location you will see, and there is a typo there, but you 23 will see that the instructions are to permit movement 24 through that point toward I495.
That route is not congested 25 that is with a standing que.
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And then skipping one paragraph, "in the L.b 2
sensitivity run we have condu ted at the very start of this 3
whole process shows.that whether you use the left turn 4
movement onto that ramp or you send everybody through I495 5
the effect of the ETE is the same. And this goes on, you can 6
see it again in 3R669596 he explains it again.
To the 7
extent that we -
yes we changed the model back when we did 8
the sensitivity run in New Hampshire.
But the problem I've 9
got to stipulating -- and you know we're wasting a. lot of 10 time because nobody is accusing anybody of bad faith.here.
11 Apparently they reread it. My view is if the board 12 wants to you approve the stipulation. If somebody says we-13 aren't living up to our obligations under it, they 14 presumably go for enforcement of the stipulation somehow 15 either through a 2206 or some other way and we' re told 16 differently or if we're right we're right. But the point I'm 17 getting at is I cannot stipulate to the fact that nobody is 18 going to go straight ahead there or that some limited little 19 percentage will because that's where they're going to go.
20 And every traffic guy I've talked to on my side of the fence i
21
.says of course that's what they're going to do and I can't 22 stipulate to it.
23 To settle this thing I'd stipulate to almost 24 anything but I can't stipulate to something that just isn't 25 in the real world.
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i 15921 1-MR. FIERCE:
This is all a very interesting gg g
2 intellectual exercise, but the key point here is that when 3
the negotiation occurred, the Mass AGs had been provided 4
with a copy of the tape the JLD used to run the ETEs for the 5
SPMC.
They gave it to us, back in October in response to a 6
discovery request.
7 That tape was analyzed by our experts and one of 8
the things they looked at is what does the model do with the 9
traffic flowing through thdt intersection.
And it has the 10 traffic turning right and turning left.
Clearly, there is a 11 potential to go straight through, but the model didn't have 12 them do it.
The model didn't have then do it in New 13 Hampshire, either.
14 When we went into this negotiation that what we 15 were negotiating were changes to a base set of ETEs.
That's 16 the way the document -- and the key point of difference here 17 is the fact that they believe they can make additional 18' changes,and we believed that we were negotiating a fixed set 19 of changes.
20 MR. DIGNAN:
I understand that and. don't doubt 21 that you believe that.
I don't think you were, and I'm 22 standing by the stipulation.
You don't want the 23 stipulation, and I suggest we forget the stipulation and 24 litigate.
It's not a problem, Alan.
25 MR. FIERCE:
At this point, if the stipulation Heritage Reporting Corporation O
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- 1 were-to' hold, Mr. Lieberman's testimony would be stricken in V
2 key respects and the model could not be changed.
This is 3
the key point: if we have an agreement, the model cannot'be 4
changed.
And I'll live with that.-
5 MR. DIGNAN:
No, Alan.
It would appear --
l 6
MR. FIERCE:
If we' don't have an' agreement, if you 7
want to change the model, we don't have an agreement, Tom.
I 8
There was clear, there was a clear missing of the minds if 1
9 that's what you thought we were negotiating.
)
10 MR. DIGNAN:
Alan, I agree.
We don't,have an 11 agreement.
The stipulation, as far as I'm concerned, is 12 whatever the Board wants it to be.
I'm prepared to stay 13 with it.
If you're not, and the Board wants to junk it, 14' that's fine with me.
g3
.U 15 But there's no sense going over this, because, as 16 I say, the problem is very simple.
When the whole design 17-was first done, the traffic only went two ways.
l 18 Massachusetts brought up the fact that the -- medium in New 19 Hampshire.
We ran a sensitivity run in which we sent it l
I 20 down to 495, and it showed there was no change.
j 1
21 MR. FIERCE:
All right, and then when we get the 22 tape from Massachusetts, it only goes two ways.
23 MR. DIGNAN:
Because you were given what you asked l
24 for which was the basic run tapes.
25 MR. FIERCE:
We asked for the tape that supported i
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1 the ETEs.
We asked.for that'in October.
That was.after 2
Amendment I had come out.
3 JUDGE SMITH:
Mr. Fierce, let me ask you a 4
question.
'l 5
MR. FIERCE:
Sure.
6 MR. DIGNAN:
-- the ETEs do not the restriction on 7
capacity that you want put on.
l 8
JUDGE SMITH:
Mr. Dignan?
9 MR. DIGNAN:
-- put the restriction on the 10 capacity then the model and we react by sending the traffic 11 down 495 which is precisely what we testified we would do in' 12 New Hampshire which is precisely the evidence that was heard l
13 in New Hampshire and which is precisely what was shown on gg the SPMC diagram for that traffic control post.
The traffic 14
'Y 15 moves three ways.
16 JUDGE SMITH:
Mr. Dignan?
17-MR. DIGNAN:
Yes, Your Honor?
18 JUDGE SMITH:
Again, I think you have a telephone 19 problem there.
You were over talking Mr. Fierce a lot.
You 20 clearly could not hear him talking.
You sometimes can't 21 hear me talking.
I suspect that you're using a voice 22 override mechanism.
23 MR. DIGNAN:
I don't think I was over -- was I 24 overtalking you, Alan?
25 MR. FIERCE:
Yes, a lot.
For a long time.
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MR. DIGNAN:
Oh, I apologize.
-)
%)
l 2
JUDGE SMITH:
'Yes, but it so happens that Mr.
3
. Fierce's voice overriding mechanism overrode yours.
And his 4
was the dominant voice, so much of what you had to say 5
simply is not being reported.
6 MR. DIGNAN:
All right.
7 JUDGE SMITH:
Just tell me, do you have a voice.
8 override phone there?
9 MR. DIGNAN:
I have a speaker phone but I'm on the 10 handset.
11 JUDGE SMITH:
It just seems to be a problem that i
12 is attached to your telephone that you don't hear other i
13 people sometimes.
When you're talking, you don't hear other 14 people talking.
You seem to be able to preempt.
15 All right, I still have several -- confused.
l 16 Will somebody explain to me why we took evidence 17 on this intersection in New Hampshire and did not include it 18 in our decision.
19 MR. DIGNAN:
Don't say you didn't include it in 20 your decision.
You took evidence on it in New Hampshire 21 because one of the arguments that was made by the AG in New 22 Hampshire was that the problem of the grassy median would 23 back traffic up in the New Hampshire side of the case.
24 JUDGE SMITH:
That's right, I remember the grassy 25 median.
I remember the problem.
rg Heritage Reporting Corporation
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15925 f-1 MR. DIGNAN:
Right.
V)
-2' MR. FIERCE:
Well, it'was,'I think, a little more 1
3 direct than that,' Your Honor.
I don't think we could have I
-4 got at it just for that reason alone.
But the fact is that j
5 the New Hampshire traffic management plan did permit New 6
Hampshire traffic on Seabrook Beach to be directed down into 7
Salisbury and then to come out this. route.
8 Now, what we did when.we litigated it was we were 9
forced to assume that those were the traffic management 10 diagrams from Massachusetts.
We were only litigating 11 whether the model treated that diagram correctly.
We knew 12 that the SPMC litigation was ahead-of us and that those' i
13 diagrams might:well be changed.
But for purposes of the New
.14 Hampshire litigation, we were litigating the ETE accuracy 15 based on those diagrams.
16 JUDGE SMITH:
And those diagrams, what did they 17-show?
18 MR. FIERCE:
And they showed traffic turning left 19 over a median, as an end median, and then over a grassy 20 strip.
i 21 JUDGE SMITH:
And turning right?
22 MR. FIERCE:
And turning left.
23 JUDGE SMITH:
And turning right.
I 24 MR. FIERCE:
And turning right, obviously.
25 JUDGE SMITH:
And going straight ahead?
18 7 S-Heritage Reporting Corporation i
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MR. FIERCE:
No..The model had the traffic going g3
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i 2
right and left.
3 JUDGE SMITH:
But Mr. Lieberman's oral testimony 4
had them going straight ahead.
5 MR. FIERCE:. Well, he said you could do various 6
other things.
7 MR. DIGNAN:
No.
What he did, Your Honor, 8
JUDGE SMITH:
Wait a minute.
Let me get the ducks 9
in a row here.
10 MR. DIGNAN:
What he did, Your Honor, is because 11 of the -- hello?
12 JUDGE SMITH:
Yes.
13 MR. DIGNAN:
-- because of the contention that was 14 made about the grassy median, we made a sensitivity run in
.f 15 which we assumed we couldn't get traffic over the grassy 16 median the way we thought we could and in the amount we 17 could, and what we did is sent it down the road to 495.
18 And what Lieberman testified to is, therefore, if 19 you assume you don't have the. turn there, you'll send it on 20 down to 495, and the effect on the ETE will be zip.
- Now, 21 that's --
22 MR. FIERCE:
He also testified that there was a i
23 potential to do a U-turn movement up at the next 24 intersection.
25 MR. DIGNAN:
Correct.
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MR. FIERCE:
There were various possibilities --
U.
2 MR. DIGNAN:
Correct, correct.
3 JUDGE SMITH:~ But isn't this.true, however, and j
4.
that was where I'm coming to, isn't it true that whenever 5
you reduce the capacity at any turn point or at any 6
bottleneck, you force traffic into another direction?
l 7
MR. DIGNAN:
Correct.
8 MR. FIERCE:
No, you can in fact just make the 9
traffic flow slower.
10 MR. DIGNAN:
Your Honor will recall that Mr.
J 11 Lieberman' testified very early in the New Hampshire hearing, 12 when asked about this, what the model does.is the model l
13 tries to make the' decision that a reasonably prudent driver 1
14 would make with the information which is at' hand.
And, as 15' Your Honor states, when.you start playing around and 16 restricting capacity on one thing, the model reacts that.
17 MR. FIERCE:
This is not one where it reacts 18 automatically without a change being made by hand.
19 MR. DIGNAN:
Well, Alan, how it reacts, I'm not 20 going to get into an argument over change being made by 21 hand.
22 Your Honor, what is very simple here, and I'm l
- 1 sitting here battling for something that I'm not battling
$4 for anymore.
I take the AG at face and under the impression 25 that having stipulated to this that for some reason send the r~
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i 15928 r~s-1 traffic only in these two routes and ignore the third, and O
2 that this fell into_ place'for them.
3 I can assure you that we, from day one, especially i
4 since it's put in the SPMC, this intersection shows traffic 5
going in three directions, thought the solution was just 6
what we say it is.
That is, if you restrict the capacity in 7
one of these turns, we'll send more traffic straight down to 8
495.
f 9
I don't doubt anybody's good faith.
It is clear 10 that it is a sticking point.
And the answer is, we'll l
11 litigate it, i
12 MR. FIERCE:
No.
Your Honor, it's actually a 13 larger question and I keep coming back to this.
The 14 question is, when we were negotiating, did we believe.that
's 15 what we were negotiating was a series of changes, a fixed 16 set of changes to a base set of ETEs that would satisfy us.
17 Yes, that's what we thought we were doing.
18 Apparently, they thought they were free to make 19 any other changes in the model that they wished, even if i
20 those changes that they wanted to make might undercut some 21 of the changes that we were suggesting and that they were 22 agreeing to make.
And that's the premise each side 23 approached the negotiations from.
It's just that we're 24 miles apart.
So it's not just this issue.
25 MR. DIGNAN:
Alan has to put everything in a
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pejorative way.
What I'm saying, quite frankly,'Your Honor,.
U 2
is very simple'and, you know, of the Board's own sense of'
~3 logic.
4 I am saying that if you tell.me you can't turn 5
traffic off on those two turns at La fast a rate as we said 6
we could, I am saying that our guy says that logic will take 7
over and that a bunch'of drivers will go straight ahead, 8
rather than_ sit there enjoying the sun and looking out the 9
window.
110
-}el. FIERCE:
It'is not logic that does that.
11 MR. DIGNAN:
And Mr. Fierce's expert apparently 12 feels that that' logic doesn't hold for various reasons.
And 13 I would suggest'that we put them both on the stand,1 cross 14 examine them and move on.
But it is clear to me that what o
15 we're talking about here,'what we're doing right now-is 16 wasting the Board's time.
17 JUDGE SMITH:
I would agree with that.
Now, I 18 wish you would let me be a little bit more in control this 19 afternoon, until I get some of my concerns answered.
20 All right, now.
Did this finding show up in our 21 initial decision?
22 MR. DIGNAN:
This is what I said.
At first I 23 thought I did have it nailed down, but it turns out that the 24 reference I gave you which -- was it 263?
25 JUDGE SMITH:
It was 9.76 and 9.78.
l Heritage Reporting Corporation as (202) 628-4888 b
i 15930 s-1 MR.'DIGNAN:
Yes, and I reread those, and those
'.Q 2
were sensitivity runs, they did involve the same 3
intersections but you're findings-there were talking about 4
late staffing of traffic control.
5 JUDGE SMITH:
Right I don't have the initial 6
decision in this room with me.
But nevertheless, the 7
testimony did address it but it was rather an after thought t
8 on cross examination?
{
9 MR. DIGNAN:
Well, no, it was addressed by virtue' I
10 of the fact that Mr. Lieberman was cross-examined about this 11 sensitivity run which we put in on direct.
What I'm trying 12 to find in the initial decision now, is I don't think the 13 Board, other than its general finding of the ETE being all 14 right, I don't think the Board addressed these particular 15 intersections that were fought out in the initial decision.-
16 JUDGE SMITH:
All right, but there's a lot of 17 testimony about a lot of things that were not proposed in 18 findings.
19 MR. DIGNAN:
Oh, these were proposed in findings.
20 I put in a proposed finding on this.
It was my finding No.
21 6.1.26.
And I believe Mr. Turk put a proposed finding in on 22 it, also.
Mine was 6.1.26 and it comes off that sequence 23 and says:
"However, the applicants point out that assuming 24 the turn described becomes unmanageable, the left land 25 traffic can instead be routed to the next exit of the road l'
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of concern, and thero exit to Route I-495, a major
(~)
v 2
interstate highway (citing transcript references.)
In fact, 3
the applicants have run a simulation that assumes the 4
suggested turn and route are closed and instead the traffic 5
proceeds to the next exit, and the ETE is unaffected.
(And 6-again, transcript references.)"
7 Mr. Turk had a proposed finding, I believe.
I 8
JUDGE SMITH:
Is it the same number?
9 MR. DIGNAN:
Yes, 6.126 and I guess, yes, he 10 adopted essentially the one I just read you.
11 JUDGE SMITH:
All right.
Now, isn't it true that 1
12 if we received evidence on that, if it was addressing the 13 contention at that time, whether or not we referred to it in 14 our initial decision, if it was material and it seems to be, O
15 it is res judicata?
16 MR. FIERCE:
What is res judicata, Your Honor?
17 The answer that was litigated, let me just say 18 this once again, the contentions basically, the contentions 19 that were admitted were only those which pertained to New 20 Hampshire's ETEs.
21 JUDGE SMITH:
Well, I don't care about New 22 Hampshire's ETEs.
23 MR. FIERCE:
Well, let me, how we got into this 24 intersection was only because some New Hampshire drivers in 25 fact do go through this intersection.
So the only issue r~}
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1 that:wasJbefore the Board is, will the traffic flow through 1
2:
'that intersection in the way that it is drawn'there at the' 3
rate that Mr. Lieberman had it modeled.
4 JUDGE' SMITH:
I'm talking'about the testimony in
-5 the New Hampshire stage of the proceedings.
6 MR. FIERCE:
That's right, that's what the Mass
-l l
7 AG's testimony was.
We testified that the way that diagram-8 is drawn -- we weren't comingfin contesting something about 9
the SPMC.
It wasn't even on the tabl'e.
We just said that j
u 10 the model had traffic flowing through that intersection l
i 11-
. faster than it.could really happen.
.1:2 Now what happens to that is that the applicants-f 7
13
- and the staff started coming back suggesting changes to the l
14 diagram, and we thought that was all premature.
The issue T
15 that was before the Board was simply did the model in fact 16 model this traffic through the intersection the way it was.
I 17 drawn accurately.
18 So the issue of whether there should be a better 19 design for that intersection was not an issue before the 1
l20 Board at that time so that could not have been res judicata.
21 JUDGE SMITH:
Then it was irrelevant testimony?
[
22 MR. FIERCE:
It was relevant to the extent that i
23 the Board had found that in fact the proper capacity of the 24 intersection, the way it was drawn, should not have been X, i
I 25 but should in fact have been Y.
That would have been a O
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proper finding.
%-)
2 MR '. DIGNAN:
The testimony I read you earlier, i
4 3
5740'and 41 was not_ direct testimony elicited by us; it was 4
testimony elicited on cross examination.
5 JUDGE SMITH:
All right, now, what is the issue 6
that survived on the Massachusetts side of the case?
7 MR. FIERCE:
Well, now that the SPMC has.come in 8
with a diagram which says a particular series of strategies 9
for dealing with that particular intersection, that issue is 10 on the table whether that's a good set of strategies, and 11 then secondly, whether in fact the traffic, once you decide 12 what those strategies should be, what the traffic flow rate 13 through that intersection will be in order to impact on the 14
'ETEs so it's a two fold issue.
15 MR. DIGNAN:
The strategy, Your Honor, as I 16 indicated when I cited to you the traffic. control point 17 earlier that you can see in the SPMC is precisely the 18 strategy that Mr. Lieberman testified to --
19 MR. FIERCE:
It's one of two strategies.
20 MR. DIGNAN:
Excuse me.
May I finish, Mr. Fierce?
21 And it has traffic flowing -- and believe me, I'm 22 on the handset, Your Honor; I'm not trying to override -- it 23 has traffic flowing in all three directions.
And this is 24 precisely what the sensitivity run showed up there and what 25 we testified to up there.
And we proposed findings on it
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2 Now, as near as I can figure out, and it's always 3
hard to deal with a big decision fast, but I've got some 4
help here with me, I think the answer is that it is accurate 5
that'the Board did not make any precise findings of the l
6 nature that was proposed, one way or the other.
l l
7 But I quite agree with Your Honor's view that by, 8
the way I understand the rules, the general overall findings 9
says that you have resolved this to your satisfaction, even 10 though you may not have precisely dealt with it.
l 11 But there's no doubt that the SPMC version is l
12 totally consistent with what we testified to and dealt with i
13 on the sensitivity run up in New Hampshire, and it's that 14 simple.
,S
'G
.15' MR. FIERCE:
Your Honor?
l 16 JUDGE SMITH:
Yes?
17 MR. FIERCE:
My recollection is that Mr. Lieberman
)
i 18 and Dr. Urbanick were testifying about various possibilities 19 for that intersection, one of which is to send cars straight l
20 through.
How many, there was debate, we didn't know.
j 21 And another possibility was to make a U-turn 22 movement up at the next intersection.
We all saw that from 23 the Mass AG side as kind of an interesting side light to the 1
24 issue we were litigating that the Commission had raised, 1
25 which was the intersection as drawn and the rate through
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that intersection as drawn.
2 We felt that those comments by Dr. Urbanick and l
-3 Mr. Lieberman were premature for a variety of reasons,.
4 because when you get into the SPMC, you want to know where 5
the traffic is headed, what the evacuation plans are for 6
Salisbury Beach, which is the origin point for all this 7
. traffic.
l 1
13 We argued up in New Hampshire, although I think it 9-was really just dicta that we were arguing this that it was 10 inappropriate to send cars straight through because the j
11 Salisbury Beach plans that we were aware were sending people 12 down to an evacuation center in Beverly, and they therefore.
l 13 needed to access I-95,- and it would be inappropriate to be sending them to 495.
)
14 I
15 We also heard testimony from Dr. Adler about the 16 tragedy of the comets that people would be seeing as they i
17 drove through this intersection, a very free flowing I-95 up 18 over head and would make every effort either to make that 19 left turn movement over the grassy median or a U-turn or to 20 merge to the right and get onto I-95 and would be very 21 reluctant to press ahead to 495.
22 So we said that it wouldn't happen.
The issue l
23 never really got resolved, and it shouldn't have, because we 24 didn't know what the plan was for Massachusetts, yet.
It l
25 was all interesting speculation.
The point was that the l
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model had taken a diagram in Volume 6 and pushed cars O
2 through that diagram too fast.
That's all we intended to 3
litigate.
That's all that the contention allowed us to 4
litigate.
5 JUDGE SMITH:
Well, yes, I know, but --
6 MR. FIERCE:
And so now we get to Massachusetts 7
and we asked them, give us the tape, give us the tape that 8
shows us now what you're doing down here, because we were 9
very anxious to see, now that we got down to Massachusetts, 10 which of these various possibilities the applicants were in 11 fact going to bank on.
And we got a tape, Your Honor --
12 MR. DIGNAN:
Mr. Fierce?
Mr. Fierce, before you 13 go too.far with that tape, I've just been handed a note here 14 by the people who are worried about this.
The sensitivity 9
15 run tape which showed the three way one, the one we used up 16 in New Hampshire, was also produced in November '88 with the 17 tape you're talking about.
18 MR. FIERCE:
The tape that we were given back in 19 November, Your Honor, --
20 MR. DIGNAN:
You were given more than one tape, 21 Alan.
22 MR. FIERCE:
Pardon?
23 MR. DIGNAN:
You were given more than one tape.
24 NR. FIERCE:
No, we weren't, Tom.
I was there.
I 25 picked up the only tape that was on Table Number 30 whatever Heritage Reporting Corporation G
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One tape.
2-JUDGE SMITH:
It seems that we do have 3
jurisdiction over this issue.
It may have been presented to
)
l 4'
.us before, but since a previous Board put the litigation 5
into Massachusetts and New Hampshire, and there's an effect 6
upon both states, we still have jurisdiction to look at this 7
intersection,. even though we took evidence on it.
.8 It may be res judicata, it may.not be.
I don't
-9 know, but.it's not clean.
We have a responsibility to hear 10 the case, and I think we should proceed as if we still have 1
11
' jurisdiction over that particular subject matter at that 12 intersection.
Idon'tkhinkanybody'sgoingtogetupset if we get involved in any efforts to settle this
. 13 with us l
.pg 14-particular issue.
V 15 Now, what is likely to be the real wo~rld 1
I 16 situation, Mr. Fierce and Mr. Dignan, if you do reduce the 17 capacity of the ramp?
What's going to happen?
18 MR. DIGNAN:
As I told you, Your Honor, it's going 19 to be the same as when we reduced the capacity in New I
20 Hampshire.
We're going to cend the traffic straight on down 21 to 405, and it's not going to have much effect, if any, on 22 the ETE, is my best guess.
23 JUDGE SMITH:
What's going to happen, Mr. Fierce?
24 MR. FIERCE:
Your Honor, at that intersection, the 25 way it was modeled in the past is very similar to the way r~
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1 it's going to be modeled now.
The traffic is backed almost f^)x '
\\_
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2 six miles all~the way back to the beaches and the back up j
3 will be even longer is all we're. assuming.
j 4
EMR. DIGNAN:
Are you assuming that the traffic
[
5 goes forward, or not, Alan?
6 What I want to know is very simple.
As I 7
understand, and the reason this stipulation became a -- is 8
that you want us to model it on the basis that all of the 9
traffic that takes the U-turn or takes the ramp.
10 MR. FIERCE:
Well, that's not really the reason, 11 Tom.
The reason is it appears that you want to make a 12 series of changes, many of which it appears I don't even l
l 13 know about,-
14 MR. DIGNAN:
'Mr.
Fierce, let's assume I'm making I
)
15 thousands of changes.
16 MR. FIERCE:
We clearly have no meeting of the 17 minds, Tom.
18 MR. DIGNAN:
In my understanding -- I told you we 19 didn't have a meeting of the minds.
I agree with you we-20 have no meeting of the minds.
21 What I want to know is this: it is my 22 understanding that what you people think we are going to 23 model is something wherein little if any traffic proceeds 24 onto 495 and rather all of it is forced through the reduced 25 capacity U-turn which you're asking us to assume, plus the l
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other turn off the other ramp.
2 And the difference of opinion as I see it is that 3
my people tell me what willLhappen is that the traffic will 4
go straight ahead, that.will be our testimony when we 5
litigate this issue, and it will be our view that the ETE 6
will be affected little, if at all, by that reduction'in.
7 capacity, assuming that reduction in capacity is even 8
warranted which will also be litigated, now that there's no 9
stipulation.
10 MR. FIERCE:
That's right.
That's right.
11 JUDGE SMITH:
So there is a problem?
12 MR. FIERCE:
Oh, yeah.
Our people feel that I-95 13' will be so attractive to drivers in both lanes that' few, if 14 any, drivers will.want to proceed ahead unless that's the fsU 15 way they wanted to go originally.
16 JUDGE SMITH:
All right, we're going to confer for 17 a minute.
18 MR. TURK:
Your Honor, I'd like to --
l 19 JUDGE SMITH:
Wait a minute, please.
1 20 (Pause) 21 JUDGE SMITH:
Mr. Turk?
22 MR. TURK:
Yes?
23 JUDGE SMITH:
Were you going to speak?
24 MR. TURK:
Yes.
I have two questions I'd like to 25 raise, Your Honor.
I
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JUDGE SMITH:
All right, go ahead.
.i
'5L MR. TURK:
In the first instance,'I would point 3
out to Mr. Fierce that our goal within the NRC is to try to 4
make sure that an evacuation, if one takes place, is 5-conducted as efficiently as possible, so that we would never l.
6 agree with a stipulation which said, as you suggest, that 7
there can be no changes to the ETE or to traffic management' r'
8 plans once you enter into a stipulation.
That would freeze 9
things so that there could never be improvement in traffic-10 management.
And we would oppose that.
I don't think you'd 11 ever get to the Nuclear Regulatory Commission to support you 12 on that.
13 So in the first instance, I'd say if you believe 14.
that the stipulations prevent any changes to the ETE or sO 15 traffic management plan, you're mistaken.
That could never 16 have been a permissible intention.
17 Second, I have a question about the motive here of 18 Mass AG.
I think there's a very simple fix to the entire 19 bottleneck situation, as I' ve suggested.
Take some. money 20 from the applicants,. pave over that grassy median, and 21 you'll get two very good flows onto I-95 South.
22 Now, if that's within the goal for Massachusetts, 23 you would consider improving evacuation traffic, why don't 24 we just see if we can get a stipulation on that, and avoid 25 the controversy of what I perceive as an unnecessary l
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problem.. Because there's no' point in arguing.whether there-2-
should be a' traffic flow to 495 orca 50 percent or 75 3
' percent. reduction in capacity based on a U-turn if you can 4
simply fix the~ intersection problem.
5 MR. FIERCE:
We might not'have a problem at all, i'
6 sherwin, if you could get the applicants to build a series 7
of shelters down on the beaches.
8 MR.' TURK:
Well, let's start'with something very 9
simple.
The cost of asphalting over a grassy me'dian'can't 10 be more than about $10,000.
All you do.is;you cut the
~
Il curves and you get an asphalt truck to dump some asphalt,.
12 and you're-set.. That's something that'can be done without
-13' building shelters on the beaches.
And if your: goal.is protection of the public, a simple - fix like.that, I think,
- O. 14 e
L
'15 can be, accommodated and you won't.have a six-mile wait.of 16 traffic to evacuate.
You'll get this~ intersection 17 progressing a lot better.
18 Why can't you cut something like that?
19 MR.. FIERCE:
You could build extra roads out to 20 the beaches and you can widen all those roads.
There's a 21 whole series of things you can do, ' but we' re just not in 22 that business.
23 MR. TURK:
particular bottleneck problem which 24 your experts and our experts and the applicant's experts 25 agree can be dealt with in an effective manner.
Take Heritage Reporting Corporation l
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$10,000 from the applicant and let's' move forward.
You
~
,(/
2 don't need more to fix.that bottleneck.
3 You think there's any chance we can get an 4
agreement like that?
5 JUDGE. SMITH: _ 1 would infer not.
6 MR. TURK:
Well, Mr. Fierce is noticeably silent.
7 I can't understand why.
8 JUDGE SMITH:
Well, I wonder, did the applicants
.9 provide any modifications for the traffic in New Hampshire, 10
.for.the roadways in New Hampshire?
Mr. Dignan, do you 11 recall?
12 MR. DIGNAN:
I'm sorry, Your Honor, I couldn't 13 hear you.
14 JUDGE SMITH:
Did the applicants pay for any
'O i
15~
modifications on the roadways in New Hampshire?
16 MR. DIGNAN:
I have somebody here who can answer i
17 that question.
Hang on a minute.
18 (Pause) 19 MR. DIGNAN:
Not that anyone knows of, Your Honor.
20 MR. FIERCE:
that doesn't mean they wouldn't, if 21 necessary.
22 MR. DIGNAN:
No.
There was never any discussion 23 of it one way or the other that I was in on, and Mr.
24 Harpster informs me that as far as he knows, none was ever 25
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1 JUDGE SMITH:
Do you know did the' State of New
.{
21 Hampshire make any modifications of the-roadways to 3
improving ETEs?
'4 MR. DIGNAN:
I don't believe so, but again,.let me 5
put the question'to Mr. Harpster.
6 (Pause) a 7
- 191.:DIGNAN:
No, he knows of none.
8' JUDGE SMITH:
The Board also~has an interest, an 9
institutional interest in resolvi,ng our issues that need not 10 be litigated.or the Commissioners expending a large amount 11 of~ resources'that we're reminded about from~ time to time in i
12 hearing this. case, and paying.for all of the facilities'and 13 time.
14 We want-to pursue a stipulation,.and at the same 15 time, we. don't want a stipulation that seems to be so sticky,
-16 that you're afraid to enter into any more in case you've 17 lost control of your cases.
We do want to approach it in.a 18 soft way but in a determined way, if.we can.
19 What is there about this particular stipulation 20 that prevents-you from agreeing upon other' stipulations?
21 MR. FIERCE:
I don't think there's anything, Your 22 Honor.
23 JUDGE SMITH:
I mean, other aspects of this 24 stipulation?
I mean, can't you just carve this number two 25 out, and say it will be presented to the Board for i
O' Heritage Reporting Corporation (202) 628-4888
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1 litigation?
l 2
MR. FIERCE:
No, no.
For the very reason that I 3
just indicated..
There apparently are a series of other 4
changes that they're prepared to make to the model to do i
i 5
various things that we don't even know about.
Now, the 6
whole basis for the stipulation in our view was to come to 7
some resolution on these critical issues.
And if that's not 8
the case, if the thing is going to continue to change'--
9 JUDGE SMITH:
What's going to continue to change?
l 10 MR. FIERCE:
-- we can't really agree on that.
We 11 may be able to agree on some parameters if you want to carve 12 them out individually, for example, the population issue.
I i
13 We could have a separate stipulation that says, we agree gg henceforth that the population data we will use for 1989 is 14
s /
1 15 the following: plunk, plunk and plunk.
We can agree on i
16 that.
I don't see any problem with that.
17 MR. DIGNAN:
Your Honor, before you march'down
-18 that road, I've just got to be candid with you.
The 19 stipulation to me was an AON thing.
If you'll notice, 4
20 we're agreeing to pay $20,000 to develop a fractional 21 factorial database which we don't think is necessary, nor do 22 we think it'll add anything but, you know, I was trying to 23 settle the case.
24 There's a lot of other things.
I cannot sit here I
25 and say we can carve pieces out of this stipulation and that i
1 Heritage Reporting Corporation
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- 1 it would'still be acceptable to my client because I, as you V
2 can imagine, Your Honor focused on it earlier that it was an 3
emotional and tough situation,'and while I wasn't. sitting in 4
the negotiation t oom, I was sort of doing the negotiating
.I 5
with the client, while my colleagues were negotiating with' 6
Mass AG.
l 7
And to me, the attractiveness of paying for a 8
study we don't think is necessary and all that sort of thing 1
9 was very simple: it was to get rid of the ETE issues.
If I
[
10 can't get rid of the ETE issues,. I'd just as soon litigate 11' them.
I don't think it's going to take very long and I'm 12 frank to say, I don't think.I'm in any trouble on the case.
13 JUDGE SMITH:
Well, it's going to take you, I 14 think a while, and it's going to cost you more than $20,000 7g
\\v
15 to litigate it, I'll tell you that.
16 MR. DIGNAN:
Well,-that may or may not be.
l I
17' JUDGE SMITH:
Well, yes, it will take you $20,000 l
18 many times.
19 MR. DIGNAN:
I'm not so sure, Your Honor.
20 JUDGE SMITH:
Well, look, I'm telling you it's 21 going to take up the Board, all this has to go through the 1
22 Board.
And I can tell you, if this is out of the case, j
i 23 we' re going to get a decision out a lot earlier than if it's 24 in the case.
25 MR. FIERCE:
I concur in that.
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JUDGE SMITH:
Well that's' money.
i 2
MR '. DIGNAN:
Well, yes, but, Your Honor, if.
3 Massachusetts wants to come back with another stipulation, 1
4 that's fine.
But the problem is that, for once, I agree 5
with Fierce.
Once you cut this paragraph 2 out,-and with 6
it, I think he's right, you cut out.the whole rerun of the 7.
-- you're not going to resolve anything.
8.
If they're telling me they'll withdraw all their 9
contentions on a stipulation that simply cuts out paragraph 10 2 or cuts out this whole thing and leaves that for 11 litigation, we might have something to talk about.
But I 12 can't believe they're going to do that, and waive their i
13 right of appeal.
Maybe they are.
14 If they are, I'll be more than happy to look at
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15 it, but I'd be very surprised if they're willing to give up i
16 their appeal and give up litigating all this other stuff 17 with that cut out.
18 JUDGE SMITH:
Well, all right.
Well, let's go j
l 19 ahead.
I don't know what we can do this afternoon.
I l
20 think that there's an emotional block here.
Clearly, there
}
21 are things being stipulated here that can be stipulated.
22 And you're both losers, I know you're both stressed for 23 resources, personal resources.
I know you have a large i
24 litigation ahead of you.
I think that there's many things 25 that you've agreed to here that could be stipulated that l
Heritage Reporting Corporation Os s
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'2
- But, 3
MR. DIGNAN:
- Well, I'm. perfectly -, you know, our 4
side's perfectly willing to talk and I'm sure they>are,.too, 5
Your Honor.
I just think I agree with Mr.~ Fierce.
When you
'i 6
start taking out that part of.'the stipulation, in other
'7 woros,'I think he's dead right that once paragraph 2 falls, 8
the balance of those numbered paragraphs, if not all of 9
them, fall with it.
And I think once that all falls, the
'l 10
' attractiveness to both sides of the stipulation goes down.
11 But that does not mean that it wouldn't be worthwhile 12-for our people and their people to sit down.
I do wish the 13 Board would do one thing.
I'm pessimistic enough.about this 14 stipulation now so that I'd like a deadline set for when
.s
-15 they respond to the piece that we have filed concerning the 16 commuters in New Hampshire.
That's been filed for some time 17 now and that's an issue I'd like. to see wrapped up and 18 gotten rid of.
19 And also a tentative deadline set for their filing 20 their ETE testimony, whether it be in the second round or 21 whatever, because I don't want to negotiate -- and I'm sorry 22 to be such a pessimist -- I don't want to go into 23 negotiations, have another couple of weeks slide by and then
)
24 we're back at an impasse.
25 I'd rather get deadlines set for those two items (J]_
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so that we can go on from that.
~
i 2
MR.. TURK:
Ken, I'd like to note also that right 3
now the Mass AG's-office has a deadline.of' March 24th, I i
4 believe, for filing their appeal, including ETE issues.
And-5 I would oppose'any extension of.that if they ever try to 6
take that before the Appeal Board.
Whatever delay there
)
7 might have been caused by their failure to get a stipulation 8
executed that they like, is no ground for extending the. time 9
for appeal.
10 JUDGE SMITH:
Would you restate that?
11 MR. TURK:
I'm noting in the record, Your Honor, 12 that at this point, Mass AG is due to file its appeal on alli 13 New Hampshire issues by March 24th, and I would oppose any motion'by:them filed before the Appeal Board to extend their
^O 14 15 filing; time on ETE appeals, that for their benefit.
.{
16 JUDGE SMITH:
Well, fortunately, that's not a i
17 problem that we have to wrestle with this afternoon.
18 MR. TURK:
Your Honor, is there any possibility of 19 getting a response from Mass AG on whether we can't just get j
20 a fix to the road situation, and --
21 JUDGE SMITH:
I'm not done with that point, yet.
22 We'll come back to that point.
We're going to be extremely 1
23 sensitive, Mr. Fierce, to any actual degradation of the j
I 24 health and safety of the Massachusetts citizens by the j
25 litigative posture of the Massachusetts Attorney General.
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Massachusetts citizens are also' United States citizens as to
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2 whom we.also have a responsibility.
i
.3 And we will pick that up, if that's the case, and 4
make it known.if we believe it, that if fixing this 5
' intersection can eliminate this problem,. and for litigation 6
purposes,' the Governor of Massachusetts refuses to do it, 7
that fact will be made known by this Board in this hearing.
j 8
Again, those are United States citizens, too, 9
entitled to the protection of the United States Government.
10.
MR. FIERCE:
Your Honor, all I can say is that we 11 are litigating this case.because we believe we are 12 interested in the safety of the people in the EPZ and we are 13 out to protect them in every way we can, 14 JUDGE SMITH:
That's not responsive to my comment.
1 fg
-V i
15 I will want to know from the State of Massachusetts whether L
l 16 or not a disinclination to make fixes if.for litigative 17 purposes or for other purposes.
18 MR. FIERCE:
What's this disinclination to make 19 fixes?
We're litigating the plan that's on the table.
20 That's our job as lawyers here in the Attorney General's.
21 office.
I don't work for the Department of Public Works.
22 JUDGE SMITH:
Mr. Fierce, you're avoiding me.
And 23 we'll get back to it.
We will come back to it.
I mean, if i
i
'24 that's the case, we will want to know.
We have a right, as 25 Judges here, to know what the purpose of any litigation is.
l L
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MR. FIERCE:
To protect the people in the EPZ.
(_)
2
-JUDGE SMITH:
Well, we'll return to this.
You've 3
not heard the end of it.
You are not responding to my 4
question.
5 MR. FIERCE:
Well, give me a specific question.
6-I'll be happy to respond.
7
. JUDGE SMITH:
Would the Commonwealth of l
l 8
Massachusetts agree to fix this intersection if the 9
applicants pay for it?
10 MR. FIERCE:
Fix the intersection?
I'm not sure 11 again what that means.
12 JUDGE SMITH:
I think you know exactly what I 13-mean.
24.
MR. FIERCE:
Your Honor,-I'm a lawyer in the
,g V
15
' Attorney General's office.
16 JUDGE SMITH:
I think we'll have to have Mr.
17 Shannon come to this hearing, because I don' t think you' re i
18 trying to understand me.
19 MR. FIERCE:
Well, Mr. Shannon also doesn't-20 control the Department of Public Works, Your Honor.
21 JUDGE SMITH:
Mr. Shannon wi13 know the litigative 22 position of the Attorney General, and he will give me i
23 accurate responses to my questions, and you don't.
24 MR. FIERCE:
I'm only a lawyer in the Attorney 25 General's office, Your Honor.
That's really all I am.
r~'
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-15951-1 You' re asking me if the Commonwealth will fix --
2 JUDGE SMITH:
And I want the Attorney General to 3
send a lawyer to the hearing who can speak for the
]
.4
' Commonwealth of Massachusetts.
We'll address this the'first
]
5 day of.the. hearing.
We're not going to be jerked around.
6 MR.. FIERCE:
Well, Your Honor -,
7 JUDGE SMITH:
Nor are United States citizens 8
entitled to our protection going to be jerked around.-
9 MR. FIERCE:
Are you going to also order that t
10 shelters be built on the beaches?
I 11 JUDGE SMITH:
You are quarreling with the Board, 12 and I admonish you not to do it.
4 13 MR. FIERCE:
There are many things that can be
'l 14 ordered to be done, by the applicant --
's 15 JUDGE SMITH:
We will revisit this the first day 16 of the hearing.
I will tell you right now, and you tell Mr.
J
'I 17 Traficonte, I want the Massachusetts Commonwealth of 1
18 Massachusetts to have an attorney at that hearing who can 19 represent the Commonwealth.
If not, you don't have l
20 standing, and you will be out.
'j 21 Do you understand that?
]
22 MR. FIERCE:
I understand what you're saying, but 23 I still don't --
24 JUDGE SMITH:
And you sit here end quarrel with 25 this Judge.
i l
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'1-MR.LFIERCE:
-- don't think it's going to'do us ne'(l A/
2 Lany' good.in terms-oflthe litigation, Your Honor.-
'I think
'3 we' re here to -litigate the plan that's (ni the table.
We're
'4 prepared to-follow the rules one hundred percent.
5 JUDGE SMITH: 1
'I will tell you what you're here to
'6 litigate for-after hearing your argument.
.Do not again tellt 7
me you're-simply.a lawyer without authority.
I want the 8
Commonwealth of Massachusetts to have a lawyer there'with 9
full authority'to represent the Commonwealth in all aspects 10 within our jurisdiction..And I will not accept anything 11 less.
12' MR. FIERCE:
_I can't make any promises at this 13 time,.Your Honor, 14 JUDGE SMITH:
Well, I can tell you, I can make a g-4
- ().
15 promise to you.
That.the Commonwealth of Massachusetts will 16-be out of this case if they don't have a lawyer there who
~
17
.can represent them.
18 MR. FIERCE:
We're here to follow the rules in 19 every way we can, 20 JUDGE SMITH:
And the orders of the Board, or 21 appeal them.
22 MR. FIERCE:
What's the rule that would be 23 violated if the Attorney General showed up as the lhwyer for 24 the Commonwealth and indicated he has no authority to order 25 any road changes.
'O Heritage Reporting Corporation (202) 628-4888 g
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JUDGE SMITH:
Well, that's another matter.
(/
2 MR. FIERCE:
What's the rule that's violated?-
L 3
JUDGE SMITH:
We'll set it down for full _ argument.
f i
l 4
The rule that will be violated will be that you undertake to:
5 represent the Commonwealth of Massachusetts.
This is not a 6
lawyer litigation.
The Attorney General as such does not 7
have standing to intervene.
8 MR. FIERCE:
That's the standing that was granted 9
by the NRC, Your Honor.
10 JUDGE SMITH:
Only to the extent that it 11 represents the people of Massachusetts.
1
-12 MR. FIERCE:
That's right.
13 JUDGE SMITH:
Now, if the Attorney General;is 14 intervening as an individual, that's another matter.
But fxb 15 he's not.
Now, I am not telling you that you have to have a 16 lawyer who can commit the State of Massachusetts to this or 17 that, but you have to have a lawyer there who can explain l
18 exactly what the position of the Commonwealth is.
l 1
19 MR. FIERCE:
I can explain the position of the 20 Commonwealth.
21 JUDGE SMITH:
You haven't, yet.
22 MR. FIERCE:
The position is to litigate as fully 23 as we can and as aggressively as we can the plan that is on 24 the table.
25 JUDGE SMITH:
Well, I'm telling you that there's Q
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1 other matters ~ too, and that is the basic public health and' j
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2 safety of the public.
J l
3.
MR. FIERCE:
Well, if that's the other matters, 4
then we have a whole series of suggestions that can be made, 5
like a summer shutdown,. shelters on the beaches.
i 6
JUDGE SMITH:
What about this one, Mr. Fierce?
l 7
MR. FIERCE:
Pardon?
8 JUDGE SMITH:
I'm talking'about this one.
You're f
1 9
arguing with me.
i 10 MR. FIERCE:
Well, no, I'm not arguing.
11 JUDGE SMITH:
You're arguing with me, and you're i
12 not going to persist in it.
I'm warning you, you will not
)
13 do it.
1 14 MR. DIGNAN:
Mr. Fierce, before you take the
^
\\
15 position that there's a lot of other things, I would remind i
16 you that I have among other things put on the table for 17 negotiation, summer shutdown and I have been flat told that 18 the Attorney General won't talk with me about it.
I've 19 offered that to settle this case for over a year.
20 So I would appreciate it if you would keep 21' straight what the history of negotiations that have taken 22 place are.
23 JUDGE SMITH:
The Board will inquire into whether 24 this intersection can be fixed, if there be any 25 countervailing safety reasons of fixing the intersection, i
(~'
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and we have~a right, and we will want to know of a j&
2 disinclination to fix it has a litigative purpose, rather 3.
than a functional purpose.
And'we will want a lawyer 4
representing the Commonwealth of Massachusetts.to be.able to 5
tell us whether or not that's the case.
6 If we have to, we'll call other witnesses.
7 Mr. Fierce?
i 8
MR. FIERCE:
Yes?
9 JUDGE SMITH:
You are formally admonished for 10 quarreling with me.
11 Anything further on this point?
{
12 That will be the first item of business at the 13 beginning of the hearing.
14 What's your plans of filing testimony, now?
I O
15 MR. FIERCE:
Your Honor, I would like to have a 16 reasonable period of time to file a response to the 17-returning commuters issue.
18 JUDGE SMITH:
You're entitled to that.
19 MR. FIERCE:
I really am not in a position to even 20 suggest, but if I could~have a week or two, I would 21 appreciate it.
We would file it before the deadline for 22 filing the ETE testimony.
23 JUDGE CARPENTER:
Mr. Fierce, this is Judge 24 Carpenter.
25 MR. FIERCE:
Yes?
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JUDGE CARPENTER:
Returning back'to the l
-)-
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'2 intersection of Route 110 and I-95,-you made. reference to j
1 3-the fact that you thought the applicant was being.. improper 4
by making some calculations using different assumptions.
5 What I'm a little perplexed at is it would seem to
.l
- 1 6
me the applicant's free to make any calculation he chooses.
M 7
Whether this Board, whether the State of New Hampshire,'
8 whether FEMA, whether the NRC Staff and the State of 9
Massachusetts ever accepts those calculations is an entirely 10 different point.
11 So I don't quite understand your notion that the 12 stipulation, coming back to what seems to be the sticky 13 point, prohibits the applicant from making those 14 calculations.
I
(
l 15 Can you help me with that?
16 MR. FIERCE:
Well, I can try, Your Honor.
{
17 All I can say is that we were litigating the l
18 accuracy of the set of ETEs that were in the SBMC and l
19 created by che applicants.
In the process of litigating
(
l 20 those ETEs, both sides had access to the same computer model i
21 and we believed we also had access to the same set of runs 22 that the applicants had used to generate those ETEs.
23 Now, in resolving our concerns about those ETEs, i
24 we were approached and asked what we wanted to have done in l
25 order to resolve the issues and concerns that we had.
And
(~J Heritage Reporting Corporation
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we said, well, we would do the following things.
And we-kq J
2 listed them.
In some cases, they~ agreed to them and in 3
other cases, we had some further discussions and resolved i
4 what little differences there were.
i
-5 We-thought those were the changes that would be 6
made to the model to resolve our concerns.
What we find is-7 that additional changes were made as well.
In some cases, 8
this very critical intersection, the bottleneck for the 9
entire EPZ, further changes were made which we first of all 10 think are a bad idea to make, and second of all think that i
11 traffic wouldn't respond in that way anyway.
I 12 So we would still have a very serious issue about l
13 the accuracy of the ETEs if the model were continued to be 14 adjusted in any way the applicants feel they want to change 15 it.
We thought we had resolution on issues; it appears 16 there is no resolution on these issues.
That's all I'm 17 saying.
18 JUDGE CARPENTER:
Let me see if I understand what 19 you're saying.
These changes.you're talking about, I'm 20 unaware of.
They're not on this record, yet.
You keep l
21 talking about them --
22 MR. FIERCE:
They're listed in the ETE 23 stipulation.
24 JUDGE CARPENTER:
Let's just stay with item 2.
As 25 far as I know, I only see in black and white one set of Heritage Reporting Corporation
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u d
. And now'you're telling me that the applicant 7m l'
conditions.
2-has done something that I'm not aware of.
j 3
MR. FIERCE:
That's right.
4 JUDGE CARPENTER:
What's the damage from that?
5 MR. FIERCE:
It changes the way that intersection-
)
'6 gets modeled in ways that are substantially different'than
]'j
'7 we believed we had negotiated.
r 1
8 JUDGE CARPENTER:
Coming back to the point that 9
there are many things including, Mr. Dignan, Item 7, irt 10 these agreed-on assumptions and things to bo done, Item 7 111 would resolve.the issue, or help resolve the issue that the 12 Board retains jurisdiction over.
13 MR. DIGNAN:
Right.
i 14 JUDGE CARPENTER:
I'm a little concerned that we
~
15 can't just simply, unemotionally, just put those in one 16 room, and put a rational approach in the other. rooms, not j
17 ignoring the importance of the emotions, and just simply run 18 the model with a series of assumptions, and have affidavits i
19 supporting those assumptions put before the Board.
20 MR. DIGNAN:
There's no question that could be 21 done, Your Honor, b
22 JUDGE CARPENTER:
And furthermore, I'm not sure to 23 what extent this Board has authority to order the people 24 responsible for making these decisions ultimately, which is 25 not the applicant, which one they should accept.
To me,
($d Heritage Reporting Corporation
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it's.notivery'different.from the factorial arrangement of what the population density is to explain to the 2
3 decisionmakers that there are a number of things that'he mayy 4
be faced with,-including some uncertainty about the behavior 5
at'this intersection, as a factual matter.
6 Do you follow me?
This is an issue just like-the 7
beach population situation, where there is some uncertainty 8
as to what will happen at any point in time.
And all the 9
plan is supposed to do is to provide the decisionmaker with 10 knowledge about that uncertainty, i
11 MR. DIGNAN:
Your Honor, would the Commonwealth 12 consider this?
Let's sign the stipulation, except we'll
.13 change paragraph 2.
And what we'll say in the paragraph in-i 14 essence, we'll add a sentence which says, the applicant will fg I
\\_/.
i
'15 run the model twice.
We will run it once the way we think 16 it should run, which is the traffic going straight ahead, 17 and we'll run it a second time without using that outlet.
18 And both'can be presented to the Board.
And then the whole 19 stipulation would hold and everything goes away.
20 MR. FIERCE:
I wish it were so easy, Your Honor, 21 but --
22 MR. DIGNAN:
No, I'm serious.
We'll run it both 23 ways, and then I don't see, and then, you know, I've been 24 trying to look for a way that --
25 MR. FIERCE:
Well, I mean, that sounds like O.
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.15960-1 litigating, Your' Honor.
I'm prepared to-litigate it, if-
'2 we're leaving-it up to the-Board.
s 3
MR. DIGNAN:
Mr. Fierce, can youLlet me.' finish a
)
4-thought?
j 5
I am prepared,'and the reason I brought this up,: I l
6
'would be prepared to sign a stipulation with paragraph-2 7
simply taken out.
My guess is the Mass AG'would not because 8
they wanti: that one of the conditions of the run.
Okay, I 9
understand that.
i 10 I'm prepared to sign a stipulation that leaves 11 paragraph 2'in and adds a sentence, and'says, it is j
i 12 understood that the model will be run twice: once in the f
1 13-manner the applicant elects to run it,'which is with the-1 14 traffic going down 495, obviously this will have to be i
,O 15 wordsmithed, and the second time, with that option closed 16 off.
'17 And there they are.
We've got all the data we 18 want.
The case is settled.
And the two methodologies can 19-be pres'ented to the Board to the extent that Massachusetts-20 wants to litigate out this particular intersection,.and the 21 Board can make a decision, cross examining Lieberman and 22 cross examining Adler as to which model run presents to real 23 world.
And make a decision, accordingly.
24 And incidentally, doctor, you have hit on the 25 philosophy that has driven me on the settling of this case, Heritage Reporting Corporation O
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1 which is this: I fully, I know Mr. Turk has been concerned 7/
g
\\_
2 with the stipulation because, as he says, the Staff has to 3
he satisfied in its own mind that whatever we've agreed to 1
4 is good.
But the reason I was willing to give up a few
(
i 5
things, because, frankly, I'm prepared to defend Lieberman l
t 6
qua Lieberman against Adler qua Adler.
7 But the point is, in the last analysis if the 8
balloon ever goes up here, the Commonwealth of Massachusetts 9
is going to probably be running the show and my view is that I
10 if we can give the Commonwealth something that they're more i
11 comfortable with, they would select because they believe l
12 their expert, or for whatever reason, I'm prepared to 13 negotiate to do that.
14 And it seems to me that all the problems of this.
O 15 stipulation now go away if you add two sentences to 16 paragraph 2 and the applicant agrees.
And I think I have 17 authority to make this agreement.
I'm looking at Mr.
1 18 Harpster as to whether I do, that we'll run the model twice, j
19 run it once our way and once their way.
20 JUDGE SMITH:
That's an interesting point, Mr.
)
21 Dignan.
It requires some further attention.
I 22 If you will recall in our initial decision, we i
23 changed from the proposed findings that the Staff made and l
24 you made and others, that the State had to accept the ETEs.
f 25 We found that the regulations require only that the
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.1-applicants provide. accurate ETEs.
V 2
MR. DIGNAN:
Correct.
3
_ JUDGE SMITH:
All right.
You can provide an ETE i
4 which meets your view of accuracy and an ETE that meets 5
.their view of. accuracy and you necessarily have scoped or-6
. bounded the regulation, haven't you?
i 7
MR. DIGNAN:
It seems to me I have.
That's why I.
8 think this may solve the problem.
9 MR.. FIERCE:
It doesn't solve my problem, Your 10 Honor.
11 JUDGE SMITH:
Mr. Fierce,.we've got to' understand 12 your problem now, again.
13 MR. FIERCE:
Well, my problem, as I said from the 14 beginning of this discussion, that it's broader than this O
15 intersection.
The question was the whole foundation for the 16 negotiation.
They've indicated.to us that there were a 17 series of changes.
I don't even know what all the changes 18 now that have been made to the model.
We thought the model 19 was being held constant.
20 We don't know what those ETEs are going to turn 21 out to be and I can't stipulate unless part of the agreement 22 is a clause that Mr. Turk has already indicated the NRC 23 staff would be absolutely opposed to, which would be that 24 these are the changes from the base run that we had been 25 given, and no more.
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MR. DIGNAN:
I don't understand that problem.
My 1
V 2
understanding of the problem was that the change, if you 3
want to call it a change, and I'm going along with this term
?
4 simply because as long as it doesn't get too pejorative, I
- d
.+
5' will, is that we're running the traffic down 495, and you 6
had assumed we wouldn't run, as I understand it, actually 7
what you assumed, according to what I'm told, is not that 8
we'd run no traffic down 495, but that a very small amount 9
of traffic in the nature of large vehicles would go down 10 4957 11 MR. FIERCE:
Right.
Correct.
12 MR. DIGNAN:
Whereas, we're going to just run it 13 all down there now because we think that's the way it would 14 go.
And that's the " change" in the model.
And what I'm p
15 saying, we'll run it once with the bloody thing closed off 16 to the extent it was, if it's only the big trucks, and then r
17 run it once the way we think it ought to be run.
I 18 That's all that was involved in this paragraph 2, 19 Alan.
And we add two sentences to this paragraph 2, which 20 makes that clear, and wordsmiths around so it's clear, and 21 then the stipulation is whole again.
22 MR. FIERCE:
I can stipulate only to a clause that I
23 says that the cars will make the right turn, the U-turn, and 24 a few percentages will go straight ahead because that's what 25 we --
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MR. DIGNAN:
Okay, we'll run the model that way, 2
and then we'll run it once our way, and then we'll litigate 3
4 MR. FIERCE:
And then you're going to leave it up 5
to the Board.
I can't stipulate to something unless it's 6
what we think will be the case.
=
7 MR. DIGNAN:
Okay, but I'm saying, you're not 8
stipulating to anything other than the model will be run two 9
ways.
10 MR. FIERCE:
And what is the ETE and how will it 11 come out?
12 MR. FIERCE:
That's right, and you'll get two 13 different ETEs presumably out of those two runs.
And 14 they'll both be presented to the Board.
And I guess the 15 Board's going to be asked for a finding as to which ETE it 16 thinks is the better one.
17 MR. FIERCE:
With no offense to the Board, I 18 prefer not to leave it up to the Board.
19 MR. DIGNAN:
You want us to agree to the 20 Massachusetts ETE.
21 MR. FIERCE:
That's what the negotiation, how it 22 started.
You came to us, you asked us what --
23 MR. DIGNAN:
Alan, Alan, Alan, don't rehash l
24 history, please.
Because there's a lot of that history 25 you're just not privy to.
O Heritage Reporting Corporation (202) 628-4888 i
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What I want to know'is, what you want:us to agree 2
to is an ETE Massachusetts' ETE run the way they want it.
3 And, Alan, I'll tell you right now, we can make a 4
stipulation then.
The stipulation is simply this:- while we 5
don't believe it, and I'm not going to put pejorative words 6
in the thing, for purposes of this litigation, we will 7
stipulate that if we run the model this way, this is what 8
comes out.
And we also will be more than happy to stipulate 9
that the Governor of the Commonwealth, should he take 10 control of an emergency response, is perfectly within his 11 rights to select that ETE over the one we thinK is right.
12 Now, if that's what you want, you've got it, and 13 away go the appeal and everything else.
I'couldn't be more 14 accommodating in that regard.
As long as my people don't
.O l
15
.have to stipulate that in fact your ETE is the better one, 16 in effect, and you don't have to stipulate that mine's the 17 better one, it seems to me we've got a meeting of the minds.
18 And the meeting of the minds is, we'll run the model any 19 number of ways you want it run.
20 If you just want it run your way, if you' re 21 willing to stipulate the case out, and the Board can 22 accommodate you with a finding that says, this is what the 23 Governor wants and this is what he's going to use in the 24 event, fine.
I've got no problem with that.
And the case 25 is settled.
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1 MR. FIERCE:
'It's just really very. confusing, Tom.
' Q,/
2-MR. DIGNAN:
What?
3 MR. FIERCE:. Because you've got mode 1,'you've got 4
mode 2.
In mode 2, what happens.
5 MR. DIGNAN:. Alan, what you're saying is that you 6
don't want any more to stipulate the ETE issue out of.the 7
. case.
I mean, I may be wrong, but I think I just gave you 8
9 MR. FIERCE:
No.
I've always said I'd be happy to 10 stipulate it.out if the applicants were agree to make the 11 changes that we indicated were the --
12 MR. DIGNAN:
We will.
13 MR. FIERCE:
-- appropriate ones to make.
14 MR. DIGNAN:
We will make the changes including 7gU 15 the one that isn't in there now.
We will make those i
16 changes, run the model that way, and present it to.the 17 Board.
18 MR. FIERCE:
But it still leaves the possibility i
19 20 MR. DIGNAN:
But what is not going to mean, Alan, 1
21 which is what I think you really want, is that stipulation 22 is not going to be usable by either side to say, now, Dr.
23-Lieberman cannot testified the way his direct is, or that 24 Adler can't testify the way his direct is.
25 And I have a feeling that what we're really
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1 talking about here is you want a stipulation that you then
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2 can use on the~ basis of.an objection to Lieberman's 3
testimony..And thel reason you want that,.I think, is a
.t..-
4 because I've read Adler.and Adler made the assumption that I
l 5
you make.
And.that's how he supports certain of his traffic' l
6 management things.
And I think you're nervous, and you j
7 should be, that Lieberman's logic is going to prevail.
8 And as long as you' re not asking me to say-j!
9 Lieberman's testimony now goes in the trash <nt traffic i
10 management, I will give you that stipulation.
I'll run the i
l 11 model you way and the Board can make a finding that in the l
12 event the Governor of the Commonwealth of Massachusetts 13 steps up and takes over, that's the ETE he's going to j
14 utilize.. I've got no problem with that whatsoever.
Because 15 ifLthere's one thing I'm clear on, it's only the Governor of 16 the Commonwealth can select the ETE, assuming he decides to 17 take over, which I'm sure he~will do.
18 MR.. FIERCE:
But if it's Mode 2, we would argue 19 that the ETE your people are using is wrong.
20 MR. DIGNAN:
I understand you're arguing that.
21 MR. FIERCE:
And we think you should change your I
22 plan.
23 MR. DIGNAN:
No.
Well, how do you change the plan 24 if the ETE's wrong?
25 MR. FIERCE:
Well, that's what we're litigating.
?
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MR. DIGNAN:
Yes, but what change do you want-in
(_/
2 the plan because our ETE is supposedly wrong?
What specific 3
change do you want?
Because I imagine we're going to --
4 MR. FIERCE:
Well, shouldn't the commonwealth and 5
the ORO in the ideal'world be on the same wavelength with 6
respect to ETEs?
7 MR. DIGNAN:
Alan, who cares if they' re on the 8
same wavelength.
If Massachusetts is going to run the 9
thing, they're going to use their own ETE.
10 MR. FIERCE:
That's not.the way the plan works 11 under Mode 2.
12 JUDGE SMITH:
Well, as I understand the plan under 13 Mode'2-the Governor --
14 MR. FIERCE:
Turns it all over to the ORO.
- 3. g
/
15 JUDGE SMITH:
The Governor could say, we give you 16 all those delegations, but direct you to use'our ETE.
i 17 MR. DIGNAN:
Yes, he could.
That's not pure Mode 18 2 but he could do that.
19 MR. FIERCE:
But that's not pure Mode 2.
I think 20 we have a contention that says that the ETEs that are in the 21 plans that are to be used by'the ORO are inaccurate, and 22 would have been accurate if the Stip had held.
I 23 MR. DIGNAN:
Your Honor, here is the problem.
The 24 problem is that the Commonwealth wants an agreement that we 25 will use their ETE.
And I can probably give them that, like
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I said, provided only that it says, you know, we can run our 2
own ETE, too. :So if the Governor says, hey, ORO, run.it 3
your way, we'll run it our way.
4 I really don't, I get the feeling that what really 5
has happened here is that nobody wants a settlement anymore.
6 Because I think I've accommodated the concern if we run it 7
both ways.
8 MR.. FIERCE:
Well, what about all the other 9
changes, Tom?
10 JUDGE SMITH:
Mr. Dignan, could I make a 11 suggestion?
i 12 MR. DIGNAN:
Yes, Your Honor, 13 JUDGE SMITH:
That I think you've maybe come up 14 with a way that could break this impact, but I think you're 15 asking an awful lot.
If I were Mr._ Fierce, I would be 16 afraid at this moment to agree to anything.
17 MR. DIGNAN:
So.would'I.
I'm not asking him too.
18 JUDGE SMITH:
Well, you're asking him to agree to 19 changing that Item 2.
And if I were him, I would just say, 20 no, no, no, I'm not going to agree to anything until I go 21 back, understand what's going on, give it some more thought.
22 MR. DIGNAN:
Your Honor, I'm not asking him to 23 agree to it in this phone conversation.
I'm asking him to 24 agree to consider it.
Because it seems to me logically that 25 if we add two sentences to paragraph 2, the problem goes lE r"}
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away.
U 2
JUDGE SMITH:
I do think Mr. Fierce ought to l-
'3 rethink his entire approach to this litigation.
We're not,
- 4 as you know from our previous decision, we're not going to l
5 be persuaded by any,-the term "gotcha" is being used, you 6
know, that you're model doesn't do'this, and therefore, we I
7 "gotcha."
We're going to be looking at the real world.
8 And I think you can get some guidance from our 9
.last initial decision.
In the last analysis, it will'be the 10 Commonwealth of Massachusetts that decides whether they 11 accept an ETE or not from the applicants.
The applicant's 12 responsibility will be to assure that an accurate one is 13 presented.
I think you should have picked that up from our 14 initial decision.
g-
. >g 15 Let's, you ponder that and go on back and think 16 about it, and see if you can work out something with respect 17 to that Item 2.
18 But I also want to emphasize that the more I think 19 about Mr. Turk's suggestion, and I was wondering about that l
20 during the New Hampshire phase of the hearing, I guess the 21 Board wants to know how important this contention is to the 22 litigation and in terms of what is wrong with fixing that 23 intersection for an emergency use by a strip over the grassy j
24 plot.
What is wrong with that?
25 I think we have a right to know that, and in
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several respects within our jurisdiction.- One is, how -
(
2 important'is the contention.
The contention can be measured 3
in importance as to how easy it is to fix.
And two, what is i
4 the real true forthright litigative purpose of the Attorney j
l 5
General.
6 We have a right to know that.
We have a right for 7
you to tell us accurately what your litigative purpose.is, I
8 not only overall, but in every detail th'at we wish to 9
inquire-into.
11 0 So I think we're going to pursue this further.
I i
11 think we'll want to know what.s the value of fixing that 12
. intersection compared to everything else, all the other i
13' options that we're looking at.
l q
14 MR. FIERCE:
Your Honor, it sounds like we're I
15 trying to wrap this thing up here.
And I would just 16-indicate first that I am to some extent willing to pursue 17 further discussions in any event.
18 But I would like to perhaps get some clarity to 19 the deadlines that remain.
And to focus it, I would say 20 this.
May I have two weeks to the 27th to file, if I
l l
21 necessary, the rebuttal piece to the returning commuters j
I 22 filing made by the applicant.
l i
23 And secondly, may we file --
l 24 JUDGE SMITH:
Is that all right with you, Mr.
25 Dignan?
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MR. DIGNAN:
That's fine with me, Your Honor, no
\\_J 1
2 objection.
1 3
JUDGE SMITH:
Fine.
That.one's all right.
4 MR. DIGNAN:
And.may we. file'the ETE testimony, if
{
5 necessary, with the waive to filing on April 3rd?
j 6
JUDGE SMITH:
Do you object to that, Mr. Dignan?'
7 MR. DIGNAN:
I do not, Your Honor.
j 8
JUDGE SMITH:
What did you say?
9 MR. DIGNAN:
I do not object.
10-JUDGE SMITH:
All right, so you have both of 11 those.
i 12 MR. FIERCE:
All right, fine.
Thank you.
13 JUDGE SMITH:
And Mr. Fierce, bear in mind that 14 the Board's instructions to have the Commonwealth of
'l
.f~
O
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15 Massachusetts represented by an attorney.
16 MR. FIERCE:
I'm happy to let somebody over my l
17 head deal with this one, Your Honor.
I can't do more than 1
'l 18 I've indicated.
I will pass-the word along.
i 19 JUDGE SMITH:
Very good.
My instructions in terms of 21 litigating this case have been to do exactly what I told you 22 on the phone.
I 23-JUDGE SMITH:
I appreciate that.
]
l 24 MR. FIERCE:
And I am being honest with you at the l
25 level that I am here in the Attorney General's office, j
l
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1 JUDGE SMITH:
And given that fact, I have no f
R-)
i 2
quarrel with you or what has happened.
But I do have a 1
3 quarrel with the Commonwealth of Massachusetts, if they do 4
not send to our hearing, lawyers with full authority to 5
handle all aspects of the issues within our jurisdiction, 6
full authority.
That is a requirement of the Board.
And 1
7 we'll take it up again the first thing the afternoon of the 8
hearing.
9 MR. FIERCE:
Okay.
10 JUDGE SMITH:
And if it means having, whoever it 11 is, do not come to the hearing without being represented 12 with full authority as to all aspects of the issues before 13 us.
14 What'I mean is, come to the hearing with that 15 authority.
16 MR. FIERCE:
All right.
The only caveat I would 17 add is that we are a constitutional government here.
The 18 attorneys for the Commonwealth and the Attorney General do 19 not have greater powers in some regards than the Governor 20 does.
We can represent the Governor's position.
We can 21 tell you what it is, but we can't order the Governor to do 22 certain things.
23 MR. TURK:
Then you can get the Governor to have a 24 representative there who can speak for him.
25 JUDGE SMITH:
Right.
If the Governor is, isn't
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1-the Governor a party to this proceeding, the Commonwealth?
- jm)
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I 2
MR. FIERCE:
The \\ttorney General is the 3
litigative party.
4 JUDGE SMITH:
Litigative party.
5 MR. DIGNAN:
Your Honor, the Commonwealth of 6
Massachusetts, it is clear that the Attorney General as an.
7 independent constitutional' officer, has a right to 8
inttevene. He can do that even if the Governor tells him not l
9 to, under our constitution.
I 10 JUDGE SMITH:
That's typical.
11 MR, DIGNAN:
It is also true, however,.that in 12 this case, as a practical matter, I know of no reason to
'13 believe that the Attorney General is not representing the j
14 Governor's wishes at all times.
I've never seen one O
15 indication that any position that Attorney General Shannon 16 has taken was at variance from that which Governor Dukakia 17 wanted taken.
18 JUDGE SMITH:
Well, it may be that the attorney 19.
general can intervene as a constitutional officer, and that 20 is not an uncommon arrangement, even contrary to the 21 position of the Governor.
But in this case, the case is ao 22 permeated with the presumed and expected response of the j
23 executive department, the Governor's office, that the 24 standing of the Attorney General to intervene, standing with j
i 25 respect to particular issues may be in doubt.
/~%
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NJ 2.
litigation over matters of which he has no control?
Only
]
3 with respect to an attack type of case.
4 MR. TURK:
Your Honor, this is Sherwin Turk.
j 5
There was a point in time back in approximately
)
6 1986 when the standing of a Mass AG to intervene was an 7
issue.
And if I'm not mistaken, at that time the Mass AG 8
' claimed to be representing not himself but the Commonwealth 9
of Massachusetts.
And there's always been some confusion in' 10 my mind about that.
11 But I think their own position was that they're.
12 not just representing their own office but rather the entire 13 Commonwealth.
And I would assume that to do so, they better 14 have the Governor included as part of that representation.
O 15 JUDGE SMITH:
Well, they're going to have to have 16 a balanced litigation.- I mean, they can't come in and'say, 17 we have full standing to intervene as to all issues, and L
l 18 then duck behind a limited jurisdiction of the Commonwealth l
19 when it comes to what the Commonwealth is going to do and 20 can do.
21 It may be that they may not be eligible to 22 litigate certain issues.
We'll have to explore that.
We' re i
23 not going to play games.
It's like sending the wrong person 24 to the hearing.
You can't send a limited jurisdiction 25 person to a hearing and then use that limited jurisdiction
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1 as a.litigative weapon.
2 We'll take it up again at the beginning of the 3
hearing.
4 We're having a prehearing conference on the 15th, 5
a status. conference.
I guess we can bring up any other 6
. issues then, and I think Mr. Flynn wants to be.in on that 7
one, too.
8 Anything further?
9 MR. DIGNAN:
Mr. Fierce?
10 MR. FIERCE:
Yes?
11.
MR. DIGNAN:
If you wish to talk further about a
-12 stipulation, Jay Smith and Terry Harpster will both be 13 available at your convenience tomorrow..The reason ~I bring 14' that up is, don't call me because I've got to be out of town fg
~
15 tomorrow.
16 MR. FIERCE:
Okay, fine.
17 MR. DIGNAN:
But they will be there with full 18 authority.
19 MR. FIERCE:
All right.
20 MR. TURK:
Your Honor, my notes indicate that we 21 have a 10:00 a.m.
conference call the 15th?
22 JUDGE SMITH:
That's right, yes.
Just a status 23 report.
24 MR. DIGNAN:
That's the prehearing?
25 JUDGE SMITH:
That's a prehearing status report.
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8 15977 1
Just, are,we on track or:who is' going to:do.what.
That's 2
all.
First1 witnesses.
I think.we've pretty well worked it 3-
<out.
I think the need for:one has diminished somewhat, but u
4 we'still will have it.~
l
-5 If there's nothing further, we'll adjourn for the 6
night.
7
.All right,'that's-all. 'We're adjourned.
8 (Whereupon~, at.5:55 p.'m., the' hearing was~
9 concluded.)
10 11 12 13 I
. 14 15' 16 17 18
'19 20 21 j;
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f
1 CERTIFICATE
(~
2 0) 3 This is to certify that the attached proceedings before the 4
United States Nuclear Regulatory Commission in the matter 5
of:
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
l 6
Name:
(SEABROOK STATION, UNITS 1 AND 2) i 7
8 Docket Number:
50-443-OL and 50-444-OL 9
Place:
Bethesda, Maryland 10 Date:
March 13, 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 f-)
kJ 16 transcript is a true and accurate record of the foregoing.
17 proceedings.
18
/s/
19 (Signature typed) :
CARLOS HALASZ 20 Official Reporter 21 Heritage Reporting Corporation 22 23 24 25 Heritage Reporting Corporation (202) 628-4888
{)
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